Orr v. Avon Florida Citrus Corp.

• Decision Date: 27 November 1937
• Parties: ORR v. AVON FLORIDA CITRUS CORPORATION.
• Court: Florida Supreme Court

177 So. 612

130 Fla. 306

ORR v. AVON FLORIDA CITRUS CORPORATION.

Florida Supreme Court, Division A.

November 27, 1937

Rehearing Denied Jan. 5, 1938.

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

Action by Mrs. Eunice E. Orr, a widow, against the Avon Florida Citrus Corporation. To review an adverse judgment, plaintiff brings error.

Reversed.

COUNSEL George Palmer Garrett, of Orlando, for plaintiff in error.

G Edwin Walker, of Bartow, and T. A. McNicholas, of Avon Park for defendant in error.

OPINION

TERRELL Justice.

State road No. 8 in Highlands county runs north and south and about one mile north of Avon Park. It is intersected at approximately right angles by the Lake Isis road. About 9 o'clock in the morning of the 10th day of August, 1935 L. M. Orr, Sr., was driving south on state road No. 8 near its intersection with the Lake Isis road. He was driving a Chevrolet truck, and his little daughter Charlotte, seven years old, was riding beside him. Sam J. Pendleton, Jr., was at the same time and in the same vicinity driving north on state road No. 8 in a Ford V-8 pick up truck. As Pendleton approached the intersection of state road No. 8 and the Lake Isis road, A. V. Anderson, driving a Plymouth coupé over the Lake Isis road, drove onto or so near state road No. 8 that the front of his (Anderson's) car was struck by Pendleton's truck, knocking it northward and around into the ditch by the side of the road. Pendleton's truck veered diagonally to the opposite side of the road and struck Orr's truck about 150 or 200 feet from where it struck Anderson's car. Pendleton's truck bounded completely over Orr's truck, crushing the top of it severely, and landed in the road to the north of it. Orr was crushed to death in the collision of the two trucks, and Pendleton was thrown to the pavement and killed by the impact when his truck came to rest. Charlotte Orr and A. V. Anderson were not seriously injured.

Pursuant to section 7048, Compiled General Laws of 1927, Eunice E. Orr, the widow of L. M. Orr, brought this action against Avon Florida Citrus Corporation to recover damages for the loss of comfort, protection, and the society of her husband. The declaration was in one count, and is bottomed on the joint negligence of Pendleton and Anderson, the latter being at the time of the accident, so it is alleged, the agent and employee of defendant in the business of defendant and being then acting in the scope of his employment.

A multitude of pleas were interposed, but the cause went to trial on the following pleas: Payment, not guilty, contributory negligence on the part of Orr, and the denial of Anderson's agency of defendant or his employment in behalf of defendant at the time of the accident. At the conclusion of plaintiff's testimony, defendant moved for a directed verdict which the trial court announced his intention to grant. Plaintiff took a nonsuit with bill of exceptions as provided in section 4617, Compiled General Laws of 1927. Final judgment of nonsuit was entered, motion for new trial was denied, and the issue was brought to this court by writ of error.

We are confronted here with the single question of whether or not the trial judge committed error in taking the case from the jury and directing a verdict for the defendant. This question turns on that of whether or not there was any evidence of Anderson's negligence, his joint negligence with Pendleton, his agency of defendant, or the fact that he was acting within the scope of his agency at the time of the accident.

There is evidence which shows that the Avon-Florida Citrus Corporation owns about 7,000 acres of citrus groves, that A. V. Anderson planted the first tree, was one of the first founders of the company, and had been with it as manager or superintendent from its inception. At the time of the accident, he was seventy-five years old, had been relieved of active responsibility for the administration of the grove properties, but was a member of the board of directors for the purpose of forming a quorum, worked on the groves as his pleasure dictated, was subject to the call of the president of the company at any time, constantly gave advice and the weight of his judgment about the grove property, was considered a general supervisor of all the property with unrestricted duties, could order any work done on the groves that he considered necessary, for all of which he had been and was receiving a compensation of $200 per month. The evidence is in conflict as to whether the compensation was a pension or a salary. He was an experienced citrus grower and his advice was constantly sought as to the management of the property. The company paid his gas bill when he worked for it.

At the time of the accident, Anderson had just left the general office of the company where he had received some newspapers and was on his way to deliver them to some relatives of the president of the company who were staying at Lake Byrd Lodge in that vicinity. He was requested by the preisdent to bring back from the Lake Byrd Lodge some papers which pertained to the business of the company. Some of the evidence...