Mccorkle Farms, Inc. v. Thompson

• Decision Date: 18 September 2002
• Docket Number: No. CA 01-1405.,CA 01-1405.
• Citation: 84 S.W.3d 884,79 Ark. App. 150
• Parties: McCORKLE FARMS, INC. v. Gene THOMPSON.
• Court: Arkansas Court of Appeals

Page 884

84 S.W.3d 884

79 Ark. App. 150

McCORKLE FARMS, INC. v. Gene THOMPSON.

No. CA 01-1405.

Court of Appeals of Arkansas, Division III.

September 18, 2002.

Fogleman & Rogers, by: Joe M. Rogers, West Memphis, for appellant.

Butler, Hickey, Long & Harris, by: Andrea Brock, for appellee.

ANDREE LAYTON ROAF, Judge.

This is a crop-damage case. Appellant, McCorkle Farms, Inc., filed suit against Delta Farms Elevator, Inc., Delta's president and sole shareholder, appellee Gene Thompson, and Randy Atkison d/b/a Buffalo Island Flying Service¹ after noticing symptoms consistent with its cotton crop being exposed to the pesticide 2,4-D. Shortly before these symptoms were noticed, Atkison had been retained by Thompson to apply 2,4-D to his nearby rice crop. After trial, the jury returned a verdict finding no negligence on the part of either Atkison or Thompson. This appeal followed. McCorkle Farms raises four points on appeal: (1) the trial court erred in allowing introduction of the Plant Board Pesticide Committee's conclusion that there was insufficient evidence that Atkison was responsible for the 2,4-D damage to crops on several nearby farms, including appellant's; (2) the trial court erred in refusing to instruct the jury that violation of Plant Board regulations concerning the restricted use of 2,4-D was evidence of negligence; (3) the trial court erred in refusing to instruct the jury that when an independent contractor is engaged to perform inherently dangerous work any negligent conduct of the contractor in the performance of that work is chargeable to the employer; (4) the trial court erred in allowing Thompson to introduce statistical evidence of average per-acre yields for a ten-year period in support of his contention that McCorkle Farms did not suffer a reduction in its yield as a result of 2,4-D exposure. We reverse on all four points and remand.

Joey McCorkle, one of McCorkle Farms's officers, testified that in 1992 it had 472 acres planted in cotton and that the crop had a good start. He testified that he noticed symptoms — elongated leaves and funny-looking bolls — associated with exposure to 2,4-D on July 7, 1992. The symptoms were reported to its crop consultant and to the Plant Board. McCorkle testified that he met with Keith Houchin and Lonnie Smith, investigators from the Plant Board. McCorkle also testified that he was not present at the Plant Board hearing. He also noted that the heaviest 2,4-D damage was located on the south and southeast side of the farm. Records showed the farm's average yield for 1992 to be 618 pounds per acre, compared with an anticipated yield of 900 pounds per acre.

Keith Houchin, an agricultural specialist with the Arkansas State Plant Board, testified that he was assigned with investigator Lonnie Smith to investigate a 2,4-D complaint filed by McCorkle Farms. Houchin stated that he and Smith made an evaluation of the entire area and determined that McCorkle Farms's exposure was a result of a drift as opposed to a direct application because the symptomology was not uniform. He also stated that the symptoms appeared heaviest on the southeast corner of the McCorkle Farms acreage and lighter toward the northwest corner. Houchin testified that he determined that the source of the 2,4-D exposure was the aerial application made on Thompson's farm by Randy Atkison.

Houchin explained that State Plant Board regulations require aerial applicators to file a report with the board within five days of an application. He testified that Atkison's reports indicated that he applied 2,4-D for Thompson on July 4, 1992, and on July 7, 1992. Houchin testified that the regulations prohibit application of 2,4-D if the wind velocity is in excess of five miles per hour or the temperature is in excess of ninety degrees. Houchin further testified that he compared Atkison's report with official weather reports from Jonesboro and Memphis and that he concluded that Atkison's applications on both days were made outside the conditions set out in the regulations.

On cross-examination, Houchin testified from a transcript of the Plant Board Pesticide Committee hearing in which the board concluded that there was not sufficient evidence to show that Atkison was responsible for the damages, outlined in the complaints received by the board. Houchin stated that he was not sure to which complaint the vote pertained, but McCorkle Farms had made a complaint covered by the hearing.

Avril Brown, who farmed the subject land between 1962 and 1990, testified that in 1992, he farmed cotton on four tracts of land near McCorkle Farms's acreage. He testified that he thought McCorkle Farms had a beautiful crop growing until he noticed damage to the crop after July 4. Brown testified that he considered his tracts of land to be comparable and testified as to his yield in 1992, which was 966 pounds per acre. Brown also testified that when he farmed the McCorkle Farms acreage, he would average between 850 and 1,000 pounds per acre in a good year and between 500 and 600 pounds per acre in a poor year. He also testified that he did not notice any significant difference between his crop and McCorkle Farms's prior to the damage. Brown testified that there would not be a significant difference in the cost of picking the crop, whether it was a 500-pound per acre crop of a 1,000-pound per acre crop. Gene Thompson testified that he had been farming since 1948. He testified that in 1992 he, individually or in partnership, farmed 12,000 acres of rice located south and east of McCorkle Farms's land. He testified that he was aware that there was risk in using 2,4-D and that one had to be very careful in using the pesticide. He also testified that he knew the Plant Board closely regulated 2,4-D because of its susceptibility to drift. Thompson testified that he contacted Atkison about applying 2,4-D to his rice crop and specified the time frame within which to do so. Thompson admitted that he did not give Atkison any other instructions, warnings, or cautions, that he did not check the 2,4-D label containing instructions and precautions, and that he did not check Atkison's plane to ensure that it complied with the regulations. Thompson testified that he was aware that the Plant Board regulations held him, as owner, responsible. Thompson said he was present when Atkison made both applications.

Thompson testified that he was aware that the Plant Board regulations prohibited a landowner from allowing 2,4-D to be applied without complying with the regulations. He also admitted that there was no gauge in the field to determine wind speed and that he did not check the wind speed or the other requirements of the regulations. He further testified that Atkison's report stated that the wind was from the south during the July 4th application, but that he disagreed with the report because the winds were out of the west and southwest at the time. Thompson also testified that he obtained documents from the ASCS and the Extension Office concerning the average cotton production yield for Cross County between 1982 and 1992. Over objection, Thompson testified as to the averages contained in those documents.

McCorkle Farms' first point is that the trial court erred in allowing the introduction of the conclusions of the Plant Board Pesticide Committee that there was insufficient evidence presented to the board that Atkison was responsible for 2,4-D exposure that resulted in some seventeen complaints to the board. The decision whether to admit relevant evidence rests in the sound discretion of the trial court, and our standard of review of such a decision is whether the trial court has abused its discretion. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. Our courts have repeatedly held, however, that a trial judge may exclude evidence, although relevant, if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403; NationsBank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001); Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999); Lewis v. State, 73 Ark.App. 417, 44 S.W.3d 759 (2001). All evidence is presumably prejudicial, or it would not be relevant; but Rule 403 only excludes evidence that is unfairly prejudicial. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); Marvel v. Parker, 317 Ark. 232, 878 S.W.2d 364 (1994). Rule 403 involves balancing, on the one side, the evidence's probative value and, on the other side, the evidence's dangers, including its unfairly prejudicial and misleading nature.

In Berry v. State, 290 Ark. 223, 233, 718 S.W.2d 447, 453 (1986), the Arkansas Supreme Court found a good definition of "unfair prejudice" in the advisory committee's commentary to Fed.R.Evid. 403, which describes it as an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." We agree that use of the conclusion of the Plant Board report meets this definition.

At common law, a judgment from another case would not be admitted. Nipper v. Snipes, 7 F.3d 415 (4th Cir.1993); United States Steel, LLC v. Tieco, Inc., 261 F.3d 1275 (11th Cir.2001); United States v. Jones, 29 F.3d 1549 (11th Cir. 1994). Cf. Greycas, Inc. v. Proud, 826 F.2d 1560 (7th Cir.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 775, 98 L.Ed.2d 862 (1988). A practical reason for denying a judgment or administrative agency report evidentiary effect is the difficulty of weighing a judgment or report, considered as evidence, against whatever contrary evidence a party to the current suit might want to present. The difficulty must be especially great for a jury, which is apt to give...