Pitchfork Land & Cattle Co. v. King

• Decision Date: 25 April 1960
• Docket Number: No. 6954,6954
• Citation: 335 S.W.2d 624
• Parties: PITCHFORK LAND AND CATTLE COMPANY et al., Appellants, v. Raymond KING et al., Appellees.
• Court: Texas Court of Appeals

Page 624

335 S.W.2d 624

PITCHFORK LAND AND CATTLE COMPANY et al., Appellants, v. Raymond KING et al., Appellees.

No. 6954.

Court of Civil Appeals of Texas, Amarillo.

April 25, 1960.

Rehearing Denied May 23, 1960.

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

Bullington, Humphrey, Humphrey & Fillmore, Wichita Falls, for appellees.

This is an appeal from a judgment rendered by the trial court upon a jury verdict in favor of 17 farmers, joined by the Landlords of those who were tenants, plaintiffs below, against the two defendants below, Pitchfork Land & Cattle Company and Aerial Sprayers, Inc., jointly and severally, appellants herein. Except where their names are used the farmers will be hereinafter referred to as appellees or the farmers. Appellants, Aerial Sprayers, Inc., will be hereinafter referred to as Aerial Sprayers and Pitchfork Land & Cattle Company, as Pitchfork.

Recoveries were sought by appellees for damages to their respective cotton crops on some 22 farms growing out of spraying operations conducted by Aerial Sprayers on land belonging to Pitchfork located 7 1/2 to 15 miles southwest of the farms in question and on which a hormone herbicide commonly known as 2, 4-D, with the trade name, Esteron Ten-Ten, was sprayed for the eradication of sun flowers, cockleburs and other obnoxious weeds infesting the area sprayed. The first question with which we are faced, so far as the rights of Pitchfork is concerned, is whether Aerial Sprayers was an independent contractor as a matter of law, the question having been submitted to a jury with proper instructions and answered adversely to Pitchfork.

Our courts in Texas from a very early day have held the burden is upon the one claiming exemption to establish the independence of the contract of the workman. Justice Brown, speaking for our Supreme Court in Taylor, B. & H. Ry. Co. v. Warner et al., 88 Tex. 642, 32 S.W. 868, 870 said:

'Every person who is found performing the work of another is presumed to be in the employment of the person whose work is being done, and if the facts be such as to exempt * * * the person for whom the work is being performed, from liability for the acts of those performing such work, it devolves upon him who claims such exemption to make proof of the terms of the contract, showing that the relation of master and servant did not exist.'

The still earlier case by the Supreme Court of Burton v. Galveston, H. & S. A. Ry. Co. 61 Tex. 526 was cited by Justice Brown for authority on the statement just quoted. See also Beaumont, S. L. & W. R. Co. v. Olmstead, 56 Tex.Civ.App., 96, 120 S.W. 596 (writ refused); Liberty Mut. Ins. Co. v. Boggs et al., Tex.Civ.App., 66 S.W.2d 787 (writ dismissed).

Certain tests to apply to the facts of each case to determine the independent contractor question have been spelled out by our Supreme Court. In Industrial Indemnity Exchange v. Southard et al., 138 Tex 531, 160 S.W.2d 905, 907, that Court, though recognizing there are other tests, set out the following general recognized tests:

'(1) The independent nature of his business; (2) his obligation to furnish necessary tools, supplies, and material to perform the job; (3) his right to control the progress of the work, except as to final results; (4) the time for which he is employed; and (5) the method of payment, whether by time or by the job.'

In Burton v. Galveston, H. & S. A. Ry. Co., supra, the Supreme Court set still other tests by saying:

'* * * we are of the opinion that, in reason and upon the weight of authority of adjudicated cases, they are and should be considered the servants of the railway company; for in such case it has retained to itself two of the most essential powers of a master--the power to select and the power to discharge * * *'

The San Antonio Court of Civil Appeals in writing on the question here under discussion has held: 'It is the right or authority to control, and not the exercise thereof, which determines the status or relationship of the parties.' Texas & N. O. R. Co. v. Rittimann, 87 S.W.2d 745, 749 (writ dismissed).

The Supreme Court his indicated some adherence to the right-to-control doctrine by saying through Justice Garwood: '* * * the right of control in the alleged master over the detailed means whereby the alleged servant is to accomplish an ultimate result may be as important as the actual exercise of that right * * *'. Great Western Drilling Company v. Simmons, 302 S.W.2d 400, 403.

Though we realize the court made some limitation when it said the right to control may be as important as the actual exercise of that right we believe the holding is applicable to the facts of our case. (Emphasis added.) So far as the interest of Pitchfork in the spraying was concerned it left its assistant manager, Jim Humphreys in charge of the operations on the occasion in question. Upon questioning by appellees' counsel concerning whether he would have stopped the spraying had he thought the wind was too high he reluctantly answered:

'Q. Would you have shut it down, Mr. Humpherys? * * * I mean when I say shut it down, would you have stopped this spraying on that occasion if you would have thought that you were endangering anybody's crops. A. Yes.'

We believe this testimony shows without question that Pitchfork had the authority to control at least the detail of time and progress in spraying, two of the very elements mentioned in the Southard case by the Supreme Court. Additionally, we believe the testimony shows Pitchfork had control of the strength of the poison used. The record shows Pitchfork through the years has followed very closely the recommendations of Cecil Meador and C. E. Fisher of formulations for spraying on their ranch. Both of these men had been employees of the State Experiment Station at Spur and had considerable experience in spraying. Mr. Fisher testified:

'Q. Now, did you have anything to do with the selection of the preparation of the formula that was used in that spray. A. Yes, we made a general recommendation.

'Q. To whom was that recommendation made? A. To Mr. Burns.' (Mr. Burns was Pitchfork manager.)

The record also shows that Pitchfork secured 15 gallons of the poison from the Spur Experiment Station that went into the spraying operation in question, that Aerial Sprayers was not paid by the job but by the acre, and that Pitchfork furnished the flagman for the airplane pilot. When all these facts are considered together and applied to the rules above announced by our courts we feel compelled to say the record did not show as a matter of law that Aerial Sprayers was an independent contractor and that the trial court did not commit error in submitting the question to the jury.

Appellants have brought forward in two separate briefs a combined total of 48 points. Many of them are duplications so we shall not attempt to discuss the points of each appellant separately. Other than questions of evidence relating to wind velocity and directions and the qualifications of appellees to give their opinions concerning their probable respective yields, the other points concern causation and the sufficiency of the evidence to sustain the grounds of negligence submitted.

The spraying was done on July 14 and 15, 1956. The appellees observed something wrong with their cotton approximately August 1. Appellants' expert witnesses testified the herbicide effects should have been apparent in the period from 7 to 10 days. This left only approximately five days difference in the time the farmers observed the effects and the time they should have been apparent. There is no evidence of probative value whatever that any other spraying was done in the area under consideration within the period of time that could have caused the herbicide effects. Theo Lynch one of the appellee farmers testified in effect that he flew over the area from the Northcutt Store in the Finney Community to the Pitchfork Headquarters with Buck Sims and that a pale green strip different to the other vegetation was observable in early August; that the path ran in a northeasterly-southwesterly direction and was visible to a place about two miles east of Pitchfork Headquarters, the approximate area the record shows the spraying was done; that he later walked the ranch out from the Finney cotton fields to China Draw where the spraying was done; that the width of the affected area in the pasture was about a mile and a half and that the tops of the weeds and plants were rolled up all the way through. The record shows Buck Sims had been in the spraying business ten years and had acquired great and varied experience in the business of spraying and observing its effects; that he checked and sprayed cotton through July to September each year of about 35,000 to 40,000 acres; that the mile and a half strip running from the Finney Community cotton fields almost to the Pitchfork Headquarters showed a pale green color on the mesquites; that he traced the condition from Pitchfork right into the cotton fields; that he did not examine the vegetation from the ground but that...