Lead Opinion
Plaintiff cattle owners brought this action for the loss of and damage to their cattle that grazed on defendant’s property. A jury returned a verdict in favor of plaintiffs, awarding $110,019.96 in damages. Defendant appeals. Plaintiffs cross-appeal the trial court’s refusal to award prejudgment interest.
We recite the facts in a light favorable to the jury verdict. State v. Johnson, 774 P.2d 1141, 1147 (Utah 1989); Andreason v. Aetna Casualty & Sur. Co.,
The rangeland consisted of both private and public land which Wilcox owned, leased, or was otherwise entitled to graze cattle upon. Wilcox informed plaintiffs that some of the property was fenced and that natural barriers would restrict movement of the cattle where there were no fences. He also stated that he had a fencing crew that kept the fences in good сondition. He assured plaintiffs not to worry about the cattle and that when it was time to pick them up, they would be in his corral ready to take home.
In November 1988, plaintiffs delivered 478 cows to Wilcox. Except for 1 cow that died upon arrival, they were in good condition, and all but 40 had tested pregnant.
Plaintiffs and their representatives came onto the range several times to brand, vaccinate, and move the cattle as agreed by the parties. On a number of occasions, plaintiffs expressed concern that many of the cows and calves appeared to be missing, but each time, Wilcox assured them that the cattle were all there and there was no need to worry.
In November 1989, following expiration of the pasture agreements, the cattle were rounded up, placed into a corral, and loaded into plaintiffs’ trucks. Many of the cattle were missing. Both parties and local law enforcement officials conducted additional searches and successfully located more of them. However, according to the final count, 107 of the cows and 177 of the expected calves were not returned.
Plaintiffs brought suit against Wilcox, alleging breach of the written pasture agreements and breach of common law agistment. Following a four-day trial, the jury returned a verdict in favor of Wilcox on the breach of the pasture agreements but against him on the agistment claims. More specifically, the jury unanimously found that the parties had formed “a contract of agistment” and, by a vote of 6-2, found that Wilcox had breached that contract. The jury awarded damages for 90 cows at $715 each and 113 calves at roughly $400 each, or $39,286.20 for Cornia
Wilcox appeals, contending that (1) the trial court erred by denying his motion for directed verdict аnd motion for judgment notwithstanding the verdict (“judgment n.o.v.”) on the agistment claims, (2) the trial court erred by refusing to give a requested jury instruction, and (3) the evidence does not support the amount of the jury’s award. Plaintiffs cross-appeal the trial court’s refusal to award prejudgment interest.
II. ANALYSIS
We begin with a brief review of bailment and agistment law. Under traditional bailment law,
where goods bailed for a fee are damaged or destroyed[,] a presumption of negligence is imposed on the bailee once the bailor proves the fact of bаilment and damage to the bailed goods. The bailee must then come forward with evidence that the loss or damage was not due to the bailee’s negligence.
Staheli v. Farmers’ Coop, of S. Utah,
An agistment- contract is a species оf bailment whereby one agrees to keep and care for another’s animals. Baker v. Hansen,
A. Motions for Directed Verdict and Judgment N.O.V.
“A directed verdict and a judgment n.o.v. are justified only if, after looking at the evidence and all reasonable inferences in a light most favorable to the nonmoving party, ‘the trial court concludes that there is no competent evidence which would support a verdict in his favor.’” DeBry v. Cascade Enters.,
Wilcox asserts that the trial court erred in not granting his motion for a directed verdict and a judgment n.o.v. because
The court of appeals has held that “exclusive possession and control”
does not mean that ... the bailee must be the only one who has access to the property. The bailee may allow others to access the property without destroying the bailment. The requirement is only that the bailee have the right to exclude all persons not covered by the agreement and to control the property.
McPherson,
This case is like McPherson because in both instances, the parties to the bailment envisioned that others would have access to the bailed property. Here, both plaintiffs and Wilcox were ranchers and knew that when the cattle were on public land, third persons would have access to them. The parties also agreed that plaintiffs, as owners of the cattle, should have limited access to them for a few narrow purposes such as administering vaccines and medicine. This access, fully contemplated by the parties when the agistment contract was formed, should not destroy the presumption of the agistor’s negligence when it was discovered that the property was missing.
This case is very different from Staheli, where stored grain was destroyed by a fire of unknown origin.
[A] presumption of negligence did not arise because of the absence of the [bailee’s] exclusive control of the premises. Under the circumstances, the [bailee] was in no better position than the [bailor] to know, or to be able to ascertain, the cause of the fire or to control several of the possible causes of the fire.
Id. at 683-84 (emphasis added).
None of the facts that led to the decision in Staheli is present here. It is clear that Wilcox, as caretaker and tracker of the cattle, was always in a far better position than were plaintiffs to prevent, know, or ascertain the cause of the loss. The parties contemplated that Wilcox would graze the cattle on both private and public property, trail them, and provide for their care. Wilcox testified that he and his men rode through the range nearly every day and kept the fences well maintained. If members of the general pub-
We decline to strictly apply standard bailment principles because this case differs from most bailment cases in two important ways. First, the bailed property consisted of cattle, which were alive and mobile. Typically, the bailed property is inanimate and is stored under lock and key in a confined area. Second, the agistment took place on public land. When this is the case, exclusive possession and control does not require that the agistor have the legal right to exclude others from the property whereon the cattle graze. Otherwise no cattle owner would be entitled to the presumption of negligence where the agistment arrangement anticipated grazing cattle on public rangeland. Because the cattle owner is generally not in as good a position as the agistor to explain the loss, the owner, without the presumption of negligence, would likely fail to state a prima facie case of negligence. Thus, the practical effect of strictly applying the exclusive possession and control requirement would be to relieve all liability on thе part of an agistor for loss or damage when cattle, while in his care, are grazing on public rangeland. The impact upon agistment arrangements would be significant in a state like Utah where a large percentage of the rangelands are public.
This case is similar to Henry McCleary Timber Co. v. Sewell,
At trial, the agistors in Sewell met their burden and proffered sufficient evidence to convince the trier of fact that they had not been negligent in caring for the cattle but at all times had maintained good range practices. Id. The agistors also proffered evidence to show that the loss resulted from the drifting of the cattle to their home range and the poor condition of the cattle when delivered to the range. Id. The owner then failed to offer sufficient evidence to fix liability upon the agistors. The trial court concluded that the agistors were not liable for the loss. The Sewell cоurt affirmed, stating that the trial court’s conclusions were adequately supported by the record. Id.
Likewise, in this ease plaintiffs are entitled to the presumption of negligence because Wilcox was the one entrusted with the care of the cattle and was in a better position than plaintiffs to control the conditions of loss or damage. Thus, the burden is upon Wilcox to proffer sufficient evidence to show an absence of negligence on his part or to show the circumstances surrounding the loss and why it was not due to his negligеnce. The jury heard Wilcox’s evidence as to the care he gave the cattle but was unconvinced that it rebutted his presumed negligence. We find sufficient competent evidence to support the verdict.
“A trial court has a duty to instruct the jury on the law applicable to the facts of the case.” State v. Hamilton,
Wilcox contеnds that the trial court committed prejudicial error in refusing to instruct the jury that the exclusive possession and control standard requires proof of the bailor’s legal right to exclude the owner and all others from possession. Wilcox’s argument hinges on language in McPherson: “The bailor must actually or constructively deliver the property to the bailee in such a way as to entitle the bailee to exclude others from possession during the bailment period, including the owner/bailor.”
C. Award of Damages
Wilcox contends that there is insufficient competent evidence to sustain the jury’s findings as to the value of the missing mature cattle for which damages were awarded. “‘[Jjuries are generally allowed wide discretion in the assessment of damages.’ ” Bennion v. LeGrand Johnson Constr. Co.,
The jury awarded damages for 90 cows, and did so at the rate of $715 each. Plaintiffs’ expert testified that in the fall of 1989, the average market price for a pregnant mature cow was $715 and the average price for a nonpregnant cow was $492. Wilcox argues that the jury could not conclude that every missing cow should have been returned pregnant and that a fifty percent pregnancy rate was the only rate supported by the evidence. We agree.
Plaintiffs’ own expert testified that he based his damage calculations on the assumption that all of the mature cows would have returned pregnant. On cross-examination, he admitted that an unknown number of nonpregnant cows must be expected and a corresponding deduction in value per head would “seem obvious.” When plaintiffs tested the cattle that were returned by Wilcox, approximately half of them were pregnant. Wilcox’s expert testified that a fifty percent pregnancy rate was not abnormal given the fact that the cattle were on Wilcox’s range for the first time and there was a severe drought in the area. An experienced rancher testified that a fifty percent pregnancy rate would not be unusual, while a neighboring rancher testified that the rate was consistent with the rates experienced by ranchers on nearby range during the same period and under similar circumstances.
We conclude that the jury’s calculation of damages in regard to the missing mature cows is not supported by competent evidence. We thereforе hold that Wilcox is entitled to a remittitur to reflect half of the missing mature cattle at $492 per head instead of $715. See Nelson v. Jacobsen,
D. Prejudgment Interest
In their cross-appeal, plaintiffs assert that the trial court erred in not awarding them prejudgment interest on the jury’s damages award. A trial court’s decision to grant or deny prejudgment interest presents a question of law which we review for correctness. Bailey-Alien Co. v. Kurzet,
“[W]here the damage is complete and the amount of the loss is fixed as of a particular time, and that loss can be measured by facts and figures, interest should be allowed from that time ... and not from the date of judgment. On the other hand, where damages are incomplete or cannot be calculated with mathematical accuracy, such as in the case of personal injury, wrongful death, defamation of character, false imprisonment, etc., the amount of the damages must be ascertained and assеssed by the trier of the fact at the trial, and in such cases prejudgment interest is not allowed.”
Canyon Country Store v. Bracey,
Plaintiffs rely on Jorgensen v. John Clay & Co.,
Jorgensen is clearly distinguishable from this case. In Jorgensen, there was no dispute as to the number or the price of the sheep that were to be sold. In this case, the jury heard conflicting testimony from experts regarding the cattle’s expected pregnancy rates, weight range, loss rates, and market prices. In addition, the jury heard divergent evidence regarding the calves’ expected gender, weight range, mortality rates, and market prices. Plaintiffs could not establish these elements as a matter of fact, and thus the jury was free to use its best judgment in ascertaining and assessing the damages.
Plaintiffs’ expert did estimate the value of the missing cows in his damage calculation. However, “[w]hile the expert’s estimates were a reliable enough basis for awarding damages, the assumptions used to arrive at those estimates are by no means the only way to arrive at [the] damages.” Anesthesiologists Assocs. v. St. Benedict’s Hosp.,
For the above reasons, we grant a remitti-tur, decreasing the judgment to $35,941.20 for Comia and $64,043.76 for Weston.
Notes
. Cornia delivered 186 cows, all of which had tested pregnant, and Weston delivered 292 cows, 252 of which had tested pregnant. Plaintiffs also delivered 25 bulls to Wilcox, but all of these were eventually returned. Thus, the bulls are not part of this action.
. Thirty-seven of Cornia’s cows and 70 of Weston's cows were not returned. Sixty-nine of Cor-nia’s anticipated calves and 108 of Weston’s anticipated calves were also missing.
Dissenting Opinion
dissenting:
I respectfully dissent. As the majority notes, its opinion “decline[s] to strictly apply standard bailment principles” and in effect creates a new rule for livestock grazed on
Wilcox contends that there was insufficient evidence to support a jury verdict that he had thе legal right to exclude plaintiffs from possession of their cattle. He directs our attention to the undisputed evidence that the cattle were grazed for an extensive length of time on public land to which the general public had access. The record shows that throughout the duration of the pasture agreements, plaintiffs’ cattle were spread in groups over both private and public land. This undisputed evidence should compel a finding that, as a matter of law, defendant did not have the legal right to exclude plaintiffs from their cattle. Thus, under Utah agistment law, reasonable minds could not have concluded that defendant had exclusive possession and control of the cattle.
This case is similar to CFC Fabrication, Inc. v. Dunn Constr. Co.,
Similarly, if the parties possess the property consecutively and it is unknown whether the loss and damage occurred when the bail-ee was in possession, the law does not presume the bailee negligent. Id. Under the reasoning of the CFC court, throughout the duration of the pasture agreements, plaintiffs’ cattle were grazed on both private and public rangeland. Because plaintiffs failed to show that their cattle were on defendant’s private land at the time of their loss, i.e., that defendant had a legal right to preclude them from access to their cattle, I would find, as a matter of law, that a presumption of defendant’s negligence should not arise. Indeed, it is arguably unjust in such a situation, with no showing of negligence, to require the bail-eе to account for the loss.
As defendant points out, grazing cattle are susceptible to loss and damage from many causes which the agister would not be able to ascertain. For example, grazing cattle can die, wander off, or be stolen without the agister’s knowledge, even if the agister is providing due care. The presumption of negligence is, of course, not a perfectly functioning principle but arises from necessity, due to the fact that an agister who is in exclusive possession is in a better position than the bаilee to ascertain the cause of loss or damage to the property. However, it does not appear in this case that reasonable minds could find that defendant alone had access to information about the loss and damage or that defendant alone was able to prevent the loss and damage. Accordingly, I would find the uncontroverted evidence establishes, as a matter of law, that defendant did not have exclusive access to and control of the cattle.
. In marshaling the evidence, both parties point out that, pursuant to the written pasture agreements, defendant agreed to provide "total care” of plaintiffs’ cattle. Although plaintiffs agreed to share responsibility for branding, vaccinating, and trucking, all other responsibilities in relationship to the cattle were assumed by defendant. This is only marginally relevant. Although the party who agrees to provide total care for property is most likely to be the party who has access to the property, the responsibility for total care does not establish the existence or absence of exclusive possession and control.
. This conclusion makes it unnecessary to treat defendant's challenge to the court's instruction setting out the requirement for a presumption of bailee’s negligence under a bailment contract. In addition, due to this conclusion, there is no need to address the issues of damages and interest raised in the cross-appeal.