Jesko v. Stauffer Chemical Company

558 P.2d 55, 89 N.M. 786
CourtNew Mexico Court of Appeals
DecidedNovember 30, 1976
Docket2602
StatusPublished
Cited by34 cases

This text of 558 P.2d 55 (Jesko v. Stauffer Chemical Company) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jesko v. Stauffer Chemical Company, 558 P.2d 55, 89 N.M. 786 (N.M. Ct. App. 1976).

Opinion

OPINION

WOOD, Chief Judge.

Plaintiffs sued for damage to corn crops caused by the chemical, Eradicane. The first two counts of the complaint alleged breach of express and implied warranties. The third count sought to enforce an alleged agreement as to the amount of damage. Defendant Occidental (Occidental Chemical Company of Texas, a corporation) distributed the Eradicane; defendant Stauffer (Stauffer Chemical Company, a corporation) was the manufacturer. Occidental cross-claimed against Stauffer. The trial court judgment was against both defendants on plaintiffs’ complaint and against Stauffer on the cross-claim. Both defendants appeal. Occidental’s appeal was for the purpose of preserving its judgment on the cross-claim or, in the alternative, to obtain the same appellate relief as Stauffer. The issues concern: (1) cause of damage, (2) evidence of other Eradicane claims, (3) findings of the trial court, and (4) real party in interest.

Cause of Damage

Plaintiffs claimed damage to three of their corn fields. At the beginning of the trial Stauffer admitted “we are responsible” for Eradicane damage to two of the fields, contesting only the amount of damage. The issue of causation is directed to the third field of 165 acres. Stauffer claims there was no substantial evidence that Eradicane caused damage to the third field. The contention is that Jesko’s testimony as to causation was incompetent. We disagree.

Jesko testified that in his opinion Eradicane caused damage to the third field. Stauffer claims that Jesko testified as an expert as to the cause of damage, that he was not qualified as an expert because his experience was only as a farmer, and had no specialized knowledge indicating “familiarity with the manner in which specific herbicides might affect specific species of plants.” See Evidence Rule 702.

Assuming, but not deciding, that Stauffer is correct in claiming that Jesko was not qualified to testify as an expert on causation, the question is whether Jesko’s testimony was admissible as a non-expert.

Evidence Rule 701 states:

“If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.”

Jesko testified that he observed the damage to the corn on the two fields which Stauffer admitted was Eradicane damage. He was asked to compare what he observed in the two fields with what he observed in the third field. Jesko testified the damage looked the same except the damage in the third field was seen earlier. He testified that he observed damage in the third field at a later stage of growth. “As the corn got bigger it would grow, and then it had this familiar twist to the stalk. . Well, the twist on the stalks was all the same.”

Jesko’s opinion was rationally based on his own perceptions and was helpful to the determination of the causation issue. His opinion was admissible under Evidence Rule 701. State v. Lujan, 87 N.M. 400, 534 P.2d 1112 (1975), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed. 2d 400 (1975); State v. Tixier, 89 N.M. 297, 551 P.2d 987 (Ct.App.1976); Compare, Reid v. Brown, 56 N.M. 65, 240 P.2d 213 (1952); State v. Ellis, 89 N.M. 194, 548 P.2d 1212 (Ct.App.1976).

Jesko’s comparative testimony, together with Stauffer’s admission of Eradicane damage on two fields, was substantial evidence supporting the finding that Eradicane caused damage on the third field. Accordingly, we need not consider other evidence which plaintiffs assert proved Eradicane damage in the third field.

Evidence of Other Eradicane Claims

During cross-examination of Jesko by Occidental, testimony was admitted, over Stauffer’s objection, concerning Eradicane damage suffered by other farmers and the negotiation and settlement of those claims by Stauffer. In arguing for admissibility of this testimony, Occidental stated it proposed to show that these other claims “were investigated and settled by Mr. Ramsey on behalf of Stauffer”, that this evidence tended “to show the authority of Mr. Ramsey.”

Stauffer contends this testimony was not relevant. We disagree. Evidence Rule 401 defines relevant evidence as:

“[Ejvidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

See State ex rel. Hwy. Dept. v. Kistler-Collister Co., Inc., 88 N.M. 221, 539 P.2d 611 (1975).

The third count of the complaint sought to enforce an alleged agreement between plaintiffs and Stauffer. The cross-claim alleged that Stauffer “impliedly agreed and warranted to indemnify Occidental and to hold it harmless in respect of the claim of the plaintiffs.” The challenged testimony was relevant to both of these issues.

Stauffer claims the challenged testimony was inadmissible under Evidence Rule 408. It reads:

“Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”

The Advisory Committee Notes to the Proposed Rules of Evidence for United States Courts states: “Since the rule excludes only when the purpose is proving the validity or invalidity of the claim or its amount, an offer for another purpose is not within the rule.” The last sentence of the rule states: “This rule also does not require exclusion when the evidence is offered for another purpose”. Compare State v. Doak, N.M., 554 P.2d 993 (Ct. App.1976). 2 Weinstein’s Evidence, ¶ 408[05] (1975) states that evidence of a compromise “may be used to prove a consequential, material fact in issue other than validity or invalidity of the claim or its amount”.

The third count of the complaint claimed that Stauffer had settled. Occidental claimed that Stauffer had impliedly agreed to indemnify and hold Occidental harmless from the claims of plaintiffs. Weinstein, supra, |f 408[04] states:

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Bluebook (online)
558 P.2d 55, 89 N.M. 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jesko-v-stauffer-chemical-company-nmctapp-1976.