Woodyard v. Barnett ( 1953 )

335 Mich. 352 (1953) 56 N.W.2d 214

WOODYARD
v.
BARNETT.

Docket No. 30, Calendar No. 45,582.

Supreme Court of Michigan.

Decided January 5, 1953.

Robert D. Anspach, for plaintiff.

Davidson, Kaess, Gotshall & Kelly (John W. Keith, of counsel), for defendant.

CARR, J.

Plaintiff brought this action to recover damages that he claims he sustained as the proximate result of the negligence of defendant's decedent. In the evening of October 17, 1950, plaintiff was operating his tractor and trailer on US-223 in Monroe county. Defendant's decedent, who was following plaintiff in an automobile, ran into the rear of the trailer causing damage to it and to the tractor. The death of the driver of the car resulted from the accident.

At the time of the occurrence in question plaintiff was operating a farm on which, among other activities, he raised sugar beets. The proofs introduced in his behalf on the trial disclose that in 1950 he planted 47.34 acres to that crop. In the fall of that year he started harvesting the beets on October 14th. His testimony in the case indicates that prior to the accident he had harvested approximately 6 acres, using in the work the equipment that was later involved in such accident. It is undisputed that 4 days was a reasonable time for the making of necessary repairs to the tractor and trailer, and that the cost thereof was $375. It is also undisputed that the rental value of the equipment was $60 per day. There was a delay of 1 day in starting the repairs, apparently caused by plaintiff's desire to have pictures of his damaged equipment taken for possible future use.

Plaintiff rented some equipment to assist him in the hauling of beets to market, and according to his testimony he harvested approximately 25 acres between the 17th of October and the 28th of the same month, on which latter date it is claimed that it was necessary to suspend operations because of heavy rains. A witness in plaintiff's behalf testified that the beet harvesting season in 1950 began on the 5th or 6th of October, and that at the end of the season he measured plaintiff's lands, finding that 16.44 acres of beets had been left in the ground. Such beets were frozen and were a total loss. It also appears from the testimony of plaintiff and his witness that ordinarily the season for the harvesting of sugar beets continues until the 15th or 20th of November.

On the trial in circuit court plaintiff sought to recover damages for the loss of the unharvested beets in addition to other items, above mentioned, claiming aggregate damages in the sum of approximately $3,500. At the conclusion of his proofs a colloquy between court and counsel ensued in the absence of the jury. The trial judge stated in substance that under the testimony offered by plaintiff and his witness there could be no recovery except for the reasonable cost of repairing the truck and trailer, the fair rental value thereof during the time that they were disabled, and the amounts paid by plaintiff to others for hauling some of his beets. The court ruled that the other damages claimed by plaintiff because of the loss of the unharvested beets were too speculative in nature to permit submission to the jury. Verdict was directed in the amount of $774.52 and judgment was entered accordingly. Plaintiff has appealed, claiming that the trial judge was in error in refusing to permit the jury to determine the amount of the damages and the incidental issue whether plaintiff acted properly and reasonably in seeking to mitigate his damages.

The situation is somewhat unusual in that there is no dispute as to the facts, defendant not introducing any testimony at the conclusion of the plaintiff's case following the colloquy between court and counsel. In the declaration filed the recovery of damages was sought solely because of the injury to plaintiff's tractor and trailer. No claim was made in the pleading that plaintiff was entitled to recover because of injuries sustained by him that interfered with his performing his usual work on the farm. In his testimony he stated that following the repair of his equipment and prior to the starting of the rains on October 28th he and his wife, who was assisting him, were doing "partial production" only, assigning as the reason therefor that each had sustained injuries in the accident. Not having claimed damages for any loss resulting from such injuries, plaintiff is not entitled to recover therefor in this action. The testimony affords no reasonable basis for determining what portion of the unharvested sugar beets was left in the ground because of plaintiff's inability to operate his equipment, following its repair, at capacity.

It was plaintiff's testimony that with his equipment in operation he could harvest 5 acres of beets per day. It is apparent that his operations prior to the evening of October 17th, when his equipment was damaged, were not carried on at such rate. It is equally obvious that following the repair of his equipment plaintiff did not harvest an average of 5 acres per day. It is a fair inference from the testimony that, although he did not start harvesting for approximately a week after the opening of the season, he considered that he would have ample time to secure his crop, basing his belief in that regard on the fact that the season did not ordinarily end, because of weather conditions, prior to November 15th or 20th. It is a fair inference also from his statements that the situation in this regard affected his efforts to hire equipment for the hauling of his beets during the time required for the repair of his own tractor and trailer. It appears that he made efforts to obtain trucks especially adapted to the hauling and unloading of beets, but that he did not think it expedient to procure, at a higher cost, other equipment that might have been used for the purpose though not designed therefor. To what extent he might have lessened his damages by renting equipment of such type is, on this record, uncertain and speculative. As before mentioned, there was a delay of 1 day in repairing the tractor and trailer, but the consequences of such delay may not be charged to defendant.

On behalf of appellee it is contended that the loss of the unharvested sugar beets resulted proximately from the weather conditions and not from the negligence of his decedent. Reliance is placed on McLane, Swift & Co. v. Botsford Elevator Co., 136 Mich. 664 (112 Am St Rep 384, 16 Am Neg Rep 390). In that case plaintiff shipped oats from Battle Creek, Michigan, to an eastern market. An arrangement was made with defendant to clip these oats in defendant's elevator in the city of Port Huron and to reship them. Defendant failed to carry out its agreement within the time contemplated by the parties, and the oats were destroyed by fire in its elevator. In reversing a decision of the lower court allowing recovery, it was said:

"Defendant's neglect to clip and ship the oats had no direct relation to their destruction. It simply resulted in leaving them where they were burned by a fire for which defendant was not responsible. Defendant's neglect was therefore, at most, the remote cause, while the accidental fire was the proximate cause, of plaintiff's loss; and it is authoritatively settled, as we shall show, that the law does not look beyond the proximate cause."

In Van Keulen & Winchester Lumber Co. v. Manistee & Northeastern R. Co., 222 Mich. 682, damages were sought by plaintiff because of the alleged failure of defendant to carry out instructions to stop a shipment of lumber at Big Rapids for kiln drying. In commenting on the situation, it was said:

"The general rule of damages in an action of tort is that the wrongdoer is liable for all injuries resulting directly from the wrongful acts, whether they could or could not have been foreseen by him, provided the particular damages in respect to which he proceeds are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or speculative damages will not be considered in conformity to the general rule above laid down. To render a wrongdoer liable in damages, where the connection is not immediate between the injurious act and the consequences, such nearness in the order of events and closeness in the relation of cause and effect must subsist, as that the influence of the injurious act would predominate over that of other causes, and concur to produce the consequences or be traceable to those causes. 13 Cyc, p 28."

The above decisions were cited with approval in Cassidy v. Kraft-Phenix Cheese Corp., 285 Mich. 426, in which the general principle applicable in a case of this nature was stated as follows:

"The damage recoverable in consequence of a tort is only such as is the direct result of the tort, i.e., damage of which the tort is the proximate cause."

Under the facts in the instant case we do not think that plaintiff was entitled to have the question of the amount of damages recoverable by him submitted to the jury. Obviously had such course been followed and a verdict returned based on speculation and conjecture, it would have been the duty of the court on proper motion to set it aside. As before noted, the situation is unusual in that the facts are not in dispute. The conclusion cannot be avoided that plaintiff did not proceed as rapidly as possible in the harvesting of his crop. He delayed to some extent the beginning of his operations, and the inference is fully justified that he proceeded somewhat leisurely on the assumption that he would have the usual period of time to complete the harvesting. There was a delay, above mentioned, in procuring the repair of his equipment. The conclusion of the trial judge that he might have hired trucks that could have been used in hauling his beets, at a cost above the usual rental for equipment especially designed for that purpose, is fully justified by the record. These factors all contributed to the failure of plaintiff to have all of his beets harvested prior to October 28th when the inclement weather stopped further operations and caused the loss of the beets still in the ground.

There is no basis for a determination as to the extent, if any, to which the loss resulted from the injury to plaintiff's equipment. Undoubtedly plaintiff might have completed the harvesting before the rains began by the use of his equipment during the entire period between October 14th and October 28th. Whether he would have done so is, however, speculative, in view of the rate at which the work proceeded during the period from October 14th to October 17th inclusive, and from October 21st to the 28th. Neither may it be said, with any reasonable degree of certainty, that plaintiff could not, notwithstanding the injury to his tractor and trailer, have completed the work without loss of any portion of his crop. Had he realized the necessity of completion before October 28th, the record fully justifies the conclusion that he might and undoubtedly would have operated his equipment at full capacity. Under the proofs in the case the trial judge was correct in refusing to permit the jury to speculate on the extent of plaintiff's damages resulting proximately from the negligence of defendant's decedent. It does not appear with the requisite degree of certainty that the loss of the beets so resulted. The amount of the directed verdict was not less than the damages to which plaintiff's proofs entitled him.

The judgment is affirmed. Defendant may have costs.

DETHMERS, C.J., and ADAMS, BUTZEL, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.