Pendergrass v. Lovelace, No. 5673

Docket NºNo. 5673
Citation1953 NMSC 97, 262 P.2d 231, 57 N.M. 661
Case DateOctober 09, 1953
CourtSupreme Court of New Mexico

Page 231

262 P.2d 231
57 N.M. 661
PENDERGRASS

v.
LOVELACE.
No. 5673.
Supreme Court of New Mexico.
Oct. 9, 1953.

[57 NM 662] Smith & Smith, Clovis, for appellant.

Gore & Nieves, Clovis, for appellee.

COMPTON, Justice.

This is an action for damages for the negligent spraying of a cotton crop. Appellee's cotton was located on land adjacent to appellant's premises. At the time of the spraying the cotton was up, a good stand, and gave promise of producing a fair yield. Appellant employed one Olmstead to spray his premises which were infested with weeds and vines. The spraying was done by the use of an airplane and with a solution commonly known as 2,4-D, a solution highway dangerous to cotton plants. In spraying appellant's premises, Olmstead flew at low altitude over the field of cotton belonging to appellee, making at least three trips. The plane emitted sufficient quantities of the solution as to damage the growing cotton. The cause was tried to the court, which found Olmstead's negligence was the proximate cause of the damages. From an adverse judgment, appellant appeals.

The sufficiency of the evidence to identify Olmstead as the operator of the plane is questioned. This contention merits but little consideration. Appellee and his

Page 232

sons were working in the cotton during the early part of June 1951, when an airplane sprayed appellant's premises. The plane then passed over the cotton crop and did the damages complained of. When the cotton began to show the effects of the spraying, appellee discussed the question of damages with appellant and he admitted that on June 7, 1951, Olmstead sprayed his premises with 2,4-D, by the use of an airplane. Moreover, appellant suggested [57 NM 663] both of them should sue Olmstead for his negligence. We will not review the evidence further. Suffice it to say, no logical conclusion can be reached other than Olmstead was the operator of the plane.

Urgently argued is the point that Olmstead was an independent contractor; hence, appellant is not responsible for his acts. It is a general rule that an employer is not liable for the negligence of an independent contractor; however, there are certain exceptions to the rule. Work that is intrinsically and inherently dangerous in performance is not delegable so as to escape liability, and 2,4-D is potentially dangerous. Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820. Consequently, when appellant delegated the spraying of his premises to Olmstead, whether as an employee or independent contractor, he assumed full responsibility for his acts. The test in such case is stated at 57 C.J.S., Master and Servant, Sec. 590(b) and Sec. 591(a), as follows:

'* * * The proper test, it has been said, is whether danger inheres in the...

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30 practice notes
  • Cooper v. Curry, No. 3176
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 3, 1978
    ...from such tasks. Southern California Petroleum Corp. v. Royal Indem. Co., 70 N.M. 24, 369 P.2d 407 (1962); Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 When a hospital admits a patient for surgical procedures it knows that the procedures are inherently dangerous to the life and health......
  • Jessen v. National Excess Ins. Co., No. 17197
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 22, 1989
    ...P.2d at 1261, this Court noted in Budagher v. Amrep Corp., 97 N.M. 116, 121, 637 P.2d 547, 552 (1981), (quoting Pendergrass v. Lovelace, 57 N.M. 661, 663, 262 P.2d 231, 232 (1953)), appeal after remand, 100 N.M. 167, 667 P.2d 972 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 One who o......
  • Terrel v. Duke City Lumber Co., Inc., No. 878
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 22, 1974
    ...(1960); Hubbard v. Goode, 65 N.M. 263, 335 P.2d 1063 (1959); Rudolph v. Guy, 61 N.M. 284, 299 P.2d 462 (1956); Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953) and Nichols v. Anderson, 43 N.M. 296, 92 P.2d 781 (1939), on the basis of the cumulative speculation aspect in the instant......
  • Bramer v. U.S., No. 76-2131
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 16, 1979
    ...the AEC's independent contractor, operated LASL and was contractually responsible for safety. The court, citing Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953), found that New Mexico had accepted the doctrine of the Restatement (Second) of Torts § 416 (1965), which imposes a nonde......
  • Request a trial to view additional results
30 cases
  • Cooper v. Curry, No. 3176
    • United States
    • New Mexico Court of Appeals of New Mexico
    • October 3, 1978
    ...from such tasks. Southern California Petroleum Corp. v. Royal Indem. Co., 70 N.M. 24, 369 P.2d 407 (1962); Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 When a hospital admits a patient for surgical procedures it knows that the procedures are inherently dangerous to the life and health......
  • Jessen v. National Excess Ins. Co., No. 17197
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 22, 1989
    ...P.2d at 1261, this Court noted in Budagher v. Amrep Corp., 97 N.M. 116, 121, 637 P.2d 547, 552 (1981), (quoting Pendergrass v. Lovelace, 57 N.M. 661, 663, 262 P.2d 231, 232 (1953)), appeal after remand, 100 N.M. 167, 667 P.2d 972 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 One who o......
  • Terrel v. Duke City Lumber Co., Inc., No. 878
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 22, 1974
    ...(1960); Hubbard v. Goode, 65 N.M. 263, 335 P.2d 1063 (1959); Rudolph v. Guy, 61 N.M. 284, 299 P.2d 462 (1956); Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953) and Nichols v. Anderson, 43 N.M. 296, 92 P.2d 781 (1939), on the basis of the cumulative speculation aspect in the instant......
  • Bramer v. U.S., No. 76-2131
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 16, 1979
    ...the AEC's independent contractor, operated LASL and was contractually responsible for safety. The court, citing Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953), found that New Mexico had accepted the doctrine of the Restatement (Second) of Torts § 416 (1965), which imposes a nonde......
  • Request a trial to view additional results

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