McARDLE v. STEWART

McARDLE v. STEWART
1968 OK 153
446 P.2d 379
Case Number: 41750
Decided: 10/29/1968
Supreme Court of Oklahoma

ROY McARDLE, D/B/A McARDLE FLYING SERVICE, PLAINTIFF IN ERROR,
v.
JAMES STEWART, DEFENDANT IN ERROR.

Syllabus

 
¶0  A petition for damages which fails to allege compliance with 2 O.S. 1961, § 3-82(d), requiring a written statement of damages to be filed with the State Board of Agriculture, is demurrable.

Appeal from the District Court of Caddo County; Sam M. Williams, Judge.

Action by James Stewart against Roy McArdle doing business as McArdle Flying Service for damage to a herd of cattle owned by Stewart from negligent application of pesticides from airplane. Judgment for plaintiff and defendant appeals. Reversed.

Barney & Pain, Anadarko, for plaintiff in error.

Arney & Arney, Weatherford, for defendant in error.

PER CURIAM:

¶1 The plaintiff James Stewart in his amended petition alleged that defendant permitted arsenic acid which was being sprayed on plaintiff's cotton crop to drift onto plaintiff's pasture, causing damage to plaintiff's cattle. The damage was alleged to be the loss of one 275 pound calf, reduction in value of 12 cows and 11 calves; $184.00 veterinary bill and $90.00 for feed for the cattle. There was no allegation that a written statement of damages had been filed with the State Board of Agriculture.

¶2 Title 2 O.S. 1961 § 3-82 (d), provides:

"* * * No action for such damages may be brought or maintained, however, unless the person claiming the damages shall have filed with the Board a written statement of damages, on a form prescribed by the Board, within sixty (60) days after the date that the damages occurred, or prior to the time that twenty-five percent (25%) of a crop damaged shall have been harvested. * * *."

¶3 It is conceded that no written statement of damages was filed in this case. We are of the opinion this is fatal to plaintiff's lawsuit, and that the trial court erred in not sustaining the demurrer of the defendant. In Olmstead v. Reedy, Okl., 387 P.2d 631, we said:

"The language of the statute seems clearly to provide that the filing of the written statement of damages is a condition precedent to the right to commence the action. * * *".

¶4 The judgment is reversed with directions to the trial court to sustain the demurrer to the petition of the plaintiff.

¶5 The Court acknowledges the aid of the Supernumerary Judge HALLEY, in the preparation of this opinion. After a tentative opinion was written, the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.

¶6 JACKSON, C.J., IRWIN, V.C.J., and DAVIDSON, WILLIAMS, HODGES and LAVENDER, JJ., concur.

¶7 BLACKBIRD, BERRY and McINERNEY, JJ., dissent.