dissenting. The majority holds that evidence of prior year crop yields is not a sufficient basis to sustain a jury’s damages determination. To the extent this court’s decisions are precedents, I believe we are setting a bad one, and unnecessarily so.
The standard measure of damages for loss of part of a growing crop is the market value of the crop measured by the expected yield less the cost of maturing, harvesting and marketing the crop. Dobbs, Remedies, § 5.2, p. 325 (1973). In this case the majority deems deficient the evidence as to the “expected yield” part of this formula. Without citation of authority, the majority reduces this judgment because it finds evidence of prior year production speculative. But it finds evidence of a crop harvested by one of the plaintiffs in the same year to be a sufficient basis to sustain part of the jury’s award.
Evidence of production from prior years was admissible and sufficient to sustain the verdicts and judgment. This case presents a classic example of well-represented plaintiffs stating “categorically” their losses and well-represented defendants presenting evidence that the plaintiffs should not recover as much as they think they should. The jury had before it evidence of the average crop yield of the Wallace operation as well as evidence of the yield of the untainted crops of Me Gee. Other evidence was presented with respect to weather conditions in 1974. The jury thus had before it a well-developed case on the issue of damages, and we should not disturb their fact determinations.
Early cases showing the acceptability of evidence of average yield per acre, along with other evidence, include Lester v. Highland Boy Gold Min. Co., 27 Utah 470, 76 P. 341 (1904), and Sayers v. Mo. Pac. Ry., 82 Kan. 123, 107 P. 641 (1910). More recent cases include, Bryant v. McCann, 297 So. 2d 262 (La. App. 1974), where the court notes how the trial judge itemized the damages to various of the plaintiffs crops caused by the defendant’s cattle, and then says:
In making those calculations, the trial judge determined the average yield which the plaintiff had obtained in prior years for the same type of crops, raised in the same place and in the same manner. He then determined the market value of his 1972 crops, computed according to the method set out in the Trahan case, supra, [average yield less cost of marketing, harvesting and maturing the crop]. We think the trial judge was conservative in determining the average yield and market value of most of those crops.
We find no error in the method used by the trial judge in determining the loss sustained by the plaintiff. [297 So. 2d at 267.]
The Mississippi Supreme Court recently dealt with a 1974 cotton crop loss under circumstances remarkably similar to those of the case before us. In Mid-Continent Aircraft Corp. v. Whitehead, 357 So. 2d 122 (Miss. 1978), the plaintiff attempted to rely on federal government “projected yield” figures to show his crop injury. The court said it was error for the trial court to consider those figures, but then it very clearly relied on the average yields for the three years prior to 1974 as its basis for saying:
The history of actual production tends to negate substantial damage to the 1974 cotton crop traceable to the herbicide, but we conclude there was a case (though skimpy) sufficient to go to the jury. [357 So. 2d at 126]
The court’s point was that the average yield of 633 pounds for the year 1971-1973 was not very different from the 1974 yield of 604 pounds.
In the case before us, the evidence showed the 1974 crop to be far below the average displayed to the jury and far below any one of the figures showing annual yield on each property farmed by Wallace. It is true there were variations from year to year in the prior year figures, but they could have been caused by any number of factors, like weather. That does not make those figures “speculative,” especially where the jury has before it evidence of other factors, like weather, and the defendants have every opportunity to explain, as they did here, that the plaintiff’s crop could have been affected by factors other than their toxic spray.
Finally, I believe it would be instructive to look at the most recent crop damage case decided by the Arkansas Supreme Court and compare the evidence it approved as sufficient with that presented here. In Sullivan v. Voyles, 249 Ark. 948, 462 S.W. 2d 454 (1971), the court had before it the testimony of a farmer about loss to his “truck crop” due to the defendant’s negligent spraying. He testified about the condition of the crop in the field and gave his opinion what its ultimate yield at the market would be. The court said that was sufficient, citing Railway Co. v. Lyman, 57 Ark. 512, 222 S.W. 170 (1893).
I cannot escape the conclusion the evidence here was far less speculative than that in the Sullivan case, and I believe it was no more speculative than the evidence the majority approves as sufficient to set Mr. Wallace’s damages, i.e., evidence of the same year per-acre yield of a different farmer who may have different resources, skills and motives from those of Mr. Wallace.
I believe the evidence properly submitted to the jury in this case was sufficiently substantial to form the basis of its award to Mr. Wallace. Similarly, I do not see any reason to limit the jury to one factor with respect to Mr. Me Gee’s loss. Therefore, I would affirm.
Judge Penix has authorized me to say she joins in this dissent.