Young v. Darter, 38784

• Decision Date: 06 June 1961
• Docket Number: No. 38784,38784
• Citation: 363 P.2d 829
• Parties: W. M. YOUNG, Jr., Plaintiff in Error, v. Reeford DARTER, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 829

363 P.2d 829

1961 OK 142

W. M. YOUNG, Jr., Plaintiff in Error, v. Reeford DARTER, Defendant in Error.

No. 38784.

Supreme Court of Oklahoma.

June 6, 1961.

Rehearing Denied July 25, 1961.

Syllabus by the Court.

1. When one, in an operation lawful and proper in itself, but cognizant of existing conditions and with knowledge that injury may result to another, does an act with the result flowing therefrom that damage is done to the other as the direct and proximate consequence of the act, the one who does the act and causes the injury should be required to compensate the other for the damage done.

2. The use, by the defendant, of a poison on his land, which, if it escaped, would cause damage to plaintiff, was done at defendant's peril. He is responsible for its drifting and thereby trespassing on plaintiff's land where it damaged the cotton. Any precautions defendant's agent may have taken to prevent the injuries to plaintiff's cotton, in view of the results, do not serve to extinguish his liability.

3. The jury are the triers of the facts and the sole and exclusive judges of the evidence and the credibility of the witnesses, and, where there is evidence reasonably tending to support the findings of the jury, same will not be disturbed on appeal.

Appeal from the District Court of Cotton County; Luther B. Eubanks, Judge.

Action by plaintiff to recover damages to cotton crop allegedly resulting from drifting of poison defendant caused to be sprayed on weeds in his pasture, over onto the nearby growing cotton. Verdict and judgment thereon for plaintiff, defendant appeals. Judgment affirmed.

Walter Hubbell, Walters, for plaintiff in error.

Funston Flanagan, Walters, for defendant in error.

WILLIAMS, Chief Justice.

Plaintiff below, defendant in error here, Darter, seeks to recover damages from Young, defendant below, plaintiff in error here. The parties will be referred to herein as they appeared in the trial court.

In 1957, in order to kill weeds growing therein, defendant caused his pasture lying immediately to the south and west of plaintiff's thirty acre filed of cotton to be sprayed with 2-4D poison. Such poison allegedly drifted and spread across such cotton, damaging it. Plaintiff alleged defendant was guilty of negligence.

He further alleged diminution of amount of lint produced and decrease in its value as a result of his cotton having been so poisoned.

Judgment was entered on jury verdict against defendant for $1,351.80 and appeal perfected.

Defendant under his 'Proposition One' first argues that plaintiff's evidence wholly failed to prove that defendant caused the spray to drift and blow over plaintiff's cotton crop and that there is no proof of lack of ordinary care by the defendant in his spraying operation. We do not agree.

The defendant himself did not actually do the spraying, but testified that it was done with his permission and consent.

Donald Young (defendant's brother) testified that he did the spraying, using a mixture of 2-4D poison and water; that he did not know it would damage cotton or that the spray would drift; that he stopped spraying before he got close to the cotton because he did not know whether it would hurt the cotton or not; that he thought if he sprayed the mixture on the cotton it might kill it; that at the time he did the spraying there was a little breeze out of the south; that there could have been quite a bit out of the southwest.

An inspector in the entomology division of the State Board of Agriculture testified that he had some experience and training with 2-4D; that he was familiar with the reaction of a plant to 2-4D; that the mixture used as a spray would drift and the distance depended upon the wind; that one should know the wind currents when he used it and should not use it when there is any possibility for it to drift and get on any other broad leaf plant; that it has a detrimental effect on cotton; that he examined plaintiff's field of cotton one or two months after the spraying; that, in his opinion, the cotton had been damaged by 2-4D or 2-45T.

We determine the evidence to have been sufficient to warrant the verdict in the light of the following discussion as to our view of applicable principles of law.

The case of Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260, 1262, was an appeal from the judgment of the trial court awarding plaintiff damages for the wrongful killing of fifty-six hives of bees resulting from permitting dust, which was spread by means of an airplane on honeydew melons, to drift to such hives. Therein the court said:

'We have been cited to no case involving the recovery of damages for the death of bees caused by a poisonous dust floating from a field where vegetables were being dusted to the apiary. It must be conceded that, in itself, dusting vegetables to kil pests that prey upon them is a necessary and lawful operation which the owner of the vegetables may perform, either himself or through his servants, or may have performed by an independent contractor. However, he should not do the dusting, or have it done, under conditions which would indicate to a reasonably prudent person that damage to his neighbor would result.

'While we have found no case involving operations factually similar to those before us, we can see no reason why the same rule should not apply here as governs in cases where damage to a plaintiff's property has resulted from drifting smoke, dust, noxious gases or similar substances originating on a defendant's proeprty. No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result. See Restatement of the Law, Torts, § 364 et seq. * * *

'Defendants knew, or should have known, that the light dust projected under pressure onto the melons would float in the air. There is evidence that a light breeze was blowing during the dusting operations. They should have known that the dust would float for a considerable distance when propelled by such a breeze. Dusting material containing a poison that would kill bees was used. Under the conditions prevailing at the time they should have foreseen the ensuing damage to plaintiff. It follows that they must respond in damages.'

In the case of Luthringer v. Moore, Cal.App., 181 P.2d 89, 95, the Court said:

'The imposing of liability in the absence of international (sic) injury or negligence is not uncommon in Anglo-American jurisprudence, either as a development in the common law or by legislative enactment. Many examples might be cited. Unintentional trespass upon land, libel, and keeping of dangerous animals, are but a few. Implied warranty, especially in the sale of foods, and the objective theory of contracts fall within the same category. In the field of legislation, Workmen's Compensation Acts, and statutes making owners of automobiles liable for damage resulting from another's use thereof are classic illustrations.

'The concept of liability without fault in tort actions is one of social and economic expediency and has its origin in the fundamental aim of shifting a loss from one upon whom it has fallen to another whose acts have been the proximate cause of a foreseeable risk. Obviously the application of the rule is to be confined within reasonable limits. Thus the injury for which a recovery is allowed must have been the proximate result of the activity in its ultra-hazardous nature, and the risk must have been one which was foreseeable. An activity carried on in one place reasonably may be considered as ultra-hazardous while the same acts done elsewhere may not be such.'

In the case of Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953, 957, affirmed on rehearing 141 Kan. 6, 40 P.2d 359, defendant oil company connected its salt water pipe line with the city sewer system which emptied into a drainage canal. The salt water seeped into plaintiff's land adjoining the canal, polluting his water supply. Plaintiff did not allege negligence. The court said:

'The fact that the business of the refinery is in itself a lawful one, and that the owner of it operates it carefully will not exempt him from liability * * *

'It must be remembered that negligence is not a necessary element of the right of recovery in a case like this. The right to recover results from the company having the harmful substance on its land and permitting it to escape to the damage of plaintiff.'

Spraying poison on weeds growing upon one's own land is a lawful operation, and, when done in a manner not hazardous to rights of another, is not a nuisance per se. Under proper conditions, the spraying would cause no invasion of the adjacent lands.

Here, however, we have a situation to which the doctrine, 'One must so use his own rights as not to infringe upon the rights of another', may be applied in its broad and fundamental import.

In Seismograph Service Corporation v. Buchanan, Okl., 316 P.2d 185, 187, we said (appropriately for repetition here, we believe);

'The time honored maxim * * *--so use your own property that you do not injure that of another--has often been quoted by the courts to express succinctly their resolution of the problems created by the conflicting interests of adjoining landowners.'

When one, in an operation lawful and proper in itself, but cognizant of existing conditions and with knowledge that injury may result to another, does an act with the result flowing...