{ "id": 1636818, "name": "Naomi LITTLE, Administratrix v. Harold McGRAW", "name_abbreviation": "Little v. McGraw", "decision_date": "1971-05-24", "docket_number": "5-5575", "first_page": "766", "last_page": "770", "citations": [ { "type": "official", "cite": "250 Ark. 766" }, { "type": "parallel", "cite": "467 S.W.2d 163" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "276 P. 2d 92", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1954, "opinion_index": 0 }, { "cite": "222 S. W. 2d 820", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1949, "opinion_index": 0 }, { "cite": "215 Ark. 630", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464485 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/ark/215/0630-01" ] }, { "cite": "242 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718919 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0271-01" ] }, { "cite": "241 Ark. 1059", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1724165 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/241/1059-01" ] }, { "cite": "368 S. W. 2d 89", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10154553, 1681318 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/sw2d/368/0089-01", "/ark/236/0713-01" ] }, { "cite": "236 Ark. 713", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681318 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/236/0713-01" ] }, { "cite": "169 S. W. 1175", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1914, "opinion_index": 0 }, { "cite": "114 Ark. 289", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536308 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/ark/114/0289-01" ] }, { "cite": "238 Ark. 768", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1734353 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/ark/238/0768-01" ] } ], "analysis": { "cardinality": 474, "char_count": 6678, "ocr_confidence": 0.853, "pagerank": { "raw": 1.3331300870267574e-07, "percentile": 0.6293179640975207 }, "sha256": "70d6ae3d457c0333a060bf4ad2b49f804963b603bd4a435500eae0545390f512", "simhash": "1:73fe78e3a9983cd0", "word_count": 1138 }, "last_updated": "2023-07-14T16:35:57.384009+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Naomi LITTLE, Administratrix v. Harold McGRAW" ], "opinions": [ { "text": "George Rose Smith, Justice.\nThis action for the wrongful death of Sam Little was brought by the appellant, his administratrix, against three defendants, Darrell Riddell, Carl Riddell, and the appellee, Harold McGraw. All three defendants filed motions for summary judgment. The court denied the Riddells\u2019 motions but sustained that of McGraw. This appeal is from a summary judgment in favor of McGraw.\nOur summary judgment statute, Ark. Stat. Ann. \u00a7 29-211 (Repl. 1962 and Supp. 1969), was copied from Rule 56 of the Federal Rules of Civil Procedure. Under Federal Rules 54 and 56 there would be some doubt about the finality and appealability of a summary judgment in the federal court in favor of only one of several defendants. Barron & Holtzoff, Federal Practice and Procedure, \u00a7 1241 (Wright\u2019s ed., 1958). Our legislature, however, has not adopted Federal Rule 54, which has to do with the finality of a partial judgment. Hence the finality and appealability of a summary judgment dismissing only one of several defendants must be determined under our general statutes governing appellate procedure. We are of the opinion that such a judgment is final and appealable. Safeway Stores v. Shwayder Bros., 238 Ark. 768, 384 S. W. 2d 473 (1964); Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175 (1914).\nThe facts, as developed in the depositions accompanying the motions for summary judgment, are not entirely without dispute. Sam Little, the decedent, was employed by McGraw, a farmer. On May 20, 1968, Mc-Graw telephoned Riddell Flying Service, which was engaged in cropdusting, to arrange for the spraying of a rice field. McGraw says that in the course of his conversation with Darrell Riddell he asked if the flying service was qualified to spread 2, 4-D, which requires a special license. According to McGraw, Darrell said that he was so qualified, though in fact he was not. Darrell denies that he was asked about his license. Darrell, who was then 22 years, old, had only a student pilot\u2019s license and was not qualified to do any kind of cropdusting, for which a commercial pilot\u2019s license is required.\nLate the next day Darrell flew a small single-seated plane to a landing strip about four miles from the rice field that was to be sprayed. There McGraw helped Darrell mix and load the chemical. Darrell then began spraying the field. McGraw had stationed Sam Little and another man at opposite ends of the field, to guide the flier as he made passes over the area. After every pass the two men would each move 14 steps in the same direction and take a new position to guide the plane upon its next passage over the field. At one point in the operation the plane was flown so near the ground that its landing gear struck Little and fatally injured him.\nWe are not here concerned with the liability of either Darrell Riddell or his father, who are not parties to this appeal. The issue before us is the existence of supporting evidence for the four separate theories upon which the appellant administratrix asserts a cause of action against McGraw. In considering that evidence we must view it in the light most favorable to the appellant. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963).\nFirst, the appellant invokes the doctrine of respond-eat superior, on the theory that Darrell Riddell was an employee of McGraw. There is no merit in this contention. According to the undisputed evidence, Darrell was an independent contractor over whom McGraw had no right of control.\nSecondly, the appellant contends that McGraw failed to exercise ordinary care to furnish Little with a reasonably safe place to work. This contention, too, is without merit. Little\u2019s death was due not to a dangerously defective condition of the field where he was standing but to Darrell Riddell\u2019s asserted negligence in flying too low. See, by analogy, our opinions in Tatum v. Rester, 241 Ark. 1059, 242 Ark. 271, 412 S. W. 2d 293 (1967)', where, as here, the condition of the landowner\u2019s premises had no causal connection with the plaintiff\u2019s injury, which was caused by the landowner\u2019s negligence in backing his car out of his carport.\nThirdly, the appellant insists that the spraying of a crop by airplane is so inherently dangerous that the negligence of Darrell, as an independent contractor, is chargeable to his employer. AMI 708, Civil. There is actually no proof to sustain this argument. Many years ago aviation was considered to be an ultrahazardous activity. Restatement of the Law, Torts, \u00a7 520, Comment b (1938). Although the spreading of 2,4-D by air is unduly hazardous to nearby crops, Chapman Chem. Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820 (1949), it does not follow that an airplane in flight is inherently dangerous to a person standing on the ground. Aviation is now so commonplace that it cannot be considered to be either inherently dangerous or ultrahazardous. For a full discussion of this fact see Boyd v. White, 276 P. 2d 92 (Cal. App., 1954).\nFourthly, the appellant asserts that McGraw failed to use ordinary care to select a competent independent contractor to do the work. AMI 709, Civil. Upon that issue the proof made a question of fact for a jury. Mc-Graw admittedly knew that a flier must have a special license to engage in cropdusting. McGraw remembered that about a year earlier Darrell had said that \u201che hoped in another year he would be qualified to do that type of work himself.\u201d Although McGraw testified that he asked Darrell during the telephone conversation if the flying service was qualified to disperse 2, 4-D, Darrell testified that he was never asked if he was properly licensed. Finally, Mrs. Little testified that when McGraw came to tell her that her husband was dead, McGraw \u201csaid that the boy said that he had hit Sam, and he said that he didn\u2019t think the boy had a license, and that he thought that it was his father\u2019s business.\u201d We are unable to say that the record is devoid of substantial evidence to support the appellant\u2019s fourth theory of liability.\nThus the court erred in entering a summary judgment in favor of McGraw. The statute provides that a defendant may move for a summary judgment \u201cupon all or any part\u201d of the plaintiff\u2019s claim. Ark. Stat. Ann. \u00a7 29-211 (b). Here the court should have entered an interlocutory order, which the federal decisions liken to a pretrial order, finding that there was a disputed issue of fact only with respect to the fourth asserted ground of liability.\nReversed and remanded for further proceedings.", "type": "majority", "author": "George Rose Smith, Justice." } ], "attorneys": [ "Butler ir Hickey, for appellant.", "Daggett ir Daggett, for appellee." ], "corrections": "", "head_matter": "Naomi LITTLE, Administratrix v. Harold McGRAW\n5-5575\n467 S. W. 2d 163\nOpinion delivered May 24, 1971\nButler ir Hickey, for appellant.\nDaggett ir Daggett, for appellee." }, "file_name": "0766-01", "first_page_order": 796, "last_page_order": 800 }