128 BURNS V. VAUGHAN. [216 BURNS V. VAUGHAN. 4-9005 224 S. W. 2d 365
Opinion delivered November 21, 1949. 1. DAMAGES—NEGLIGENCE.—A plantation-owner spraying his rice crop with 2, 4-D chemical dust is liable for damage to the crops of his neighbors only where negligence in doing the spraying is shown. 2. NEGLIGENCE.—The evidence is sufficient to make the issue of negligence in sPraying appellant's rice with 2, 4-D chemical dust a question for the jury. 3. APPEAL AND ERROR.—Since appellant saved nd exceptions to the ruling of the court refusing to admit in evidence the certificate of the Weather Bureau showing the direction of the wind on the day the spraying was done, his contention that the court erred in excluding it cannot be considered. 4. APPEAL AND ERROR.—Although the excluded certificate of the Weather Bureau showing the direction of the wind on the day the spraying was done by appellant reached the jury by mistake, he cannot be heard to complain of the jury seeing evidence that he wanted them to see. 5. DAMAGES.—Where W's land was being farmed by a tenant under an agreement by which the tenant was to receive one-half of the crop produced, W was a proper party in an action to recover damage done by appellant with 2, 4-D and entitled to recover for the damage to the entire crop. Appeal from. Craighead Circuit Court, Jonesboro District ; Charles W. Light, Judge ; affirmed. Sloan & Sloan, for appellant. Barrett, Wheatley & Smith, for appellee. GEORGE ROSE SMITH, J. The basic facts in this case are quite similar to those in Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820, decided June 27, 1949. On the morning of July 10, 1947, appellant Burns caused his rice crop to be sprayed by airplane with 2,4-D chemical dust. This dust is harmless to narrow leaved plants but deadly to those having broad leaves. It has unusual carrying powers, as it vaporizes in the air and may travel for miles Here the dust drifted to the ap-pellees' farms, a mile or more away, and damaged their growing cotton. They recovered judgments below in amounts not questioned here. The manufacturer of the
ARK.] BURNS V. VAUGHAN. 129 chemical was also a defendant, but it made default and did not appeal from the judgments against it. Appellant's principal contention is that he should have received a directed verdict. It was settled by the Taylor case, supra, that one who uses a dust of this kind is not liable to his neighbors. in every case ; negligence must be shown. There the Elms Company, which used the dust, was not shown to have had notice of its remarkable drifting power. The company's manager had consulted one versed in such matters and had been told that the chemical was all right. That case went to the jury, and we upheld a verdict for the Elms Company. Here the evidence as to notice is materially different. Another rice farmer, living a few miles from appellant, had released 2,4-D by airplane about two weeks before appellant used the dust. Damage to other crops had occurred. The earlier incident seems to have been a matter of general knowledge in the vicinity, and appellant admits that be knew of it. The county agricultural extension agent had a considerable fund of information on the subject, which appellant could have obtained for the asking. See 7 USCA § 342. Too, the appellant testified that he knew that the dust was dangerous and instructed his pilot not to release it if there was any , wind. During the dusting operations a breeze arose, but the pilot continued to release the dust until appellant succeeded in stopping him. We think this evidence was sufficient to make the issue of negligence a matter for the jury. The other contentions require only a few words. There was a dispute as to whether the breeze that arose was blowing toward or away from the appellees' lands. Appellant offered a Weather Bureau certificate showing the direction of the wind that day in Batesville, Little Rock and Memphis. The relevancy of this information. is certainly open to question; but we need not decide thiS issue, for the appellant did not except to the court's refusal to admit the certificate. It happened that the certificate reached the jury room by mistake, a circumstance relied on by appellant for reversal. We
130 [216 hardly see how he can complain of the jury's having seen evidence that he wanted them to see. In any event, however, the only proof that the jury saw the certificate is in the form of affidavits by several jurors. Of course this is not a permissible method of impeaching the verdict. Griffith v. Moseley, 70 Ark. 244, 67 S. W. 309. Margaret Walker, an appellee, had employed Ar-thur White to make a crop on her land, under an agreement that he should receive half the proceeds after all expenses were paid. .It is argued that Mrs. Walker should have been permitted to recover only half the damage to her crop. We have frequently held, however, that under such an arrangement title remains in the landowner until the division is made. The landowner is the proper plaintiff in an action for conversion of the gathered crop, Hammock v. Creekmore, 48 Ark. 264, 3 S. W. 180, and the reasoning applies even more strongly when the injury is to a growing crop. Affirmed.
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