The herald., 1894-02-28
THE LAW AND FUM|GAT|ON.
Judge Shaw Talks Learnedly Of
Cyanide and Its Uses.
He Finds Experts Differ as to the
Quantity Used.
individuals May Suffer, But tho Law
Must Be Enforced-Some Points
About Arbitration
Discussed.

Muffin CT al, WHICH udb Chueeu IuuCu
interest among fruit growers, Judge
Shaw late yesterday afternoon rendered
a decision in favor OF the defendant.
1t was a suit for damages to lemon
trees fumigated by Deputy Horticul
tural Commissioner McMulin. In the
course of an opinion filed the court
says:
1.-THE defendant McMullin, as q de-
troversy has been submitted to arbi.
tration, and has been heard and deter.
mined by arbitrator. The proceedings
OF the arbitrators are not in accordance
with the statute, and it is contended
that the award 10 void for that reason.
The agreement for submission does not
purport to be an agreement for 9 statu-
airy arbitration. It'll undoubtedly good
under the common law, il it be held that
the statute on the subject is not ex-
elusive and does not require that all
arbitration shall be held In the manner
therein provided. This is q question
which has never been directly decided
in this state. In the two cases of Will
lams We. Walton, 8 CAL, 146 and Krieas
VS.. Hotaling, SO CAL, Gil, it seems to
have been considered that there may be
an arbitration which would be
good as common law arbitration and
capable OF enforcement by an action
which would be void under the statute
and not capable of enforcement by mo-
ton as provided in the code.
In the most of the other states it has
l. II \ a. = ako kr1ta ~ 20
arbitration is not exclusive. Thus it is
said in Burnside We. Whitney, 81 N. Y,
14S. 1t has been often held that the
statute prescribing certain forms for
submission to arbitration, and allowing
the parties to agree that a judgment of
q jourt OF record, designated in the sub
mission, should be rendered upon the
award, was cumulative merely, not ex-
elusive; and that an award pursuant to
a submission, which would have been
valid at common law, but which did not
conform to the statute, would support
the action"
After referring TO several casos the
court says that in view of them he
thinks it should be held that the award
in question is valid under the common
law, and therefore bar to this action,
coed in the manner required in the code,
and continues;
aside from this question the defend
ant also claims that he is not liable for
dsmages becauee there is not sufficient
proof of negligence.
The plaintiff employed the defendant
to fumigate his lemon trees for the pur-
pose OF freeing them from the black
scale. The defendant undertook TO use
due care and skill in doing the work ;
that is to say, to the care and ekill OF q
reasonably careful man in work of a
similar character, or ordinary care and
skill.
He also, by accepting the employment
warranted himself to possess the ordi-
nary knowledge OF persons engaged in
the same business in regard to the char
acter of the operation and the materials
to be used therein. 1t has not been
shown that he did not possess such
knowledge; nor has it been shown that
he did not 90 about the operation care
fully. He computed the cubic contents
OF the car in which the fumigation was
conducted and determined therelrom
the amount of cyanide which should be
used under similar circumstances, but it
cannot be said that he used an amount
which OF itself would show negligence.
The amount was within the limits fixed
by the experts as the proper quantity.
The evidence also shows that there is
great difficulty in determining the
proper quantity of cyanide to be used ;
that it's strength varies in different
packages and in different portions of the
same package, and that there is no GER
| taintv OF the same results at different
times with the same amount gf chemi-
Gals. The problem required is to Tx
the amount necessary to kill the scale
without making the gas strong enough to
materially injure the trees, and it ap-
pears that the most careful men will
sometimes fail to tumigate without in
| iury. The defendant did not warrant
| the success OF the operation, and the
mere fact that tie trees were injured
| does not make out case for the plain
| tiff.
| IL must be shown that the injury was
| the result OF the defendant'e negligence.
This think the plaintiff failed to do.
! The defendant agreed to use ordinary
| care in the operation. The plaintiff
| himself must be held to have assumed
| the risks inherent in the process itself.
| The materials were prescribed by the
public authorities and the defendant
was not responsible for any bad judg-
ment of the proper authorities in select
| ing dangerous method.
1t may be said that it has not been
shown that there is any other less dan
gerous method by which the scale could
be as effectively destroyed. The law
requiring fumigstion is in the nature OF
a police regulation, in the enforcement
of which it often happens that come in
dividual must suffer loss, because the
regulation is general and cannot be mod
| flied to suit particular cases.
The judgment will be for the defend
ant.
O. W. o. Hartman, Sheriff of Tyler
county, W. Va, appreciates a good
thing and does not hesitate to say so.
He was almost Frustrated with cold
Il