Harpole v. Paeschke Farms, Inc.
This text of 518 P.2d 1023 (Harpole v. Paeschke Farms, Inc.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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This is an action to recover damages alleged to have been caused to a erop growing on plaintiffs’ land. Plaintiffs allege that defendant applied a chemical [594]*594spray to brush and weeds on its property in such a manner as to cause drops of chemical spray and vapors to fall on plaintiffs’ land, resulting in damage to plaintiffs’ crop of pole beans. The jury returned a verdict in favor of defendant and plaintiffs appeal.
Plaintiffs contend that the trial court erred in admitting into evidence a series of photographs on the ground that they were not authenticated or verified and in permitting defendant’s expert to express his opinion as to the cause of the injury to plaintiffs’ beans on the ground that the opinion was not based upon facts in evidence.
The photographs in question, purporting to depict the appearance of the damaged pole beans, were admitted in evidence through the testimony of defendant Otto Paeschke. Paeschke testified that he did not take the photographs himself and that he was not present and did not know when or by whom they had been taken. He also testified that he did not know whether the photographs were of beans in plaintiffs’ field. However, he stated that he had been in plaintiffs’ field in August, 1970, when the damage had been reported, and had seen the beans there. He then testified that “the condition in the pictures is the. same condition as I saw in my examination of the field.” The trial court admitted the photographs over plaintiffs’ objection.
The basis of plaintiffs’ objection was that the foundation of Paeschke’s identification and verification was insufficient to render the photographs admissible. This claim is without merit. The purpose of the photographs was merely to help the witness describe the beans which he observed in plaintiffs’ field by comparing them with the beans shown in the photographs. The [595]*595photographs constituted demonstrative evidence and as such they were relevant and admissible in the same way that a map, chart or drawing should be admissible.
Plaintiffs’ second contention is that defendant’s expert should not have been permitted to testify because the witness based his opinion on facts not in evidence. The rule is ordinarily stated that an expert witness’s opinion must be based upon facts in evidence. This statement of the rule is too broad, as is demonstrated by State Highway Comm. v. Arnold, 218 Or 43, 341 P2d 1089, 343 P2d 1113 (1959).
Defendant called as a witness Dr. Virgil Freed, a professor of chemistry at Oregon State University. Dr. Freed stated that in reaching his opinion he relied upon three sources of inf ormation: (1) the photographs discussed above; (2) a report in the form of a letter prepared by plaintiffs’ expert, Mr. Thomas Harrison, an agronomist employed by the State Department of Agriculture; and (3) a “brochure” describing the kind of chemical used by defendant in spraying its land.
Mr. Harrison’s report had earlier been offered in evidence by plaintiffs but was excluded because one part of it was hearsay. Mr. Harrison then testified. It is clear from the record and a comparison with the excluded [596]*596report that Mr. Harrison testified to the same facts and explanation that were contained in his report.
When called as a witness, Dr. Freed testified that he did not rely on the hearsay portion of the report and that its presence did not affect his opinion. In [597]*597these circumstances, Dr. Freed’s statement that he relied on a written report was tantamount to saying that he relied on the evidence presented by Mr. Harrison at trial. The trial court was therefore justified in permitting Dr. Freed to testify in reliance upon that report.
[598]*598The plaintiffs also contend that the “brochure” was not in evidence. Defendant did introduce a document referred to as a “specimen label.” Paeschke testified that that document identified the kind of spray he used in spraying the weeds on his property. Dr. Freed testified that a document which he denoted as a “brochure” similarly described the spray. Both stated that the document identified the same chemical compound that Mr. Harrison had discussed in his report and which he testified was that which probably had been used on defendant’s field. Moreover, examination of the “specimen label” in evidence reveals that its obverse side constituted a “brochure.”
When the admissibility of evidence depends upon the determination of questions of fact, the trial court decides such questions. McCormick on Evidence 121 (2d ed 1972). Sometimes special findings are made. Farmers’ Bank v. Woodell, 38 Or 294, 61 P 837, 65 P 520 (1900). Frequently no special findings are made and it is inferred that the trial court made fact findings consistent with its ruling on the admissibility of the evidence. Bdwy. Finance, Inc. v. Tadorovich et al, 216 Or 475, 478, 339 P2d 436 (1959); Blue v. City of Union, 159 Or 5, 75 P2d 977 (1938).
Judgment affirmed.
Contrary to the suggestion found in the dissenting opinion, the hearsay statements which the expert used in making his evaluation were not in evidence in State Highway Comm v. Arnold, supra. Thus, the case does stand as a clear exception to the “facts in evidence” rule. See also Wulff v. Sprouse-Reitz Co., Inc., 262 Or 293, 498 P2d 766 (1972).
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Cite This Page — Counsel Stack
518 P.2d 1023, 267 Or. 592, 1974 Ore. LEXIS 507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harpole-v-paeschke-farms-inc-or-1974.