Schrubbe v. Peninsula Veterinary Service, Inc.

552 N.W.2d 634, 204 Wis. 2d 37, 1996 Wisc. App. LEXIS 940
CourtCourt of Appeals of Wisconsin
DecidedJuly 30, 1996
Docket95-2982
StatusPublished
Cited by4 cases

This text of 552 N.W.2d 634 (Schrubbe v. Peninsula Veterinary Service, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schrubbe v. Peninsula Veterinary Service, Inc., 552 N.W.2d 634, 204 Wis. 2d 37, 1996 Wisc. App. LEXIS 940 (Wis. Ct. App. 1996).

Opinions

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 [41]*41conclude 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 [42]*42review 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.

[43]*43The 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 [44]*44acquire 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.

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Schrubbe v. Peninsula Veterinary Service, Inc.
552 N.W.2d 634 (Court of Appeals of Wisconsin, 1996)

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552 N.W.2d 634, 204 Wis. 2d 37, 1996 Wisc. App. LEXIS 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schrubbe-v-peninsula-veterinary-service-inc-wisctapp-1996.