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

CourtSupreme Court of Arizona
Writing for the CourtROSS, C. J.
Citation27 P.2d 678,42 Ariz. 503
PartiesS. A. GERRARD COMPANY, INC., a Corporation, Appellant, v. L. H. FRICKER, Appellee
Decision Date09 December 1933
Docket NumberCivil 3328

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 was before a jury and resulted in a verdict and judgment for plaintiff for $2,000.

Defendant denied any liability and did not contest or introduce any evidence on the question of the amount of damages plaintiff suffered.

Defendant's assignments of error raise four questions of law. It contends: (1) That the Hawks Crop Dusting Company was an independent contractor, and that therefore defendant was not liable for any damage suffered by the plaintiff; (2) that, since plaintiff alleged that his bees were poisoned, he must show that the substance that killed them was poisonous, which he has failed to do; (3) that the instructions were erroneous in assuming that the Dutox dust or powder was in fact a poison; and (4) that the verdict was excessive in that the greatest loss proved did not exceed 75 colonies at $7.50 per colony.

As a general rule the employer is not liable for the negligence of an independent contractor. There are, [42 Ariz. 507] however, certain exceptions to this general rule. One of such exceptions is that the law will not allow one who has a piece of work to be done that is necessarily or inherently dangerous to escape liability to persons or property negligently injured in its performance by another to whom he has contracted such work. This is especially true where the agency or means employed to do the work, if not confined and carefully guarded, is liable to invade adjacent property, or the property of others, and destroy or damage it. The defendant was within its legal rights in depositing the insecticide on its lettuce field for the purpose of ridding it of the worms with which it was infested, and it could do this work itself or it could contract it, but, because of the very great likelihood of the poisonous dust or spray spreading to adjoining or near-by premises and damaging or destroying valuable property thereon, it could not delegate this work to an independent contractor and thus avoid liability. 39 C.J. 1331, § 1540; 14 R.C.L. 87, § 24; Medley v. Trenton Inv. Co., 205 Wis. 30, 236 N.W. 713, 76 A.L.R. 1250; St. Louis & S.F.R. Co. v. Madden, 77 Kan. 80, 93 P. 586, 17 L.R.A. (N.S.) 788. We conclude that the facts bring the case within the named exception, and that, because of the dangerous character of the agency employed, the work was not delegable, and that the Hawks Crop Dusting Company was in the performance thereof the...

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38 practice notes
  • In re Quiroz, No. CV-16-0248-PR
    • United States
    • Supreme Court of Arizona
    • May 11, 2018
    ...for both the landowner and the insecticide company in Crouse was, like the landowner’s liability in S. A. Gerrard Co. v. Fricker , 42 Ariz. 503, 27 P.2d 678 (1933), based on a physical trespass caused by crop dusting. 77 Ariz. at 361–62, 272 P.2d 352 ; see Sanders v. Beckwith , 79 Ariz. 67,......
  • E. L. Jones Const. Co. v. Noland, No. 9676
    • United States
    • Supreme Court of Arizona
    • March 19, 1970
    ...negligence of an independent contractor; however, we have recognized certain definite exceptions to this rule. S. A. Gerrard v. Fricker, 42 Ariz. 503, 27 P.2d 678; Welker v. Kennecott Copper Company, 1 Ariz.App. 395, 403 P.2d 330. For Noland to recover--being an employee of an independent c......
  • Fairway Builders, Inc. v. Malouf Towers Rental Co., Inc., No. 1
    • United States
    • Court of Appeals of Arizona
    • July 3, 1979
    ...to the opportunities that may fairly be or appear to be within his reach. . . .' " 17 C.J. 844, § 166. S. A. Gerrard Co., Inc. v. Fricker, 42 Ariz. 503, 508, 27 P.2d 678, 680 (1933). Accord, Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 518, 446 P.2d 458, 461 (1968). The key requir......
  • Kaufman v. Langhofer, No. 1 CA-CV 08-0655.
    • United States
    • Court of Appeals of Arizona
    • December 22, 2009
    ...as personal property and limiting damages for their negligent injury or death to their fair market value. S.A. Gerrard Co. v. Fricker, 42 Ariz. 503, 508-10, 27 P.2d 678, 680-81 (1933) (damage rule for destruction of bees "must be the one ordinarily applied for the destruction of or injury t......
  • Request a trial to view additional results
38 cases
  • In re Quiroz, No. CV-16-0248-PR
    • United States
    • Supreme Court of Arizona
    • May 11, 2018
    ...for both the landowner and the insecticide company in Crouse was, like the landowner’s liability in S. A. Gerrard Co. v. Fricker , 42 Ariz. 503, 27 P.2d 678 (1933), based on a physical trespass caused by crop dusting. 77 Ariz. at 361–62, 272 P.2d 352 ; see Sanders v. Beckwith , 79 Ariz. 67,......
  • E. L. Jones Const. Co. v. Noland, No. 9676
    • United States
    • Supreme Court of Arizona
    • March 19, 1970
    ...negligence of an independent contractor; however, we have recognized certain definite exceptions to this rule. S. A. Gerrard v. Fricker, 42 Ariz. 503, 27 P.2d 678; Welker v. Kennecott Copper Company, 1 Ariz.App. 395, 403 P.2d 330. For Noland to recover--being an employee of an independent c......
  • Fairway Builders, Inc. v. Malouf Towers Rental Co., Inc., No. 1
    • United States
    • Court of Appeals of Arizona
    • July 3, 1979
    ...to the opportunities that may fairly be or appear to be within his reach. . . .' " 17 C.J. 844, § 166. S. A. Gerrard Co., Inc. v. Fricker, 42 Ariz. 503, 508, 27 P.2d 678, 680 (1933). Accord, Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 518, 446 P.2d 458, 461 (1968). The key requir......
  • Kaufman v. Langhofer, No. 1 CA-CV 08-0655.
    • United States
    • Court of Appeals of Arizona
    • December 22, 2009
    ...as personal property and limiting damages for their negligent injury or death to their fair market value. S.A. Gerrard Co. v. Fricker, 42 Ariz. 503, 508-10, 27 P.2d 678, 680-81 (1933) (damage rule for destruction of bees "must be the one ordinarily applied for the destruction of or injury t......
  • Request a trial to view additional results

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