Reasor-Hill Corp. v. Kennedy, REASOR-HILL

• Decision Date: 22 November 1954
• Docket Number: No. 5-504,REASOR-HILL,5-504
• Citation: 272 S.W.2d 685,224 Ark. 248
• Parties: CORPORATION et al., Appellants, v. Martha E. KENNEDY et al., Appellees.
• Court: Arkansas Supreme Court

Page 685

272 S.W.2d 685

224 Ark. 248

REASOR-HILL CORPORATION et al., Appellants, v. Martha E. KENNEDY et al., Appellees.

No. 5-504.

Supreme Court of Arkansas.

Nov. 22, 1954.

Mullis & McCain, Pine Bluff, Talley & Owen, Little Rock, for appellants.

George Hester, Dumas, Virgil Roach Moncrief and John W. Moncrief, Stuttgart, for appellee.

HOLT, Justice.

In 1947, S. A. Kennedy and wife, Martha, owned some 1,000 acres of land in Desha County. A tenant, H. S. Bland, farmed 43 acres of this land in cotton on a one-fourth rental basis for said year. Two sons of the landowners, C. D. and E. S. Kennedy, as tenants, planted approximately 500 acres of rice, and in addition, the owners planted alfalfa and lespedeza on other parts of their farm. On July 1, 1947, C. D. and E. S. Kennedy bought from Reasor-Hill Corporation about a ton of 2,4-D dust with which to spray their rice crops and on the same date proceeded to spread, by an airplane, and in doing so, seriously damaged a nearby cotton crop belonging to Howard Clayton. This resulted in a suit by Clayton against C. D. and E. S. Kennedy, alleging that they had negligently sprayed their rice causing damage to his cotton and Clayton recovered a judgment for $5,556.60, which judgment was affirmed on appeal to this court, Kennedy v. Clayton, 216 Ark. 851, 227 S.W.2d 934. C. D. and E. S. Kennedy paid this judgment February 8, 1951.

The present suit was brought by S. A. and Martha Kennedy June 21, 1951 against appellants, Reasor-Hill Corporation, Lyle O. Hill and others but nonsuits were taken as to all defendants except the Corporation and Hill. The complaint alleged that Reasor-Hil manufactured and sold to C. D. and E. S. Kennedy the 2,4-D dust, which was a dangerous and hazardous chemical, knowing of its dangerous qualities and its effect upon broadleaf plants through Roy S. McGehee, employed by appellants to sell the chemical to rice farmers to be spread by airplane. That McGehee sold the chemical to appellees' sons, C. D. and E. S. Kennedy, to put on their rice crop and kill coffee bean plants and that the Kennedy brothers following the directions of appellants' employee, McGehee, employed Kern McClendon, airplane pilot, to spread the dust and while he was doing so, the dust spread and drifted to adjacent fields, damaging appellees' 43 acres of cotton (farmed by Bland), 30 acres of alfalfa and 30 acres of lespedeza, in the total amount of $6,057.50.

Reasor-Hill filed a third party complaint against C. D. and E. S. Kennedy, alleging, in effect, that the Kennedys were negligent in applying the dust and should judgment be rendered against Reasor-Hill, they in turn should have judgment against C. D. and E. S. Kennedy.

On September 29, 1952, the Kennedy brothers filed a cross complaint against Reasor-Hill and Lyle Hill, alleging payment of the Clayton judgment, and while admitting their own negligence in applying the chemical, alleged that their negligence was less than the negligence of Reasor-Hill and Lyle O. Hill, and prayed for judgment for the amount paid by them to satisfy the Clayton judgment.

S. A. Kennedy, having died while the present suit was pending, it was revived as to him in the name of H. P. Eldridge as special administrator.

From a jury verdict awarding the administrator for S. A. Kennedy and Martha E. Kennedy, $250 damage to the lespedeza, $775 for the cotton damage and a judgment for C. D. and E. S. Kennedy for $3,250 as reimbursement for payment of the Howard Clayton judgment, is this appeal.

There was substantial evidence in support of the following facts: C. D. Kennedy testified that he did not know that the 2,4-D dust would injure cotton if it came in contact with it, that he knew nothing about 2,4-D dust before appellants' agent, McGehee, called on him three times before he and his brother bought a ton of it from appellants. He further testified that on his second trip, McGehee, appellants' agent, was accompanied by Mr. McClendon, an airplane pilot. 'He brought him along I think possibly to put out the dust.' Mr. McGehee told him how the dust would be spread by airplane. 'He said to shut your hopper off about 100 yards before you get to the end and there was no danger of it drifting out of the field. * * * It was a day or so later there when I went after the dust, why, Mr. McClendon was there and they seemed to think that day was going to be suitable for putting it out. * * * Yes sir, he (McClendon) came on out with his plane and put it out that afternoon late. * * * with his airplane.

'Q. You spoke about now while ago about the regulation of the hopper--what was done about that? A. Well, he (McClendon) would close his hopper off in about a hundred yards or so of the end of the field and I was on the other side of the field with a flag and I had a colored boy on the other end and we would flag him to show him where to go that way.

'Q. Could he see too? A. Yes sir, he could see very well.

'Q. He had his own--did he have a full view of everything there? A. Yes sir.

'Q. Did you at that time have any idea, Mr. Kennedy, that the distribution of that dust in that way might injure any of your neighbors or your father and mother? A. No sir.

'Q. If you had had any idea that that dust put out as it was put out would injure your father and mother or any of your neighbors would you have put it out? A. No, sir, I sure wouldn't.'

E. S. Kennedy tended to corroborate his brother's testimony and further testified that McGehee, while he, Kennedy, was down in the bayou which divided the Kennedy farm from the Clayton farm on the east, spoke of the irrigation canal separating the rice field from the closest cotton and that McGehee said to him: 'Yes sir, he said that irrigation--which irrigation canal ran anyway, I would say, about 60 feet wide is what it was, and he said if we cut it anyway from 100 to 300 feet back in that field before we got to that irrigation canal, that it wouldn't drift across it.'

It appears undisputed that the 2,4-D dust was known to its manufacturers (appellants) to be highly dangerous and poisonous to broadleaf plants such as cotton and lespedeza. There was evidence that C. D. and E. S. Kennedy relied upon McClendon, an airplane pilot, recommended by appellants' agent, McGehee, to spread the chemical and in so doing it drifted to adjoining fields, damaging appellees' lespedeza and cotton in the amounts awarded by the jury.

Appellants' counsel stated in open court: '* * * We knew that 2,4-D would kill cotton--we knew it would kill other broadleaf plants--we knew it would drift--we knew it was dangerous to put it out on rice adjacent to cotton fields and we advised every one we sold 2,4-D of such danger. Some of the rice growers took the calculated risk in order to increase the rice yield by killing the coffee beans in the rice with 2,4-D.'

For reversal, appellants first argue: S. A. and Martha Kennedy had no right to recover for loss of cotton, since the title to the cotton was in their tenant, H. S. Bland.' The record reflects that on March 26, 1947, H. S. Bland executed a chattel mortgage to S. A. Kennedy, which contained this recital: 'Party of the first part has bargained, granted, sold, conveyed and assigned and does by these presents grant, bargain, sell, convey and assign to party of the second part, his heirs, administrators, (successors) and assigns, all right, title and interest in all crops planted, cultivated, produced and gathered and to be planted, cultivated, produced and gathered in the year 1947, consisting of 50 acres (more or less) of cotton and 50 acres (more or less) of corn, on what is known as the Hawkins Place farm in Desha County, Arkansas, described as follows: * * * and also the following described personal property: 1 sorrel horse 8 year old; wt. about 1,500; 1 brown horse 8 year old, wt. about 1,400; 1 grey horse 7 year old, wt. about 1,400; 2 grey mules, smooth mouth; 1 rubber tired log wagon; cultivator and all farm tools, etc.'

At the time this cotton was damaged and the cause of action accrued on July 1, 1947, legal title to the cotton was in S. A. Kennedy (mortagee). 'In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.' § 51-1006, Ark.Stats. 1947.

It appears that some time in 1948, S. A. Kennedy (mortgagee) and Bland (mortgagor) had a settlement or agreement relative to the chattel mortgage. Bland, at the time of the settlement, owed Kennedy a substantial balance (about $2,300). The mortgage was withdrawn. Kennedy allowed Bland to take the livestock covered in the Mortgage. The cotton was 'split' and two bales worth approximately $500 were given to Bland, which still left a balance due from Bland to Kennedy of approximately $1,800. Bland agreed to release any and all claim or interest that he might have in the cotton covered in the mortgage to S. A. Kennedy (mortgagee) and in effect, any claim or equity in any cause of action that Kennedy might have for loss of or damage to cotton which occurred. As indicated, July 1, 1947, the legal title was in Kennedy by virtue of the above mortgage.

E. S. Kennedy testified: 'You say the amount due from Mr. Bland to your father was something better that $2,200.00? A. Yes, sir.

'Q. Was that ever paid or any part of it? A. They had a settlement on that through the cotton, this here cotton here--the way they settled that was they picked that cotton, ginned it and sold it and split the money. The cotton, all this cotton, was just sold what was harvested and that's the way that was done to settle the account.

'Q. Did they settle the account? A. No, sir--just settled about, oh, my dad got...