Opinion
No. 98-CA-00457-SCT.
November 4, 1999. Petition For Rehearing Filed November 4, 1999.
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. JOHN LESLIE HATCHER
DISPOSITION: REVERSED AND REMANDED
ATTORNEYS FOR APPELLANT: KEN R. ADCOCK MARK MORRISON
ATTORNEYS FOR APPELLEE: RICHARD B. LEWIS, RALPH CHAPMAN, DANA SWAN
BEFORE PITTMAN, P.J., WALLER AND COBB, JJ.
STATEMENT OF THE CASE
¶ 1. This appeal arose from a judgment of the Coahoma County Circuit Court based on a jury verdict. Edward Johnson, Jr., sued Parker Tractor Implement Company for negligence and breach of warranty arising from Parker's sale of a combine manufactured by Deere Company.
¶ 2. The jury returned a general verdict for Johnson and awarded damages of $150,000. The trial court ordered a remittitur of $60,000, reducing the award to $90,000, and entered judgment accordingly. Parker appealed, raising seven assignments of error:
I. WHETHER THE JURY VERDICT WAS ERRONEOUS AS A MATTER OF LAW BASED UPON JOHNSON'S SPECULATIVE AND UNSUBSTANTIATED PROOF OF LOST PROFITS AND DAMAGES, IN ADDITION TO HIS COMPLETE FAILURE TO MITIGATE THE SAME FOR 1996.
II. WHETHER THE TRIAL COURT ERRONEOUSLY PERMITTED THE JURY TO CONSIDER, IN VIOLATION OF MRE 408 , TESTIMONY AND DOCUMENTATION REGARDING PRE-TRIAL SETTLEMENT NEGOTIATIONS IN THIS CASE, AS WELL AS A RELATED REPLEVIN ACTION PENDING IN FEDERAL COURT BETWEEN JOHNSON AND DEERE CREDIT CORP.
III. WHETHER COMMENTS BY JOHNSON'S COUNSEL TO THE EFFECT THAT JOHN DEERE OR DEERE CO. WOULD INDEMNIFY PARKER TRACTOR FOR ANY JUDGMENT RENDERED AGAINST IT CONSTITUTE REVERSIBLE ERROR.
IV. WHETHER THE TRIAL JUDGE'S IMPROPER COMMENTS IN OPEN COURT, INCLUDING COMMENTARY UPON THE WEIGHT OF THE EVIDENCE, PREJUDICED THE RIGHTS OF PARKER TRACTOR BEFORE THE JURY SO AS TO MERIT A NEW TRIAL.
V. WHETHER THE TRIAL COURT ERRED BY REFUSING TO EXCUSE THREE (3) PROSPECTIVE JURORS FOR CAUSE BY REASON OF THEIR, OR A FAMILY MEMBER'S PRIOR REPRESENTATION BY COUNSEL FOR APPELLEE.
VI. WHETHER THE TRIAL COURT'S ADMISSION OF THE AMENDED COMPLAINT INTO EVIDENCE, AND ITS PUBLICATION TO THE JURY, CONSTITUTED REVERSIBLE ERROR.
VII. WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE APPLICABLE LAW GOVERNING BREACH OF WARRANTY CASES.
STATEMENT OF THE FACTS
¶ 3. On August 25, 1994, Johnson purchased a John Deere CTS Rice Combine from Parker, a franchised John Deere dealership in Tunica, Mississippi. Parker's salesman, Walter Gray, discussed several combine models with Johnson. Johnson purchased the CTS model with an initial down payment of $30,634.36 and a financing agreement to pay $32,510.75 annually for five years. No payments were made after the down payment.
¶ 4. Gray, appearing as Parker's corporate representative, testified that he knew Johnson planned to do some custom cutting with the combine, but he did not believe Johnson wanted to do a substantial amount of custom cutting in addition to working on his own farm. According to Gray, Johnson's use of the combine to cut 4,000 acres and for 500 hours over a two and a half year period was an average use for this type of combine and Johnson should not have expected more. He admitted the problems with Johnson's combine were excessive, but Johnson lost no time from cutting as a result.
Custom cutting describes the practice of harvesting crops for other farmers for a per acre fee.
¶ 5. The new combine needed several repairs before it was finally delivered to Johnson. Over the next several months after the combine was delivered, Johnson complained about problems with the combine. Gray assured Johnson that any problems would be corrected and that the combine would provide reliable service. The combine had a one-year warranty that covered any problems with the combine. Under the terms of the warranty, either the company or the dealer would take care of any problems that arose with the combine during the warranty period. Johnson was not billed for any repairs or service during the warranty period.
¶ 6. Johnson described the delivery delays caused by wiring and electrical problems with the combine. Johnson said Gray told him the wiring harness had "burned off" and the wiring was being replaced. He also described problems with the air conditioner, wipers, and emergency warning lights.
¶ 7. Junior Ward testified for the defense as an expert in combine mechanics and CTS combines. Ward described the operation of CTS combines and the problems with Johnson's combine. Beginning in September 1994, Ward made numerous service calls to Johnson's farm to work on the CTS combine. The following is a list of problems addressed by Ward on these service calls:
9/7/94 replaced wiring harness, fixed air conditioner
9/26/94 replaced cracked fuel filter, fixed fuel gauge and fuel sensor
9/29/94 repaired lights and relays
10/4/94 repaired broken fingers in platform, replaced broken slip clutch
10/28/94 checked vibration in engine at high speed
10/31/94 replaced slipped clutch
11/8/94 unloading auger would not swing back.
Ward never noticed a loss of power when he drove the combine on these service calls.
¶ 8. Johnson's first recorded power complaint did not come until July 13, 1995. To address this problem, Ward took the combine into the Parker shop for repairs. He removed the fuel injection pump and shipped it to Mid South Diesel for testing. Mid South Diesel reported the pump was working properly. While working on the combine, Ward damaged the engine. John Deere replaced the engine, but Johnson said the combine continued to have problems. At the end of July 1995, Ward repaired the hydraulic pump and the transmission.
¶ 9. The greatest complaint, and that which Johnson related was the cause of his losses, was the operating speed of the combine. Johnson complained the combine would travel only 1.7 to 1.9 miles per hour, while he was told by Gray he could expect the combine speed to be from 4.5 to 5 miles per hour. According to Johnson, this more than doubled his harvest-time. However, in a letter to John Deere officials, Johnson stated the combine traveled from 2.5 to 3.5 miles per hour, although he testified the higher speed was possible only in a clean field.
¶ 10. Bernie Wright testified for Johnson as an expert in the field of farm combines and farm equipment. Wright stated Johnson's combine experienced more problems than a new machine should have experienced. He stated a new machine should have traveled 4.5 miles per hour in a clean bean field and 2.5 miles per hour in a clean rice field. According to Wright, a new CTS combine should have been able to harvest 3,000 to 3,500 acres in a season. Wright also testified custom cutting contracts were not usually in writing.
¶ 11. Ward, Parker's representative, stated repeatedly that the problems with Johnson's combine were not excessive and there was nothing wrong with the combine. He said any problems with speed were likely caused by field conditions and the combine would run at about 3 miles per hour under normal conditions. Gray, Parker's corporate representative, stated a speed of 4 to 5 miles per hour in clean soy beans was reasonable.
¶ 12. Johnson made the combine available to John Deere for pick up and replacement in March 1995, but John Deere did not take possession of the combine. As of the date of the trial, the combine remained at Johnson's shop.
¶ 13. Johnson described his losses for 1994 through 1996. In 1994, Johnson cut 1,362 acres of beans, but claimed he could not cut an additional 1,015 acres of beans and 150 acres of rice. He claimed he could have done custom cutting for farmers Swindoll, Berryhill, Smith, Zapponi and Eason at $25 an acre for beans and $55 an acre for rice. Before delivery of the combine, Johnson's father cut 80 acres of Johnson's rice at a cost of $4,675. Neither the farmers nor Johnson's father were called to testify.
¶ 14. In 1995, Johnson cut 1,935 acres of beans. He claimed he could have cut 1,300 more acres of beans and 250 acres of rice. In 1996, Johnson claimed he could have cut 2,800 acres of beans and 500 acres of rice. Johnson put his lost profit for 1996 at $26,000. Johnson did not have a written contract with any of these farmers, but according to Johnson's expert witness, written custom cutting contracts were not customary in the business. Johnson produced no additional witnesses to substantiate his claims of lost acreage and income.
¶ 15. Johnson's tax returns for 1990 through 1994 showed little or no profit from his farming operations. Yet on his financing application for the combine, he listed his income for 1993 at $249,000 though his tax return only showed $122,000. The application also showed Johnson intended to do no custom cutting with the new combine and listed only 550 total acres to be cut. Johnson admitted the application was inaccurate, but explained that Gray had completed the application so Johnson would be approved for financing.
¶ 16. Paul Watts testified for Johnson as an expert witness in the field of accounting. Watts testified Johnson's cost per acre to operate the CTS combine in 1994 was $16.25 and his cost per acre in 1995 and 1996 was $13.78. The difference in costs was caused by the depreciation of the combine. These figures were used to project Johnson's lost income due to the malfunctioning combine.
¶ 17. Johnson asked the jury for an award of $90,000 in damages. After due deliberations, the jury returned a general verdict for Johnson and assessed damages at $150,000. Upon motion by Parker, the trial judge ordered a remittitur of $60,000, reducing the total damages to $90,000, and entered judgment accordingly. Aggrieved by the judgment, Parker appealed.
STATEMENT OF THE LAW
¶ 18. In reversing and remanding for a new trial, we find it necessary to address only issues I, III and IV. The remaining issues have no merit.
I. WHETHER THE JURY VERDICT WAS ERRONEOUS AS A MATTER OF LAW BASED UPON JOHNSON'S SPECULATIVE AND UNSUBSTANTIATED PROOF OF LOST PROFITS AND DAMAGES, IN ADDITION TO HIS COMPLETE FAILURE TO MITIGATE THE SAME FOR 1996.
¶ 19. In this assignment, Parker argues Johnson failed to provide credible and substantial evidence supporting his claim for lost profits. We agree and on this issue we reverse and remand for a new trial.
¶ 20. Mississippi law allows a buyer suing for breach of warranty to recover consequential damages for "any loss resulting from general or particular requirements and needs of which the seller at the time of the contracting had reason to know and which could not reasonably be prevented by cover or otherwise . . . ." Miss. Code Ann. § 75-2-715 (2)(a) (Supp. 1999). This authorizes the recovery of lost profits if the seller had reason to know at the time of contracting that if he breached the buyer would lose, the loss of such profits is foreseeable, the lost profits are readily ascertainable, and the losses could not have been reasonably prevented. Massey-Ferguson, Inc. v. Evans , 406 So.2d 15, 19 (Miss. 1981).
¶ 21. In order to recover on a claim for lost profits, the profit lost must be proven to a reasonable certainty, and the lost profits must not be based on speculation. Fred's Stores of Mississippi, Inc. v. MH Drugs, Inc ., 725 So.2d 902, 914 (Miss. 1998); see also Lovett v. E. L. Garner Inc. , 511 So.2d 1346, 1353 (Miss. 1987) ("one may recover for loss of future profits in a breach of contract action as long as such profits are proved with reasonable certainty, not based on speculation or conjecture.") (collecting authorities). Damage awards must also be based on net profits, and any future profits must be discounted at an appropriate rate to arrive at the present value. Fred's Stores of Mississippi, Inc. , 725 So.2d at 914 ( citing Lovett , 511 So.2d at 1353).
¶ 22. In the case sub judice, very little evidence was presented to support Johnson's claim of lost profits. Johnson testified that his losses for 1994, 1995 and 1996 were the result of the defective combine. He did not, however, produce any other evidence — contracts, witness testimony, financial records — to establish his claims of lost acreage. Johnson listed five farmers for whom he could have engaged in custom cutting, yet not one of these farmers was called to verify that they had the acreage available to cut and that they made other arrangements only because Johnson was not able to cut their crops. For 1996 specifically, Johnson's proof consisted of only his statement that his lost profits totaled $26,000. Nor did Johnson establish that, time and weather permitting, he would have been able to cut the additional acreage.
¶ 23. Ordinarily where lost profits is the appropriate measure for damages, it is proper for the complaining party to itemize the elements of costs and expense upon which such lost profits are based and to provide evidence that supports those assertions to a reasonable certainty. While Johnson's own testimony concerning his losses is certainly relevant evidence of those losses, considering the facts of this case, that testimony alone is simply too speculative to support an award for lost profits.
¶ 24. Oral testimony was the only support offered by the Plaintiff in Puckett Machinery Co. v. Edwards , 641 So.2d 29, 27-29 (Miss. 1994). In Puckett Machinery , Edwards contended his Caterpillar 518 tree shearer's slower-than-expected output required him to hire additional sawmen. While Edwards testified his out-of-pocket cost was $100.00 per day, no documentary evidence such as truck tickets, payroll receipts, tax records, or banking records was offered in support of this claim. In holding that Edwards' testimony was insufficient to prove his claim for consequential damages, the Court cited the case of Yazoo M.V.R. Co. v. Consumers' Ice Power Co. , 109 Miss. 43, 67 So. 657 (1915). Yazoo requires that the best and most reliable information available must be used to calculate business losses from a breach of contract. The calculations should not be solely based on a plaintiff's memory:
At trial, the president of the company testified that his company suffered damages at $100.00 per day. When asked, he explained that he arrived at this figure by a mental calculation. The company's books could not be found and were not introduced. There was a corroborating witness as to the president's calculations of the company's profits. This Court cited the rule on the recovery of gains and profits lost through breach of contract, which stated: "[l]osses of profits in a business cannot be allowed, unless the data of estimation are so definite and certain that they can be ascertained reasonably by calculation." The Court found that the testimony lacked necessary information from which a calculation of the amount of loss sustained could be calculated.
Puckett , 641 So.2d at 37 (citations omitted).
¶ 25. Although Johnson did produce an expert in accounting, Paul Watts, to testify as to his lost profits for 1994, 1995 and 1996, Parker correctly points out that Watts' testimony was based on conjecture and speculation. Watts' testimony was not based on any audit or review of facts, circumstances or documents, if any, underlying Johnson's lost profits claims. Watts only repeated Johnson's speculative testimony concerning his lost acreage for 1994, 1995 and 1996. In fact, Watts admitted he had done nothing to prepare his calculations other than speaking with Johnson before testifying. We have held expert testimony is admissible only if it helps the finder of fact understand the evidence or determine a fact in issue. Peoples Bank Trust Co. v. Cermack , 658 So.2d 1352, 1363 (Miss. 1995). The only portion of Watts' testimony that could be considered helpful to the jury was the testimony concerning the depreciation of the combine. However, because the remainder of Watts' testimony was based on nothing more than speculation and conjecture we cannot say his testimony helped the trier of fact understand the damage evidence presented. Watts' testimony should not have been admitted.
¶ 26. Parker also argues in this assignment that the jury failed to deduct the fair rental value of the combine from its award of damages. Johnson is only entitled to net profits. Even if the combine were defective, Johnson continued to use the combine after rejecting it and the value of this use should be used as a cost in calculating net profits. Yazoo , 109 Miss. at 28, 67 So. at 658 ( citing Lovett v. E. L. Garner, Inc. , 511 So.2d 1346, 1355 (Miss. 1987). However, Parker failed to request a jury instruction concerning the fair rental value of the combine. Upon remand, evidence regarding the fair rental value of the combine should be fully developed for consideration by the jury in formulating an award of damages. See Haines Commercial Equip. Co. v. Butler , 522 P.2d 472 (Or. 1974); Hardwick v. Dravo Equip. Co. , 569 P.2d 588 (Or. 1977).
¶ 27. Given the insufficiency of Johnson's proof of lost profits and the fact that the jury returned a general verdict which prevents us from knowing how much the jury awarded for lost profits, we reverse and remand for a new trial.
III. WHETHER COMMENTS BY JOHNSON'S COUNSEL TO THE EFFECT THAT JOHN DEERE OR DEERE CO. WOULD INDEMNIFY PARKER TRACTOR FOR ANY JUDGMENT RENDERED AGAINST IT CONSTITUTE REVERSIBLE ERROR.
¶ 28. In this assignment of error, Parker argues Johnson's counsel made improper comments to the effect that John Deere or Deere Company would indemnify Parker for any losses associated with the case sub judice. The following exchange occurred during cross-examination of Parker's corporate representative, Walter Gray:
BY MR. CHAPMAN (Johnson's attorney):
Q. And Deere and Company, John Deere, the people that send these combines down here they are covering Parker Tractor for any losses associated with this case, aren't they?
MR. ADCOCK (Parker's attorney): Your Honor, we object. We object to that.
BY THE WITNESS (Gray):
A. I can't answer that.
MR. ADCOCK: It's totally irrelevant.
MR. CHAPMAN: I'll withdraw the question.
¶ 29. Parker cites one case, Scott County Co-op. v. Brown , 187 So.2d 321 (Miss. 1966), in support of its argument that the question above constitutes reversible error. In Scott County Co-op , we held the plaintiff's counsel's statement during closing that "we will collect a judgment in such a way as to not hurt the defendants" was tantamount to saying that one defendant was protected by liability insurance. Brown's counsel stated during closing, "And Gentlemen, in all deference to Scott County, I believe you have confidence in us lawyers to know that we will collect a judgment in such a way as to not hurt the defendants, Junior Madden or the Scott County Co-op." Scott County Co-op , 187 So.2d at 325. In reversing and remanding for a new trial in Scott County Co-op , we held the only purpose for the plaintiff's statement was to "inform the jury that someone other than Junior Madden and the Scott County Co-op would pay the judgment." Id. We reach a similar conclusion here. The only purpose for Johnson's counsel's referenced statement was to inform the jury that someone other than Parker would pay any judgment.
¶ 30. While Johnson did arguably have a need to establish the relationship between Parker and John Deere, his assertion that any and all of Parker's losses associated with this case would be covered by John Deere was improper. The only possible effect of Johnson's question was to inform the jury that John Deere, not Parker, would bear the costs of any judgment. The source of payment for the judgment is not relevant to liability or damages for costs due to a defective combine. We reverse on this point as well and remand for a new trial. On remand Johnson shall not be allowed to comment on possible indemnification of Parker's losses by a third party.
IV. WHETHER THE TRIAL JUDGE'S IMPROPER COMMENTS IN OPEN COURT, INCLUDING COMMENTARY UPON THE WEIGHT OF THE EVIDENCE, PREJUDICED THE RIGHTS OF PARKER TRACTOR BEFORE THE JURY SO AS TO MERIT A NEW TRIAL.
¶ 31. On cross-examination of Parker's expert, Mike Roberts, Johnson's attorney questioned Roberts about when the combine was manufactured. Parker asserts that the trial judge's following comment during questioning of Roberts constitutes reversible error.
BY MR. CHAPMAN:
Q. Do you know if the Johnson Combine was made on a Monday?
BY THE WITNESS (Roberts):
A. No, sir, I do not.
BY MR. CHAPMAN:
Q. After a holiday?
BY THE WITNESS:
A. No idea.
BY MR. CHAPMAN:
Q. Is there any way we can check?
MR. ADCOCK: Your Honor, we object.
THE COURT: How about Friday the 13th?
(Emphasis added.) According to the record, Parker's counsel made no objection to the judge's remark, and the examination continued.
¶ 32. At the next break in the proceedings, outside the presence of the jury, Parker moved for a mistrial based on the judge's "Friday the 13th" comment. Parker argued the judge's comment constituted a comment on the evidence and was therefore improper and prejudicial. In response, the judge stated the "Friday the 13th" remark was intended in jest and received in jest by everyone in the court room and was an attempt by the court to inject a note of humor into an otherwise very dull case. The judge denied the defense motion for a mistrial, but offered to instruct the jury that his "Friday the 13th" remark was made in jest. Parker refused the judge's offer to so instruct the jury. Parker now claims the judge's remark was so prejudicial as to warrant reversal.
¶ 33. Two problems exist with Parker's argument. First, according to the record, Parker did not make a contemporaneous objection when the "Friday the 13th" remark was made. A contemporaneous objection is necessary so that the judge can make a determination of prejudice. "Strictly speaking, timeliness means the objection and motion must be made contemporaneously with the allegedly improper utterance. This is well-known as the `contemporaneous objection rule.' Contemporaneousness is critical because it allows the judge to avert a mistrial, if possible, by admonishing the jury to disregard the utterance." Ivy v. General Motors Acceptance Corp. , 612 So.2d 1108, 1114 (Miss. 1992) (emphasis in original and citations omitted). The record indicates Parker did not object to the judge's remark until long after the witness had completed his testimony. Even with this delay, the trial court offered to admonish the jury and to give a curative instruction, stating the "Friday the 13th" comment was made in jest. Parker, however, refused the judge's offer to issue the instruction.
¶ 34. Second, in oral argument before this Court, counsel for Parker asserted for the first time that he did object and ask for a mistrial when the judge made the remark, but the objection and motion were not recorded by the court reporter. The proper method for supplementing an allegedly incomplete record, however, is through a bill of exceptions, not through oral argument before an appellate court. See Miss. Code Ann. § 9-13-31 (1991); Miss. R. Civ. P. 46 cmt. See also M.R.A.P. 10(e) (motion to correct or modify record). Parker provided no bill of exceptions and has not moved the Court to correct the record.
¶ 35. Putting aside Parker's failure to properly preserve this point of error, because the judge's comment went directly to the quality of the combine, we find the comment did constitute an improper comment on the evidence. See Lewis v. Hiatt , 683 So.2d 937, 942 (Miss. 1996); Miss. Code Ann. § 11-7-155 (Supp. 1999). Humor is appropriate at times. However, if those times are in the presence of the jury, the trial judge must take care that its statements are not made at a time or in a manner which would be construed by the jury as a comment by the judge on any evidence. Although the judge's comment in the case sub judice constituted, at most, harmless error, on remand the trial court should take care not to comment in the presence of the jury on the evidence presented.
CONCLUSION
¶ 36. Because of the improper reference by Johnson's counsel to Deere's covering any losses by Parker and because the award of damages for Johnson's lost profits was based on nothing more than speculation, we reverse the judgment of the Coahoma County Circuit Court and remand this case for a new trial on both liability and damages. On remand, Johnson shall not make any reference to indemnification of Parker's losses by a third party. Also on remand, the trial court shall take care not to comment on the evidence presented.
¶ 37. REVERSED AND REMANDED. PRATHER, C.J., PITTMAN, P.J., SMITH AND COBB, JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J., BANKS AND MILLS, JJ.
¶ 38. The combine purchased by Edward Johnson was nothing short of a lemon. Considering all of the grief Johnson had to endure, he should be commended for not destroying the combine and getting into the spare parts business. In my view, the jury's finding of liability upon Parker Tractor and subsequent award of damages in favor of Johnson should be affirmed. Even assuming the majority is correct in stating that Johnson's proof of lost profits was insufficient and the general verdict "prevents us from knowing how much the jury awarded for lost profits," I still see no reason to remand this case for anything more than a trial on damages. The issue of liability has been resolved by a jury, and with it we should not interfere. Accordingly, I dissent.
¶ 39. Edward Johnson purchased a John Deere Rice Combine on August 25, 1994. During the following three months numerous repairs were necessary: wiring harness replaced, air conditioner repaired, cracked fuel filter replaced, fuel gauge and fuel sensor repaired along with emergency warning lights, relays, windshield wipers and broken fingers in the platform, a broken slip clutch replaced twice, problems with a vibration which occurred at high speeds and an unloading auger which would not operate properly. Still within the first year of purchase, Johnson began to experience power problems, and the fuel injection pump was removed and tested. During that inspection, the engine was damaged, and a new one had to be installed. Later, the combine's transmission and hydraulic pump had to be repaired.
¶ 40. Despite these problems, the majority points out that Parker's representative repeatedly said that the problems were not excessive and that "there was nothing wrong with the combine." One can only wonder what the owner of a combine with "excessive" problems would have to go through to get each season's crop in. In fact, a closer look at the record reveals that on cross-examination Gray admitted that the problems suffered by the combine were not minor:
Chapman: Now, you testified in here when we started this case when I read out that list of problems that those problems were excessive, do you remember testifying to that?
Gray: Yes, sir, I do.
* * *
Chapman: The problems were excessive. That's what you told us in your deposition?
Gray: I just said too excessive but was not any time, very little time, lost from those minor problems. Excessive, yes, sir.
¶ 41. One assignment of error which the majority finds reversible is the following question posed by Johnson's attorney:
Q: And Deere and Company, John Deere, the people that send these combines down here they are covering Parker Tractor for any losses associated with this case, aren't they?
¶ 42. This question was never answered by the witness and withdrawn. This writer acknowledges that we have previously held no reference should be made to the fact that a defendant is covered by liability insurance, Morris v. Huff , 238 Miss. 111, 117 So.2d 800 (1960). However, the question posed in this case did not rise to that level. In the case relied upon by Parker and cited by the Majority, Scott County Co-op v. Brown , 187 So.2d 321 (Miss. 1966), the plaintiff's counsel remarked during his closing statement that "we will collect a judgment in such a way as to not hurt the defendants" and "Gentlemen, in all deference to Scott County, I believe you have confidence in us lawyers to know that we will collect a judgment in such a way as to not hurt the defendants, Junior Madden or the Scott County Co-op." Id. at 325. There is no mentioning or inference of liability insurance even slightly similar in the present case. The statements were merely made to show that Parker was an agent under the control of John Deere and that both were liable, even though the seller was the only one named in the Complaint. The litany of criminal cases in which we affirm a verdict when a District Attorney makes all sort of statements much worse than these here are too numerous to cite. One can only wonder why that occurs.
¶ 43. As to the issue of damages, the majority cites Miss. Code Ann. § 75-2-715 (2)(a) (Supp. 1999) for the proposition that a buyer suing for breach of warranty to recover consequential damages for "any loss resulting from general or particular requirements and needs of which the seller at the time of the contracting had reason to know and which could not reasonably be prevented by cover or otherwise . . . ." This authorizes the recovery of lost profits if the seller had reason to know at the time of contracting that if he breached the buyer would lose, the loss of such profits is foreseeable, the lost profits are readily ascertainable, and the losses could not have been reasonably prevented. Massey-Ferguson, Inc. v. Evans , 406 So.2d 15, 19 (Miss. 1981). In this case, Parker's representative knew that Johnson intended on using the combine to custom harvest, regardless of what was entered on the application. It was reasonably foreseeable that any problems with the combine, including a reduced speed, would cause Johnson to lose anticipated profits.
¶ 44. Johnson testified that when he purchased the combine he was assured that it would get four-and-a-half to five miles an hour. However, during harvest Johnson was only able to get from 1.7 to 1.9 miles an hour, more than doubling his harvest time. On direct examination, Johnson gave the names of individuals for whom he did custom work and those which he lost due to the inability of the combine to work at full speed.
¶ 45. In Hawkins Hardware Co. v. Crews , 176 Miss. 434, 169 So. 767 (1936), the Court held that, "[w]hen the cause of the damages is reasonably certain, recovery is not to be denied because the data in proof does not furnish a perfect measure thereof . . . it is enough that sufficient facts are given from which the jury may safely make at least a minimum estimate."
¶ 46. Additionally, damages are speculative only when the cause is uncertain, not when the amount is uncertain. Adams v. U.S. Homecrafters, Inc. , No. 98-CA-00368-SCT., 1999 WL 353186, at *4 (Miss. June 3, 1999) (citing Shell Petroleum Corp. v. Yandell , 172 Miss. 55, 67, 158 So. 787, 790 (1935)).
¶ 47. The Majority cites Puckett Mach. Co. v. Edwards , 641 So.2d 29, 27-29 (Miss. 1994), in regards to damages. In Puckett , Edwards was attempting to recover compensation from the manufacturer of a Caterpillar tree shearer because he was forced to hire additional sawmen to make up for the shearer's poor output. Although Edwards testified that he had thrown away payment receipts, he still had banking and tax records which would have shown those paid wages, but he failed to submit them at trial; choosing instead to only testify about them. The Court held that Edwards' testimony was insufficient to sustain his claim for damages because Mississippi law requires that the best and most reliable information available be used to calculate losses from a breach of contract.
¶ 48. In the case sub judice, all existing records which could have shown pertinent losses were introduced, including a summary of loss calculations and Johnson's tax reports. Additionally, the acreage was calculated at the previous speed of an older combine compared with the slower speed with the lemon. This should be sufficient to show the loss of profits. In addition, since the contracts that Johnson had to break with other farmers were not in writing, the best evidence possible was the testimony of Mr. Johnson. He listed those farmers who he had contracts with, the amount of losses suffered and the amount he paid his father for help in cutting. As the Court in Puckett held, lost profits in a business can be allowed if "the data of estimation are so definite and certain that they can be ascertained reasonably by calculation." Puckett , 641 So.2d at 37.
¶ 49. Johnson is an expert in his own right. He is a 44 year-old man who has spent most of his childhood and his entire adult life farming. He was the one in charge of running his business, and he would have first hand knowledge of profits and losses. In addition to his testimony, Johnson called an accountant with experience in custom harvesting to calculate the damages using testimony regarding contracts and the usual rate charged for custom harvesting.
¶ 50. Although none of Johnson's customers testified, Parker had the right to call them if they felt it could rebut any of Johnson's testimony. Parker did not do so. The testimony given by Johnson and his expert accountant was sufficient for the jury to determine the amount of damages necessary. The Court in Puckett stressed that, "If he has records available, they must be produced. While certainty is not required, a party must produce the best that is available to him." Puckett Mach. Co. v. Edwards , 641 So.2d 29, 37 (Miss. 1994) (quoting Eastland v. Gregory , 530 So.2d 172, 174 (Miss. 1988). In this case, the testimony of Parker and his accountant was the best evidence available.
¶ 51. It is totally reasonable to find that a defective combine would reduce the amount of farm work that the owner of the combine can perform and that the owner of the combine would surely, as a result, suffer a loss of profits. Even the Majority admits, without actually saying so, that the combine was a lemon and that Johnson was forced out of business for some time. Johnson put on evidence of his losses, and the burden was shifted to Parker to negate any damages. Parker failed to do so and should be bound by the award. I would affirm. At best the majority should only send it back for a trial on damages only. Accordingly, I dissent.