Wing v. Clark's Air Service, Inc. ( 1984 )

HUNTLEY, Justice.

By this appeal, Clark’s Air Service invites this Court to assume the function of the jury by resolving conflicting facts, an invitation we decline. No meritorious issue of law is raised, the case has no precedential value and therefore, we will not set forth a detailed statement of the facts.

The jury awarded damages to Mr. Wing, finding in effect that when engaged to spray an insecticide on Wing’s sugar beet crop, Clark’s also sprayed the crop with an herbicide which killed the beets, and the residual effects of which also killed a crop of pinto beans planted to replace the beets.

Since the evidence demonstrated that the loading of the aircraft with chemical and the application of the chemical to the field was an operation solely under the control of Clark’s, the court tendered the standard res ipsa loquitur and negligence instructions to the jury.

Clark’s urges that it was error to instruct on res ipsa, asserting that the offending “instrumentality” was not the aerial spraying operation, but rather that the instrumentality was the chemical. Clark’s then argues that since there was no direct proof that the air service ever had the offending herbicide (Metribuzin) in its possession or in its airplane, that the tendering of the res ipsa instruction was improper.

We disagree. Since the record contained ample evidence from which the jury could find that the crop-damage resulted from the spraying operation, and that the placement of chemicals in the aircraft was under Clark’s sole control, the instruction was proper.

Judgment affirmed. Costs and attorney fees to respondent.

DONALDSON, C.J., and SHEPARD, J., concur.