McLain v. Johnson

BERREY, Judge,

concurring.

The forty-eight page trial transcript is not overly replete with information. The appellant’s brief and reply brief total seventeen pages, and the respondent’s five page brief stand as a monument of brevity.

' At trial appellant’s allegations were supported by both his brother’s testimony and his own testimony. Their testimony appeared to be credible.

Respondent appeared pro se at trial. Respondent did not deny that he sprayed a neighboring soybean field approximately a week before the watermelons died. He also did not deny that the wind was blowing that day he sprayed the soybean field. Respondent contended however that the wind was coming from the wrong direction to blow spray over the watermelons.

Respondent testified without objection by appellant, in narrative form. He presented several speculative theories, as to how the watermelons died. A substantial portion of respondent’s testimony, including his alternative theories, was hearsay, but was received *349without objection. “Hearsay evidence, if not objected to, is admissible and may be considered along with other evidence.” Thorpe v. Meier, 755 S.W.2d 683, 691 (Mo.App.1988). “The probative worth and value of such evidence is for the trier of the facts.” Id. Apparently, the speculative alternative theories presented by respondent had sufficient probative value, in the eyes of the trial judge, to defeat appellant’s claim. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

There are many areas that need to be addressed regarding agricultural applications of chemicals. Because of the paucity of the record herein, we decline the opportunity to fully explore this area of the law.

I concur with the majority.