Short v. Jones

• Decision Date: 03 June 1980
• Docket Number: No. 50721,50721
• Citation: 613 P.2d 452,1980 OK 87
• Parties: Murl SHORT, Appellee, v. LaWayne JONES and Nathan Uselton, d/b/a Buddy's Flying Service, Appellants.
• Court: Oklahoma Supreme Court

Page 452

613 P.2d 452

1980 OK 87

Murl SHORT, Appellee, v. LaWayne JONES and Nathan Uselton, d/b/a Buddy's Flying Service, Appellants.

No. 50721.

Supreme Court of Oklahoma.

June 3, 1980.

Rehearing Denied July 14, 1980.

Certiorari to Court of Appeals, Division I.

After Writ of Certiorari to the Court of Appeals, Division I, granted November 20 1979, this Court vacates the opinion of the Court of Appeals and affirms jury verdict and judgment for plaintiff for damage to real property, finding 2 O.S.1971, § 3-82(d) does not restrict the avenue of redress available to a party injured by the destruction of timber on real property under 23 O.S.1971 § 72 simply because the destroyed timber, pecan trees, produces an annual crop.

OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT ENTERED PURSUANT TO A JURY VERDICT IS AFFIRMED.

Charles Elder, John Mantooth, Purcell, for appellee.

Newcombe & Redman, Inc. by Ralph W. Newcombe, Lawton, for appellants.

HARGRAVE, Justice.

This action is brought for review by writ of certiorari previously granted to the Court of Appeals, Division I, wherein that Court held in an unpublished opinion that 2 O.S.1971 § 3-82(d), (since amended, see 2 O.S.1979 Supp. § 3-82(d)), contains a jurisdictional prerequisite to maintenance of an action to recover for damage caused by herbicide spray which rendered pecan trees permanently barren. The last sentence of (d) of the statute last cited reads:

No action for such alleged damages to growing annual crops or plants may be brought or maintained, however, unless the person claiming the damages shall have filed with the Board a written statement of alleged damages, on a form prescribed by the Board, within ninety (90) days after the date that the alleged damages occurred, or prior to the time that twenty-five per cent (25%) of a crop damaged shall have been harvested.

The factual basis for this action, as plead, is that on the 26th day of June, 1973, Appellant Uselton d/b/a Buddy's Flying Service, sprayed certain lands owned by plaintiff-Appellee, Short. This aerial spraying broadcast a chemical herbicide onto Short's land and had a toxic effect upon certain pecan-bearing trees located on Short's land. Short alleged 40 acres of his land had been so damaged reducing the value of the land by $300 per acre to a value after injury of $150 per acre. Short also alleged the act of spraying was a wilful act for which punitive damages were properly recoverable in the amount of $25,000.00. Uselton admitted doing business as a crop duster and that he had conducted operations for Jones in the locality alleged, denied the chemical drifted, and alleged he was an independent contractor during the time he was spraying for Jones. Jones in turn denied the petition's allegations, denied Uselton was an agent or employee, asserting his status was that of an independent contractor.

Citing McArdle v. Stewart, 446 P.2d 379 (Okl.1968), the intermediate appellate court found compliance with 2 O.S.1971 § 3-82(d) to be jurisdictional and unless complied with, the trial court did not have jurisdiction to render a judgment on the strength of a quote from Olmstead v. Reedy, 387 P.2d 631 (Okl.1963), stating:

The language of the statute seems clearly to provide that the filing of a written statement of damages is a condition precedent to the right to commence the action.

We note that the law of the case as reflected in the single Court syllabus states that failure to comply with 3-82(d) in its requirement of a written statement of damages to be filed with the State Board of Agriculture renders a petition demurrable.

In holding the absence of notice of damage fatal to a cause of action, the Court of Appeals cited McArdle v. Stewart, supra, and Olmstead v. Reedy, supra. The statute applicable to these decisions was 2 O.S.1961 § 3-82(d). The statute applicable to this action is 2 O.S.1971 § 3-82(d). The later statute is materially different than the former in that the 1971 version includes a limitation not found in the earlier codification, which is the addition of the phrase "annual crops or plants" to the 1961 version which read: " . . . No action for such damages may be brought or maintained . . ." so that the 1971 version of 2 O.S. § 3-82(d) read " . . . No action for such alleged damages to growing annual crops . . . ." This limitation distinguishes McArdle and Olmstead, supra, from the facts forming the basis of this action, and limits the operation of the amended statute to factual situations not at issue in this case, that is, annual crops.

McArdle and Olmstead, supra, have no effect on an additional statutory remedy for damage to the trees alleged in plaintiff's petition which is found in 23 O.S.1971 § 72. That section reads as follows, unchanged since 1910:

For wrongful injuries to timber, trees or underwood upon the land of another, or removal thereof, the measure of damages is three times such a sum as would compensate for the actual detriment, except where the trespass was casual and involuntary, or committed under the belief that the land belonged to the trespasser, or where the wood was taken by the authority of highway officers for the purposes of a highway, in which case the damages are a sum equal to the actual detriment.

The plaintiff's petition alleges his pecan trees were damaged in such a manner that the trees' ability to produce pecans was permanently damaged. Annual crops referred to in 2 O.S.1971 § 3-82(d) when applied to the production of pecans would refer to damage to one yearly crop without harm to the trees producing that crop. Harm to the trees constitutes damage to the real property itself. Indeed, this Court has held in an early action that a single growing crop of fruit was to be considered a part of the realty for purposes of mortgage recordation. Nicholson v. People's Nat. Bank of Checotah, 119 Okl. 113, 249 P. 336 (1926). The Federal Supreme Court has spoken on the issue, stating standing timber is a constituent element of the land itself. U. S. v. Shoshone Tribe of Indians, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938), United States v. Cook, 19 Wall. 591, 22 L.Ed. 210 (1874). Annual crops represent a separate, if not distinct, classification of plant material. Phillips v. Keysaw, 7 Okl. 674, 56 P. 695 (1899), discusses the distinction at length and the summary of that discussion is found in the Court syllabus:

Growing crops produced by annual labor and cultivation are, for some purposes, a part of the real estate to which they are attached, and until there has been a severance of them from the land, actual or constructive, they follow the title thereto. For other purposes they are regarded as personalty, . . .

In the body of the Phillips opinion, supra, at p. 696, the Court stated those instances where annual crops are realty and when personalty, expanding upon the syllabus stating:

Where the land is sold under foreclosure or under execution, the purchaser of the land acquires title to the crops; and when there is a recovery of possession of land held adversely the successful plaintiff is entitled to the growing crops as against the evicted defendant who planted them. Though regarded as part of the realty for the purposes stated, they are classed as personalty for the purposes of levy and sale under attachment and execution, and mostly every other purpose.

See also Nicholson v. People's Nat. Bank of Checotah, supra.

To hold the provisions of 2 O.S. § 3-82(d) applies to instances where trees are permanently injured would be to ignore the historically well established dichotomy between timber and annual crops; between real property and personal property. This we refuse to do. 2 O.S. § 3-82(d) refers to annual plants when speaking of notice of damage, and that section does not apply by its very terms to damage to real property, a part of which is the timber growing thereon. ¹

Inasmuch as there exists an independent basis for the action aside from 2 O.S.Supp.1970 § 3-82(d), (since amended) that is damage to realty, the measure of which is described in 23 O.S.1971 § 72, the intermediate appellate court's reversal of the jury verdict with instructions to dismiss the action is vacated.

The jury returned a plaintiff's verdict for $12,666.66 for damage to the pecan trees growing on the plaintiff's real property, and defendant appeals from the order overruling defendant's motion for new trial.

Defendant's first proposition of error is that the jury returned a quotient verdict, and failure to grant a new trial on that basis is reversible error. Sworn affidavits of several jurors are included supporting this allegation, and counsels' affidavit which states that counsel, Mr. Uselton and one Bill Garrett proceeded to the jury room immediately after the verdict was read and gathered all the papers that could be found in the room, on the floor, in trash cans and in the restroom. These scraps of paper allegedly disclose each juror voted on a damage figure which was then divided by 12 to arrive at a verdict. Counsel squarely and fairly proposes that if the past decisions of this Court are disregarded it is perfectly clear the jury reached a quotient verdict. Appellant concedes that unless this Court changes the rule set forth in Egan v. First Nat. Bank of Tulsa, 67 Okl. 168, 169 P. 621 (1918), and presently adhered to in this jurisdiction, this proposition of error will avail him not. The appellant correctly summarizes his position thusly, and stare decisis aside, the rationale behind our refusal to now allow...