McGraw v. Weeks

• Decision Date: 21 October 1996
• Docket Number: No. 95-1220,95-1220
• Parties: Terry McGRAW, Appellant, v. Dalton WEEKS, Jr., Appellee.
• Court: Arkansas Supreme Court

Page 365

930 S.W.2d 365

326 Ark. 285

Terry McGRAW, Appellant, v. Dalton WEEKS, Jr., Appellee.

No. 95-1220.

Supreme Court of Arkansas.

Oct. 21, 1996.

Butler, Hicky & Long, Forrest City, for appellant.

W. Frank Morledge, Forrest City, for appellee.

DUDLEY, Justice.

Dalton Weeks, Jr., appellee, filed this tort action for damage to his cotton crop as the result of drifting of the chemical 2,4-D after it was applied to nearby rice fields. A hormone herbicide, 2,4-D is suitable for use in rice fields, but it has a propensity to damage cotton; consequently, its use is restricted by the Arkansas State Plant Board. In 1991, when appellant Terry McGraw and Billy Jayroe applied 2,4-D to the rice fields, the Plant Board regulations prohibited the application of 2,4-D within one mile of cotton. Appellant McGraw, a farm manager, directed the ground application of 2,4-D to the levies of a rice field that was only one-quarter mile from Weeks's cotton crop.

The State Plant Board's regulations in 1991 additionally restricted the aerial application of 2,4-D to licensed aerial applicators. The Board's licensing process required both testing of the pilot and inspection of the airplane, including checks for leaks within the application system. Jayroe employed Billy Joe Stewmon to make an aerial application of 2,4-D on his rice crop. Neither Stewmon nor his plane were tested or examined by the State Plant Board, and Stewmon was not licensed to apply 2,4-D. In addition, a nozzle on Stewmon's plane leaked during the application for Jayroe.

Weeks brought this suit against McGraw, Jayroe, and Stewmon. Each denied liability, and each filed cross-claims against the other for indemnity and contribution. After a four-day trial, the jury returned a unanimous verdict of $55,000 in damages to Weeks, unanimously apportioned 75% of the fault for the damage to Stewmon, the aerial applicator, and unanimously apportioned 25% to McGraw, who directed the ground application. By a majority verdict, the jury found no fault on the part of Jayroe, the rice farmer who employed the aerial applicator. The trial court subsequently entered judgment against McGraw and Stewmon jointly and severally. McGraw appeals. There is no reversible error, and we affirm.

McGraw's first assignment is that the trial court erred in ruling that he and Stewmon were jointly and severally liable. He argued to the trial court that the jury's conclusion that he was 25% responsible and Stewmon was 75% responsible was not supported by substantial evidence because the proof showed that he caused injury to slightly less than fifty acres, while Stewmon damaged the remaining 150 acres. The trial court found that, even though each tortfeasor's act or negligence might not have caused all of the damage, they combined to produce, for the most part, a single injury, and each was responsible for the entire result.

Much of McGraw's argument on appeal is premised on the theory that joint tortfeasors must act in concert for joint and several liability to attach, but that is not the law in Arkansas. Consequently, McGraw's citations to numerous cases from other jurisdictions do not afford him relief. We have long said that it is not necessary that the parties be acting in concert in order to be jointly and severally liable. Applegate v. Riggall, 229 Ark. 773, 318 S.W.2d 596 (1958). In this State, joint and several liability is measured by impact, and where there is a single injury, it does not matter whether the individual acts alone would not have caused the entire result. Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971). The case of Van Troop v. Dew, 150 Ark. 560, 234 S.W. 992 (1921), is instructive. In that case, some farmers sued construction contractors and subcontractors who were responsible for a broken fence that allowed cattle to enter their land and destroy their crops. Id. at 562, 234 S.W. at 993. Joint and several liability was imposed on the contractors by the trial court. Appellant Van Troop argued on appeal that he caused only one gap in the fence, which he closed in a few days, while some of the other defendants made various gaps in the fences and made no effort to repair or guard them. Id. at 561, 234 S.W. at 994. We affirmed the trial court and, in pertinent part, wrote:

[T]here is joint liability where the different acts of negligence concur as to time and place and unite in setting in operation the force which causes the injury. In other words, they used the open gaps for the same purposes and at the same time, each being under duty to repair the gaps, and the conduct of each resulted in admission into the field of large numbers of cattle. It cannot be said that the entrance of the cattle was the result of the separate acts of either, but it was rather the result of the act of both of the parties in failing to repair the gaps so as to keep the cattle out.

Id. at 565, 234 S.W. at 994. In the case at bar, the damage to Weeks's cotton crop was the result of the acts of both McGraw and Stewmon in negligently applying 2,4-D, and the trial court ruled that it was impossible to determine in what proportion each contributed to the damages.

McGraw also argues that the damage to Weeks's cotton crop was divisible. The trial court's finding necessarily implied that the damage was indivisible, and we affirm that finding because it was not clearly erroneous. Earnest Hill, who was employed by the State Plant Board in 1991, testified that he was unable to state with any degree of certainty how many acres McGraw's applications damaged and he could not say how many acres Stewmon's application damaged. He was then questioned about a report he prepared that referred to fifty-seven acres and one hundred acres. He responded that the fifty-seven acres in his inspection report referred to the rice sprayed by McGraw, and the one hundred acres to the rice sprayed by Jayroe, not to the damage to Weeks's cotton. Stewmon's expert, Lee Frazier, testified that the drifts overlapped. One of the questions asked Frazier and his response are as follows:

Q. No, I'm not asking you where they were. Maybe my question wasn't asked. As to what was where, whatever was there, you can't separate it as to where one starts and one stops.

A. No, Sir. All those applications were made generally in the same time frame. Had there been some time difference between the applications you may have been able to separate what came from what application. What happens on a cotton plant if you get two real close applications it all looks like the same symptoms. If you get one exposure the cotton plant has a chance to recover and starts to put on normal leaves. Then you get another exposure so then you've got heavy symptoms, like symptoms, or no symptoms, and then heavy symptoms again. All these applications were apparently within the same time frame, ten or twelve days there, and the cotton plant just didn't have enough time to recover and put on new leaves in between.

Thus, the trial court's ruling that the damage to Weeks's cotton crop was one injury was not clearly erroneous. The trial court correctly applied the law of joint and several liability.

McGraw's next point of appeal is composed of three subpoints and comes about as follows. Over McGraw's, Stewmon's, and Jayroe's objections, Weeks testified that, if not for the damage to his cotton crop, he would have contracted in June for the sale of his cotton at sixty-eight cents per pound for future delivery. Because the trial court allowed the testimony in evidence, McGraw, Stewmon, and Jayroe asked the trial court to modify the A.M.I. crop damage instructions, A.M.I. Civ.3d 2220, 2221, and 2225. They asked that the principle implicit in the Model Instructions, that the relevant time for valuing a marketable crop is "at the time of the harvest," be made explicit. The trial court refused to add the phrase "at the time of harvest" to the instructions. Weeks testified about the history of the cotton yield for the field in which the damage occurred and, on rebuttal, testified about the yields for three years after the damage. On appeal, McGraw renews his objection to (1) the testimony about the price at which Weeks "would" have contracted to sell his cotton, (2) the refusal to modify the A.M.I. instructions, and (3) the yield-history proof.

We need not decide McGraw's first subpoint about Weeks's testimony that, except for the damage, he would have booked his cotton in June at sixty-eight cents per pound. The jury awarded Weeks $55,000, and that award was clearly based on a price of 53.6 cents per pound, the price Weeks received in the fall on the open market for cotton grown and harvested on a nearby undamaged field. Thus, the testimony about the futures contract, even if erroneously admitted, could not have harmed McGraw.

We treat McGraw's second subpoint, the one concerning modification of the Model Instructions, similarly. All parties agree that Weeks's cotton crop was damaged, but marketable. Arkansas law provides that when a crop is damaged but nonetheless grows to maturity, the damages are the difference between the market value, at the time of harvest, of the crop actually produced and the crop that would have been produced without the damage, less the costs of production. St. Louis Southwestern Ry. Co. v. Morris, 76 Ark. 542, 89 S.W. 846 (1905); Howard Brill, Arkansas Law of Damages, § 32-4 at 426-27 (2d ed. 1990). The Model Instructions recognize that the open market determines the price and that the time of harvest is the critical date for valuation of a marketable but damaged crop. The Model Instructions, as adapted to this case, provided that "fair market value" meant the difference between "the price that the cotton of Dalton Weeks would bring on the open market" and the "fair market value ... [of] the crop actually produced" less the costs "to produce, harvest, and market the crop." A.M.I. Civ.3d 2220 & 2225. Obviously, the jury...