Kilgore Groves, Inc. v. Mayo

• Decision Date: 08 March 1939
• Citation: 136 Fla. 615,187 So. 256
• Parties: KILGORE GROVES, Inc. v. MAYO, Com'r of Agriculture.
• Court: Florida Supreme Court

187 So. 256

136 Fla. 615

KILGORE GROVES, Inc. v. MAYO, Com'r of Agriculture.

Florida Supreme Court

March 8, 1939

En Banc.

Suit by Kilgore Groves, Incorporated, against Nathan Mayo, as Commissioner of Agriculture for the State of Florida, to restrain the defendant from confiscating oranges. From orders dissolving a temporary injunction and dismissing the complaint, the complainant appeals.

Order of dissolution affirmed and the order of dismissal reversed with directions.

BUFORD and BROWN, JJ., dissenting in part. Appeal from Circuit Court, Pinellas County; H. L. Sebring, judge.

COUNSEL

C. E Ware and J. Locke Kelly, both of Clearwater, Ben Krentzman W. B. Dickenson, Sr., of Tampa, and S. Whitehurst's Sons of Brooksville, for appellant.

George Couper Gibbs, Atty. Gen., H. E. Carter, Asst. Atty. Gen., and Mabry Reaves, Carlton & White and Zewadski & Pierce, all of Tampa, for appellee.

OPINION

THOMAS Justice.

The complainant exhibited its bill of complaint against the Commissioner of Agriculture, alleging in substance that the latter, through his representatives, had seized citrus fruit of the former because of the presence in the fruit of arsenic contrary to the provisions of certain laws set out in the pleading.

In the bill it is denied that any law has been violated, and the method used by defendant's chemist in his search for arsenic content is challenged in these words:

'* * * Plaintiff verily believes that such an analysis was made of the rind or peel of the samples taken from said 25 boxes of oranges and that said chemical analysis does not prove that said oranges contain arsenic sprayed thereon in violation of the Arsenical Spray Law of Florida [Acts 1927, c. 11844, as amended, Acts 1929, c. 14485, section 3239, C.G.L.1927, Perm.Supp. vol. 3].'

Particular reference is made to an actual seizure of twenty-five boxes of oranges and the anticipated destruction of the remainder of the corp.

The relief prayed is injunction.

A temporary writ was issued by the court without notice, February twenty-second, and dissolved five days later when the bill was, by the same order, dismissed. From this decree appeal was taken.

It is attempted by appellant to secure in this appeal an interpretation of the law regulating the confiscation of fruit found to contain arsenic, however, we cannot, in the present state of the pleadings, adjudicate the propositions presented.

The affidavit attached to the bill of complaint was signed by the president and general manager of complainant corporation, who stated therein:

'That he has read the foregoing Bill of Complaint and that the matters and facts set forth are true except those facts which are set forth on information and belief and those he believes to be true.'

The verification, in order to form a foundation, for a temporary injunctive order, must be direct and positive, and if any material averment is stated on information and belief there mst be attached the affidavit of the person from whom the information was obtained. See Trust Co. of Florida v. Crider, 102 Fla. 593, 136 So. 434, citing Godwin v. Phifer, 51 Fla. 441, 41 So. 597, and Drew Lumber Co. v. Union Inv. Co., 66 Fla. 382, 63 So. 836, where is found the following language:

'The bill as originally filed was defectively verified also in that it was verified on information and belief without any accompanying affidavit from the source of such information, if any, as to the truth thereof.' 66 Fla. text 403, 63 So. text 842.

Eliminating from the pleading the conclusions and statements given on information and belief, we feel that it is not of sufficient strength to support the injunction issued upon it.

The restraining order was granted without notice to the defendant, the only relevant part of the bill giving excuse for this failure being the statement:

'That owing to the above and foregoing facts and emment danger of irreparable loss to Plaintiff it is impractical and impossible for this Plaintiff to serve a reasonable legal notice upon said Defendant of this application for temporary restraining order and this Plaintiff has reason to believe and believing thereupon alleges; that long before the expiration of the time for serving of a reasonable legal notice of this application shall expire the said Defendant will have condemned and destroyed the aforesaid 25 boxes of citrus fruit to the irreparable damage of this Plaintiff.' (Italics are supplied.)

It will be noted that the anticipated result of notice was the condemnation and destruction of 'the * * * 25 boxes' and...