Pruett v. Burr

• Decision Date: 27 May 1953
• Citation: 257 P.2d 690,118 Cal.App.2d 188
• Court: California Court of Appeals Court of Appeals
• Parties: PRUETT v. BURR et al. Civ. 4624.

Page 690

257 P.2d 690

118 Cal.App.2d 188

PRUETT v. BURR et al.

Civ. 4624.

District Court of Appeal, Fourth District, California.

May 27, 1953.

Ray W. Hays and James N. Hays, Fresno, for appellant.

Wingrove & Brown, Meredith Wingrove, and Lee G. Brown, Hanford, for respondent.

GRIFFIN, Justice.

Plaintiff and respondent brought this action for damages against defendants Robert Burr, Central Valley Cooperative, a corporation, hereinafter referred to as CVC, Estate of J. A. (Tex) Rankin, and R. S. Norswing, copartners doing business as Rankin Aviation Industries, and the defendant and appellant Sherwin-Williams Co., a corporation (hereinafter referred to as appellant). The damage occurred to respondent's cotton crop and was alleged to have been the proximate result of the negligence of defendants in manufacturing, selling, and spraying, by airplane, the cotton crop of defendant Burr with a spray containing a product produced by appellant which was injurious to cotton plants. Respondent owned about 15 acres of land planted to cotton. Directly north of his acreage was a 40-acre piece of land belonging to defendant Burr. About July 16, 1949, defendant Burr discovered Lygus bugs or cotton daubers in his cotton. On advice of the agents of defendant CVC, of which Burr was a member, he determined to spray it. The spray was purchased through defendant CVC, which had a consignment agreement with appellant Sherwin-Williams Co., who manufactured it, whereby CVC paid appellant each month for material that was used. The spray material was labeled 'DTOL 25% Emulsifiable'. It was contained in 30-gallon steel non-returnable drums and had been stored in CVC's warehouse since the 1948 season. On July 16, 1949, CVC delivered five drums to defendant Rankin Aviation Industries to be mixed with water in a specially prepared mixing tank and put in Rankin's airplane, equipped with a rotary brush type sprayer, and sprayed on Burr's cotton. The course pursued was in a general northerly and southerly direction back and forth over Burr's cotton field. In banking and making the turn the pilot of the airplane flew over respondent's cotton field and a considerable amount of the spray fell on his acreage. The wind also drifted some of the spray released on the Burr property over the respondent's cotton field. Respondent's cotton crop was heavily damaged and burned along the north side of his acreage. Burr's crops were likewise damaged. Expert witnesses agreed that the damage resulted from spraying and that the damage noticed was not result of the presence of a chemical compound known as 2, 4-D or one of its derivatives such as 2,4,5-T, which is a plant hormone stimulating the growth of plants, but which has an adverse effect on broad-leaf plants and particularly cotton.

The damage to the plants was immediately noticeable and increased over the period of growth. Samples from the various containers used, and others not opened, were taken by the several parties and chemical tests were made. Respondent relies principally upon a report of the State Department of Agriculture contained in a letter from that department dated October 24, 1949 (Plaintiff's Exhibit 1), and plaintiff's exhibit 2, which were received in evidence over objection. These exhibits indicate that certain tests were made of certain samples taken, and that a harmful plant hormone, probably 2,4,5-T, was present in the samples analyzed. The merits of this objection will be discussed later.

A motion for nonsuit was denied. Thereafter defendants testified and produced certain witnesses in their own behalf who endeavored to exculpate themselves from liability and claimed lack of knowledge of the presence of any type of substance harmful to cotton plants. Appellant produced a chemist who visited the property and took samples from the Burr containers. He testified that respondent's and defendant Burr's cotton had been affected by a chemical compound known as 2,4-D, or one of its derivatives; that quantities as low as one part per million would cause damage to cotton; that from an analysis of samples taken from three of the barrels it conformed to the statement on the label on the drums and that those samples showed no 2, 4-D was present; that to verify his analysis he later obtained four or five samples of the same lot number from CVC, that field tests on cotton were made with it and the presence of 2,4-D was not indicated.

The manager of CVC testified that the State Department of Agriculture gave him a report on samples taken from the contents of unopened drums left in its stock, which were of the same lot number as those used on the Burr job, and that the report was that no 2,4-D was found.

There was testimony to the effect that about eleven other growers had used DTOL in 1949, and that there were no complaints received from the growers. The jury returned a verdict in favor of respondent and against the Sherwin-Williams Co. for $1,068.38, and in favor of the remaining defendants.

At respondent's request the jury was instructed on the doctrine of res ipsa loquitur in six separate instructions, following generally the language contained in instructions 206-B and 206-C, pp. 321-322, California Jury Instructions Civil (B.A.J.I.). No particular objection is made to the form of instructions except that it is contended that only one of them stated that more was required than the mere happening of the accident to give rise to the inference of res ipsa loquitur, and that therefore the court erred in its failure to more forcefully point out to the jury that before the doctrine of res ipsa loquitur could be applied it was necessary for respondent to show that he did not suffer damages at the hands of persons other than the defendant, citing Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 519, 203 P.2d 522; Zentz v. Coca Cola Bottling Co. of Fresno, 92 Cal.App.2d 130, 133, 206 P.2d 653; and further, that one instruction was erroneous because the jury was told that a mandatory rather than a permissive inference arose from the occurrence of the damage, citing Hardin v. San Jose City Lines, Inc., Cal.App., 252 P.2d 46.

Appellant's main claim, however, on this particular point is that the instructions on that subject should not have been given at all because the evidence did not, particularly as to appellant, show that the requirements for the introduction of the doctrine were met in this, that before it may be applied, it must be shown that the accident or injury was caused by an agency or instrumentality within the exclusive control of the defendant (appellant); that when, on the face of plaintiff's own evidence, it appears that the injury may have resulted from any one of two or more causes, for one of which the defendant may not have been responsible, plaintiff is not entitled to the benefit of the doctrine, citing Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258; Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 526, 203 P.2d 522; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344; Knell v. Morris, 39 Cal.2d 450, 247 P.2d 352; and Note, California Jury Instructions Civil [J.A.J.I.] p. 315.

In this respect, it is argued that if respondent had sued the appellant alone in the instant case the doctrine would not have been available to him because the instrumentality had passed through several hands, for whose actions appellant would not be responsible, and its condition had been changed; that therefore it is possible that the accident was caused by the negligence of someone other than appellant; that to allow the respondent to rely upon res ipsa loquitur in this case would be to say that he can bring in as parties defendant all who handled the instrumentality and thereby use the doctrine against the appellant when it could not have been otherwide available; that the instrumentality had been handled by many others after it had left the appellant's possession; that while many of these persons were made defendants in this action and introduced evidence to show that they had not improperly handled appellant's product, the possession of the instrumentality had been changed; that the instrumentality had long been out of appellant's possession; that appellant had no control over mixing this spray; and that appellant had no superior knowledge of what occurred.

In reply respondent relies principally upon the doctrine as announced and applied in the late case of Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344. It was there stated, in reference to the contention that the instrumentality must be in the exclusive control of defendant before the doctrine is applicable, that the purpose of the requirement that the defendant must have management or control of the agency or instrumentality which caused the injury was to eliminate the possibility that the accident or injury was caused by someone other than the defendant and that its use is merely to aid the courts in determining whether, under the general rule, it is more probable than not that the injury was the result of defendant's negligence; that the requirement of control is not an absolute one and ordinarily will not apply if it is equally probable that the negligence was that of someone other than the defendant, yet the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident; that the fact that the accident occurred sometime after the defendant relinquished control of the instrumentality which caused the accident does not preclude application of the doctrine provided there is evidence that the instrumentality had not been improperly handled by the plaintiff or some other third person, or its condition otherwise changed, after control was relinquished by the defendant. However, in this connection, it must appear that the defendant had sufficient control or connection with the...