Wheatland Irrigation Dist. v. McGuire

• Decision Date: 17 March 1977
• Docket Number: No. 4353,4353
• Parties: WHEATLAND IRRIGATION DISTRICT, a corporation, Appellant (Defendant below), v. Bernard R. McGUIRE et al., Appellees (Plaintiffs below), and Dean T. Prosser, Jr., and Harriot Prosser, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 287

562 P.2d 287

WHEATLAND IRRIGATION DISTRICT, a corporation, Appellant (Defendant below), v. Bernard R. McGUIRE et al., Appellees (Plaintiffs below) and Dean T. Prosser, Jr., and Harriot Prosser, Appellees (Plaintiffs below).

No. 4353.

Supreme Court of Wyoming.

March 17, 1977.

William R. Jones and Raymond B. Hunkins, of Jones, Jones, Vines & Hunkins, Wheatland, for appellant.

John J. Rooney, of Roomey, Horiskey, Bagley & Hickey, Cheyenne, for appellees McGuires.

Glenn Parker, of Hirst & Applegate, Cheyenne, for appellees Prossers.

Before GUTHRIE, C. J., McCLINTOCK and ROSE, JJ., and BROWN and HAMM, District Judges.

McCLINTOCK, Justice.

The McGuires and Prossers recovered substantial judgments in separate actions filed against the Wheatland Irrigation District to recover damages for injuries to lands and personal properly belonging to the two families, which injures occurred when the dam of a reservoir owned by defendant gave way, resulting in the flooding of plaintiffs' lands. Defendant appealed, asserting error both in the imposition of liability as a matter of law by the trial judge and in the assessment of damages by a jury. Our first opinion ¹ held that the trial court committed error in imposing liability as a matter of law and confining the jury trial to issue of damages but did not discuss defendant's contentions with respect to damages. Petitions for rehearing were then filed by plaintiffs, asserting error in our reversal of the liability issue, but also suggesting that the cause should be remanded only for trial of that issue, leaving intact the jury verdict as to damages. We denied rehearing on the issue of liability but ordered reargument before a full court on all questions relating to damages. ²

Our order granting reargument upon the desirability of a limited retrial upon the liability issue alone refers to the general rule permitting such retrial when "it is clear that such a course can be pursued without confusion, inconvenience, or prejudice to the rights of any party.' Annot. 34 A.L.R.2d 988, 990.' ³ Such a procedure is consistent with our Rule 42(b), W.R.C.P. permitting separate trials of claims or issues in the first instance. We think it is also consistent with our Rule 59(a), W.R.C.P., permitting a new trial 'on all or part of the issues' and agree with the observation of the Supreme Court of Alaska in City of Fairbanks v. Nesbett, 432 P.2d 607, 613 (1967) pertinent to its Civil Rule 59(a)-essentially the same as ours-that while the rule pertains to authority of the trial courts, 'this court possesses equivalent authority to order a partial new trial upon remand.' That case presented the other side of the coin in that it held the liability issues were distinct from the damage issues, that the former had been properly decided and a limited retrial on damages would not 'result in an injustice to appellant.' Such an order 'for the restriction of the issues will never be made unless the court can clearly see that this is the way of doing justice in that case,' Murray v. Krenz, 94 Conn. 503, 109 A. 859, 861 (1920). This court, in construing former § 89-4803, W.R.S. 1931, ⁴ providing that this court could direct a case to be retried on all or part of the issues, said that '(w)hether that course should be followed is a matter within the sound discretion of the court.' F. E. Warren Merchantile Co. v. Myers, 48 Wyo. 232, 237, 45 P.2d 5, 6 (1935). We therefore have no doubt as to our authority to order a retrial upon the liability issue alone.

We think it only proper that the question whether injustice and prejudice would result from a limited retrial be determined under the usual rules of appellate review and if there has been a reasonably errorless trial upon the question of damages, that issue should not be retried merely to permit objections and defenses that were not raised upon the first trial. ⁵ The extent and amount of damages were vigorously contested by defendant in the trial court and it now assigns numerous errors respecting the trial of that issue. We have carefully examined the record and now determine that while objections of the defendant left much to be desired and in some instances were completely lacking, there were sufficient errors committed over defendant's objections that to confine the new trial to the issue of liability alone would result in injustice. In view of the fact that we are remanding the matter for new trial we shall consider errors claimed by defendant as to the first trial in the hope that it will aid in the retrial. See Chicago and Northwestern Railway Company v. City of Riverton, 70 Wyo. 84, 119, 247 P.2d 660 (1952), denying petition for rehearing.

The damages claimed to have been suffered by the McGuries and the Prossers were asserted in separate actions consolidated for purpose of trial. Both complaints are quite general in terms, alleging only that because of defendant's improper acts the plaintiffs' lands were flooded and great damage done, both to the land itself and to crops, residences and other property. No defense of nonjoinder of necessary or proper parties was raised by defendant by the pleadings, ⁶ objection at the pretrial or through other preliminary motion, but during the course of the trial it was claimed that any injuries established by either group were in material part to the interests of other members of the McGuire family or the Prossers' family corporation, not parties plaintiff in the action, and it is now claimed that the jury could not and did not find the portion of such damages attributable to the ownership interest of the parties to the suit. Defendant also attacks both the McGuire and Prosser judgments on the basis that there was no adequate or proper proof at the trial from which the jury could properly award damages, so that the verdict is the result of surmise, speculation and conjecture.

To place these objections in proper perspective we first examine the manner in which the two families operate. The McGuire plaintiffs, probably in husband and wife combinations, are the separate owners of distinct parcels of land within the area of damage. Two other members of the family, possibly in combination with their wives, own other distinct tracts outside this area. Only those lands in which parties to the action Bernard (the father), and Tom and Pat (two of the sons) had some ownership were damaged by the flood, but those lands, together with lands owned by nonparty members of the family, are combined into what is frequently described as one ranching unit comprising some 13,000 acres of deeded land. The ranching operation, which consists of the breeding, care and marketing of livestock, principally cattle, is conducted on all of these lands under a loose family arrangment, neither a corporation, nor a partnership or other formal association, and involves the use of all the lands and all of the appropriate machinery and equipment owned by the family. As testified to by Tom McGuire, one of the principal witnesses for his family, title to 'all this land' is 'mixed up amongst us. ⁷ We are all in it together. * * * We mix our cattle up and if one guy has a pickup everybody can use it. * * * The machinery is all together.' The family members do not attempt to distinguish as to whose land they may be working on. Feed is all mixed up. Newly purchased property will be in a certain name 'but we run our cattle on anything.' The family buys it together, 'kind of.' At least each male member of the family had his own brand, and individual income tax returns are filed, 'but if one guy gets going behind a little or something the rest of us will help him out.' There was no individual breakdown of ownership of personal property and the witness spoke of machinery as 'family property.'

The lands owned by Mr. and Mrs. Prosser were orally leased to Chalk Bluffs Ranch, Inc., a corporation in which they have substantial interests and which is managed by their son. The corporation pays a fixed rental of $6,000 per year to the Prossers ⁸ and the corporation owns all machinery, puts up the hay, maintains the fences and buildings, and assumes all expenses in connection with the livestock operation. Many items of restoration expense incurred as a result of the flood were paid by check of the corporation but these payments are explained by Dean Prosser as being in the nature of loans to the Prossers.

Witnesses for both families testified at length as to the extent of the flood damage, the property lost or damaged, costs of clearing away rock, sand and debris and restoring the land, loss of use during the time that the property was being restored, and a great deal of testimony is devoted to what is termed permanent land damage. During the course of the testimony two large sheets of paper were placed on an easel before the jury and the damages of each family were listed under six main headings, denominated as washed-away items, machinery damage, loss of use, cleanup, farm yard expense, and permanent land damage. Claims so summarized totaled $314,373.90 for the McGuires ⁹ and $303,390.59 for the Prossers. ¹⁰ On the Prosser exhibit some of the six categories of damages were further broken down into smaller classifications and on both exhibits there were notations of the figure for depreciation or permanent land damage given by their common expert, McInerney, $100,000 in each case. Both these sheets were offered and received in evidence over the objection of the defendant.

We first consider defendant's contentions that there was no appropriate, adequate, or proper legal evidence or proof of damages presented from which the jury could have properly awarded damages, that improper testimony and irrelevant, immaterial, and confusing exhibits were prejudicially received into evidence over defendant's objections, and that 'the record as a whole is so devoid of competent and relevant evidence on the issue of damages that the judgment for that...