Wills v. Schroeder Aviation, Inc.

• Citation: 390 N.W.2d 544
• Decision Date: 26 June 1986
• Docket Number: No. 11106,11106
• Parties: Steven H. WILLS, Plaintiff and Appellant, v. SCHROEDER AVIATION, INC., a North Dakota corporation, Ostlund Chemical Co., a North Dakota corporation, and Darrol G. Schroeder, Defendants and Appellees. Civ.
• Court: United States State Supreme Court of North Dakota

Page 544

390 N.W.2d 544

Steven H. WILLS, Plaintiff and Appellant, v. SCHROEDER AVIATION, INC., a North Dakota corporation,

Ostlund Chemical Co., a North Dakota corporation,

and Darrol G. Schroeder, Defendants and Appellees.

Civ. No. 11106.

Supreme Court of North Dakota.

June 26, 1986.

Ohnstad, Twichell, Breitling, Rosenvold, Wanner, Nelson, Neugebauer & Maring, West Fargo, for plaintiff and appellant; argued by Michael D. Nelson.

Solberg, Stewart, Boulger & Miller, Fargo, for defendants and appellees Schroeder Aviation, Inc. and Darrol G. Schroeder; argued by Wayne O. Solberg.

Nilles, Hansen, Magill & Davies, Fargo, for defendant and appellee Ostlund Chemical Co.; argued by Stephen W. Plambeck.

MESCHKE, Justice.

Steven H. Wills appeals from two summary judgments dismissing his action against Schroeder Aviation, Inc. [Schroeder Aviation], Ostlund Chemical Co. [Ostlund], and Darrol G. Schroeder for damages allegedly incurred as a result of the aerial application of a herbicide to Wills' corn crop. We reverse.

Viewed in the light most favorable to Wills, the evidence reflects that on June 15, 1984, Wills contacted Schroeder, the president of Schroeder Aviation, which is an aerial applicator of agricultural chemicals, about weed problems in a portion of his corn acreage. That same day, an employee of Schroeder Aviation aerially applied a liquid post-emergent herbicide, 2,4-D Amine "Clean Crop," to 200 of the 240-acre corn crop. According to Ostlund, the manufacturer of the herbicide, the chemical comes attached with a label that cautions the user that "[w]hen corn is over 8 inches tall, use drop nozzles to keep spray off corn foliage." Wills' corn was two to three feet high when the crop was sprayed.

A thunderstorm struck the area on June 22, 1984. The following day Wills discovered that the 200 acres of corn which had been aerially sprayed were "devastated," and that the 40 contiguous acres of corn which had not been sprayed "suffered no damage whatsoever from the thunderstorm." Wills contacted Schroeder, and on June 23, 1984, Schroeder and a representative of Ostlund came to Wills' farm to survey the damage. According to Wills, pictures were taken by Schroeder and the Ostlund representative, who also "removed several corn stalks and took them with him when he left."

With the planting season rapidly drawing to a close, Wills applied to the Cass County ASCS office on June 25, 1984, for permission to disc under the destroyed corn acreage and re-seed the land. Wills received permission, and subsequently disced under the destroyed corn crop and re-seeded the 200 acres with sunflowers.

On August 8, 1984, Wills filed with the North Dakota Agriculture Commissioner a certified report of loss with proofs of personal service pursuant to Secs. 28-01-40 and 28-01-41, N.D.C.C. ¹ Wills commenced this action against the defendants based on theories of negligence, breach of contract, breach of express and implied warranties, and strict liability in tort. The district court granted the defendants' motions for summary judgment and dismissed the action on the basis that Wills had failed to timely file the verified report of loss with the agriculture commissioner as required by Sec. 28-01-40, N.D.C.C. The district court also granted a separate summary judgment dismissing the individual defendant, Schroeder, from the action because it was "undisputed that plaintiff's dealings were with defendant Schroeder Aviation, Inc. and that defendant Darrol G. Schroeder was at all times, acting on behalf of the corporation, ..." This appeal followed.

Section 28-01-40, N.D.C.C., provides:

"28-01-40. Reports of loss through pesticide application required. No civil action shall be commenced arising out of the use or application of any herbicide, insecticide, fungicide or agricultural chemical by any applicator or operator, unless the claimant has filed a verified report of the loss with the state of North Dakota agriculture commissioner, together with proof of service of such verified report of loss upon the operator or applicator allegedly responsible and, if the claimant is not the person for whom such work was done, then also the person for whom such work was done within a period of sixty days from the occurrence of such loss or within sixty days from the date the claimant knew such loss had occurred, provided, however, if the damage is alleged to have been occasioned to growing crops, the report shall be filed prior to the time when fifty percent of the crop was harvested." [Emphasis added.]

Although Wills filed his verified report of loss within 60 days of the occurrence of the loss, the defendants assert, and the district court concluded, that the filing of the report was nevertheless untimely because it occurred after "fifty percent of the crop was harvested." The primary issue in this case is whether Wills' discing under of his damaged corn crop constituted a "harvest" of the crop within the meaning of Sec. 28-01-40, N.D.C.C.

Wills relies upon numerous dictionary and judicial definitions of the term "harvest" and asserts that the discing operation in this case cannot conceivably be interpreted to constitute a "harvest" of his corn crop. The defendants contend that the underlying legislative intent of the filing requirement is to allow all parties, as well as the agriculture commissioner, an opportunity to investigate the damaged crop before it is cleared from the land by whatever means. The defendants assert that, because the crop was cleared from the land before all interested parties had an opportunity to investigate, Wills' action is barred.

Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears. Section 1-02-02, N.D.C.C. A statute should be construed so that an ordinary person reading it would get from it the usual, accepted meaning. O'Neill Production Credit Ass'n v. Schnoor, 208 Neb. 105, 302 N.W.2d 376, 378 (1981). See also Sec. 1-02-02, N.D.C.C. When a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute. See Sec. 1-02-05, N.D.C.C.; Milbank Mut. Ins. Co. v. Dairyland Ins. Co., 373 N.W.2d 888, 891 (N.D.1985). In Hughes v. North Dakota Crime Victims Rep.Bd., 246 N.W.2d 774, 776 (N.D.1976), this court, in considering the meaning of another statute, stated:

"It is significant to note that only if a statute is ambiguous are we permitted to explore into the legislative object, the consequences, and the preamble. Hughes' argument rests primarily upon the contention that the object of the Legislature to compensate victims and to promote the efficacy of law enforcement would be thwarted by a strict construction. That may well be, but when the Legislature uses such explicit terms as it did in [the statute], we are not permitted to declare the language ambiguous and apply Section 1-02-39 on the pretext of determining intent."

We cannot say that the term "harvested" is ambiguous. It is a word with a commonly understood meaning. The term "harvest" is commonly defined as "the time of year when matured grain, fruit, vegetables, etc. are reaped and gathered in;" "a season's yield of grain, fruit, etc. when gathered in or ready to be gathered in;" "the gathering in of a crop;" "to gather in (a crop, etc.);" "to gather the crop from (a field)." Webster's New World Dictionary 639 (2nd Coll.Ed.1976). None of the definitions we have reviewed support the defendants' assertion that the discing operation in this case constituted a "harvest" of Wills' corn crop. E.g., United States v. Watkins, 147 F.Supp. 786, 790 (E.D.Ark.1957); People v. Villa, 144 Cal.App.3d 386, 192 Cal.Rptr. 674, 676 (...