I am unable to agree with the decision made in this case by the other members of the Court, nor am I able to agree with the opinion and argument by which the decision is reached.
To my mind this case presents a very fair illustration of the futility of attempting an accurate decision of a controversy in the courts of law without observing the rules of pleading which are designed for the purpose of presenting definitely the material question of fact upon which the controversy between the parties should turn.
There is a theory concerning the judicial determination of controversies which is not carefully examined and as definitely opposed may eventually destroy the function of pleading. That theory is that the judge to whom application is made for the redress of a wrong should, after, examining every detail of the case submitted to him, call upon his fund of experience, wisdom and judicial conscience of which under such theory he supposes himself to be the sole repository and by the aid of such special qualities render justice between the parties.
Such a theory will eventually result in depositing in the court a collection of paper writings and documents in the form of a record, and without accurate presentation of the *Page 402 question or questions in the controversy, to be determined by the court according to its conception of what in many instances it is pleased to call substantial justice. That term is incapable of definition but the judges who undertake to administer it assume to be the sole possessors of all the knowledge of the elements which constitute it.
Substantial justice, if it means an accurate judicial determination of a legal controversy between capable persons, is best attained by following rules which are the outgrowth of centuries of experience and which are designed to present with accuracy the precise point in controversy between the parties litigant. Without such compass the unchartered sea of substantial justice cannot be successfully navigated, because as there are neither legal nor moral standards by which to measure the particular degree of such justice to be applied and which finds its authority only in the conscience of the individual judge, the parties litigant more frequently than otherwise find themselves in situations which they did not contemplate and neither party understanding the means by which he arrived.
The question which is presented in this case is one of pleading and the issue sought to be presented must be determined by the pleadings which were deemed to be settled at the time of the trial. The parties to the controversy have a right to submit for determination by the jury what issues of fact are involved which are determinative of the right upon which one of the parties insists and which is denied by the other.
Usually the right which is insisted upon by the plaintiff depends upon the existence of certain facts, the defendant denying such right is brought by the means of correct pleading either to the admission of such facts upon which the plaintiff's right depends or to the denial of the existence *Page 403 of such facts which if not established would defeat the plaintiff's action.
In order therefore that the case which was submitted to the trial court and which comes here upon writ of error to the judgment may be better understood, it would be well to describe the situation out of which this controvery arose.
In February, 1935, Mr. Garrett, the plaintiff in the trial court and the plaintiff in error here, owned an orange and grapefruit grove of twenty acres in the neighborhood of Haines City, Florida. The trees were bearing trees and they were quite heavy with fruit nearly ready for the market. The variety of oranges was known as the Valencia, which when ripe and ready for the market are large, heavy with juice and delicious in flavor, and generally when in good condition, command a better price in the market than other varieties not so generally favored.
In the early part of February of that year, the weather for a few days became unusually cold in the area in which Mr. Garrett's citrus grove was located. In some portions of the area the temperature dropped to freezing and in many cases the owners of orange groves considered that a comparatively large percentage of the fruit on the trees was detrimentally affected by the cold which continued in some places in the area for many hours.
Particularly in the lower levels of the area where the cold air remained longer than upon the higher levels it was deemed that the fruit would be more seriously affected and that if it was to be disposed of at all the fruit in such lower places and that which hung farthest from the center of the tree area should be removed first, as that the fruit which grew closer to the center of the tree area, and thus protected by the foliage of the trees, would be the least affected, if indeed it had not been entirely protected from the cold wave which swept over that section of the State. *Page 404
In this situation Mr. Garrett made a contract with the American Fruit Growers, Inc., the defendant below, in this case, to pick and remove the fruit from his grove and sell the same for his account to the best advantage. Mr. Garrett contends that the most vital and important feature of the contract was the manner in which it was to be executed by the corporation. Mr. Garrett contending that it was the duty of the corporation under the contract to require its agents to remove first the fruit in the lower levels of his grove and that which hung from the outer area of the trees in order that the fruit which was most likely to have been affected by the cold should be removed first and placed upon the market before the deteriorating processes, if any, started by the cold could totally destroy that fruit, it being conceded by the parties to the agreement that there was then a market for such fruit in which it could be sold at a price and thus prevent a total loss to a definite percentage of the crop, but, according to Mr. Garrett's contention, the defendant, instead of executing the contract in that manner, sent its agent, Mr. McCord, upon the grove on February 11th and 12th and caused to be "spot picked" the Valencia oranges from the center areas of the trees where the oranges were least damaged, if at all, and left the fruit which had been more exposed to the cold, and consequently damaged thereby, to removal at a later date.
It is contended by Mr. Garrett that the defendant, which through its agents proceeded in that manner in the execution of the contract, committed a wrong and was guilty of a tort against Mr. Garrett. He claims that the result of that tort produced damage to him first in the premature removal of the choice fruit consisting of 561 field boxes of Valencia oranges, which would have brought a better price in the market if they had been allowed to remain upon the trees to a later date and thus become fully *Page 405 matured and in possession of their natural sweetness and flavor, and, secondly, the damage resulting to him by deferring the removal of those oranges which had been affected by the cold and which under the contract should have been immediately taken away and placed on the market, thus producing a total loss of a large part of the fruit crop which might have been avoided by the immediate picking of the crop and the placing of the same upon the market.
In this situation Mr. Garrett brought an action ex delicto against the American Fruit Growers, Incorporated. In the first two counts of the declaration he declared in trover and conversion according to the form prescribed by the statute. See Sect. 4314, par. 26, C.G.L. 1937. In the third and fourth counts of the declaration he declared in trespass de bonis asportatis.
The essential difference between those two causes of action consists in that in trespass de bonis asportatis a wrongful taking is charged, while in trover and conversion a conversion of the goods to the defendant's use is charged. The measure of damages in each case is the same, that is to say the value of the goods at the time and place of conversion in one instance, and the wrongful taking and removal in the other. See Archbold's NisiPrius, p. 477.
The plea of not guilty is applicable in each action. In the case of conversion it denies the wrong and injury. In the case of trespass de bonis asportatis it denies wrongful taking of the property, that is to say the unlawful entry upon the land and the removal of the property alleged to have been removed. It was unnecessary in the third and fourth counts to give a description of the lands on which the defendant was charged with wrongfully entering. It would have been sufficient merely to have alleged that the parties took and carried away the goods alleged to have been removed. *Page 406
The defendant is privileged in the latter form of action to plead the general issue which denies all the trespasses alleged, or may deny a part and plead justification for the residue. 21 Ency. Pl. Prac. 831, Rule 75, Rules of Circuit Courts, Law Actions, p. 23.
The entry upon the land upon which the removal of the goods occurred is a sufficient force to establish the trespass necessary to support the action. See Crandall's Common Law Prac., p. 130, Sec. 91.
Now the defendant by its third plea, which presents the only question necessary to be determined in this case, undertook to justify its action in taking the defendant's goods by averring that it did so under the contract which authorized it to go upon the premises and take the oranges from the trees and market them to the plaintiff's account and that pursuant to the contract it sold the 561 crates of oranges, accounted to the plaintiff for the amount of such sales and tendered to him the sum realized therefrom.
A careful inspection of that plea will show that it is in effect an admission of the taking of the goods and entry upon the land and a tender of amends to the plaintiff for the damage which the plaintiff by his action in tort claimed against the defendant.
The plea is set forth here in full:
"That it did what is complained of by the plaintiff's leave; that the plaintiff, on February 9, 1935, following an unprecedented spell of cold and consequent damage to fruit throughout Florida, engaged one J.M. McCord, a representative of this defendant, to handle and market all of the plaintiff's said fruit according to the best judgment of the said J.M. McCord, and to ship the same through this defendant as marketing agent, in accordance with its usual practices, and with the understanding that from the proceeds of all fruit sold the defendant would deduct all *Page 407 customary charges and expenses and remit to plaintiff the net proceeds remaining; that pursuant to such understanding and agreement the said J.M. McCord did handle, pick and market the fruit mentioned in plaintiff's declaration, according to his best judgment, and that after deducting said charges from the proceeds thereof, the net proceeds to be remitted to the plaintiff amounted to the sum of $243.63, and before action, on the 4th day of March, A.D., 1935, defendant tendered and offered to the plaintiff to pay him the same, and the plaintiff refused to accept it; and the defendant now brings the said $243.63 into Court ready to be paid to the plaintiff."
It is perfectly obvious that if the taking of the goods in either aspect of the case was a conversion or trespass de bonisasportatis the special plea that the defendant was authorized by the contract to do what it did was a complete defense because if it was authorized by the contract to take the goods and sell them for the account of the plaintiff it could not be guilty of trover and conversion, nor could it be guilty of the trespass necessary to support the declaration in trespass de bonis asportatis; therefore so much of the plea as averred justification under the contract was a complete defense to either form of the action, but the plea tendered a separate and distinct issue which amounted to an admission of the wrong but a tender of amends for the injury committed in that the plea averred that it had tendered to the plaintiff the amount due the plaintiff on the sale of the fruit for his benefit.
Now if the taking of the goods by the defendant was justified by the contract then there was neither a conversion or trespassde bonis asportatis. In other words, the defendant had committed no wrong and injury. Therefore the plaintiff had no cause of action, but the tender of amends admitted injury and tendered a sum in *Page 408 satisfaction of damages, which is not allowable in any case of an action of conversion or of trespass de bonis asportatis, for a man cannot commit a wrong and injury which justifies an action against him for damages and then tender a sum of money in satisfaction of what he arbitrarily asserts as compensation for the injury committed. Particularly is that true where the element of the wilfulness of the injury is made an issue in the case. To permit that plea to stand therefore would submit to the jury no definite issue of fact upon which the parties could have gone to trial for the jury might have decided that an injury was committed by the defendant and thus not have been justified in returning a verdict for the defendant, but it may have considered that the amount tendered by the defendant was sufficient compensation for such injury and thus deprived the plaintiff of proving the value of his fruit at the time and place of the alleged injury which was his right in the case made by the second count.
Tender of amends is not permissible in a tort action. See 28 Am. and Eng. Ency. of Law, 2nd Ed. p. 10, 11.
The majority opinion in this case treats the third count of the declaration as one in quare clausum fregit. In other words, that the plaintiff was complaining of the injury sustained by him in the wrongful entry by the defendant upon the lands described. In such a case tender of amends is permissible by plea but it must be in cases where the defendant admits the trespass, that is to say the wrongful entry upon the premises and tenders a sum in satisfaction of damages. See 4328 C.G.L. 1927.
That section provides that in actions of quare clausum fregit where the defendant disclaims any title or claim to the land on which the trespass was alleged to have been done and that the trespass was by negligence or involuntary then the defendant may plead a disclaimer and a tender or *Page 409 other offer of sufficient amends for such trespass, on which issues, or some of them, the plaintiff may be compelled to join issue.
But in this case the plea while disclaiming interest in the land averred that the trespass was neither negligent nor involuntary but undertook to justify the entry under the contract and then tendered leave of amends for the injury complained of by the plaintiff which was the wrongful or negligent entry of the land by the defendant and the removal of the plaintiff's goods.
So the plea was both leave and license and tender of amends which is not permitted under the statute to which reference was made above.
The majority opinion states that the insufficiency of that plea was not raised. It is said in the majority opinion that the court's attention was not called to the fact that the third plea was duplicitous until after the rendition of the verdict. The fact is that the plaintiff both demurred to the plea and moved to strike it, which demurrer and motion were both overruled and the order of the court is made the basis of the eighteenth assignment of error and a large part of the plaintiff in error's brief is devoted to proving the error committed in the order of the court.
It is said in the majority opinion that it does not appear that the tender of amends in the plea was offered as a substantive defense.
I think that view of the plea is wrong. On the contrary it appears to be its major purpose which is that having entered upon the land under authority of the contract and taken the goods away the defendant then offered to the plaintiff a sum of money in satisfaction of his claim for the value of the goods taken.
As a plea of leave and license and tender of amends to an action of quare clausum fregit it was clearly not within *Page 410 the meaning of the statute to which reference is above made. As a plea to an action of trespass de bonis asportatis it was clearly duplicitous because it denied the trespass which is necessary to support such action and at the same time tendered money in satisfaction of the wrong of which the plaintiff complained. If the defendant had contented itself with a plea setting up the contract under which it was to sell the oranges, such plea would have been a complete defense to both trover and trespass de bonis asportatis, but when it undertook in the third plea to tender to the plaintiff money in satisfaction of the plaintiff's claim it admitted the trespass which is necessary to support the action of trespass de bonis asportatis because without a trespass upon the land the plaintiff's cause of action fails and there can be no point in offering money in satisfaction of an injury which had not been committed. There can be no tender of amends in a tort action except in actions quare clausum fregit under the statute where there must be a disclaimer of title to the land or in which the trespass was negligent or involuntary.
Under the plea of not guilty the defendant was not permitted to show lack of title and right of possession to the goods in the plaintiff but an effort was made by the defendant under the plea of the general issue to show that the goods were taken by the defendant with the knowledge and consent of the plaintiff. If that issue was submitted to the jury it is wholly unsupported by the evidence disclosed by this record because while there existed the contract for the sale of the oranges by the defendant, the evidence discloses that the removal of the oranges was to be made in a certain manner hereinbefore mentioned. So if the contract which the defendant held for the sale of the plaintiff's oranges was relied upon as a justification for the removal of the oranges the issue was not sustained by the defendant *Page 411 because the evidence is practically uncontradicted that it was not removed in the manner stipulated in the agreement. In fact the case made by the record showed that the defendant was guilty of two wrongs, first in the premature removal of the choice fruit and the failure to first remove the fruit which it was assumed was damaged.
The going upon the land for the purpose of executing the contract in that manner, that is to say by first removing the damaged fruit and putting it on the market and then removing the choice fruit which was assumed to be undamaged, was the sole justification of the defendant's entry upon the land, but the going upon the land with a different purpose was the alleged trespass relied upon to support the third count, viz.: trespassde bonis asportatis for carrying away the 561 field crates of choice fruit: So the removal of the choice fruit in the circumstances was the tort of which the plaintiff complained in both counts, that is, the first and third counts of the declaration.
Now the plea of tender of amends is, as stated, not permissible in a tort action except in the special case of quare clausumfregit referred to in the statute, Section 4328, supra; see Bullen Leake's Precedents of Pleading, Page 967; or where in an action of tort the tender is of the full amount demanded. See Southern Ry. Co. v. Harris, 202 Ala. 263, 80 South. Rep. 101; Gregory v. Wells, 62 Ill. 232.
Under the majority opinion it is suggested that the trespass was in quare clausum fregit but it nevertheless permits a tender of amends under an averment in the plea that the entry was under claim of right which is not proper in good pleading, Viall v. Carpenter, 82 Mass. (16 Gray) 281, because a claim of right is not a negligent or involuntary trespass, Johnson v. Williams,222 Ala. 278, 132 South. Rep. 170.
The third plea in this case, which was evidently filed *Page 412 under authority of Section 4328, supra, and which I have undertaken to point out is not applicable in the case of quareclausum fregit, must therefore be regarded as a plea to the third count in the declaration, which is one of trespass de bonisasportatis, which rests upon the allegation that a trespass was committed by the defendant in the taking and carrying away of the fruit. The plea admits the taking and carrying away of such fruit and undertakes to prove license for the entry upon the land and then a tender of the damages resulting from the taking and carrying away, which is admitted by the plea. While that plea cast upon the defendant the burden of sustaining it, it deprived the plaintiff of the right to show the value of the oranges that were taken and carried away and limited him to the issue that the specific sum tendered was in fact tendered to him in satisfaction of the damage for the removal of the fruit.
In this view of the pleadings, I submit that it is impossible to determine upon what issue the jury determined this controversy. It found for the defendant. Did it find that there was no conversion by the defendant? Did it find that defendant did not take away the fruit or that the entry upon the land was upon authority of the contract, or that the defendant having sold the oranges in the best market had returned to the plaintiff the net amount realized from the sale of the fruit, which it was the defendant's duty to do if the contract was such as interpreted by it?
If the defendant relied upon its contract with the plaintiff it was sufficient to plead that contract as a defense to both counts. In that case the question would have turned upon what were the terms of the contract and the manner of of its enforcement. The burden being upon the defendant to establish the contract, the defense being an affirmative one, it would have been very doubtful if the jury *Page 413 would have considered that defense as maintained because from the facts disclosed in this record the contract which the plaintiff had with the defendant was not such as justified the defendant's entry upon the land with the avowed purpose of removing the better grade of oranges first and neglecting the removal of those which were assumed to be affected by the cold.
I think, therefore, that the judgment should be reversed.
TERRELL, BUFORD and CHAPMAN, J.J., concur.
WHITFIELD and BROWN, J.J., dissent.