Wm. G. Roe & Company v. Armour & Company

• Decision Date: 25 August 1969
• Docket Number: No. 26208.,26208.
• Citation: 414 F.2d 862
• Parties: WM. G. ROE & COMPANY, Appellant, v. ARMOUR & COMPANY, Appellee. ARMOUR & COMPANY, Appellant, v. WM. G. ROE & COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 862 (1969)

WM. G. ROE & COMPANY, Appellant, v. ARMOUR & COMPANY, Appellee.

ARMOUR & COMPANY, Appellant, v. WM. G. ROE & COMPANY, Appellee.

No. 26208.

United States Court of Appeals Fifth Circuit.

July 15, 1969.

Rehearing Denied August 25, 1969.

J. Hal Connor, Winter Haven, Fla.; J. A. McClain, Jr., Tampa, Fla., Summerlin, Connor & Threadgill, Winter Haven, Fla., McClain & Turbiville, Tampa, Fla., for Wm. G. Roe & Co.

William Reece Smith, Jr., Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for Armour & Company.

Before THORNBERRY and DYER, Circuit Judges, and KEADY, District Judge.

THORNBERRY, Circuit Judge:

This Florida diversity case is before this Court for the second time. The suit originated in 1963 when William G. Roe & Company (Roe) sued Armour & Company (Armour) claiming that the emission of fluorine gas from Armour's phosphate plant resulted in the decreased production of the citrus crop in Roe's nearby orange grove during the 1963-1964 season. After a non-jury trial, the district court entered its findings of fact and conclusions of law and rendered judgment for defendant Armour. The district court found that emission of fluorine gas from Armour's plant caused "periodic, variable increases" in the fluorine content in the leaves of Roe's citrus trees. The court found that the leaves had developed a chlorotic and necrotic condition, which may have resulted from "freeze damage, nutritional or mineral deficiencies, disease or fluorine" and that the loss of newly grown leaves in the spring of 1963 contributed to the decreased harvest for the 1963-1964 citrus season. The court also found that plaintiff's grove suffered "substantial damage" from the freeze of December, 1962 despite plaintiff's protective efforts, and that the decreased harvest was consistent with the freeze damage.

On the first appeal, this Court questioned the meaning of Finding of Fact No. 15, which reads:

"15. That the credible evidence in this cause is insufficient to support the conclusion that the citrus production or yield of fruit from the plaintiff\'s grove for the citrus year 1963-64 was materially affected or reduced by the fluorine gas emitted from the industrial stacks at the defendant\'s phosphate plant."

This Court was unable to determine from that finding, "when considered with the Court's other findings of fact," whether the district court intended to find that the emission of fluorine from defendant's plant was a present contributing proximate cause of the reduced citrus yield or whether the freeze was the sole cause of the injury. Accordingly, the case was remanded to the district court "for a more specific finding on this question." Wm. G. Roe & Co. v. Armour Co., 5th Cir. 1967, 370 F.2d 829, 831. The district court was instructed to assess damages for plaintiff if it determined that fluorine was a proximate cause of the reduction in yield. In that event the burden would be upon the defendant "to prove the amount of damage caused by the vis major or the defendant must bear the entire loss in accordance with the rule laid down in Atlantic Coast Line R. Co. v. Hendry (1933) 112 Fla. 391, 150 So. 598." Id., 370 F.2d at 831. (Emphasis added).

On remand, the evidence on causation adduced at trial was reargued pursuant to the trial court's direction. No new evidence was presented. After reconsideration of the record, the district court entered amended findings of fact and conclusions of law. This time the court found: "That the fluorine gas emitted from the industrial stacks at the Defendant's phosphate plant was a present contributing proximate cause, which together with the 1962 freeze produced the reduction in yield suffered by the plaintiff for the citrus year 1963-64 in the protected area of plaintiff's groves." The court then determined the amount of plaintiff's loss caused by defendant rather than the freeze. It found that the normal yield should have been 63,900 boxes for the season and that the loss attributable to the freeze was equivalent to 50 per cent of a normal yield.¹ It found that approximately 18,800 boxes were harvested during the 1963-1964 season and that the yield loss suffered by plaintiff not attributable to freeze damage was 13,150 boxes of oranges. The court determined that the average market price for oranges for the 1963-64 season was $4.25 a box, calculated plaintiff's loss at $55,887.50, and entered judgment awarding damages to Roe in that amount.

Both parties appeal. Their contentions, in the order of discussion, are: that the district court on remand deviated from the mandate of this Court by making new findings on causation; that the district court erred in apportioning damages between the defendant's wrong and the freeze rather than imposing entire liability upon the defendant; that there was no demonstrable basis in the record for apportionment of damages; and that the district court improperly awarded damages to plaintiff on the basis of the market price without deducting the costs of production. We affirm.

I.

Upon the first appeal, this Court remanded the action to the district court "for a more specific finding" on the question of causation. Wm. G. Roe & Co. v. Armour & Co., supra 370 F.2d at 831. Armour contends that the mandate of this Court restricted the district court on remand to the clarification of its original findings and that the court deviated from the mandate by reconsidering the record and making new findings on causation. Statements made by the district judge during the proceedings on remand indicate that original Finding of Fact No. 15 was, or at least was intended to be, a finding that fluorine from Armour's plant was not a proximate cause of the loss. The district court thus clarified the meaning of its original finding, but reversed itself by finding for the first time that fluorine was a proximate cause of plaintiff's loss. The issue therefore is whether the district court had the authority, consistent with the mandate of this Court, to change its prior fact findings without receiving further evidence. The doctrine of "the law of the case," treated hereafter in connection with apportionment of damages (part II, infra) is inapplicable here. That doctrine relates solely to "the principles of law the court decided on the appeal," Fountainebleau Hotel Corp. v. Crossman, 5th Cir. 1961, 286 F.2d 926, 928 (emphasis added), see generally 1B Moore, Federal Practice ¶ 0.4041, whereas the present issue is whether the district court deviated from the mandate of this Court by reconsidering its prior fact findings and reversing them. See also, Anno., 19 A.L.R.2d 502.

Upon remand from an appellate court, the lower court is limited to carrying out the directions of the mandate; it "has no power of authority to deviate from the mandate," Briggs v. Pennsylvania R. Co., 1948, 334 U.S. 304, 306, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403, and "is without jurisdiction to vary or extend it." Britton v. Dowell, Inc., 10th Cir. 1957, 243 F.2d 434; see Bastian v. Erickson, 10th Cir. 1940, 114 F.2d 338, 341; Progress Development Corp. v. Mitchell, N.D.Ill.1963, 219 F.Supp. 156, 158. Armour argues that the case was remanded solely for clarification by the district court of the meaning of original Finding of Fact No. 15 on causation. It was not clear whether the court intended to find that fluorine, the 1962 freeze, or both, caused plaintiff's crop reduction. Consequently, this Court could not determine whether the district court rendered its original judgment under a misapprehension of the rule of Atlantic Coast Line R. Co. v. Hendry (1933), 112 Fla. 391, 150 So. 598. By remanding for more specific findings, rather than reversing the judgment below, this Court recognized, Armour contends, that the district court erred only if it originally found fluorine to be a proximate cause of plaintiff's loss. In that event, the district court was directed to make new findings of fact as to damages and to enter judgment for plaintiff pursuant to the Hendry rule. If, on the other hand, the district court originally intended to find that fluorine was not a proximate cause of the loss, no error was committed and the judgment for defendant was proper. That, it is argued, should have ended the matter; the district court was not directed by this Court and was not otherwise free to make new findings on proximate cause. The court, therefore, Armour contends, deviated from the mandate and the original judgment for defendant should be reinstated.

We disagree. Although, as Armour argues, the district court was not directed to reconsider its prior findings, it was nonetheless within the court's power on remand to find that it had been wrong the first time and reverse itself. As the Second Circuit stated in a similar case:

We think that, in the facts of this case, where the trial judge had by his own admission committed error, he could, without receiving any new evidence, correct that error when the matter was remanded to him for further consideration on just that point. It is not necessary for us to decide whether he would have such a power if we had specifically dealt with that matter on appeal. But in the absence of such circumstances we think it clear the District Court was free to correct its error.

Imperial Chemical Industries, Ltd. v. National Distillers and Chemical Corp., 2d Cir. 1965, 354 F.2d 459, 463, 19 A.L. R.3d 492; cf. 6 Moore, Federal Practice ¶ 54.082. Or, as a noted District Judge stated in a case following remand from the Court of Appeals:

I do not understand that any finding not adopted by the Circuit Court of Appeals either expressly or by necessary implication as a basis for its decision is irrevocable. * * * I see no reason why the findings may not be changed or modified, if, in the light of the entire record now before me, I should conclude that they are wrong or that, as stated, they did not correctly express what I meant to say.

William Goldman Theatres,...