Alexander v. Seaboard Air Line R. Co.

• Decision Date: 04 June 1952
• Docket Number: No. 16633,16633
• Parties: ALEXANDER et al. v. SEABOARD AIR LINE R. CO.
• Court: South Carolina Supreme Court

Page 299

71 S.E.2d 299

221 S.C. 477

ALEXANDER et al. v. SEABOARD AIR LINE R. CO.

No. 16633.

Supreme Court of South Carolina.

June 4, 1952.

Ralph T. Wilson, Laurens, Grier, McDonald, Todd & Burns, Greenwood, for appellant.

W. Hummel Harley, Laurens, for respondent.

BAKER, Chief Justice.

This was an action of the respondents against the appellant to recover damages for the alleged almost total destruction of their 1950 cotton crop planted on twelve acres of land near Mountville, in the County of Laurens, and a short distance from the track and right-of-way of the appellant, by the spraying of its right-of-way with a chemical known as 2-4-D, a weed killer, about June 8, 1950.

At the close of the taking of testimony, on motion of the appellant for a direction of verdict in its behalf, the court having granted the motion as to punitive damages, we will omit all allegations in the complaint at to wilfulness and wantonness.

Paragraph 4 of the complaint alleges that the destruction of respondents' cotton was directly and proximately caused by the following acts of negligence of the appellant, to wit:

(a) In spraying about in (its?) road bed, in an irresponsible and high-handed manner, a chemical known to the defendant to be destructive to growing plants.

(b) In spraying about its road bed a chemical deadly to growing plants when it knew or should have known that said chemical would drift to fields adjacent to said road bed.

(c) In spraying a chemical deadly to growing plants on a day when high winds were prevalent causing said chemical to cover a wide area.

(d) In operating spraying equipment containing a chemical deadly to growing plants in a careless and negligent manner and in disregard of the property rights of adjacent land owners.

(e) In spraying a chemical deadly to growing plants on its road bed without obtaining proper information of the damage that would result to other property owners.

(f) In negligently invading the property rights of the plaintiff and depositing a deadly chemical on the crops growing in his fields.

(g) In placing said spraying equipment under the control of an incompetent, careless and negligent crew of employees.

It should here be noted that upon the call of the case for trial, the respondent, Willie Richardson, a sharecropper of the respondent, A. F. Alexander, was, without objection, unnecessarily made a party plaintiff.

The answer of the appellant was a general denial except as to its incorporation, and the owning, maintaining and operation of a line of railroad running through Laurens County and through and near Mountville, etc. We now quote from the answer:

'Further answering the complaint and as a defense to plaintiff's alleged cause of action, defendant alleges that if the use of a weed killer commonly called 2-4-D on its road bed at the time and place mentioned in the complaint damaged any crop of plaintiff as alleged (which is expressly denied), the damage to, or destruction of, said crop was not caused or produced in consequence of the act or acts of any of the authorized agents or employees of Defendant but was caused and produced by the acts of an independent contractor, to wit: the Spray Services, Inc., which, under the contract between the Defendant and Spray Services, Inc., caused its road bed to be sprayed with a weed killer commonly known as 2-4-D, and under said contract, and in spraying Defendant's road bed acted independently and without any control or supervision on the part of the Defendant; and Defendant alleges that any acts of said Spray Services, Inc., in spraying Defendant's road bed and thereby damaging any crop, or crops, of plaintiff on the land described in the complaint herein were the acts of an independent contractor for which it is not liable.'

The case having been submitted to the jury as to actual damages, a verdict was rendered against the appellant in the amount of $1750.00. After the verdict, the appellant moved for judgment notwithstanding the verdict or in the alternative for a new trial, which motion was refused.

Within due time the appellant appealed from the rulings, orders and judgment entered on the verdict, and raised the issues: (1) Error in the admission of testimony, (2) Error in refusing motion for direction of verdict (as to actual damages) and error in refusing appellant's motion for judgment non obstante, and (3) Error in the trial Judge's charge to the jury.

There is no dispute in the record that Spray Services, Inc., a W. Virginia corporation, acting under a written contract with the appellant, sprayed its road bed and right-of-way on June 8, 1950, near Mountville, in Laurens County, some distance from the cotton field under discussion, with a weed killer known as 2-4-D; and that the contract between Spray Services, Inc., and the appellant covering this work contained clauses reading as follows:

'Contractor agrees to indemnify and save harmless the Railroad from all liability, loss, cost and expense arising as a result of injuries to or death of persons (including employees of Contractor and Railroad) or loss or damage to property which may occur as a result or in consequence of the acts, omissions or defaults of the Contractor or its employees in performing the services contemplated herein.

'The Railroad shall indemnify and save harmless the Contractor from and against any and all claims for damages which may arise from accidents resulting from its sole negligence. After the solutions above mentioned have been applied to Railroad's roadbed, Railroad will indemnify and save harmless the Contractor from and against any and all claims, demands or actions brought by third parties growing out of the mere fact of application or use of such poisonous compounds on Railroad's roadbed.'

The first general issue, 'Error in the admission of testimony,' embraces Exceptions 1, 2, 4, 5, 6 and 7, and requires that we discuss them separately.

Exception 1 alleges error in permitting the witness, David Richardson, to testify that he had a field of cotton near the railroad track, about one mile from the field of the respondents, which was badly damaged by 'the stuff they were putting out' (meaning the spraying of the appelland's right-of-way with a chemical). Exception 2 imputes error to the trial Judge in permitting the witness, C. B. Cannon, to testify on cross-examination as to damage by the chemical 2-4-D, to other fields of cotton at other times and places, not the property of the respondents. The ground of the objections to the testimony of these witnesses was that it was irrelevant, incompetent and prejudicial. The answer of the appellant denied that the growing cotton crop of the respondents had been damaged by the spraying of this 2-4-D chemical on its right-of-way.

The admission or disallowance of proffered testimony is a matter largely in the discretion of the trial Judge, depending largely upon the purpose for which it is offered. This testimony tended to show that such chemical was very injurious to growing cotton in the vicinity of where it was applied if it floated or was blown over or upon such cotton, and was capable of inflicting the injury complained of by the respondents. The Illinois cases of Menolascino v. Superior Felt & Bedding Co., 313 Ill.App. 557, 40 N.E.2d 813, and Cooper v. Randall, 59 Ill. 317, are analogous, and support this holding.

Exception 4 imputes error to the lower court in allowing the witness, J. P. Quarles (President of Spray Services, Inc.), on cross-examination to testify that claims had arisen against the appellant out of these spraying operations, and had been paid by the appellant, and not by Spray Services, Inc. And Exceptions 5 and 6 impute error to the lower court in allowing this same witness to testify that E. D. Caldwell, Jr., claim agent of the appellant had told him that the appellant had paid other claims arising out of damage alleged to have been caused by the spraying of its road bed. The grounds of the objections in each instance was that the testimony was irrelevant, incompetent and prejudicial because there was no proof preliminary thereto that the circumstances and conditions were the same or similar to the case at bar, nor was there any testimony as to the time of other cases. We feel sure that if circumstances and conditions had not been similar, and the time element entered into it, the alert and learned counsel representing the appellant, after talking to this witness, would have recalled him to the witness stand, and reserving their objection to this testimony, would have examined him thereabout. In fact, the record discloses that such right was, in effect, reserved.

If for no other reason, this testimony was competent as tending to show the construction which the appellant placed on its contract with Spray Services, Inc., and in rebuttal to its defense of independent contractor, the theory upon which the case was tried. However, as will hereinafter be seen, the defense of 'independent contractor' is not a valid one in a case such as this where a poisonous chemical is used as a spray.

During the argument of counsel to the Court as to the admission of the foregoing testimony, appellant also raised the issue that it was hearsay. If so, and without so deciding, such objection was cured when Caldwell, the claim agent himself testified to having paid a claim for damages to crops in the vicinity of respondents on account of this spraying operation. We quote from the record: 'Q. In this particular case arising out of the spraying of this right-of-way near Mr. Alexander's, did you pay on behalf of the Seaboard railroad some claim? (Objected to as irrelevant and incompetent, and involving other issues, other facts. Objection overruled) A. Yes, I did pay another claim in that vicinity for the reason that these same three men who inspected Mr. Alexander's land inspected the other land that was supposedly damaged by 2-4-D. I had an agreement with the other...