LUNDBERG et al.
As Modified on Rehearing May 18, 1948.
Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Robert Denton, of Casa Grande, and Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., and Henry S. Stevens, all of Phoenix, for appellants.
Dwight L. Solomon, of Phoenix, for appellee.
Stanford, Chief Justice. LaPrade and Udall, JJ., concur.
Stanford, Chief Justice.
[67 Ariz. 260] This is an appeal from a judgment rendered in the trial court on a verdict of a jury.
Appellant Wheelis was growing a crop of cotton on leased land south of Eloy, Arizona. A highway separated the cotton land referred to from desert land owned by appellee. Upon the desert land appellee had sixty-four stands, or colonies, of bees. The cotton crop, being infested with insects, required dusting with an insecticide, and for that purpose Harold F. Lundberg was procured by the other appellant to do the dusting. On the morning of July 24, 1944, at about daylight, the appellant commenced dusting the said tract of cotton with his airplane and continued with such work for about two hours, when the job was finished.
Although the desert land of appellee was next to the road that divided the two pieces of property, the cotton and the desert land, the bees referred to were approximately 880 feet west of the road.
Appellee brought action against the two appellants named and in his complaint alleged: "That on said day, defendant Harold F. Lundberg, using an airplane, did so dust or spray the cotton crop of defendant Tommy Wheelis with poisonous chemicals
or insecticides, and performed the work in such negligent manner that the poisonous chemicals or insecticides, in spray or dust form, drifted over and upon plaintiff's land, and over, against, upon and into, said stands of bees, and killed all of the bees therein."
At the close of appellee's case appellants moved for a dismissal of appellee's case. This motion was denied by the court. After judgment appellants moved for a new trial, which motion was also denied. The verdict of the jury was the sum of $ 1300. One of the grounds for new trial was "that the damages are excessive and appear to have been under the influence of passion and prejudice". Prior to the disposition of the motion for new trial appellee filed a remittitur [67 Ariz. 261] in the sum of $ 267.20. Thereafter the court denied the motion for new trial.
On April 2, 1946, the court rendered judgment by minute entry and on the 11th day of April signed the formal judgment. Thereafter on the 22nd day of May, 1946, appellee filed "Motion to Amend Plaintiff's First Amended Complaint to Conform to the Evidence" by inserting the words "said defendants giving no notice of such dusting to plaintiff prior thereto", said insertion to be at the end of paragraph 9 of the amended complaint. The application was based on Sec. 21-449, A.C.A.1939. On the 3rd day of June, 1946, said motion was granted by the trial court.
Appellants' three assignments of error are well summarized in the following propositions of law:
"1. A verdict must be based upon the evidence, and cannot rest on conjecture, assumption, surmise, or mere possibility.
"2. Where the evidence shows the damage may have resulted from one of several causes, but only one of the causes can be attributed to the defendants' negligence, the plaintiff must fail.
"3. Where the damages assessed by the jury are excessive, a full remittitur of the excess should be made or the court should grant a motion for new trial."
In support of this proposition of law appellants claim that "* * * no evidence whatsoever was introduced to show the relationship between cause and effect. * * There is no evidence of a chemical analysis of any of the dead bees, nor is there any evidence tending to prove that bees can be killed by such an insecticide coming in contact with them. In order to find that the bees were killed by reason of this insecticide drifting on to plaintiff's property, it is necessary to assume evidence which is not present in the record."
Appellants claim that in bringing in a verdict as in this case it became necessary for the jury to base its findings on conjecture, speculation and assumption. Appellants quote the following rule from 32 C.J.S., Evidence, § 1042:
"A verdict or finding must be based on the evidence and must be based on the facts proved. Under this well established rule the verdict or finding cannot rest on surmise or speculation. Likewise, under the above mentioned well established rule a verdict or finding cannot rest on conjecture. Likewise, under the above mentioned well established rule a verdict or finding cannot rest on guess, supposition, assumption, imagination, or suspicion.
"The evidence on which the verdict or finding is based must be competent, legal evidence, and must support every material fact; and where there is no evidence, or the evidence as to a material issue is insufficient, the decision should be against the party having the burden of proof. The evidence must be sufficient to warrant a reasonable belief in the existence of those facts which the verdict or finding establishes; [67 Ariz. 262] the verdict or finding must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not on mere possibilities."
Appellants also quote the following from our case of Salt River Valley Water Users' Association v. Blake, 53 Ariz. 498, 90 P.2d 1004, 1007: "* * * We have repeatedly held that juries may not return verdicts on surmise or speculation, and that when damage may have resulted from one of several causes, and that it is as probable that it may have been a cause for which defendant was not responsible as one for which it was, a plaintiff may not recover."
Also appellants quote from the case of Brutinel v. Nygren, 17 Ariz. 491, 154 P. 1042, 1048, L.R.A.1918F, 713: "* * *
To sustain the judgment in this case it would be necessary to hold that the jury in arriving at their verdict have a legal right, in the absence of any evidence in regard thereto, to conjecture and assume necessary and controlling facts, which, under the law, is beyond the province of a jury. * * *"
In order to determine this matter it is imperative that we now review a portion of the evidnece, but first we will state that there seems to be nothing in the testimony that we can find to the effect that the bees of this appellee went upon the field of cotton that was sprayed.
The testimony of DeWitt Bolon, son of appellee, was to the effect that he heard the airplane dusting; knew the sound of a dusting plane, and he thereupon went to the field where the bees were located, and stated: "I drove to the bee yard and observed that the dust was very dense, and I coughed, and it caused a cough, and a smarting of the eyes." Bolon also testified that about ten days before the dusting he was at the bee yard and defendant Wheelis passed at that time. This witness testified also that there was a thick grove of tamarisk trees about five miles distant from the bees.
Dr. E. S. McGregor, a witness for both sides in the case, testified that he was an apiculturist and was then employed with the United States Department of Agriculture, cooperatively with the University of Arizona; that he saw the bees on the 1st day of August, 1944, but had not seen them before that time, and when asked what condition they were in, he replied: "They were very weak." He also testified that there were no diseases among bees that would kill them within several days time, or words to that effect. Also he testified that by test, or experiments made, bees were known to have traveled 8 1/2 miles for substance for their use. In addition to that, he stated that as a test on a certain occasion in a field northwest of Eloy, Arizona, the field being approximately 320 acres, he placed two hives of bees the night before the field was going to be dusted. They were placed on the northwest corner of the field at the fence approximately 20 feet from the end of the cotton rows.
[67 Ariz. 263] "* * * One of those hives was sitting in its normal position, open, the entrance hole open, just as it would set in the apiary. The other hive was what they described yesterday as a two-story hive, and in this hive I fixed a -- what you might call a screen penthouse, and screen wire all the way around the top so that air could get in, so the bees wouldn't smother, and I also screened up the hole, the entrance hole, so that bees couldn't get out, so they could get air at the bottom and at the top. They could get plenty of air, but they couldn't get out of the hive. The other hive was free to fly any time they wanted to. The field was dusted starting some time between dawn and sunup, and the dusting operation took approximately two hours, until from about -- oh, say they started at 5:30, until about 7:30, approximately. I have forgotten what the time was, but that is approximate. The drift of the dust during this period was directed towards the bees, and the dusting operation started on the westward side, so that from the time the plane flew the first swath until he flew the last swath the hives were setting in the dust -- or in the drift. About noon that day, while this screened hive was still closed, I, without opening it, picked it up and set it in my truck, and hauled it approximately 15 miles away and opened it up. The other one I left there about ten days -- it was then ten days -- and then hauled it away to the same location that I hauled the other one to.
"Q. What was the result of your experiment? A. The hive that was screened up lived on to the end of the year and into the next spring, when I quit taking observations on it. The hive that was open got weaker and weaker in bees every day and died on the 36th day."
Also the testimony of Dr. McGregor further shows that bees normally collect pollen in pellet form and in that way carry it to the hives on their legs; that the pollen in the hives, which he examined for the appellee, was in pellet form and that the bees must have carried it in that form. He said that bees could not ball the pollen from cotton blossoms because "The pollen grains from cotton are purportedly covered with a viscid material -- a sticky material, and the pollen grains don't cling to each other in a sort
of a stringy fashion, so the bee can't ball them into a ...