Wellman v. Birkel

• Citation: 367 N.W.2d 716,220 Neb. 1
• Decision Date: 17 May 1985
• Docket Number: No. 83-725,83-725
• Parties: Elizabeth Ann WELLMAN, Appellee, v. William H. BIRKEL et al., Appellants, Olivia A. Birkel, Personal Representative of the Estate of Peter M. Birkel, Deceased, Appellee.
• Court: Supreme Court of Nebraska

Page 716

367 N.W.2d 716

220 Neb. 1

Elizabeth Ann WELLMAN, Appellee, v. William H. BIRKEL et al., Appellants, Olivia A. Birkel, Personal Representative of the Estate of Peter M. Birkel, Deceased, Appellee.

No. 83-725.

Supreme Court of Nebraska.

May 17, 1985.

Syllabus by the Court

1. Evidence: Verdicts. In testing the sufficiency of evidence to support a verdict, it must be considered in the light most favorable to the successful party.

2. Verdicts: Damages: Appeal and Error. A damages award by a jury will not be set aside as exorbitant unless it is so clearly excessive as to indicate that it was the result of passion, prejudice, mistake, or disregard of the evidence or applicable rules of law.

3. Verdicts: Appeal and Error. A jury verdict will not be reversed on appeal unless it is clearly erroneous.

4. Replevin: Damages. The measure of damages in a replevin action when the property is not returned is the value of the property, together with interest, from the date of the unlawful taking.

5. Replevin: Damages. When the property is returned in a replevin action, the party recovering possession of the property is entitled to recover as damages any deterioration or depreciation in the value which has taken place during the wrongful detention.

6. Appeal and Error. The general rule is that the consideration of appeals to this court is limited to errors assigned and discussed. Unless assigned and argued, claimed errors relied upon for reversal will not be considered.

James M. Egr of Egr & Birkel, David City, for appellants.

Larry J. Karel of Karel Law Offices, Schuyler, for appellee Wellman.

KRIVOSHA, C.J., and WHITE, and GRANT, JJ., and BRODKEY, J., Retired, and WOLF, District Judge.

BRODKEY, Justice, Retired.

This action involves an alleged farming arrangement between the plaintiff, Elizabeth Ann Wellman, and the defendants Peter M. Birkel, William H. Birkel, and Max Birkel. The plaintiff had previously been married to Michael Birkel, who was the son of Peter Birkel and the brother of William and Max Birkel.

Subsequent to their marriage in 1963, Michael and Elizabeth acquired certain real estate, to wit, a 320-acre farm known as the Valley Farm and an 80-acre farm known and referred to as the Brokevelt 80, and they also rented an 80-acre tract known as the Hanus 80. They also acquired farm machinery and equipment, both alone and with Michael's father, Peter, and had a farming relationship until Michael's death in 1973. Prior to Michael's death, however, he was incapacitated, and the farming of the properties referred to was performed by the father, Peter, and the brothers, William and Max, under an agreement between them that they would use the equipment, tools, and implements belonging to the plaintiff and her husband both on their land and on other lands farmed by the defendants.

Under the arrangement existing between them after Michael's death, all of the crops were to go to the plaintiff, the father and brothers having the use of the equipment of the plaintiff. This arrangement was changed in 1977 to provide for a 50-50 sharecrop basis on the Valley Farm and the Brokevelt 80, and with all the tenant's share of the rented Hanus 80 going to the plaintiff, the father and the brothers receiving the use of the machinery for their services. Under the arrangement at that time, plaintiff was required to pay one-half of the crop expense and all of the upkeep and repairs on her machinery.

However, on January 10, 1978, the defendants entered into written leases with plaintiff for the Valley Farm and the Brokevelt 80 with respect to the 1978 and 1979 crop years. Both tracts were irrigated and rented on a 50-50 sharecrop basis. The plaintiff continued to rent the Hanus 80 from John Hanus, and the defendants farmed that tract for the plaintiff, who received the entire crop, with the defendants receiving the use of the machinery owned totally or partially by the plaintiff and inherited from her deceased husband, Michael Birkel. Elizabeth married her present husband, Alvin Wellman, in June of 1978, and at that point the relationship between the parties commenced to deteriorate.

A dispute arose between the parties at the expiration of the lease period, which eventually culminated in the filing of this action in the district court for Butler County, Nebraska. The action referred to contained three counts or causes of action.

In the first cause of action the plaintiff refers to the real estate owned and leased in Butler County, Nebraska, and alleges that she had entered into written leases with the defendants on such real estate; and further asserts that prior to the 1979 crop year, she entered into an oral amendment of the written leases whereby the defendants agreed to pay to the plaintiff the sum of $35 per acre for 60 acres of pasture included in the acreage covered by the leases. Also included in her first cause of action is the claim that defendants harvested crops in 1979 on the real estate in question but have failed and refused to deliver her share to her or to make payment to plaintiff pursuant to the lease agreements, and have failed to provide a true, correct, and complete accounting of her share of the crops for the crop year 1979. Whereupon, she prays for an accounting and judgment against the defendants on the claims contained in her first cause of action.

In her second cause of action she alleges that defendants were in possession of certain farm machinery equipment, and tools under a certain arrangement with her and that she has made demand upon the defendants for the return of the same and also for return of 9,936.76 bushels of corn that she was entitled to as the owner, and she seeks judgment for possession of such property.

In her third cause of action plaintiff alleges that during the years 1978 and 1979, the defendants harvested certain crops from the real estate leased or subleased to them and stored in a grain bin on her property but that the grain was not properly stored and the defendants failed to properly dry and level the same, and that by reason thereof she suffered damages in the amount of $2,424.18, for which she prays judgment.

The defendants, in their answer to the amended petition, generally deny the allegations contained in the three separate causes of action.

Peter Birkel died after suit was filed, and Olivia Birkel, his personal representative, was joined as a necessary party. The trial court, however, granted a directed verdict in favor of Olivia and dismissed her as a defendant because of lack of evidence presented against Peter Birkel. Prior to trial to the jury, the parties to the action entered into several stipulations, one of which was that, with reference to the replevin action contained in the second cause of action, the parties agreed all of the farm equipment and machinery referred to, except a John Deere 4020 tractor, would be returned to the plaintiff within 30 days of the close of the trial. They also agreed that plaintiff could introduce evidence as to the price of grain at the Bellwood elevator at the date the grain was delivered to the elevator and on the day of the trial. The judge also instructed the jury that the parties had agreed that there were four separate items in dispute in the lawsuit, the first being the matter of the pasture rentals; the second being the grain which the plaintiff alleges belongs to her and which the defendants refuse to deliver; the third, a 4020 tractor which was held by the defendants until April 1981; and the fourth, damage to grain in storage.

Following a trial at which evidence was adduced and presented for consideration of the jury, the jury returned its verdict on May 24, 1983, generally in favor of the plaintiff and against the defendants, and specifically on the issues as follows.

On the issue of damages for wrongful detention of plaintiff's John Deere 4020 tractor, the jury found for the plaintiff and against the defendants William H. Birkel and Max Birkel in the sum of $1,200; on the issue of damages caused to the plaintiff's grain, the jury found for the plaintiff and against defendants William H. Birkel and Max Birkel in the sum of $1,212.09; on the issue of the pasture rent due plaintiff, the jury found for the plaintiff and against the defendant William H. Birkel in the sum of $289,44, and for the plaintiff and against the defendant Max Birkel in the sum of $289.44; on the issue of the ownership of grain, the jury found for the plaintiff and against the defendants William H. Birkel and Max Birkel in the sum of $24,543. The court entered judgment on the verdict and also found that the plaintiff was entitled to prejudgment interest on the amount of grain held at the Bellwood Co-op Elevator in the amount of 4,968.40 bushels times $3.03, which equals $15,054.25, with interest thereon from the 7th day of February 1980 at the rate of 12 percent per annum. The court also awarded prejudgment interest at the rate of 12 percent per annum from the 1st day of March 1980 on the $1,200 damages awarded for wrongful detention of the tractor.

Defendants then perfected their appeal to...