The judgment in the first instance was affirmed upon the theory that defendants were liable for having failed to give plaintiff notice of their intention to dust the cotton field. The portion of the original opinion now deleted by my associates read:
"The trial court did not specify the basis for its ruling awarding plaintiff damages. Unquestionably the bees belonging to plaintiff *Page 269 died as a result of the dusting with poisonous arsenic compound of the adjacent cotton crop. While it may be conjectural from the record in this case as to whether their death was caused by the spray of the poisonous insecticide coming in contact with their bodies on plaintiff's acreage or from contact with defendant's cotton crop, still we believe the evidence fully warrants a recovery upon the grounds set forth in the trial amendment, i.e.,that the defendants gave the plaintiff no notice of such dustingin order that he might take the necessary steps to protect hisbees from this deadly hazard, and it is upon this latter groundthat we now sustain the judgment." (Emphasis supplied.)
We recognized and so stated that it was conjectural whether the death of the bees was caused by the dust spray of the poisonous insecticide coming in contact with their bodies or from contact with defendant's crop. On rehearing we are all agreed that the rule of liability announced by the court was arrived at inadvertently; is in derogation of the common law; and would create innumerable unanticipated consequences. The rule announced placed the responsibility for damage on lack of notice and not upon negligence. Such a rule would relieve the wrongdoer of the reasonable consequences of his tortious acts by the mere artifice of giving notice, for which no provision has been provided by statute.
Now according to the majority opinion on rehearing the judgment of affirmance is bottomed upon the negligence of defendants in causing or allowing the poisonous arsenic compound dust to fall and settle around the apiary and premises of the plaintiff, without establishing any causal connection between this conduct and the death of the bees.
This is a case which required the opinion and testimony of an expert in order that the jury might intelligently arrive at a determination. The entire case depended on how these bees were killed. If they were killed by the insecticide falling on the hives and the bees on plaintiff's land, then defendants were liable in damages. If, on the other hand, the bees died by reason of having come upon defendant's land to eat from the poisoned cotton, defendants were not liable in damages to plaintiff. Without some type of expert testimony the jury's verdict could have been based only upon surmise and guess, since the subject under consideration is not within the common knowledge of laymen.
In an attempt to take this case out of the realm of speculation, both sides called an acknowledged expert in bee culture, namely, Dr. S.E. McGregor, whose qualifications showed that he was employed by the United States Department of Agriculture and worked with the University of Arizona; that he had attended Texas Agricultural Mechanical College and Louisiana State University, where he took several courses in entomology and in bee keeping. He testified that he had worked with bees in Texas, New York, Louisiana, Arkansas, and Arizona; *Page 270 that he had kept bees commercially in Texas; and that at one time he was employed as State Bee Inspector for the State of New York. This expert, being the only person who could enlighten the jury, testified with reference to the poisonous dust here used: "It isnot known whether it will kill by contact alone." In addition to this statement he testified as to an experiment that he had performed where he placed two hives in such a manner that poisonous dust was allowed to fall upon, in, and around the two hives. One of the hives was screened so that the bees could not get out; the other was left open. The one that was closed was open to air and the bees could breathe the dust, which was allowed to come in contact with their bodies. This condition was permitted to exist for half a day, then the closed hive was removed a distance of fifteen miles, and the bees were liberated. These bees did not die but remained healthy throughout the year. The other hive was left on the premises where first located, and the bees were free to come and go and feed off the adjacent dusted field. These bees died in a very few days. I propose this question: If the acknowledged expert did not know whether this poisonous dust would kill the bees by contact or breathing, how could the jury so determine? By bringing in a verdict for plaintiff the jury disregarded the only evidence introduced on this controlling issue. The rule in this respect is well set forth in William Simpson Const. Co. v. Industrial Acc. Commission, 74 Cal. App. 239, 240 P. 58, 59, wherein the court, in discussing the value of expert medical testimony, made this statement:
"The rule to be drawn from these decisions, as we understandthem, appears to be that whenever the subject under considerationis one within the knowledge of experts only, and is not withinthe common knowledge of laymen, the expert evidence is conclusiveupon the question in issue. It follows that in such cases neitherthe court nor the jury can disregard such evidence of experts,but, on the other hand, they are bound by such evidence, even ifit is contradicted by nonexpert witnesses. * * *" (Emphasis supplied.)
Regarding uncontradicted and unimpeached witnesses, this court in Rowe v. Goldberg Film Delivery Lines, Inc., 50 Ariz. 349, 354,72 P.2d 432, 435, said:
"* * * But it is also the rule that such triers may not disregard the uncontradicted and unimpeached testimony of a disinterested witness, unless such testimony is discredited by some of the circumstances of the case. * * *"
Again in Phen v. All American Bus Lines, 56 Ariz. 567, 571,110 P.2d 227, 229, it was said:
"* * * We have held repeatedly that a jury may not, as a matter of law, disregard the uncontradicted testimony of disinterested witnesses in regard to a fact. * * *" *Page 271
I submit that the jury arrived at their determination by conjecture and guess, which guess is confirmed by the majority opinion.
The majority opinion on rehearing makes this statement: "The testimony as a whole shows * * * that plaintiff's bees came to their death as a result of the dusting * * * by the dust falling and settling around and upon the apiary and premises of plaintiff * * *." The majority states that the jury was entitled to believe this testimony, and that since they were the triers of the facts and judges of the weight of the testimony their judgment cannot be rejected on appeal. This rule is made applicable by the majority on their assumption that the testimony as a whole shows that the bees died as a result of contact with the poisonous dust. I take the unequivocal position that no layman, including judges, knows whether contact by poisonous dust will kill bees. The general rule relating to sufficiency of the evidence is set forth in 32 C.J.S., Evidence, § 1042, as follows:
"A verdict or finding must be based on the evidence, and cannot rest on conjecture, suspicion, or mere possibilities. It must be supported by legal and substantial evidence, and cannot be based on evidence which is inherently incredible or opposed to natural laws, common knowledge and experience, or established physical facts."
This rule has been repeatedly subscribed to by this court. In Salt River Valley Water Users' Association v. Blake, 53 Ariz. 498,503, 90 P.2d 1004, 1007, the following statement was made:
"* * * We have repeatedly held that juries may not return verdicts on surmise or speculation, and that when damage mayhave resulted from one of several causes, and that it is asprobable that it may have been a cause for which defendant wasnot responsible as one for which it was, a plaintiff may not recover." (Emphasis supplied.)
In Brutinel v. Nygren, 17 Ariz. 491, 506, 154 P. 1042, 1048, L.R.A. 1918F, 713, the court expresses itself as follows:
"* * * 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. * * *"
This statement is quoted and approved in United States Smelting, Refining Mining Exploration Co. v. Wallapai Mining Developing Co., 27 Ariz. 126, 230 P. 1109, and the rule was later set out in Hall v. Wallace, 59 Ariz. 503, 509, 130 P.2d 36, 38, as follows:
"A jury may not return a verdict against a defendant on surmises or guesses. * * *"
In the original opinion it was said:
"In order to determine this matter it is imperative that we now review a portion of *Page 272 the evidence, but first we will state that there seems to benothing in the testimony that we can find to the effect that thebees of this appellee went upon the field of cotton that wassprayed." (Emphasis supplied.)
This portion of the original opinion is by the opinion on rehearing allowed to stand. Further on rehearing the majority opinion states:
"* * * There was no evidence at the trial that the bees went into the defendants' cotton field and there ate the poison causing their death. * * *"
I am of the opinion that this construction placed upon the evidence is unwarranted and such interpretation ignores the only and uncontradicted testimony which is herewith set forth haec verba. There was no evidence that there were other stands of bees located near defendant's field. The plaintiff on cross-examination testified:
"Q. Now, Mr. Bolon, what was your purpose in putting 64 hives of bees and establishing an arbor at that point in the desert? A. We had just bought the 80 acres of land, and there is three tamarack groves, one south and two east, we moved them there on account of those tamarack groves.
"Q. One about a mile or so southeast and two others about a mile east? Is that correct? A. I think so, yes, sir.
"Q. And that is the reason you moved your bees down there. A. That is the reason we moved our bees there, yes, sir.
"Q. And you knew as a matter of fact that the bees also work in that cotton there, don't you? A. I didn't know that, no, sir.
"Q. Well, you knew there was nothing on your 80 acres therefor the bees to feed on, didn't you? A. I knew there was acotton field there.
"Q. And you knew that there was nothing for the bees to feed on on that desert, that 80 acres, didn't you? A. We didn't thinkthey would get anything to eat off the desert.
"Q. That is right? A. We moved them there on account of those tamarack groves.
"Q. And you also didn't object if they fed in the cotton, did you? A. We didn't consider the cotton. I don't consider short staple cotton for bees.
"Q. But you knew that they were working in there some of thetime, didn't you? A. I didn't know that they were or that theyweren't. I suppose they were.
"Q. You suppose they were? A. Yes, some. I don't know." (Emphasis supplied.)
The ranch foreman of defendant testified: *Page 273
"Q. The cotton was in blossom at that time, was it not? A. Yes, sir.
"Q. Did you see any bees in that field? A. Yes, you could see bees any time you went to the field."
The majority opinion stresses the holding of this court in S.A. Gerrard Co., Inc. v. Fricker, 42 Ariz. 503, 507, 27 P.2d 678, and the case of Miles v. A. Arena Co., 23 Cal. App. 2d 680,73 P.2d 1260. In the Gerrard case this court made the following observation [42 Ariz. 503, 27 P.2d 680]:
"* * * The evidence that it was poisonous was very meager aside from the fact that it killed most of the bees that it contacted. If it killed the bees, it was because they enhaled it. It was poisonous to them."
In the California case the court found that the bees were killed by the dust drifting into the hives. In these two cases it must be assumed that there was evidence to support these observations. The facts found in these two cases certainly cannot control in the case before us. This court must base its ruling upon the evidence given in the instant case.
The judgment should be reversed and the trial court, not having granted defendants' motion for a directed verdict, should now be instructed to dismiss plaintiff's complaint.