Burke v. Thomas, No. 37473

CourtSupreme Court of Oklahoma
Writing for the CourtCORN
Citation313 P.2d 1082
PartiesE. J. BURKE, Plaintiff in Error, v. Wilson THOMAS, Defendant in Error.
Decision Date25 June 1957
Docket NumberNo. 37473

Page 1082

313 P.2d 1082
1957 OK 154
E. J. BURKE, Plaintiff in Error,
v.
Wilson THOMAS, Defendant in Error.
No. 37473.
Supreme Court of Oklahoma.
June 25, 1957.

Page 1083

Syllabus by the Court.

1. Where the evidence is sufficient to submit the cause to the jury on a question of fact, it is not error to overrule defendant's demurrer to the evidence.

2. A person performing work through an independent contractor is not liable for damages to third persons caused by the negligent performance of the work by the latter, except where the work is inherently dangerous or unlawful or in cases where the principal contractor owes a contractual or defined legal duty to the injured part in the performance of the work.

3. Under the provisions of 12 O.S.1951, Sec. 579, an order directing the jury to view the property, the subject of litigation, or the place in which any material fact occurred, is a matter of discretion of the trial court, and its rulings thereon will not be reversed, in the absence of a showing of abuse of discretion.

4. In an action for damages for injury to growing crops, the measure of damages is the value of the unmatured crops at the time of the injury. In arriving at such value, it is proper to show by evidence the probable yield under proper cultivation, and the value of such probable yield when matured, gathered, prepared, and ready for sale; also the probable cost of proper cultivation necessary to mature the crop, as well as the costs of gathering, preparation, and transportation to market. The difference between such probable value in the market and the cost of finishing the cultivation and gathering, preparing and transportation to market, will represent the value at the time of loss.

Appeal from the District Court of Sequoyah County; E. A. Summers, Judge.

Action to recover damages for injury to real property. Judgment for plaintiff and defendant appeals. Affirmed on condition of remittitur.

Roy Frye, Sr., Roy Frye, Jr., Sallisaw, for plaintiff in error.

J. Fred Green, Fred D. Green, W. S. Agent, Sallisaw, for defendant in error.

CORN, Vice Chief Justice.

Beginning the latter part of May, 1954, defendant instituted an aerial spraying project on his ranch in Sequoyah county for the purpose of ridding his land of unwanted growths. A qualified pilot with a specially equipped plane, and who held a state issued permit for such operations, was engaged to carry out this work. A deleterious chemical substance (245T) was mixed with water and diesel oil and sprayed over the land by the airplane while flying at low altitude. Generally, unwanted trees and undergrowth would be killed within approximately 60 days after being sprayed.

Page 1084

In carrying on the spraying the pilot was given maps of the area and shown the land to be sprayed. Local residents, hired by defendant's foreman and paid by defendant's checks, were employed as 'flagmen' to assist in the operation. These employees' duties were to hold flags as markers to define the particular area to be covered by the pilot. The time and place of the actual spraying was left to the pilot's discretion, and he instructed the flagmen where to place the flags in order to define the area to be sprayed.

July 21, 1954 the plaintiff filed this action (case No. 11833) to recover damages for injury to his land, destruction of growing crops, and for punitive damages. On the same date four similar cases (Nos. 11829-11830-11831-11832) were filed by other land owners in the area.

Plaintiff's claim for damages was predicated upon the alleged unlawful, malicious, careless and negligent acts of defendant's agents and employees in spraying plaintiff's property with a poisonous substance, which killed the shade trees, grape vines, lawn grass, pasture and 5 acres of standing timber. The petition asked judgment for the different items of damage in the total amount of $3,675.

Defendant answered by general denial. Trial of the issues to a jury resulted in a verdict assessing plaintiff's damages at $800, upon which verdict the judgment appealed from was rendered. The matters urged as grounds for reversal require summation of the evidence upon which the jury's findings were based.

The plaintiff owned 7 1/2 acres of land adjoining defendant's ranch; he had constructed a 2 room house thereon, surrounded by about 20 shade trees and about 1/4 acre of a lawn composed of wild grass. There were 10 wild grape vines on the property at the time of purchase, and some years these bore one or more bushels per vine; about 1/4 an acre was devoted to gardening, and the remaining 5 acres was in timber, which also was considered pasture land. Plaintiff was away from home when spraying occurred, but upon returning home 2 weeks thereafter, found the tree foliage falling and by fall the trees were dead, and the garden was completely destroyed so the family derived no benefit therefrom, and the grape vines were dead; there was a good stand of wild grass in the pasture, but it all died after the spraying; some trees leafed out in the spring of 1955, but most of them were dead. Plaintiff placed a $3,000 valuation upon his property before the spraying, and only $1,000 thereafter. Over defendant's objections plaintiff was permitted to testify that the 1/4 acre family vegetable garden was worth from $400 to $500.

Cross-examination established that his land was rolling and rocky and there was an old house, grape vines and timber on the land when plaintiff purchased the property for $150; thereafter plaintiff built a two room house of native lumber and asphalt covering; the grape vines were not cultivated or fertilized, and the fruit was not sold; some fertilizer had been used for the potatoes, but his wife planted the garden, most of which was just coming up when spraying occurred.

Three witnesses testified in plaintiff's behalf. One (Brown) worked for defendant as a flagman during spraying operations in May, 1954 (and was paid by check drawn on defendant); he saw the airplane over plaintiff's property, but did not know whether the pilot was spraying at the time; witness' duty was to hold up a flag to direct the pilot and was about the middle of the group; the plane went past him approximately 1/2 mile before turning, but he did not know whether the spray was turned off when the plane went over plaintiff's land, but it went over the land more than one time; once the witness left his position and went to defendant's foreman to advise him the pilot was missing the area supposed to be sprayed.

Another witness (McKenzie) lived a half-mile from plaintiff, and also had an action pending on the same docket to recover damages for spraying of his own property; he had seen the property before the spraying; after the spraying occurred the grass

Page 1085

turned brown, the garden had wilted down and later died; the shade trees lost their foliage and about 75% of the timber was killed. He estimated the original fair market value from $2,500-$3,000, and fixed the value thereafter at $800.

On cross-examination the witness stated the year 1954 was the driest in his 11 years experience, and most of the gardens died of the drouth that year; he fixed the value of the shade trees at $50 each, based upon experience as an ornamental tree surgeon, and knowledge that it would take from 18 to 25 years to grow such shade trees; the usual timbered land in that vicinity ranged in price from $3-$10 per acre. There had been fair rainfall in the spring, but the serious drouth began in June.

At this stage of the trial the parties stipulated the mixture used in the spraying was such as was intended to kill trees and shrubs on defendant's property.

Another witness (Hardin) who also had an action for damages pending on the docket, lived next door, was familiar with plaintiff's property prior to May 27, 1954, although he had not been in the garden.

His testimony was that 12 or 15 shade trees were dead, the grass was killed and only weeds grew thereafter; after spraying the garden looked as it would in the winter; the grape vines were dead, and 75% of the timber had been killed. He valued plaintiff's property at $2,000-$3,000 before the spraying and about $1,000 after the occurrence.

On cross-examination this witness admitted he did not know land values in the vicinity, but judged plaintiff's property as he would for himself as a home; could not valuate the house, but estimated cost of building at $300-$400, and set the value of the land and timber at $1,500-$2,500. The witness had not seen plaintiff's grass until nearly Christmas, but thought it must have been sprayed or it would have come up the next year; had the same belief as to the pasture; did not know whether grass had not been sprayed or died during 1954.

At the close of plaintiff's evidence the trial court sustained defendant's motion to strike the allegation as to punitive damage, no evidence having been presented requiring submission of such issue to the jury. Defendant's demurrer to plaintiff's evidence was overruled.

Defendant, a resident of the state of Texas, testified in his own behalf by deposition, principally directed toward attempting to establish that the pilot was not in defendant's employ; and that the alleged injuries in reality...

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17 practice notes
  • Death of Lofton v. Green, No. 80794
    • United States
    • Supreme Court of Oklahoma
    • October 17, 1995
    ...Oil Co. v. Walters, 284 P.2d 726 (Okla.1955); Southwestern Greyhound Lines, Inc. v. Rogers, 267 P.2d 572 (Okla.1954); Burke v. Thomas, 313 P.2d 1082 (Okla.1957); Copeland Oil Co. v. Parker, 306 P.2d 714 (Okla.1957); Chickasha Cotton Oil Co. v. Hancock, 306 P.2d 330 (Okla.1957); Waddle v. Ga......
  • Loe v. Lenhardt
    • United States
    • Supreme Court of Oregon
    • May 17, 1961
    ...possessor has a legally protected interest.' See, e. g., Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231; Burke v. Thomas, Okl.1957, 313 P.2d 1082; [227 Or. 247] Alexander et al. v. Seaboard Air Line R. Co., 221 S.C. 477, 71 S.E.2d 299; Heeb v. Prysock et al., 219 Ark. 899, 245 S.W.2d 57......
  • Yancey v. Watkins, Nos. A10A1635
    • United States
    • United States Court of Appeals (Georgia)
    • March 24, 2011
    ...work of dusting or spraying a crop with poisonous insecticides to an independent contractor and thus avoid liability.”); Burke v. Thomas, 313 P.2d 1082, 1088 (Okl.1957); Pendergrass v. Lovelace, 57 N.M. 661, 663, 262 P.2d 231 (1953); Faire v. Burke, 363 Mo. 562, 564, 252 S.W.2d 289 (1952); ......
  • Decatur County AG-Services, Inc. v. Young, AG-SERVICE
    • United States
    • Indiana Supreme Court of Indiana
    • October 1, 1981
    ...289 N.C. 260, 266-67, 221 S.E.2d 316, 320-21; Eichenberger v. Wilhelm, (1976) N.D., 244 N.W.2d 691, 697; Burke v. Thomas, (1957) Okl., 313 P.2d 1082, 1089-90; Cross v. Harris, (1962) 230 Or. 398, 406, 370 P.2d 703, 707; Swenson v. Chevron Chemical Co., (1975) 89 S.D. 497, 506, 234 N.W.2d 38......
  • Request a trial to view additional results
17 cases
  • Death of Lofton v. Green, No. 80794
    • United States
    • Supreme Court of Oklahoma
    • October 17, 1995
    ...Oil Co. v. Walters, 284 P.2d 726 (Okla.1955); Southwestern Greyhound Lines, Inc. v. Rogers, 267 P.2d 572 (Okla.1954); Burke v. Thomas, 313 P.2d 1082 (Okla.1957); Copeland Oil Co. v. Parker, 306 P.2d 714 (Okla.1957); Chickasha Cotton Oil Co. v. Hancock, 306 P.2d 330 (Okla.1957); Waddle v. Ga......
  • Loe v. Lenhardt
    • United States
    • Supreme Court of Oregon
    • May 17, 1961
    ...possessor has a legally protected interest.' See, e. g., Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231; Burke v. Thomas, Okl.1957, 313 P.2d 1082; [227 Or. 247] Alexander et al. v. Seaboard Air Line R. Co., 221 S.C. 477, 71 S.E.2d 299; Heeb v. Prysock et al., 219 Ark. 899, 245 S.W.2d 57......
  • Yancey v. Watkins, Nos. A10A1635
    • United States
    • United States Court of Appeals (Georgia)
    • March 24, 2011
    ...work of dusting or spraying a crop with poisonous insecticides to an independent contractor and thus avoid liability.”); Burke v. Thomas, 313 P.2d 1082, 1088 (Okl.1957); Pendergrass v. Lovelace, 57 N.M. 661, 663, 262 P.2d 231 (1953); Faire v. Burke, 363 Mo. 562, 564, 252 S.W.2d 289 (1952); ......
  • Decatur County AG-Services, Inc. v. Young, AG-SERVICE
    • United States
    • Indiana Supreme Court of Indiana
    • October 1, 1981
    ...289 N.C. 260, 266-67, 221 S.E.2d 316, 320-21; Eichenberger v. Wilhelm, (1976) N.D., 244 N.W.2d 691, 697; Burke v. Thomas, (1957) Okl., 313 P.2d 1082, 1089-90; Cross v. Harris, (1962) 230 Or. 398, 406, 370 P.2d 703, 707; Swenson v. Chevron Chemical Co., (1975) 89 S.D. 497, 506, 234 N.W.2d 38......
  • Request a trial to view additional results

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