Gotreaux v. Gary, 42510

Decision Date25 February 1957
Docket NumberNo. 42510,42510
Citation232 La. 373,94 So.2d 293
PartiesJulian GOTREAUX v. Roy GARY et al.
CourtLouisiana Supreme Court

Charles C. Jaubert, Lake Charles, for appellant.

Herschel N. Knight, Jennings, for defendants-appellees.

MOISE, Justice.

Julian Gotreaux instituted this suit for damages in the sum of $2,405.75. It is alleged that Welsh Flying Service, Inc., sprayed 2, 4--D poisoning on the rice crop grown on Roy Gary's tenant farm on July 2, 1953, and that the wind carried the herbicide to plaintiff's crop--approximately 13.3 acres of cotton and 3 acres of peas--causing the destruction of all but one bale of cotton.

Defendants denied liability and plead lack of negligence by the use of due and reasonable care, relying on Act 502 of 1952, LSA-R.S. 3:1621, and the regulations of the Louisiana Department of Agriculture and Immigration.1

The trial court held defendants free from any negligence and dismissed plaintiff's action. Plaintiff's appeal to the Court of Appeal, First Circuit, was transferred to this Court.

Plaintiff contends that defendants' actions constituted a private nuisance, and that liability for damages resulting from the maintenance of a nuisance does not depend on a question of negligence.

The record discloses that defendant Gary employed Welsh Flying Service, Inc., to spray a tenant rice crop of 240 acres on July 2, 1953. Spraying operations were commenced before 8:30 A.M., and after that hour the pilot determined that the wind was too high to continue. Gary's farm lands were located some 3 1/4 miles south of plaintiff's farm, and the wind was blowing from the south on July 2, 1953. There is a dispute as to the wind's velocity at the time of the spraying; however, after the spraying, the wind reached a velocity higher than that permitted by the regulations.2 Plaintiff detected the oder of the poisoning on the morning of the operations, and when he went to the airport to request the discontinuance of the spraying Mr. Gary informed him that he was through for the day.

Plaintiff's testimony is to the effect that some eight to ten days after July 2, 1953, his cotton crop began to have curled leaves and his two crops became unproductive. His testimony is substantiated by that of adjoining farmers, which is to the effect that the 2, 4--D caused the destruction.

We find from the evidence that plaintiffs crops were destroyed and that it was from the blowing or drifting on plaintiff's crops of the herbicide sprayed by defendants.

Defendants have not proved that there were any other spraying operations conducted in the vicinity of plaintiff's farm on July 2, 1953, or within a short time before,3 and they have not disproved the fact that the 2, 4--D, which they sprayed, came to rest in part on plaintiff's crops and caused their destruction.

We do not believe that the legal problem presented is that of a private nuisance. It resolves itself to the determination of whether the doctrine of strict liability is applicable.

In the case of Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845, 848, the defendants were free of negligence. There we held that plaintiffs, whose residences were damaged by blasting operations carried on by defendants, were entitled to recover damages as a result of an invasion of their privacy of their respective homes, inconvenience occasioned them, and mental anguish suffered as a result of property damages. We made the following statement, which is applicable to the present controversy:

'In disposing of questions of this character, we are mindful of two important considerations: First, to give the owner of property the largest liberty possible, in the use, occupation and improvement of his own property, consistent with the right to employ modern methods and machinery in accomplishing the improvements desired; and second, that one may not use his own property to the injury of any legal right of another. This maxim of the common law, 'Sic utere tuo ut alienum non laedas', is so well established and so universally recognized that it...

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44 cases
  • Richman v. Charter Arms Corp., Civ. A. No. 82-1314.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • October 5, 1983
    ... ... Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968) (pile driving); Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957) (crop dusting by airplanes); Fontenot v. Magnolia ... ...
  • Perkins v. F.I.E. Corp.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 17, 1985
    ... ... Employers Liability Assurance Corp., La.Ct.App.1953, 67 So.2d 920 ... 14 Gotreaux v. Gary, 1957, 232 La. 373, 94 So.2d 293 ... 15 Fontenot v. Magnolia Petroleum Corp., 1955, 227 ... ...
  • 94 1246 La.App. 1 Cir. 4/7/95, Haydel v. Hercules Transport, Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 7, 1995
    ... ... 1067, 249 So.2d 133 (1971) (escaping gas used in manufacture of petrochemical products); Gotreaux (escaping gas used in manufacture of petrochemical products); Gotreaux v. Gary ... ...
  • Langlois v. Allied Chemical Corp.
    • United States
    • Louisiana Supreme Court
    • June 7, 1971
    ... ... 11 ...         In 1957 in Gotreaux v. Gary, 232 La. 373, 94 So.2d 293, recovery was allowed against both the landowner and his ... ...
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