Garrett v. American Fruit Growers, Inc.

• Decision Date: 10 June 1938
• Citation: 186 So. 269,135 Fla. 398
• Parties: GARRETT v. AMERICAN FRUIT GROWERS, Inc.
• Court: Florida Supreme Court

186 So. 269

135 Fla. 398

GARRETT v. AMERICAN FRUIT GROWERS, Inc.

Florida Supreme Court

June 10, 1938

Rehearing Denied Oct. 14, 1938.

En Banc.

Error to Circuit Court, Polk County; W. J. Barker, Judge.

Action in trover and conversion and trespass de bonis asportatis by G. P. Garrett against the American Fruit Growers Incorporated, for damages caused by defendant's premature removal of some oranges and delay in removing others from plaintiff's trees in alleged violation of a contract to pick, remove, and sell fruit. Judgment for defendant, and plaintiff brings error.

Reversed.

BROWN and WHITFIELD, JJ., dissenting.

On Rehearing.

COUNSEL

Marshall Edwards, of Bartow, and George Palmer Garrett, of Orlando, for plaintiff in error.

Maguire & Voorhis, of Orlando, for defendant in error.

OPINION

PER CURIAM.

In this case the subjoined opinion of Mr. Chief Justice ELLIS was originally prepared as a dissenting opinion, but in the course of the Court's consideration of the case that opinion has become the majority and controlling opinion in the case, and the opinion of Mr. Justice BROWN following has become the dissenting and minority opinion.

DISSENTING

ELLIS Chief Justice.

I am unable to agree with the decision made in this case by the other members of the Court, nor am I able to agree with the opinion and argument by which the decision is reached.

To my mind this case presents a very fair illustration of the futility of attempting an accurate decision of a controversy in the courts of law without observing the rules of pleading which are designed for the purpose of presenting definitely the material question of fact upon which the controversy between the parties should turn.

There is a theory concerning the judicial determination of controversies which if not carefully examined and as definitely opposed may eventually destroy the function of pleading. That theory is that the judge to whom application is made for the redress of a wrong should, after examining every detail of the case submitted to him, call upon his fund of experience, wisdom and judicial conscience of which under such theory he supposes himself to be the sole repository and by the aid of such special qualities render justice between the parties.

Such a theory will eventually result in depositing in the court a collection of paper writings and documents in the from of a record, and without accurate presentation of the question or questions in the controversy, to be determined by the court according to its conception of what in many instances it is pleased to call substantial justice. That term is incapable of definition but the judges who undertake to administer it assume to be the sole possessors of all the knowledge of the elements which constitute it.

Substantial justice, if it means an accurate judicial determination of a legal controversy between capable persons, is best attained by following rules which are the outgrowth of centuries of experience and which are designed to present with accuracy the precise point in controversy between the parties litigant. Without such compass the uncharted sea of substantial justice cannot be successfully navigated, because as there are neither legal nor moral standards by which to measure the particular degree of such justice to be applied and which finds its authority only in the conscience of the individual judge, the parties litigant more frequently than otherwise find themselves in situations which they did not contemplate and neither party understanding the means by which he arrived.

The question which is presented in this case is one of pleading and the issue sought to be presented must be determined by the pleadings which were deemed to be settled at the time of the trial. The parties to the controversy have a right to submit for determination by the jury what issues of fact are involved which are determinative of the right upon which one of the parties insists and which is denied by the other.

Usually the right which is insisted upon by the plaintiff depends upon the existence of certain facts, the defendant denying such right is brought by the means of correct pleading either to the admission of such facts upon which the plaintiff's right depends or to the denial of the existence of such facts which if not established would defeat the plaintiff's action.

In order therefore that the case which was submitted to the trial court and which comes here upon writ of error to the judgment may be better understood, it would be well to describe the situation out of which this controversy arose.

In February, 1935, Mr. Garrett, the plaintiff in the trial court and the plaintiff in error here, owned an orange and grapefruit grove of twenty acres in the neighborhood of Haines City, Florida. The trees were bearing trees and they were quite heavy with fruit nearly ready for the market. The variety of oranges was known as the Valencia, which when ripe and ready for the market are large heavy with juice and delicious in flavor, and generally when in good condition command a better price in the market than other varieties not so generally favored.

In the early part of February of that year, the weather for a few days became unusually cold in the area in which Mr. Garrett's citrus grove was located. In some portions of the area the temperature dropped to freezing and in many cases the owners of orange groves considered that a comparatively large percentage of the fruit on the trees was detrimentally affected by the cold which continued in some places in the area for many hours.

Particularly in the lower levels of the area where the cold air remained longer than upon the higher levels it was deemed that the fruit would be more seriously affected and that if it was to be disposed of at all the fruit in such lower places and that which hung farthest from the center of the tree area should be removed first, as that the fruit which grew closer to the center of the tree area, and thus protected by the foliage of the trees, would be the least affected, if indeed it had not been entirely protected from the cold wave which swept over that section of the State.

In this situation Mr. Garrett made a contract with the American Fruit Growers, Inc., the defendant below, in this case, to pick and remove the fruit from his grove and sell the same for his account to the best advantage. Mr. Garrett contends that the most vital and important feature of the contract was the manner in which it was to be executed by the corporation, Mr. Garrett contending that it was the duty of the corporation under the contract to require its agents to remove first the fruit in the lower levels of his grove and that which hung from the outer area of the trees in order that the fruit which was most likely to have been affected by the cold should be removed first and placed upon the market before the deteriorating processes, if any, started by the cold could totally destroy that fruit, it being conceded by the parties to the agreement that there was then a market for such fruit in which it could be sold at a price and thus prevent a total loss to a definite percentage of the crop, but, according to Mr. Garrett's contention, the defendant, instead of executing the contract in that manner, sent its agent, Mr. McCord, upon the grove on February 11th and 12th and caused to be 'spot picked' the Valencia oranges from the center areas of the trees where the oranges were least damaged, if at all, and left the fruit which had been more exposed to the cold, and consequently damaged thereby, to removal at a later date.

It is contended by Mr. Garrett that the defendant, which through its agents proceeded in that manner in the execution of the contract, committed a wrong and was guilty of a tort against Mr. Garrett. He claims that the result of that tort produced damage to him first in the premature removal of the choice fruit consisting of 561 field boxes of Valencia oranges, which would have brought a better price in the market if they had been allowed to remain upon the trees to a later date and thus become fully matured and in possession of their natural sweetness and flavor, and, secondly, the damage resulting to him by deferring the removal of those oranges which had been affected by the cold and which under the contract should have been immediately taken away and placed on the market, thus producing a total loss of a large part of the fruit crop which might have been avoided by the immediate picking of the crop and the placing of the same upon the market.

In this situation Mr. Garrett brought an action ex delicto against the American Fruit Growers, Incorporated. In the first two counts of the declaration he declared in trover and conversion according to the form prescribed by the statute. See sect. 4314, par. 26, C.G.L.1927. In the third and fourth counts of the declaration he declared in trespass de bonis asportatis.

The essential difference between those two causes of action consists in that in trespass de bonis asportatis a wrongful taking is charged, while in trover and conversion a conversion of the goods to the defendant's use is charged. The measure of damages in each case is the same, that is to say the value of the goods at the time and place of conversion in one instance, and the wrongful taking and removal in the other. See Archbold's Nisi Prius, p. 477.

The plea of not guilty is applicable in each action. In the case of conversion it denies the wrong and injury. In the case of trespass de bonis asportatis it denies wrongful taking of the property, that is to say the unlawful entry upon the land and the removal of the property alleged to have been removed. It was unnecessary in the third and fourth counts to give a...