PUBLISHED OPINION
Case No.: 95‑2982
For Complete Title Petition
to review Filed
of Case, see attached opinion
Petition
to review filed by Plaintiff‑Appellant
Oral Argument
June 24, 1996
JUDGES: Cane,
P.J., LaRocque Myse, JJ.
Concurred: Cane
Dissented:
Appellant
ATTORNEYS For the plaintiff-appellant the cause was submitted on
the briefs of George Burnett of Liebmann, Conway, Olejniczak &
Jerry, S.C., Green Bay.
Respondent
ATTORNEYS For the defendant-respondent the cause was submitted on
the brief of Mark A. Pennow and Beth Rahmig Pless of Denissen,
Kranzush, Mahoney & Ewald, S.C., Green Bay.
COURT OF APPEALS DECISION DATED AND RELEASED July 30, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2982
STATE
OF WISCONSIN IN
COURT OF APPEALS
WAYNE F. SCHRUBBE,
Plaintiff-Appellant,
v.
PENINSULA VETERINARY
SERVICE, INC.,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Brown County:
SUE E. BISCHEL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Wayne Schrubbe appeals an order granting
Peninsula Veterinary Service, Inc.'s, motion for declaratory judgment on the
proper measure of damages.[1] The trial court declared that the
appropriate measure of damages for the death of Schrubbe's dairy calves was the
market replacement value on their date of death, less any salvage value. Schrubbe contends that because he was
financially unable to replace the calves on the date of their death, he is
entitled to recover for anticipated lost milk profits the calves ultimately
would have produced. Because we
conclude that Schrubbe is not entitled to recover for anticipated lost milk
profits, the order is affirmed.
Schrubbe, a dairy farmer
in Door County, sued Peninsula for negligently causing the death of several of
his dairy calves. Between 1988 and
1989, fifteen of Schrubbe's calves died within several days of their birth from
"white muscle disease," allegedly caused by a selenium
deficiency. According to Schrubbe, he
sought treatment of the calves from Peninsula, but Peninsula negligently failed
to diagnose the problem. Schrubbe
alleges that Peninsula should have analyzed the herd's feed and performed appropriate
laboratory tests because Door County is low in naturally-produced selenium.
According to Schrubbe,
the loss of the calves was the direct cause of his farm's decline in milk
production over the following several years.
Schrubbe suffered a loss in milk production because he was unable to
nurture the calves to adult milk production to replace poor producing and older
cows in his herd. Schrubbe claims that
he was unable to replace the calves because of his financial condition.
Prior to trial, Peninsula
sought declaratory judgment that the appropriate measure of damages was limited
to the fair market replacement value of the calves at the time of their death,
less any salvage value. Schrubbe
contended that he was also entitled to recover damages for anticipated lost
milk profits from the death of the calves.
The trial court granted Peninsula's motion for declaratory judgment.
The proper measure of
damages applicable to a specific claim presents a question of law. Hills Bros. Coffee, Inc. v. Dairyland
Transp., Inc., 157 Wis.2d 645, 648, 460 N.W.2d 433, 434 (Ct. App.
1990). Thus, we review this issue
without deference to the trial court. Ball
v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394
(1984).
The rules for measuring
damages for loss of personal property are governed by a variety of concepts
that attempt to make the owner whole for the loss sustained as a result of
another's negligence. Economic
concepts, however, limit the make whole doctrine in order to minimize damages
and avoid economic waste. See W.G.
Slugg Seed & Fertilizer, Inc. v. Paulsen Lumber, Inc., 62 Wis.2d
220, 225-26, 214 N.W.2d 413, 416 (1974); Dan
B. Dobbs, Handbook on the Law of Remedies 188 (1973). Therefore, within this framework, we address
the proper measure of damages for the loss of newborn calves that would mature
into replacement cows for a dairy farm.
"[T]he basic
measure of damages for the destruction of livestock is the animal's market
value, determined by replacement cost, with an appropriate reduction for any
salvage value." Rosche v.
Wayne Feed Div., 152 Wis.2d 78, 82-83, 447 N.W.2d 94, 96 (Ct. App.
1989). Although Rosche
dealt with the death of pigs, the court specifically addressed the issue
whether the owner was entitled to damages for the loss of their offspring
anticipated at the time of their death.
The court disallowed damages for the loss of future offspring and
limited the damages to the replacement cost at the time of their death less any
salvage value.[2] Id. at 83, 447 N.W.2d at 96.
The reasons underlying
this general rule of damages are at least threefold. First, the market value of replacement animals is based in part
upon their expected future productivity.
Because future productivity is considered in assessing market value of
livestock, additional recovery for the expected future productivity of the
livestock would duplicate damages. Id. Once the owner acquires a
replacement animal, the loss of future productivity is eliminated. If future productivity were allowed together
with the replacement cost, the owner would be twice compensated for the future
productivity of the animal.
The measure of damages
stated in Rosche is also designed to minimize damages and avoid
economic waste. This rule excludes
recovery for damages that should have been avoided and deemed economically
wasteful. By acquiring replacement
animals, livestock productivity will be maintained and the damages measured in
a way that will not exceed the economic potential of the lost property.
Finally, the rule of damages
enunciated in Rosche reflects the fact that an animal's value is
readily ascertainable and its replacement is readily available in the
market. The parties agree that calves
of any sex and any age are readily available in a competitive market so that
the animal's true value can be easily ascertained at any developmental
stage. The ability to acquire a
comparable animal is unrestricted by considerations of scarcity, delay in
acquisition of a replacement, or problems in identifying the market where replacement
animals can be acquired.
We recognize that the
rule of damages reflected by Rosche is limited to livestock that
is not producing income at the time of the loss. If Schrubbe lost milk producing cows, some amount of milk
production would be lost from the time of death to the time it was reasonable
to replace the cows. Although the time
to replace may be brief because of the availability of comparable animals in
the market, the owner nonetheless would be entitled to the loss of use of the
animal during the reasonable time necessary to replace it. See Schrank v. Philibeck, 251
Wis. 546, 552, 30 N.W.2d 233, 236 (1947); The
Law of Damages in Wisconsin § 17.26 (1994). However, because Schrubbe's calves were not producing income at
the time of their death, it is inappropriate to evaluate any loss of use of
these calves. The calves would produce
no income during the rather short time reasonably necessary to replace the
livestock in the readily accessible market.
Except for any additional cost attributable to acquiring an animal
slightly older than the lost animal, which may in large part be offset by the
cost of feeding and maintaining the animal during this period, there is no loss
of use connected with nonproducing livestock.
Schrubbe contends, however,
that his financial condition precluded his acquisition of replacement
animals. He argues that because he was
economically unable to afford the relatively modest cost of replacing the young
calves he lost, Peninsula is responsible not only for the value of the animals
lost, but for all milk production that would have been produced in the future
but for their deaths. Schrubbe argues
that only by compensating him for this lost milk production can he be made whole.
We reject Schrubbe's
contention for the following reasons.
First, as in Rosche, the market value of the calves
includes the fact that they will ultimately produce milk. If the calves had been replaced with calves
of the proper age there would be no loss of future milk profits. Therefore, awarding both the value of the
calves and loss of future milk profits would duplicate damages.
More importantly,
Schrubbe cites no cases supporting his argument that the rule of damages varies
based upon the personal wealth of the injured plaintiff. Indeed, the general rule is that damages are
measured the same without regard to the plaintiff's wealth. Dobbs,
supra at 188. We do agree,
however, that when the measure of damages includes the calculation of a
reasonable time to replace, the plaintiff's ability to pay may be a factor in
determining the reasonableness of the time to replace. See Nashban Barrel & Container Co.
v. G.G. Parsons Trucking Co., 49 Wis.2d 591, 601-02, 182 N.W.2d 448,
453 (1971). However, as previously
discussed, it is inappropriate to evaluate the reasonable time to replace for a
loss of use determination because the calves were not producing income at the
time of their death. Schrubbe would not
suffer loss of use of the calves in the brief period necessary to acquire
replacement calves in the market.
Because the measure of damages in this case does not include a
reasonableness determination, Schrubbe's wealth is not a proper consideration.
Further, Schrubbe
contends that he is entitled to recover for lost milk production from the time
the calves would have become milk producers through the date of judgment. Because Schrubbe's calves were lost in 1988
and 1989 and the calves would have become milk producers at approximately the
age of two years, Schrubbe is seeking lost milk profits for a period of several
years. While he does not demand
compensation for the future offspring of the lost calves, we see no logical
reason why his proposed measure of damages would exclude the future offspring
and even future milk profits of the offspring.
Such a damage claim far exceeds the value of the calves at the time of
their death. With no logical stopping
point, a defendant would be held responsible for almost limitless
multiplication of damages that would follow from the measure of damages
Schrubbe suggests. Public policy
precludes a measure of damages that involves costs that are grossly
disproportionate to the negligence of the defendant and the amount of loss inflicted
at the time of the negligent act. See
Bowen v. Lumbermens Mut. Cas. Co., 183 Wis.2d 627, 655-56, 517
N.W.2d 432, 444 (1994). Based upon the
economic waste attributable to such a measure of damages and the fact that
there is no logical stopping point for measuring such damages in livestock with
an almost limitless reproduction cycle, we reject Schrubbe's contention that he
is entitled to the loss of future milk production.
Finally, Schrubbe argues
that Kim v. American Family Mut. Ins. Co., 176 Wis.2d 890, 501
N.W.2d 24 (1993), compels a different result.
We disagree. Kim
held that a plaintiff whose automobile was damaged is entitled to the
reasonable value of the loss of use even though he did not acquire a temporary
replacement vehicle. Id.
at 893, 501 N.W.2d at 24. Kim
does not stand for the proposition urged by Schrubbe that the financial
circumstances of each individual plaintiff must be examined before a rule of
damages can be applied. Under the
proper measure of damages, when a motor vehicle is damaged, the owner of the
vehicle is entitled to loss of use of the motor vehicle for a reasonable period
of time necessary to repair the vehicle or obtain a comparable permanent
replacement. Id. at
895-96, 501 N.W.2d at 25. This measure
of damages is available to all persons who suffer the loss of a motor vehicle
without regard to whether a temporary replacement vehicle was obtained and
without regard to the reasons a temporary replacement vehicle may not have been
obtained. Id. Because Kim involved a motor
vehicle that was being used at the time it was damaged and therefore a
different rule of damages applied, we conclude that Kim is
inapposite to our analysis.
Because Schrubbe's
calves were not producing milk at the time of their death, we conclude that
Schrubbe is not entitled to anticipated lost milk profits for the loss of the
calves. Therefore, we affirm the
order.
By the Court.—Order
affirmed.
No. 95-2982(C)
CANE, P.J. (concurring). I concur with the majority's ultimate
conclusion is this case. However, my
concern is that the majority's opinion might be misread as an ironclad rule
that a plaintiff can never recover lost profits when losing a nonproducing
animal. I would conclude that if the
plaintiff had lost milk profits because of a reasonable time delay in replacing
the calves, the loss would be compensable.
For example, if a plaintiff is required to replace a calf because of a
defendant's negligence and as a result loses a period of time when the original
calf would have become milk producing, the loss should be compensable. The plaintiff, however, must replace the
calf within a reasonable time period.
In this case, I would conclude that Schrubbe's failure to replace the
calves before they would become milk producing was unreasonable as a matter of
law. Therefore, I concur with the
majority's result.
[2] We do not address the issue whether the market value of the calves should be calculated as of the date it was reasonable to replace the deceased calves. It could be argued that the market value of Schrubbe's calves should be calculated at the time it was reasonable to replace them, less the costs to raise the calves to that point. See Strauss Bros. Packing Co. v. American Ins. Co., 98 Wis.2d 706, 709, 298 N.W.2d 108, 110 (Ct. App. 1980). Because that issue was not raised in this case and because neither party contends that there is anything other than a nominal difference in the market value of the calves between date of death and the time reasonably necessary to acquire replacement calves in the market, we do not address this issue.