Heeb v. Prysock
| Decision Date | 28 January 1952 |
| Docket Number | No. 4-9675,4-9675 |
| Citation | 245 S.W.2d 577,219 Ark. 899 |
| Parties | HEEB v. PRYSOCK et al. |
| Court | Arkansas Supreme Court |
J. Brinkerhoff, Harrisburg, DuVal L. Purkins, Warren, for appellant.
Gibson & Gibson, Dermott, for appellees.
Appellant, Heeb, who was the defendant below, had about 210 acres of rice, and each of the appellees, Prysock, Underwood, Blanton and Stough, had acreage planted in cotton which was either adjacent to or near said rice land. In July of 1949 Heeb employed the Terry Aircraft Company to spray his rice with 2,4-D in liquid form. While the spray was being applied to the rice appellees' cotton crops were damaged, as it is alleged, because of appellant's negligence in that the airplane flew over their crops, allowing the poison to escape and 'settle' on their cotton, in that said poison drifted from appellant's field onto their cotton when appellant knew or should have known it would do so, and in failing to properly prepare the poison for distribution. Appellees, in separate complaints [later consolidated], alleged damages in specific amounts, and in each instance, after a jury trial, were awarded judgments in lesser amounts than sued for. From said judgments appellant properly prosecutes this appeal.
Appellant advances several reasons why he thinks the lower court should be reversed, as will presently appear, but apparently the reason which is urged most forcefully is that there is no substantial evidence to show negligence on his part. It is stressed that appellant, knowing of the possible danger to his neighbors, was careful to select a competent aviator with approved equipment, that the aviator took pains to view the situation beforehand, that he gave due regard to the proper time of day and wind conditions, that he flew at a proper and careful altitude, that the 2,4-D which was used contained the kind of base recommended by the U. S. Department of Agriculture, and that it is undisputed that the spray he used does not travel but goes to the ground. It is then pointed out that the sale, without liability, of 2,4-D by manufacturers has been approved by our own and federal decisions. Based on the above factual situation appellant argues that, to hold him liable would amount to making him an insurer.
We cannot agree with the above nor with the contention that there was no evidence of negligence to make a jury question. In the first place evidence was introduced to show that 2,4-D in liquid form would drift or spread. Farmers Bulletin No. 2005 of the U. S. Department of Agriculture was introduced in evidence and shows that, with a wind of five to seven miles per hour, it will drift 1,350 feet when released at a height of 20 feet and 550 feet when released at a height of 10 feet. Moreover, appellant was liable, of course, for any negligence on the part of the aviator if he was appellant's employee. If the aviator was an independent contractor appellant would likewise be liable for his negligence under the holding in McKennon v. Jones, Ark., 244 S.W.2d 138. Without reviewing at length the testimony regarding negligence it suffices to say we find enough to make a question for the jury. Mrs. Underwood stated the spray from the plane was just like a fog at her house, that she closed the windows and door, that it made her sick and even the water in the bucket tasted bad, and that she saw the plane come over her place. It is admitted the plane passed over part of Prysock's farm, and that there is some evidence to show it passed over Underwood and Stough's places. Mrs. Blanton, wife of the other appellee, stated she saw the plane over or near their place, that she did see it circling over Stough's place which joined theirs, and that their cotton was damaged.
In this same connection appellant also contends the proof was not sufficient to establish damages, particularily under the court's instruction No. 2, and that the court erred in refusing his requested instruction No. 5.
In each case the damage was calculated by comparing the yield on the damaged crops with the yield on lands in the vicinity and [in each case] on land cultivated by the plaintiffs, after a showing that the compared lands were essentially the same and were fertilized and cultivated in the same manner. Instruction No. 2 required that, in arriving at the extent of damages, consideration be given to the difference between the cost of producing the damaged crop and what it would have cost had there been no damage. The difference in cost of picking, hauling, ginning, etc., was shown, but appel...
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