Schultz v. Harless
| Decision Date | 21 July 1954 |
| Docket Number | No. 5044,5044 |
| Citation | 271 S.W.2d 696 |
| Parties | Albert F. SCHULTZ, Appellant, v. Oda O. HARLESS et al., Appellees. |
| Court | Texas Court of Appeals |
Fryer, Milstead & Luscombe, El Paso, for appellant.
R. J. Channell, Ellis O. Mayfield, El Paso, for appellees.
This was a suit to recover damages for injury to a growing cotton crop during the year 1951, alleged to have been caused by a poison spray used for killing weeds and alleged to have been allowed to drift onto the cotton. Appellees were plaintiffs and appellant defendant in the trial court. Trial was to a jury and on findings favorable to plaintiffs judgment was rendered against defendant for $3,928.
Appellant has presented four points of appeal, three of which urge error in the improper admission of evidence, and one in the improper submission of a special issue inquiring as to defendant's negligence.
Plaintiff's land on which the cotton in question was planted during the year 1951 adjoined defendant's farm, tract No. 3 being the tract on which the damage occurred. Plaintiffs alleged that on or about August 18, 1951, defendant was engaged in the spraying of certain poisons or weedkillers in a ditch which bordered on the southerly line of the Harless farm which plaintiff had under lease, and that the spray of poison was not confined to the ditch of defendant but was allowed to drift over a large portion of the Harless farm and as a result of the application of the poison to the cotton then growing on the Harless farm a large part of such cotton was killed or stunted in its development, resulting in a greatly diminished yield. That defendant was negligent in failing to confine the spray of poison to the property of defendant, and in allowing the poison to drift or blow onto the land of the Harless farm; that the weed killing operations being conducted on defendant's farm were calculated to kill plant life and the defendant or those representing him in such operation knew or should have known that such poison would kill or damage the cotton of plaintiffs if it were allowed to drift or blow onto the lands of plaintiffs, and that the defendant or those representing him knew or in the exercise of reasonable diligence should have known that such poisions were blowing or drifting onto the lands of plaintiffs, and that same would damage the crops on the Harless farm, but negligently failed to confine such poison to defendant's farm and allowed the same to come into contact with the cotton on the Harless farm, and as a result same was damaged by defendant; that the yield from plaintiff's farm was reduced by 20,884 pounds of Pima seed cotton or 6,542 pounds of lint Pima cotton of the reasonable market value of $6,714.54, for which plaintiffs sued. By trial amendments plaintiffs alleged that had it not been for the negligent acts of defendant they would have raised and harvested from the 42 acre tract 3, thirty 500 pound bales of Pima lint cotton which would have been marketed at a price of 1.0645 per pound, and after deducting the reasonable and necessary cost of cultivating, harvesting and marketing said thirty bales of Pima cotton, and after the sale of the seeds recovered therefrom, plaintiffs would have realized from said thirty bales the sum of $14,730.60, but by reason of the negligent acts of defendant the cotton on the 42 acre tract (Tract 3) died or failed to mature and plaintiffs were able to recover and market only twelve 500 pound bales of Pima lint cotton, which was sold at the reasonable market value of 1.0645 per pound, and after deducting the cost of cultivating, harvesting and marketing said crop and after the sale of the seed recovered therefrom, the net return of twelve bales actually produced from said tract amounted to $5,892.24, and because of the loss of eighteen bales of Pima cotton by reason of defendant's negligence plaintiffs suffered damage in the amount of $8,838.36, which they sought to recover from defendant.
The first point is that the witness James Ryan should not have been permitted to testify as to the 1952 production on any of the tracts, nor should the witness Holdman have been permitted to estimate the 1951 yield on Tract 3, based on 1952 production, because such testimony was too speculative and ethereal.
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