Binder v. Perkins, 46994

• Decision Date: 08 December 1973
• Docket Number: No. 46994,46994
• Parties: Alois BINDER and Robert Binder d/b/a Alois Binder and Son, Appellees, v. D. R. PERKINS, Appellant.
• Court: Kansas Supreme Court

Page 1012

516 P.2d 1012

213 Kan. 365

Alois BINDER and Robert Binder d/b/a Alois Binder and Son, Appellees, v. D. R. PERKINS, Appellant.

No. 46994.

Supreme Court of Kansas.

Dec. 8, 1973.

Syllabus by the Court

1. One who is engaged in the business of aerial crop-spraying has an obligation to use reasonable precautions to prevent injury to others. Reasonable precautions vary with the hazards of the business; the greater the risk, the more imperative the obligation.

2. A lessee cannot recover for injury to the land itself except insofar as it may have affected the value of lessee's use or possession of the land for the term of the lease, and the measure of lessee's recovery is the difference in the value of the lease immediately before and immediately after the injury to the land.

3. A third party who injures land is not liable for damages to one who subsequently leases that land with knowledge of the damage.

4. When interests of a landowner and his tenant or lessee have been injured by the wrongful act of a third party, each has a cause of action, but may recover only the damage to his own interest.

5. The record is examined and it is held: The trial court did not err under the circumstances disclosed by the record in concluding defendant was negligent in the application of herbicide, but the court erred in the measure of damages due to plaintiffs; and the case is reversed on the issue of damages, with directions to enter judgment for lessees' share of the crop loss for the term of the lease, all as set forth in the opinion.

Charles Boyle, Russell, argued the cause, and was on the brief for appellant.

Norbert R. Dreiling, of Dreiling & Bieker, Hays, argued the cause and Dennis L. Bieker, Hays, was with him on the brief for appellees.

OWSLEY, Justice:

Defendant Duane R. Perkins, operator of an aerial crop-spraying business, appeals from a judgment against him of $2,500 plus costs for loss of plaintiffs' leased five and one-half acre alfalfa field damaged by airborne 2-4D herbicide applied by defendant to a neighboring wheat field.

Carl and Alphonse Ruder contracted with defendant to spray their seventy-acre wheat crop south of Hays, Kansas, to kill weeds. The job was contracted on June 15, 1969, about a week before wheat harvest was to begin. It was determined by Ruders and Perkins that a heavy application of low volatile 2-4D Ester herbicide would be necessary to cause the weeds to wilt and droop below the heads of wheat and below the cutting bar by harvest time.

On June 19, 1969, defendant and his pilot, Harry Vann, determined the atmospheric conditions were suitable for aerial spraying of Ruders' wheat field. The wind was out of the southwest blowing toward the northeast and spray released over Ruders' wheat field would drift east and north over Ruders' land. Defendant's pilot had previously located Ruders' field from the air and informed Perkins of the existence of a small alfalfa field adjacent to the wheat field to the west. 2-4D is a selective herbicide which kills broad-leafed plants such as weeds, but does no harm to narrow-leafed plants like wheat. Unfortunately, alfalfa and other broad-leafed crops are also susceptible to the killing effects of this herbicide. Defendant was well aware of this danger and for that reason he testified he was careful to have his pilot apply the spray at such time and in such manner that it would not fall or drift westward onto the alfalfa field.

Defendant was not present during the spraying. Defendant's pilot, Vann, testified he applied one pound of 2-4D low volatility Ester mixed with one-half gallon diesel oil per acre to the seventy-acre wheat crop. He flew a north-south pattern beginning at the eastern edge of the wheat field and working west. Though no flagman was employed by defendant to signal the pilot when and where to begin and cease spraying, he testified he did not pass over the alfalfa field because to do so he would have had to maneuver the plane over or under a wire. The pilot testified he could see the boundaries of the wheat field clearly and did not need a flagman; that he applied the spray mixture from an average altitude of four to six feet; and that he periodically checked the wind direction and the spray did not drift over plaintiffs' alfalfa field.

The parties stipulated that federal government weather reports from Hays and Russell airport weather stations were proof of weather conditions during and subsequent to the spraying. The weather reports reflect the wind remained constant out of the southwest all of June 19, 1969, the day the spray was applied; and that by 7:00 a. m. June 20, 1969, the wind had shifted from southwest to northeast, continued to shift to the east, and by night was again blowing from a southerly direction. Wind blew across the newly sprayed wheat toward plaintiffs' alfalfa for at least part of that period. Experts testified the spray mixture on the wheat could reasonably be expected to give off fumes for two or three days after application of such a strong mixture of 2-4D. Plaintiffs contend fumes from the evaporating spray drifted on the wind from the wheat field onto the alfalfa field and killed the plants. They contend defendant was negligent in applying such a strong mixture of a violatile herbicide knowing the wind might shift before it was completely evaporated and blow fumes onto adjoining crops.

Plaintiff Alois Binder testified he noticed the alfalfa plants wilting on June 23, 1969, and suspected spray or chemical damage even though unaware the Ruders' field had been sprayed. After determining no one else had sprayed in the area, plaintiffs notified defendant of the injury to their alfalfa on June 24, 1969. Plaintiffs cut the standing alfalfa on June 25, 1969, to attempt to mitigate the effects of the 2-4D on the roots of the plants. Agronomy experts testified the alfalfa had no blight or other disease which would have caused its deterioration. The alfalfa was two weeks from maturity of the second crop and no more crops were harvested during 1969. Plaintiff Robert Binder testified alfalfa plants covering two-thirds of the field eventually died or were badly damaged with heaviest damage adjacent to the Ruders' wheat field, and they plowed under the alfalfa because one-third of the five and one-half acre field was not an economically productive unit. Plaintiffs planted milo in the field in 1970, but did not plant a crop in 1971 and instead controlled weeds to conserve moisture in the soil. Alfalfa was seeded in the fall of 1972 and light yields were expected by 1973 and 1974. Plaintiffs estimated their losses in 1970, 1971, 1972, 1973, and 1974 at $677 per year and half that for 1969. Their evidence of damages amounted to $3,113.97, but their petition was for $2,500 plus costs and the court so limited the judgment.

The issues raised by defendant's points on appeal are basically these: (1) Whether the court applied the proper law of standard of care to defendant's aerial spraying activities; (2) whether plaintiffs have standing to bring a cause of action for all damages sustained to the leased property; and (3) the proper measure of damages to crops and perennial plants.

On the question of defendant's liability and the standard of care applicable to an aerial sprayer of herbicides, the court found:

'The degree of care must be equal to the danger involved. 2-4D is a dangerous instrumentality. It destroys certain types of growing plants on contact, including alfalfa.

'Handling of 2-4D is a hazardous activity for this reason, and one handling 2-4D has the duty to prevent its escape so as to cause such damage.

'The evidence shows that here there was a high concentration of 2-4D and in a preparation resulting in a high degree of volatility to be applied to weeds of large and advanced growth and on a field of wheat headed out and within about a week of the time of harvest, all conditions which would further tend to prolong the evaporation period.

'The evidence shows conditions under which this evaporation and escape of 2-4D could reasonably be expected to continue for two days and more after application.

'The defendant knew the position of plaintiff's alfalfa field. The evidence showed the wind changed within 24 hours to East of North and continued briskly from the East for another 24 hours and more. And in Kansas, that should reasonably have been expected.

'The court finds from a preponderance of evidence the defendant negligently permitted the 2-4D to escape from the Ruder land where applied by defendant into contact with the plaintiffs' growing alfalfa, and this was the proximate cause of destroying the plaintiff's alfalfa field.'

The standard of care required of one who engages in aerial spraying of chemicals is a question of first impression for this court. In Hall v. Pioneer Crop Care, Inc., 212 Kan. 554, 512 P.2d 491, a cause of action in trespass...