Armored Car Service, Inc. v. First Nat. Bank of Miami
| Citation | 114 So.2d 431 |
| Decision Date | 10 September 1959 |
| Docket Number | No. 59-95,59-95 |
| Parties | ARMORED CAR SERVICE, INC., a Florida corporation, Appellant, v. FIRST NATIONAL BANK OF MIAMI, Appellee. |
| Court | Court of Appeal of Florida (US) |
Brown, Dean, Adams & Fischer and Charles K. George, Miami, for appellant.
Scott, McCarthy, Preston, Steel & Gilleland and Richard H. Williams Maloy, Miami, for appellee.
The appellant The Armored Car Service, Inc., the plaintiff below, appeals from an adverse judgment rendered by the Civil Court of Record in Dade County. The action was tried before the court without a jury, and the judgment for the appellee, The First National Bank of Miami, was entered at the close of the plaintiff's case.
The amended complaint contained the following allegations:
'2. That on and prior to September 9, 1955 the plaintiff for consideration, agreed to pick up money bags at various public schools in Dade County, Florida, for the Dade County Board of Public Instruction, and deliver same to the defendant, The First National Bank of Miami, located in Dade County, Florida.
'3. That on September 9, 1955 the plaintiff, by its agent, servant and employee, picked up a locked money bag, being No. 434, containing $1,511.25, at the Miami Springs Junior High School, situated in Dade County, Florida, and on September 10, 1955 delivered said money bag and its mentioned contents to an agent, servant or employee of the defendant authorized to reveive delivery of money bags in such cases.
'4. That said authorized agent, servant or employee of the defendant provided a receipt to the plaintiff acknowledging receipt and delivery of the said money bag '5. That the aforementioned money bag was delivered for the purpose of having the amount of its contents deposited and credited to the account of the Dade County Board of Public Instruction and/or Miami Springs Junior High School Cafeteria Fund Account.
'6. That an unauthorized agent, servant, or employee of the defendant bank stole and/or misappropriated and/or lost the mentioned money bag and its contents. Or in the alternative, negligently and carelessly misplaced the contents of the mentioned money bag. All to the damage of the plaintiff.
'7. That the mentioned money has never been credited to the account or fund of the Dade County Board of Public Instruction or the Miami Springs Junior High School, or otherwise paid by the defendant.
'8. That subsequently the plaintiff was compelled to pay to the Dade County Board of Public Instruction and Miami Springs Junior High School the mentioned $1,511.25 to indemnify the said Board and School for its loss. That such payment was required by law and by the agreement in paragraph 2.
'9. As a direct result of the misconduct, negligence and misappropriation of the mentioned money bag and its contents as aforesaid, the plaintiff has been damaged in the amount of $1,511.25.
'10. The plaintiff has a greater right of possession to the mentioned bag and its contents than the defendant.
Recovery was sought in two counts, the first claiming a conversion of the money, and the second misappropriation or loss of the money by the bank, and in the alternative that the bank 'negligently and carelessly misplaced the contents of the mentioned money bag.' The answer of the defendant bank denied the allegations of the amended complaint.
The facts as disclosed on the trial were not in dispute. The Dade County School Board had a number of accounts in certain banks, including the defendant The First National Bank of Miami. It was the custom to send monies from school cafeterias to such bank or banks for deposit, in canvas bags which were locked, the keys to which were held by the school involved and the bank having the account. The Armored Car Service was used to transport the money bags containing such deposits to the banks. The money in this case belonged to the Activities Fund of the Miami Springs Junior High School, and evidence showed that it was intended to be deposited to the credit of the Junior High School in the Curtiss National Bank of Miami Springs, where that school had an account. The school had no account in The First National Bank of Miami. A deposit slip was made out to the Curtiss National Bank and locked with the money in the bag. The bag was then placed in the school cafeteria to be picked up by Armored Car Service for delivery to the Curtiss Bank in Miami Springs. The cafeteria money was prepared in a similar manner, in a bag, for deposit in The First National Bank of Miami. When Armored Car Service picked up the two bags of money of the day in question, an employee in the cafeteria, being different from the person who prepared the Activities Fund money for deposit, mistakenly instructed Armored Car Service to deliver both bags to The First National Bank. The bag intended for the Curtiss Bank in Miami Springs was then delivered by Armored Car Service to The First National Bank of Miami, received and receipted for by The First National Bank, and not thereafter credited to the account of the school or the School Board, and it disappeared without trace.
Counsel for the parties agreed that Armored Car Service had reimbursed the school and had succeeded to the school's rights to maintain an action for recovery of the money and, therefore, no question was raised as to the right and propriety of the appearance of the Armored Car Service as the plaintiff in this case.
The receipt given by the bank to the delivery service was not a deposit receipt, but one which acknowledged the delivery to the bank of the item. The employee who received and receipted for the item at the bank died prior to the trail, and no witness was found who had knowledge of what took place with reference to the bag of money involved, after the bank received of money involved, after the bank received
The claim of conversion as contained in count one of the complaint was not made out, and the trial court was not in error in so concluding. Money may be the subject of conversion (Southern Express Co. v. Van Meter, 17 Fla. 783; 53 Am.Jur., Trover & Conversion, § 8), but before a party may be held guilty of such conversion, it must be shown that there was exercised a positive, overt act or acts of dominion or authority over the money or property inconsistent with and adverse to...
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...2d DCA 1963); General Finance Corp. of Jacksonville v. Sexton, 155 So.2d 159 (Fla. 1st DCA 1963); Armored Car Service, Inc. v. First National Bank of Miami, 114 So.2d 431 (Fla. 3d DCA 1959). Where a person having a right to possession of property makes demand for its return and the property......
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