Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc. , 1985 Mo. LEXIS 290 ( 1985 )

BLACKMAR, Judge,

concurring in part and dissenting in part.

I concur, except as to Part VIL I believe that the award of actual damages is not supported by the evidence to the extent of $92,212. The Court of Appeals correctly analyzed the problem, as the following portions of Judge Clark’s opinion demonstrate:

Hoover’s proof of actual damages sustained and the verdict which awarded Hoover the full amount claimed are challenged on grounds of duplication and uncertainty of proof in particular categories. Appellants’ points have merit and necessitate reduction of the actual damage award to the extent of $92,212.00.

The primary issue in the computation of damages commences with an item of undisputed loss, the value of dairy cows rendered unproductive by mastitis and sold for slaughter. Taking into account the potential of these animals for future production of milk and calves, the value of 76 cows was calculated at $117,641.00. Proceeds from the slaughter of these animals amounted to $46,497.00 leaving a net loss of $70,479.00. Appellants do not contest this computation and proof. Hoover also claimed, however, a loss of $48,981.00 on the same cows, being the value of their milk production for the next succeeding lactation period of 305 days. Also claimed was $13,300.00 attributable to production of calves. Appellants contend the amounts of $48,-981.00 and $13,300.00 were included in the valuation of the animals and should not be repeated in the damage computation.

From the evidence presented on the subject, it is apparent the value of each of the dairy cows sold for processing as meat was individually computed taking into account the animal’s milk production record and the value of prospective calves. Those animals with higher production potential were valued at a greater amount than those which had shown lower production ability. Necessarily, a replacement animal acquired at the value price, assuming comparable stock, would provide the purchaser with the future milk and calf production on which the animal’s price was based.

In Snyder v. Bio-Lab, Inc., 94 Misc.2d 816, 405 N.Y.S.2d 596 (N.Y.Sup.Ct.1978), the damages recoverable for loss of milking cows was examined. The court observed:

“As with personal property generally, the measure of damages for injury to, or destruction of, an animal is the amount which will compensate the owner for the loss and thus return him, monetarily, to the status he was in before the loss. * * * For example, when an owner has received the market value of an animal, he will have been compensated for any use he might have made of the animal for breeding purposes'. * * * Also, the loss of produce of an animal is an item of consideration in determining market value, rather than a separate item of damages.” Snyder v. Bio-Lab at pp. 597-598.

Here, compensation to Hoover for the value of the 76 cows under a method which took into account the productive worth of the animals as dairy cows restores plaintiff to the position which obtained before the loss. The award of damages based on future milk and calf production from the same animals is a duplication of that value and cannot be sustained.

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[The court held that the plaintiff was entitled to recover losses occasioned because comparable replacements were not immediately available and younger, less productive animals had to be used]. ******

Hoover also claimed as damages the amount of $11,862.00 incurred as added labor expense attributable to increased work load and milking time. Appellants assert that one-half of this amount was unsupported by the evidence. There was, in fact, little evidence to sustain this claim, no proof of extra help employed and no other detail confirmatory of the claim. Appellants challenge to allowance of one-half of the amount, $5,981.00, is sustained, that being the extent of the point as presented.

Finally, as to damages not proven, appellants contend there was no basis upon which to award plaintiff $24,000.00 claimed as interest expense incurred because payment was not made on a farm debt. The exception to this item is well taken.

The ostensible basis for allowing the interest charge as an element of damage originated with the retention by Hoover of 40 heifers, as explained above, to fill the complement of his dairy herd when 76 mature cows were unavailable to be purchased. According to plaintiff, had it not been for the loss of the 76 cows in the original herd, these 40 heifers would have been sold generating cash to reduce a mortgage obligation and avoid interest payments on that debt.

Tenuous as this analysis may be, the claim was not includable as an item of damage recoverable by Hoover Dairy, Inc. because there was no proof as to the mortgage, the balance owed, the interest paid and, of primary importance, no evidence that the corporation as distinguished from the Hoover family members was obligated on the mortgage note. In short, plaintiff did not prove it had actually sustained the loss.

There is legal error in the monetary award. It makes no difference that only one of the defendants properly preserved the claim of error. The defendants were sued jointly, and the error was properly pointed out to the trial court. Because of the legal error, the verdict of $234,443 for actual damages cannot stand.

Because there is legal error, the Court should explore the means of correction. The Court of Appeals used the remittitur device, obliging the plaintiff to remit the portion of the damages not supported by the evidence or suffer a new trial. The principal opinion now holds that his method of correction is not available, by reason of Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99 (Mo. banc 1985).¹ Firestone dealt with remittitur, at the trial level, of a portion of an unliqui-dated award for personal injuries. The holding certainly was not intended to have the effect attributed to it in the principal opinion — that of abolishing the legal rules developed over the years as to measure of damages, thereby leaving the damage award entirely to the jury. When damage is to property and business, furthermore, the courts have traditionally demanded a more precise calculation than is required in personal injury cases.

The actual damages claimed were set out by the plaintiff in discrete items. The jury awarded everything the plaintiff asked. Under these circumstances, I would simply reduce the judgment to the maximum figure supported by evidence by excluding the duplicative or improperly included items. ($142,231.00 as computed by the Court of Appeals.) There is no reason to burden the courts and the parties with a new trial on the amount of damages, when it can be said as a matter of law that legally improper items were included in the verdict.²

I agree that the portion of the judgment asserting punitive damages must be reversed. I would also reverse the award of actual damages and would remand with directions to enter judgment for the plaintiff in the amount of $142,281. If the majority is of the opinion that this reduction would constitute a prohibited remit-titur, the remand should be for a new trial on the issue of actual damages only.

1 . I was obliged to recuse in Firestone. I do not agree with the abolition of remittitur, as decreed in that case. It was not necessary to decide the point to rule the case at hand, because the majority found that the plaintiff was entitled to reinstatement of her verdict in her appeal under Rule 78.10, and so the abolition of remittitur is essentially an exercise of the rule-making power, rather than the decision of a particular case. The holding operates to deprive courts of a traditional and useful device for saving the expense of retrial.

2 . The case would be more difficult if the jury had not awarded the entire amount claimed, because it could not be determined whether the legally erroneous items had been included in the verdict. The judgment, then, could not be reduced without the plaintiffs consent. I believe that the plaintiff should have the option of consenting to a reduction sufficient to exclude the error as a factor, rather than suffering a new trial. Cf. Hart-Bartlett-Sturtevant Grain Co. v. Aetna Insurance Co., 293 S.W.2d 913 (Mo.1956). Firestone did not deal with a problem of this kind and it should not be mechanically applied in situations which the Court which decided that case did not have any occasion to consider.