CROUSE et al.
Rehearing Denied Sept. 21, 1954.
[77 Ariz. 360] Shimmel, Hill & Hill, and Robert & Price, Phoenix, for appellants.
Snell & Wilmer by Walter Linton and Edward Jacobson, Phoenix, for appellee.
This is an appeal by third party plaintiffs R. E. Crouse, E. E. Moore et ux., and [77 Ariz. 361] American Casualty Company, a corporation, from a judgment entered non obstante veredicto, in favor of third party defendant-appellee, Wilbur-Ellis Company, a corporation. For simplification the parties will hereafter be designated either by name or as plaintiffs and defendant.
Upon appeal from judgment n. o. v. the facts must be taken in the light most favorable to the party who received the verdict. Glowacki v. A. J. Bayless Markets, 76 Ariz. 295, 263 P.2d 799. The facts giving rise to this litigation, stated in the light most favorable to plaintiffs, are that during the summer of 1949 plaintiffs were growing cotton on eighty acres of land a half mile north of West Camelback Road on Lateral 15 in Maricopa County. Their neighbor, D. N. Schrock had an excellent cantaloupe crop on an abutting eighty acres. Their respective holdings lie as indicated:
Defendant Wilbur-Fllis Company was engaged in the business of selling and supplying insecticides and fertilizers to farmers. In conjunction with the operation of its business, it maintained and employed certain experienced technical men who would periodically inspect customers' fields and ascertain the extent and nature of insect infestations, and would then recommend and sell to the customers a proper kind and amount of its products to rid or control the infestation. Plaintiffs were customers of defendant, and defendant at the time here involved was looking after and recommending the means of controlling the insect hazard in plaintiffs' field of cotton.
On the morning of July 6, 1949, defendant's expert, Philip B. Henry, Jr., made an inspection of plaintiffs' cotton field and determined the existence of a dangerous infestation of lygus and stinkbugs. He immediately reported this to plaintiffs and stated they needed to dust. No discussion was had as to the kind of insecticide to be used, for plaintiffs wholly relied upon Henry's judgment. The latter placed the order for insecticide with defendant, and about 4:00 or 4:30 p. m. that evening Henry personally delivered to the Airhaven Airport
1500 pounds of insecticide containing 5% DDT, 77% sulphur and 18% inert ingredients, by weight.
Chester Kurinsky, president of the Quick Flying Service, a corporation engaged in crop dusting for farmers, was present when plaintiffs were advised of the infestation and need for dusting. Inasmuch as his [77 Ariz. 362] company had previously been performing this service for plaintiffs Kurinsky was told by plaintiffs to go ahead and dust the cotton crop which his fliers did that evening just before dusk.
Shortly after the dusting Schrock's cantaloupe crop suddently underwent a great change. The vines turned light green in color and a day or two later the vines and leaves 'seemed like a blowtorch had hit the whole field'. The melons were exposed to the hot rays of the sun and practically the whole crop was lost. The testimony is overwhelmingly to the effect that the destruction of the cantaloupe crop was caused by the dusting of plaintiffs' cotton on the adjoining land. Apparently a breeze blowing from the north at the time of the dusting had carried the insecticide onto the melon crop, and the experts all agreed that this insecticide because of its high sulphur content is extremely deadly to the cantaloupe plant. Defendant at the time of advising the use of the insecticide, through its agents, knew of the deadly effect of sulphur upon cantaloupe plants, and knew that the field of cantaloupe adjoined the field of cotton. It also knew that it was not good practice to dust with sulphur in the immediate vicinity of a growing crop of cantaloupe. The evidence stands uncontradicted that plaintiff were not aware that an insecticide containing sulphur would be destructive of a cantaloupe crop, nor were they or the Quick Flying Service apprised by the agents of defendant Wilbur-Ellis Company of these facts or of the hazard to which they were being subjected. The evidence also shows there is an insecticide, benzene hexachloride, which is harmless to cantaloupe plants and would have effectively controlled the infestation in the cotton crop. In fact, the dusting with sulphur and DDT failed to kill the infestation, and benzene hexachloride was used in dusting the cotton some three days and thirteen days after the dusting with sulphur.
When Schrock ascertained the cause of destruction of his melon crop he demanded that Crouse and Moore owners of the cotton crop, and the Quick Flying Service reimburse him, and he brought an action sounding in tort against them for damages in the sum of $45,000. The parties he sued then applied to the court and obtained an order bringing in the Wilbur-Ellis Company as third party defendant, claiming that the latter was the party directly responsible for the damage and that they should recover over against it. Crouse and Moore also cross-claimed against their co-party, the Quick Flying Service, asking a judgment over for any judgment they might be required to pay. Thereafter the American Casualty Company, Crouse and Moore's insurance carrier, was brought in as a party defendant.
After a complete and full investigation of the facts, Crouse and Moore and their insurance carrier became convinced that under our holding in the case of S. A. Gerrard Co., Inc., v. Fricker, 42 Ariz. 503, [77 Ariz. 363] 27 P.2d 678, they could not escape responsibility for the destruction of their neighbor's valuable cantaloupe crop, so they went to Schrock and made an effort to discharge the obligation. Their position was made known to the Wilbur-Ellis Company and the Quick Flying Service, who were tendered the defense of the case and were requested to participate in any settlement or compromise that could be made of Schrock's claim for damages. This tender and request met with a firm denial from both parties and both refused to participate in any negotiations or to make any contributions to the payment of the damage.
Thereupon, Crouse, Moore and the American Casualty Company reached a settlement with Schrock and paid the latter $10,000 in return for his covenant not to sue. Schrock then dismissed the case against them but proceeded with the trial of his case against the Quick Flying Service, which resulted in an instructed verdict
for the latter on the theory the dismissal was a release of joint tortfeasors. On this appeal we are not ...