Nizzi v. Laverty Sprayers, Inc.

• Decision Date: 14 June 1966
• Docket Number: No. 52127,52127
• Citation: 143 N.W.2d 312,259 Iowa 112
• Parties: Frank NIZZI, Appellant, v. LAVERTY SPRAYERS, INC., Appellee.
• Court: Iowa Supreme Court

Page 312

143 N.W.2d 312

259 Iowa 112

Frank NIZZI, Appellant, v. LAVERTY SPRAYERS, INC., Appellee.

No. 52127.

Supreme Court of Iowa.

June 14, 1966.

W. Lawrence Oliver, Des Moines, for appellant.

Roy W. Meadows and Whitfield, Musgrave, Selvy & Kelly, Des Moines, for appellee.

MASON, Justice.

Plaintiff, owner of a tract of farm land in Polk County, brings this action at law, seeking damages alleged to have resulted from defendant's spraying plaintiff's farm pond and pasture with DDT 5%, causing loss of use of the pond and pasture for feed and water for plaintiff's dairy herd, as well as recreation; physical pain, mental anguish and aggravation of a pre-existing back injury.

Trial to the jury resulted in a verdict of $600 for loss of use of the pond and pasture and $123 for aggravation of the pre-existing injury, against Laverty Sprayers, Inc. His motion for new trial being overruled, plaintiff appeals from the judgment on the verdict. Laverty Sprayers, Inc. cross-appeals and will hereafter be referred to as defendant.

I. Plaintiff's tract is adjacent to a field of sweet corn leased to Beaver Valley Canning Company. Laverty Sprayers, Inc. owns and operates an aerial spraying business under a Federal Aviation Agency permit and does contract spraying for farmers and business concerns. Defendant was hired by Beaver Valley Canning Company to spray its sweet corn on July 7, 1964, for corn borers. Defendant applied the compound, and later plaintiff and others observed a residue of the granular substance of a similar nature to that applied to the sweet corn on part of plaintiff's pasture between the field of sweet corn and the farm pond, an area claimed to consist of approximately 50 acres. After the spraying, the area involved was fenced off by Beaver Valley Canning Company with an electric fence for more than 30 days.

On July 16 water and milk samples were taken by the Iowa Department of Agriculture and on October 15 grass samples were taken from an area adjacent to the pond by representatives of the same department. All of the samples were examined by the Wisconsin Alumni Research Foundation Laboratory. These tests resulted in a finding that the water contained, if any DDT, 0.3 parts per billion, milk 0.001 parts per million, grass 0.030 parts per million on sample one and 0.025 parts per million on sample two.

Plaintiff originally instituted suit against Laverty Elevators, Inc., seeking damages for a spraying incident alleged to have occurred in August 1962 and from the second spraying in July 1964. Plaintiff amended his petition by bringing in Laverty Sprayers, Inc. as a defendant and repeated substantially the same allegations of his petition against Laverty Elevators, Inc., except no reference was made to the spraying incident alleged to have occurred in 1962. At conclusion of plaintiff's case, the trial court directed a verdict in favor of Laverty Elevators, Inc., and at the conclusion of all the evidence submitted the issues as to Laverty Sprayers, Inc.

II. Plaintiff contends that due to defendant's act he had to take his dairy cattle off the pasture the evening of July 7 and from the farm pond with the result he was denied the use of the pasture and had to pump water for his stock from July 7 to October 16, 1964; that as a result of the hand pumping of water he aggravated a pre-existing back injury which necessitated medical expense; that the lease value of the farm pond, stocked with bass and catfish and in the fly way of wild ducks and geese and which had been under lease for $500 per year, was lost; that he worried and suffered mental anguish from concern for his dairy herd, loss of the lease and extra work occasioned from loss of water and pasture.

Plaintiff assigns as errors relied on for additur or new trial: (1) ruling of the trial court made on the admission and exclusion of evidence, (2) directing a verdict for Laverty Elevators, Inc., (3) failure to submit plaintiff's requested instructions; and (4) failure to grant a new trial.

III. We will first consider plaintiff's second assignment of error, the trial court's direction of a verdict for Laverty Elevators, Inc. Plaintiff contends this ruling deprived him of damages for the 1962 spraying and destroyed the element of willfulness and maliciousness by defendant as the result of the repeated spraying of his pasture and pond in 1964. Plaintiff's original petition sought punitive damages against Laverty Elevators, Inc., by reason of the 1962 and 1964 spraying.

The court was correct in directing a verdict for Laverty Elevators, Inc. at the close of plaintiff's evidence. Plaintiff's contention cannot be sustained.

Plaintiff's evidence shows without contradiction a portion of the Barton Miner farm, which joins plaintiff's on the south, was leased to Beaver Valley Canning Company in 1962 and 1964 for the production of sweet corn. Under the contract between Miner and the canning company, when the corn was laid by the field was turned over to the canning company. Any spraying necessary for corn borers was the canning company's obligation. In 1962 and 1964 Beaver Valley employed Laverty Sprayers, Inc. to spray the Miner farm. The 1964 spraying was accomplished on July 7. The following day Fred T. Wright, general manager of the canning company, learned that part of the Nizzi farm had been sprayed. Willis Meier, the canning company's field man, was out to the Nizzi farm the day before and subsequently an area of plaintiff's farm was fenced off with an electric fence.

Plaintiff's witness, Charles O. Laverty, president and treasurer of both Laverty Elevators and Laverty Sprayers, testified Ralph Swanson, his employee charged with making the billings for services of Laverty Sprayers, billed the canning company for spraying the Miner farm. The witness further testified the airplane used in the spraying was owned by Laverty Sprayers.

The canning company issued no drafts to Laverty Elevators, Inc., for spraying the Miner farm nor did its records indicate any such payment.

Plaintiff testified that after the aerial spraying which he observed in 1962 he found a residue of granular substance similar to that found by him after the spraying on July 7, 1964. This constitutes all evidence offered by plaintiff bearing on his claim against Laverty Elevators. It was not sufficient to generate a jury question.

IV. Plaintiff assigns error in the refusal of his first requested instruction based on the amount claimed by him in his amendment to conform to proof.

The instructions in final draft were submitted by the court to counsel for both parties before being read to the jury. Plaintiff's counsel at that time stated he had no objections to them.

Rule 196, Rules of Civil Procedure, provides that all objections to giving or failing to give any instruction must be made specifying the matter objected to and on what grounds. No other grounds or objections shall be asserted thereafter, or considered on appeal.

Here plaintiff not only failed to follow rule 196 but stated to the court he had no objections to the instructions. This assignment is therefore without merit. Olson v. Truax, 250 Iowa 1040, 1050, 97 N.W.2d 900, 906, and citations; Christianson v. Kramer, 257 Iowa 974, 135 N.W.2d 644, 648, and citations; Campbell v. Martin, 257 Iowa ---, 136 N.W.2d 508, 513.

V. In connection with plaintiff's next assignment we do not now consider the trial court's sustaining of the claim of privilege of Roscoe Moll and Harold Nobel. As thus limited, plaintiff's complaint under his first assignment is directed to the court's ruling on the admission of evidence. We have considered each of plaintiff's references to the record under this assignment and find no reversible error.

VI. We now consider the sustaining of privilege of Moll and Nobel. They were inspectors for the Food and Drug Administration present in the courtroom and when called as plaintiff's witnesses refused to take the stand. Neither had been subpoenaed but Moll stated if he had been he would decline to answer under the regulations in Title 21, Code of Federal Regulations, Chapter 1, part 4, section 4.1, entitled 'Disclosure of Official Records and Information.'

The court upheld the claim of privilege. Plaintiff contends he had a right to call anyone in the presence of the court concerning the case, under Code section 622.3. In what might be considered plaintiff's offer of proof, plaintiff stated Moll admitted he had gone to plaintiff's farm, taken samples of milk and given plaintiff a receipt therefor, following the July 7 spraying. No further offer was made.

Section 4.1(a), Code of Federal Regulations, supra, provides:

'No officer or employee of the Food and Drug Administration or of any other office or establishment in the Department of Health, Education and Welfare--except as otherwise specifically authorized in accordance with paragraph (c) * * * or except in the discharge of his official duties under the laws administered by the Food and Drug Administration--shall produce or disclose to any person, or before any tribunal, directly or indirectly, whether in response to a subpoena or otherwise, any record (including any file, letter, application, report, work sheet, or other paper or document) pertaining to the functions of the Food and Drug Administration, or any information acquired from any such record or otherwise acquired in the discharge of his official duties.'

Subparagraph (b) of this section provides that a party subpoenaed shall respectfully decline to produce the records or information requested. Subparagraph (c) of this section provides that the officer may testify under certain conditions where he has received clearance from the commissioner.

Code section 622.3 is not applicable to this situation.

This presents the question: Is there a distinct privilege recognized today for 'official information'--not qualifying as secrets of state--the disclosure of which would be injurious to...