Lenk v. Spezia, No. 7574

• Court: California Court of Appeals
• Writing for the Court: THOMPSON; ADAMS, P. J., and PEEK
• Citation: 213 P.2d 47,95 Cal.App.2d 296
• Parties: LENK v. SPEZIA et al. Civ.
• Decision Date: 22 December 1949
• Docket Number: No. 7574

Page 47

213 P.2d 47 95 Cal.App.2d 296 LENK
v.
SPEZIA et al. Civ. No. 7574. District Court of Appeal, Third District, California. Dec. 22, 1949.

Page 48

[95 Cal.App.2d 297] A. G. Bailey and John A. Young, Woodland, for appellant.

Russell A. Harris, Sacramento, for respondents.

[95 Cal.App.2d 298] THOMPSON, Justice.

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

Page 49

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 [95 Cal.App.2d 299] 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

Page 50

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 [95 Cal.App.2d 300] 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...