Pendergrass v. Lovelace, 5673

• Decision Date: 09 October 1953
• Docket Number: No. 5673,5673
• Citation: 1953 NMSC 97,262 P.2d 231,57 N.M. 661
• Parties: PENDERGRASS v. LOVELACE.
• Court: New Mexico Supreme Court

Page 231

262 P.2d 231

57 N.M. 661

PENDERGRASS v. LOVELACE.

No. 5673.

Supreme Court of New Mexico.

Oct. 9, 1953.

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 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 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 performance of the work; * * *. Work held inherently dangerous, within the exception, includes: Building of a brick wall abutting on a highway; depositing an insecticide, consisting of a poisonous dust or spray, on a field; * * *.' (Emphasis ours.)

'One who owes, and is personally bound to perform, an absolute and positive duty to the public or an individual cannot escape the responsibility of seeing that duty performed by delegating it to an independent contractor, and will be liable for injuries resulting from the contractor's negligence in the performance thereof, whether the duty is imposed by law or by contract, or, if it is imposed by law, whether it is imposed by the common law, by statute, or by municipal ordinance; and it is of no consequence whether or not the owner exercised care in selecting the contractor or whether the breach of the employer's duty occurs during the progress of the work or from a defective condition of the work after it is finished.' (Emphasis ours.)

The following are other crop dusting cases: Gerrard Co. Inc. v. Fricker, 42 Ariz. 503, 27 P.2d 678; Heeb v. Prysock, 219 Ark. 899, 245 S.W.2d 577; McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138. See also Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260; State v. Williams, 12 Wash.2d 1, 120 P.2d 496; Law v. Phillips, W.Va., 68 S.E.2d 452; Pannella v. Reilly, 304 Mass. 172, 23 N.E.2d 87; and Anno. 12 A.L.R.2d 436 where the...