Pitchfork Land and Cattle Company v. King, A-7929

• Decision Date: 12 April 1961
• Docket Number: No. A-7929,A-7929
• Citation: 162 Tex. 331,346 S.W.2d 598
• Parties: PITCHFORK LAND AND CATTLE COMPANY et al., Petitioners, v. Raymond KING et al., Respondents.
• Court: Texas Supreme Court

Page 598

346 S.W.2d 598

162 Tex. 331

PITCHFORK LAND AND CATTLE COMPANY et al., Petitioners, v. Raymond KING et al., Respondents.

No. A-7929.

Supreme Court of Texas.

April 12, 1961.

Rehearing Denied June 14, 1961.

Jack W. Watson, Stamford, Kilgore & Kilgore, Dallas, for petitioners.

Bullington, Humphrey, Humphrey & Fillmore, Roy Schaeffer, Wichita Falls, for respondents.

CULVER, Justice.

Respondents, Raymond King and a number of other farmers and landowners, brought this suit against Pitchfork Land and Cattle Company and Aerial Sprayers, Inc. for damages to their growing crops of cotton allegedly caused from herbicide effect. They alleged negligence on the part of both Pitchfork and the Aerial Sprayers in allowing herbicide chemicals to drift and settle upon their crops from spraying operations conducted on Pitchfork's land.

A jury verdict favorable to King and others was returned and judgment against both defendants entered thereon. The Court of Civil Appeals has affirmed. 335 S.W.2d 624.

The petitioners urge that there was no evidence shown upon the issue of causation or in other words that the respondents did not offer any probative testimony tending to prove that herbicide chemicals drifted from the Pitchfork spraying operations and settled upon and damaged respondents' crops. This was so, they argue, for two reasons, first, because there was positive and undisputed expert evidence that the herbicide effect appeared too late in the cotton crops for it to be the result of the Pitchfork operations, and, second, because the fact that the general pattern of the herbicide effect shown by the undisputed evidence is not a drift pattern, and no witness testified that he was able to trace the herbicide effect from the point of spraying operations on the Pitchfork ranch to the farms where the damage occurred.

There is no question but that the crops of respondents suffered herbicide damage and this effect was first discovered by them about the first of August. The spraying operations were conducted on the Pitchfork ranch on the 14th and 15th of July. Investigation revealed that no other similar operations had been conducted during this period anywhere within a radius of 50 miles. The spraying on the Pitchfork ranch was for the purpose of killing sunflowers, cockleburs and other weeds at a distance of some 7 1/2 miles from the nearest cotton farm which adjoins the Pitchfork land on the north. The area where the damage is claimed extends northeast, some 8 miles in a narrow pattern from 1 1/2 to 2 miles in width.

Petitioners produced 4 qualified-expert witnesses to testify that under the crop growing conditions existing at that time herbicide effects should have been readily apparent within 7 and not more than 10 days after application. One of these from the examination of photographs of the cotton stalks taken on August 7th testified that the herbicide must have been applied some 10 or 12 days earlier. So that if the testimony of these experts is to be accepted the herbicide must have come from some source other than from the Pitchfork lands and some 6 to 10 days after the Pitchfork spraying was finished.

Petitioners say therefore that the damage in question could not have been caused by the spraying operations because the damage would have been apparent at least 6 days earlier and this by the testimony of the experts is established as a scientific fact such as the value of a steel bridge, ¹ that death resulted from polio, ² or that irritation of the eye could not cause cancer. ³

Conceding that the effect of herbicide on cotton plants is a subject for experts alone where the jury cannot be able to form correct opinions of their own, based upon the evidence and aided by their own experience and knowledge of the subject, ⁴ nevertheless there are other factors which we think exclude the consideration of this expert testimony as being controlling under the circumstances in this case.

It is conceded that the damage was caused by herbicide similar to that used by the petitioners. According to the testimony, upon contact with susceptible plants the herbicide affects the young and tender parts of the plant causing a greatly accelerated growth, depending upon the maturity of the plant and the condition of moisture and temperature at the time. The characteristic symptoms are crinkly margins and elongated lobes of the young leaves.

The testimony reveals that these farmers first discovered injury to their cotton plants about the first of August, some testifying that it was the last day or two in July and others on the first of August. At least one farmer, although he was in his cotton field every day or so, had not noticed anything abnormal until a neighbor made inquiry. Another first heard it discussed at the cotton gin. The testimony indicates that these farmers were all aroused over the situation and sought information from the Agricultural Experiment Station to determine the cause. While the experts testified that under the growth conditions in the area at that time the herbicide effects should have been readily apparent to any observer within at least 7 days and in not more than 10 days, this cannot be taken as proof from a scientific and conclusive standpoint that the herbicide effect was not caused by the July 15th operations on the Pitchfork land. Even accepting the testimony of the experts that the effect of the herbicide would have appeared at least by the 25th of July, the fact that discovery did not take place by the farmers until on or about August 1st cannot be taken as a matter of law that there was no apparent effect for 5 or 6 days prior to its discovery by these farmers. It could well be that the effect would have been observed earlier by the expert intent upon a search for herbicide effect and yet not be discovered by farmers unacquainted with herbicide action in a casual inspection of their fields.

They also say that it is a scientific fact that the pattern of herbicide effect shown by the testimony in this case to be a long narrow strip extending for some 30 miles to a width of from a mile to a mile and a half with some damage in the center, less at the beginning and end of the strip, could not have been caused by drift of the herbicide spraying at the Pitchfork ranch. This does pose a rather difficult question. It is conceded that on the 15th of July there was a wind blowing in a northeasterly direction from the Pitchfork ranch. According to the weather bureau data offered by the petitioners taken at Childress, Texas, some 60 miles to the north, the wind was blowing generally in a northeasterly direction at a velocity of from 12 to 15 miles per hour. The penciled-in arrows on this chart do not purport to show direction with much degree of accuracy and some doubt exists as to whether conditions as to wind, velocity and direction at Childress are to be considered as of much value in determining those conditions some 60 miles south. There is some testimony given by one of the respondents that he had occasion to observe on the 15th that the wind was rather high and blowing from the direction of the Pitchfork ranch operations. The testimony offered by the petitioners is to the effect that by the observance of windmills on the Pitchfork ranch the wind was blowing more eastwardly so that it would not pass over the area claimed to be affected.

A Mr. Turner, holding a Master of Science Agricultural degree and with considerable experience in research and consultation work in connection with the application of herbicide chemicals, and in aeroplane spraying operations, mostly in California, testified that he had worked out the land contours as they relate to the Pitchfork ranch and from there on past the Finney community. He further testified that the recordings at the Childress weather station has no value whatsoever because it is much too far away; that there is a great deal of variation both in direction and velocity of winds within a relatively small area, a square mile or less, particularly where you have rolling topography; that the wind and velocity and direction at Mr. King's home would not be indicative of the condition of the wind 12 miles away at the China draw at the same time.

Assuming the weather conditions as testified to by Pitchfork's witness as to the direction and velocity on July 15th Mr. Turner testified the drift would not go in the direction of the Finney community but would be more to the east. He further testified that where you have a drift with any chemical similar to that used in this case there is a tendency to disperse the further it travels from the source. Even if the wind had been blowing in the direction of the Finney community the herbicide would not have traveled in a straight narrow path, but would fan out. He further testified that he had seen the path of herbicide similar to the one disclosed here, that is, a long narrow pattern 30 miles long and from one to two miles in width, but in those cases the cause had been determined to be the passage of a leaking aircraft over the area and he had seen that situation five different times.

The area affected by herbicide was, as heretofore said, in a long, narrow strip extending northeasterly in a line which, if prolonged...