*1 CHRISTENSEN, Don L. Plaintiff Appellant,

MIDSTATE AERIAL APPLICATORS CORP., Agsco Chemicals, Inc., domes- corporations, Respond- tic Defendants ents. No. 8444.

Civ.

Supreme Court of North Dakota. Graff, Mandan, Vogel, plain- Bair & appellant. tiff and April 10, Pearce, Engebretson, Anderson &

Schmidt, Bismarck, for defendant and re- Chemicals, spondent Agsco Inc. Crothers, Fargo, Donald H. for defend- respondent ant Appli- Midstate Aerial Corp. cators Chief TEIGEN, Justice. appealed from a sum-

mary judgment of his com- dismissal of plaint. summary judgment

The motion for leges complaint does not state claim. premised ground The motion on the statutory certain conditions the institution of the action have not been complied with. plaintiff, by complaint, claims injury crops to and loss of his

resulting from the use a chemical MX, labeled manufactured sold Chemicals, Inc., to Midstate Aerial Applicators Corp., aerially applied plaintiff’s crops chemical to the under an employment contract with the killing broad leaf weeds. precedent, with, complied which it is were and 28- are set forth in Sections 28-01-40 01-41, sections These follows: civil action shall be commenced “No out the use *2 insecticide, quoted applicable statutes this herbicide, fungicide or above as any aircraft, agree. case. We do not by chemical report has the claimant verified plaintiff The is the person case Da- state of the loss with the for whom the work was done. The first commission, together aeronautics kota quoted impose section above does not con- verified precedent upon ditions for appli- operator or report imposes was It con- per- responsible and allegedly cator precedent ditions iswho done with- such work was son whom for than the days the occur- sixty from period in a work was done. The in case this sixty days of such loss or within rence category. fit does not The intent of knew such date the claimant from the the statute is clear however, occurred, if provided, loss had language employed. report The verified occa- have been loss claimant served shall report sioned to operator applicator allegedly “the or time when prior be filed sponsible and the whom such for harvested.” was [Em- ” * * * work, [Emphasis was done. phasis added.] quoted second section above added.] helps It requires to define the “claimant.” Section 28-01-40 report that the verified shall include “so report “The of the loss set verified far as known the claimant” the name include, 28-01-^40shall forth in section operator or applicator address of the fol- so as known to far allegedly responsible and the name of claimant, lowing: name and address of property occupant “owner for or kind, al- type, property and location operator applicator or was ren- legedly injured damaged, or date or en- dering labor services.” statutes occurred, or name leged injury than the vision “claimant” as one other operator applicator allegedly or “person for was done” or whom sponsible damage, or for other than the or “owner or the name ozvner operator appli- for whom such or such operator zvhom property for cator rendering services.” n applicator rendering labor or serv- ices.” [Emphasis added.] legislative clear and un- direction is ambiguous. It intent 28-01-41, N.D.C.C. legislature an action be com- proofs support submitted in opera- menced in resistance for to the motion tor applicator and the or occu- judgment establish pant done defendant not served filed with the North Dakota Aeronautics negligence in the verified loss de- Commission aircraft, either of scribed the above statute. For rea- granted the trial court them. son judgment of dismissal. The defendant applied Chemicals aircraft are dis- summary judg- Midstate also moved charged from the aircraft released dismissal, de- motion was

ment of which liquid spray form of dust or while appeal taken from this nied. No has been flight. Wind and other appealable. as it order considered atmospheric conditions affect direction parties The aircraft and the court in the summa- its fall to the earth below. proceedings speed at a and the dust ry judgment high considered travels manually applicator allegedly responsible, cutoff controls pilot trolled the aircraft. Errors the work result occur in as a done if was someone other negligence claimant, sixty days within from perimeter sixty of the area loss or others outside occurrence of the days apply the chemi- from the intended to date claimant knew of the *3 loss; cal. and if negligent Other acts also the claimed is person have occurred to others to to applying crop of the chemicals been harvest- find is di- ed. The being requiring is done. We the statute such notice persons. They person against rected are the enable to such is to the to in the claim is to be check claimants referred statute. made the to if, fact, claim determine damaged is made be to as claimed. caused drift the chemical onto land neighbor, or the failure cut majority now holds that the word off making dust when turns “claimant” does not include the owner or land, a neighbor’s over a result as spraying for whom the negligent arising acts out of the use conclusion arrived at is because the application chemicals described provides statute service notice of person aircraft to some oth- occupant. such owner er than the for whom the work is Legislature obviously had mind that done. The is such a not a claim where is filed person. The statute does create a con- not aircraft company or the chemical commencement, dition to the spraying, such the instant is action. not where such claimant a stranger “claimant” purview of these spraying operation, a claim would be also Therefore, statutes. the trial erred made for whom the in granting dismis- he, spraying done, therefore sal. too, However, should have notice. the claim is filed for whom aforesaid, For the reasons spraying done, then judgment is reversed. becomes His claim still claimant. arising application claim out of the use or herbicide, insecticide, fungicide, KNUDSON, JJ., PAULSON and agricultural chemical, and it cannot be cur. maintained unless verified report quired by statute was filed with the North STRUTZ, Judge (dissenting). Commission, Dakota together Aeronautics I proof with agree dissent. of service I cannot the nar- with placed row definition the word person for majority. done if it The clear statute, was done for someone other than the

meaning giving words ordinary used If Legislature therein their claimant. had intended meaning, understood is that “claimant” so as action no civil limit shall be commenced out of the use occupant, it include the insecticides, herbicides, easily could have said so. fungicides, claimant has a re- give If are the term we port of with his loss Dakota meaning given North the majority to it Commission, Aeronautics together opinion, the well entire be un- report upon constitutional, it-might since create an un-

5«9 claimants, plaintiff: dif- time issue raised classification of Is reasonable are neigh- who within which a claimant file his ferentiating between those must sixty days, and bors, file port unreasonable? determination occupants delayed issue now be to some fu- owners will those who controversy. be sprayed, who would ture land limita- subject usual statute I am that ERICK- authorized state Dakota tions. Section STAD, J., joins me dissent. Code, requires that service Century requires done, 28—01—41 while Section owner,or occupant of the name of the the work was done property for whom any sense out of set out. To make *4 name of owner necessary would be PUBLIC DISTRICT WAHPETON SCHOOL other than someone Corporation, 37, Plain- NO. a Public Respondent, tiff ren- v. service. dering DAKOTA AS- NORTH EDUCATION construing has held that This court Nonprofit SOCIATION, Corpora- given used therein statute words tion, Appellant. Defendant ordinary, under- plain, their Civ. No. 8505. meaning. Johnson, v. 76 Bronson stood Supreme of North Dakota. Court Berg v. 122, (1948); N.W.2d 819 33 N.D. 19, 153, A.L.R.2d 100 77 Torgerson, N.W.2d interpret The court (N.D.1959). 1060 April 9, as it is plain unambiguous speculation written, indulge in cannot qualifications probable possible

as to might have in the minds been given The statute must be ef-

legislators. plain and according to

fect its Nelson, Rausch 134 N.W.2d

meaning. v. (N.D.1965). argument

There can be valid no in this case defines “claimant”

claimant. Webster plaintiff’s right. asserts a

one who of action the defendant claim,

clearly right. is the assertion “claimant” as court has defined right Weisger

who asserts or demand. Bureau, Compensation

ber Workmen’s 165, 292 128 A.L.R.

70 N.D. N.W. (1940). my view that

It is therefore is a this case here consid- under true,

eration. That should squarely basic constitituonal

have faced the