724 F.2d 851 (10th Cir. 1984), 82-1391, Peterson v. Hager

• Docket Nº: 82-1391.
• Citation: 724 F.2d 851
• Party Name: Clayton PETERSON, Plaintiff-Appellee, v. Raymond HAGER, d/b/a Hager's Flying Service, Defendant-Appellant.
• Case Date: January 17, 1984
• Court: United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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724 F.2d 851 (10th Cir. 1984)

Clayton PETERSON, Plaintiff-Appellee,

v.

Raymond HAGER, d/b/a Hager's Flying Service, Defendant-Appellant.

No. 82-1391.

United States Court of Appeals, Tenth Circuit

January 17, 1984

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Larry Monard of Berry & Berry, Oklahoma City, Okl., for plaintiff-appellee.

John McKee of Berry & McKee, Oklahoma City, Okl., and Phil Scott, Waurika, Okl., for defendant-appellant.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

OPINION ON REHEARING

BARRETT, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Raymond Hager appeals from a jury verdict and judgment in favor of Clayton Peterson which found that Hager had negligently sprayed herbicide on Peterson's pecan trees, causing $8,000 in damage.

Peterson owns 140 acres of pasture land near Ryan, Oklahoma. Within the pasture

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land is a grove of about 400 pecan trees which covers approximately ten acres. In the spring of 1979 Peterson hired Hager, an experienced crop sprayer, to spray an herbicide on the property in question. Hager advised Peterson that some of the herbicide would drift on to the pecan trees and burn them. Peterson, however, testified that Hager assured him that there would be no permanent damage to the trees. On April 24, 1979, Hager sprayed the property. Peterson's evidence indicated that the wind that day was too high, so the herbicide drifted farther than was appropriate. As a result, according to his evidence, Peterson's pecan trees were severely burned and produced no pecans in 1979, 1980, or 1981. Because he had only recently acquired the property, Peterson had not previously harvested pecans from the injured trees. He had, however, been preparing to use the pecan trees as producers, and he intended to harvest pecans in the years in question.

Peterson commenced this suit in 1981, alleging that Hager's negligence had caused $75,000 in damages. No pretrial order was filed, but both parties filed contentions. Peterson contended in the alternative that the entire 140 acre tract had been permanently damaged in the amount of $28,000, or that he had suffered...