Southwestern Bell Tel. Co. v. Smith, 4-9709

• Decision Date: 17 March 1952
• Docket Number: No. 4-9709,4-9709
• Parties: SOUTHWESTERN BELL TEL. CO. et al. v. SMITH.
• Court: Arkansas Supreme Court

Page 16

247 S.W.2d 16

220 Ark. 223

SOUTHWESTERN BELL TEL. CO. et al. v. SMITH.

No. 4-9709.

Supreme Court of Arkansas.

March 17, 1952.

Rehearing Denied April 14, 1952.

Hill, Fitzhugh & Brizzolara and Pryor, Pryor & Dobbs, all of Ft. Smith, for appellants.

Bates, Poe & Bates, Waldron, for appellee.

HOLT, Justice.

Appellee, J. A. Smith, sued appellants to recover damages growing out of the alleged negligence of appellants in spraying a poisonous preparation, or solution, causing the death of three of appellee's cows.

A jury trial resulted in a verdict against both appellants in the amount of $600, and from the judgment is this appeal.

For reversal, appellants first contend that the evidence was not sufficient to support the verdict. We cannot agree.

In effect, the testimony showed that appellant, telephone company, had constructed its lines on appellee's land and within a pasture where the three cows, here involved, were grazing. Appellant, Nunn, was employed by the telephone company to spray (from a tank upon a truck) the vegetation under its lines with a poisonous solution or preparation (designed to kill such vegetation) 'of equal amounts of esters of 2, 4-D and 2, 4, 5-T (2, 4-D Dichlorophenoxyacteic and 2, 4, 5-Trichlorophenoxyacetic) mixed with water,' which was paid for by the company. The solution when delivered to appellant contained this: 'Warning: Seller makes no warranty of any kind, express or implied, concerning the use of these products. Buyer assumes all risk of use or handling, whether in accordance with directions or not,' and 'formulations are Toxic (poisonous) and present Health Hazards when swallowed, allowed to contact the skin or breathed in the form of vapors or spray mists.'

There was also evidence that appellants knew they were spraying this poisonous preparation in a pasture where these cows were grazing.

Appellee, Smith, testified positively that he saw these three cows eating the poisoned vegetation, that they were seemingly well and in good condition prior thereto. 'Q. And you people or no one for you had placed any poisonous substance whatsoever on your farm? A. No sir.' He had had experience with poisoned animals and the cows acted as if poisoned. They frothed at the mouth and were so swollen that their legs 'opposite to the ground wouldn't touch the ground, just held out, swelled as tight as an animal could be blown up.'

Dr. E. N. McGrew, a qualified veterinarian, testified that, in his opinion, they died from eating the poisonous spray.

The above evidence was substantial and ample to support the verdict against both appellants. St. Louis-San Francisco Ry. Co. v. Fletcher, 159 Ark. 344, 253 S.W. 12, 33 A.L.R. 445, and Hammond Ranch Corporation v. Dodson, 199 Ark. 846, 136 S.W.2d 484.

It is argued by the telephone company that appellant, Nunn, was an independant contractor and therefore it was not responsible for his acts and therefore not liable. We cannot agree with this contention.

In the very recent case of McKennon v. Jones, Ark., 244 S.W.2d 138, 140, this same issue was involved. There, a similar poisonous spray was used by an employee and resulted in the killing of honey bees and the destruction of honey. We there said: 'While it is true that as a general rule, the employer would not be liable for the negligence of an independent contractor, there are exceptions to this rule. One exception is that where the work to be performed is inherently dangerous, as here, the employer will not be permitted to escape liability for negligent injury to the property of another, by an employee, to whom the employer has delegated, or contracted, the performance of the work.' See also Hammond Ranch Corporation v. Dodson, supra, and Kennedy v. Clayton, 216 Ark. 851, 227 S.W.2d 934.

Here, as indicated, the telephone company had a piece of work to perform which in its very nature was necessarily and inherently dangerous to livestock and it cannot be allowed to escape liability in its performance by delegating it to another to whom it has contracted such work. Both appellants were liable, in the circumstances.

It is also argued that the court erred in giving instruction No. 2 (as modified) as follows: 'If you find from a preponderance of the evidence in this case under the instructions of the Court that the defendants did...