Chickasha Cotton Oil Company v. Hancock , 1957 Okla. LEXIS 342 ( 1957 )

JACKSON, Justice

(dissenting).

My dissent goes to the amount of the remittitur.

The majority opinion approves the $17,-000 verdict to the extent of $4,420.35. This figure is arrived at by first allowing the plaintiffs $9,840 depreciation, $175 for the death of one cow, $175 for the death of five calves, and $280.35 for veterinarian’s services, or a total of $10,470.35, all as prayed for in plaintiffs’ petition. The majority then subtracts from this item the alleged value of nineteen cows, two bulls, and ten calves which were retained by plaintiffs, in the aggregate alleged • value of $6,050. When this is done the difference is $4,-420.35, and that is the amount of the verdict and judgment that is approved by the majority opinion.

In arriving at this figure the majority opinion overlooks the fact that'the nineteen cows which were retained by plaintiffs also sustained 40 per cent depreciation, according to plaintiffs’ testimony. This leaves only two bulls, valued at $400 each, and ten calves, valued at $50 each, without any specific percentage of loss proved. One of the plaintiffs, H. B. Hancock, in reference to the nineteen cows that were not sold testified on cross examination as follows:

“Q. How do you arrive at your percentage figure you gave Mr. Carder a while ago on the damage to the herd? A. Well, I kept 19 cows; nine of those cows are not producing any calves, that seven never had calves and two calves were born dead, that makes nine out of 19; that is almost fifty percent, and I lowered it to forty percent.”

On direct examination the witness had testified as follows:

“Q. Taking these 19 head of cows that you have retained of your original herd, tell the jury the experience that you had with respect to the calf crop ? A. Well, 10 of the cows brought calves last spring, oh, I guess early spring; 7 of the cows never did have calves; and two cows lost their calves on birth, they were born dead, out of the 19 cows.

“Q. 9 that brought calves? A. 10 brought calves.

“Q. 10 brought calves? A. Yes, sir.

“Q. Of those 10 two were born dead? A. 'No, of the 9 that were left, two were born dead.

“Q. Of the 9 that were left, two were born dead? A. Yes, sir.

“Q. Have you observed the calves that were brought by these 10 cows? A. Yes, sir.

“Q. State whether or not there is anything about their condition, abnormal about the condition of any of them? A. About half of them are not near as good calves as they should be.

“Mr. Melone: We object as not responsive.

“The Court: He can describe the appearance of them.

“Q. Tell the jury about how they look? A. Of the ten calves 5 of them do not seem to be growing off with normal weight, they don’t carry the hair condition they should have at this time. * * *

“Q. State whether or not you were ever advised by a veterinarian to dispose of your herd of cattle by reason of the infection of hyperkeratosis? A. We were.”

Both plaintiffs testified that their herd was valued at $32,680 prior to the feeding of the cotton seed pellets, and that after the feeding the herd had depreciated in value 40 per cent. ,($13,072) In my opinion.the evidence supports the verdict for cattle damage, depreciation, and veterinarian’s bills in the amount prayed for, $10,470.35.

The majority opinion allows no damages for feed, pasturage, and labor after the injuries to the herd became apparent. In Instruction No. 18, given at the request of defendants, the jury was instructed in part as follows:

“In the event you find defendants liable to plaintiffs for injury or damage to their cattle, and you further find that the plaintiffs did, in an honest effort and in good faith, seek to lessen or minimize their damages to said cattle, then they would be entitled to recover the fair and reasonable costs and expenses reasonably and necessarily paid or incurred for feed products on hand and purchased, if any, subsequent to the time such injury first manifested itself, and thereafter fed to such animals in ah honest effort to preserve the animals and to minimize or lessen the effects of such injury and damage; together with the reasonable value .of the pasturage furnished subsequent to the time such injury first manifested itself, and the costs of veterinary services reasonably and necessarily paid or incurred in the treatment, if any, of said cattle in an effort to lessen and minimize the effects of such injury. But you shall not take into consideration or allow the cost or value of any feed products or pasturage furnished .or used for the benefit of the 19 cows and 10 calves retained by the plaintiffs.”

Plaintiffs’ proof shows that they were feeding 108 cows, 21 yearlings, 35 calves, and 3 bulls, or a total of 167 head. This feeding started on September 22, 1952, and continued without interruption until April 22, 1953, a total of two hundred and thirteen days. The evidence shows that approximately the same amount of feed was fed each day throughout this period, except that a little extra hay was fed after the injuries appeared. Plaintiffs made claim for $12,609.85 for feed, pasture, and labor ex< pended during this period. It is generally agreed that the injuries became manifest on February 20, 19S3. Feeding after February 20, 1953, continued for a period of sixty-one days. Since the amount fed per day was fairly constant throughout the entire period, the amount claimed for feed, pasture and labor for sixty-one days would be $3,530.98. However, the jury was instructed not to allow any of these items of expense for the nineteen cows, ten calves, and two bulls that plaintiffs elected to keep. These thirty-one head are a little less than one-fifth of the entire herd. If in order to be on the safe side we apportion one-fourth of $3,530.98 to the feeding and care of the thirty-one animals it is apparent that $2,-648.22 was expended in feeding and caring for that portion of the herd that was later sold. When $2,648.22 is added to $10,470.35 the verdict is supported to the extent of $13,118.57. I am therefore of the opinion that if we are going to authorize a remitti-tur we should grant' a new trial unless plaintiffs file a remittitur of $3,881.43 within ten days from the issuance of the mandate herein.-

I respectfully dissent.