McGraw v. Weeks

Terry McGRAW v. Dalton WEEKS, Jr.

95-1220                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Torts -- joint and several liability -- how determined. -- It
     is not necessary that the parties be acting in concert in
     order to be jointly and severally liable; joint and several
     liability is measured by impact, and where there is a single
     injury, it does not matter whether the individual acts alone
     would not have caused the entire result; there is joint
     liability where the different acts of negligence concur as to
     time and place and unite in setting in operation the force
     that causes the injury; here, the damage to appellee's cotton
     crop was the result of the acts of both appellant and the
     pilot in negligently applying the herbicide, and the trial
     court ruled that it was impossible to determine in what
     proportion each contributed to the damages.  

2.   Damages -- damages not clearly divisible -- trial court
     correctly applied law. -- Where the evidence was that the
     drifts overlapped, the trial court's finding necessarily
     implied that the damage was indivisible, and that finding was
     affirmed because it was not clearly erroneous; the trial court
     correctly applied the law of joint and several liability.

3.   Evidence -- testimony not harmful -- testimony not the basis
     for jury's award. -- Even though appellee was allowed to 
     testify that, except for the damage, he would have booked his
     cotton in June at 68 cents per pound, the jury's award was
     clearly based on a price of 53.6 cents per pound, the price
     appellee received in the fall on the open market for cotton
     grown and harvested on a nearby undamaged field; thus, the
     testimony about the futures contract, even if erroneously
     admitted, could not have harmed appellant.

4.   Damages -- measure of damage to crops -- Model Instructions
     properly followed. -- When a crop is damaged but nonetheless
     grows to maturity, the damages are the difference between the
     market value at the time of harvest, of the crop actually
     produced and the crop that would have been produced without
     the damage, less the costs of production; the Model
     Instructions recognize that the open market determines the
     price and that the time of harvest is the critical date for
     valuation of a marketable but damaged crop; here, all parties
     agreed that appellee's cotton crop was damaged but marketable,
     and the Model Instructions provided that "fair market value"
     meant the difference between "the price that the cotton of
     appellee would bring on the open market" and the "fair market
     value...[of] the crop actually produced" less the costs "to
     produce, harvest, and market the crop"; obviously, the jury
     understood these instructions to mean that the open market at
     the time of harvest was the critical price and date for
     valuation because the award was based on 53.6 cents per pound,
     the price appellee received on the open market after harvest
     for cotton from an undamaged and adjoining field.   

5.   Evidence -- testimony not allowed as measure of damages -- no
     error in allowing testimony. -- Appellant's contention that
     the trial court erred in allowing appellee to testify about
     his yields per acre in years subsequent to the year of loss
     was without merit where the trial court allowed the evidence,
     not as a measure of damages, but to rebut appellant's claims
     that the field was not suited to the growing of cotton; it was
     not error to allow the testimony. 

6.   Evidence -- invocation of "the rule" -- exception to excluded
     witness rule. -- Rule 615 of the Arkansas Rules of Evidence
     provides that the trial court "shall" exclude witnesses from
     the courtroom when requested, but the rule also provides three
     exceptions, one of which is for "a person whose presence is
     shown by a party to be essential to the presentation of his
     cause"; under this exception, a party must show that the
     witness would be unable to present essential testimony without
     hearing the actual testimony of other witnesses or that the
     witness has such specialized expertise or intimate knowledge
     of the facts of the case that a party's attorney could not
     effectively function without the presence and aid of the
     witness.

7.   Evidence -- trial court allowed witness to remain in court
     under exception to rule -- no abuse of discretion found. -- 
     Where appellant asked that "the rule" be invoked, notice was
     given that the expert witness's opinion would be partially
     based upon trial testimony, and the trial court ruled that a
     sufficient showing had been made that the expert would be
     unable to present essential testimony without hearing the
     testimony of other witnesses, no abuse of discretion was
     found; the standard of appellate review is whether the trial
     court abused its discretion.   

8.   Evidence -- jury allowed to view fields where a material fact
     of the trial occurred -- no abuse of discretion found. --   
     The trial court may allow the jury to visit the place where
     the material fact of a trial occurred, and jury visits to a
     relevant site are within the discretion of the trial court;
     here, the trial court did not abuse its discretion in allowing
     the jury to visit the place where the material facts took
     place.

9.   Motions -- question of fact existed as to proximate cause --
     motion for directed verdict properly denied. -- When it can be
     shown that an individual employed by a corporation is
     personally involved in the events surrounding an injury, the
     individual may be sued; here, there was sufficient evidence to
     show that drifting chemicals caused the damage and that
     appellant ordered the spraying without knowing how close the
     cotton was; the existence of other evidence, and all the
     reasonable inferences therefrom, created a question for the
     jury and the trial court properly denied appellant's motion
     for directed verdict; proximate cause is usually an issue for
     the jury to decide, and when there is evidence to establish a
     causal connection between the negligence of the defendant and
     the damage, it is proper for the case to go to the jury. 

10.   Jury -- instructions made issues clear -- verdict not sought
     against appellant under doctrine of respondeat superior. --  
     Appellant's contention that the instruction misled the jury
     into thinking that he, as supervisor, was responsible as a
     matter of law for the negligence of the employee was without
     merit since no one sought a verdict against appellant under
     the doctrine of respondeat superior; there was no basis for
     the jury to find that appellant was liable under the doctrine
     of respondeat superior; instructions are not to be viewed in
     isolation, but are to be considered as a whole to determine
     whether the law applicable to a case is correctly declared;
     the other instructions made the issue clear.


     Appeal from St. Francis Circuit Court; Harvey Yates, Judge;
affirmed.
     Butler, Hicky & Long, for appellant.
     W. Frank Morledge, P.A., for appellant Dalton Weeks, Jr..
     Easley, Hicky, Cline & Hudson, for appellee Billy Joe Stewmon.

     Robert H. Dudley, Justice. 
     Dalton Weeks, Jr., appellee, filed this tort action for damage
to his cotton crop as the result of drifting of the chemical 2,4-D
after it was applied to nearby rice fields.  A hormone herbicide,
2,4-D is suitable for use in rice fields, but it has a propensity
to damage cotton; consequently, its use is restricted by the
Arkansas State Plant Board.  In 1991, when appellant Terry McGraw
and Billy Jayroe applied 2,4-D to the rice fields, the Plant Board
regulations prohibited the application of 2,4-D within one mile of
cotton.  Appellant McGraw, a farm manager, directed the ground
application of 2,4-D to the levies of a rice field that was only
one-quarter mile from Weeks's cotton crop. 
     The State Plant Board's regulations in 1991 additionally
restricted the aerial application of 2,4-D to licensed aerial
applicators.  The Board's licensing process required both testing
of the pilot and inspection of the airplane, including checks for
leaks within the application system.  Jayroe employed Billy Joe
Stewmon to make an aerial application of 2,4-D on his rice crop. 
Neither Stewmon nor his plane were tested or examined by the State
Plant Board, and Stewmon was not licensed to apply 2,4-D.  In
addition, a nozzle on Stewmon's plane leaked during the application
for Jayroe.   
     Weeks brought this suit against McGraw, Jayroe, and Stewmon. 
Each denied liability, and each filed cross-claims against the
other for indemnity and contribution.  After a four-day trial, the
jury returned a unanimous verdict of $55,000 in damages to Weeks,
unanimously apportioned 75% of the fault for the damage to Stewmon,
the aerial applicator, and unanimously apportioned 25% to McGraw,
who directed the ground application.  By a majority verdict, the
jury found no fault on the part of Jayroe, the rice farmer who
employed the aerial applicator.  The trial court subsequently
entered judgment against McGraw and Stewmon jointly and severally. 
McGraw appeals.  There is no reversible error, and we affirm.
     McGraw's first assignment is that the trial court erred in
ruling that he and Stewmon were jointly and severally liable.
He argued to the trial court that the jury's conclusion that he was
25% responsible and Stewmon was 75% responsible was not supported
by substantial evidence because the proof showed that he caused
injury to slightly less than fifty acres, while Stewmon damaged the
remaining 150 acres.  The trial court found that, even though each
tortfeasor's act or negligence might not have caused all of the
damage, they combined to produce, for the most part, a single
injury, and each was responsible for the entire result.
     Much of McGraw's argument on appeal is premised on the theory
that joint tortfeasors must act in concert for joint and several
liability to attach, but that is not the law in Arkansas.
Consequently, McGraw's citations to numerous cases from other
jurisdictions do not afford him relief.  We have long said that it
is not necessary that the parties be acting in concert in order to
be jointly and severally liable.  Applegate v. Riggal, 229 Ark.
773, 318 S.W.2d 596 (1958).  In this State, joint and several
liability is measured by impact, and where there is a single
injury, it does not matter whether the individual acts alone would
not have caused the entire result.  Woodward v. Blythe, 249 Ark.
793, 462 S.W.2d 205 (1971).  The case of Van Troop v. Dew, 150 Ark.
560, 234 S.W. 992 (1921), is instructive.  In that case, some
farmers sued construction contractors and subcontractors who were
responsible for a broken fence that allowed cattle to enter their
land and destroy their crops.  Id. at 562, 234 S.W.  at 993.  Joint
and several liability was imposed on the contractors by the trial
court.  Appellant Van Troop argued on appeal that he caused only
one gap in the fence, which he closed in a few days, while some of
the other defendants made various gaps in the fences and made no
effort to repair or guard them.  Id. at 561, 234 S.W.  at 994.  We
affirmed the trial court and, in pertinent part, wrote:
[T]here is joint liability where the different acts of
negligence concur as to time and place and unite in
setting in operation the force which causes the injury. 
In other words, they used the open gaps for the same
purposes and at the same time, each being under duty to
repair the gaps, and the conduct of each resulted in
admission into the field of large numbers of cattle.  It
cannot be said that the entrance of the cattle was the
result of the separate acts of either, but it was rather
the result of the act of both of the parties in failing
to repair the gaps so as to keep the cattle out.
Id. at 565, 234 S.W.  at 994.  In the case at bar, the damage to
Weeks's cotton crop was the result of the acts of both McGraw and
Stewmon in negligently applying 2,4-D, and the trial court ruled
that it was impossible to determine in what proportion each
contributed to the damages.  
     McGraw also argues that the damage to Weeks's cotton crop was
divisible.  The trial court's finding necessarily implied that the
damage was indivisible, and we affirm that finding because it was
not clearly erroneous.  Earnest Hill, who was employed by the State
Plant Board in 1991, testified that he was unable to state with any
degree of certainty how many acres McGraw's applications damaged
and he could not say how many acres Stewmon's application damaged. 
He was then questioned about a report he prepared that referred to
fifty-seven acres and one hundred acres.  He responded that the
fifty-seven acres in his inspection report referred to the rice
sprayed by McGraw, and the one hundred acres to the rice sprayed by
Jayroe, not to the damage to Weeks's cotton.  Stewmon's expert, Lee
Frazier, testified that the drifts overlapped.  One of the
questions asked Frazier and his response are as follows:
          Q.  No, I'm not asking you where they were.  Maybe
     my question wasn't asked.  As to what was where, whatever
     was there, you can't separate it as to where one starts
     and one stops.
          A.  No, Sir.  All those applications were made
     generally in the same time frame.  Had there been some
     time difference between the applications you may have
     been able to separate what came from what application. 
     What happens on a cotton plant if you get two real close
     applications it all looks like the same symptoms.  If you
     get one exposure the cotton plant has a chance to recover
     and starts to put on normal leaves.  Then you get another
     exposure so then you've got heavy symptoms, like
     symptoms, or no symptoms, and then heavy symptoms again. 
     All these applications were apparently within the same
     time frame, ten or twelve days there, and the cotton
     plant just didn't have enough time to recover and put on
     new leaves in between.
     Thus, the trial court's ruling that the damage to Weeks's
cotton crop was one injury was not clearly erroneous.  The trial
court correctly applied the law of joint and several liability.
     McGraw's next point of appeal is composed of three subpoints
and comes about as follows.  Over McGraw's, Stewmon's, and Jayroe's
objections, Weeks testified that, if not for the damage to his
cotton crop, he would have contracted in June for the sale of his
cotton at sixty-eight cents per pound for future delivery.  Because
the trial court allowed the testimony in evidence, McGraw, Stewmon,
and Jayroe asked the trial court to modify the A.M.I. crop damage
instructions, A.M.I. Civ. 3d 2220, 2221, and 2225.  They asked that
the principle implicit in the Model Instructions, that the relevant
time for valuing a marketable crop is "at the time of the harvest,"
be made explicit.  The trial court refused to add the phrase "at
the time of harvest" to the instructions.  Weeks testified about
the history of the cotton yield for the field in which the damage
occurred and, on rebuttal, testified about the yields for three
years after the damage.  On appeal, McGraw renews his objection to
(1) the testimony about the price at which Weeks "would" have
contracted to sell his cotton, (2) the refusal to modify the A.M.I.
instructions, and (3) the yield-history proof.
     We need not decide McGraw's first subpoint about Weeks's
testimony that, except for the damage, he would have booked his
cotton in June at sixty-eight cents per pound.  The jury awarded
Weeks $55,000, and that award was clearly based on a price of 53.6
cents per pound, the price Weeks received in the fall on the open
market for cotton grown and harvested on a nearby undamaged field. 
Thus, the testimony about the futures contract, even if erroneously
admitted, could not have harmed McGraw.
     We treat McGraw's second subpoint, the one concerning
modification of the Model Instructions, similarly.  All parties
agree that Weeks's cotton crop was damaged, but marketable. 
Arkansas law provides that when a crop is damaged but nonetheless
grows to maturity, the damages are the difference between the
market value, at the time of harvest, of the crop actually produced
and the crop that would have been produced without the damage, less
the costs of production.  St. Louis Southwestern Ry. Co. v. Morris,
76 Ark. 542, 89 S.W. 846 (1905); Howard Brill, Arkansas Law of
Damages,  32-4 at 426-27 (2d ed. 1990).  The Model Instructions
recognize that the open market determines the price and that the
time of harvest is the critical date for valuation of a marketable
but damaged crop.  The Model Instructions, as adapted to this case,
provided that "fair market value" meant the difference between "the
price that the cotton of Dalton Weeks would bring on the open
market" and the "fair market value...[of] the crop actually
produced" less the costs "to produce, harvest, and market the
crop."  A.M.I. Civ. 3d 2220 & 2225.  Obviously, the jury understood
these instructions to mean that the open market at the time of
harvest was the critical price and date for valuation because the
award was based on 53.6 cents per pound, the price Weeks received
on the open market after harvest for cotton from an undamaged and
adjoining field.   
     The above two subpoints were extensively discussed in our
decisional conference.  The testimony at trial and the oral
arguments before us have impressed upon us the fact that farmers
today often make commitments for future delivery of commodities. 
We have some concern that our Model Instructions make no
distinction between the traditional "spot" price for commodities on
the "open" market and a "futures" contract.  The "spot" price for
cotton and other commodities and the "cash" price for grains on the
"open" market are the prices assumed to determine fair market value
by the Model Instructions.  These prices are sometimes called the
"actuals" and mean the price when the commodities are ready for
immediate delivery.  John Downes and Jordan Elliot Goodman,
Barron's Finance and Investment Handbook, at 27-30, 133-34, 491 (3d
ed. 1990).  In past years, the "open" or "spot" price was the only
one available to the producing farmers and is the only price
discussed in our seminal case on such damages.  See St. Louis
Southwestern Ry. Co. v. Morris, 76 Ark. 542, 89 S.W. 846 (1905). 
However, today, the "futures contract" is often employed by the
producers of commodities.  Through the use of a futures contract,
or "booking," the producer of a commodity can make a commitment to
sell a specified quantity of a commodity at a specified price
during a particular delivery month.  Downes and Goodman, supra.  In
this way a farmer can hedge the position in his underlying crop. 
He can use a futures contract to create a countervailing position
and thus protect against loss due to price changes.  A farmer might
book 100 bales of cotton in June for delivery in  November at
seventy cents per pound.  The farmer knows that he will make a
profit at that price and knows that, without any real question, in
November he can deliver 100 bales of cotton, which is converted
into a fixed number of pounds.  Under this hypothetical
illustration, the farmer, by hedging, has fixed his profit.  If the
spot price should be lower in November, the farmer does not suffer
the lower price.  On the other hand, if the spot price is higher in
November, the farmer does not get the higher price.  
     Today there are occasions when "booking" prices should be
admissible in evidence.  Many factors must be weighed before a
trial judge allows such evidence because of the possibility that it
would amount to speculation.  It would amount to nothing more than
conjecture to allow a farmer who had never booked a commodity and
who did not have an irrigation system that would assure a certain
amount of production to testify that he "would have" booked a
commodity.  On the other hand, a futures price might be allowed in
evidence for a farmer who has a consistent history of production of
a commodity and customarily books at a particular time of the year. 
Because of this changing practice of producers to utilize futures
prices, we ask our Committee on Model Jury Instructions-Civil to
look into the appropriateness of modifying or adding an instruction
on futures fair market value to the current Model Instructions.
     In his third subpoint, McGraw contends that the trial court
erred in allowing Weeks to testify about his yields per acre in
years subsequent to the year of loss.  The short answer to the
argument is that the trial court allowed the evidence, not as a
measure of damages, but to rebut McGraw's claims that the field was
not suited to the growing of cotton.  As such, it was not error to
allow the testimony. 
     McGraw's next assignment of error involves a ruling by the
trial court that Lee Frazier, Stewmon's expert witness, could
remain in the courtroom during the trial even though McGraw had
asked that "the rule" be invoked.  Stewmon gave notice that the
expert witness's opinion would be partially based upon trial
testimony.  Rule 615 of the Arkansas Rules of Evidence provides
that the trial court "shall" exclude witnesses from the courtroom
when requested, Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470
(1987), but the rule also provides three exceptions, one of which
is for "a person whose presence is shown by a party to be essential
to the presentation of his cause."   Ark. R. Evid. 615(3).  Under
this exception a party must show that the witness would be unable
to present essential testimony without hearing the actual testimony
of other witnesses, or that the witness has such specialized
expertise or intimate knowledge of the facts of the case that a
party's attorney could not effectively function without the
presence and aid of the witness.  Oliver B. Cannon & Son, Inc. v.
Fidelity & Casualty Co., 519 F. Supp. 668 (D. Del. 1981).  Here,
the trial court ruled that Stewmon made a sufficient showing that
the expert would be unable to present essential testimony without
hearing the testimony of other witnesses.  The standard of
appellate review is whether the trial court abused its discretion. 
Martin v. State, 22 Ark. App. 126, 726 S.W.2d 287 (1987).  We
cannot say the trial court abused its discretion in the ruling.  
     McGraw next contends that the trial court erred in allowing
the jury to view the fields.  Arkansas Code Annotated section 16-
64-113 (1987) provides that the trial court may allow the jury to
visit the place where the material fact of a trial occurred, and we
have said that jury visits to a relevant site are within the
discretion of the trial court.  Arkansas State Highway Comm'n v.
Carder, 228 Ark. 8, 305 S.W.2d 330 (1957). Here, the trial court
did not abuse its discretion in allowing the jury to visit the
place where the material facts took place.
     McGraw's next assignment is that the trial court erred in
refusing to grant a directed verdict in his favor.  At the close of
all of the evidence he moved for a directed verdict on the ground
that he was not the owner of the rice farm on which he directed the
application of 2,4-D; rather, Eugene McGraw Farms, Inc., which was
not a party to the lawsuit, was the owner, and the employee who did
the spraying was the corporation's employee, not his.  McGraw was
the farm manager for Eugene McGraw Farms, Inc.  Further, he argued
that the ultimate decision to spray was not his, but was Norris
Powell's, and Powell was not a party to the suit. McGraw makes the
same arguments on appeal.
     When it can be shown that an individual employed by a
corporation is personally involved in the events surrounding an
injury, the individual may be sued.  Cash v. Carter, 312 Ark. 41,
847 S.W.2d 18 (1993).  Here there was sufficient evidence to show
that McGraw was personally involved.  McGraw supervised and ran the
farming operations of Eugene McGraw Farms, Inc.  He made the
decision to apply 2,4-D to the levies in the rice field that
belonged to Eugene McGraw Farms, Inc.  He instructed Norris Powell,
an employee of the corporation, to apply the chemicals.  His
testimony is abstracted as follows:  "I told my employee what to
put out, when to put it out, where, how to mix it and even what
gear to drive the tractor in."  He admitted that he did not know
that the State Plant Board regulations had been amended to provide
that the use of an anti-drift agent was required when spraying
within one mile of cotton.  He admitted that he did not direct the
use of an anti-drift agent.  He admitted that he knew that 2,4-D
was "the death of cotton."  He admitted that applications were made
on "several mornings and one afternoon."  He admitted that he knew
that his neighbor Weeks had cotton on his land, but denied knowing
the distance to Weeks's field.  Other testimony established that
the rice field and Weeks's cotton field were only 440 yards apart. 
Powell, the employee who applied the 2,4-D, testified that McGraw
directed him to apply it.  Powell's testimony, in part, was as
follows:
     Q.  What did you say?
     A.  Nothing.  I went and sprayed it.  I was following orders.
     Q.  Whose orders?
     A.  Terry McGraw.
     On cross-examination Powell testified that if he had gotten up
in the morning and if the wind was blowing in the direction of the
cotton, he would not have sprayed it at that time, and that he
could have made that decision on his own.  McGraw latches onto this
statement in cross-examination and, because of it, contends that
the judgment to spray was made by Powell, not him; therefore, there
was insufficient evidence that he directed the application of the
chemical and proximately caused the damage to the cotton crop.  The
argument does not prevail.  The above facts, and all the reasonable
inferences from them, created a question for the jury.  Proximate
cause is usually an issue for the jury to decide, and when there is
evidence to establish a causal connection between the negligence of
the defendant and the damage, it is proper for the case to go to
the jury.  Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).  Here, there was testimony that drifting chemicals
caused the damage and that McGraw ordered the spraying without
knowing how close the cotton was. 
     McGraw's final argument is that the court should have modified
A.M.I. Civ. 3d 709 by substituting Jayroe's name in place of
"employer" and Stewmon's name in place of "independent contractor." 
Model Instruction 709 states that an employer is under a duty to
select a competent independent contractor.   He contends that the
instruction misled the jury into thinking that he was responsible
as a matter of law for the negligence of Powell.  The argument is
without merit since no one sought a verdict against McGraw under
the doctrine of respondeat superior.  Rather, one interrogatory
inquired about McGraw's personal negligence, and another inquired
whether Stewmon was the agent of Jayroe.  There simply was no basis
for the jury to find that McGraw was liable under the doctrine of
respondeat superior.  Instructions are not to be viewed in
isolation, but are to be considered as a whole to determine whether
the law applicable to a case is correctly declared.  Porter v.
Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984).  The other
instructions make the issue clear.  Id. 
     Affirmed.