Treon v. Hayes

• Decision Date: 23 December 1986
• Docket Number: No. WD,WD
• Citation: 721 S.W.2d 789
• Court: Missouri Court of Appeals
• Parties: Raymond TREON and Vernon Munson, Appellants, v. Rick HAYES, Valgene Hayes and V & R Farming, Inc., Respondents. 38090.

Page 789

721 S.W.2d 789

Raymond TREON and Vernon Munson, Appellants, v. Rick HAYES, Valgene Hayes and V & R Farming, Inc., Respondents.

No. WD 38090.

Missouri Court of Appeals Western District.

Dec. 23, 1986.

David A. McAllister, Brunswick, for appellants.

R.M. Gifford, Green City, James P. Valbracht, Chillicothe, for respondents.

Before CLARK, C.J., GAITAN, P.J., and TURNAGE, J.

GAITAN, Presiding Judge.

Plaintiffs-appellants, Raymond Treon and Vernon Munson, brought this civil action against defendants-respondents, Rick Hayes, Valgene Hayes, and V & R Farming, Inc. claiming negligence in the use (spraying) of 2-4-D, a chemical. The plaintiffs assert that the defendants caused damage to their watermelon crop as a result of the drift of spray of 2-4-D used by defendants to spray their corn crop which was adjacent to plaintiffs' crop. This matter was tried to a jury and a verdict returned in favor of the defendants. Plaintiffs appeal alleging the verdict was against the greater weight of the evidence. The judgment of the trial court is affirmed.

At trial, Treon testified that in 1984 he and Munson had an oral agreement whereby Treon would grow a watermelon crop on Munson's land and Treon would pay Munson 25% of the gross crop. A watermelon crop was planted on April 24th or 25th of 1984 and the crop sprouted a couple of weeks later. On June 8, 1984, the plants were 3 to 5 inches tall according to Treon. In 1984, the planting was done in 70 rows which were 12 feet apart and about 550 feet long. The plants themselves were thinned so that each plant would be about 18 inches apart.

According to the record, the day of June 8, 1984, was a nice day with a southwesterly breeze. This was the date that Rick Hayes sprayed his corn crop. Treon testified that there was a 10 to 15 mile per hour breeze. Vernon Munson testified that the breeze was 5 to 6 miles per hour. Rick Hayes testified that the breeze was not more than 3 to 4 miles per hour. Rick Hayes testified that he could see the mist coming from the sprayer and that it appeared to be settling on the ground. He further testified that as he approached the watermelon patch he lowered his spray booms as an added precaution to prevent any drifting of the spray.

On that day, Treon had a discussion with Rick Hayes concerning the spraying. Treon testified that Rick Hayes told him that he didn't think the spray would hurt his watermelon. Rick Hayes testified that he told Treon that the spray wasn't drifting. After these conversations Treon took pictures of Rick Hayes spraying the field in case any problems arose. Treon testified that the next day the watermelon plants appeared to be damaged. Treon and Munson both testified that they did not take any further pictures or notify defendants that they claimed defendants' spraying damaged the watermelon crop until Labor Day of 1984.

Plaintiffs' expert, Raymond Kimmel, testified that if the watermelons were planted on April 24 or 25, he would expect the watermelon plants to have been 2 to 3 feet long on June 8, 1984. He further testified that if the plants were 3 to 5 inches tall on June 8th, it would indicate that the plants were stunted. Kimmel could not fix the period of time when the watermelons were exposed to 2-4-D.

Plaintiffs' other expert, Ronald Alexander, testified that the watermelon plants should have been about 2 to 3 feet long on June 8, 1984. Alexander further acknowledged that the University of Missouri Guide No. 6280 entitled "Growing Watermelon In Missouri" is a reliable guide. Alexander acknowledged the recommendation in that publication that in order to produce melons 20 to 25 pounds, they should be planted 3 to 4 feet apart and in order to produce larger melons the space should be doubled. Alexander further testified that damaged melons should be removed from the vines in order to allow marketable melons to grow, and that Treon had not removed the alleged unmarketable melons from the vines. Alexander further testified that some of the symptoms he observed could have been caused by moisture stress.

Raymond Treon was the only witness who testified to the computations of alleged damages. Treon testified that he expected an average of 1 1/2 watermelons per plant and 366 plants per row or 549 watermelons per row. He used an average of 35 pounds per melon at eight cents per pound for Black Diamond watermelons and figured that 15 rows of Black Diamond watermelons were totally destroyed. An average of 30 pounds at eight cents per pound was used by Treon for the Big Crimson Sweets. Treon testified that 50% of 15 rows were damaged. He computed his damages at a total of $33,818.40 less expenses he saved of $1,261.62 by not marketing his produce. Therefore, his total loss was $32,556.68. Treon's testimony of gross income for the melon crops was $43,068.92 for 1984, even with his alleged damage.

On cross-examination Treon testified that in 1983 he planted 106 rows of melons on land adjacent to and south of the land which he planted in 1984 and that the land was comparable. In 1983 the rows were 400 feet...