Henderson v. Cominco American, Inc.

• Decision Date: 16 October 1973
• Docket Number: No. 10779,10779
• Citation: 518 P.2d 873,95 Idaho 690
• Parties: Walter L. HENDERSON et al., Plaintiffs-Respondents, v. COMINCO AMERICAN, INCORPORATED, a Washington corporation, and FMC Corporation, a Delaware corporation, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 873

518 P.2d 873

95 Idaho 690

Walter L. HENDERSON et al., Plaintiffs-Respondents, v. COMINCO AMERICAN, INCORPORATED, a Washington corporation, and FMC Corporation, a Delaware corporation, Defendants-Appellants.

No. 10779.

Supreme Court of Idaho.

Oct. 16, 1973.

Rehearing Denied Feb. 7, 1974.

John L. Runft, Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, for defendants-appellants

Langroise, Sullivan & Smylie, Boise, for plaintiffs-respondents.

McFADDEN, Justice.

This case arises from an action for damages resulting from the application of a herbicide, Sinox PE, in 1967, to peppermint fields of Walter L. Henderson and Darrel Olsen (plaintiffs-respondents). ¹ Henderson and Olsen purchased Sinox PE from Crop-Serv Company of Nampa, Idaho, an outlet for Cominco American, Inc. (one of the defendants-appellants, hereinafter Cominco). Cominco had, in turn, obtained the Sinox PE from its manufacturer and developer, FMC, Inc., a Delaware corporation (the other defendant-appellant).

Henderson and Olsen farmed neighboring property in Ada County. Their land is a loam soil suitable for growing a wide variety of agricultural crops. Henderson first planted peppermint in 1961 and gradually increased his acreage to 170 acres in 1967. Olsen planted eighteen acres, his first crop during the fall of 1966 and the spring of 1967.

Like other peppermint growers Henderson and Olsen faced problems of weed infestation in their peppermint crops. If not controlled or eradicated weeds could crowd out the peppermint and diminish the crop yield. Also, some weeds taint the flavor of the peppermint oil. Prior to 1967 Henderson had employed mechanical cultivation, manual labor, geese, and even sheep to control weeds. Henderson found that these methods were not entirely satisfactory. In the spring of 1967 Henderson contemplated using a herbicide on his peppermint and discussed the matter with Kenneth Jenkins, an employee of Cominco. Jenkins recommended Sinox PE as an effective herbicide over competing brands and told him that Sinox PE had been successfully used on peppermint crops in Washington and Oregon. Jenkins advised that although Sinox PE was a pre-emergent herbicide, it could be applied after the mint sprouted with minimal harm to the mint but with effective weed control.

As a pre-emergent herbicide Sinox PE is applied to the soil's surface before annual weeds emerge; as the weeds emerge and contract the herbicide, it destroys the plant tissue. Thus, Sinox PE destroys only what it touches. If the herbicide contacted the leaf or stem of a plant, it would not translocate down into the root. In contrast, a hormonal herbicide translocates throughout the entire plant and destroys the entire plant. Sinox PE was designed to control only annual broadleaf weeds and grasses. Henderson admitted that his peppermint fields were infested with perennial weeds, morning glory and Canadian thistles; and Olsen admitted that alfalfa, a perennial, infested his fields.

On April 3, 1967, Henderson purchased Sinox PE from Crop-Serv Company and sprayed one application on his peppermint crop during early April until early May, 1967, except for a one and one-third acre plot to which he applied a test herbicide, Sinbar, manufactured by Dupont Chemical Company. Jenkins then talked to Olsen and encouraged him to use Sinox PE also. Besides the instructions and warning appearing on the containers and in the pamphlets, there was a disclaimer in prominent red print on the container notifying the purchaser of risks inherent in the use of Sinox PE. Neither man read this disclaimer. Also, both men admitted they were ignorant about Sinox PE's chemical properties.

Olsen purchased some and sprayed his peppermint with it around the 24th or 25th of April, 1967. Both Henderson and Olsen applied Sinox PE to their peppermint in the same proportion (1 1/2 gallons of herbicide in 40 gallons of water per acre) with Henderson's equipment. Jenkins advised them to apply 1 1/2 gallons of Sinox PE to 30 gallons of water per acre; both applications conformed to mixing instructions on the containers and accompanying instruction pamphlet. Neither man read anything more than the mixing proportions, although there were usage cautions concerning moisture, temperature and soils on the container labels and in the pamphlet. Even though they used the same sprayer, it is not known whether they used the machine in the same manner or how the sprayer was calibrated.

After his first application of Sinox PE Henderson discovered that there was unsatisfactory weed control in one of his fields. At Henderson's request Jenkins inspected the field. Henderson inquired if he should spray the field again, but Jenkins told him to check with personnel from the company. Within a few days after this inspection Jenkins brought a chemist, McCollum, from Niagara Chemical Company, a division of Cominco, to check Henderson's field. As a result of this inspection they recommended that Henderson put another application of Sinox on the 37 acre field in the same proportion as the first spraying. Around May 22, Henderson sprayed the 37 acre field with Sinox PE for the second time. On June 12, Jenkins and McCollum, again, along with Nylander and Jackson, visited the 37 acre field to check the weed control. Nylander and Jackson were both employees of Niagara Chemical Company; Nylander was a sales representative and Jackson was a chemist. During this inspection Jenkins noticed some peppermint plants which appeared to be dying. Upon examining these plants he found that they had a 'black ring around the root and above the black ring upward it was turning yellow and darkening.'

When Henderson harvested his mint crop in 1967, seventy-five acres out of one hundred seventy acres were barren. Olsen lost the entire crop on a thirteen acre field which he had planted in the spring of 1967; on his remaining five acres which he had planted in the fall of 1966 he harvested a reduced yield of thirty-one pounds of mint oil per acre. Somewhat inconsistent with Henderson's and Olsen's loss is the fact that Henderson's thirty-seven acre field which had double application of Sinox PE was not barren, although it produced a diminished yield of mint. On the basis of these crop yields Henderson and Olsen instituted this action against Cominco and FMC for damage to their peppermint crops from the application of Sinox PE.

Both Henderson and Olsen filed separate complaints alleging breach of express and implied warranties and negligence against Cominco and alleging negligence and strict liability against FMC. By order of the district court the complants were combined into one action alleging the following counts against Cominco: (1) breach of express warranty; (2) breach of implied warranty of fitness for a particular purpose; (3) breach of implied warranty by description; and (4) negligence for failure to test the product in the local area of application. Against FMC the combined action alleged: (1) negligence for failure to test the product in the local area of application and (2) strict liability in tort based upon the existence on a defect in the product. Henderson prayed for damages against Cominco and FMC in the amount of $101,968.75 including interest while Olsen The appellants have assigned numerous errors in the trial court proceedings. We believe the principal, determinative issues are: contributory negligence and actual cause. Both the these issues are common to products liability actions grounded in warranty or in negligence.

prayed for damages in the amount of $12,412.25. The case was tried before a jury. At the close of Henderson's and Olsen's case the defendants, Cominco and FMC, moved for an involuntary dismissal of all counts against defendants under I.R.C.P. 41(b). The district court granted the motion as to counts three and four of plaintiff's combined action against Cominco and to count two against FMC. At the close of the presentation of their case the defendants renewed their motion for an involuntary dismissal under I.R.C.P. 41(b) and for a directed verdict under I.R.C.P. 50(a). The district court denied these motions as to Henderson and Olsen. The jury returned a verdict of $41,682.95 in favor of Henderson and of $6,359.71 in favor of Olsen, and the district court entered judgment for those amounts. The appellants then moved for a judgment n. o. v., or in the alternative, for a new trial which the district court denied. From the judgment entered in favor of Henderson and Olsen, Cominco and FMC appealed.

CONTRIBUTORY NEGLIGENCE

There is little doubt that contributory negligence is a defense to a products liability action founded solely on negligence. This is true even where the plaintiff negligently failed to discover a defect in the product or where the plaintiff negligently failed to guard against its existence. See, Prosser, Handbook of the Law of Torts, § 103 at p. 670 (4th ed. 1971); 1 Hursh, American Law of Products Liability, § 2.121 (1961); Noel, D. W., Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk, 25 Vand.L.Rev. 93, 112 (1972).

Unfortunately, the law is in confusion and flux regarding the effect of plaintiff's negligence on products liability actions founded on breach of warranties. A good deal of this confusion results from disagreement concerning the correct label to bestow on plaintiff's behavior. The leading commentator analyzes the cases as follows:

'Where the negligence of the plaintiff consists only in failure to discover the danger in the product, or to take precautions against its possible existence, it has uniformly been held that it is not a bar to an action for breach of warranty. Thus if he eats a wormy candy bar, or drives negligently on a defective tire, without being aware of the defect, his recovery is not barred, even though he ought to have discovered it. This is entirely consistent with the rule applied to other strict liability...