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August 26, 1958


The opinion of the court was delivered by: Lemley, Chief Judge.

This cause having been tried to the Court on August 18 and August 19, 1958, and the Court having considered the evidence and being well and fully advised doth make the following Findings of Fact and doth state the following Conclusions of Law, as follows to-wit:

Findings of Fact

1. The plaintiffs, Paul D. McLouth and Blanche McLouth, his wife, citizens of Miller County, Arkansas, have brought this action against the defendants, General Telephone Company of the Southwest, a Delaware corporation doing business in Arkansas, and J.E. Goeders, a citizen of Louisiana, doing business as Goeders Tree Surgeons, to recover for certain alleged damages to real estate owned by them in Miller County. It is the claim of the plaintiffs that employees of the defendant, Goeders, wrongfully sprayed certain hardwood trees on the property aforesaid with a hormone herbicide, consisting of a mixture of chemicals known as 2-4-D and 2-4-5-T in a solution of diesel oil and water, while said employees were engaged in the performance of a contract between the defendant telephone company and Goeders; it is alleged that as a result of this spraying some of the plaintiffs' trees died and others were damaged, and that the value of their property was thereby substantially depreciated. The amount in controversy, exclusive of interest and costs, exceeds $3,000.*fn1

2. A number of the facts in the case are undisputed and may be summarized as follows:

The defendant, General Telephone Company of the Southwest, is a public utility which provides telephone service to the City of Texarkana, Arkansas-Texas and to adjacent rural areas, including the area along and adjacent to U.S. Highway No. 71 north of the city, and in connection with the rendition of said service it, of course, maintains lines of wires, and it is necessary from time to time for the telephone company to kill or cause to be killed brush and undergrowth underneath said wires in the rural areas served by it.

On June 29, 1956, the telephone company and the defendant, Goeders, entered into a written contract under the terms of which Goeders undertook to spray the brush and undergrowth under the telephone company's lines in Miller County, including its lines in the vicinity of the plaintiffs' property, and Goeders, acting through a crew of four men, subsequently entered upon the performance of said contract, using the hormone herbicide above described. The property of the active ingredients of that herbicide which renders it useful in weed control work is that it will kill broad leafed plants with which it comes in contact. Unfortunately, this herbicide does not confine itself in its reactions to noxious weeds and shrubs, but reacts non-selectively upon any broad leaf plant which it touches, including valuable field crops, and it will also kill or injure trees of the types growing along both the west and the south lines of the plaintiffs' property.

In the course of their work the Goeders crew sprayed their solution from a large tank mounted upon a truck; the actual application was from a nozzle which ejected the spray under variable pressures of from 200 to 400 pounds per square inch. Mr. Goeders and the members of his crew were not ignorant of the dangerous propensities of the substance which they were using, and the crew had instructions not to spray any valuable trees and not to do any spraying on any property without first obtaining the consent of the landowner concerned. As a matter of fact, it was the sole duty of one of the members of the crew to go ahead of his fellows and secure permission from the various persons upon whose property spraying was contemplated.

3. The spraying with which we are here concerned took place on August 2 or August 3, 1956, the exact date not being material. It is the theory of the plaintiffs that on one of those days the employees of the defendant, Goeders, negligently sprayed the brush underneath the telephone lines to the south of their property, and that as a result of this alleged negligence some of the spray drifted across the narrow country lane that we have mentioned and came in contact with some of the trees just north of that lane, injuring some and killing others; the plaintiffs further contend that the employees of Goeders wrongfully, intentionally, and deliberately sprayed the Chinese elms killing a number of them and damaging others. The plaintiffs' basic claim of damages is that the injuries to and destruction of their trees caused a substantial depreciation in the market value of their property, which alleged depreciation they are entitled to recover as actual damages; and they further claim that since the spraying of the Chinese elms was intentional and deliberate, they are entitled to have the damages to their property attributable to the spraying of those particular trees trebled in accordance with the provisions of Ark.Stats., Section 50-105.*fn2

4. In their pleadings and in the course of the trial the defendants denied that they are liable to the plaintiffs in any sum whatever, and they also take issue with them as to damages. More specifically, while the defendants admit that the Goeders crew sprayed under the telephone company's wires south of the plaintiffs' property, they deny that such was negligently done; and with respect to the Chinese elms they take the position that those trees were not sprayed at all. In connection with the latter trees the defendants assert that spraying along the front of the plaintiffs' property was contemplated, but that it was not carried out because of the fact that the crew was unable to obtain the permission of either Mr. or Mrs. McLouth, both of the latter being away from home when such permission was sought.

In addition to the foregoing defenses, which are common to both defendants, the telephone company seeks to avoid liability on the ground that Goeders was an independent contractor; and, in the alternative, it contends that if it is held liable to the plaintiffs, it is entitled to judgment over against Goeders by virtue of an indemnity clause in the contract between them, and Goeders concedes that the telephone company is correct in this regard.

5. Taking up first the question of the alleged damage to the Chinese elms, we find from a preponderance of the evidence that those trees were in fact sprayed by the Goeders crew, and that as a result of such spraying some of those trees were killed and others damaged. In making that finding we credit the testimony of the plaintiffs' witness, Mr. Walter Clements, that he saw the crew spraying one of those trees, and the testimony of Mr. Charles Alford, the Supervisor of the Pest Control Division of the Arkansas State Plant Board, who qualified as an expert, and who gave it as his opinion that all of the Chinese elms, as well as the trees growing along the plaintiffs' south line, had suffered 2-4-D or 2-4-5-T damage. Since Clements saw the crew spraying one of the elms, and since Alford testified that all of them had sustained hormone herbicide damage, and since there was no suggestion that any persons other than the Goeders crew had been using such an herbicide in the vicinity, it follows that the latter must have sprayed all of those trees.

We further find from a preponderance of the evidence that this spraying of the Chinese elms was intentionally and deliberately done. Not only did Mr. Clements describe what appears to have been an intentional and deliberate act, but also it is to be noted that the defendants do not even contend that such spraying was done inadvertently or accidentally; as stated, they take the fundamental position that those trees were not sprayed at all.

6. As to the trees along the south line of the property, while there is no evidence that the members of the crew intentionally or deliberately sprayed any of those trees, we find from a preponderance of the evidence that as a result of the spraying underneath the telephone lines south of the country lane the herbicide drifted across said lane and damaged the plaintiffs' south line of trees; and we further find from a preponderance of the evidence that a person of ordinary prudence would not have sprayed south of the lane in such close proximity to the plaintiffs' trees in view of the prevailing wind directions and velocities on both of the days that have been mentioned, as shown by the official records of the United States Weather Bureau which were introduced in evidence, but would have chosen some other time to do such spraying or some other method of ...

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