Defendants appeal from an adverse judgment wherein plaintiff recovered for damage done to his growing timber and to his fences. Plaintiff owned a large tract of land in Montgomery County with Sun Pipe Line Company having an easement approximately thirty feet in width across the northern boundary thereof.
The record does not disclose precisely the chemical composition of the spray used in the trimming operation.
The Court submitted the cause upon the negligence theory in accordance with plaintiff's pleadings and we summarize the findings in the margin.
Plaintiff had a very general allegation of trespass in his pleadings but no issues on trespass were submitted to the jury nor did plaintiff request any issues which would have submitted the trespass theory to the jury. For the first time, in his motion to disregard the nonfindings of negligence, plaintiff contended that Sun could not escape liability upon the finding that Mobley was an independent contractor "because the application of the chemical had such a potential for danger as to be classified as inherently dangerous and Sun Pipe Line Co., Inc., is liable for damages resulting from such work, even if performed by an Independent Contractor." He sought to have the Court disregard the nonfindings of negligence and to enter judgment for plaintiff on the remaining findings.
Plaintiff's motion was granted and the Court disregarded the jury's answers to Issues Nos. 2, 6, 8, 11, and 17, making these findings in the judgment:
It is readily apparent from the foregoing summary of the proceedings that we are confronted by two basic questions: (a) one of substantive law, i.e., Was a finding of negligence a sine qua non to plaintiff's recovery? and (b) the procedural question, Was the trial court authorized to enter the judgment in the absence of jury
In Baer v. Dallas Theater Center, 330 S.W.2d 214, 219 (Tex.Civ.App., Waco, 1959, error ref. n.r.e.), the court said: "The general rule is that the owner of the easement may prepare, maintain and improve it `to an extent reasonably calculated to promote the purposes for which it was created.'" The removal of the overhanging limbs was necessary in order that Sun could reasonably use the easement for its purposes. Indeed, plaintiff concedes that Sun had the right to remove the offending limbs from his trees by manual means, i.e., severance by a saw or an ax. This concession is one imposed by law upon the owner of the servient estate because every easement carries with it the right to do whatever is reasonably necessary for the full enjoyment of the easement itself. Knox v. Pioneer Natural Gas Company, 321 S.W.2d 596, 601 (Tex.Civ. App., El Paso, 1959, error ref. n.r.e.); Phillips Petroleum Company v. Terrel, 404 S.W.2d 927, 929 (Tex.Civ.App., Amarillo, 1966, no writ).
Sun was required to exercise its rights of use of the easement with due care and without negligence. For, as stated in Lone Star Gas Co. v. Hutton, 58 S.W.2d 19, 21 (Tex.Com.App., 1933, holdings approved), the Court said: "If grantee [Gas Company] exercise the rights conferred in the conveyance with due care and without negligence, then no damages were recoverable." Further, the Court said: "The burden rested upon Hutton and wife to allege and prove that the gas company was guilty of negligence in this respect." As applied to the facts of this case, the language of Texas Power & Light Co. v. Casey, 138 S.W.2d 594, 597-598 (Tex.Civ.App., Fort Worth, 1940, error dism. jdgmt. cor.), is highly persuasive:
The trespass theory of plaintiff, resting as it does upon the Court's findings and not those of a jury, presupposes an unreasonable use of Sun's possessory rights in the easement. But, the doctrine of Rylands v. Fletcher
From the foregoing authorities it is abundantly clear that plaintiff labored under the burden of securing a finding of negligence on the part of Sun in the removal of the overhanging limbs from the easement unless excused by his theory found by the Court— a trespass through the use of an inherently dangerous chemical. Even here, as to Sun, plaintiff must fail because the jury found that Mobley was an independent contractor and no challenge is
In Pitchfork Land and Cattle Company v. King, 162 Tex. 331, 346 S.W.2d 598 (1961), a group of cotton-farmer plaintiffs joined as defendants the aerial sprayer company and his employer, the ranch owner, in a suit for damages to their cotton crops allegedly caused by the drifting of herbicide. The Supreme Court held that since the aerial sprayer was an independent contractor, the landowner who hired the sprayer was not liable for the sprayer's negligence.
When we return to the crop dusting cases, plaintiff again is confronted with a well established body of law requiring a showing of negligence in order to recover. Vrazel v. Bieri, 294 S.W.2d 148, 152 (Tex.Civ.App., Galveston, 1956, error ref. n.r.e.), is typical. Plaintiff there sued the rice-farming landowner and the crop duster jointly because a herbicide sprayed on the rice fields drifted onto his cotton crop causing damage. The jury found the damage was caused by the spraying operation but acquitted the defendants of negligence; and, further, it found that the duster was an independent contractor. The Court noted the repudiation of the doctrine of Rylands v. Fletcher, supra, and continued:
In Gamblin v. Ingram, 378 S.W.2d 941 (Tex.Civ.App., Waco, 1964, no writ), plaintiff's cotton crop was damaged when herbicide sprayed on the maize crop of his neighbor drifted onto the cotton. The jury found that the pilot "did allow the herbicide to blow onto the plaintiff's cotton, but such action was not negligence." (at 941) Citing Turner v. Big Lake Oil Co., supra, and Vrazel v. Bieri, supra, the Court reiterated the rule that "the plaintiff had the burden of showing that defendants were guilty of negligent conduct proximately causing his loss before he is entitled to recover." (at 942)
The Supreme Court held in Dallas County Flood Control District v. Benson, 157 Tex. 617, 306 S.W.2d 350, 352 (1957), that the act of spraying chemicals on weeds upon its right-of-way which drifted onto plaintiffs' crops was "the result of negligence or accident" and the district could not be held liable because of the doctrine of governmental immunity.
In each of the Texas crop dusting cases, where there has been no physical invasion of the plaintiff's premises by the crop duster, the courts have uniformly required a finding of negligence as a condition precedent to imposition of liability. In addition to those discussed heretofore, others are cited in the margin.
The trial court's rejection of the requirement of negligence in this case and the adoption of the trespass theory is based on his finding that the spraying operation was inherently dangerous. We readily accept the proposition that the employer of an independent contractor may not escape liability for the acts of the contractor which are "intrinsically dangerous," e.g., the excavation of a hole in a city street. Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 156, 81 S.W. 282 (1904); Kampmann v. Rothwell, 101 Tex. 535, 109 S.W. 1089 (1908); Cage v. Creed, 308 S.W.2d 78, 80 (Tex.Civ.App., Waco, 1957, no writ). See also, Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003, 1004, (1944).
On the other hand, some activities which would seemingly fit the test have been held not to be inherently dangerous. Thus, the use of an open flame from an acetylene torch has been held not to be an inherently dangerous operation. Brownsville Navigation Dist. v. Valley Ice & Fuel Co., 313 S.W.2d 104, 106 (Tex.Civ.App., San Antonio, 1958, no writ). The use of an inflammable paint remover "is not work that is inherently dangerous." Olson v. B. W. Merchandise, Inc., 388 S.W.2d 737, 740 (Tex. Civ.App., Austin, 1965, no writ).
As applied to crop dusting, the phrase "inherently dangerous" was used in Leonard v. Abbott, 357 S.W.2d 778, 782 [Tex.Civ.App., Texarkana, 1962, reversed, 366 S.W.2d 925 (Tex.1963)]. The intermediate court relied upon the Herbicide Control Act, Art. 135b-4, V.A.C.S., and II Restatement of Torts, 1148, Sec. 427, Comment "a", the quotation being set out in the margin.
Nor did plaintiff seek any fact findings by the jury as to the applicability of Restatement
The jury failed to find that either defendant recklessly or negligently sprayed chemicals upon plaintiff's lands; and, as indicated earlier, plaintiff did not request any issues as to either reckless conduct or the pursuit of an "abnormally dangerous" activity, as illustrated in Comments d and e under the quoted section.
Even if we were inclined to adopt the revised text of § 427 of the Restatement, which plaintiff does not urge upon us as a ground of affirmation, it is readily apparent that a fact issue is presented: Was the physical harm caused to such others (the plaintiff in this case) by the contractor's failure to take "reasonable precautions against such danger"? We bear in mind that the jury failed to find the contractor was negligent and plaintiff did not seek an issue as to whether the contractor did or did not "take reasonable precautions."
If plaintiff were to prevail upon the Restatement theory (as set out in either § 165 or in § 427, supra), it was incumbent upon him to request issues thereon. Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529, 531 (Tex.1965), wherein the Court said:
See also, Denton Publishing Company v. Boyd, 460 S.W.2d 881, 885 (Tex.1970); Melody Home Manufacturing Company v. Morrison, 502 S.W.2d 196, 200 (Tex.Civ. App., Houston— 1st Dist., 1973, error ref. n. r. e.).
Donald Stapels, a forester employed by the Texas Forest Service with a Bachelor of Science in Forestry, testified to a "controlled observation" of chemical spraying of overhanging limbs on a pipe line right-of-way in Tyler County. Three quarter-mile sections of the right-of-way made up the controlled area with two being sprayed with Ammite (Ammonia Sulphate, an "organic herbicide") with the intervening section unsprayed. The purpose of the controlled observation was to determine "what effect this spraying would have on the trees' physiology itself." He detailed his observations after the experiment had been made saying that after a year and a half:
In short, he said that the beetle infestation in the controlled area was similar to that in the uncontrolled area.
At best, plaintiff introduced evidence which would have raised a fact issue upon the trespass theory. He did not conclusively establish that either of the defendants was liable, as a matter of law, for his damage under the authorities heretofore noted.
Plaintiff procured no findings of negligence on the issues requested. If Restatement § 427 is to be held applicable, Sun was not shown to have known of the inherent danger nor was it shown conclusively that the contractor failed "to take reasonable precautions against such danger." If Restatement § 165 is found to state the applicable rule, the record does not show conclusively that either Sun or Mobley: (a) did the spraying "recklessly or negligently,"
Thus, the right to recover upon the theory of trespass was waived. Texas Rules of Civil Procedure, rule 279; Glens Falls Insurance Co. v. Peters, supra. The trial court erred in setting aside and disregarding the jury's answers upon the negligence issues, as well as that finding Mobley to be an independent contractor. The defendants were entitled to judgment upon the findings of the jury. Vrazel v. Bieri, supra (294 S.W.2d at 152); Pitchfork Land and Cattle Co. v. King, supra (346 S.W.2d 598).
There is yet another cogent reason why plaintiff may not prevail: the trial court was not authorized to set aside the findings of the jury and enter judgment upon the remaining findings. There was evidence supporting the finding that Mobley was an independent contractor; and even plaintiff does not contend that there was no evidence supporting the jury's nonfindings on the negligence issues.
Plaintiff simply failed to carry his burden of establishing negligence on the part of the defendants. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). The findings of the jury may be set aside only after a determination that "there is no evidence on which the jury could have made the findings relied upon." Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962); C. & R. Transport, Inc. v. Campbell, supra. Or, stated differently in Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex.1967):
Having examined the record carefully, we are of the opinion that none of the issues disregarded by the trial court were immaterial and that each jury finding was supported by competent evidence having probative value. For this additional reason, the trial court erred in rendering judgment for the plaintiff.
In order that our action may be tested under the appropriate standards, we sustain defendants' points of error numbers one, three, and five, and overrule plaintiff's similarly numbered counter-points.
Plaintiff has no protective cross-points to vitiate the jury's verdict or to prevent an affirmance of the judgment had one been entered on the verdict. We have no alternative, therefore, but to reverse the judgment of the trial court and to render judgment for the defendants. Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex.1967). Such action makes it unnecessary for us to consider the other points of error brought forward by the defendants.
Reversed and rendered.