Potmesil v. EI DuPont deNemours Co., Inc.

408 So. 2d 315, 1981 La. App. LEXIS 5633
CourtLouisiana Court of Appeal
DecidedDecember 16, 1981
Docket8487
StatusPublished
Cited by5 cases

This text of 408 So. 2d 315 (Potmesil v. EI DuPont deNemours Co., Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Potmesil v. EI DuPont deNemours Co., Inc., 408 So. 2d 315, 1981 La. App. LEXIS 5633 (La. Ct. App. 1981).

Opinion

408 So.2d 315 (1981)

Joe POTMESIL, Plaintiff-Appellee,
v.
E. I. DuPONT deNEMOURS CO., INC., et al., Defendants-Appellants.

No. 8487.

Court of Appeal of Louisiana, Third Circuit.

December 16, 1981.
Rehearing Denied January 29, 1982.
Writ Denied March 19, 1982.

Cook, Clark, Egan, Yancey and King, Sidney E. Cook, Shreveport, for defendants-appellants.

Brittain & Williams, Joe Payne Williams, Natchitoches, for plaintiff-appellee.

Gahagan & Gahagan, Fred S. Gahagan, Natchitoches, for defendant-appellee.

Before CULPEPPER, CUTRER and STOKER, JJ.

CUTRER, Judge.

This appeal arises out of a suit for damages sustained by Joe Potmesil to his soybean crop as a result of his use of a chemical herbicide manufactured by E. I. DuPont deNemours Co., Inc.

Joe Potmesil (Potmesil) produced soybeans from a large farm in Natchitoches Parish. He used chemical herbicides to control the grass and weeds in his bean crop. Potmesil purchased his chemicals from E. I. Dupont deNemours Co., Inc. (DuPont) through its distributor, Paul Wall, in Mansura, Louisiana.

During the crop year of 1978, Potmesil had planted 1200 acres of soybeans. On May 11, 1978, he was spraying the fields with a powdered herbicide called Lexone. This form of powdered Lexone was mixed with water and sprayed by aerial application. The aerial application service was rendered by Foshee Dusting Co., Inc. (Foshee). *316 Around noon that day, Potmesil ran out of powdered Lexone. He acquired more Lexone from the Dupont distributor, Wall. Wall had no powdered Lexone but sent Potmesil some liquid Lexone, a new product. Potmesil obtained 125 gallons of liquid Lexone (50 containers with 2½ gallons each). Potmesil applied the liquid to a portion of the 315.5 acres in question. Approximately one week later, Potmesil sprayed the remainder of the acreage in question with the liquid Lexone. Around June 6, 1978, Potmesil noticed that some of his beans were dying or were stunted in growth. The affected area was 315.5 acres which was sprayed with the liquid Lexone.

Potmesil then undertook operations to replant the damaged areas of the 315.5 acres. Even though he replanted same, his yield for this acreage was substantially lower than the beans on adjoining lands which were sprayed with the powdered Lexone.

Potmesil filed suit for damages for his losses on the 315.5 acres. The suit was filed against DuPont and Foshee's alleged insurer, Global Aviation Insurance Company (Global). A default judgment was rendered against Global.[1] Potmesil's petition was then amended by making Foshee a party defendant. After trial on the merits, judgment was rendered in favor of Potmesil and against Dupont in the amount of $42,607.36. The judgment dismissed the suit against Foshee. Dupont appealed. Potmesil answered the appeal seeking attorney's fees.

The issues on appeal are as follows:

(1) Whether Dupont is liable for damages under the circumstances presented;
(2) If such liability exists, whether the damages are excessive; and
(3) Whether attorney's fees should be awarded.

WHETHER DUPONT IS LIABLE FOR DAMAGES

At the outset, we must observe that there is no contention that the liquid Lexone is defective. Potmesil stated that liquid Lexone is an "excellent" product and he has used it since the incident in question by using the recommended amount of liquid per acre, one pint.

The question presented is whether the labels on the liquid containers met the requirements of the law to properly warn the user of the effects of the misuse of the Lexone and/or whether they contained the proper instructions for the use of same.

The facts presented in this case are:

Potmesil, 44 years of age, had been a farmer all of his adult life. He had finished high school and three semesters of college. He owned large farms in Avoyelles and Natchitoches parishes. He farmed principally soybeans. Potmesil testified that he had been using chemicals for approximately eight years before the incident in question. The chemicals were used for weed and grass control in the soybeans. He had used such chemicals or herbicides as Lasso, Lorox, Sencor, Treflan, Lexone and others. It depended upon the type of land as to which chemical or combination of chemicals he would use on a certain area. He explained that he used Lasso, Lorox and Treflan on sandy loam. He had used Sencor, Treflan and powdered Lexone on heavier clay soils. He stated that Sencor or powdered Lexone would kill broadleaf weeds while Treflan was used for grass control.

Potmesil testified that he had used Sencor along with Treflan up until the powdered Lexone became available. The Sencor was a powder form and, according to the instructions for the use of Sencor, he successfully used one pound of Sencor per acre. This information was contained on the labels of the sacks containing Sencor. When powdered Lexone later became available, he switched to Lexone. Potmesil stated that when he began using the powdered Lexone, he checked on how to use it and, after finding out that powdered Lexone was about the same as Sencor, he used the same formula on the powdered Lexone as he had previously used on the Sencor. Potmesil testified that each of the sacks of *317 powdered Lexone contained the directions for the use of the Lexone on the various types of soil. He checked same and determined that the ratio of powdered Lexone was the same as that of Sencor. The directions contained on the back of the powdered Lexone sacks are in evidence. The directions set forth a table as follows:

"
                                                      Rate per Acre
Soil Texture ...                           "Lexone" (1bs.)  +  "Treflan" (Pts.)
Loamy sand, sandy loam                        ½             +          1
Loam, silt loam, silt, sandy clay,
sandy clay loam                               ¾             +         1½
Silty clay, silty clay loam, clay, clay loam  1             +          2

Potmesil stated that the type of land contained in the 315.5 acre damaged area was mixed (sandy and clay to clay).[2] He classified it as heavy land. Applying the recommendations contained in the table set out above, one pound of Lexone per acre is recommended for application to "silty clay, silty clay loam, clay, clay loam." These classifications of soil would include the general types of soil on Potmesil's 315.5 acres. Potmesil stated that he applied one and one-fourth pounds of the powdered Lexone per acre and this proved very satisfactory. Potmesil testified that he may vary a little from the manufacturer's recommendations but would not vary enough to cause damage to his crops. He realized that over-application of these herbicides could cause crop damage.

On May 11, 1978, Potmesil was in the process of applying powdered Lexone to his acreage. Around noon he realized that he didn't have enough powdered Lexone to finish the job. He sent Mrs. Potmesil to Mansura to obtain additional powdered Lexone from Paul Wall, the distributor of Dupont products. Upon arrival, Wall informed Mrs. Potmesil that he had no powdered Lexone but that he had some of the new liquid Lexone. She asked for enough to cover 800 acres. Wall sold her 50 bottles of liquid Lexone with each bottle containing two and one-half gallons.

Mrs. Potmesil delivered the Lexone to her husband and Paul Foshee at the grass landing strip on the farm. It was getting late in the afternoon and the weather was heavily overcast.

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Bluebook (online)
408 So. 2d 315, 1981 La. App. LEXIS 5633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potmesil-v-ei-dupont-denemours-co-inc-lactapp-1981.