Tide Products, Inc. v. Browning, 8314
| Decision Date | 26 March 1973 |
| Docket Number | No. 8314,8314 |
| Citation | 493 S.W.2d 654 |
| Parties | TIDE PRODUCTS, INC., Appellant, v. E. J. BROWNING, Appellee. |
| Court | Texas Court of Appeals |
Evans, Pharr, Trout & Jones, Charles B. Jones, Lubbock, for appellant.
Huff & Bowers, Forrest Bowers, Lubbock, for appellee.
In this venue case Tide Products, Inc. has appealed from the trial court's order-overruling its plea of privilege. Affirmed.
Appellee brought this action against appellant on the theories of negligence and strict liability through breach of warranty, relying upon the doctrine of res ppsa loquitur as the result of the aerial application of chemicals by appellant to a peanut crop that appellee contended was damaged by the spraying operation.
Appellant contends that there was no evidence that the product furnished by Tide caused damage to appellee's peanut crop, and that the finding of evidence to that effect by the trial court was against the overwhelming weight of the evidence. Appellee had applied a mixture of three chemicals to the peanut crop, consisting of Manzate, Sevin and Claw El. The Manzate and Sevin, a fungicide and pesticide respectively, were purchased from Tide. The Claw El was purchased elsewhere, mixed with the other two chemicals and aerially applied to the peanut crop. Tide secured the services of the aerial applicator, although Tide contends that there was no evidence that the applicator was an agent of Tide. Appellee testified that within a few days after the application of the chemical mixture to his peant crop the peanuts began to die. Appellee also testified that the peanut crop was killed in a pattern consisting of strips that were the most severe on the side of the field of the first aerial spraying and decreasing in intensity by strips toward the side of the field on which the final spraying was accomplished. Another farmer, Meyers, whose peanut field was sprayed similarly by the same airplane, immediately after appellee's field, testified that damage to his crop was similar to appellee's damage but decreasing in severity in a pattern compatible with the spraying pattern of the airplane. There was evidence that the plane, immediately prior to the spraying on appellee's farm, had used Atrazine and Ag-Oil chemical spray on other farms. Appellee testified that he had observed a cotton field suffering from damage by the application of Atrazine and that the damage was similar to that suffered on appellee's peanut crop and the crop of Meyers. An expert witness in crop science was called by appellee and testified, inter alia, that the Claw El chemical was not harmful to plants. Further, the expert testified that in his opinion the damage to the crop was caused by, or related to, the chemical application.
In the absence of findings of fact or conclusions of law, there exists that implication that all fact findings necessary to sustain the judgment below were found by...
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...S.E.2d 711, 713 (1980); Hall v. Superior Chem. & Fertilizer, Inc., 819 S.W.2d 422, 424-25 (Mo.Ct.App.1991); Tide Prods., Inc. v. Browning, 493 S.W.2d 654, 656 (Tex.Civ.App.1973). ...
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