Orkin Exterminating Co. of South Fla., Inc. v. Truly Nolen, Inc., 59-12

• Decision Date: 25 January 1960
• Docket Number: No. 59-12,59-12
• Parties: 39 Lab.Cas. P 66,191 ORKIN EXTERMINATING COMPANY OF SOUTH FLORIDA, INC., a Florida corporation; Orkin Exterminating Company of Florida, Inc., a Florida corporation; Taft Pierce and Albert Snyder, Appellants, v. TRULY NOLEN, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 419

117 So.2d 419

39 Lab.Cas. P 66,191

ORKIN EXTERMINATING COMPANY OF SOUTH FLORIDA, INC., a Florida corporation; Orkin Exterminating Company of Florida, Inc., a Florida corporation; Taft Pierce and Albert Snyder, Appellants, v. TRULY NOLEN, INC., a Florida corporation, Appellee.

No. 59-12.

District Court of Appeal of Florida, Third District.

Jan. 25, 1960.

Rehearing Denied Feb. 12, 1960.

Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellants.

Bernard B. Weksler and Joseph Pardo, Miami, for appellee.

PEARSON, Judge.

Truly Nolen, Inc., and Orkin Exterminating Company are competing organizations in the pest control and exterminating business. Truly Nolen brought a complaint seeking an injunction against Orkin and certain of its employees to restrain them from the alleged activity of soliciting, enticing and pirating the employees of Truly Nolen and secondly to require Orkin to pay such damages as the plaintiff may have already sustained in consequence of these alleged activities and such punitive damages as the chancellor might find proper. Orkin denied the allegations of the complaint and an extensive trial was held. The chancellor made extensive findings of fact ¹ in his decree, the basic conclusion of which was that Orkin maliciously, wantonly, and unlawfully interferred with Truly Nolen's contracts. The decree enjoined Orkin from further interference with plaintiff's employment contracts and contained judgment for Truly Nolen against Orkin for $7,519.01 actual damages and $75,000 as punitive damages. A judgment of $7,500 as punitive damages against a defendant, Pierce, who was an employee of Orkin, was also entered.

Upon this appeal from the final decree it is first contended that the evidence does not support the finding of malice as a basis for punitive damages. Secondly the chancellor's authority to enter a judgment for punitive damages is challenged, and lastly it is urged that the award of compensatory damages is not supported by the evidence and that the amounts assessed as punitive damages are inordinate. We hold that a chancellor is without authority to enter a judgment for punitive damages and reverse the decree in part.

The Court found further:

'11. That the actual damages suffered by Nolen as a direct and proximate result of the actions of Pierce and Orkin is the sum of $7,519.01.

'12. That the plaintiff is entitled under the law to receive exemplary and punitive damages from the defendants, Pierce and Orkin, in this cause.'

Upon appellants' first point, relative to the sufficiency of the evidence to support the chancellor's finding of malice, our review of the record reveals sufficient evidence of economic piracy to support the conclusion of the chancellor that the defendants engaged in such activity. There is evidence that Orkin set out on an economic campaign, which was to some extent successful, to put the plaintiff out of business. We agree with the chancellor that the type of injury resulting may be propitiated only by punitive damages.

We are presented with the argument, however, that it is error for a court of equity to grant punitive damages unless authorized by statute. This is the first time that this court has been called upon to pass directly upon the propriety of awarding punitive or exemplary damages in chancery. Upon several occasions the appellate courts of Florida have approved by implication the allowance of punitive damages by a chancellor. See Florida Ventilated Awning Co. v. Dickson, Fla.1953, 67 So.2d 215; Fontainebleau Hotel Corp. v. Kaplan, Fla.App.1959, 108 So.2d 503; Miami Beach Lerner Shops, Inc. v. Walco Mfg. of Florida, Fla.App.1958, 106 So.2d 233.

A reading of these opinions reveals that the question of the authority of the chancellor to award punitive damages evidently was not raised by the assignments of error and certainly was not passed upon by the court. We therefore hold that the question has not been determined in this state.

A historical background of the question of whether an equity court has the power to award punitive damages is ably set forth in Superior Construction Co. v. Elmo, 204 Md. 1, 102 A.2d 739, 104 A.2d 581, 48 A.L.R.2d 932, 947. A review of the authorities therein set out reveals that punitive damages originated in the law of England where the common conscience of the jury was the basis for the award of the additional amount beyond compensatory damages to the injured party. The weight of authority in this country is definitely against the right of a chancellor to award punitive damages in the absence of express statutory authority to do so. Livingston v. Woodworth, 15 How. 546, 14 L.Ed. 809; Stevens v. Gladding, 17 How. 447, 15 L.Ed. 155; Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 36 S.Ct. 233, 60 L.Ed. 505; Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332; Orenstein v. United States, 1 Cir., 1951, 191 F.2d 184; Decorative Stone Co. v. Building Trades Council, 2 Cir., 1928, 23 F.2d 426; Coca-Cola Co. v. Dixi-Cola Laboratories, 4 Cir., 1946, 155 F.2d 59, certiorari denied 329 U.S. 773, 67 S.Ct. 192, 91 L.Ed. 665; Leimer v. Woods, 8 Cir., 1952, 196 F.2d 828; Williamson v. Chicago Mill & Lumber Corporation, 8 Cir., 1932, 59 F.2d 918; United States v. Bernard, 9 Cir., 1913, 202 F. 728; United States v. Hart, D.C.F.D.Va.1949, 86 F.Supp. 787; United States v. Friedland, D.C.Conn.1950, 94 F.Supp. 721; Hennessy v. Wilmerding-Loewe Co., C.C.N.D.Cal.1900, 103 F. 90; Taylor v. Ford Motor Co., D.C.N.D.Ill.1924, 2 F.2d 473; Moore v. Carr, 224 Ala. 275, 139 So. 269; Littlejohn v. Grand International Brotherhood of Locomotive Engineers, 92 Colo. 275, 20 P.2d 311; Superior Construction Co. v. Elmo, 204 Md. 1, 102 A.2d 739, 104 A.2d 581, 48 A.L.R.2d 932; Fleischer v. James Drug Stores, Inc., 1 N.J. 138, 62 A.2d 383; Dunkel v. McDonald, 298 N.Y. 586, 81 N.E.2d 323; Winthrop Chemical Co. v. Blackman, 159 Misc. 451, 288 N.Y.S. 389; Mid-Continent Petroleum Corp. v. Bettis, 180 Okl. 193, 69 P.2d 346; Bird v. Wilmington & Manchester R. Co., 8 Rich.Eq., S.C., 46; Standard Warehouse Co. v. Atlantic Coast Line R. Co., 222 S.C. 93, S.E.2d 893; Bush v. Gaffney, Tex.Civ.App., 84 S.W.2d 759; Whitney v. Adams, 66 Vt. 679, 30 A. 32, 25 L.R.A. 598, 44 Am.St.Rep. 875; Given v. United Fuel Gas Co., 84 W.Va. 301, 99 S.E. 476; Karns v. Allen, 135 Wis. 48, 115 N.W. 357.

In general the denial to a chancellor of the prerogative of awarding punitive damages is supported in these cases upon one of two theories. One theory, known as the waiver theory, holds that by bringing the action in equity the plaintiff waives the right to punitive damages. The other theory is the awarding of punitive damages is incompatible with equitable principles. In this connection it is frequently said that a court of equity is not an instrument for the punishment of an individual or for the exacting of vengeance.

Inherent in all these decisions, of course, is the thinking of these courts that any different holding would deprive the defendant of his constitutional right of a jury trial before punishment. Also involved is the idea that if the plaintiff has a right to punitive damages then he has an adequate remedy at law.

It is extremely difficult to evaluate and set boundaries upon the amount to be allowed as punitive damages. In actions at law for damages, the amount awarded is limited by the common conscience which is called into play by the jury system. It is not intimated that a chancellor has less of this inherent sense of justice, but his judgment is the judgment of one man and that of the jury is the judgment of many. The right to assess a punitive fine for civil wrongs is best left to the jury. Therefore that portion of the judgment which assesses punitive damages in the amount of $75,000 against Orkin Exterminating Company of South Florida, Inc., and Orkin Exterminating Company of Florida, Inc., and the portion of the judgment which allows punitive damages in the amount of $7,500 against Taft Pierce are reversed.

We are next presented with the argument that there is not sufficient evidence in the record to support the compensatory damages of $7,519.01 assessed by the chancellor. The award is composed of four separate items of allowances ² as follows:

1. $1,237.38 for the expense of having an outside entomologist attempt to complete a project which supposedly Snyder left incomplete.

2. $2,900 additional salary paid to Churchill by reason of an increase in his compensation after his interview by Orkin.

3. $40 additional salary to Bonkenberg for the same reason.

4. Rental of $1,050 and $2,291.63 paid or to be paid on two branch offices which were closed.

We find no evidence in the record to support the chancellor's conclusion that Snyder had agreed or was obligated to build the special advertising exhibit which is the project referred to. Further it was not demonstrated that the failure of the project (the ants concerned in the exhibit died) was caused by Snyder's absence. The second and third items relate to salary increases given to certain employees allegedly to keep them from leaving. These items are not proper elements of damage because the motive for the raise in pay is immaterial and it is only speculation to say that the employees would have left without the raise. In this instance there is only the statement of the employer to support the connection between the pay raises and the activity of the defendants. Under such circumstances no act of Orkin was the efficient, producing and proximate cause of Nolen increasing their compensation, the absence of which precludes the assessment of damages. See 7 F.L.P., Damages § 9; 9 Fla.Jur., Damages, § 12.

It therefore appears that as to these items there is not sufficient evidence to establish the damages awarded. As to the rentals paid or to be paid on the two branch offices no error is made to appear. We hold...