Faire v. Burke, No. 42933

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation252 S.W.2d 289,363 Mo. 562
PartiesFAIRE v. BURKE et al
Decision Date10 November 1952
Docket NumberNo. 42933,No. 1

Page 289

252 S.W.2d 289
363 Mo. 562
FAIRE

v.
BURKE et al.
No. 42933.
Supreme Court of Missouri, Division No. 1.
Nov. 10, 1952.

[363 Mo. 563]

Page 290

W. Clifton Banta, Charleston, for appellant.

T. J. Brown, Jr., Charleston, Marshall Craig, Sikeston, for respondents.

LOZIER, Commissioner.

Plaintiff-appellant (herein called plaintiff) sued defendants-respondents (herein called defendants) for $9750 for alleged damage to plaintiff's 1949 cotton crop resulting from [363 Mo. 564] defendants' spraying their corn crop. Trial was by the court without a jury. Finding and judgment were for defendants. Plaintiff appealed.

The issue is the sufficiency of the evidence to sustain the judgment.

Under Section 510.310 RSMo 1949, V.A.M.S.: 'We review this non-jury case as a suit in equity; we give due regard to the trial court's opportunity to judge the credibility of the witnesses; the judgment may not be set aside unless clearly erroneous.' Kimberly v. Presley, Mo.Sup., 245 S.W.2d 72, 75. 'The question for our determination is therefore not merely one of whether the court's finding was supported by substantial evidence. On the contrary, it is our duty to make our own independent finding of the facts and reach our own conclusion as to where the weight of the evidence lies. Whatever findings the lower court may have made are in no sense binding upon us, although in matters where the evidence is conflicting and close we shall have due regard for the lower court's opportunity to judge the credibility of the witnesses.' Redden v. Boehmer, Mo.App., 223 S.W.2d 127, 129.

The case was pleaded and tried below, and submitted here, upon the theory that defendants sprayed the weeds in their cornfield at a time when a strong wind carried the week killer to plaintiff's field and caused damage to his cotton crop. Our appellate courts have not heretofore had occasion to consider a landowner's liability for damage to an adjoining landowner's crops from chemical sprays. Without becoming involved in the current controversy in the chemical-agricultural world as to the beneficial or pernicious effects of chemical sprays upon soil or crops, we approve the rule stated in Anno. 12 A.L.R.2d 436, 438: 'There can be no doubt that farmers * * * have the right to use the many beneficial new dusts and sprays * * * and to assure the best possible product by dusts and sprays which eliminate weeds which would otherwise choke out or stunt growth. But such preventive measures cannot be sued with absolute impunity. Due care must be exercised in seeing to it that the weather conditions are right, * * * and that they [the spreaders] do not spread dust when the wind is so blowing as to float it to the crops of others * * *. In other words, an owner of premises may be liable to damages for spreading poisonous dusts and sprays negligently.'

The geographical situation is shown by this plat. (This is the trial 'Court's Exhibit 1,' showing the path of the spray--between the two parallel wind direction lines--as found by the trial court. We have superimposed the spray's path as shown by plaintiff's Exhibit 1.)

Page 291

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Page 292

Plaintiff Faire, defendants and some of the witnesses owned or operated farms abutting the north-south county road. Of [363 Mo. 566] plaintiff's land in the SE 1/4, Sec. 28, south of the ditch was in clover, the west part north of the ditch was in corn and the east part north of the ditch (approximately 60 acres) was in cotton. So far as material here, all of the other lands abutting the road were in cotton except defendants' (in the W 1/2 SW 1/4, Sec. 22) which was in corn. As to type of soil, 'high and low spots,' 'wetness' and drainage, plaintiff's land was similar to that of his neighbors. The year 1949 was an 'extremely wet year.' Around July 6, there was unusually heavy rain.

It was conceded that defendants sprayed the weeds in their 80 acre cornfield with a 2, 4-D solution, for two days, late in June. According to R. Q. Brown, county agent, the 'symptons' of 2, 4-D poisoning in cotton are: escalloped and narrowed leaves, split blooms and flared squares, and later, elongated and misshapen bolls. In 'very serious cases,' the stalks become stunted with 'swellings' near the base.

In finding for defendants, the trial judge said: 'The testimony also indicates that the wind on the day in question was from the northeast, and on the map I have a compass and have outlined * * * the general direction that the poison took, in view of the testimony as to the direction the wind was blowing. * * *' We concur that the testimony was that the wind was from the northeast but we do not agree with the finding that the wind was from 'compass northeast.' Scott said the wind was 'from a northeast direction' and 'from the northeast.' And Simmons said 'it was out of the northeast' and 'blowing out of the northeast towards the (his) house.' We do not believe that these two witnesses meant that the wind direction was at an angle exactly 45 degrees east of compass north. Furthermore, the testimony of the adjoining landowners as to the spray's path across their respective crops supports this conclusion. On the west side of the road, only a few acres in the northeast corner of Cole's crop were affected. The east part of Jones' crop was affected--'the way the field ran, it (the spray) went kind of angling across the east end of it. The west end wasn't affected much.' All of Frank Crawford's and Simmons' crops were affected. The effect of the testimony of defendant's witness Bebout was that much more of plaintiff's crop showed the 'symptoms' than the small acreage indicated by the trial 'Court's Exhibit 1.' While the evidence as to the spray's effect upon Scott's crop, east of the road, tends to...

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30 practice notes
  • Grapette Co. v. Grapette Bottling Co., No. 7383
    • United States
    • Court of Appeal of Missouri (US)
    • January 11, 1956
    ...of an equitable nature. Fort Osage Drainage District of Jackson County v. Jackson County, Mo., 275 S.W.2d 326, 328(2); Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290(1); Pudiwitr v. Soloman, Mo.App., 224 S.W.2d 562, 567(2, Furthermore, defendants are in no position to urge on appeal that ......
  • Emerson v. Treadway, Nos. 7150
    • United States
    • Missouri Court of Appeals
    • August 19, 1954
    ...avoid the responsibility of independent review and consideration [Cross v. Gimlin, Mo.Sup., 256 S.W.2d 812(3); Faire v. Burke, Mo.Sup., 252 S.W.2d 289, 290(1)]. Similarly, although '(t)he judgment shall not be set aside unless clearly erronous' [Section 510.310(4); Cosentino v. Heffelfinger......
  • Kell v. Appalachian Power Co., No. 15067
    • United States
    • Supreme Court of West Virginia
    • March 22, 1982
    ...consider this claim to be properly before the Court. 4 See, e.g., Kentucky Aerospray v. Mays, 251 S.W.2d 460 (Ky.1952); Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289 (1952); Wieting v. Ball Air Spray, Inc., 84 S.D. 493, 173 N.W.2d 272 (1969) and cases collected at 37 A.L.R.3d 833 5 See, e.g.,......
  • Schmitt v. Pierce, No. 47537
    • United States
    • United States State Supreme Court of Missouri
    • February 13, 1961
    ...and that we are to make our independent investigation and reach our own conclusions as to the weight of the evidence. Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290; Wyler Watch Agency v. Hooker, Mo.App., 280 S.W.2d 849, 855[10, 11]. Where, however, there is irreconcilable conflict in the......
  • Request a trial to view additional results
30 cases
  • Grapette Co. v. Grapette Bottling Co., No. 7383
    • United States
    • Court of Appeal of Missouri (US)
    • January 11, 1956
    ...of an equitable nature. Fort Osage Drainage District of Jackson County v. Jackson County, Mo., 275 S.W.2d 326, 328(2); Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290(1); Pudiwitr v. Soloman, Mo.App., 224 S.W.2d 562, 567(2, Furthermore, defendants are in no position to urge on appeal that ......
  • Emerson v. Treadway, Nos. 7150
    • United States
    • Missouri Court of Appeals
    • August 19, 1954
    ...avoid the responsibility of independent review and consideration [Cross v. Gimlin, Mo.Sup., 256 S.W.2d 812(3); Faire v. Burke, Mo.Sup., 252 S.W.2d 289, 290(1)]. Similarly, although '(t)he judgment shall not be set aside unless clearly erronous' [Section 510.310(4); Cosentino v. Heffelfinger......
  • Kell v. Appalachian Power Co., No. 15067
    • United States
    • Supreme Court of West Virginia
    • March 22, 1982
    ...consider this claim to be properly before the Court. 4 See, e.g., Kentucky Aerospray v. Mays, 251 S.W.2d 460 (Ky.1952); Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289 (1952); Wieting v. Ball Air Spray, Inc., 84 S.D. 493, 173 N.W.2d 272 (1969) and cases collected at 37 A.L.R.3d 833 5 See, e.g.,......
  • Schmitt v. Pierce, No. 47537
    • United States
    • United States State Supreme Court of Missouri
    • February 13, 1961
    ...and that we are to make our independent investigation and reach our own conclusions as to the weight of the evidence. Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290; Wyler Watch Agency v. Hooker, Mo.App., 280 S.W.2d 849, 855[10, 11]. Where, however, there is irreconcilable conflict in the......
  • Request a trial to view additional results

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