Opinion
No. 164.
Argued October 2, 1969. —
Decided October 28, 1969.
APPEAL from a judgment of the circuit court for Kenosha county: HAROLD M. BODE, Circuit Judge. Affirmed.
For the appellant there was a brief by Phillips Richards of Kenosha, and oral argument by Charles J. Richards.
For the respondent there was a brief by Heide, Sheldon, Hartley Thom and W. A. Sheldon, all of Kenosha, and oral argument by W. A. Sheldon.
This is an action to recover damages for breach of contract. The contract was entered into on March 8, 1965, between the plaintiff-respondent, Charles Tunkieicz, an experienced Kenosha farmer, and the defendant-appellant, Libby, McNeill Libby, a corporate food processor. The plaintiff Tunkieicz agreed to plant, cultivate and raise 15 acres of lima beans on his land with seed furnished by the defendant, Libby, McNeill Libby (hereinafter "Libby"). The beans, of course, were to be sold to Libby at the contract price. Libby was also obligated to harvest the beans when they reached the harvest stage. There is a limited period of time during which the beans can be harvested for Libby's purposes for human consumption.
Under the contract defendant agreed to harvest these beans according to the following terms:
"4. Harvesting and hauling.
"a. Buyer shall have the right to harvest the crop when, in its judgment, the beans most nearly meet the objective, terms, conditions and specifications set forth herein. It is agreed that Buyer shall not be liable for damage except that which is a result of negligence on the part of Buyer.
". . .
"e. Seller agrees that in the event of rain and muddy conditions making it necessary to have additional power to pull the harvesting or hauling equipment Seller will furnish tractors and drivers for such purpose without charge to Buyer.
". . .
"8. Miscellaneous provisions
"a. If performance of this contract or Buyer's business or processing operations are hindered or prevented by act of God, action of the elements, fire, labor disturbances, failure or lack of transportation facilities, shortage of labor, material, containers or supplies, inability to obtain equipment or parts, breakdown of equipment, interruption of power or water, war, invasion, civil commotion, commandeer, enactment of legislation or issuance of governmental orders or regulations, or other casualty or cause, whether similar or dissimilar, beyond either party's control, performance by either party hereunder to the extent so hindered or prevented, shall be excused."
The beans were mature enough to harvest on September 2, 1965, and became too ripe for Libby's purposes on September 25, 1965.
On the morning of September 4th, Libby moved six tractors, six combines and two cutters into the plaintiff's field. With this equipment, under normal conditions, the field could have been completely harvested in a day and a half. A heavy rain fell during the late morning and by 1 p. m. the combines were stalled in the muddy fields.
Libby's employees testified that the combines were stuck in ruts in the field that were from one to two feet deep. It was further stated that the conveyor "pickups" which moved the beans from the ground up into the machine were buried in the mud. Mr. Schneider, the fieldman in charge of this harvest, testified the combines could not be removed from the field until September 11th. At that time the combines were pulled back through the ruts and taken to another farm that could be harvested. No further attempt was made by Libby to enter the plaintiff's field with its combines to complete the harvest.
Libby's field representative stated that he checked the conditions of this field by personal inspection each day after the harvesting was halted through September 20th. That is the date on which Mr. Schneider informed the plaintiff the crop was too ripe to harvest. Schneider indicated the field was too wet and soggy each day between September 4th and September 20th to carry the 12-ton combines. The beans were never harvested and the plaintiff, upon direction of Libby, plowed the whole crop under.
The plaintiff agreed with the defense claim that the field was not capable of being harvested September 4th. However, he insists that the crop could have been harvested prior to September 20th. He testified that he walked across the field two to four times between the dates of September 11th-20th. From those observations of his own land he was convinced the harvesting could have been done before September 20th.
He testified as follows:
" Q. Was it practical to harvest the lima bean crop between September 4 and September 20 of 1965? A. Yes, that —
" Mr. Richards: If it please the Court, I am going to object unless he has knowledge what the condition of the crop was.
" The Court: Well, it's his crop, he saw it every day. You may have the answer.
" A. Yes, absolutely."
Mr. Tunkieicz further testified that this field had been underlaid with drainage tile to facilitate the drainage of the area. He indicated that at no time during the 1965 season did he have water standing in any of his fields for more than one day. Plaintiff indicated that this field was plowed within one week after the crop was declared overripe. He also stated that he had no difficulty harvesting other crops on similarly situated land during September.
Plaintiff's testimony that the field could have been harvested before the 20th is supported by that of two neighbor farmers. One of these witnesses had been in the field during the critical time period, the other observed it while driving past on the adjacent highway.
Mr. Charles Mills, a neighboring farmer, stated that he walked about one hundred feet into the field prior to the removal of the combines and found the soil to be wet, but firm and hard. Relative to the ability to harvest these beans the following testimony was elicited:
" Q. As you observed the Tunkieicz farm of lima beans, did you form an opinion as to whether or not it was possible to harvest it in September of 1965, between September 4, and September 20? A. Yes, I feel it could have been.
" Q. You did form an opinion? A. Yes.
" Q. What is your opinion?
" Mr. Richards: Now, if it please the Court, I am going to object on the ground this man does not have the proper qualifications.
" The Court: He is a farmer, he's familiar with the conditions on the Tunkieicz farm, and what the conditions were in September. Why can't he testify? The objection is overruled.
" A. Might not be easy, but I feel it could have been with effort. We did our own crops, we did a lot of pulling out that fall, but we did it."
Mr. Forrest Nicholson was examined at length about his knowledge of farming in wet areas and the necessary equipment to do it efficiently. He had observed the combines in the plaintiff's field from the highway and indicated that the tractors were not properly equipped to work well in wet or loose soil. He said the tires did not provide sufficient flotation nor large enough lugs to perform adequately.
Meteorological data introduced by the defendant for the Kenosha area showed the total rainfall from September 4th through the 20th to be 4.44 inches. Of this amount, 1.02 inches fell September 4, 1.37 inches on September 7th, with the rest in smaller amounts scattered over the rest of the time period.
A neighbor, Mrs. Edith Hendricksen, also testified she observed the field and that at no time was water standing on the field.
The plaintiff further testified that he had two large tractors and drivers available at all times to assist Libby but that Libby's representatives never requested any assistance.
The jury, in response to a special verdict question, found that Libby was not "prevented by the action of the elements from harvesting the plaintiff's lima beans during the period when the lima beans were fit for processing."
Libby had moved for a directed verdict and after return of the verdict moved for judgment notwithstanding the verdict and for a new trial.
The trial court granted plaintiff's motion for judgment on the verdict and found the plaintiff's damages pursuant to the proof and the formula set forth in the contract.
The defendant, Libby, McNeill Libby, appeals.
The defendant, Libby, contends the trial court erred in permitting plaintiff's witnesses to testify that the lima beans could have been harvested when they had no actual knowledge of the soil conditions and no hypothetical question of assumed facts of the record had been given to the witnesses. Libby also contends that without this testimony the evidence is not sufficient to sustain the verdict.
The most critical fact at issue in the case was the capability of the soil in the plaintiff's field to carry the combines and tractors in the harvesting process. Libby's fieldman testified that at no time prior to September 20th was the field dry enough to support the harvesting machinery.
The plaintiff testified from his own observations of the field, from the fact that this field had been tiled for drainage purposes, and his experience in harvesting adjacent fields on his farm, that the beans could have been harvested between September 4th and September 20th. His testimony was directly corroborated by Mr. Mills, who entered the field and viewed the soil conditions, and indirectly by Mr. Nicholson, who, viewed the field and the Libby machinery from the roadway. If this testimony was properly received in evidence it is amply sufficient to support the verdict.
The defendant contends that the testimony of the plaintiff and his witnesses was in the nature of expert opinion evidence and that because the witnesses had no actual knowledge of the soil conditions, and no hypothetical questions were put to them concerning the soil conditions, the court erred in allowing them to testify as to their opinion that the field could have been harvested.
The court sustained the defendant's objection to Mrs. Hendricksen's opinion as to harvestability of the field. Her only testimony in the record is as to her observations as to water on the field. This was not error.
We are of the opinion that the plaintiff, Mr. Nicholson, and Mr. Mills were sufficiently qualified as experts capable of forming an expert opinion as to whether the field could have been harvested. All three were mature middle-aged persons who farmed all of their lives. They lived in the immediate area; knew the soil conditions; what type of machinery should be used; and when the soil conditions were such as to permit the harvesting. In addition, the same weather conditions prevailed on their nearby lands insofar as their harvesting was concerned. All of their crops were harvested.
Luke v. Northwestern National Casualty Co. (1966), 31 Wis.2d 530, 535, 143 N.W.2d 482; Karlen v. Hadinger (1911), 147 Wis. 78, 132 N.W. 591.
They all made some personal observations of the plaintiff's field. These observations, together with their general experience and the specific experience that fall, were sufficient to permit them to express an opinion as to whether the lima bean crop could have been harvested.
The extent and adequacy of their observations and experience are matters that defendant could challenge on cross-examination.
The testimony of Libby's fieldman is in direct contradiction of some of the evidence of the plaintiff and his witnesses. However, the credibility of the several witnesses and the weight to be given to their testimony was properly left for the jury's determination.
We conclude that the trial court properly permitted the plaintiff and his farmer neighbors to testify as experts; that their testimony could be accepted as credible by the jury and, as such, supports the verdict.
By the Court. — Judgment affirmed.