Home/Supreme Court of Missouri/Faire v. Burke

Faire v. Burke

252 S.W.2d 289, 363 Mo. 562, 1952 Mo. LEXIS 678
CourtSupreme Court of Missouri
DecidedNovember 10, 1952
Docket42933
StatusPublished
Cited by40 cases

This text of 252 S.W.2d 289 (Faire v. Burke) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faire v. Burke, 252 S.W.2d 289, 363 Mo. 562, 1952 Mo. LEXIS 678 (Mo. 1952).

Opinion

LOZIER, C.

Plaintiff-appellant (herein called plaintiff) sued defendants-respondent (herein called defendants) for $9750 for alleged damage to plaintiff’s 1949 cotton crop resulting from *564 defendants’ spraying tbeir corn crop. Trial was by the court without a jury. Finding and judgment were for defendants. Plaintiff appealed.

The issue is the sufficiency of the evidence to sustain the judgment.

Under RSMo 1949, Sec. 510.310, Y.A.M.S.: “We review this non-jurj»- case as a suit in equity; we give due regard to the trial court’s opportunity to judge the credibility of the witnesses; the judgment may not be set aside unless clearly erroneous. ’ ’ Kimberly v. Presley, (Mo.) 245 S. W. 2d 72, 75. “ The question for our determination is therefore not merely one of whether the court’s finding was supported by substantial evidence. On the contrary, it is our duty to make our own independent finding of the facts and reach our own conclusion as to where the weight of the evidence lies. Whatever findings the lower court may have made are in no sense binding upon us, although in matters where the evidence is conflicting and close we shall have due regard for the lower court’s opportunity to judge the credibility of the witnesses.” Redden v. Boehmer, (Mo. App.) 223 S. W. 2d 127, 129.

The case was pleaded and tried below, and submitted here, upon the theory that defendants sprayed the weeds in their cornfield at a time when a strong wind carried the weed killer tó plaintiff’s field and caused damage to his cotton crop. Our appellate courts have not heretofore had occasion to consider a landowner’s liability for damage to an adjoining landowner’s crops from chemical sprays. Without becoming involved in the current controversy in the chemical-agricultural world as to the beneficial or. pernicious effects of chemical sprays upon soil or crops, we approve the rule stated in Anno. 12 A.L.R. 2d 436, 438: “There can be no doubt that farmers * * * have the right to use the many beneficial new dusts and sprays * * "* and to assure the best possible product by dusts and sprays which eliminate weeds which would otherwise choke out or stunt growth. But such preventive measures cannot be used with absolute impunity. Due care must be exercised in seeing to it that the weather conditions are right, * * * and that they [the spreaders] do not spread dust when the wind is so blowing as to float it to the crops of others * * * . In other words, an owner of premises may be liable to damages for spreading poisonous dusts and sprays negligently. ’ ’

The geographical situation is shown by the accompanying plat. (This is the trial “Court’s Exhibit 1,” showing the path of the spray — between the parallel wind direction lines — as found by the' trial court. We have superimposed the spray’s path as shown by plaintiff’s Exhibit 1.)

Plaintiff Faire, defendants and some of the witnesses owned or operated farms abutting the north-south county road. Of

*565

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Cite This Page — Counsel Stack

Bluebook (online)
252 S.W.2d 289, 363 Mo. 562, 1952 Mo. LEXIS 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faire-v-burke-mo-1952.