Parks v. Atwood Crop Dusters, Inc.

• Decision Date: 05 June 1953
• Citation: 257 P.2d 653,118 Cal.App.2d 368
• Court: California Court of Appeals Court of Appeals
• Parties: PARKS et al. v. ATWOOD CROP DUSTERS, Inc. et al. Civ. 4635.

Page 653

257 P.2d 653

118 Cal.App.2d 368

PARKS et al. v. ATWOOD CROP DUSTERS, Inc. et al.

Civ. 4635.

District Court of Appeal, Fourth District, California.

June 5, 1953.

Rehearing Denied June 26, 1953.

Hearing Denied July 28, 1953.

Conron, Heard & James, Bakersfield, for appellants.

Mack & Bianco, Henry C. Mack, Bakersfield, for respondents.

MUSSELL, Justice.

This is an action for damages caused by a crop dusting operation conducted by defendants. On September 18, 1950, defendant Robert Pelletier employed defendant Atwood Crop Dusters, Inc., to spread a defoliant (aereo cyanamide dust) on his 165 acre cotton field in Kern county. Defendant Tom Jameson was the pilot who spread the defoliant by airplane and James French, another employee of Atwood Crop Dusters, Inc., was in charge of the work. Pelletier's cotton crop was mature and ready to defoliate for harvest and the purpose in defoliating it was to remove the leaves from the cotton plants so that they would not be picked up by the mechanical harvesters and mixed with the cotton. The dusting was done by airplane east and west along the rows and in the operation, the pilot passed over a portion of plaintiffs' 100 acre cotton crop on land adjacent to Pelletier's property on the east and south. Plaintiffs' 100 acre field and Pelletier's adjacent 165 acre field on the west were separated by a farm road approximately 20 feet in width. A pole line, about 20 feet high, ran north and south about 20 feet west of this road and Pelletier's cotton extended about 20 feet east of this pole line to the road.

In dusting Pelletier's field, the pilot, when flying east and upon approaching the pole line, pulled his plane up and flew over it. The gate on the bin on the plane was left open to dust the plants east of the road and this had a tendency to deposit the defoliant dust on plaintiffs' crop across the road. The pilot, in making a turn to fly back over the Pelletier field, flew over plaintiffs' acreage from one-fourth to one-half mile, depending on how tight the turn was.

Mr. French, in charge of the dusting, testified that when the field was dusted, there was a wind from the northwest which was sufficient to carry some of the dust over plaintiffs' field; that on the slight wind prevailing, he estimated that the draft would carry enough for damage for one-third of a mile; that he was familiar with the particular cyanamide dust; that it was ground fairly fine and that the finer particles, which are the most effective in defoliating, drift the farthest in the air; that it will float or drift with the wind; that Mr. Garlow, the field superintendent for plaintiffs, had warned him the day prior to the dusting of defendants' adjoining field against getting any of the dust on the 100 acre field of plaintiffs as it was immature and not ready for defoliation.

Evidence was adduced showing that defendants' crop was planted in April and plaintiffs' on May 10, 1950; that plaintiffs' crop, on September 18, 1950, was immature and not ready for harvest; that it was at least 45 days from harvest time and that plaintiffs' cotton crop was still in growing condition, some of it still blooming.

The evidence is conflicting as to the effect of the defoliant on plaintiffs' cotton crop. However, there was substantial testimony to the effect that about 45 acres of plaintiffs' cotton field was affected by the dusting; that the plants had been burned; that where the defoliant was used on immature cotton plants, the immature cotton bolls dropped off; that one effect of defoliant was to cause cotton plants to cease manufacturing food while it put out new leaves; that the application of the defoliant retarded the growth of the cotton plants; that plaintiffs' field, before the damage, was in excellent condition.

Various witnesses estimated the yield per acre on plaintiffs' land before damage as '3 bales or better' and witnesses for both parties relied in part upon boll counts made in the field at various times in arriving at the probable yield per acre. The actual yield after damage was shown to be 2.28 bales per acre, showing a loss of approximately 72 bales at the stipulated net value per bale of $211.90. The plaintiffs testified that in preparing the complaint, they used an average of the estimated loss of the various men who had examined the field, arriving at 61.5 bales, for which suit was brought. The amount of the verdict returned by the jury in favor of plaintiffs was $13,031.85.

Appellants' assignments of error are that the evidence was insufficient to justify the verdict; errors of law in instructing the jury upon the question of damages; errors of law in refusing instructions pertaining to unavoidable accident; and misconduct of counsel in endeavoring to inject insurance into the case in chief. We see no error in any of these assignments.

There was substantial evidence that defendant Pelletier, who caused the aereo cyanamide to be applied, was fully aware of its effect upon cotton plants. In fact it is conceded that the substance used was a defoliant applied for the purpose of removing the leaves from the cotton plants. There is evidence that Mr. French was warned by plaintiffs' foreman not to dust plaintiffs' crop. It was immature and not...