Lawler v. Skelton

• Decision Date: 22 May 1961
• Docket Number: No. 41855,41855
• Citation: 130 So.2d 565,241 Miss. 274
• Parties: Charles LAWLER v. W. T. SKELTON et al.
• Court: Mississippi Supreme Court

Page 565

130 So.2d 565

241 Miss. 274

Charles LAWLER v. W. T. SKELTON et al.

No. 41855.

Supreme Court of Mississippi.

May 22, 1961.

Watkins & Eager, Jackson, P. J. Townsend, Jr., Drew, for appellant.

Neill, Clark & Townsend, Cooper & Allen, Indianola, for appellees.

ETHRIDGE, Justice.

This case involves issues of liability for personal injuries allegedly resulting from aerial crop spraying of agricultural insecticides. We hold that the verdict of the jury for the defendants, except one of them, is against the overwhelming weight of the evidence, and accordingly reverse and remand the case for a new trial.

This suit was instituted in the Circuit Court of Sunflower County by appellant, Charles Lawler, against the defendants-appellees, W. T. Skelton, J. L. Turk and V. A. Johnson. Lawler was manager of a cotton gin, The Marie Gin Company, a corporation, whose site adjoined Marie Plantation, and was surrounded on three sides by the plantation, which was owned by defendant V. A. Johnson. In February 1956, Johnson leased the plantation to W. T. Skelton, another defendant. The nature and effect of this contract is an issue and will be discussed subsequently, but, since we have concluded that it was a lease, creating between Johnson and Skelton a landlord and tenant relationship, it will be referred to in that way.

In August 1956 Skelton made arrangements with defendant J. L. Turk, operating the Turk Flying Service, to spray with insecticides by airplane the cotton fields of Marie Plantation. Turk employed a pilot, John P. Martin, to do the spraying. Martin used Turk's landing strip a few miles away. Skelton, who contracted with Turk to do the spraying for seventy-five cents an acre, purchased the insecticides for that purpose, and furnished the labor to mix them and to load them on the airplane. One of the chemicals used was malathion, a phosphate base poison less toxic than the other two chemicals, but highly toxic to humans. Another ingredient used was endrin, a chlorinated hydrocarbon compound. It is described as a 'potent poison' thirty to forty times more toxic than DDT. The solvent xylene is a petroleum hydrocarbon poison. Approximately seventy per cent of both the endrin and malathion was xylene or, as to malathion, some other petroleum base solvent. Two gallons of the endrin and malathion mixtures were combined with eight gallons of water to compose the liquid sprayed on the cotton. It is undisputed that, if a person receives an excessive amount of these chemicals, they can be highly toxic and dangerous to human life.

On the north side of the gin was an uncovered gin platform, on which Lawler was working on a morning in August 1956. Lawler says it was August 16. He was welding some steel beams and wearing gloves and a helmet with an opening in the top. A Negro man, Johnny McCaleb, was helping him. Lawler had been advised earlier by Skelton that he was going to have the cotton sprayed, and Lawler told him that he would be through with the welding in about forty-five minutes. In the meantime, Martin, the pilot, was spraying the cotton north and west of the gin building by traversing the field in his airplane on an east and west pattern. The cotton grew close to the gin platform, not more than twenty to thirty feet away from it. Marbin's bi-plane had eighteen nozzles protruding from the back of the wings, from which he was spraying under pump pressure the cotton at a rate of two gallons of the mixture per acre.

The pilot was in the process of doing some trimming work on the edge of the field north and west of the gin platform, by flying several rounds going north and south. Plaintiff and McCaleb testified, without any substantial dispute, that at that time plaintiff was welding in a squatting position between a steel beam and a brace. The pilot cut his motor off and floated to the left and west close over the gin platform. McCaleb saw the plane coming in low over them, and cried out to Lawler. The pilot suddenly started his motor and pulled up, opening the valves immediately over the gin platform, upon which the spray from the airplane covered plaintiff's back and neck and came through the top of the helmet, wetting his face thoroughly. The mixture went into his mouth, nose and throat. He strangled and had difficulty getting his breath. McCaleb helped Lawler remove his helmet and assisted in wiping the liquid from his face. Testimony by Lawler and McCaleb as to these facts is not materially contradicted. The pilot did not remember the incident, although he admitted flying over the platform sometime during the job.

Prior to this incident, Lawler was in apparent good health, except that he had a mild chronic emphysema. This fact was established by the testimony of his personal physician for several years before the accident, and by other doctors, including lung specialists. The only contradiction of this was by appellees' witness, Dr. W. A. Hull, to whose testimony later reference will be made.

Immediately after he was sprayed with the chemical mixture, plaintiff became dizzy and nauseated, but worked some that afternoon. That night he was quite ill, but, wearing the same clothes, he went back to work the next morning for several hours, after which his fever went up and he fell into a coma. He was hospitalized by Dr. Aden for several days. In subsequent months he suffered various illnesses, about which no further comment will be made, since it was an issue for the jury as to whether these later illnesses were the result of plaintiff's being sprayed.

The great weight of the evidence is to the effect that plaintiff was sprayed with this toxic chemical mixture in excessive quantities. The testimony by him and McCaleb is not really contradicted. It is also undisputed that a human being who receives through his nose, mouth and skin an excessive quantity of these poisons will very probably become ill from them and in many instances his life will be endangered. The labels on the containers for both endrin and malathion reflect that they are poisons dangerous to humans by skin contact, inhalation or swallowing. The manufacturers, by the labels, cautioned users and other persons exposed to them. The 'Safety Manual for Aerial Applicators', published by the Mississippi Aeronautics Commission, the Civil Aeronautics Administration, and the Mississippi Aerial Applicators Association, directs pilots who are flying and spraying with these chemicals to comply with numerous precautions, and states that they are extremely hazardous if inhaled, absorbed through the skin, or swallowed. In short, the great weight of the evidence established the fact that appellant was sprayed with a large quantity of these chemicals, and that they are dangerous to human beings when absorbed in excessive quantities.

There was a factual issue as to whether this incident of appellant's being sprayed was the proximate cause of his immediate acute illness, although the great weight of the evidence is that it was. Witnesses for appellant, and some for appellees, testified on a hypothetical question that, if appellant were sprayed with a large quantity of this mixture, it probably caused his acute illness. On the other hand, Dr. Hull testified that he thought the spraying had no relation to plaintiff's acute illness. He examined certain X-rays of plaintiff's chest taken before and after the spraying, and concluded that before the accident plaintiff had chronic pulmonary emphysema, bronchitis and pleurisy. Dr. Aden thought that plaintiff's acute illness was pneumonia. He did not recall plaintiff's telling him of the spraying incident on August 16. The hospital record, however, reflects that on August 17 he prescribed atropine, the recognized antidote for chemical poisoning. The court erroneously refused to permit plaintiff to testify that he heard his wife tell Dr. Aden he had been sprayed the day before. This was error, since the issue was not whether it was true, but whether it was said. The fact that the statement was made was a fact relevant to whether Dr. Aden was so notified. Handshoe v. Daly, 1951, 211 Miss. 189, 51 So.2d 230; 31 C.J.S. Evidence § 239, p. 988.

There was also some dispute as to whether Martin was doing the spraying on the date alleged by plaintiff, August 16, or whether it was several days before. Dr. Hull's testimony is considerably weakened by his admissions on cross-examination that plaintiff's symptoms were characteristic of chemical poisoning; a mild emphysema can be aggravated by an excessive dose...