Lenk v. Spezia, 7574
| Decision Date | 22 December 1949 |
| Docket Number | No. 7574,7574 |
| Citation | 213 P.2d 47,95 Cal.App.2d 296 |
| Parties | LENK v. SPEZIA et al. Civ. |
| Court | California Court of Appeals Court of Appeals |
A. G. Bailey and John A. Young, Woodland, for appellant.
Russell A. Harris, Sacramento, for respondents.
The plaintiff brought suit for damages against the defendants as individuals and as copartners for negligently killing 518 hives of bees and causing the loss of 14 tons of honey which would have otherwise been produced. It is alleged the bees were poisoned by the negligent dusting of crops of tomatoes with insecticide compound containing arsenic of trioxide, from an airplane, and thus permitting the poisonous dust to drift or lodge on plaintiff's hives and bees which were located near by, and by depositing the poisonous insecticide on the feeding fields of the bees. The cause was tried by the court sitting without a jury. Findings were adopted favorable to the defendants in every essential respect. A judgment was rendered accordingly to the effect that plaintiff is entitled to take nothing by this action. From that judgment this appeal was perfected.
The answer denies the material allegations of the complaint, except that it is admitted the defendants dusted tomatoe crops in that vicinity from their airplane with insecticide powder containing a small proportion of arsenic, for the necessary benefit and protection of said crops of tomatoes from prevalent insects, worms and pests. The answer specifically denies that defendants deposited or negligently permitted poisonous insecticide to be carried to or spread upon plaintiff's bees or feeding grounds, and affirmatively alleges that plaintiff's loss of bees and honey was due to his own contributory negligence in failing and refusing to remove the hives or to protect the bees from the poisonous dust in spite of the fact that he had previous knowledge of the defendants' intention to use that powder to dust the tomatoe crops in the vicinity of his hives.
The court found that plaintiff owned the hives and bees which he kept in several colonies in Lisbon and Clarksburg districts in Yolo County; that said bees ranged over a wide field at distances of five miles from their hives in search of nectar and pollen; that defendants did not spread or deposit insecticide powder negligently or at all upon plaintiff's bees or upon their feeding grounds; that the defendants were not negligent in dusting the crops of fruit or tomatoes in fields adjacent to the places where plaintiff's hives and bees were kept; that said bees were not poisoned and did not die as a result of defendants' negligence or carelessness in dusting the crops in that vicinity. On the contrary, the court affirmatively found that the bees were destroyed on account of the contributory negligence of plaintiff in failing and refusing to exercise any care for their protection in spite of the fact that plaintiff had full knowledge of defendants' intention to use the poisonous insecticide in dusting the tomato crops on fields in the immediate vicinity of his hives of bees.
The evident theory of the court was that the cause of the death of plaintiff's colonies of bees was his negligence in deliberately releasing his bees from their hives and permitting them to range over the surrounding fields for nectar and pollen, when he had full knowledge that crops in adjacent fields had been or were about to be dusted with insecticide powder containing arsenic which he knew to be poisonous to bees.
The appellant's theory of the cause of the death of his bees was that defendants released the poisonous insecticide powder from their airplane when the wind was blowing directly toward the place where their hives were stationed, and that the poisonous compound drifted to and upon his hives and bees. There is a conflict of evidence upon that issue. In effect the court found against the plaintiff on that theory by determining that the defendants did not negligently deposit insecticide dust or powder upon the hives or bees, or upon their feeding fields. There is substantial evidence to support that finding.
Honey bees often obtain the poison when feeding on blossoms in fields which have been dusted or sprayed for the protection of the crops and carry it back to the hives in the nectar or pollen, which sometimes results in the death of the entire colony of bees.
In Roy A. Grout's recent volume, 'The Hive and the Honey Bee', the author says that for many years toxic compounds have been used to protect fruit and vegetables from pests. The trees and vines are usually sprayed when they are in full bloom. That is the very time when the bees visit them in search of nectar and pollen. It is difficult to protect the fruit and vegetables from pests without detriment to the bees which usually get the poison from the blossoms after they have been sprayed or dusted. They sometimes die immediately or soon if they get sufficient poison. But they often take it back to the hive in the nectar or pollen or both, which sometimes results in the death of the entire colony of bees.
We are of the opinion that the evidence adequately supports the findings and judgment. We are convinced that large numbers of plaintiff's bees died in and about their apiaries, and probably they died from poisoned insecticide which they procured in other fields while they were ranging in search of coveted nectar or pollen, or from poisoned dust which drifted with the wind from other fields to the hives of plaintiff. But we are unable to say, as a matter of law, that they were poisoned by the insecticide which was released from defendants' airplane. There is some evidence that other farmers were dusting their crops in that vicinity about the same time. One of said crops was located just across the river from one of plaintiff's apiaries.
In the present case the burden was on plaintiff to prove, not only that it was the poisonous dust used by the defendants which killed his bees, but also that defendants were guilty of negligence on account of the manner in which they dusted the adjacent tomato fields, and that such negligence was the proximate cause of the death of the bees. This court must view the evidence and the reasonable deductions to be drawn therefrom in a light most favorable to the respondents, and must resolve all conflicts of evidence in support of the findings and judgment, if reasonably possible. Davis v. Stulman, 72 Cal.App.2d 255, 164 P.2d 787. Even though we might differ with the conclusions of the trial court regarding the weight or sufficiency of the evidence to show negligence on the part of the defendants, since there is substantial evidence to support the findings we cannot interfere with the judgment of the trial court. When reasonable minds may differ regarding the sufficiency of the evidence to establish essential facts to support adopted findings, a reviewing court is bound by the judgment of the trial court. That is the situation in the present case. For that reason we may not interfere with the judgment in this case.
It is true that a defendant who is engaged in spraying or dusting fruit, vegetables or other products with the use of an airplane, or otherwise, by negligently spreading liquid or powder known to contain a dangerous proportion of arsenic or other poisons, in such a manner as to endanger the lives of bees, animals or property of another person in the immediate vicinity, may become liable for the damages resulting therefrom. Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260; Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454; S. A. Gerrard Co., Inc., v. Fricker, 42 Ariz. 503, 27 P.2d 678; Hammond Ranch Corporation v. Dodson, 199 Ark. 846, 136 S.W.2d 484.
But in the Miles case, supra, a judgment was rendered against the defendant for negligently dusting a field of honeydew melons by means of an airplane from which poisonous insecticide was spread while a wind was blowing directly toward plaintiff's land where the hives of bees were located. That judgment was affirmed on appeal because the evidence was completely satisfactory, if not undisputed, that the defendant knowingly released the poisonous dust from its airplane while the wind was blowing toward plaintiff's hives and the poison actually reached the hives and killed all the bees they contained, including the queen bees which are known to remain in their hives. That is some proof that the bees in and about the apirar died from the poisoned compound which drifted from the field dusted by the defendant. Specimens of the identical dust taken from the bees and the hives were procured and analyzed. The trial court adopted definite findings that it was the defendant's poisonous dust which drifted to and upon plaintiff's bees and killed them. In the present case the findings were just the contrary in that regard. The Appellate Court said [23 Cal.App.2d 680, 73 P.2d 1262]:
'* * * 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.
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'* * * There is ample, competent and material evidence in the record to support the finding that plaintiff's bees were killed by the poisonous dust that drifted from the A. Arena & Company field.'
The other cited bee cases are similarly determined upon ample evidence of negligence to support the findings and judgments. In...
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Anderson v. STATE, DNR, No. A03-679.
...came in contact with pesticides while foraging on the land of another on the theory that bees were trespassers. Lenk v. Spezia, 95 Cal.App.2d 296, 213 P.2d 47, 51 (1949) (holding that owner of honey bees could not recover for loss of bees that procured the pesticide while "trespassing on th......
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Anderson v. State, No. A03-679 (MN 3/3/2005), A03-679.
...that came in contact with pesticides while foraging on the land of another on the theory that bees were trespassers. Lenk v. Spezia, 213 P.2d 47, 51 (Cal. Ct. App. 1949) (holding that owner of honey bees could not recover for loss of bees that procured the pesticide while "trespassing on th......
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Bennett v. Larsen Co.
...the Bennetts nor Meyer indicated that they had suffered severe losses to their beehives before 1977.9 See, e.g., Lenk v. Spezia, 95 Cal.App.2d 296, 213 P.2d 47, 51 (1949).10 As previously noted, the evidence does not suggest that Larsen knew or reasonably should have known the location of t......
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Anderson v. STATE, DEPT. OF NAT. RESOURCES, No. A03-679.
...But courts in other states have held that bees foraging on the property of others are trespassing animals. See Lenk v. Spezia, 95 Cal.App.2d 296, 213 P.2d 47, 51 (1949); see also Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454, 460 (1948) (noting that the fact that the bees were trespassing w......