Worthington v. Roberts
| Decision Date | 18 February 1991 |
| Docket Number | No. 90-119,90-119 |
| Citation | 304 Ark. 551,803 S.W.2d 906 |
| Parties | Robert WORTHINGTON, Appellant, v. Bruce ROBERTS and Carolyn Roberts, Appellees. |
| Court | Arkansas Supreme Court |
Fletcher Long, Forrest City, for appellant.
Charles Mooney, Jr., Keith Blackman, Jonesboro, for appellees.
This is a negligence case in which the main issue is whether the court erred in granting a new trial on the ground that the jury verdict was clearly against the preponderance of the evidence. Ark.R.Civ.P. 59(a)(6). We affirm because the judge did not abuse his limited discretion in granting a new trial. We also address a damages issue which is not necessary to the decision here, but which may arise upon retrial.
The appellant, Robert Worthington, is a pilot who was hired by Earl Watkins to spray a chemical known as STAM on Watkins's rice field. The field is located south and across a road from a four-acre wooded tract upon which the residence of the appellees, Bruce and Carolyn Roberts, is located.
Bruce Anthony Roberts, the son of the appellees, who was living with them, testified that on the morning of June 4, 1984, Watkins came to the Roberts's door and asked if Bruce could help Watkins hold some tarps over the Roberts's tomato plants because a crop duster was about to spray. Bruce testified that he tried to help hold the tarps over the plants but the wind was blowing hard enough to make it difficult. The tarp kept "flying up." He also testified, without objection, that Watkins told him he had not thought the spraying would occur that day because the wind was so bad. The wind was blowing from the southwest, and the chemical burned his eyes. Bruce testified that since that date there have been large quantities of leaves and limbs in their yard which he did not remember being there before.
Bruce's sister, Tracey Roberts, who was also living in the home, said she went into their yard to watch the attempt to cover the tomato plants and heard Mr. Watkins say "he had told the pilot not to fly if the wind was blowing hard." She testified that the wind was blowing hard. She said
Arthur Mullins, an employee of the Federal Aviation Administration, testified that on June 4, 1984, between nine and ten a.m., the wind was blowing from the southwest from six to eight knots. While he did not state a conversion formula, Mullins said that wind velocity in knots is faster than the same number in miles per hour.
Finis Burns, an employee of the Arkansas State Plant Board, testified that he went to the Roberts property in response to a complaint about the chemical damage to shade and fruit trees and flowers. He observed that they were damaged by chemical drift which caused "a burning effect--browning of the leaves--defoliation." The damage was "moderate to severe."
Appellee Carolyn Roberts testified that they had purchased the land as the location for their house because of the trees. They built the house in the middle of the tract in such a way as to displace as few trees as possible. She recalled June 4, 1984, and the fact that the wind was blowing hard. She also stated that the home smelled of the chemical spray which was so strong that the family spent the night elsewhere. She said the trees lost their leaves and some branches and became ugly.
Appellee Bruce Roberts testified that on the date in question he was working away from home on a construction project involving sheet metal, and the wind was blowing so hard the metal sheets were difficult to handle. When he arrived home and learned of the spraying problem he inspected his trees and found that the leaves were "curling." He testified that of the 10 or 12 fruit trees he had planted none survived. The oak trees had become "sparse" because of dying limbs which had to be picked up every time the yard was mowed. He testified that the property was devalued because the trees are "continually dying."
Ed Dickey of the Dickey Tree Service testified that he had inspected the Roberts's trees. He found 107 oak trees, all of which had been damaged, and 12 of which had died. He said the damage would be progressive, and in his opinion, in the second year after the spraying larger branches would begin to die toward the tips of the branches. In the third year entire limbs would die, and in the fourth year some trees would die with only the strongest surviving.
Mr. Watkins testified that he was present when his rice land was being sprayed by Worthington. He saw the chemical drift onto the Roberts property, and he recalled covering the tomato plants and the gusts of wind. He also testified that some of the Roberts's trees were already damaged, and that he had used STAM many times and had never seen it destroy mature oak trees.
Appellant Robert Worthington testified that he had been applying STAM to rice fields since 1968. It is a "contact" herbicide rather than a hormonal one. It is designed only to kill plants it touches and not get into the root system. It is used to kill grass growing in a rice field. Worthington testified that when he sprayed Watkins's field the wind was blowing three to five miles per hour but he could not argue with someone who said it blew faster. He calculated the wind speed and tried to stop spraying in a manner to prevent drift out of the field he was spraying.
Worthington also testified that he had previously flown over the Roberts property and had seen dead limbs in the trees, and that he saw only a small amount of "burn" on the trees after the spraying. He stated that he had seen trees on which STAM had been sprayed over the years, and no mature trees were killed by the chemical. The ones damaged came back the following year.
Albert Lee Frasure, Jr., an agricultural consultant, testified as an expert for the defense. He had examined the Roberts situation on July 6, 1984, and discovered it was "very evident" that STAM had drifted from the Watkins farm onto the Roberts's property. A number of the trees had evidence of "burn" on the leaves and there was partial defoliation but not as much as three fourths defoliation.
The jury, responding to an interrogatory, determined there had been no negligence. The Robertses moved for a new trial, and the court granted the motion, stating that "the defendants' verdict in favor of defendant, Robert Worthington, is clearly contrary to the preponderance of the evidence and, therefore, should be set aside."
Prior to the adoption of the Arkansas Rules of Civil Procedure in 1979, the grounds for granting a new trial were found in Ark.Stat.Ann. § 27-1901 (Repl.1962). The grounds found in Rule 59(a) were taken verbatim from the statute with one exception. In 1982 the word "clearly" was added so that the ground now found at Rule 59(a)(6) states that a new trial may be granted by the trial court if "the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law."
The change in the rule came in conjunction with our decision in Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982), where we explained:
The trial court is vested with discretion in acting on such a motion because the trial judge's opportunities for passing upon the weight of the evidence are superior to those of this Court. On appeal, the trial court will not be reversed absent an abuse of discretion. Abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e exercised thoughtlessly and without due consideration. Freeman v. Morrilton Water Co., 274 Ark. 419, 625 S.W.2d 492 (1981).
In view of the consistency of the testimony in this case to the effect that the wind was blowing at the time the spraying occurred and that at least some injury was caused to the trees and other vegetation on the Roberts property, we cannot hold that the trial court abused his discretion in granting a new trial. Even the expert testifying for the defense observed that the STAM had drifted onto the Roberts land...
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