ARNOLD, Circuit Judge.
This negligence case was brought by Circle J Dairy, owner of a dairy farm in Northwest Arkansas, against A.O. Smith Harvestore Products, Inc. (AOSHPI) and Southern Harvestore Inc. (Southern), who are respectively manufacturer of and dealer in a system, known as Harvestores, for storing, ensiling, and feeding agricultural feedstuffs to livestock. In this appeal, defendants challenge a jury verdict of $500,000 in favor of the plaintiff, who alleged it was damaged by AOSHPI's negligence in design and Southern's negligence in phasing in the use of the system and in formulating feed rations for Circle J's herd. The jury, which apportioned fault at 26 per cent. to AOSHPI and 74 per cent. to Southern, also found that Southern and AOSHPI, through Southern as its agent, were guilty of deceit.
Defendants argue that the judgment should be reversed because the District Court
We affirm. Although the District Court's refusal to submit the issue of comparative fault to the jury was error, its damage instruction, which directed the jury to reduce any award to plaintiff by the amount which the plaintiff might have "avoided through the exercise of ordinary care," served essentially the same function as would have been fulfilled by an appropriate
In 1981, Ira Thurman, the owner and operator of Circle J Dairy,
The Harvestore system went on line at Circle J on 31 October 1981, and almost immediately there was a marked drop in milk production. Mr. Thurman, who was out of state for a family wedding when the changeover took place, ordered the animals put back on their old feed, and production returned to its previous daily level of approximately 40 pounds of milk per cow. Eventually, the Harvestore system was reintroduced.
Over the next two years, Mr. Thurman experienced a variety of problems with the system, which allegedly caused a second, permanent drop in milk production, to the point that the cattle, considered as a herd, lost their value as dairy animals. Plaintiff claimed the system was negligently designed by AOSHPI so that feed would spoil rather than be preserved; that Southern employees acted negligently in the manner in which they first set up the Harvestore system at Circle J and later advised Mr. Thurman to operate it; and that both AOSHPI and Southern were negligent in the development of feed rations for the Circle J herd.
In response, defendants argued that if there had been negligent management of the Harvestore system at the Circle J, it was the fault of Mr. Thurman and not AOSHPI or Southern employees. They pointed out that the herd was significantly increased in size at the time the Harvestores were first used, which could have caused a drop in production. To counter the testimony of plaintiff's experts, who had only bachelor's degrees and practical experience,
The case went to the jury on these negligence theories; the jury was also asked to determine if Southern employees, acting as agents of AOSHPI, were guilty of deceit in their dealings with Mr. Thurman. A plaintiff's verdict was returned on all questions; the District Court, however, granted a judgment n.o.v. on the deceit issue, while permitting the $500,000 verdict to stand. This appeal followed.
This case was submitted on interrogatories, and the jury was asked to apportion
Rather than instruct the jury on comparative fault, however, the District Court asked the jury first to apportion the negligence, if any, of the defendants and then later to "[s]tate the amount of damages sustained by plaintiff which you find could not have been avoided through the exercise of ordinary care." Tr. 1069. Moreover, while charging the jury, the District Court not only gave a mitigation instruction
Id. at 1061 (emphasis added).
Id. at 1069 (emphasis added).
A district court has considerable discretion in the style and wording of jury instructions, so long as the charge as a whole fairly and adequately states the law. Monahan v. Flannery, 755 F.2d 678, 681 (8th Cir.1985). Therefore, in a situation where a jury has been instructed erroneously, an appellate court should consider the charge in its entirety, Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 904 (8th Cir.1985), and reverse only if a substantial right of the appellant has been affected. Fed.R.Civ.P. 61. In a case such as this, a proper comparative-fault instruction would have told the jurors that:
AMI 2102, Arkansas Model Jury Instructions (2d ed. 1974).
As support for their argument that the instruction given here did not sufficiently direct the jury to its duty to compare the fault of the parties, the defendants cite Beevers v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967). That case held that "[e]ven if the court's general instructions could be said technically to have covered the matter in a general way, it is error to refuse to give a specific instruction correctly ... unless it appears that prejudice has not resulted." Id. at 547, 414 S.W.2d at 607. Beevers and other Arkansas cases, see, e.g., Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982), do set a high standard for compliance with the proper form of jury instructions in order to avoid prejudice to the parties. This, however, is a federal court, and the issue of harmless error is to be decided by federal standards of substantial prejudice. Second, in this case at least, the detailed manner in which the District Court
The bulk of plaintiff's requested damages — $462,658 — were for the milk profits Mr. Thurman claimed were lost between October 1981 and November 1984; in addition, plaintiff asked for the difference between the fair market value of the herd in 1981 and in 1984 and for the cost of the remaining feed purchased by Circle J and supposedly spoiled because of the Harvestore design. Defendants argue that there was not sufficient evidence to support the award for either lost milk or permanent damage to the herd, and challenges the admission of testimony on permanent damage by plaintiff's witness Larry Scott. We disagree, and find sufficient evidence to support the jury's verdict.
Mr. Scott is employed by and part owner of a soil and feed testing service in Loveland, Colorado, which he helped establish in 1957, just after he received his bachelor's degree in animal nutrition from Colorado State University. Approximately one-half of the Triple S Labs' work involves dairy cattle. There was no debate at trial about Mr. Scott's ability to give expert testimony on the question of feed formulation and related nutritional issues; however, defendants did challenge the witness's competence to speak expertly to permanent damage to the cattle, and the District Court initially appeared reluctant to qualify Mr. Scott on that subject. Nevertheless, after additional voir dire by both plaintiff and defendants, the court permitted the witness to testify. That decision was within the broad discretion of the trial court. Mr. Scott, though not a veterinarian and without advanced degrees, had significant practical experience with feed-related health problems in dairy cattle.
Rather than exclude Mr. Scott's testimony on permanent damage, the District Court held that the "very legitimate questions" raised by defense counsel to that testimony "go ... not to whether or not he's an expert, but whether he has any real good believable basis for giving his opinion." Tr. 612. We agree that this is the primary question.
Mr. Scott testified that while the lactic acidosis suffered by the herd as a result of the abrupt switchover to silage did not have a permanent effect on the cattle, id. at 614, "there was permanent damage [to the herd] that occurred from the continued use of the ensiled feeds." Id. According to the witness, the Harvestore structure allowed oxygen to corrupt the stored silage in such a way as to cause, along with an overformulated feed ration developed by defendants, lactic acidosis and permanent damage. He based this opinion on his chemical analysis of feed samples from the Circle J and his examination of the cattle. It is the sufficiency of that inspection that is at issue here. Mr. Scott testified that the month before the trial he spent about four hours at the Circle J, three of them looking at cattle. Id. at 639. During that visit, he observed 16 cows in the milking parlor and noted "some deformed hooves, some rough hair coats." Id. at 586. Then he and Mr. Thurman drove through the herd in a pick-up truck; Mr. Scott estimated that he saw, in this fashion, over 200 cows of the approximately 350-head herd, and that he stopped to examine more closely between 15 and 22 of the animals. Id. at 587. Again, the witness observed signs of lactic acidosis, including the hoof and coat conditions, as well as a deformity in the
On the issue of permanence of injury, the jury also had before it Ira Thurman's testimony that prior to use of the Harvestore system, his herd produced a daily average of at least 40 pounds of milk a day per cow, id. at 229, and that the daily tank average at the time of trial was less than 28 pounds per cow, id. at 291. He also testified that a cow producing less than 28 pounds is worthless as a milk cow, and therefore the cattle were reduced from their worth as milk animals to their slaughter value, id. at 248. As far as the plaintiff's use of the herd is concerned, this was permanent damage.
The state of Ira Thurman's records, such as they are, is also connected to the defendants' challenge to any award based on lost milk production, since plaintiff sought profits allegedly lost through damage to a revenue-producing asset as well as compensation for the fact that the asset itself became less valuable for purposes of sale. According to defendants, not only was Circle J's milk loss a "hypothetical shortfall," Appellant's (AOSHPI) brief at 29, but plaintiff's evidence went only to lost revenue, and failed to factor in the cost of performance, as required by Arkansas law. Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764, 766 (1973). And defendants once again note that Mr. Thurman's own actions could have contributed to any decrease in the herd's production.
There is no question that Mr. Thurman's evidence for lost milk production was homespun at best. He had records from the milk cooperative, and a production calendar kept by a farm hand, who received a bonus when the daily average went over 40 pounds per animal, as well as his tax records. As the District Court wisely noted, while even Mr. Thurman probably wishes his records were more complete, Tr. 231, the figures were adequately documented to raise a jury question. From that point, Mr. Thurman's records and recall are a question of credibility.
Nor was the milk-production evidence incomplete for failure to factor in cost of performance. Robertson v. Ceola, cited by defendants, involved a cost-plus contract; plaintiff there failed to show what portion of the amount allotted for labor represented the value of his own services on the project. Here, there is no indication that the cost of performance would differ whether the herd was producing under 28 pounds per day or over 40 pounds.
Defendants claim that the District Court erred in submitting the deceit question to the jury, and that the District Court's post-verdict grant of their motion for judgment n.o.v. did not cure the error,
In a case such as this, it is also possible that simply by the use of inflammatory terms "deceit" or "fraud," a party is prejudiced. At best, such a claim is speculative; in this instance, it is also unlikely. There seemed to be a striking lack of hard feelings present in the trial of this case, with both sides describing the principal actors of the other as nice fellows playing in the wrong leagues.
Accordingly, the judgment is affirmed.
Defendants suggest that because the jury was asked to apportion responsibility equaling 100 per cent. between AOSHPI and Southern, no consideration could have been given to plaintiff's blame. However, the interrogatory clearly instructs the jury to "us[e] 100% to represent the total negligence of the defendants" (emphasis added), not the total negligence contributing to the injury.
Id. at 1005.