Boyd v. Thompson-Hayward Chemical Co.

• Decision Date: 22 January 1970
• Docket Number: No. 437,THOMPSON-HAYWARD,437
• Parties: Joe Don BOYD et al., Appellants, v.CHEMICAL COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 937

450 S.W.2d 937

Joe Don BOYD et al., Appellants, v. THOMPSON-HAYWARD CHEMICAL COMPANY et al., Appellees.

No. 437.

Court of Civil Appeals of Texas Tyler.

Jan. 22, 1970.

Rehearings Denied Feb. 19, 1970.

Brock, Wright, Waters & Galey, Charles E. Galey, Lubbock, for Joe Don boyd.

Brown & Harding, Derry D. Harding, Lubbock, for M. H. Kinard, Gaylord Kinard and Henry Kinard.

Crenshaw, Dupree & Milam, Cecil Kuhne, Max C. Addison, Lubbock, for Thompson-Hayward Chemical Co.

Huff & Bowers, Forrest Bowers, Lubbock, for D. T. Richardson, Joe Hodge and Claude Drennan.

MOORE, Justice.

This is a venue case arising out of a multiple party action for damages to growing crops allegedly caused by defendants' spraying a chemical weed killer on their farm which drifted over on plaintiffs' adjacent farms damaging plaintiffs' cottom crop. The farm lands involved are situated in Cochran County, Texas. The litigation commenced when plaintiffs Richardson and Hodge and also plaintiff Drennan filed their suit in Cochran County against defendants, M. H. Kinard, Gaylord Kinard and Henry Kinard, hereinafter referred to as the Kinards, for damages. The Kinards intervened but did not file a plea of privilege. The two suits against the Kinards were subsequently consolidated. Thereafter the Kinard defendants filed a third party action against Joe Don Boyd, the aerial pilot who conducted the spraying operation, seeking contribution and indemnity . Joe Don Boyd, the pilot, filed a plea of privilege to be sued in Lubbock County, the county of his residence. Thereafter, Joe Don Boyd and the Kinards also filed a third party action against Thompson-Hayward Chemical Company, the manufacturer of the chemical used in the spraying operation, seeking contribution and indemnity. Thompson-Hayward Chemical Company also filed a plea of privilege to be sued in Dallas County, the county of its residence. Subsequently, the plaintiffs amended their petition so as to include both Joe Don Boyd and the chemical company as party defendants in their main action for damages.

After a hearing before the court without a jury, the trial court overruled the plea of privilege of Joe Don Boyd, and sustained the plea of privilege of Thompson-Hayward Chemical Company and transferred both cross-actions asserted against it to Dallas County.

Appellant Boyd brings this appeal from the action of the trial court in overruling his plea of privilege. He also appealed from the action of the trial court in sustaining the plea of privilege of the chemical company. Appellants Kinard appeal from the action of the trial court in sustaining the plea of privilege of the chemical company. Plaintiffs did not perfect an appeal. For convenience the parties will be frequently referred to herein by their last name or by their designation in the trial court.

JOE DON BOYD VS. PLAINTIFF AND DEFENDANT LANDOWNERS

We will first discuss the appeal of the pilot, Joe Don Boyd, from the order overruling his plea of privilege asserted against the (1) causes of action alleged against him by the plaintiff, and (2) causes of action alleged by his employer, the Kinard defendants for contribution. With respect to this branch of the appeal, the pleadings at the time of the hearing on the plea of privilege stood in this posture: Appellant, Joe Don Boyd, went to trial upon his plea of privilege asserting his right to be sued in Lubbock County, the county of his residence. Plaintiffs went to trial upon a petition alleging numerous acts of negligence committed by both Joe Don Boyd and his employer the Kinard defendants in the spraying operation in Cochran County, towit:

1. In applying said chemical or herbicide with an airplane equipped with a spray unit;

2. In spraying said crop lands at a time when the wind and other weather conditions caused the same to drift, blow upon and settle upon plaintiffs' cotton;

3. In applying a chemical weed spray or herbicide to crop lands situated so close to plaintiffs' cotton;

4. In using a chemical with characteristics of excessive drifting and blowing;

5. In failing to add a deisel fuel or some other similar compound as a base to the spray to lessen the danger of drifting and blowing of the 2--4--D and/or 2--4--5--T.

Plaintiffs' controverting affidavit replying to Boyd's plea of privilege alleging among other exceptions that venue was maintainable in Cochran County under exception 9a of the venue statutes, adopting the specific acts of negligence alleged in their main suit. Defendant landowners, the Kinards, went to trial upon a petition seeking contribution and indennity from Boyd, their pilot, on the ground that he was an independent contractor and was guilty of negligence in conducting the spraying operation. In their controverting affidavit to Boyd's plea of privilege they allege that he was negligent in conducting the spraying operation by adopting the allegations of the plaintiffs' petition charging specific acts of negligence in Cochran County, The only specific venue exception named in their affidavit was exception 29a.

Our venue statute, Article 1995 Vernon's Ann.Tex.Civ.St. provides that no person shall be sued out of the county of his residence unless the action falls within certain enumerated exceptions.

Section 9a provides, in part, as follows:

'A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred. * * *'

Appellant Boyd contends first that the trial court erred in overruling his plea of privilege asserted against the plaintiffs because the plaintiffs offered no evidence showing that he was guilty of any negligence in Cochran County proximately causing the damages complained of, and alternatively that such evidence, if any, was insufficient.

The record is before us without findings of fact or conclusions of law. Therefore in our review of the order overruling the plea of privilege, we must begin with the presumption that the trial court found every issue of fact in support of the judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319. In passing on the appellants' points that there is no evidence to support the implied findings, we must consider only that evidence most favorable thereto and disregard entirely that which is to the contrary. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99; Brown Company v. Terrell, 310 S.W.2d 757, (Tex.Civ.App., Amarillo, 1958, n.w.h.); Miller v. Cozart, 394 S.W.2d 22, (Tex.Civ.App., Dallas, 1965, n.w.h.).

When viewed in a light most favorable to the judgment, the evidence shows that Boyd was employed by the Kinards as an independent contractor to conduct spraying operations on their farm by the use of an airplane. The substance used was an amine salt, 2, 4--D, weed killer. The label on the container stated that under no circumstances should the herbicide be used in the vicinity of cotton, or severe damage may result. It also warned: 'Do not apply on a windy day. Extreme care must be exercised to prevent drifting during application'. Appellant-Boyd admitted that he read the label and knew that there was cotton in the area of the Kinards' farm. Plaintiffs, whose farm was approximately a mile away, offered testimony showing that spraying was usually conducted with the plane about five or six feet above the crops, but on this occasion Boyd sprayed at approximately forty or fifty feet high, and on some occasions when he crossed over the property lines and turned around, he went approximately one thousand feet high without turning off the spray. Plaintiff, D. T. Richardson, testified that while working in his field he saw the plane flying high and could actually smell the herbicide and had to leave his field because he was allergic to the spray. Plaintiffs offered other testimony showing that it was windy and that the wind in the area often changed direction. Boyd admitted that he knew the herbicide would be likely to drift on a windy day, and on each of the three days of spraying operations he had to quit because he felt the wind was getting high and would cause the spray to drift. Plaintiff Drennan testified that in his opinion the damage to his cotton was caused by wind and weather causing the spray to drift. Plaintiffs offered other testimony showing that the damage to their cotton was of the type that would likely be caused by the herbicide in question.

The trial court impliedly found that appellant Boyd failed to exercise ordinary care in applying the spray, and as a direct and proximate result the spray drifted to the plaintiffs' farm causing damage to the cotton.

While we recognize that the evidence was mostly circumstantial, we nevertheless believe it to be sufficient to support the judgment. Negligence and proximate cause, like any other fact issue, may be proved by circumstantial evidence, and the trier of the fact may properly consider such inference as may reasonably be drawn from the facts proved. International & G.N.R. Co. v. Finger, 16 S.W.2d 132, (Tex.Civ.App., Austin, 1929, writ dismissed); Miller v. Cozart, supra. When viewed in a light most favorable to the judgment, we believe the facts and inference arising from them are sufficient to support the trial court's presumed finding that appellant Boyd was guilty of negligence in allowing the herbicide to drift upon the lands proximately causing damage to the plaintiffs' cotton crop in Cochran County. Furthermore, after weighing all of the evidence, we have concluded that we would not be justified in ruling that the judgment is against the overwhelming weight and preponderance of the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660. Accordingly, the judgment overruling appellant Boyd's plea of privilege asserted against the plaintiffs' cause of action is affirmed.

Boyd next contends that the trial court erred in overruling his plea of privilege asserted against the cross-claim for contribution and...