Brown v. Sioux City

• Decision Date: 13 November 1951
• Docket Number: No. 47967,47967
• Parties: BROWN v. SIOUX CITY.
• Court: Iowa Supreme Court

Page 853

49 N.W.2d 853

242 Iowa 1196

BROWN v. SIOUX CITY.

No. 47967.

Supreme Court of Iowa.

Nov. 13, 1951.

Kindig & Beebe, of Sioux City, for appellant.

George F. Davis, of Sioux City, City Solicitor, for appellee.

MULRONEY, Justice.

C. A. Brown sued the city of Sioux City alleging in his petition that in 1948 he rented certain property located at the municipal airport for the purpose of maintaining and establishing colonies of bees thereon; that in August of that year the city was negligent in spraying the airbase property with a poisonous substance called chlordane so that his bees were sprayed and the bees picked up the poisonous substance on their bodies and carried it back to the bee colonies with the result that his bees died, his honey was permeated with the poisonous substance and rendered unfit, and the hives also were rendered unfit for further use. His petition alleged that the city operated the Sioux City Airbase in its proprietary capacity. At the conclusion of the evidence the trial court submitted the questions of defendant's negligence, plaintiff's freedom from contributory negligence, and whether defendant was acting in a governmental or proprietary capacity to the jury. After verdict for plaintiff for $1500 the trial court sustained defendant's motion for judgment notwithstanding verdict on the ground 'that the operation of the airbase was a governmental function; that the farming operation in connection therewith was but an incident thereto.' Plaintiff appeals.

I. Defendant argues as it had a right to do that another ground of its motion, insufficiency of the evidence to support the verdict, was good and this would support the trial court's ruling. Since this involves a review of the evidence, we will take it up first and pass for the moment the question of defendant's governmental or proprietary capacity.

Plaintiff has been engaged in the business of handling bees for thirty years. It is admitted by defendant that in the year 1947 plaintiff rented a plot of about 3 acres of airbase property for the purpose of placing bee hives thereon at an annual rental of $25.00. He rented the plot from the airbase manager and plaintiff testified he renewed the lease for the year 1948. The defendant denies the renewal but the evidence on this point amounts to no more than a conflict which, for the purpose of the motion, will be resolved in favor of plaintiff and it is clear plaintiff was occupying the plot with his hives which were visible from the manager's office during the entire year 1948. There was sufficient testimony to support a finding that a tenant and landlord status existed between plaintiff and defendant in August of 1948.

Defendant's answer admits 'that the Sioux City Airbase property was sprayed some time in August of 1948 with a substance designed to kill grasshoppers.' It is established by the evidence that the substance was chlordane. The strips between the runways, which were planted to Brome grass and possibly sweet clover, were sprayed by the city and there is evidence that the farmers who rented the farm land in the 'approach zone' area of the airbase property sprayed their land. There were nine or ten farm tenants who leased their farms from the city and farmed on a fifty-fifty basis. They obtained the chlordane spray from the city warehouse paying for one-half of what they took. Possibly in view of the pleading admission we need not explore the question of whether the farmers were the city's agents in the spraying of the land they occupied. But the evidence as to whether the bees died before or after the farmers sprayed is a little confusing. At one point plaintiff testified 'spraying was not done by the tenants on the farm in the summer of 1948.' He said he saw the city's jeep-type spray operating within a hundred or two hundred feet of his grove spraying the runways and an old graveled road and that the first time he noticed anything wrong with his bees was right after this spraying. The bees started dying and plaintiff testified the chlorine in the spray 'causes a paralysis and they go in circles like they are drunk.' He had his honey tested and the chemist testified it contained a 'heavy, abnormal concentration of chlorine' rendering it unfit for use. This chemist also testified 'chlordane is an insecticide that kills insects and bees.'

Plaintiff stated the bees have a flight radius of three to four miles but they do not ordinarily go that far--that their 'flights generally are in the direction where most of the clover or nectar bearing plants are situated.' He said: 'I talked to all the people in the bottom near the flight of the bees and talked with the farmers to see if they were spraying. No one was using chlordane other than the base.'

While the evidence is not too clear on some points we believe it was sufficient to warrant a finding that the plaintiff's bees died and the honey was spoiled and the hives damaged by defendant's spraying operation. Most of this evidence was uncontroverted. There is no evidence that defendant sprayed the plot rented by plaintiff. But a cause of action exists in favor of the tenant and against the landlord when the tenant is damaged in his occupation by the landlord's use of the property retained by him. In 51 C.J.S., Landlord and Tenant, § 319, page 995, the rule is stated: 'The landlord is bound not only to take reasonable care in the user of land retained by him not to cause damage to the tenant in his occupation of the part leased, but also to refrain from disturbing the possession and enjoyment of the premises leased by such operations, irrespective of the question of his negligence.'

Since the verdict has been eliminated and judgment entered for defendant on direction the question presented is whether there was any view of the case on which plaintiff should have been allowed to go to the jury. In Par. 10 of plaintiff's petition it is alleged the city was negligent (a) in failing to notify plaintiff of its intention to spray the premises with a poisonous substance, which premises were being worked by the bees, (b) in spraying a poisonous substance on vegetation which was being worked by the bees, and (c) in knowingly depositing poisonous substance which it knew, or by the exercise of reasonable caution should have known, would cause the death of plaintiff's bees. In Par. 11 plaintiff alleged the city owed a duty to refrain from spreading poison at a time and place when it would injuriously affect property of its tenants without notifying him so he would have an opportunity to remove his colonies of bees from the area. Par. 12 alleges 'that as a result of the acts of negligence and omission as above set forth' plaintiff was damaged. The evidence as to damage, including the loss of bees, equipment and 6000 pounds of honey totaled a valuation of $3700.

The petition here, like the petition in Paltey v. Egan, 200 N.Y. 83, 93 N.E. 267, sets forth a cause of action based on negligence. It may be plaintiff, by his petition, has restricted the landlord's liability. At least it pleads a case based on the landlord's duty to use reasonable care and prudence in the use of the land retained, not to injure the tenant in his use of the premises he rents. We hold the evidence established a cause of action based upon negligence for the consideration of the jury. The case was submitted to the jury on the theory of negligence.

We do not deem it necessary in this case to treat at length the interesting subject of a person's responsibility for the use and control of poisons. General rules pertaining thereto are treated in various texts. Among them are 72 C.J.S., Poisons, § 5. See also S. A. Gerrard Co., Inc., v. Fricker, 42 Ariz. 503, 27 P.2d 678 and Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260, 1262. The cited cases involve the loss of bees resulting from the dusting or spraying operation of an adjoining landowner but in each case there was evidence the dust or spray reached the apiary. They are of some interest here merely because they announce the rule, as stated in the Miles case: '* * * that, in itself, dusting vegetables to kill pests that prey upon them is a necessary and lawful operation which the owner of the vegetables may perform * * *. However, he should not do the dusting, or have it done, under conditions which would indicate to a reasonably prudent person that damage to his neighbor would result.'

The relationship of landlord and tenant was not present in the above cases. With that relationship present between the parties the duty of the landlord is, as we have stated, at least a duty to use reasonable care and prudence in his use of the land adjacent to the rented premises to the end that his tenant be not damaged in his occupancy. 51 C.J.S., Landlord And Tenant, § 323, page 1010; Boyer v. Commercial Bldg. Inv. Co., 110 Iowa 491, 81 N.W. 720; Underhill v. Motes, 158 Kan. 173, 146 P.2d 374; White v. Splawn, 16 Wash.2d 296, 133 P.2d 298.

In the Boyer case [110 Iowa 491, 81 N.W. 722] the plaintiff who rented a room in defendant's building sued the landlord for damages caused by acts of the latter in the basement heating room that caused the rented premises to become uncomfortable. The opinion holds the one question in the case was: 'Did the defendants, after plaintiff took possession, do anything to disturb his (tenant's) possession, or interfere with his enjoyment and use of the premises'. And the opinion goes on to hold:

'The landlord, without being guilty of an actual, physical disturbance of the tenant's possession, may yet do such acts as will justify the tenant in leaving the premises. If he does not leave, yet he may have an action for damages. Keating v. Springer [146 Ill. 481, 34 N.E. 805, 22 L.R.A. 544].'

The case of Underhill v. Motes, supra [158 Kan. 173, 146 P.2d 376], is much like this case on the facts. There defendants leased pasture land to plaintiffs for the purpose of pasturing cattle...