Jackson Grain Co. v. Hoskins

• Decision Date: 25 May 1954
• Parties: JACKSON GRAIN CO. v. HOSKINS.
• Court: Florida Supreme Court

Page 306

75 So.2d 306

JACKSON GRAIN CO. v. HOSKINS.

Supreme Court of Florida, En Banc.

May 25, 1954.

On Rehearing Oct. 29, 1954.

Mabry, Reaves, Carlton, anderson, Fields & Ward, Tampa, for appellant.

Cooper & Cooper, Tampa, and Bryant & Martin, Lakeland, for appellee.

Tenney, Sherman, Bentley & Guthrie, S. Ashley Guthrie, George E. Howell, Chicago, Ill., and Green & Bryant, Ocala, for amici curiae.

THOMAS, Justice.

A trial of this controversy on its merits culminated in a verdict and a judgment for the farmer against the seedsman and this appeal followed.

The plaintiff tried to buy tomato seed from a local merchant, Stevenson Seed Store, but the merchant's supply was exhausted. To meet the plaintiff's requirements the merchant ordered from the defendant fifty pounds of seed and the defendant filled the order with seed which it had secured from Haven Seed Company of Santa Ana, California, which had obtained the seed from Adrian Seed Company of Adrian, Michigan. The seed was delivered to Jackson Grain Company in a fifty-pound bag carrying the tag of Haven Seed Company. Jackson Grain Company placed the seed in one hundred packages, each containing a half-pound and bearing the lot number of Jackson Grain Company and the name of the seed and these packages were forwarded to Stevanson Seed Store. Evidently the plaintiff received the very seed which originated with Adrian Seed Company. To this point we have purposely not recorded the name of the tomato seed because to do so would likely confuse the reader when examining our analysis of the pleadings as they existed at the beginning and conclusion of the trial.

The plaintiff sowed between 14 January and 2 February 1950, and harvested between 28 April and 22 May. After the crop had been gathered and all evidence of it had been eliminated from the field plaintiff first complained to Jackson Grain Company. Suit was instituted 12 October 1950. In the complaint it was charged that the seed was mislabeled as to variety, the plaintiff having ordered 'Grothen's New Red Globe tomato seed' and having received seed bearing that name, which were not 'Grothen's New Red Globe tomato seed.' As a consequence, according to the complaint, the plaintiff spent much money cultivating and bringing to maturity tomato plants which did not bear 'Grothen's New Red Globe tomatoes' but tomatoes of another variety unknown to him, and in a marketable quantity that was only a small fraction of the crop which would have been produced had the seed been those represented.

Then the complaint was amended 13 January 1951, to include an allegation that the packages bore no label or tag 'giving the name (or) kind and variety of seed' but the kind as named on each package was 'false, misleading, and untrue * * *.' These statements, of course, are entirely contradictory. Again the plaintiff amended, 19 March 1951, claiming the defendant negligently failed to deliver 'Grothen's New Red Globe' tomato seed and negligently delivered some other variety and negligently failed to comply with Chapter 578, Florida Statutes 1949 and F.S.A.

After many amendments, answers and motions had been filed, presented and considered the case was dismissed with prejudice. The judgment was reviewed by this Court and reversed. Hoskins v. Jackson Grain Co., Fla., 63 So.2d 514. The same day there was filed the opinion in Corneli Seed Co. v. Ferguson, Fla., 64 So.2d 162. Both of these decisions should be consulted in studying the points in the present case. In substance the court held in the latter case that despite disclaimer and non-warranty clauses the seedsman would be liable for a 'varietal variance' between seed ordered and seed received and planted-in that case Black Diamond watermelons and melons of another kind. In the former opinion, we held that when seed bearing a certain label are sold, and upon planting, yield a different 'kind or variety' the wholesaler is liable directly to the farmer for damages that are traceable to the mislabeling. We also held that where a penal statute requiring true labeling is violated negligence of the one who mislabeled is established as a matter of law.

When this cause was returned to the circuit court for trial, voluminous testimony was taken, presumably relevant to the issues defined by the pleadings we have quoted but, it should be noted that the amendments of 19 March 1951 relative to negligence of the defendant in placing in the packages seeds that differed from the label were eliminated from consideration of the jury and inasmuch as there is no cross assignment of error this aspect will hereafter be ignored.

At the close of his testimony the plaintiff was allowed to file an amendment to his complaint for the announced purpose of making that pleading conform to the proof. Substance of it was that he ordered 'Grotham's Globe' tomato seed and received 'Grothen's New Red Globe' which he thought were the same and which he planted 'for the purpose of growing Grothen's Globe tomatoes.' At first it would appear that the plaintiff was charging that the difference between 'Grotham's Globe' and 'Grothen's New Red Globe' proved his undoing, therefore that he had departed form the theory he had adopted when we settled the law of the case in the cited opinion. But when the amendment is considered with the remaining unamended parts of the complaint we reach a contrary view. There was evidently some confusion of the names 'Grotham's Globe' and 'Grothen's New Red Globe', however, it was the gist of the complaint that neither was produced but that on 'strong and healthy' vines were borne a quantity of tomatoes of an unknown variety so small as to be largely unmerchantable, and that as a consequence the yield was but 4469 boxes instead of 30,000 that would have been produced had there been no varietal difference between the seed represented and the seed that produced the crop.

After a careful examination of the record, we are convinced that the plaintiff was not guilty of any departure in the theory of his case when at the conclusion of his testimony he sought and obtained the permission of the court to amend his complaint.

The more we have studied and discussed the facts revealed by this record, the more impressed we are with the idea that the testimony of the witnesses for the parties relative to variety and husbandry was so sharply in conflict that it was utterly irreconcilable and that there was sufficient proof to have supported a verdict for either party. This was an ideal situation for application of the rule that the triers of fact should settle the matter and that this Court should not interfere with the result, if, of course, it was properly reached.

The trouble here, and the reason for not invoking the rule, is that the jury decided the matter in a manner we cannot sanction. The jury found that the plaintiff should recover in the sum of $53,500. Certainly to take that much money from one person and give it to another is a major operation.

When the jurors retired to enter upon their deliberations they had been charged by the court so fairly and thoroughly that neither party now challenges the charges. Once they were in their room, a curious procedure was adopted. Each wrote on a slip the amount he thought the plaintiff should recover, that is, all did except one, and he recorded either 'no' or 'O'. The five figures were added and then divided, not by six, but by five. Even so an error of one hundred dollars was committed. To be exact the figures set down by the individual jurors were $15,000, $40,000, $50,000, $75,000, and $87,000, while one juror wrote 'no'. When added the sum was $267,000. This amount was divided by five-evidently the juror who recorded no amount was no longer taken into account-and the erroneous quotient of $53.500 was placed in the verdict.

The implications of such rocedure, when the immense importance of the jury system and of the integrity of verdicts are borne in mind, are almost ominous. To begin, it would appear that the juror who used a 'zero' or 'no' indicated an inclination, if not a desire, to find for the defendant. If such ever became his conviction the unanimity necessary to validity of the verdict was lacking. On the other hand, if it be assumed that the jurors agreed in advance that the quotient would become the amount of the verdict then an error of eight thousand nine hundred dollars, not counting he error in division, was made because the divisor of 'five' was used instead of 'six'.

According to an affidavit of one of the attorneys for the defendant he became suspicious of the verdict immediately it was returned so he went into the jury room with a bailiff and they gathered the slips of paper the jury had obviously used. These were taken to the judge who placed them in an envelope which he sealed and retained until the hearing on the motion for new trial was held more than a month later.

Photostatic copies of the slips are now before us and they show the figures we have already quoted and the addition and division to which we have referred.

It is only fair to say that each of the jurors filed an affidavit that he did not agree in advance that the the quotient obtained by using the divisor '5' would be the amount of the verdict. The one who never set down any amount signed a second affidavit 'that after considerable discussion and consideration among themselves, the jurors agreed to award the plaintiff damages by agreeing to and adopting the following plan: That each of the jurors put on a piece of paper the amount he was willing...