Mulford Hickerson v. Asgrow-Kilgore

282 So. 2d 19
CourtDistrict Court of Appeal of Florida
DecidedJuly 27, 1973
Docket72-29
StatusPublished
Cited by4 cases

This text of 282 So. 2d 19 (Mulford Hickerson v. Asgrow-Kilgore) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mulford Hickerson v. Asgrow-Kilgore, 282 So. 2d 19 (Fla. Ct. App. 1973).

Opinion

282 So.2d 19 (1973)

MULFORD HICKERSON CORPORATION, a Florida Corporation, Appellant,
v.
ASGROW-KILGORE COMPANY, a Corporation, and Southeastern Ag Helicopters, Inc., a Corporation, Appellees.

No. 72-29.

District Court of Appeal of Florida, Fourth District.

July 27, 1973.
Rehearing Denied September 17, 1973.

*20 Charles T. Wells of Maguire, Voorhis & Wells, Orlando, for appellant.

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

James R. Hunkapiller of Gurney, Gurney & Handley, Orlando for appellee Southeastern AG Helicopters.

WALDEN, Judge.

This is an appeal of a final judgment rendered in defendants' favor after a nonjury trial on plaintiff's complaint for damages negligently caused to plaintiff's crop. We reverse and remand with instructions.

Plaintiff-appellant, Mulford Hickerson Corp., a commercial grower of ornamental plants, raises caladiums. Part of plaintiff's lands are adjacent to canals and ditches in the Zellwood Drainage District. Defendant-appellee, Asgrow-Kilgore Co., prepared a herbicide spray containing the chemical 2,4D, which was applied from a helicopter owned by defendant-appellee, Southeastern AG Helicopter, Inc., to plants in the canals and ditches of the Zellwood Drainage District. A few days after the herbicide was applied to the canals the plaintiff's caladium fields showed damage and signs of decline from contact with the 2,4D, which had drifted over from the intended target.

Plaintiff's caladium plants produced a poor yield of caladium tubers for the year. The yield per acre, which was much lower than expected, was the smallest yield ever, even though plaintiff cultivated greater acreage than it had in the past. Plaintiff sued defendants, charging that Asgrow-Kilgore Co. was negligent in preparing the spray and that Southeastern AG Helicopter, Inc. was negligent in applying the spray. The trial court, finding in defendants' favor, determined that Asgrow-Kilgore Co. was not negligent in preparing the herbicide, but had sufficient control over Southeastern AG Helicopter, Inc. to be responsible for its negligence. It found that the herbicide came into contact with plaintiff's caladium plants as a result of the negligent application of that spray by Southeastern AG Helicopter, Inc., but that plaintiff failed to prove that the helicopter company's negligence was the proximate cause of the damage to the caladium tuber crop. The court specifically observed:

"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 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."

*21 The trial court very studiously presided over this case and there was much expert testimony one way and the other and statistical projectments as to possible damages. In their appellate presentation counsel have minutely assessed the problem. However, from our after view we feel the issue and the problem is perhaps simpler than that suggested in the briefs.

The defendants' negligence and liability has been clearly demonstrated, as recognized by the trial court. This negligence manifestly and proximately produced damages to the plaintiff's tuber crop.[1] Thus, the basic underlying issue is the legal sufficiency of the proofs as to plaintiff's damages.

It is our assessment that the trial court, conscientious and careful as it was, was laboring under a misapprehension in this instance as to the law of damages. The fact of damages must be shown with reasonable certainty to warrant recovery, however there are situations where the fact of damages is certain, but the amount is uncertain. The amount of damages need only be ascertainable with a reasonable degree and not exactly calculable. Approximate results suffice. McCall v. Sherbill, Fla. 1953, 68 So.2d 362. Once the right to recover damages is established, difficulty in assessing damages is not sufficient basis for denying their recovery. Twyman v. Roell, Fla. 1936, 123 Fla. 2, 166 So. 215.

Some damages may be measured with certainty and others not, depending on their nature. To illustrate with common examples known to all, usually the complete destruction of a chattel of established market price and replacement value can be measured with exactness. At the other end of the spectrum, items such as loss of consortium and pain and suffering are necessarily uncertain and incapable of exact definition. See 9A Fla.Jur., Damages, §§ 21, 43; Seaboard v. McKelvey, Fla. 1972, 270 So.2d 705.

And now we come to the law of damages as concerns crops. In 21 Am.Jur.2d, Crops § 74, it is stated:

"The questions relating to the measure of damages for injuries to, or destruction of, a growing crop are not altogether devoid of difficulty. The courts are not agreed on the subject, partly from a difference in the rules applicable to the measure of damages and in the various holdings as to what evidence is admissible in such cases, and partly from the way in which various propositions of law as well as of fact have been stated. These differences, added to the inherent difficulty of estimating the value of a growing crop, create some misgiving in the formulation of general rules respecting the subject, but there is no doubt that compensation for the real injury is the purpose of all remedies." (Emphasis supplied.) 21 Am.Jur.2d, Crops § 74.

In this case the crop was not completely destroyed, but a lower yield was produced at the end of the season due to the defendants' negligence. Some courts in such instances where the crop is not completely destroyed assess the measure of damages as the difference between the value at maturity of the probable crop if it had remained uninjured and the value of the actual crop produced less the marketing costs for that portion of the probable crop destroyed by the injury. If the reduced yield caused no reduction in labor and expense, then no deduction need be made for such costs. 21 Am.Jur.2d, §§ 78 and 79. See also McCormick on Damages, § 126, pp. 486-490 (1935), Annot. 175 A.L.R. 159 (1948).

A case arising in Florida, Wm. G. Roe & Co. v.

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301 So. 2d 441 (Supreme Court of Florida, 1974)

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Bluebook (online)
282 So. 2d 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulford-hickerson-v-asgrow-kilgore-fladistctapp-1973.