Opinion
No. H-243.
August 18, 1966.
Appeal from the Circuit Court, Duval County, Charles R. Scott, J.
Mahoney, Hadlow, Chambers Adams, Jacksonville, for appellant.
Ruden, Barnett McClosky, Fort Lauderdale, for appellee.
Plaintiff James V. Freeman, Inc. has taken an interlocutory appeal from an order transferring this cause from Duval County to Broward County. The sole question is whether venue for a negligence and an implied warranty action lies in Duval County where plaintiff's business was located, where the merchandise was delivered, where approximately one-half of it was sold and where plaintiff was primarily damaged. We hold that the cause of action accrued in Duval County and the trial judge erred in ordering it transferred.
Plaintiff James V. Freeman, Inc. was engaged in distributing cosmetics to wholesalers in Florida, Georgia, Alabama, South Carolina, North Carolina, and Virginia. Among these cosmetics were Blue Mink Shampoo and Blue Mink Spray Set which were manufactured by the Defendant, Chemical Packaging Corporation, a domestic corporation having its place of business in Broward County. Relying upon Chemical's representation that the formula for its spray set had been improved, Freeman in February, 1963 ordered 2,000 dozen cans which were shipped to it at its place of business in Duval County. The spray set was defective in that the aerosol cans would not work, and if they would, rust would adulterate the spray set. Since the shampoo and spray set were advertised as the "Perfect Pair for Your Hair", Freeman's sales for both hair spray and shampoo declined rapidly and its business was damaged.
The complaint alleging the above facts was brought in Duval County and was framed in four counts, two in negligence and two for breach of implied warranty. Chemical's motion to dismiss for improper venue was supported by its president's affidavit to the effect that its place of business was in Broward County and all acts done by it in connection with the order were performed in Broward County. Freeman's counter affidavit of its president stated that a number of its Duval customers had stopped doing business with it after they received the defective spray, that 50% of its total volume of Blue Mink Spray Set sales was to customers in Duval County and of the defective cans returned to the plaintiff 71% came from customers in Duval County. It was at this posture of the case that the order to transfer was entered.
Appellant contends, and we agree, that the cause of action for breach of implied warranty accrued in Duval County.
Under Section 46.04, Florida Statutes, F.S.A., suits against domestic corporations may be commenced where the cause of action accrued. This section was construed by the Third District Court of Appeal in a libel action thusly:
Daytona Beach News-Journal Corporation v. Firstamerica Development Corporation, 181 So.2d 565 (Fla.App.3d 1966).
"We conclude that the Florida statute, which specifically refers to the accrual of the cause of action, means that venue lies where the cause of action first became complete and, therefore, actionable."
Luckie v. McCall Mfg. Co., 153 So.2d 311 (Fla.App.1st, 1963).
"The phrase `cause of action' as used in a statute fixing the jurisdiction of the courts according to where the cause of action arises, means that which creates the necessity for bringing the action."
We find that the matter is foreclosed by Peters v. E.O. Painter Fertilizer Co., wherein the Painter Fertilizer Co. with its principal place of business in Jacksonville, Duval County, represented and warranted that its insecticide called Kill-tone would kill insects and act as a tonic to plants. Peters, a tomato farmer in Dade County relied upon the representation, accepted defendant's offer to sell, ordered Kill-tone, and applied it as directed to his tomato crop. The insecticide burned the plants and partially destroyed plaintiff's crop. The Supreme Court held that the cause of action accrued and the breach of contract occurred in Dade County where the damage was inflicted and the loss sustained.
Peters v. E.O. Painter Fertilizer Co., 73 Fla. 1001, 75 So. 749 (1917).
The Peters case lays down the general rule that causes of actions sounding in contract accrue at the place of the contract which is the place of acceptance and not the place of proposal. The only evidence in the record in the instant case is that Chemical informed Freeman that the spray set was improved so Freeman ordered from its place of business in Jacksonville 2,000 dozen cans of the improved hair spray which were eventually distributed to wholesalers throughout its trade area, including Jacksonville.
As to the implied warranty counts, the cause of action clearly accrued in Duval County where the contract was accepted, the spray set was delivered, the damage was inflicted, the loss was sustained, and where the cause first became complete and, therefore, actionable.
We find it unnecessary to determine where the tort accrued since suits upon several causes of action may be brought where either of the causes of action arose.
Section 46.03, Florida Statutes, F.S.A.
The order transferring the cause is reversed.
JOHNSON and SACK, JJ., concur.