Yasukochi, Inc. v. McKibbin

GRIFFIN, J.

Plaintiff, a corporation, a crop grower in San Luis Rey Valley, employed defendants to spray a crop of chili peppers (125 acres) by aircraft with an insecticide supplied by plaintiff, and composed of Malathion and DDT. Plaintiff alleged in its complaint that defendants mixed with this "spray some foreign substance, known to defendants and not known to plaintiff, which had been carelessly mixed by defendants and incorporated with the Malathion and DDT, which injured the plants, resulting in an inhibition in growth, development and yield. Damages for $65,000 are sought. Defendants denied generally these allegations. A jury trial resulted in a verdict for defendants. A motion for new trial and judgment notwithstanding the verdict were denied.

At the trial plaintiff adduced certain testimony indicating that a foreign substance known as Esteron 1010 or 2, 4-D, a herbicide injurious to pepper plants, may have have been previously used on another ranch from the plane’s polished sheet aluminum tank and it had not thereafter been properly cleaned.

Plaintiff’s manager testified defendants had dusted his crops before; that plaintiff decided it would be more economical to spray; that the spray, furnished by plaintiff, was applied on June 25th and 26th, and around July 25th he noticed abnormal symptoms in the crop; that he and defendants observed the condition and were unable to diagnose it; and that experts made an inspection. He said that defendants admitted the equipment used to spray plaintiff’s crop had been previously used to spray 2, 4-D and that defendants said they probably had not cleaned out the tank well enough; that he compared the crop yield in 1953 with that in 1954, and calculated, from the difference in yield, cost of labor, etc., a loss of profit of $25,669.75.

Defendant John S. McKibbin testified the spray, furnished by plaintiff, was mixed with water at the airport; that the

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same plane was used on the two days indicated; that before using it on plaintiff's pepper plants and other plants on the 26th of June he used it in spraying tomatoes on another ranch; used it in spraying pepper plants before and after June 26th on other ranches, without known difficulties; that on June 14th and June 23d he sprayed a ranch with Esteron and Diesel oil, a weed killer spray; that before using plaintiff’s spray on the 25th, he flushed all of the equipment, including the tank, at least three times with a 180-gallon mix of household ammonia, water and detergent soap; that this was a sufficient precaution, “a standard procedure for years,” was according to the recommendations of the University of California; and that he had been a licensed pest control operator since 1951, and had a permit to do this kind of work since 1947.