Evans v. Boyle Flying Service, Inc., 93-CA-00523-SCT

• Decision Date: 12 September 1996
• Docket Number: No. 93-CA-00523-SCT,93-CA-00523-SCT
• Parties: Bill EVANS, Edward McCain, Barbara Fleming, Peacock Tree Surgery, Inc., and Carl Perry v. BOYLE FLYING SERVICE, INC.
• Court: Mississippi Supreme Court

Page 821

680 So.2d 821

Bill EVANS, Edward McCain, Barbara Fleming, Peacock Tree Surgery, Inc., and Carl Perry v. BOYLE FLYING SERVICE, INC.

No. 93-CA-00523-SCT.

Supreme Court of Mississippi.

Sept. 12, 1996.

Willard L. McIlwain, Jr., Greenville, for appellants.

Edwin W. Tindall, Lake Tindall & Thackston, Greenville, for appellee.

Before DAN LEE, C.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

INTRODUCTION

This case involves the interpretation of Miss.Code Ann. § 69-21-123. ¹ Specifically, the case involves the timing and manner by which notice is to be given when spray-drift damage occurs due to suspected negligent application of chemicals by a cropduster. The trial court, in granting summary judgment, held that the notice requirement was intended to mean written notice, not oral notice, within sixty days. The trial judge did not rule on when the sixty-day time limitation should begin to run. Alternatively, the trial court ruled that even if it were to presume that the plaintiffs had given notice orally when alleged, the testimony supporting the date on which they gave the alleged oral notice was still so uncertain and speculative that no legitimate or reasonable inference exists to suggest that they nevertheless gave oral notice within the time limitation prescribed by § 69-21-123. Therefore, the trial court granted the defendant's motion for summary judgment.

Appeal was taken by the plaintiffs who allege that the trial court's interpretation of the statute was erroneous. The Court finds that the trial court was both right and wrong. The trial court was correct in holding that all notices should be in writing and that these plaintiffs had failed to do so timely, but incorrect in apparently holding that the sixty day notice-of-claim provisions began to run on the date they negligently sprayed the chemicals. Given the facts of this particular case, the Court finds that the trial court must be affirmed, but takes this opportunity to address the unanswered questions of law now properly before the Court.

STATEMENT OF THE CASE

The procedural history of this case began on or about October 2, 1991, with the filing of the complaint for damages to the plaintiffs' trees because of alleged spray-drift from the aerial application of chemicals to a neighboring farmer's crop fields. The defendant answered the complaint on September 1, 1992, denying any liability, and subsequently filed a motion for summary judgment on September 2, 1992. The plaintiffs responded to the summary judgment motion on September 23, 1992. However, after reviewing all of the evidence presented to the trial court, the Honorable Elzy Smith granted the defendant's motion for summary judgment finding that there were no genuine issues of material fact, and particularly because the plaintiffs had failed to comply with the notice requirements of Miss.Code Ann. § 69-21-123.

Aggrieved by the lower court's ruling, appellants perfected their appeal requesting review of the following issues.

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE NOTICE REQUIREMENT ENCOMPASSED WITHIN SECTION 69-21-123 OF THE MISSISSIPPI CODE REQUIRES WRITTEN NOTICE.

II. WAS MR. MOORE'S TESTIMONY SO UNCERTAIN AND SPECULATIVE AS TO JUSTIFY TAKING THE CASE AWAY FROM THE JURY AND GRANTING SUMMARY JUDGMENT ON THE BASIS THAT HIS TESTIMONY WOULD BE SPECULATIVE AND UNCERTAIN. ²

III. DOES THE LANGUAGE IN SECTION 69-21-123 WHICH STATES THAT "NOTICE TO THE LANDOWNER MUST BE GIVEN WITHIN SIXTY (60) DAYS AFTER THE DATE THE DAMAGE OCCURRED" REFER TO FROM THE DATE OF SPRAYING OR FROM THE DATE THE DAMAGE CONTINUES TO OCCUR.

STATEMENT OF THE FACTS

The facts of this case began on or about April 12 and 13, 1990, when the defendant, Boyle Flying Service, sprayed a chemical known as "Gromoxone" (paraquat) near the plaintiffs' property. As a result of having been exposed to Gromoxone, the plaintiffs' trees became diseased. The primary dispute and defense revolve around when does the time for the statutory notice requirement of Miss.Code Ann. § 69-21-123 begins to run.

The plaintiffs maintained that they did not notice the damage from the Gromoxone until late May and early June. Therefore, plaintiff McCain contacted the County Agent for Bolivar County, Mississippi, Joe Love. Joe Love in turn put Bobby Moore (hereinafter Moore), the State Plant Board Inspector for the area, in contact with the plaintiff. Moore alleged that he conducted an investigation into the plaintiffs' trees sometime in late June of 1990, and concluded that Mr. Peacock's, McCain's and Evans' trees had been exposed to Gromoxone. Moore ultimately determined that the source of the chemical drift was at least one of the neighboring areas sprayed by Boyle Flying Service for Joe Wayne Reed.

The plaintiffs did not contact Boyle Flying Service or Joe Wayne Reed during the time frame when Moore was conducting his investigation because they thought Moore would do so during the course of his investigation. Moore stated in his deposition that he did not have any recollection of any inspection for the plaintiffs in his notes, but remembered that he physically went to inspect their trees in late June. Moore's records did not actually reflect any contact with any of the plaintiffs until Mr. Peacock was contacted and investigated on September 11, 1990. Thus, Moore was uncertain as to when he may have given the defendant notice, which the defendant completely denied having received.

Moore subsequently decided that the plaintiffs should fill out the necessary plant damage claim forms provided by the state. Moore assisted Evans, McCain, Fleming, and Peacock, who completed these forms in November and December of 1990. Specifically, Evans' and McCain's damage forms were filed on November 26, 1990. Fleming's and Peacock's damage forms were filed December 3, 1990. Therefore, it was not until November and December that written notice was given by the plaintiffs asserting their claims. Plaintiff Carl Perry never submitted any such written notice as mandated by the statute in question, and thus never properly became a plaintiff.

It was alleged by the defendant, and held by the trial judge, that the filing of the plaintiffs' forms were essentially too late. Taking issue with the trial judge's interpretation of when and what type of notice requirement can fulfill the statutory requirements, the plaintiffs appealed.

DISCUSSION OF ISSUES ³

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE NOTICE REQUIREMENT ENCOMPASSED WITHIN SECTION 69-21-123 OF THE MISSISSIPPI CODE REQUIRES WRITTEN NOTICE.

II. WAS MR. MOORE'S TESTIMONY SO UNCERTAIN AND SPECULATIVE AS TO JUSTIFY TAKING THE CASE AWAY FROM THE JURY AND GRANTING SUMMARY JUDGMENT ON THE BASIS THAT HIS TESTIMONY WOULD BE SPECULATIVE AND UNCERTAIN.

III. DOES THE LANGUAGE IN SECTION 69-21-123 WHICH STATES THAT "NOTICE TO THE LANDOWNER MUST BE GIVEN WITHIN SIXTY (60) DAYS AFTER THE DATE THE DAMAGE OCCURRED" REFER TO FROM THE DATE OF SPRAYING OR FROM THE DATE THE DAMAGE CONTINUES TO OCCUR.

The statute in question reads as follows.

Miss.Code Ann. Section 69-21-123. Action for damages against applicator; statement to Department of Agriculture and Commerce; notice of claim.

Any person, firm, or corporation having a right of action against an applicator, person, firm, association or corporation, or any other person, may bring suit against them or either of them for any damages caused by their negligence of the aerial application regulated by the Agricultural Aviation Board, but in no event, however, shall a surety be named in or made a party to such action. No action for such damages may be brought or maintained, however, unless the person claiming the damages shall have filed with the Mississippi Department of Agriculture and Commerce, a written statement claiming that he has been damaged, on a form prescribed by the Mississippi Department of Agriculture and Commerce, within sixty (60) days after the date that the damages occurred and prior to the time that twenty-five percent (25%) of a crop damaged shall have been harvested in the event claim concerns a crop. Such statement shall contain, but shall not be limited thereto, the name of the person or persons who operated the aircraft, if known, the permit number of the aircraft, if known, the name of the owner or lessee of the land on which the crops are grown and for which damages are claimed, and the date on which it is alleged that the damage occurred. The Mississippi Department of Agriculture and Commerce, is required to prepare a form to be furnished to persons to be used in such cases, and such form shall contain such other requirements as the Mississippi Department of Agriculture and Commerce may deem proper. The Mississippi Department of Agriculture and Commerce, shall, upon receipt of such statement, notify the licensee and/or operator of the aircraft, and the owner or lessee of the land or other person who may be charged with the responsibility for the damages claimed, and furnish copies of such statements as may be requested. However, notwithstanding any other provisions of this article, any person claiming damages hereunder may give notice to the landowner or lessee of the treated crop claiming that he has been damaged within sixty (60) days after the date that the damage occurred and prior to the time that twenty-five percent (25%) of a crop damaged shall have been harvested in the event claim concerns a crop, which said notice shall preserve said persons, claiming damages, cause of action.

(Emphasis added)

SOURCES: Codes, 1942, § 5011-13; Laws, 1966, ch. 239, § 13; 1972, ch. 369, § 12; 1980, ch. 482, § 8; reenacted, 1983, ch. 304, § 12; reenacted, 1991, ch. 391, § 12; 1991, ch. 530, § 14, eff from and after July 1, 1991.

As this is a matter of statutory construction, the defendant offers McCullen v. State, 217 Miss. 256, 63 So.2d 856, 861 (1953), for guidance on how we should...