Adams v. Henning

BARNARD, P. J.

The plaintiff has appealed from a judgment in favor of the defendants based upon the granting of their motion for a nonsuit. On such an appeal the evidence must be construed most favorably to the plaintiff; conflicts in the evidence are not to be considered; credit must be given only to that part of the plaintiff’s evidence which tends to support the complaint; and the judgment may be sustained only when it appears that there is no substantial evidence which would have supported a judgment in favor of the plaintiff.

(Reynolds

v. Filomeo, 38 Cal.2d 5 [236 P.2d 801].)

This action involved alleged damage to a crop of potatoes owned by the plaintiff. The plaintiff had three fields of potatoes on her land, the southerly field consisting of about 28 acres. The defendant Henning had a field of potatoes immediately south of the 28-acre field, the two fields being separated only by a fence. On August 4, 1948, and again on August 21, 1948, the defendants caused a spray to be released from an aircraft over the land of the defendant Henning. For this purpose the aircraft flew in a north and south direction, cutting off the spray near the boundary and then turning over the plaintiff’s field and flying back over the defendants’ field, where the spray was again released. This spray was an emulsion containing three chemicals, two being of a kind used for killing insects and the third, known as 2,4-D, used for killing weeds.

An employee of the plaintiff testified that while he was cultivating in the middle of this 28-acre field on August 21, he saw the plane come up, shutting off the spray near the boundary and then circling over the field in which he was working and going back over the defendants’ field, and that he could see the dust rise but could not tell whether any of the spray came across the fence line. However, the next day he observed that there was a wasting away of the leaves, a brownish color and a curling of the leaves of the potatoes

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on the plaintiff’s land. The plaintiff testified to observing the same condition prior to August 21 and after that date. She also testified that the crop from that field, when harvested, was much smaller than that produced on her other two fields; that the potatoes were small and blistered and of an inferior grade; and that the potatoes “broke down” and decayed while they were being shipped to Los Angeles and San Diego to such an extent that they were rejected by the officials when they arrived.