Charles Foust and McDaniel Farms, Inc. v. Estate of Roland Walters, Deceased, by and through its co-independent executors, Corey Walters and Rolinda Walters, d/b/a Walters Farms and Russell L. Lindeman d/b/a Rusty’s Flying Service

Negligence - This is a negligent application of herbicide case raising issues of misnomer, limitations, settlement credit, prejudgment interest tolling during settlement negotiations, expert testimony, lost income, preemption, independent contractors, and the gate-keeping responsibilities of the trial court.

Four McDaniel family members who farmed together in the Valley moved part of their farming operation to Brackettville in 1985. Traditionally, they farmed various tracts under various informal partnership arrangements. They also formed a corporation, McDaniel Farms, Inc., to purchase a tract near Brackettville. The proceeds and expenses from their farming operations in this area flowed through the corporate bank account. Otherwise, the corporation served as the "d/b/a" for the McDaniel shareholders who operated informally in all contractual matters. The officers and shareholders did not hold annual meetings or keep up a corporate minute book. In 1994, they planted cotton in this area and formed another informal partnership, with landowner Foust, to lease his land and plant cotton. Some of these cotton crops were allegedly damaged due to herbicide drift when a neighboring farmer named Roland Walters purchased Weedar 64 (containing the active ingredient 2,4D) and hired Russell Lindeman, d/b/a Rusty's Flying Service, to apply the chemical spray to his milo fields. A Lindeman representative inspected the crop and advised the McDaniels and Foust to grow out the crop and report the results for purposes of determining their losses, which they did.

The five individual farmers sued Lindeman, the Walters Estate, and Helena Chemical Corporation for lost income resulting from the damage caused to their crops. Helena Chemical was non-suited. The defendants filed special exceptions to the McDaniel parties, complaining they were vaguely described and lacked standing to sue. The trial court sustained the special exceptions, and plaintiffs filed a Third Amended Original Pleading which substituted McDaniel Farms, Inc. for the four McDaniel individual plaintiffs.

After a five-day jury trial, the jury found Walters 30% negligent and Lindeman 70% negligent, and returned a verdict in favor of plaintiffs, awarding damages to Foust and McDaniel Farms in the amounts of $81,488.00 and $162,976.00 respectively. The court took into consideration various post- verdict motions, ruled that the McDaniel Farms claims were barred by the two-year statute of limitations, and reduced Foust's award by $14,000.00, representing the value of a settlement credit from Helena Chemical, for judgment of $67,488.00.

Randy Colvin as an expert in aerial application of herbicide; Roger McGee, inspector for Texas Department of Agriculture; Charles Henson, retired ASCS agent; and Wally Jones , testified to the accuracy of the agency's data.

Russell Lindeman, testifying as an aerial application expert.

All sides appealed. The Court of Appeals of Texas, Fourth District, San Antonio affirmed in part and reversed and rendered in part. The date shown above is the date of the appellate court decision and not the trial date. Reported by JAB.