Asgrow-Kilgore Co. v. Mulford Hickerson Corp.

301 So. 2d 441
CourtSupreme Court of Florida
DecidedAugust 2, 1974
Docket44,501, 44,513
StatusPublished
Cited by14 cases

This text of 301 So. 2d 441 (Asgrow-Kilgore Co. v. Mulford Hickerson Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asgrow-Kilgore Co. v. Mulford Hickerson Corp., 301 So. 2d 441 (Fla. 1974).

Opinion

301 So.2d 441 (1974)

ASGROW-KILGORE COMPANY, a Corporation, Petitioner,
v.
MULFORD HICKERSON CORPORATION, a Florida Corporation, and Southeastern Ag Helicopters, Inc., a Corporation, Respondents.
SOUTHEASTERN AG HELICOPTERS, INC., a Corporation, Petitioner,
v.
MULFORD HICKERSON CORPORATION, a Florida Corporation, and Asgrow-Kilgore Company, a Corporation, Respondents.

Nos. 44,501, 44,513.

Supreme Court of Florida.

August 2, 1974.
Rehearing Denied October 31, 1974.

Edna L. Caruso of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for Asgrow-Kilgore Co.

John L. Sewell and Richard A. Simon of Gurney, Gurney & Handley, Orlando, for Southeastern Ag Helicopters, Inc., as petitioners.

Charles T. Wells of Maguire, Voorhis & Wells, Orlando, for respondents.

DEKLE, Justice.

Before us are questions on proximate cause and damages, conflict appearing between the decision of the Fourth District Court of Appeal in the instant cause at 282 So.2d 19 *442 (1973) and the cases of Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla. 1972); First Atlantic National Bank v. Cobbett, 82 So.2d 870 (Fla. 1955); In re Baldridge's Estate, 74 So.2d 658 (Fla. 1954); Nixon Const. Co. v. Dover, 218 So.2d 458 (Fla.App. 1st 1969); and In re Estate of Brown, 201 So.2d 616 (Fla.App. 4th 1967).[1] In pertinent part, these cases stand for the proposition that an appellate court must not substitute its judgment of the facts for that of the trier of fact if the latter is supported by competent, substantial evidence. The conflict arises in that the majority opinion of the Fourth District Court of Appeal has substituted its opinion of the facts for that of the trial court.

Petitioner Asgrow-Kilgore had prepared a herbicide spray containing a chemical known as 2, 4D, and Petitioner Southeastern Ag Helicopters had applied the spray in the canals of the Zellwood Drainage District; Respondent Mulford, a commercial grower of ornamental plants, brought suit against petitioners asserting that their negligent preparation and application of this spray resulted in damage to respondent's caladiums and a poor crop yield. The trial court found as follows:

"1. The court finds, from the greater weight of the evidence, that Defendant ASGROW KILGORE COMPANY was not negligent in the preparation of the Herbicide spray formula, but that said Defendant had sufficient control and supervision of Defendant SOUTHEASTERN AG HELICOPTER, INC. to be equally responsible to Plaintiff for any negligence of Defendant SOUTHEASTERN AG HELICOPTER, INC. in the application of the Herbicide spray.
"2. The court finds, from the greater weight of the evidence, that the Herbicide spray containing 2, 4D prepared by ASGROW KILGORE COMPANY and applied by Defendant SOUTHEASTERN AG HELICOPTER, INC. came into contact with some of Plaintiff's caladium plants. The court further finds, from the greater weight of the evidence, that this contact [not the "damage"] was a result of the negligent application of that spray by Defendant SOUTHEASTERN AG HELICOPTER, INC.
"3. The court finds, however, that Plaintiff failed to establish, by the greater weight of the evidence, that the negligence of Defendant SOUTHEASTERN AG HELICOPTER, INC. was the proximate cause of the alleged damage to the caladium tuber crop complained of by Plaintiff.
"Although not necessary to a final determination of this cause, the court makes the following findings:
"(a) That Plaintiff failed to establish, by the greater weight of the evidence, the nature and extent of the damage to the caladium tuber (bulb) crop by reason of the 2, 4D formula coming in contact with some of the caladium plants, and
"(b) That Plaintiff also failed to establish, by the greater weight of the evidence, the amount of the money damages suffered by Plaintiff.
"The evidence as to the nature and extent of the damage to the tuber crop and the amount of the money damages suffered by Plaintiff, was, for the most part, speculative in nature." (emphasis and brackets ours)

On appeal, the Fourth District Court of Appeal reversed. That opinion stated at 282 So.2d 22:

"The judgment reference that plaintiff failed to establish that the negligence was the proximate cause of the damage, when read in pari materia, can only mean — not that there was not damage — but that the evidence as to it was uncertain and not capable of ascertainment in the opinion of the trial judge."

*443 Interpreting the trial court's reference to proximate cause, the district court stated:

"Thus, he ruled that the plaintiff failed to prove a causal relationship between the application of the herbicide to the plants and the diminished yield in terms of dollars."

The gist of the majority opinion of the Fourth District seems to be that the trial court's express finding of a lack of sufficient proof of a causal relationship really stemmed from the subsequent additional "not necessary" finding in the judgment that "the nature and extent of the damage" was also not established by the plaintiff by the greater weight of the evidence and "was, for the most part, speculative in nature." We do not read the trial court's order this way, nor is it a fair inference of the trial court's reasoning to be attached to the additional finding regarding damages.

PROXIMATE CAUSE

The district court interpreted the trial court's order as recognizing the defendant's negligence, ergo, liability, but as denying recovery on the basis of an improper and overly-strict application of the law as to damages. Judge Mager in an able dissent stated that the majority erroneously substituted their judgment for that of the trier of fact, in that the trial court had expressly stated that plaintiff had failed to establish that defendant's negligence was the proximate cause of the alleged damage; he noted conflicting evidence as to whether the spray was the material and controlling factor in causing the decreased yield. We must agree with Judge Mager.

The question is whether the DCA did indeed substitute its finding of fact as to proximate causation for that of the trial court or whether, as respondent contends, the DCA correctly interpreted the trial court's order as finding that the petitioner's negligence gave rise to liability, but that recovery was denied due to a failure to prove the extent to which the negligence caused damage to respondents. The language of the trial court order most crucial to a correct resolution of this question is found in paragraph 3 of the order, quoted above:

"3. The court finds, however, the Plaintiff failed to establish, by the greater weight of the evidence, that the negligence of Defendant SOUTHEASTERN AG HELICOPTER, INC. was the proximate cause of the alleged damage to the caladium tuber crop complained of by Plaintiff."

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Bluebook (online)
301 So. 2d 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asgrow-kilgore-co-v-mulford-hickerson-corp-fla-1974.