Heeb v. Prysock, No. 4-9675

CourtSupreme Court of Arkansas
Writing for the CourtWARD; McFADDIN
Citation245 S.W.2d 577,219 Ark. 899
Docket NumberNo. 4-9675
Decision Date28 January 1952
PartiesHEEB v. PRYSOCK et al.

Page 577

245 S.W.2d 577
219 Ark. 899
HEEB

v.
PRYSOCK et al.
No. 4-9675.
Supreme Court of Arkansas.
Jan. 28, 1952.

Page 578

[219 Ark. 900] J. Brinkerhoff, Harrisburg, DuVal L. Purkins, Warren, for appellant.

Gibson & Gibson, Dermott, for appellees.

WARD, Justice.

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.

[219 Ark. 901] 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.

Page 579

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...

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10 practice notes
  • Mccorkle Farms, Inc. v. Thompson, No. CA 01-1405.
    • United States
    • Court of Appeals of Arkansas
    • September 18, 2002
    ...contractor to make the actual application. Southwestern Bell Tel. Co. v. Smith, 220 Ark. 223, 247 S.W.2d 16 (1952); Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577 (1952); McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138 (1951); Hammond Ranch Corp. v. Dodson, 199 Ark. 846, 136 S.W.2d 484 In Mc......
  • Loe v. Lenhardt
    • United States
    • Supreme Court of Oregon
    • May 17, 1961
    ...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 577; Faire v. Burke, 363 Mo. 562, 252 S.W.2d The plaintiff tried the case on the theory that the activity being conducted over S......
  • Emelwon, Inc. v. United States, No. 23045.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 2, 1968
    ...Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312 (1961); Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953); Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577 (1952); Miles v. A. Arena & Co., 23 Cal. App.2d 680, 73 P.2d 1260 (1937); S. A. Gerrard Co. v. Fricker, 42 Ariz. 503, 27 P.2d 678 (1933......
  • Laseter v. Griffin, No. 21646
    • United States
    • Court of Appeal of Missouri (US)
    • May 14, 1998
    ...Atwood Crop Dusters, 118 Cal.App.2d 368, 257 P.2d 653 (1953); Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953); Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577 (1952); Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454 (1948); Pannella v. Reilly, 304 Mass. 172, 23 N.E.2d 87 (1939); Miles ......
  • Request a trial to view additional results
10 cases
  • Mccorkle Farms, Inc. v. Thompson, No. CA 01-1405.
    • United States
    • Court of Appeals of Arkansas
    • September 18, 2002
    ...contractor to make the actual application. Southwestern Bell Tel. Co. v. Smith, 220 Ark. 223, 247 S.W.2d 16 (1952); Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577 (1952); McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138 (1951); Hammond Ranch Corp. v. Dodson, 199 Ark. 846, 136 S.W.2d 484 In Mc......
  • Loe v. Lenhardt
    • United States
    • Supreme Court of Oregon
    • May 17, 1961
    ...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 577; Faire v. Burke, 363 Mo. 562, 252 S.W.2d The plaintiff tried the case on the theory that the activity being conducted over S......
  • Emelwon, Inc. v. United States, No. 23045.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 2, 1968
    ...Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312 (1961); Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953); Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577 (1952); Miles v. A. Arena & Co., 23 Cal. App.2d 680, 73 P.2d 1260 (1937); S. A. Gerrard Co. v. Fricker, 42 Ariz. 503, 27 P.2d 678 (1933......
  • Laseter v. Griffin, No. 21646
    • United States
    • Court of Appeal of Missouri (US)
    • May 14, 1998
    ...Atwood Crop Dusters, 118 Cal.App.2d 368, 257 P.2d 653 (1953); Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953); Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577 (1952); Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454 (1948); Pannella v. Reilly, 304 Mass. 172, 23 N.E.2d 87 (1939); Miles ......
  • Request a trial to view additional results

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