International Mail Order, Inc. v. Capital Nat. Bank of Miami

• Decision Date: 29 November 1966
• Docket Number: No. 66--349,66--349
• Citation: 192 So.2d 287
• Parties: INTERNATIONAL MAIL ORDER, INC., a Florida corporation, Appellant. v. CAPITAL NATIONAL BANK OF MIAMI, formerly d/b/a Metropolitan Bank of Miami, Appellee.
• Court: Florida District Court of Appeals

Page 287

192 So.2d 287

INTERNATIONAL MAIL ORDER, INC., a Florida corporation, Appellant. v. CAPITAL NATIONAL BANK OF MIAMI, formerly d/b/a Metropolitan Bank of Miami, Appellee.

No. 66--349.

District Court of Appeal of Florida, Third District.

Nov. 29, 1966.

Lurie, Lesperance & Goethel, Miami, for appellant.

Rosenberg, Rosenberg & Reisman, Miami, for appellee.

Before PEARSON, CARROLL and BARKDULL, JJ.

PEARSON, Judge.

The point on appeal is whether or not an action for conversion of personal property is governed by the three-year statute of limitation. The question is presented upon an appeal by the plaintiff, International Mail Order, Inc. from a summary final judgment for the defendant, Capital National Bank of Miami, formerly conducting business as Metropolitan Bank of Miami. This judgment was entered expressly upon the ground that the three-year statute of limitation was applicable to appellant's cause of action.

The briefs do not question the nature of appellant's complaint. The complaint alleged the conversion of property which had been pledged to secure a loan. The property had been stored in a warehouse, and is described upon a non-negotiable warehouse receipt which was in the possession of the defendant. The receipt states that the property was received for the account of the defendant, for the account of the plaintiff. After default, the defendant obtained possession of the property and sold it. The plaintiff alleges that no loan was made and that the defendant had no authority to take possession and sell the property.

The Florida Statute, for the limitation of actions, contains two provisions which have been urged as applicable to appellant's cause of action; both of the provisions are a part of § 95.11 Fla.Stat., F.S.A. The appellee urges the applicability of subsection (5)(c), which provides a limitation of three years upon an 'action for taking, detaining or injurying any goods or chattels, including actions for the specific recovery of personal property.' The appellant urges the applicability of subsection (4), which provides a limitation of four years upon any 'action for relief not specifically provided for in this chapter.' The trial judge held that appellant's action for conversion fell under subsection (5)(c) as an action for taking of goods or chattels. Appellant contends that its action is for a tort not specifically mentioned in the statute and that therefore the catch-all subsection (4) should apply.

The appellant has cited Milteer v. Seaboard Air Line Ry. Co., 66 Fla. 17, 62 So. 831 (1913), as authority for its position. An examination of that case will reveal that damages were sought for an 'injury' to goods, but the action was based upon the common law liability of a carrier for delays in transportation. There is a...