Ebers v. Gen. Chem. Co.

• Decision Date: 02 January 1945
• Docket Number: no. 6.,6.
• Citation: 310 Mich. 261,17 N.W.2d 176
• Parties: EBERS v. GENERAL CHEMICAL CO.
• Court: Michigan Supreme Court

310 Mich. 261

17 N.W.2d 176

EBERS

v.GENERAL CHEMICAL CO.

no. 6.

Supreme Court of Michigan.

Jan. 2, 1945.

Appeal from Circuit Court, Kent County; William B. Brown, judge.

Suit by Walter H. Ebers against General Chemical Company to recover for damages resulting from injuries to plaintiff's trees treated with a chemical purchased from defendant. From a judgment for defendant, plaintiff appeals.

Reversed and new trial granted.

Before the Entire Bench.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for plaintiff and appellant.

Warner, Norcross & Judd, of Grand Rapids, and Butzel, Eaman, Long, Gust & Kennedy, of Detroit, for appellee.

STARR, Chief Justice.

Plaintiff is a fruit farmer in Kent county. Defendant manufactures and sells insecticides and other chemical products. In 1938 it began the manufacture of ethylene dichloride emulsion, which it sold and distributed under the trade name of E-D-E. This product was for the destruction and control of the peach tree borer, an insect whose larvae kill or damage peach trees by feeding on the cambium or inner-bark tissues of the tree. In the fall of 1940 plaintiff purchased from dealers in Kent county 30 gallons of E-D-E and applied it to about 1,700 peach trees. In 1941 over 400 of these trees died or were materially injured.

In December, 1941, plaintiff began the present suit for damages, alleging that said E-D-E caused the tree injuries; that defendant gave improper directions for its use and application; and that defendant was negligent in placing said product on the market in Michigan without first making field tests in this State to determine whether or not, under existing climatic and soil conditions, it would injure peach trees. He also alleged that the product was sold under an implied warranty by defendant that it was fit for the uses and purposes intended and would not injure peach trees. Defendant answered, disclaiming any warranty and denying the charge of negligence on its part. At the conclusion of all proofs defendant's motion for a directed verdict was granted and judgment was entered in its favor. Plaintiff appeals. In considering an appeal from a judgment entered on directed verdict for defendant, we view the testimony in the light most favorable to plaintiff. Brown v. Standard Oil Co., 309 Mich. 101, 14 N.W.2d 797;Lebovics v. Howie, 307 Mich. 326, 11 N.W.2d 906.

It appears that in 1933 the bureau of entomology and plant quarantine of the United States department of agriculture began experimenting with the chemical, ethylene dichloride, for the control of peach tree borer, and for several years conducted experiments with such chemical in the peachgrowing sections of Georgia, New York, Illinois and other States. However, no experiments or field tests were made in Michigan. In March, 1938, the department issued its bulletin No. E-424 entitled ‘Ethylene Dichloride Emulsion for the Control of the Peach Borer.’ This bulletin, which was prepared by Oliver Snapp, entomologist in charge of the department's peach insect station at Fort Valley, Georgia, recommended said emulsion for the control of peach tree borers and gave directions for its use. In the same year, 1938, defendant began the manufacture and distribution of E-D-E, which was composed of ethylene dichloride, potash fish-oil soap, and water. It made laboratory tests of such product, but did not make field tests on peach trees, although it had its own facilities to do so. It prepared the product in reliance upon and in accordance with the formula and instructions of the United States department of agriculture. Defendant's senior research chemist testified in part:

‘I was in charge of the development work at the Camden plant when the ethylene dichloride emulsion that defendant put out under the trade name of E-D-E was first developed and produced. * * * We proceeded to make up the E-D-E, based on Dr. (Oliver) Snapp's original formula. * * *

‘We made the material in a solution that had 85 per cent. dichloride, and we had the same amount of soap present * * * as indicated in the formula recommended by Dr. Snapp. * * *

‘Our formula (dilution tables) for the use of the farmer was * * * based on the strength of our solution, so that the resultant diluted emulsion would be identical with that recommended by Dr. Snapp. * * *

‘In 1939 we put out in round numbers 18,000 gallons of 85 per cent. Emulsion. * * *

‘The new product was put out as a 90 per cent. solution, in the fall of 1940. That meant it had 90 per cent. ethylene dichloride present by volume instead of 85 per cent. * * *

‘That necessarily changed slightly the formula or table of dilution strengths. * * *

‘With respect to the 90 per cent. Solution, if it is used in exact accordance with our formulas that we publish in our literature, it will produce the final solution exactly in accordance with the recommendations of Dr. Snapp. * * * We continued to sell it in 1941 until we were unable to obtain any further quantities of raw material. * * *

‘It (E-D-E) was put out on the market on the original basis of information from Mr. Snapp's department, and without any tests being made by the General Chemical Company or its agricultural department, as far as I know. * * *

‘Ours is * * * just about the largest chemical company in the United States. * * * It has the means to test insecticides, if it so desires. They have fields equipped for testing, and access to growing peach trees if they want to test these things out.

‘The only basis for putting this on the market was the information we got from Washington, from the original report of Dr. Snapp.’

The manager of agricultural chemicals reseach and development for defendant company testified in part:

‘In recommending * * * putting this emulsion (E-D-E) into production, our company did not make any preliminary tests on peach trees * * * prior to offering the product for sale. I relied entirely upon the recommendations of the bureau of entomology of the United States department of agriculture. * * *

‘I have means of making tests and experiments in the use of these insecticides. We have places * * * where tests could be made. * * * I have no knowledge at all of any tests having been made in Michigan, prior to the time that we put this on the market. * * * I know that this insecticide is of such a character that it may kill trees, if used contrary to recommendations. * * *

‘I had heard rumors, as early as the summer of 1940 that this ethylene dichloride had been damaging fruit trees from Virginia north * * * and in our own State, in Delaware. Having these rumors * * * we didn't take any steps to prevent it going out on the market, because we believed then as we believe now that it was a proper product, and if used according to the formula recommended, it will do the job, and not cause tree injury.’

In 1938 defendant prepared and distributed an advertising pamphlet which read in part:

‘E-D-E

‘Kills Peach Tree Borers Safe, Economical Way

‘Orchard brand E-D-E brings to the peach grower, in convenient form, a new, safe and economical control for peach tree borer. Its effectiveness and relative simplicity recommend it to all growers of peaches in preference to the old methods for controlling this destructive insect. Its main and active ingredient is ethylene dichloride. Ethylene dichloride emulsion has been recommended by the U. S. department of agriculture for the control of the peach tree borer and the following directions given for application.

‘When and How to Apply

‘(Quoted from Pub. E424 U. S. bureau of entomology and plant quarantine) * * *

‘The emulsion can be applied either by spraying or pouring. The quantity should be regulated rather closely, since applications much in excess of the recommended dosage may cause tree injury. Applications are made by wetting the soil immediately surrounding the tree, and the lower part of the trunk should receive some of the material during the treatment. No preparation of the soil before treatment is necessary on loose, level ground. In some cases, however, cupping the soil slightly toward the tree trunk to prevent the liquid from running off, or loosening the soil around the tree sufficiently to permit the liquid to be readily absorbed, will give better results. Several shovelfuls of soil should be placed against the trunk of the tree after treatment to prevent surface loss of the fumigant. The treatment requires no later attention. * * *

‘Kill the Peach Tree Borer Before It Kills Your Trees

‘Use the original E-D-E The uniformly safe and efficient control for peach tree borer. * * *

‘The foregoing information is supplied by us gratuitously and is believed to be reliable and of value, but is in no way guaranteed. The use of this material being beyond our knowledge and control and involving elements of risk to vegetation, we do not make any warranty, express or implied, as to the effects of such use, whether or not in accordance with directions or claimed so to be.’

In 1940 the representative of a retail dealer handling defendant's products in Kent county gave plaintiff a copy of its above-mentioned pamphlet advertising E-D-E, and after reading the pamphlet, plaintiff purchased 30 gallons of said product. He testified that in the first week of November, 1940, he prepared the ground around the trees, diluted the E-D-E with water, and applied it according to the directions in defendant's pamphlet. He said:

‘We put a certain portion of it on the trunks of all the trees.’ In 1941 over 400 of the 1,700 trees to which E-D-E had been applied, died or were materially injured. Plaintiff testified that examination of the injured trees indicated that the bark on the trunks was burned. He said:

‘The trees we cut into where we had used this E-D-E looked as though it had been burned right around the base of the tree and showed the browning of the bark; the bark was brown, burned-like, and dead, some of them all the way around, and others would be half, two-thirds of...