Johnson v. Monsanto Co.
| Citation | 303 N.W.2d 86 |
| Decision Date | 24 February 1981 |
| Docket Number | No. 9861,9861 |
| Parties | Craig JOHNSON and Fargo National Bank & Trust Company, Trustee for Richard Fox Trust, Plaintiffs/Appellees, v. MONSANTO COMPANY, Defendant/Appellant. Civ. |
| Court | North Dakota Supreme Court |
Wegner, Fraase & Nordeng, Fargo, for plaintiffs/appellees; argued by Craig E. Johnson, Fargo.
Pearce, Anderson & Durick, Bismarck, and Thysell, Gjevre, McLarnan, Hannaher, Vaa & Skatvold, Moorhead, Minn., and Harold A. Halgrimson, Fargo, for defendant/appellant; argued by Patrick W. Durick, Bismarck.
Monsanto Company appeals from an order denying its motion for judgment notwithstanding the verdict, or for a new trial, or for remittitur. Craig Johnson brought an action against Monsanto based upon theories of express and implied warranties, negligence, and strict liability in tort because a herbicide produced and marketed by Monsanto damaged Johnson's hard red spring wheat crop. On January 19, 1980, a 6-member jury rendered a verdict, which stated that a herbicide produced and sold by Monsanto, Far-go Granulars, was in a defective condition, unreasonably dangerous to the wheat crop of Craig Johnson, and had caused damages which totaled $23,786.00. The jury determined that Monsanto's negligence contributed to 85 percent of the damages while Johnson's negligence contributed to 15 percent of the damages. On January 30, 1980, the District Court of Cass County entered judgment against Monsanto for $20,218.10, plus costs and disbursements of $38.00, for a total of $20,256.10. On July 11, 1980, the district court filed an order which denied Monsanto's motion for judgment notwithstanding the verdict, for a new trial, and for remittitur. The notice of appeal was filed on September 5, 1980. We reverse and remand.
Craig Johnson rented a half section of land located in Cass County from the Fargo National Bank and Trust Company, trustee for the Richard Fox Trust, in the fall of 1973. The land leased to Johnson was described as follows:
North Half of Section 12, Township 140 North, Range 55 West, Cass County, North Dakota
Johnson had experienced a problem with a weed known as wild oats and in the fall of 1976 he attended a meeting sponsored by the Buffalo Farm Supply Company at which a representative of Monsanto, Robert Moberg, gave instructions on applying a herbicide which controlled and eradicated wild oats. The herbicide bears the name "Far-go" and is marketed by Monsanto in both a liquid and a granular form. Johnson purchased 4000 pounds of the granular form of the herbicide at a cost of $1,967.10. In the fall of 1976 Johnson applied the herbicide in granular form to the 219.1-acre tract. A 60-acre tract adjoining the 219.1-acre tract was not treated with a herbicide for the control of wild oats. The liquid form of the herbicide was applied to the remaining 20-acre tract. Johnson applied approximately 3100 pounds of the granular form of the herbicide to the 219.1-acre tract. Moberg had instructed Johnson to apply the herbicide at a rate of from 12 to 15 pounds per acre. The application of the herbicide by Johnson consisted of 14.149 pounds per acre which complied with Moberg's instructions. When hard red spring wheat is planted, Monsanto recommends that the granular form of its herbicide be applied at a rate of 12.5 pounds per acre on brown soils and 15 pounds per acre on black soils.
The herbicide in its granular form does not activate unless the soil temperature exceeds 40o Fahrenheit and moisture exists in the soil. The granular herbicide was applied through a ground broadcast applicator and incorporated into the soil. Far-go is a pre-emergent herbicide which is placed in the soil in order to affect germination of a weed. The wild oat plant is forced to grow into a herbicide barrier and the herbicide affects the growth tissue on a wild oat plant. On April 27 and 28, 1977, Johnson seeded the entire half-section with hard red spring wheat and applied anhydrous ammonia at a rate of 90 pounds per acre, and 18-46-0 fertilizer at a rate of 60 pounds per acre. The hard red spring wheat which Johnson planted on the 219.1-acre tract was at the three-leaf stage of growth before the plants began deteriorating and dying. Representatives of Monsanto inspected Johnson's wheat crop on the 219.1-acre tract on May 25, 1977, and again on June 16, 1977. Monsanto's reports indicated that misapplication of its herbicide had caused Johnson's wheat plants to deteriorate and die. No damage occurred on the 20-acre tract on which the liquid form of the herbicide had been applied. Johnson destroyed the wheat crop and, in its place, planted 150 acres of sunflowers and 70 acres of flax. The sunflowers were treated with a herbicide known as Treflan, which controls a weed known as pigeon grass; and the flax was treated with a herbicide known as Eptam, which also controls the growth of pigeon grass. The sunflower crop was cultivated and then harvested, dried, and marketed. The sunflower crop yield was 1700 pounds per acre. The flax crop yield was 20 bushels per acre. The wheat planted on the 60-acre and 20-acre tracts which was not destroyed yielded 31.67 bushels per acre. The price of hard red spring wheat was $3.40 per bushel in the fall of 1977. At the same time, the price of sunflowers was 9cents per pound and the price of flax was $5.00 per bushel.
Johnson incurred the following expenses in planting and destroying the wheat crop which had been treated with the granular herbicide:
Operation Cost
----------------------------------------------- ----------
1. Plowing the 220 acres of damaged
wheat at $10 per acre $ 2,200.00
2. Cultivating the 220 acres at $6 per acre 1,320.00
3. Cost of Treflan herbicide for 150 acres
of sunflowers at $5 per acre 750.00
4. Applying Treflan to the 150 acres of
sunflowers at $5 per acre 750.00
5. Cost of Eptam herbicide for 70 acres
of flax at $5 per acre 350.00
6. Applying Eptam to the 70 acres of flax
at $5 per acre 350.00
7. Second application of Treflan to the
sunflowers and Eptam to the flax 1,100.00
8. Cost of sunflower seed for 150 acres
at $6 per acre 900.00
9. Cost of planting sunflowers to 150 acres
at $7 per acre 1,050.00
10. Cost of cultivating the sunflowers at $4
per acre 600.00
11. Cost of harvesting the sunflowers at $8
per acre 1,200.00
12. Drying the sunflowers at 35 cents per
hundred weight 892.50
13. Cost of flax seed for 70 acres at $11
per acre 770.00
14. Cost of planting flax to 70 acres at $7
per acre 490.00
15. Cost of swathing 70 acres of flax at $4
per acre 280.00
16. Cost of harvesting the flax at 10 cents per
acre 700.00
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Total expenses.................. $13,702.50
The amount which Johnson received when he sold the sunflowers and the flax is as follows:
Yield Price Total
--------------------------- ---------------------- ----------
1. 70 acres of flax at 20
bushels per acre $5 per bushel $ 7,000.00
2. 150 acres of sunflowers
at 1700 pounds per acre 9 cents per lb. $22,950.00
----------
Total amount realized.................... $29,950.00
The sunflowers were planted late and had a high moisture content when harvested and sold. Johnson incurred an additional dockage expense when he sold the sunflowers. The dockage expenses were computed as follows:
Gross amount realized
from the sale of Dockage
sunflowers percentage Total
--------------------- ---------- ---------
$22,950.00 14% $3,213.00
The probable yield from the 219.1-acre tract of wheat which was destroyed can be computed as follows:
The costs which would have been incurred if the wheat had been harvested but which costs were not incurred because the wheat was destroyed, were as follows:
1. Costs of spraying at $2 per acre $ 438.00
2. Costs of swathing at $4 per acre 876.00
3. Costs of harvesting at $10 per acre 2,190.00
4. Costs of hauling the wheat to market at
5 cents per bushel for 6935 bushels of wheat
as the probable yield 347.00
---------
Total........................... $3,851.00
The only issue presented for our consideration is whether or not the district court committed error when it denied Monsanto's motions for a new trial or for remittitur.
The district court determined that the limited warranty and remedy provided by Monsanto in the event of damage resulting from use of the herbicide was unconscionable. Monsanto does not appeal from this ruling. The jury based its verdict on the theories of strict liability and negligence and found that Monsanto had not breached its express and implied warranties. Monsanto contends that the evidence presented at trial was not...
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