The original opinion in this matter was handed down on January 12, 1948. Subsequently on January 26, 1948, the appellants filed a petition for rehearing with a supporting brief, to which the appellee filed his objection fortified with his authorities, and because of the complexity of the problem this Court requested that the case be reargued, which was done on February 25, 1948, since which time the members of the court have reread the evidence and considered again the legal principles involved.
The majority of the Court are now of the opinion that while a correct conclusion was reached by us in affirming the judgment, it was error to base the decision wholly upon the failure of the defendants (appellants) to give plaintiff (appellee) advance notice of their intention to dust with the poisonous insecticide in order that the latter might take the necessary steps to protect his hives of bees. (We still believe that a due regard for the rights of others should have prompted the giving of this notice even though a failure to do so would not, on that score alone, make the defendants liable in damages.)
It is ordered that the last two paragraphs of the original opinion commencing with the words "The trial court did * * *" and ending "* * * precautions were not taken.", be stricken from said opinion and the opinion is supplemented by the following:
The testimony as a whole shows and the jury evidently believed that plaintiff's bees came to their death as a result of the dusting with poisonous arsenic compound of the adjacent cotton crop by the dust falling and settling around and upon the apiary and premises of plaintiff due to the negligent acts of the defendants.
"* * * This court is not the trier of the facts. It is of no moment that had we been the jury we might well have decided the other way. Assignments of error based upon the weight of evidence cannot be considered if there is any evidence to support the trial court's finding even though the weight of the evidence be against that finding. Garlington v. McLaughlin, 56 Ariz. 37,104 P.2d 169; Ruth v. Rhodes, 66 Ariz. 129, 185 P.2d 304, and cases cited therein." Kauffroath v. Wilbur, 66 Ariz. 152, 185 P.2d 522,524.
The appellants urge that they were highly prejudiced by the trial court's refusal to give the following instruction:
"You are instructed that if you find from the evidence that the damage to plaintiff's bees may have resulted from one of several causes, but that the defendant is responsible *Page 268 for only one of such causes, then your verdict must be in favor of the defendants because the plaintiff has failed to prove his case. In other words, ladies and gentlemen of the jury, if you find from the evidence that the damage to the plaintiff's bees could as likely have been caused by the bees feeding on the defendant Wheelis' cotton as it could have been by the dust drifting over the hives, then your verdict must be against the plaintiff and in favor of the defendant."
Instead the court instructed the jury as follows:
"It is not enough, ladies and gentlemen, for the plaintiff to prove to you by a preponderance of the evidence that the defendant did use the insecticide upon his cotton and that it did drift over and upon and against and into the colonies of bees of this plaintiff in order to entitle him to recover at your hands, but he must go further and prove that that was the proximate cause of the death of the bees which he claims died. And by `proximate cause', I mean that cause which in its natural and continuous sequence, unbroken by any new or intervening cause, produces the injury complained of, that is, the death of the bees, and without which the bees would not have died."
And in three other instructions the court told the jurors that if the bees were trespassers the plaintiff could not recover. The fact that the bees were trespassing was neither pleaded as a defense nor proved. There was no evidence at the trial that the bees went into the defendants' cotton field and there ate the poison causing their death. We believe in this case that the jury was fully and correctly instructed.
The plaintiff concedes that the correct remittitur exacted by the lower court should have been $363.20 instead of $267.20, a difference of $96. (The defendants claimed that at least $557.60 should have been taken off.) In view of plaintiff's admission, under the powers granted us by Section 21-1832, A.C.A. 1939, we now direct that the judgment in favor of plaintiff be reduced to the sum of $936.80. With this reduction the defendants are entitled under Section 34-121, A.C.A. 1939, to recover their costs in this Court, but are adjudged to pay the costs of the court below.
As corrected and supplemented, our opinion of January 12, 1948, shall remain in full force and effect. The judgment as herein modified is affirmed.
UDALL, J., concurring.