Walton v. Sherwin-Williams Co., 14240.

• Decision Date: 15 August 1951
• Docket Number: No. 14240.,14240.
• Citation: 191 F.2d 277
• Parties: WALTON et al. v. SHERWIN-WILLIAMS CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F.2d 277 (1951)

WALTON et al. v. SHERWIN-WILLIAMS CO. et al.

No. 14240.

United States Court of Appeals Eighth Circuit.

August 15, 1951.

COPYRIGHT MATERIAL OMITTED

C. M. Erwin and Mr. Kaneaster Hodges, Newport, Ark. (Barber, Henry & Thurman, Little Rock, Ark., on the brief), for appellants.

James I. Teague, Little Rock, Ark. (Wesley H. Bengel Newport, Ark., and McMillen & Teague, Little Rock, Ark., on the brief), for appellees.

Before WOODROUGH, THOMAS, and JOHNSEN, Circuit Judges.

WOODROUGH, Circuit Judge.

The nine actions consolidated for the trial which resulted in the judgment of dismissal here appealed from were severally brought by farmers engaged in raising cotton in Jackson County, Arkansas. Their growing cotton was damaged in the summer of 1947 by the spray of a weed killer (dichlorophenoxyacetic acid) commonly known as 2,4-D, marketed in this instance under the trade name of Weed-No-More, which neighboring rice farmers had mixed in an oil solution and were causing to be spread by airplane over their rice fields to kill out the broad-leafed weeds.¹ It is characteristic of the 2,4-D, that it kills broad-leafed plants like and including cotton and broad-leafed weeds in the rice fields but is innocuous to the narrow-leafed rice plant. In the spraying of the rice fields the chemical reached the fields of cotton belonging to the several plaintiffs and caused very substantial damage to that crop.

The cotton farmers brought their respective actions for the recovery of their damages against the manufacturer of the Weed-No-More, Sherwin-Williams Company of Ohio as defendant, without including any of the persons who did the spraying or who caused it to be done. Two wholesale and retail distributors of Weed-No-More were originally included as defendants but on the trial of the consolidated cases it appeared to the court that no case was made out for the jury against the distributors and they were peremptorily dismissed and no error is asserted here as to that action of the court. Reversal is sought of the judgment dismissing the actions against the manufacturer.

In their complaints against the manufacturer the plaintiffs alleged that the defendant well knew that its product Weed-No-More would be sold as it was to be used to spray rice fields by airplane in "areas of mixed crops"² and that when so sprayed it had a tendency to drift from the place where it was released and to settle on sensitive crops in the area to their injury, and that its drifting tendency rendered its use dangerous and unsafe in areas of mixed crops, and that such danger and unfitness was as defendant knew inherent in the Weed-No-More. It was also alleged that the manufacturer was negligent in failing to use ordinary care to make adequate tests to determine whether or not its product was inherently dangerous as alleged and also in failing to use reasonable care to give adequate instructions and directions as to the preparation and use of Weed-No-More. Judgments for damages were prayed for.

The manufacturer admitting that it manufactured and sold the Weed-No-More, denied any negligence on its part and denied that its product in oil solution was inherently dangerous for use in spraying rice fields from an airplane in an area of mixed crops. It denied that negligence on its part, if any there was, was the proximate cause of plaintiffs' damage. It alleged that Weed-No-More could be safely used in areas of mixed crops provided ordinary care was taken in selecting the rice fields to be sprayed, in choosing the time for the spraying, in operating the plane, and in observing the factors of wind velocity and direction, the temperature, and the height of the airplane from the ground. Defendant alleged that it had used reasonable care to make adequate tests of the qualities and properties of its product and that the warnings and instructions given by it were adequate to prevent damage to other crops where it was being sprayed by airplane in an area of mixed crops. It also alleged that the damage to the cotton crops of the plaintiffs was caused by negligence on the part of the farmers or the airplane pilot in failing to exercise ordinary care in the application of the Weed-No-More to the rice fields. That the pilots who sprayed the rice fields involved had wide experience in using 2,4-D preparations and knew its properties and knew how and when to spray it in such manner as to eliminate the probability of damage to broad leafed plants like and including cotton growing in the vicinity of the rice to be sprayed. It prayed for dismissal of the actions.

It appeared to the trial court that as the actions were brought they presented occasion appropriate for submission to the jury of special interrogatories as provided in Rule 49(a), F.R.C.P., 28 U.S.C.A., and after all the evidence had been taken the court instructed the jury on the applicable law and formulated and submitted special interrogatories which covered the fact issues raised by the pleadings and evidence. The instructions and interrogatories are reported in full in 10 F.R.D. 293.

When the interrogatories and the answers which the jury gave to them are read in the light of the relevant instructions of the court, it appears that the jury found and declared the facts to be:

That the damage to the cotton crops of plaintiffs was caused by Weed-No-More being sprayed in oil solution by airplane over rice fields coming in contact with the cotton plants. That the defendant knew or should have known that its product would be used in oil solution for spraying over rice fields in areas of mixed crops and it used reasonable care to make adequate tests to determine the qualities and properties of the product and did not fail to give adequate warnings and instructions regarding its use. That it was not shown by preponderance of the evidence that the Weed-No-More mixed in oil solution for spraying by airplane over rice fields in an area of mixed crops is an inherently dangerous product the use of which for its intended purpose necessarily involves a risk of serious harm to the property of others regardless of the degree of care which is used in its preparation and spraying. That either the rice farmers or the airplane pilot knew or in the exercise of ordinary care should have known that Weed-No-More would damage or destroy cotton if it came in contact with it. That either the rice farmers or the airplane pilot was guilty of negligence in failing to use ordinary care to so spray it that it would not come into contact with crops of the plaintiffs.

The jury also found the amount in dollars of the damage done to each plaintiff's cotton.

When the findings of the jury were returned the court directed that judgment be entered thereon and dismissed the actions on the merits at plaintiffs' costs.

Accompanying its denial of a motion by plaintiffs for judgment notwithstanding the verdict and in the alternative for new trial, the court filed its memorandum in writing in which it observed that "conflicting evidence was introduced to support the respective theories of both plaintiffs and defendants and that this conflicting evidence raised questions of fact to be decided by the jury. The jury's findings are in my opinion supported by substantial evidence and should not be disturbed."

Responding to contentions made for the plaintiffs in respect to the decision of the Supreme Court of Arkansas in Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820, upon which they mainly relied in the trial court as they do in this court, Judge Lemley said:

"In connection with the Chapman Chemical Company case, we do not agree with plaintiffs that this case goes so far as to hold that as a matter of law all products containing 2,4-D are so inherently dangerous as to impose strict liability upon the manufacturers or dealers for all damages which may be sustained by the property of others. The Supreme Court of Arkansas was concerned in the Chapman case with 2,4-D in dust form, the carrying agent being a form of `talc'. The Court stated in that case, and the evidence in the instant case introduced by both sides indicates, that 2,4-D in dust form will drift for great distances and will damage susceptible crops many miles from the point at which the substance is released into the air. The Chapman Chemical Company put its product on the market as its own (thus assuming a manufacturer's liability) without making any tests whatsoever to determine its drifting qualities. Under such circumstances the Supreme Court held that 2,4-D in dust form was an inherently dangerous product and its application from an aircraft was an ultra-hazardous activity which imposed strict liability upon the company, and that the company was not excused from liability merely because it did not know what the dust would do when released into the air; it was said that the company was charged with such knowledge as tests would have revealed. The Court in the Chapman case was concerned with a product which was likely to produce serious injury to the property of others regardless of the degree of care employed in its use.

"The situation here is quite different; in the instant case the preparation manufactured and sold by the defendants was to be applied as a liquid spray, and there was substantial evidence that such a preparation can be used safely in an area of mixed crops if certain precautions are taken and if certain control factors are observed, for example the evidence to the effect that when the rice crop of P. W. Black, Jr., one of the plaintiffs herein, was sprayed, his own cotton, growing immediately adjacent to his rice, was not at all damaged. Moreover, bulletins prepared by expert witnesses for the plaintiffs in connection with their work in the Extension Service of Louisiana State University point out a distinct difference between dust preparations of 2,4-D and liquid preparations.

"Conceding that the holding in the Chapman case is to...