Asgrow-Kilgore Co. v. Mulford Hickerson Corp.

• Decision Date: 02 August 1974
• Docket Number: Nos. 44,501,44,513,ASGROW-KILGORE,s. 44,501
• Citation: 301 So.2d 441
• Parties: COMPANY, a corporation, Petitioner, v. MULFORD HICKERSON CORPORATION, a Florida corporation, and Southeastern Ag Helicopters, Inc., a corporation, Respondents. SOUTHEASTERN AG HELICOPTERS, INC., a corporation, Petitioner, v. MULFORD HICKERSON CORPORATION, a Florida corporation, and Asgrow-Kilgore Company, a corporation, Respondents.
• Court: Florida Supreme Court

Page 441

301 So.2d 441

ASGROW-KILGORE COMPANY, a corporation, Petitioner, v. MULFORD HICKERSON CORPORATION, a Florida corporation, and Southeastern Ag Helicopters, Inc., a corporation, Respondents.

SOUTHEASTERN AG HELICOPTERS, INC., a corporation, Petitioner, v. MULFORD HICKERSON CORPORATION, a Florida corporation, and Asgrow-Kilgore Company, a corporation, Respondents.

Nos. 44,501, 44,513.

Supreme Court of Florida.

Aug. 2, 1974.

Rehearing Denied Oct. 31, 1974.

Edna L. Caruso of Howell, Kirby, Montgomery, Di'Aiuto, Dean & Hallowes, West Palm Beach, for Asgrow-Kilgore Co.

John L. Sewell and Richard A. Simon of Gurney, Gurney & Handley, Orlando, for Southeastern Ag Helicopters, Inc., as petitioners.

Charles T. Wells of Maguire, Voorhis & Wells, Orlando, for respondents.

DEKLE, Justice.

Before us are questions on proximate cause and damages, conflict appearing between the decision of the Fourth District Court of Appeal in the instant cause at 282 Petitioner Asgrow-Kilgore had prepared a herbicide spray containing a chemical known as 2, 4D, and Petitioner Southeastern Ag Helicopters had applied the spray in the canals of the Zellwood Drainage District; Respondent Mulford, a commercial grower of ornamental plants, brought suit against petitioners asserting that their negligent preparation and application of this spray resulted in damage to respondent's caladiums and a poor crop yield. The trial court found as follows:

                So.2d 19 (1973) and the cases of Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla.1972); First Atlantic National Bank v. Cobbett, 82 So.2d 870 (Fla.1955); In re Baldridge's Estate, 74 So.2d 658 (Fla.1954); Nixon Const.  Co. v. Dover, 218 So.2d 458 (Fla.App.1st 1969); and In re Estate of Brown, 201 So.2d 616 (Fla.App.4th 1967).  1  In pertinent part, these cases stand for the proposition that an appellate court must not substitute its judgment of the facts for that of the trier of fact if the latter is supported by competent, substantial evidence.  The conflict arises in that the majority opinion of the Fourth District Court of Appeal has substituted its opinion of the facts for that of the trial court
                

'1. The court finds, from the greater weight of the evidence, that Defendant ASGROW KILGORE COMPANY was not negligent in the preparation of the Herbicide spray formula, but that said Defendant had sufficient control and supervision of Defendant SOUTHEASTERN AG HELICOPTER, INC. to be equally responsible to Plaintiff for any negligence of Defendant SOUTHEASTERN AG HELICOPTER, INC. in the application of the Herbicide spray.

'2. The court finds, from the greater weight of the evidence, that the Herbicide spray containing 2, 4D prepared by ASGROW KILGORE COMPANY and applied by Defendant SOUTHEASTERN AG HELICOPTER, INC. Came into contact with some of Plaintiff's caladium plants. The court further finds, from the greater weight of the evidence, that this Contact (not the 'damage') was A result of the negligent application of that spray by Defendant SOUTHEASTERN AG HELICOPTER, INC.

'3. The court finds, however, that Plaintiff failed to establish, by the greater weight of the evidence, That the negligence of Defendant SOUTHEASTERN AG HELICOPTER, INC. Was the proximate cause of the alleged damage to the caladium tuber crop complained of by Plaintiff.

'Although not necessary to a final determination of this cause, the court makes the following findings:

'(a) That Plaintiff failed to establish, by the greater weight of the evidence, The nature and extent of the damage to the caladium tuber (bulb) crop by reason of the 2, 4D formula coming in contact with some of the caladium plants, and

'(b) That Plaintiff also failed to establish, by the greater weight of the evidence, The amount of the money damages suffered by Plaintiff.

'The evidence as to the nature and extent of the damage to the tuber crop and the amount of the money damages suffered by Plaintiff, was, for the most part, speculative in nature.' (emphasis and brackets ours)

On appeal, the Fourth District Court of Appeal reversed. That opinion stated at 282 So.2d 22:

'The judgment reference that plaintiff failed to establish that the negligence was the proximate cause of the damage, when read in pari materia, can only mean--not that there was not damage--but that the evidence as to it was uncertain and not capable of ascertainment in the opinion of the trial judge.'

Interpreting the trial court's reference to proximate cause, the district court stated:

'Thus, he ruled that the plaintiff failed to prove a causal relationship between the application of the herbicide to the plants and the diminished yield in terms of dollars.'

The gist of the majority opinion of the Fourth District seems to be that the trial court's express finding of a lack of sufficient proof of a causal relationship really stemmed from the subsequent additional 'not necessary' finding in the judgment that 'the nature and extent of the damage' was also not established by the plaintiff by the greater weight of the evidence and 'was, for the most part, speculative in nature.' We do not read the trial court's order this way, nor is it a fair inference of the trial court's reasoning to be attached to the additional finding regarding damages.

PROXIMATE CAUSE

The district court interpreted the trial court's order as recognizing the defendant's negligence, Ergo, liability, but as denying recovery on the basis of an improper and overly-strict application of the law as to damages. Judge Mager in an able dissent stated that the majority erroneously substituted their judgment for that of the trier of fact, in that the trial court had expressly stated that plaintiff had failed to establish that defendant's negligence was the proximate cause of the alleged damage; he noted conflicting evidence as to whether the spray was the material and controlling factor in causing the decreased yield. We must agree with Judge Mager.

The question is whether the DCA did indeed substitute its finding of fact as to proximate causation for that of the trial court or whether, as respondent contends, the DCA correctly interpreted the trial court's order as finding that the petitioner's negligence gave rise to liability, but that recovery was denied due to a failure to prove the extent to which the negligence caused damage to respondents. The language of the trial court order most crucial to a correct resolution of this question is found in paragraph 3 of the order, quoted above:

'3. The court finds, however, the Plaintiff failed to establish, by the greater weight of the evidence, that the negligence of Defendant SOUTHEASTERN AG HELICOPTER, INC. was the proximate cause of the alleged damage to the caladium tuber crop complained of by Plaintiff.'

Then followed what the trial court labeled as 'not necessary,' further failures in plaintiff's proofs as to the 'nature and extent of the damage.' If by this language the trial court intended to convey the idea that the negligent application of the spray caused it to come into contact with the caladiums, but that this contact did not proximately cause any damage (so that the reduced yield was entirely due to other factors for which the defendants were not responsible), then the district court opinion conflicts with the cases cited above; on the other hand, if the trial court's language is that the plaintiff's failure was only its failure to prove satisfactorily the Extent to which this contact caused the damage to the crop, the reduced yield being at least partly due to defendant's negligence ('a' proximate or 'legal' cause ²) and perhaps partly due to other sources, then the DCA did not improperly substitute its own fact findings, no conflict exists, and we must discharge the writ.' 'A' material contributing cause will impose liability. ³

In attempting to determine which of the alternative interpretations should be ascribed There is testimony to the effect that the spray adversely affected the crop (and hence proximately caused some damage) BUT there is also testimony that the crop was a poor one even before the spraying occurred (supporting an inference that the reduction from the expected crop yield was due to other sources beyond the defendants' control, and that all damage pre-existed the point at which the pesticide first came into contact with the plants). Thus, there is competent evidence from the record before us supporting the trial court order as a proper one (albeit there was also evidence that would have supported a contrary verdict). Classically, then, an appellate court may not indulge the prerogative of its own 'finding' contrary to that of the trier of fact.

to the trial court's order, we have thoroughly reviewed the record before us. The testimony becomes available for our determination consistent with Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965), because conflict first appears from the opinion and judgment below (record proper).

Turning to the language of the order in question, it points out that plaintiff failed to establish by the greater weight of the evidence that defendant's negligence 'was The proximate cause of the alleged damage' (emphasis ours) to the crop. It is contended that this language, in connection with the other express findings and uncontradicted testimony, shows that the trial court found that the spray came into contact with the plants through defendant's negligence, that the spray was harmful to this type of plant, that it caused Some damage to the plants, but...