Riddell v. Little

• Citation: 253 Ark. 686,488 S.W.2d 34
• Decision Date: 18 December 1972
• Docket Number: No. 5--6050,5--6050
• Parties: Darrell RIDDELL and Harold McGraw, Appellants, v. Naomi LITTLE, Administratrix of the Estate of Sam Little, Deceased, Appellee.
• Court: Supreme Court of Arkansas

Page 34

488 S.W.2d 34

253 Ark. 686

Darrell RIDDELL and Harold McGraw, Appellants, v. Naomi LITTLE, Administratrix of the Estate of Sam Little, Deceased, Appellee.

No. 5--6050.

Supreme Court of Arkansas.

Dec. 18, 1972.

Daggett & Daggett, Marianna, Sharpe & Long, Forrest City, for appellants.

Butler & Hicky, Forrest City, for appellee.

HOLT, Justice.

This appeal results from a wrongful death verdict of $90,000 which the jury awarded against both appellants as joint tortfeasors. The facts are much the same as were detailed when this case was previously before us in Little, Adm'x v. McGraw, 250 Ark. 766, 467 S.W.2d 163 (1971). In that case we reversed a summary judgment in favor of Harold McGraw and remanded the cause for retrial as to him on the sole question of whether McGraw used reasonable care in the selection of Darrell Riddell as an independent contractor.

The case was tried upon appellee's allegations that the appellant Riddell was piloting the airplane at 'too low an altitude under the circumstances and conditions then existing and immediately prior to and at the time of the collision,' which fatally injured appellee's decedent; also, that appellant Riddell 'failed to keep a proper lookout for Sam Little, the deceased, under the circumstances then existing immediately prior to and at the time of the collision;' also, it was alleged that McGraw knew and should have known that Riddell was incompetent to do the job for which he was employed because reasonable care was not used in the selection of the independent contractor, Riddell.

Appellant McGraw, a farmer, was the employer of appellee's decedent, Sam Little. McGraw arranged for the appellant Riddell, a pilot, to spray his rice field. In their telephone conversation, McGraw asked Riddell only if he was qualified to spread 2,4--D, a chemical, which requires a special license and approval by the State Plant Board. McGraw was told by Riddell that he was so qualified which later proved to be untrue. McGraw was of the belief that being qualified to spread 2, 4--D encompassed spraying all chemicals. Riddell testified that McGraw did not ask him about his license as a crop duster. Riddell held only a student pilot's license and not a commercial license which is required for crop-dusting. Riddell landed his plane near the rice field which was to be sprayed and McGraw assisted him in mixing and loading a chemical. McGraw then proceeded to station his employee, Little, and another employee, Moore, at opposite ends of the field to be sprayed. He instructed each of them as flagmen that when the plane turned at the end of the field and started back, he should step aside 12 to 14 steps and take a new position to guide the plane on its next passage over the field. Following these instructions to the flagmen, Riddell began spraying the field with a chemical. After several low passes across the field, Riddell flew the plane so near the ground its landing gear struck and fatally injured the flagman Little. The jury apportioned the total negligence in the ratio of 70% against the pilot, Riddell; 20% against the deceased flagman; and 10% against the farmer, McGraw. After deducting the deceased's portion for his negligence, a judgment was rendered for $72,000 against the appellants jointly and severally.

For reversal appellant McGraw first contends that the court erred in rendering judgment against him because the negligence attributed to him by the jury was only 1/2 that attributed to Little. Appellant makes the argument that because the jury found his negligence is actually less than Little's there could be no recovery from McGraw. Appellant cites Ark.Stat.Ann. § 27--1730.1 (1962 Repl.), our comparative negligence statute, to support his position that a plaintiff can only recover when his negligence 'is of less degree than the negligence of any person, firm, or corporation causing such damage.' Therefore, since the decedent's negligence was greater and not less than McGraw's, recovery is barred. Appellant recognizes that this statute was construed by us in Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962) on this very issue. There we said:

'We realize that where some of the tortfeasors are insolvent or unavailable our conclusion may require a single defendant to pay the entire judgment, even though his negligence was comparatively slight.'

We observed that the basic purpose of § 27--1730.1 is to distribute the total damages among those who cause them. Furthermore, the legislature did not mean to go any farther than to deny recovery to a plaintiff only when his negligence was at least 50% of the cause of the alleged injuries or damages. In other words, if the plaintiff's negligence is less than 50% of all the co-defendants, he is entitled to recover from each or all of them as joint tortfeasors even though the plaintiff's negligence equals or exceeds that of a particular co-defendant. We adhere to our interpretation of the statute as to the legislative intent. We observe that the several intervening sessions of the legislature have not deemed it necessary to amend the statute to correct the asserted misinterpretation of our comparative negligence statute.

The appellant McGraw next asserts for reversal there is not sufficient evidence of negligence on his part to justify submission of the case against him to the jury. Upon the first appeal we held that 'the proof made a question of fact for a jury' as to whether McGraw failed to use ordinary care to select a competent independent contractor to perform the spraying of his rice field. The evidence considered by us on the first appeal on the summary judgment proceeding was reproduced at the retrial and, therefore, our holding on this issue has now become the law of the case. Woodward v. Blythe,249 Ark. 793, 462 S.W.2d 205 (1971), St. Louis S.W. Railway Co. v. Jackson,246 Ark. 268, 438 S.W.2d 41 (1969), Moore, Adm'x v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (1968).

Appellant McGraw next asserts for reversal that the court erred in refusing to permit examination of appellant Riddell as to the custom among farmers making inquiry as to the sufficiency of licenses of crop-dusting pilots. On examination Riddell was asked by McGraw's counsel if any farmers ever inquired if he were properly licensed. The court sustained an objection to this inquiry. The appellant asserts that since the sole issue with respect to McGraw's negligence is whether he used ordinary care in the selection of Riddell as an independent contractor, McGraw would be entitled to establish that the custom in the crop-dusting trade is that farmers never make inquiry relating to whether a pilot is properly licensed; also, McGraw should be entitled to show 'that such an inquiry is either routine or unnecessary.' In other words, since the evidence that McGraw failed to make inquiry as to Riddell's being properly licensed as a crop-dusting pilot is being permitted for the jury's consideration as to McGraw's asserted negligence, then McGraw should be entitled to introduce evidence that it was not the custom nor usage in the crop-dusting trade for the farmer to make such an inquiry. We must agree with appellee that the trial court was correct in sustaining the objection. The question propounded to Riddell, the pilot, specifically and only inquired as to whether other farmers had asked him if he was properly licensed rather than asking him or a competent witness as to what custom existed in the crop-dusting trade with respect to farmers usually asking the crop-dusting pilot if he is properly licensed. Neither did the appellant make a proffer of proof as to what Riddell or any other witness would have answered in response to an inquiry as to the custom or usage in the crop-dusting trade. In Wallace v. Riales, 218 Ark. 70, 234 S.W.2d 199 (1950), we said that '(W)e have repeatedly held that an objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing of what the testimony would have been.' Also, it appears that Riddell's (22 years of age at the time of the accident) personal experience was very limited in the crop-dusting business.

Appellants McGraw and Riddell both contend that the court erred in giving instruction No. 16 involving the lookout statute. We think the appellants are correct. The pertinent part reads:

'(a) (First) It is the duty of the pilot of an aircraft to keep a lookout for other aircraft, vehicles or persons in the air or on the ground. The lookout required is that which a reasonably careful pilot would keep under circumstances similar to those shown by the evidence in this case. * * * A failure to meet the standard of conduct required by these rules is negligence.'

Although there is ample substantial evidence, as we will discuss later, to support appellee's allegation that the crop-dusting pilot was negligent in flying too low, we think the evidence is deficient that Riddell, as a crop-dusting pilot, failed to maintain a proper lookout as alleged in the complaint. To the contrary, it appears that the lookout maintained by Riddell was all that a reasonably careful pilot would or could observe in crop-dusting. He testified that he was looking at the ground...