Perry Creek Cranberry Corp. v. Hopkins Agr. Chemical Co.

• Decision Date: 04 January 1966
• Citation: 29 Wis.2d 429,139 N.W.2d 96
• Parties: PERRY CREEK CRANBERRY CORPORATION, Plaintiff-Respondent, v. HOPKINS AGRICULTURAL CHEMICAL CO., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 96

139 N.W.2d 96

29 Wis.2d 429

PERRY CREEK CRANBERRY CORPORATION, Plaintiff-Respondent, v. HOPKINS AGRICULTURAL CHEMICAL CO., Defendant-Appellant.

Supreme Court of Wisconsin.

Jan. 4, 1966.

W. L. Jackman, Hart, Kraege, Jackman & Wightman, Madison, for appellant.

Brazeau, Brazeau, Potter & Cole, Wisconsin Rapids, for respondent.

HALLOWS, Justice.

The plaintiff is the owner of a 36.80-acre cranberry marsh near Black River Falls, Wisconsin, and on June 6th and 9th, 1962, dusted 34.02 acres with three percent Malathion Dust which it purchased from the defendant. Within a week the cranberry vines showed damage and ultimately produced no cranberries, while 2m78 acres which were not dusted with the malathion produced a normal crop of cranberries.

The complaint alleged two causes of action, one based on a misbranding under the Economic Poisons Act (SEC. 94.676, STATS. )¹ because the plaintiff relied on the instructions on the label in using the Malathion Dust and as a result suffered damage to its cranberry vines; and the other grounded upon common-law negligence that The jury in its verdict found the malathion caused the damage to the plaintiff's 1962 cranberry crop and the defendant was negligent in failing to warn of the possible injury to cranberry vines if the powder was used on vines when they were wet, and determined the amount of damages in the sum of $24,000. On motions after verdict the trial court held the Economic Poisons Act protected vegetation from damage, the defendant had misbranded its product and such violation of the act was negligence per se. The court also held the jury's finding that malathion caused the damage was supported by sufficient credible evidence, that the plaintiff relied on the misbranding and as a matter of law such reliance together with the finding of the jury was causal and, lastly, the disclaimer on the label was invalid.

the defendant knew or should have known the application of [29 Wis.2d 433] the Malathion Dust would be harmful to cranberry vines if applied to the vines when they were wet and consequently should have warned against such use. The answer of the defendant denied misbranding within the meaning of the Economic Poisons Act, the Malathion was a cause of the damage, it was negligent and its negligence was the cause of the damage, and alleged a disclaimer.

The defendant raises several issues on this appeal but we do not need to consider those related to common-law negligence because of our view that sec. 94.676(4) was violated by the defendant, which violation was a cause of the defendant's damages. The defendant argues without merit, we think, that the Economic Poisons Act does not require labeling either in form of directions for use or as a warning designed to protect vegetation upon which the insecticide is used. It is the defendant's alternative position that at most the act only requires instructions for use which are reasonably necessary for effective results and warnings against only potential hazards known or those which should be known.

That at the time the malathion was delivered to the plaintiff in 50-pound-paper bags there was attached to each bag a label (Exh. 9), part of which is as follows:

'CAUTION:

Harmful if swallowed. Avoid prolonged breathing of dust. Avoid prolonged or repeated contact with skin. Wash thoroughly after using. Avoid contamination of feed and foodstuffs. Keep out of reach of children.

DIRECTIONS FOR USE

Cranberries: For the control of leafhoppers and blackheaded fireworms, use 65-70 lbs. of Hopkins 3% Malathion Dust per acre by airplane, or 45-55 lbs. per acre by ground equipment. Make thorough coverage applications. Apply as frequently as necessary to keep insects under control. Do not use within 3 days of harvest.

NOTICE

Seller makes no warranty of any kind, express or implied, concerning the use of this product. Buyer assumes all risk of use or handling whether in accordance with directions or not.'

An 'Economic poison' is defined in sec. 94.67(1)(a), Stats., as 'Any substance or mixture of substances labeled, designed or intended for use in preventing, destroying, repelling or mitigating any insects, rodents, predatory animals, fungi, nematodes, weeds, and other forms of plant or animal life or viruses which the department declares a pest.' Sec. 94.676 defines 'misbranded,' among other things as '(4) If the labeling does not contain instructions for use which are necessary for effective results and which, if complied with, are adequate for the protection of the user and public; (5) If the label does not contain a warning or caution statement which, if complied with, is adequate to prevent injury to man and vertebrate animals.'

In construing a statute the court 'must ascertain the legislative intention as disclosed by the language of the statute in relation to its scope, history, context, subject matter and the object intended to be remedied or accomplished.' Scanlon v. City of Menasha (1962), 16 Wis.2d 437, 114 N.W.2d 791. The general rule is to give all words and phrases their common and approved usages excepting technical words and phrases which have a peculiar meaning in the law. Sec. 990.01(1), Stats. Nekoosa-Edwards P. Co. v. Public Serv. Comm. (1959), 8 Wis.2d 582, 99 N.W.2d 821. The main emphasis in the construction of sec. 94.676 by both parties is upon the legislative history of the act in relation to the federal Economic Poisons Act. It is without dispute the Wisconsin act was taken and drafted from the proposed Economic Poisons Act prepared by the Wisconsin Committee on Agriculture and modeled after the federal act. On the one hand, it is argued all that the drafting attempted to do was to shorten the proposed Economic Poisons Act without any substantial change in content and, on the other hand, it is argued the changes made were substantial and show a different intention than that expressed in the federal act.

The purpose and scope of the Wisconsin act were to extend protection from economic poison, we believe, beyond that afforded by the common law. It is pointed out that prior to the act the consumers were not properly protected under Wisconsin law because many economic poisons were highly toxic to man and dangerous to plants, to animals, and to public health and safety. Wisconsin Legislative Council Reports, Vol. 2, part 1, 1950-51, pages 53, 57, sec. 2.

The Federal Insecticides Act, USCA, Title 7, §§ 135-135k, ² which was enacted in 1947, provides for a label containing instructions for use and a warning. The act also provides there is a misbranding if the insecticide is used in accordance with instructions or with common practice and injury results to man, vertebrate animals or vegetation other than weeds to which it is applied or to the person applying the poison. By sec. 135(z)(2)(c) an economic poison is misbranded if the label does not contain directions for use which are necessary and adequate for the protection of the public. This subsection should be read with subs. 135(z)(2)(g) which provides that in case of an insecticide when used as directed or in accordance with common practice it must not be injurious to vegetation and other objects when applied to them. Under the federal act subs. 135(z)(2)(d) a label must contain a warning which is necessary and adequate to prevent injury to man, animals and vegetation, but in view of subs. (z)(2)(g) that subsection would seem to apply to situations other than when the poison is used in accordance with the instruction or common practice. But see McClanahan v. Calif. Spray Chemical Corp. (1953), 194 Va. 842, 75 S.E.2d 712.

These three sections were combined into two sections in the Wisconsin act with some slight modifications. The Wisconsin act provides for a label with more detailed instructions and also a warning. Sec. 94.676(4) of the Wisconsin act requires more than sec. 135(z)(2)(c) of the federal act, and to avoid misbranding the label must contain instructions for use which are necessary for effective results and adequate for the protection of the user, besides adequate for the protection of the public. While we agree with the defendant the terms 'user and the public' do not include vegetation, the instruction for use requirement is an enlargement of sec. 135(z)(2)(c) by requiring instructions for use which are necessary for effective results. Furthermore, this section did not carry over from sec. 135(z)(2)(g) of Title 7 the language which provided certain economic poisons were misbranded if used 'in accordance with commonly recognized practice' and they produced injury to vegetation and other objects. Because of this and the requirement of more definite instructions for use the Wisconsin act gives substantially the same protection, if not more, than the federal act.

True, sec. 94.676(5) does not require a warning of damage to vegetation but we think sec. 94.676(4) accomplishes the same result by its requirement of instructions necessary for an effective result. An effective result can hardly include the killing of vegetation as well as the insects. 'Effective result' means the insecticide will perform the function of an insecticide without damage to the object which is to be benefited by the use of the economic poison; in short, the remedy should cure, not destroy the patient. We do not consider the federal-act requirement of a positive warning against damage to vegetation to be significant. We see no difference in result in warning against use of malathion on wet vines and a required instruction directing malathion to be used only on dry vines. Sec. 94.676(4) requires instructions for use which are not...