Kennedy v. Clayton, 4-9063

• Decision Date: 13 March 1950
• Docket Number: No. 4-9063,4-9063
• Parties: KENNEDY et al. v. CLAYTON et al.
• Court: Arkansas Supreme Court

Page 934

227 S.W.2d 934

216 Ark. 851

KENNEDY et al. v. CLAYTON et al.

No. 4-9063.

Supreme Court of Arkansas.

March 13, 1950.

A. A. Poff, McGehee, J. T. Wimberly, Star City, Virgil R. Moncrieff and John W. Moncrief, Stuttgart, for appellants.

Edwin E. Hopson, McGehee, Williamson & Williamson, Monticellor, for appellees.

GRIFFIN SMITH, Chief Justice.

Damage to growing cotton through use of a poisonous chemical was alleged. From a judgment for $4,460.78 on demands aggregating $14,727.23 the defendants have appealed and the plaintiffs have cross-appealed. Because of overlapping interest the case was difficult to try; but, in the main, incompetent testimony and erroneous instructions are complained of by the defendants. The record discloses that unusual issues were carefully dealt with by adroit and competent counsel under the guidance of a skilled judge whose rulings were not prejudicial, hence each appeal must be affirmed.

Howard Clayton, one of the plaintiffs, owns 840 acres west of Arkansas City, some within three miles of the town. Boggy Bayon separates Clayton's holdings from property owned by the parents of Clarence and Eugene Kennedy. The brothers, as equal partners, sharecropped these Kennedy lands in 1947, specializing in rice. They also raised oats and lespedeza.

A threatened infestation, including coffee beans, prompted Clarence and Eugene to dust the growing rice with a poisonous chemical known as 2, 4-D. ¹ Two applications were made: one by airplane July 1, when 1,000 pounds were distributed; the other by hand equipment operated from horseback in August--800 pounds. The defendants claimed that with the slight information they had concerning potentiality of 2, 4-D, they did not think it would drift more than 60 or 75 feet unless carried by winds. To guard against this possibility the Kennedys had it applied during the late afternoon of a calm day, thinking these precautions would prove effective.

With transfer of the suit from Desha to Lincoln County, a substituted complaint was filed alleging that 216.1 acres were let by Clayton to the designated tenants under an agreement that the landlord should receive as rentals a fourth of the cotton and seed produced. ² The farm, spoken of as 'fairly fresh' buckshot land, had formerly yielded a bale of cotton to the acre. In 1947 the 290.5 acres planted to cotton gave promise of an average crop until, as the complaint alleges, the July application of 2, 4-D was made, affecting all but 74.4 acres. The cotton that escaped was shown to have been planted on land similar in all essentials to that used by the complaing tenants, and to have had the same cultivation, fertilization, and attention. It was therefore used as a basis for determining what yield could have been reasonably expected if the injury had not occurred. All of the plaintiffs had Government crop insurance indemnifying them up to 210 pounds per acre if damage occurred because of drouth, too much rain, insect infestation, or plant disease. Actual per acre production on the unaffected 74.4 area was 399 pounds. ³

There was substantial testimony in support of the following facts:

The 2, 4-D used by the Kennedys was manufactured by Reasor-Hill Corporation. E. M. Johnson and J. T. Henley, who were engaged in the feed and grain business at McGehee, represented Reasor-Hill as distributors, and prior to July 1 they had recommended to Clarence Kennedy that 2, 4-D be applied. During the morning of July 1 Clarence stopped at the feed and grain store and talked with Roy S. McGehee, a salesman for Reasor-Hill who worked in relationship with Johnson & Henley, and who had previously tried to make a sale when he went to the Kennedy farm with Henley. At that time Clarence Kennedy was told that coffee beans could be economically destroyed or controlled by dusting with 2, 4-D, from an airplane. McGehee told Kennedy that in applying the poison the plane 'hopper' should be cut off before the canal was reached--approximately 100 yards back in the rice field. This, he said, would effectively prevent the chemical from spreading to other areas. Still later, Johnson and McGehee returned to the farm with W. K. McClendon, an aviator, and the subject of dusting rice was again discussed. In testifying about these conversations at the feed and grain store July 1, Clarence said: 'Well, I more or less decided when [the chemical] should go on. I went to McGehee that day and talked with Mr. Johnson and the airplane man, and they decided we would put it on in the late afternoon'.

There was competent testimony that Clarence Kennedy had been told that the chemical would 'drift', that it was 'poisonous', and that it was injurious to cotton. While conceding this, Clarence maintained that he had been informed only that the danger was to nearby tracts, hence he was not put on notice that damage might attend the distribution he authorized.

The destructive potentials of 2, 4-D are emphasized in Chapman Chemical Co. v Taylor, 215 Ark. 630, 222 S.W.2d 820. See Burns v. Vaughan, Ark.1949, 224 S.W.2d 365. Appellants, however, say that their information in respect of possible damage attending a drift to other lands was confined to what they had incidentally heard; that in 1947 much less was known about the danger cotton would be subjected to through use of the material; and no one suspected that in an ordinary atmospheric calm 2, 4-D would drift beyond the protective area that defendants had sought to establish when the aviator cut off the distributor feed before reaching the canal. Therefore, say appellants, the Court erred in instructing the jury that they would be liable for a failure to exercise a degree of care 'commensurate with the known danger, if any, involved in the use'. The words 'known danger' are complained of.

An instruction, copied in the footnote, defined negligence in its application to the defendants. ⁴ Each side objected: the appellants because, as they insisted, the instruction 'left out of consideration any knowledge of the defendants as to any dangers to be apprehended by their acts; * * * and also [omits] the element of time at which the alleged acts occurred, and [the instruction] is abstract'. Cross-appellants objected generally, and specifically because liability was based on ordinary care alone.

Another instruction told the jury that if it should find for the plaintiffs, the measure of damage would be 'the actual cash value of each of such plaintiff's crop at the time of its destruction, with interest thereon from the date of the injury at the rate of six percent per annum'. Only general objections to this instruction were made by the plaintiff. The defendants objected specifically, but for reasons other than the reference to interest.

The principal objections made by the cross-appellants are that the verdict was inadequate, and that the Court erred in not giving certain instructions relating to the ultrahazardous nature of the activity, and in not declaring as a matter of law that liability was absolute when it was shown that the defendants directed the use of the chemical.

An initial objection by the defendants came when the Court had finished stating what the issues were. While the record does not show that the trial judge read from the complaint, a comparison of its text with what the Court actually said is conclusive of the contention (not denied) that the complaint was used as a basis for the judicial explanations. After the reading had been completed the defendants objected, but did not move that the jury be discharged.

If it should be held (as has sometimes been done) that it was error to read from the pleadings, the answer here is that the objection came too late.

Instructions given, refused, and modified, and the objections and discussions attending each, cover 29 pages of the record. The Court, after considering the suggestions offered by each side, summed up the issues and declared the applicable law through independent instructions, to which was added some of the suggested matter. A discussion here of all of the objections would not be useful in setting a precedent. On the whole the jury was correctly informed regarding the applicable law; nor is there substantial merit in the argument that effect of some of the instructions was comment on the facts.

An objection to the form of the verdict discloses apprehension by the defendants that the jury might either disregard defense testimony tending to minimize damage sustained by some of the plaintiffs, or confuse their collective rights in a way to prejudice the defendants. They also expressed fear that inclusion of the words, '* * * with interest at the rate of six percent from [blank]' might lead the jury to believe it could assess interest on an unliquidated demand.

The Court did not err in approving the form of the verdict. The plaintiffs were within the statute authorizing jointure in one action 'in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise'. Ark.Stat's § 27-806.

Howard Clayton, as the plaintiff in chief, had kept...