Griffith v. Hulion

• Decision Date: 23 November 1925
• Citation: 90 Fla. 582,107 So. 354
• Parties: GRIFFITH et al. v. HULION.
• Court: Florida Supreme Court

107 So. 354

90 Fla. 582

GRIFFITH et al. v. HULION.

Florida Supreme Court, Division B.

November 23, 1925

Suit by E. Hulion against F. E. Griffith and others to foreclose a lien. Decree against defendant C. D. Frink pro confesso. From the decree in favor of plaintiff, defendants, excepting defendant Frink, appeal.

Reversed.

Syllabus by the Court

SYLLABUS

'Woods rider,' or overseer, for private turpentine operator held not entitled to lien, as employe of 'merchant,' on turpentine and resin, though employer ran small commissary in connection with business; 'woods rider' (Rev. Gen St. 1920, § 3505). Under section 3505 of the Revised General Statutes of Florida 1920, providing a lien in favor of employés of 'merchants, transportation companies and other corporations,' a 'Woods rider,' or overseer of the work in the woods, for a private person, who was a turpentine operator, cannot, on the theory that such operator was a merchant, claim a lien on the turpentine and resin produced on the place for his services as such woods rider merely because the turpentine operator ran a small commissary in connection with his business which the woods rider looked after occasionally when the operator was away.

Lien statute held not to conflict with constitutional provision for liens of mechanics and laborers (Rev. Gen. St. 1920, § 3505, as amended by Laws 1921, c. 8474; Const. art. 16, § 22). Section 3505, as amended by chapter 8474 of the Laws of 1921, is not in conflict with section 22 of article 16 of the Constitution.

Agricultural lien statute held inapplicable to turpentine industry (Rev Gen . St. 1920, § 3506). Section 3506 of the Revised General Statutes of 1920, which provides a lien 'in favor of any person performing any labor in, or managing or overseeing the cultivation or harvesting of crops, upon the crops cultivated or harvested,' was enacted for the benefit of agricultural laborers, their managers, or overseers, and cannot be construed as embracing persons engaged in the turpentine industry.

Mortgage on turpentine trees, recorded before services of turpentine woods rider began, held to have priority over lien of such woods rider. Where a mortgage covers the trees, and therefore the sap in the trees, before it is severed therefrom by artificial means and caught in boxes in the form of crude, or 'dip,' turpentine, and also covers the same after it has been so changed into the form of personal property, and distilled into spirits of turpentine and resin, and such mortgage was executed by the owner and recorded before the services of a turpentine woods rider, or overseer, for such owner began, the mortgage had priority over the lien of such woods rider on such spirits and resin, although made out of the crude turpentine on which his services had been performed; the statute providing that his lien should be prior in dignity only to all others 'accruing thereafter.'

Appeal from Circuit Court, Holmes County; D. J. Jones, Judge.

COUNSEL

Watson & Pasco, of Pensacola, for appellants.

James N. Daniel, of Chipley, and C. R. Mathis, of Bonifay, for appellee.

OPINION

BROWN J.

Appellee, Hulion, exhibited his bill for the enforcement by foreclosure on certain real and personal property of a lien claimed by him for certain work done by him as a 'woods rider' for defendant Frink on a turpentine place formerly belonging to Frink and which had been sold and conveyed by the latter to defendants Griffith and Smith subject to a mortgage claimed to have been executed by Frink to the West Florida Naval Stores Company prior to Hulion's employment. The purchasers, Griffith and Smith, the vendor, Frink, and the said mortgagee, Naval Stores Company, were all made parties defendant. Defendant Frink suffered a decree pro confesso to be entered against, him, but the other defendants filed a joint answer, embracing a demurrer to the bill, admitting the execution and existence of the mortgage, and setting up, among other things, that, at the time of the transfer by Frink to Griffith and Smith, Frink was due the Naval Stores Company a large amount on said mortgage, which had duly been filed for record some length of time before Hulion's employment; that said mortgaged property was not worth anything in excess of the mortgage debt; and that said mortgage had priority over any claim or lien that Hulion may have had on the property, and expressly denied that Hulion had any lien.

The court, on final hearing on pleadings and proof, rendered a decree in favor of the complainant, ascertaining the amount of the indebtedness due him, and allowing him a 10 per cent. attorney's fee, as prayed in the bill, and decreeing that complainant had a first lien securing said indebtedness on a part only of the property described in the bill, superior in dignity to any lien held by any of the defendants, and directing foreclosure sale of said property, to wit: 20 barrels of spirits of turpentine, 60 barrels of resin, 6 barrels of crude oil, and all the scrape which, at the time of the writ of the attachment, was upon the pine trees upon the described lands so sold by Frank. From this decree the defendants, with the exception of Frink, took this appeal.

As to the nature of his work, appellee alleges in his bill as follows:

'That the character of work which your complainant was employed to perform under said contract was to ride the woods and look after and superintend the chipping of trees and the dipping of the gum and getting same to the still, to have general superintendence of the hands in the woods and those in charge of the hauling of the gum to the still, and keeping the time of the other employés in connection with the still operations, and to look after the commissary.'

It appears, therefore, that Hulion's services did not embrace the distillery work, but ended when the crude turpentine was hauled to the still.

(1) Appellee claimed a lien on said property for such services from November 11, 1920, to July 11, 1921, the date of the sale of the place by Frink, under sections 3505 (amended by chapter 8474 of the Acts of 1921, p. 194) and 3506, Rev. Gen. Stats. of Florida 1920.

These sections are among a number of sections prescribing liens in favor of certain named classes of persons, preceded by the general statement in section 3502:

'Liens prior in dignity to all others accruing thereafter shall exist in favor of the following persons, upon the following described personal property, under the circumstances hereinafter mentioned, to wit.'

And section 3505, before amendment, read as follows:

'Sec. 3505. For Labor as Bookkeeper, Clerk, etc.--In favor of bookkeepers, clerks, agents, porters and other employés of merchants and transportation companies and other corporations; upon the stock, fixtures and other property of such merchants, companies or corporations.'

Strictly speaking, Frink was neither a merchant, a transportation company, nor a corporation. He was operating a turpentine business, and in connection therewith ran a small commissary. If, giving this section a very liberal construction, it be held that the operation of the commissary made Frink a merchant within the meaning of the statute as to that particular department of his business, the evidence showed that Hulion's services in connecton wiht the commissary were so very occasional as to be almost negligible, and it would be practically impossible on this record to apportion what amount of services and what compensation, or lien, he would have been entitled to on that score. This statute would not give Hulion a lien for his services as 'woods rider' on Frink's turpentine place, which was his real employment and occupation, merely because Frink also operated a small commissary which Hulion looked after occasionally when Frink happened to be away. The law does not favor such indirecton. Warburton v. Coumbe, 15 So. 769, 34 Fla. 212. The case of First National Bank v. Kirkby, 32 So. 881, 43 Fla. 376, is not in point here, because that case dealt with employés of a corporation, as to which the statute applied without regard to the character of business engaged in.

(2) But we are of the opinion that the terms of the amendment to section 3505 of June 14, 1921, which are quite comprehensive in their scope are broad enough to give appellee a lien for services rendered between the effective date of the amendatory act, June 14, 1921, to the time of the termination of his employment on July 11, 1921, a period of approximately four weeks, for services performed upon the classes of personal property described in the amendatory act, and which appear to embrace the property covered by the decree, with the exception of the scrape hereafter mentioned; it having been shown by the evidence that Hulion's services pertained to the production of such personal property. The amendatory act reads:

'Sec. 3505. For Labor as Bookkeeper, Clerk, etc.--In favor of persons performing labor or services for any other person, firm, or corporation, upon the personal property of the latter upon which the labor or services is performed, or which is used in business, occupations, or employment in which the labor or services is performed.'

While Hulion's services were in the nature of those of foreman or overseer of the laborers who actually did the work of chipping the trees, preparing the boxes, dipping the gum from the boxes, etc., under his immediate superintendence, the statute covers 'services,' as well as labor, upon the personal property described in the act, and his work was so closely related to the performance of the labor that it became as it were a part of the work itself, and constituted 'services' upon such personal property within the meaning of the statute. Palm Beach Bank & Trust Co. v....