Augustine v. Dickenson

• Decision Date: 10 November 1981
• Docket Number: No. 8476,8476
• Citation: Augustine v. Dickenson, 406 So.2d 306 (La. App. 1981)
• Parties: Joseph AUGUSTINE, et al, Plaintiffs-Appellees, v. M. J. DICKENSON, et al, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 306

406 So.2d 306

Joseph AUGUSTINE, et al, Plaintiffs-Appellees, v.M. J. DICKENSON, et al, Defendants-Appellants.

No. 8476.

Court of Appeal of Louisiana, Third Circuit.

Nov. 10, 1981.

Voorhies & Labbe, Richard D. Chappuis Jr., Lafayette, Michael Johnson, Cottonport, for defendants-appellants.

Knoll & Knoll, Jerold E. Knoll and Kerry L. Spruill, Marksville, for plaintiffs-appellees.

Before DOMENGEAUX, SWIFT and YELVERTON, JJ.

YELVERTON, Judge.

This is a suit brought by five property owners for damages to their vegetable gardens, fruit trees and other plants.Original plaintiffs were Joseph Augustine, Anne Bell Hudson, Loubirtha Williams, ¹Herman Lockwood and Lurlean Turner.The damages were allegedly caused by a crop dusting operation on a neighboring estate and a resulting drift of airborne herbicides down onto plaintiffs' properties.Defendants are M. J. Dickenson, d/b/a M. J. Dickenson Flying Service, and U.S. Fire Insurance Company, Dickenson's insurer.The trial judge found that plaintiffs suffered property losses caused by the aerial spraying of herbicides by Dickenson, and awarded damages to each plaintiff, totalling $3500, against both defendants.From this judgment Dickenson and his insurer have appealed.We affirm.

The appeal assigns two errors.First, appellants contend that the trial judge erred in reaching the factual conclusion that the Dickenson spraying operation caused the damage to plaintiffs' gardens, trees and other vegetation.The other complaint is that the damages awarded are not supported by the evidence.

We will now discuss these two assigned errors under the headings "Causation" and "Damages".

CAUSATION

The testimony is uncontroverted that in early May, 1980, M. J. Dickenson did aerial spraying on a field belonging to Kent Thevenot in Avoyelles Parish.Mr. Dickenson said he sprayed a chemical known as "Paraquat" on the field to kill Johnson grass, preparatory to the owner planting his soybeans.This chemical, according to both Dickenson and Earl Dubea, an agricultural inspector for the Louisiana Department of Agriculture, is a defoliant.It burns the leaves off of plants.Mr. Dubea explained that although it is designed to kill Johnson grass and weeds, Paraquat works with equally deadly effect on vegetable plants, even trees.

The homes of the five plaintiffs here were lined up on one side of Gremillion Lane, a country road.Thevenot's field was on the other side.Plaintiffs' gardens, fruit and nut trees, flower bushes, and lawn grass were in the immediate vicinity of their homes.Several witnesses testified that in early May aerial spraying took place on Thevenot's land across the lane.Some were outside and felt the chemical as it drifted down on the lane and in their yards.

They testified that this was the only occasion in 1980 that an airplane sprayed in the area of their homes.The plaintiffs testified that almost immediately dots, then brown spots, began to appear on leaves, and most plants simply died, all leaves dropping off.Earl Dubea of the Louisiana Department of Agriculture testified that he went to plaintiffs' property one month after the spraying and found widespread defoliation typical of Paraguat's effects in the areas of plaintiffs' homes, their gardens and their trees.

Thus a summary of the evidence as to causation is that Dickenson was in the air when and where the damage occurred, he was spraying a defoliant and plaintiffs' plants were defoliated, and no other spraying occurred within the time period that is relevant.The trial court's conclusion that this spraying operation was the cause of plaintiffs' loss is amply supported by the evidence.

DAMAGES

Of the five property owners who are plaintiffs, Joseph Augustine was found by the trial court to have suffered the most damage.He was awarded $1000.Anne Bell Hudson was awarded $500; Loubirtha Williams, $800; Herman Lockwood, $750; and Lurlean Turner, $450.

Each plaintiff had heavily damaged vegetable gardens.Some suffered damage to their fruit and other trees, and to flowers and lawn grass.They raised produce for some outside sales but mostly for home use.In Bourg v. Cane Air, Inc., 325 So.2d 738(La.App. 1 Cir.1976), damages for such losses were calculated on the basis of type of vegetable, row length, expected yield, and wholesale values.

Augustine testified that he had forty 75' rows of corn that he was cultivating for his family's personal consumption and to feed his hogs and chickens.He also had pecan trees from which he had sold in previous years from $300 to $400 worth of pecans.He lost almost all of his corn crop and made nothing off his pecan trees.He said he sold plums in years past but the defoliated plum trees produced nothing in 1980.He had a peach tree that died and a fig tree that died along with a willow tree, some hedges and St. Augustine grass on one side of his house.He also lost all the other vegetables growing in his garden such as beans, squash, tomatoes and okra.He testified that he packaged and froze corn and other vegetables for his deep freeze for off-season consumption.

The other plaintiffs testified in similar detail to their individual losses.

The witness Nolan Joseph Armand, manager of Piggly-Wiggly grocery in Marksville, was called by plaintiffs to establish prices of certain produce in his store.He gave prices as of January 22, 1981, the date of trial, stating that these prices were higher than they...