Lundberg v. Bolon
Citation | 194 P.2d 454,67 Ariz. 259 |
Decision Date | 12 January 1948 |
Docket Number | 4922 |
Parties | LUNDBERG et al. v. BOLON |
Court | Supreme Court of Arizona |
As Modified on Rehearing May 18, 1948.
Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Affirmed.
Robert Denton, of Casa Grande, and Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., and Henry S. Stevens, all of Phoenix, for appellants.
Dwight L. Solomon, of Phoenix, for appellee.
This is an appeal from a judgment rendered in the trial court on a verdict of a jury.
Appellant Wheelis was growing a crop of cotton on leased land south of Eloy, Arizona. A highway separated the cotton land referred to from desert land owned by appellee. Upon the desert land appellee had sixty-four stands, or colonies, of bees. The cotton crop, being infested with insects, required dusting with an insecticide, and for that purpose Harold F. Lundberg was procured by the other appellant to do the dusting. On the morning of July 24, 1944, at about daylight, the appellant commenced dusting the said tract of cotton with his airplane and continued with such work for about two hours, when the job was finished.
Although the desert land of appellee was next to the road that divided the two pieces of property, the cotton and the desert land, the bees referred to were approximately 880 feet west of the road.
Appellee brought action against the two appellants named and in his complaint alleged: "That on said day, defendant Harold F. Lundberg, using an airplane, did so dust or spray the cotton crop of defendant Tommy Wheelis with poisonous chemicals or insecticides, and performed the work in such negligent manner that the poisonous chemicals or insecticides, in spray or dust form, drifted over and upon plaintiff's land, and over, against, upon and into, said stands of bees, and killed all of the bees therein."
At the close of appellee's case appellants moved for a dismissal of appellee's case. This motion was denied by the court. After judgment appellants moved for a new trial, which motion was also denied. The verdict of the jury was the sum of $ 1300. One of the grounds for new trial was "that the damages are excessive and appear to have been under the influence of passion and prejudice". Prior to the disposition of the motion for new trial appellee filed a remittitur in the sum of $ 267.20. Thereafter the court denied the motion for new trial.
On April 2, 1946, the court rendered judgment by minute entry and on the 11th day of April signed the formal judgment. Thereafter on the 22nd day of May, 1946, appellee filed "Motion to Amend Plaintiff's First Amended Complaint to Conform to the Evidence" by inserting the words "said defendants giving no notice of such dusting to plaintiff prior thereto", said insertion to be at the end of paragraph 9 of the amended complaint. The application was based on Sec. 21-449, A.C.A.1939. On the 3rd day of June, 1946, said motion was granted by the trial court.
Appellants' three assignments of error are well summarized in the following propositions of law:
In support of this proposition of law appellants claim that
Appellants claim that in bringing in a verdict as in this case it became necessary for the jury to base its findings on conjecture, speculation and assumption. Appellants quote the following rule from 32 C.J.S., Evidence, § 1042:
Appellants also quote the following from our case of Salt River Valley Water Users' Association v. Blake, 53 Ariz. 498, 90 P.2d 1004, 1007: "* * * We have repeatedly held that juries may not return verdicts on surmise or speculation, and that when damage may have resulted from one of several causes, and that it is as probable that it may have been a cause for which defendant was not responsible as one for which it was, a plaintiff may not recover."
Also appellants quote from the case of Brutinel v. Nygren, 17 Ariz. 491, 154 P. 1042, 1048, L.R.A.1918F, 713: "* * * To sustain the judgment in this case it would be necessary to hold that the jury in arriving at their verdict have a legal right, in the absence of any evidence in regard thereto, to conjecture and assume necessary and controlling facts, which, under the law, is beyond the province of a jury. * * *"
In order to determine this matter it is imperative that we now review a portion of the evidnece, but first we will state that there seems to be nothing in the testimony that we can find to the effect that the bees of this appellee went upon the field of cotton that was sprayed.
The testimony of DeWitt Bolon, son of appellee, was to the effect that he heard the airplane dusting; knew the sound of a dusting plane, and he thereupon went to the field where the bees were located, and stated: "I drove to the bee yard and observed that the dust was very dense, and I coughed, and it caused a cough, and a smarting of the eyes." Bolon also testified that about ten days before the dusting he was at the bee yard and defendant Wheelis passed at that time. This witness testified also that there was a thick grove of tamarisk trees about five miles distant from the bees.
Dr. E. S. McGregor, a witness for both sides in the case, testified that he was an apiculturist and was then employed with the United States Department of Agriculture, cooperatively with the University of Arizona; that he saw the bees on the 1st day of August, 1944, but had not seen them before that time, and when asked what condition they were in, he replied: "They were very weak." He also testified that there were no diseases among bees that would kill them within several days time, or words to that effect. Also he testified that by test, or experiments made, bees were known to have traveled 8 1/2 miles for substance for their use. In addition to that, he stated that as a test on a certain occasion in a field northwest of Eloy, Arizona, the field being approximately 320 acres, he placed two hives of bees the night before the field was going to be dusted. They were placed on the northwest corner of the field at the fence approximately 20 feet from the end of the cotton rows.
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Anderson v. STATE, DNR, No. A03-679.
...spray that drifted and killed bees. See, e.g., McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138, 139 (1951); Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454, 459 (Ariz.1948); Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260, 1263 (1937); see generally Jonathan M. Purver, Liability for ......
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Anderson v. State, No. A03-679 (MN 3/3/2005), A03-679.
...concerning pesticide spray that drifted and killed bees. See, e.g., McKennon v. Jones, 244 S.W.2d 138, 139 (Ark. 1951); Lundberg v. Bolon, 194 P.2d 454, 459 (Ariz. 1948); Miles v. A. Arena & Co., 73 P.2d 1260, 1263 (Cal. Ct. App. 1937); see generally Jonathan M. Purver, Liability for Injury......
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Crouse v. Wilbur-Ellis Co.
...independent contractor to perform such work. S. A. Gerrard Co. Inc. v. Fricker, supra, 42 Ariz. 503, 27 P.2d 678; and see Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454. In the case at bar defendant undertook to advise plaintiffs as to the necessity for dusting their cotton, and undertook to......
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Pride of San Juan, Inc. v. Pratt
...fact that liability for such harm cannot be avoided by hiring an independent contractor to perform such work."); Lundberg v. Bolon, 67 Ariz. 259, 264, 194 P.2d 454, 457 (1948). 8. We also note that both our legislature and the ADA have recognized the dangers posed by crop dusting. See A.R.S......