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

Decision Date07 March 1967
Docket NumberNo. 22721.,22721.
Citation370 F.2d 829
PartiesWM. G. ROE & COMPANY, Appellant, v. ARMOUR & COMPANY, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

J. A. McClain, Jr., Tampa, Fla., J. Hal Connor and Summerlin & Connor, Winter Haven, Fla., and McClain, Thompson, Turbiville, White & Davis, Tampa, Fla., for appellant.

Wm. Reece Smith, Jr., Carlton, Fields, Ward and Emmanuel, Smith & Cutler, Tampa, Fla., for appellee.

Before GEWIN and GOLDBERG, Circuit Judges, and SPEARS, District Judge.

GEWIN, Circuit Judge.

In this diversity case the appellant, William G. Roe & Company (Roe), sued Armour & Company (Armour) claiming that the emission of fluorine gas from the phosphate plant complex of Armour resulted in decreased production of its citrus fruit crop during the year 1963-64 in Roe's nearby orange grove. Armour contended that the damage resulted from a severe freeze which occurred during December 1962. The grove contained approximately 270 acres. The plaintiff sought to protect only 150 acres (approximate) from the freeze, and its evidence was limited to production losses claimed with respect to this protected acreage. The district court rendered judgment in favor of Armour.

The case was tried without a jury and the trial court entered findings of fact and conclusions of law. The finding material to our consideration on this appeal is Finding of Fact No. 15 which reads as follows:

"15 That the credible evidence in this case 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."

From our study of the record and the issues presented to the trial court, we are unable to ascertain whether the trial court, in finding that he could not conclude that the grove was "materially affected" by the fluorine gas, found or intended to find that the emission of the fluorine gas was a present contributing proximate cause, or whether the damage to the crop was solely the result of the freeze. In other findings the trial court concluded that the emissions from Armour's complex periodically increased the fluorine content in the ambient air in and about Roe's grove, and that there were periodic and variable increases in the fluorine content of the leaves on the trees in Roe's grove as a result of the emissions. It also found, however, that the chlorosis and necrosis of the leaves are symptoms and conditions consistent with and may result from both freeze damage or fluorine in addition to other causes. Further, the court found that the grove suffered substantial damage from the freeze of December 1962.

Under Florida law, when there is a determination that two concurrent causes result in damage, one of which was an act of the defendant and one an act of God, vis major, the burden is on 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. In that case the Supreme Court of Florida stated the rule as follows:

"The defense of vis major may be successfully interposed in an action for
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3 cases
  • Wm. G. Roe & Company v. Armour & Company
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 25, 1969
    ...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......
  • Davidson v. Gardner
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 7, 1967
    ... ... Lynch, the company doctor of the corporation in whose employ appellee was injured, in 1956, immediately after the ... ...
  • Asgrow-Kilgore Co. v. Mulford Hickerson Corp.
    • United States
    • Florida Supreme Court
    • August 2, 1974
    ...with that proof which is most favorable to the upholding of the order. Much reliance is placed on the decision in Wm. G. Roe & Co. v. Armour & Co., 370 F.2d 829 (5th Cir. 1967), in which the federal court applying Florida law to a fruit crop damage situation stated, 8 'if the defendant's ne......

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