Bennett v. Larsen Co.

• Decision Date: 12 July 1983
• Docket Number: No. 82-1461,82-1461
• Citation: 338 N.W.2d 510,114 Wis.2d 265
• Parties: Robert J. BENNETT and Patricia Ann Bennett, and Raymond C. Meyer, d/b/a Ray's Honey Farm, Plaintiffs-Appellants, v. The LARSEN COMPANY, a Wisconsin corporation, and Hartford Accident & Indemnity Company, an insurance corporation, and Ag-Aire, Inc., Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 510

338 N.W.2d 510

114 Wis.2d 265

Robert J. BENNETT and Patricia Ann Bennett, and Raymond C Meyer, d/b/a Ray's Honey Farm, Plaintiffs-Appellants, v. The LARSEN COMPANY, a Wisconsin corporation, and Hartford Accident & Indemnity Company, an insurance corporation, and Ag-Aire, Inc. Defendants-Respondents.

No. 82-1461.

Court of Appeals of Wisconsin.

Submitted on Briefs May 2, 1983.

Opinion Released July 12, 1983.

Opinion Filed July 12, 1983.

Review Granted.

Rabinovitz, Sonnenburg & Zelpe, Sheboygan, for plaintiffs-appellants.

Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., and Joseph J. Beisenstein, Appleton, for defendants-respondents The Larsen Co. and Hartford Acc. & Indem. Co.

Conklin & Adler, Ltd., Chicago, Ill., and Gabert & Williams, Appleton, for defendant-respondent Ag-Aire, Inc.

Before FOLEY, P.J., and DEAN and CANE, JJ.

CANE, Judge.

Robert and Patricia Bennett and Raymond Meyer (appellants) appeal a judgment entered after a jury verdict dismissing their complaint against The Larsen Company, Hartford Accident & Indemnity Company, and Ag-Aire, Inc. (respondents), for damages for the death of their honeybees allegedly caused by the respondents' negligent application of pesticides. Appellants contend that the trial court erred in its jury instructions and that it should have changed the jury's verdict answers, or granted judgment notwithstanding the verdict or a new trial because of the erroneous instructions. We affirm.

Appellants are Outagamie County beekeepers. Larsen is a food processor that contracts with farmers to produce food for its canning operation in Hortonville. Under the contract terms, Larsen assumes responsibility for pest control on the leased lands, which includes the decision to apply pesticides.

In 1977 and 1978, Larsen contracted with certain Outagamie County farmers to grow sweet corn. In both years, Larsen officials observed infestations of corn borers and earworms in cornfields covered by its contracts. Larsen purchased the pesticides Sevin in 1977 and Lannate in 1978 to control these infestations. In 1977, Ag-Aire aerially applied Sevin to Larsen's leased sweet corn fields. Larsen's records indicate that Ag-Aire sprayed Sevin by helicopter on acres of sweet corn for Larsen on August 3, 4, 12, 13, and 23, 1977.

On August 13, 1977, Robert Bennett observed someone aerially spraying a sweet corn crop adjacent to his home and automobile business. After the spraying, Bennett noticed that several bees in his home observation hive were dead. He also suffered losses in his home production hives and in certain colonies at other locations.

In 1978, the Outagamie County Beekeepers Association formed a pesticide committee to gather and provide information concerning the use of pesticides and their effect on bees. As a result of a committee meeting in February, 1978, a program was initiated whereby Outagamie County beekeepers could locate their beehives on plat maps, and those using pesticides could locate their fields on the maps. Carl Hanamann, chief fieldman for Larsen, subsequently received maps marked 1978. These maps indicated the townships where Outagamie County beekeepers, including the Bennetts and Meyer, had their beehives and the locations of the beehives. Hanamann also received a list of beekeepers, their addresses and telephone numbers, and the townships where they had their beehives in 1978.

On July 18, 1978, Hanamann telephoned Paula Jorgensen, chairperson of the pesticide committee, and informed her that Larsen would be spraying a pesticide on certain fields as soon as the weather cleared. Hanamann also called Jorgensen on July 20, 1978, and indicated when and where Larsen would apply the pesticide. After that call, Jorgensen contacted Bennett to inform him of the spraying because he had beehives in the areas to be sprayed. Jorgensen also contacted Meyer on July 20 for the same reason.

After the spraying, which was done by Ag-Aero, Inc., ¹ Bennett and Meyer inspected their colonies at various locations and observed damage to several beehives. The Bennetts and Meyer filed a complaint against the respondents, in which they alleged that the respondents' negligent application of pesticides caused damage to their beehives. The Bennetts sought damages for losses incurred in 1977 and 1978. Meyer sought damages for losses incurred in 1978. The jury did not find that Ag-Aire was negligent in its conduct of spraying on August 13, 1977, and it did not find that Larsen was negligent in its participation in the August 13 spraying. In addition, the jury did not find that Ag-Aero was negligent in its conduct of spraying on July 20-23, 1978, and it did not find that Larsen was negligent in its participation in the spraying operation during that period. Finally, the jury found that both Bennett and Meyer were negligent with regard to taking reasonable precautions to protect their property from damage from the July 20-23, 1978, spraying.

Appellants contend that the trial court should have instructed the jury that Wisconsin law requires aerial applicators of pesticides and those contracting for such services to spray according to label directions or they are negligent. ² To support this assertion, appellants cite sec. 94.70(3)(g), Stats., which provides:

(3) No person may:

....

(g) Use any pesticide in a manner inconsistent with its labeling except as authorized by the department.

Appellants argue that this and other statutory provisions and administrative regulations in effect in 1977-1978 ³ establish a duty of care to their bees whether on or off the sprayed fields, and that a violation of the provisions is negligence per se.

Even if we agreed that the provisions appellants cite created some duty of care to their bees whether on or off the sprayed fields, we conclude that the trial court did not err in failing to so instruct the jury. A trial court generally should instruct the jury with due regard to the facts of the case. It is error for a court to give an instruction on an issue that has no support in the evidence. Lutz v. Shelby Mutual Insurance Co., 70 Wis.2d 743, 750, 235 N.W.2d 426, 431 (1975). The instruction appellants requested has no support in this case.

The 1977 label on Sevin, which Larsen and Ag-Aire used that year, contained the following warning:

BEE CAUTION: MAY KILL HONEYBEES IN SUBSTANTIAL NUMBERS. This product is highly toxic to bees exposed to direct treatment or residues on crops....

Do not use when value of honeybees as pollinators is more important than insect control. Before applying, warn beekeepers to locate hives beyond bee flight range until one week after application or to take other equally effective precautions.

A reasonable construction of the warning that Sevin should not be used when the value of honeybees as pollinators is more important than insect control is that it is intended to apply to persons who want to use pesticides to control insect infestations but who also grow crops that depend on bees for pollination. Testimony at trial indicated that sweet corn, to which Ag-Aire applied Sevin for Larsen in 1977, is self-pollinating. Several people also testified that in 1977, Larsen's cornfields had severe insect infestations capable of destroying its crops. Because Larsen did not depend on honeybees to pollinate its sweet corn and because insect control was a legitimate concern, neither Larsen nor Ag-Aire violated that part of the 1977 Sevin label.

The statement that beekeepers should be warned before the pesticide is applied could only be applicable in this case if Larsen or Ag-Aire knew in 1977 that the Bennetts and Meyer had beehives in the vicinity of the fields to be sprayed. The evidence does not indicate, however, that Larsen or Ag-Aire knew or reasonably should have known that the Bennetts and Meyer had beehives in the vicinity of the 1977 spraying, or the location of their beehives in relation to the fields Ag-Aire sprayed for Larsen that year. The pesticide committee was not formed until 1978, and there is no evidence that Hanamann had received any maps indicating the location of the Bennetts' and Meyer's beehives in 1977 when Ag-Aire sprayed that year.

The 1978 label on Lannate, which Larsen and Ag-Aire used in 1978, stated, in part:

This product is toxic to bees and should not be applied when bees are actively visiting the area. Apply late in evening or early morning where honey bees visit fields....

Meyer testified that some time in July, 1978, he saw a spray being aerially applied on a sweet corn field between 9 a.m. and 12 p.m. Meyer did not see who did the spraying, however. Jorgensen testified that on July 20, 1978, she observed aerial spraying of a sweet corn field at 2:45 p.m., but did not see who did the spraying. LeRoy Behm also testified that in July, 1978, he observed a helicopter spray a sweet corn field between 9:30 and 10 a.m. He also was unable to identify who did the spraying.

When Agricultural Stabilization and Conservation Service (ASCS) inspectors inspected the Bennetts' and Meyer's beehives in August, 1978, they indicated in their reports that some of the damage may have been caused by Larsen spraying Lannate in fields near Meyer's damaged beehives. One inspector testified, however, that he partly relied on Paula Jorgensen's journal containing notations made after Hanamann's telephone calls to her to assist him in determining who had sprayed pesticides in that area in July. There is no indication that Jorgensen's journal reflected whether other canning companies or farmers in the area were also spraying pesticides at that time. The inspector also testified that he did not know whether some other canning companies leasing fields in Outagamie County had sprayed pesticides in July, 1978. Another inspector testified that he partly relied on information that Bennett provided to arrive at the spraying dates and the conclusion that the Bennetts' damages were caused by Lannate being...