J. L. Wilson Farms, Inc. v. Wallace

• Decision Date: 31 October 1979
• Docket Number: No. CA,CA
• Citation: 267 Ark. 643,590 S.W.2d 42
• Parties: J. L. WILSON FARMS, INC. et al., Appellants, v. Johnny WALLACE et al., Appellees. 79-135.
• Court: Arkansas Court of Appeals

Page 42

590 S.W.2d 42

267 Ark. 643

J. L. WILSON FARMS, INC. et al., Appellants, v. Johnny WALLACE et al., Appellees.

No. CA 79-135.

Court of Appeals of Arkansas.

Oct. 31, 1979 Released for Publication by the Court of Appeals Dec. 5, 1979.

Macom, Moorhead & Green, Stuttgart, for appellants.

Chas. A. Walls, Jr., Lonoke, for appellees.

WRIGHT, Chief Judge.

This appeal to the Arkansas Supreme Court was assigned to the Court of Appeals pursuant to Rule 29(3).

Appellees, Johnny Wallace and Chester McGee, filed action for damages against Appellants, J. L. Wilson Farms, Inc., Humphrey Flying Service, Inc. and Ned Brown, for damages to their respective 1974 cotton crops, allegedly caused by aerial spraying of a hormone type herbicide, 2-4-D, on the Wilson rice fields in the vicinity of appellees' cotton crops.

From a jury verdict and a judgment awarding damages in the aggregate amount of $36,717.20 in favor of Wallace and $980.35 in favor of McGee, appellants bring this appeal and allege three points for reversal which are hereafter separately discussed.

I

Appellants contend the court erred in refusing appellants' motion to exclude from the jury the fact that the pilot of the plane, Ned Brown, who made the aerial application of the herbicide to the Wilson rice fields in the vicinity of appellees' crops was not licensed to do so. Appellants contend the evidence had slight relevance, if any, and great prejudicial effect.

The court overruled appellants' motion to exclude testimony showing the Appellant, Ned Brown, was not licensed by the Arkansas Plant Board to make applications of the hormone herbicide by aircraft.

Act 152 of 1951 declared 2-4-D and any herbicide which the Plant Board, after investigation and public hearing, determines to be injurious to vegetation other than vegetation it was intended to affect, to be a public nuisance and prohibited the sale or use except in accordance with regulations as might be made by the State Plant Board. The regulation of the Plant Board issued pursuant to the Act was received in evidence as joint exhibit # 3. The regulation determines 2-4-D in certain conditions to be highly injurious to vegetation other than vegetation it is intended to affect, and it requires any commercial aerial applicator to first obtain authorization from the State Plant Board. It provides for the screening of such pilots based on their past history in the application or supervision of application of such herbicides. Appellees were permitted to prove the pilot, Appellant Ned Brown, had not complied with the regulation by obtaining the required Plant Board authorization. Evidence was also presented showing the aircraft belonging to the Appellant, Humphrey Flying Service, Inc., had not been inspected by the Plant Board to determine whether the spraying equipment of the plane met the requirements of the Plant Board regulation. Certificates are issued by the Board for aircraft and equipment approved for spray applications. The regulation details maintenance requirements incident to the spraying system and the requirement of notification to the Plant Board in writing of the name and address of the owner or owners of susceptible crops treated by the aircraft and the date of the treatment. The regulation further provides that unannounced spot check of equipment and application methods and jobs in progress will be made by the Plant Board; and that only pilots holding valid authorization from the Plant Board may apply hormone-type herbicides.

The regulation is extensive and detailed. The obvious intent is to prevent damage to others in the vicinity when a herbicide of this type is applied by aerial spraying. There was evidence aerial application of this herbicide results in floating of the substance for substantial distances with resultant damage to broad leaf crops. Injury to crops in the vicinity is partially dependent on weather conditions.

Neither J. L. Wilson, Inc., the owner of the rice fields being sprayed, the pilot who did the spraying, Ned Brown, nor Humphrey Flying Service, Inc., the owner of the aircraft involved, notified the Plant Board of the spraying. The plane and equipment were not approved by the Plant Board and the pilot, Mr. Brown, was not authorized to make aerial applications of the herbicide. Although Mr. Brown testified he was familiar with the requirements of the Plant Board and that his plane and equipment were up to the standards required by the regulation, he was one of the defendants in the action and the court properly admitted evidence showing the appellants had not complied with the regulations of the State Plant Board calculated to safeguard the interests of others in the vicinity of the spraying. The appellees were not bound by the testimony of the Defendant Brown and the evidence of failure to comply with the Plant Board regulation was properly admitted for the jury's consideration along with all other evidence. We hold the regulation was a proper consideration for the jury in determining the issue of negligence. Dunn v. Brimer, 259 Ark. 855, 537 S.W.2d 164.

II

Appellants contend there is no substantial evidence from which the jury could find that the herbicide, applied in a water base by aircraft, to a rice field over a mile from appellees' nearest cotton fields was an inherently dangerous product as defined by the court. The court told the jury that an "inherently dangerous product" is one, use of which for the intended purpose necessarily involves a risk of serious harm to the property of others regardless of the degree of care which is used in its preparation and use.

Nine of the jurors answered "yes" to the interrogatory submitted to them on the inherently dangerous product theory of the case.

There was substantial testimony in the record tending to show the application of this herbicide by air necessarily involves a risk of serious harm to broad leaf crops of others regardless of the degree of care which is exercised in its use, and the evidence was sufficient to support the jury finding that the product is inherently dangerous when used under the circumstances in evidence. Chapman Chemical Company v. Taylor et al., 215 Ark. 630, 222 S.W.2d 820.

III

Appellants contend that it was only because appellees were permitted to use incompetent evidence that any material damage was shown.

The evidence of which appellants complain relates to the introduction by appellees of yields of cotton per acre for prior years on the lands for which crop damage is claimed for 1974, the averaging of yields of prior years, and showing the difference between the prior three and four years average yield and the 1974 yield. The difference was categorically stated as the crop loss for 1974. It is contended the evidence of injury to the 1974 cotton crop by comparison with prior years average yields was too speculative to submit the issue to the jury. This evidence was introduced by appellees without objection by appellants. However, appellants moved for a directed verdict at the close of the appellees' case and also at the close of the appellants' case, contending the evidence of production on the same fields for prior years had no validity bearing on the amount of yield loss for the year 1974 because, it was contended that there are great variations in year to year yields. Also, appellants contended there was considerable cold and wet weather in the summer of 1974 that reduced the yield. Appellants contend any damage to the crop in 1974 should have been shown by a comparison of yields for that year in undamaged cotton fields in the same vicinity with similar soil and farming methods.

However, evidence was offered on behalf of the Appellee, McGee, of the reduced production on his thirteen acres of cotton as compared to his nearby undamaged cotton field.

Appellants contend the evidence was too speculative and conjectural to submit the issue of damages to the jury because of lack of substantial proof of damages, and that there was no proof of costs that would have been incurred incident to harvesting and marketing of the lost portion of the cotton crop, had it not been damaged.

We conclude from the evidence that the yield from cotton grown on the same lands in the area here involved is affected so much by weather conditions and other variables that the use of an average yield per acre for the preceding three or four years is not a reliable guide to the yield that would have been reasonably expected in the year 1974, absent injury from the herbicide. However, the testimony of Appellee McGee whose cotton lands were near the Wallace cotton fields and three-fourths mile from the Appellee Wilson rice fields reflected a per acre loss in yield of his cotton as compared to his nearby undamaged cotton in 1974 in the amount of 161 pounds per acre. We find this evidence to be the only substantial and reliable evidence upon which to predicate judgments in favor of appellees. Any judgment in excess of the amount warranted by this evidence would necessarily depend upon speculation and conjecture. It is to be noted the testimony of Appellee McGee and appellants'witness Bobby Frizzell, showed they sustained a large reduction in yield in their 1974 undamaged cotton fields, on lands similar...