S. A. Gerrard Company, Inc., a Corp. v. Fricker, Civil 3328

• Decision Date: 09 December 1933
• Docket Number: Civil 3328
• Parties: S. A. GERRARD COMPANY, INC., a Corporation, Appellant, v. L. H. FRICKER, Appellee
• Court: Arizona Supreme Court

27 P.2d 678

42 Ariz. 503

S. A. GERRARD COMPANY, INC., a Corporation, Appellant,
v.
L. H. FRICKER, Appellee

Civil No. 3328

Supreme Court of Arizona

December 9, 1933

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr. Thomas A. Flynn, Mr. Joseph M. Holub and Mr. Allan K. Perry, for Appellant.

Messrs. Beer, Walsh & Wilmer, for Appellee.

OPINION [27 P.2d 679]

[42 Ariz. 505] ROSS, C. J.

The Gerrard Company appeals from a judgment against it for damages to Fricker's apiary. We shall refer to the parties as plaintiff and defendant.

The plaintiff's apiary is located near Chandler in Maricopa county, and adjacent thereto the defendant was growing 105 acres of lettuce. In the process of spraying an insecticide called Dutox No. 20 on defendant's lettuce field to rid the field of worms, the spray fell upon, or was blown upon, the plaintiff's apiary, with the result that his bee business was damaged. The spraying was done from an airplane flying over the lettuce field and as plaintiff claims over his apiary and releasing the dust or spray. The defendant did not itself operate the airplane, but it employed the Hawks Crop Dusting Company to do the spraying. This corporation was engaged in that particular kind of work. It furnished its own pilots and airplanes and in the operation was not under the control or direction of the defendant. Only the powder or dust was supplied by defendant. This powder or dust was fatal to lettuce worms, and to bees, judging from what happened in this case. The spraying was done October 11, 1931, between 8 and 9 o'clock in the morning, and consumed about twenty-five minutes. At 4 o'clock in the afternoon the bees were flying around, buzzing, and dropping, some were dying. They were scattered all over the yard. The death rate was greatest for about four days, but continued for nine days. Most of the workers were killed. Some of the brood died because there were not enough workers to keep the brood warm. Many queens died, and all of them quit laying.

The plaintiff had 383 colonies, averaging from four to five pounds of bees, or 20,000 to 25,000 bees, in good healthy condition before the dust was released [42 Ariz. 506] on them. He employed two apiculturists to assist him in salvaging as much of his apiary as possible and paid them for their services $100.

He fed the bees during the months of October, November and December, 1931, and January, February and March, 1932, $100 worth of honey. He spent ten days of each of said months caring for the bees and feeding them, for which he claimed a compensation of $300. [27 P.2d 680]

There were so few bees left in some of the colonies as to make it necessary to unite them with other depleted colonies and in this way 75 colonies were entirely absorbed. This left 308 colonies averaging from a pound to a pound and a half, or from 5,000 to 7,500 bees, mostly young ones, the old ones having died or been killed off.

The market value of a colony of bees in good condition was $7.50. The market value of plaintiff's bees after rebuilding was $3 per colony.

The trial...