No. 85-356
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
VANDALIA RANCH, INC., a Montana
corporation,
Plaintiff and Respondent,
FARMERS UNION OIL & SUPPLY COMPANY
OF HINSDALE, MONTANA, MONSANTO
COMPANY, et al.,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Valley,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stuart Kellner, Helena, Montana.
Pearce, Anderson & Durick; Patrick W. Durick argued,
Bismarck, North Dakota
For Respondent:
Smith, Baillie & Walsh; James R. Walsh argued, Great
Falls, Montana
Robert Hurly, Glasgow, Montana
Submitted: April 8, 1986
Decided: May 9, 1986
Filed: MAY 9 - 1986
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant Monsanto Company (Monsanto) appeals a jury
verdict entered against it a.nd defendant Elanco Products
Company (Elanco) in Valley County District Court. The jury
awarded plaintiff over $200,000 in damages for loss of its
wheat crop which had been treated with herbicides manufac-
tured and. marketed by Monsanto and. Elanco. We affirm, with
modification.
The issues are:
1. Was the District Court in error in disregarding
certain disclaimers of liability and limitations of remedies
printed on the cans of Far-Go and in the Far-Go instructions?
2. Did the District Court err in instructing the jury
that any ambiguities in the wording on the labels and in-
structions for Far-Go must be resolved against Monsanto?
3. Did the District Court properly admit into evidence
the expert testimony of Dr. Peter Fay and Donald Watterud?
4. Was there substantial evidence to support the jury's
verdict on defendants' liability and on the amount of
damages?
Vandalia is a family farm corporation owned and operated
by a father and two sons, the Strommens. At the time in-
volved here, Vandalia Ranch consisted of over 2,000 acres of
irrigated and non-irrigated cropland, and about 500 cows.
In 1980, the Strommens anticipated a weed problem with
wild oats and pigeon grass. They had used herbicides and
other methods to control weeds, but had not found anything
which satisfied them. After reading advertisements in farm
journals and receiving oral recommendations from Monsanto and
Elanco representatives, the Strommens decided to use a tank
mix of Far-Go, manufactured and marketed by Monsanto, and
Treflan, manufactured and marketed by Elanco. They purchased
the herbicide from Farmers Union Oil & Supply Company of
Hinsdale, Montana (Farmers Supply). Farmers Supply also
applied the herbicide.
This case involves 495 acres planted with Prodax spring
wheat seed, on which the Far-Go/Treflan mix was used. Having
received no instructions to do otherwise, the Strommens
followed their usual procedure in planting the seed in the
bottom of furrows at a depth of 1% to 2 inches. Then the
Farmers Union representative, following the written Far-Go
instructions, applied the herbicide to the soil surface and
mixed it into the top 1 inch or 1% inches of soil using a
multi-weeder implement. In the process of mixing, the fur-
rows were smoothed out and the seeds were left 3 to 4 inches
deep in the soil. There was testimony that this was too deep.
The seed failed to germinate and a replacement crop had to be
planted. Vandalia sued Monsanto, Elanco, and Farmers Supply
under theories of breach of implied and express warranty and
strict liability in tort.
The jury found no breach of implied warranty by any of
the defendants and no fault on the part of Vandalia or Farm-
ers Supply for any damages. It found that Monsanto and
Elanco were each 50 percent liable to Vandalia for damage
under breach of express warranty and strict liability in
tort. This appeal is brought solely by Monsanto so that we
are not concerned with Elanco or its Treflan herbicide.
Was the District Court in error in disregarding certain
disclaimers of liability and limitations of remedies printed
on the cans of Far-Go and in the Far-Go instructions?
The written instructions furnished with the Far-Go
herbicide set forth limitations of warranty and liability
which confined Monsanto's liability for damages from use of
Far-Go to providing a free replacement batch of herbicide, or
a refund of the purchase price. The Strommens testified that
they were not made aware of the limitations on Monsanto's
liability until a copy of the instructions was mailed to them
after they had made a claim for their losses. The District
Court held that Monsanto's limitations on liability were not
part of the contract between the parties because the limita-
tion clause was not negotiated between the parties and was
not part of the bargain. The District Court also ruled tha.t
the limitations were unconscionable. As a result of these
rulings, the jury was not allowed to consider the limitations
of liability in assessing damages.
A disclaimer or limitation of warranty contained in a
manufacturer's manual received by purchasers after sale does
not limit recovery for implied or express warranties made
before or at the time of sale. Whitaker v. Farmhand, Inc.
(1977), 173 Mont. 345, 354, 567 P.2d 916, 921. There is
substantial evidence in the record to support the conclusion
that the Strommens were not aware of the Monsanto limitations
on liability, whether through advertisements which they had
read, through the written disclaimers on the drums, through
the instruction disclaimer, or through their oral contract
for the purchase and application of the chemicals. We affirm
the District Court's holding that the d.isclaimers of liabili-
ties and limitations of remedies printed on the cans and in
the Far-Go instructions were not a part of the contract
between the parties. Because the limitations were not a part
of the contract, we do not find it necessary to rule upon the
holding of the District Court that the limitations of liabil-
ity were unconscionable.
I1
Did the District Court err in instructing the jury that
any ambiguities in the wording on the labels and instructions
for Far-Go must be resolved against Monsanto?
This issue relates to the Far-Go planting and applica-
tion instructions, as they were used by the Farmers Union
representative. The District Court instructed the jury, over
Monsanto's objections, that any ambiguities in the labels and
instructions provided by defendants should be construed
against them. Monsanto cites an Oregon case, Weber v. Kamyr,
Inc. (Or. 1974), 525 P.2d 1307, 1314, which held that this
rule of construction is a rule of law for the court to apply
and is not a proper subject for a jury instruction. Vandalia
argues that this jury instruction was justified because, at
trial, defendants presented the meaning of the application
instructions as a factual issue.
We conclude that under the Monsanto case as presented to
the jury, the meaning of the written instructions for plant-
ing and application constituted an issue of fact for determi-
nation by the jury. We conclude that the jury instruction is
a correct statement of law under the facts of the present
case. See S 28-3-206, MCA. We affirm the giving of this
instruction.
I11
Did the District Court properly admit into evidence the
expert testimony of Dr. Peter Fay and Donald Watterud?
At trial, Vandalia presented expert testimony by Dr.
Peter Fay of Montana State University about his greenhouse
study of the effects of deep-seeding and herbicide incorpo-
ration on spring wheat. Vandalia also presented testimony by
Donald. Watterud as to the potential crop yield of its 495
acres of field.
Monsanto argues that Dr. Fay's testimony should not have
been admitted into evidence. Dr. Fay testified in a deposi-
tion that he was unable to draw any conclusions as to this
case as a result of his greenhouse study. Monsanto argues
therefore that his testimony did not meet the purpose of
expert testimony as defined in Rule 702, M.R.Evid. :
If scientific, technical, or other spe-
cialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge,
skill, experience, training, or education
may testify thereto in the form of an
opinion or otherwise.
Expert opinion is admissible if the matter is suffi-
ciently beyond common experience that the opinion of the
expert will assist the trier of fact. State v. Campbell
(1965), 146 Mont. 251, 258, 405 P.2d 978, 983. ~lthoughhe
was unable to draw specific conc:lusions as to this case, Dr.
Fay made general observations about the effects of
deep-seeding, cold soil, soil type, Far-Go, and Treflan on
dwarf and semi-dwarf wheat. These observations were based on
his studies and years of experience in horticulture. We
conclude that those observations assisted the jury to under-
stand the evidence and determine facts at issue. We hold
that it was not error to admit his testimony into evidence.
Monsanto argues that the testimony of Donald Watterud as
to potential crop yield should not have been admitted into
evidence under Rule 401, M.R.Evid., because the testimony was
irrelevant as to damages. Mr. Watterud testified as to the
potential crop yield of the 495 acres based on his estimate
made in 1984 from a small area of the field. Monsanto con-
tends that because of the size and distance in time of the
sample, Donald Watterud's testimony did not relate to any
fact that is of consequence in the action.
Rule 401, M.R.Evid. provides that "evidence having any
tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or
less probable than it would be without the evidence" is
relevant. Mr. Watterud's testimony has the tendency to make
the amount of crop loss claimed by Vandalia more probable.
There was testimony that actual crop yield figures for spring
wheat on the 495 acre section were not available. The
Stromrnens had not planted a comparable crop using a herbi-
cide, irrigation, and fertilization. Monsanto also argues
that Mr. Watterud's testimony is too remote. We will not
interfere with the District Court's determination of whether
evidence is too remote in time or space unless manifest a-buse
of discretion is shown. Preston v. McDonnell (Mont. 1983) ,
659 P.2d 276, 277, 40 St.Rep. 297, 299. Given the absence of
actual crop yield figures for spring wheat on the 495 acres,
Mr. Watterud's testimony appears to be the best available
evidence. No manifest abuse of the District Court's discre-
tion has been shown. We hold that Mr. Watterud's testimony
was properly admitted into evidence.
IV
Was there substantial evidence to support the jury's
verdict on defendants' liability and on the amount of
damages?
The jury awarded Vandalia the following damages for
breach of express warranties under contract theory:
Loss of 1980 spring wheat crop $135,831.20
Loss of baled straw 31,828.12
Loss of grazing 13,095.00
It awarded damages under a strict liability theory as
follows:
Loss of 1980 spring wheat crop $64,600.10
Loss of baled straw 18,248.12
Loss of grazing 13,095.00
Monsanto attacks this verdict on several grounds.
First, Monsanto argues that the testimony of Vandalia's
expert Mr. Turner that Vandalia's loss was caused by use of
the herbicides is " so inconsistent, unfounded, and obvious1.y
incorrect that it should not be allowed to support a ver-
dict." No objection was made at trial-to Mr. Turner's quali-
fications or conclusions. Therefore, we will not consider
the issue. Penn v. Burlington Northern, Inc. (1980), 185
Mont. 223, 228, 605 P.2d 600, 604.
Monsanto contends that, in this case, implied warranties
under the Uniform Commercial Code offer greater protection
than do the express warranties claimed by Vandalia. The
jury's verdict makes no sense, argues Monsanto, because they
found a breach of express warranty but no breach of implied
warranties. We first examine the jury's verdict that express
warranties were breached.
Whether a statement is an express warranty is an issue
of fact. Whitaker v. Farmhand, Inc. (1977), 173 Mont. 345,
354, 567 P.2d 916, 921. This court will not disturb a jury's
determination of fact when there is substantial evidence to
support it. Whitaker, 567 P.2d at 923. Here, the Strornrnens
testified that they mentioned Prodax spring wheat as a possi-
ble crop on their land, and that the Monsanto representative
recommended the use of the Far-Go/Trefl-anmix to control wild
oats and pigeon grass on their crop. The evidence supports
the jury's finding that express oral warranties were made by
Monsanto to the Strommens and that those warranties were
breached. Because Vandaliz would not be able to recover any
more damages if a breach of implied warranties was found, it
is not necessary for us to consider whether the jury should
also have found that Monsanto breached implied warranties.
Monsanto argues that there is no credible evidence to
support the award of damages for loss of straw and grazing.
Vandalia presented testimony by Eliot Strommen and by an
expert witness as to calculations of these damages. There is
nothing in the record to contradict this testimony, and we
therefore affirm the jury's verdict as to these damages.
The jury set the date on which interest on damages would
begin accruing as October 16, 1980. According to the jury
form, this date was the expected date of harvest of the crop.
Monsanto argues that this determination is nonsensical,
because that puts the date of expected harvest after the date
(first week of October, 1980) on which the replacement crop
was actually harvested. We are unable to discern any basis
for setting the expected date of harvest after the actual
date of harvest of the replacement crop.
This Court may properly modify a judgment when the
verdict does not appear to have resulted from passion and
prejudice, and when any error may be ascertained by mathemat-
ical calculation. Zook Bros. Construction Company v. State
(1976), 171 Mont. 64, 76, 556 P.2d 911, 918. We have no
reason to believe that the jury set the expected date of
harvest on the basis of passion or prejudice. We therefore
modify the judgment as to the expected date of harvest.
Farmers Union Exhibit # 3 provides information on prices for
spring wheat on various dates in fall 1980. It includes a
price within the first week of October -- on October 2, 1980.
We remand this matter to District Court for recalculation of
damages, using October 2, 1980 as the expected date of har-
vest of the spring wheat crop. With the exception of this
recalculation, we affirm the judgment of the District Court.
W e Concur:
rrc
L-
Chief J u s t i c e
Mr. Justice John C. Harrison, concurring and dissenting:
I concur and dissent.
I would return the case to the District Court on the
issue of damages. I find no credible evidence to support a
target yield expectation of from 70 to 80 bushels per acre.
In addition to allow the testimony as to how many pounds of
nitrogen or any fertilizer is required to raise a bushel of
wheat is so speculative that it should not have been allowed.