Lee v. Hector Supply Co.

• Decision Date: 04 October 1938
• Citation: 133 Fla. 849,183 So. 489
• Parties: LEE v. HECTOR SUPPLY CO. et al.
• Court: Florida Supreme Court

183 So. 489

133 Fla. 849

LEE v. HECTOR SUPPLY CO. et al.

Florida Supreme Court

October 4, 1938

On rehearing.

Judgment affirmed in part and reversed in part and remanded for further action in accordance with prior opinion as modified.

For former opinion, see 182 So. 613. Appeal from Circuit Court, Leon County; J. B. Johnson, Judge.

COUNSEL

Cary D Landis, Atty. Gen., and H. E. Carter and W. P. Allen, Asst Attys. Gen., and J. Velma Keen and A. Frank O'Kelley Jr., both of Tallahassee, for appellants.

C. L Waller and B. A. Meginniss, both of Tallahassee, and Evans, Mershon & Sawyer and M. L. Mershon, all of Miami, and Herbert S. Sawyer and W. O. Mehrtens, both of Miami, for appellees.

C. J. Holland, of Miami, as amicus curiae.

OPINION

PER CURIAM.

Pursuant to the granting of rehearing, we have considered additional brief filed herein and have also heard arguments by able counsel for the respective parties.

Since our former opinion was filed, there has been brought to our attention the case of McCarroll, Commissioner v. Scott Paper Box Co. et al., 195 Ark. 1105, 115 S.W.2d 839. That case is in harmony with the view expressed by Mr Justice Buford and concurred in by Mr. Justice Terrell in the opinion filed July 6th, 1938, 182 So. 613, 617, saying:

'The shippers of fruit and vegetables who purchase from plaintiffs the materials with which to crate and ship the produce of the farm are not the ultimate consumers of the individual items purchased from plaintiff's store or stores, because the fruit and vegetables, when ready for shipment, are encased in unified assembled container or in the separate items of tangible personal property purchased from plaintiff's store or stores as such. The items purchased are not sold by plaintiffs' customers to others as such separate items, but those items are assembled as a complete container and used for the packing and shipping of farm produce, as a convenient method of transporting the produce, and the producer sells the container along with the produce and could not sell the produce without the container. The assembled containers, as such, have no intrinsic worth to the purchaser of the fruit or vegetables, but they do have intrinsic worth to the packer of such produce, because by employment such method of transporting his produce to the market, it saves him time, saves him spoilation of produce due to unnecessary bruising in transit, gives him an opportunity to advertise his particular brands, and establish a trade by having the public become conscious of it.'

And with the further view so expressed:

'How many of the ultimate consumers of the fruits and vegetables would purchase the assembled crate or hamper, with its labels pasted on and the paper wraps intact, if the crate or hamper contained no fruit or vegetables, but was empty? The answer obviously would be that no one would make such a purchase. Therefore, it is an essential implement and is purchased for resale as definitely as if every transaction embraced a sale of the contents and a separate sale of the container. The title to both passes. Just as liquids must be kept in some sort of containing vessel if they are to be available for use, so fruit and vegetables when shipped in considerable quantities, because of the convenience and saving to the shipper, and packed in a container of some kind; and the shipper who purchases the materials with which to construct these containers purchases them for resale within the meaning of that term as used in the Chain Store Act, Chapter 16848, Acts of 1935.

'When a customer comes into one of the plaintiff's stores and purchases paper wraps, wooden shipping containers, paste for the application of labels, box strappings, crate materials and hampers, for the purpose of using the materials purchased for packing and shipping fruit and vegetables, by wrapping the fruit or vegetables with the paper wraps, placing the wrapped fruit or vegetables in the assembled wooden shipping containers, crates or hampers, applying the paste to make secure on the outside of the container the labels showing the variety, grade and brand of fruit or vegetables to be found in the container, and attaching the box strappings to securely fasten the container so that it will carry the...