McClanahan v. California Spray-Chemical Corp.

Spratley, J.,

dissenting.

It seems to me that this would be a perfectly plain case if we do not commence by confusing our minds with a lot of questions .not pertinent to the controlling issue. My study of the record convinces me that the judgment of the lower court should be *867affirmed for substantially the reasons given in its written opinion. The difficulty the majority had in reaching its conclusion is manifested in their analysis of and reliance upon isolated statements from that opinion, rather than upon a consideration of the whole.

The pertineht facts are few and simple. Plaintiffs purchased a spraying material known as “Tag” for use in their orchards. “Tag” is a fungicidal liquid containing organic mercury, a poison. It is manufactured by the defendant and distributed in bottles. State and Federal statutes require that the label on such bottles and other printed matter accompanying the poison shall contain both “directions for use which are-necessary and, if complied with, adequate for the protection of the public,” and “a warning or caution statement which may be necessary, and, if complied with, adequate to prevent injury to living man and other vertebrate animals, vegetation, and useful invertebrate animals.”

The label attached to each of the bottles of “Tag” reads, so far as is pertinent to the issue involved, as follows:

“0 0
POISON
X X
INTERNAL: * * *
KEEP FROM FREEZING
“Tag Fungicide No. 331 is- a fungicidal liquid containing organic mercury. It mixes readily with water for spray applications for both the protective and after infection control of apple scab. It is for use during the early season period from delayed dormant through petal fall spray. Note Caution.
DIRECTIONS
“Use Tag Fungicide No. 331 at the rate of * * *. Tag Fungicide No. 331 may be combined with lead arsenate, hydrated lime, DDT, benzene hexachloride, tetraethyl pyrophosphate etc.
⅜ ⅜ (jogage should be increased to ½ pint whenever it is likely that scab infections have occurred following pro*868longed periods of rain. Consult yonr local agricultural authority for correct time for scab sprays in each locality.
“CAUTION: Contact of the undiluted Tag Fungicide No. 331 with the skin and eyes will cause irritation and severe burning and blistering of the skin. Wash off with plenty of water immediately. For eyes, get medical attention. Flush skin or eyes with water for 15 minutes.
“Various restrictions have been placed on the use of poisons on food crops where there is a possibility of residue remaining at harvest. Do not use this product on bearing apple trees later than petal fall.
“NOTICE: The use of this material being subject to conditions beyond their control, neither California Spray-Chemical Corporation nor the seller makes any representation or warranty, express or implied, with respect to results from such use, whether or not used in accordance with directions. The buyer accepts and uses this material subject to these terms and shall not hold either California Spray-Chemical Corporation or seller liable for the results of any use of this material. * * *”

The defendant, in marketing its product, “Tag,” distributed a pamphlet, which set out the ingredients. of the preparation, the purpose for which it could be used, directions for its use, and caution as to use. It also contained this notation: “ (Note Label' Directions and Caution.)” The “Directions For Use” on the label were identical with those on the pamphlet. The warning or “Caution” statement on the pamphlet was the same as that on the label, except for the last sentence, which read: “Do not use this product on bearing apple trees later than two weeks following petal fall or the first cover spray, whichever comes first.”

No question is raised as to the sufficiency of the directions. It appears that plaintiffs paid no attention to any of the state-. ments upon the pamphlet, but relied, they say, upon those on the label. According to their own testimony, however, they did not follow the directions or obey the warnings either on the pamphlet or the label as to time of application. They used “Tag'” on their bearing apple trees “later than two weeks following petal fall.” There was no evidence that they were misled by the terms of the pamphlet or label, into applying the spray at a time later than that prescribed by the directions, and no adequate explanation of why they did so.

*869In this situation, the facts present but the single, narrow issue: Did the defendant fail to label its product in conformity with the requirements of the statutes, that is, give a warning which, if it had been complied with, was adequate to prevent injury to plaintiffs’ trees? The answer, I think, should be in the affirmative.

In an effort to escape the consequences of their folly in not following the directions, plaintiffs contended that it was the duty of defendant “to warn or caution them of unusual hazards or danger that should be reasonably anticipated from the use of “Tag,” and, more specifically, that the preparation should not be applied “after scab has gotten well started on the trees.” Some emphasis is placed upon the specification “unusual hazards or danger.” In ordinary acceptation, the word “unusual” means “uncommon,” and it can hardly be said that an uncommon happening is- to be reasonably anticipated. As experienced orchardists, plaintiffs knew that “Tag” contained poisonous ingredients, which would chemically produce an. injurious or deadly effect upon objects exposed to it. They must have known that unless the directions were followed and the warning obeyed, exposure to the preparation would result in damage to their trees.

The positive prohibition: “Do not use this product on apple bearing trees later than petal fall,” was a warning as to all hazards, usual or unusual, if used later than the specified time. Since the plaintiffs used it “later than two weeks following petal fall or the first cover spray,” the difference between the warnings on the label and the pamphlet is inconsequential.

We are not told how it could be determined when “scab has ' gotten well started,” nor the proper degree of such infection. Both the directions and the caution statement clearly define the limitation of time for the application of the preparation. According to the record, the crop producing leaves could not have been injured within the period of limitation for application of the *870spray, because they do not “put out” before petal fall. Plaintiffs, as experienced orehardists, admittedly knew the time of petal fall.

There appears some contradiction between the plaintiffs and the majority of the court as to whether there was a heavy infestation of scab at the time “Tag” was applied. The record shows that “Tag” was sprayed on the trees beyond the period of limitation prescribed for its application and at a time when there was a heavy infestation of scab. This supports the theory of the plaintiffs as to the condition of scab infestation. In the. court’s opinion it is said: “There is evidence presented in testimony of witnesses who had personally inspected the orchard that the condition of plaintiffs’ orchard in the Spring of 1949, and until the application of “Tag” was altogether normal. * * * there was slight scab on the leaves of the lower limbs. * * * There wasn’t really what you would call heavy infestation.”

This brings us to a consideration of the sufficiency of the caution or warning statement. As the trial judge observed, the limitation of time with respect to the use of the spray is stated three times on the label. First it says that “Tag” “is for use during the early season period from delayed dormant through petal fall spray. Note Caution-.” In the “DIRECTIONS,” it is stated that it is to be “applied in the pre-blossom and petal fall spray “CAUTION” statement contains this warning: “Do not use this product on bearing apple trees later than petal fall.” (Italics added.) All of the sophistry of the most eminent pleaders cannot change the meaning of the warning one whit.

The prohibition as to application “later than petal fall” was positive, simple and direct. It could serve no purpose other than to warn of danger upon violation, a warning with special meaning to experienced orehardists who know the condition of the foliage on their trees at the time of petal fall. No additional warning was necessary under the statutes. To say that there should have been added a statement “Use only as directed, and not otherwise, or damage may result,” is a reflection upon the intelligence of the plaintiffs.

Nor do I think that, under the circumstances here, there was established a “commonly recognized safe practice” for the plaintiffs to follow in applying ‘ ‘ Tag. ’ ’ In the first place, ‘ ‘ T'ag ’ ’ was a new discovery and was being used, so far as the plaintiffs *871knew, for the first time in Virginia. Moreover, no “commonly recognized safe practice” should be followed in the face of positive directions to the contrary.

In my opinion, the verdict of the jury is contrary to the law and the evidence. I cannot bring myself to assent to a recovery by the plaintiffs where the undisputed evidence shows that they brought the damage upon themselves, either through negligence or by a wilful disobedience of directions and warnings. It having been established that no injury would have been incurred by plaintiffs had they observed the directions and caution statements on the label of “Tag” and the accompanying pamphlet, it must logically follow that their default was a proximate cause of the damage occasioned them. There is a question of the wisdom and fairness of subjecting defendant to liability for damages under such circumstances. The majority opinion fashions a broad, new law of negligence in conflict with that which we have followed for many apt to cause embarrassment in the future.

Eggleston, J., concurs in this dissent.