Mims Crane Service, Inc. v. Insley Mfg. Corp.

• Citation: 226 So.2d 836
• Decision Date: 03 October 1969
• Docket Number: No. 68--627,68--627
• Parties: MIMS CRANE SERVICE, INC., a Florida corporation, Appellant, v. INSLEY MANUFACTURING CORP., Appellee.
• Court: Court of Appeal of Florida (US)

Page 836

226 So.2d 836

MIMS CRANE SERVICE, INC., a Florida corporation, Appellant, v. INSLEY MANUFACTURING CORP., Appellee.

No. 68--627.

District Court of Appeal of Florida, Second District.

Oct. 3, 1969.

Bernard J. Zimmerman of Akerman, Senterfitt, Eidson, Mesmer, Robbinson & Wharton, Orlando, for appellant.

Charlie Luckie, Jr., and Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

PIERCE, Judge.

This is an appeal from a final judgment in favor of appellee Insley Manufacturing Corp., third party defendant in the Court below, and against appellant Mims Crane Service, Inc., third party plaintiff, because Mims failed to file suit on its claim against Insley within three years from the date it purchased the Insley motorized crane, or the date of the alleged injury.

Prior to November 22, 1961, Mims purchased from Chapman Machinery Company, one of the third party defendants in the Court below, an Insley motorized crane manufactured by Insley on which certain warranties were made as to its condition and capacity. On November 22, 1961, while the motorized crane was being operated on the premises of American Cyanamid Company, plaintiff below, the boom collapsed, causing damage to personal property of Cyanamid.

On October 15, 1964, Cyanamid filed suit in tort again Mims on its claim for damages. Service was attempted on April 1, 1965, on Mims through Fred Ohliger, purported vice president of Mims. Default was entered on April 23, 1965, and a judgment was entered on May 21, 1965, for Cyanamid. On April 29, 1966, the Circuit Judge entered an order vacating the judgment. On September 29, 1966, service was again attempted on Mims by serving Ohliger. On February 1, 1967, the Circuit Judge entered an order quashing this attempted service on Mims. On March 26, 1968, service was perfected on Mims by serving W. A. Mims, its president.

On April 16, 1968, Mims filed its answer and third party complaint pursuant to Florida Rule 1.180 R.C.P., 30 F.S.A. against Chapman and Insley. On May 27, 1968, Mims filed an amended answer and on June 19, 1968, filed its second amended answer and third party complaint incorporating the original complaint of Cyanamid and setting forth, among other things, that in said original complaint it was alleged that Mims furnished and provided to the plaintiff, Cyanamid, a motorized Insley truck-crane with a defective boom; that the said truck-crane was manufactured by Insley and purchased by Mims from Chapman; that the third party defendants expressly and impliedly warranted that the subject motorized Insley truck-crane was fit for its intended use and further warranted both expressly and impliedly the merchantability of said truck-crane; that because of the said warranties under the circumstances alleged Chapman and Insley 'are liable to the third party plaintiff for all or any part of plaintiff's claim against it (Mims), if any is proven.' Mims demanded judgment against Chapman and Insley 'for any sums which may be awarded to the plaintiff and against the third party plaintiff in the original action and for attorneys' fees and costs of defending the original action.'

On June 24, 1968, Insley filed its answer and affirmative defenses, which included the defense that the third party claim was barred by the 'statute of limitations and repose.' On September 30, 1968, Insley filed its motion for judgment on the pleadings and on November 21, 1968, the circuit Judge entered the final judgment appealed from.

Insley contends that Mims' cause of action is based upon breach of warranty not in writing, and therefore the claim is barred by the statute of limitations, relying on Creviston v. General Motors Corp., Fla.App.1968, 210 So.2d 755. It will be noted in passing that the judgment of this 2nd District Court in that case was quashed on July 2, 1969, the Supreme Court holding that in an action on implied warranty for personal injury under the facts in that case the statute of limitations begins to run from the time the plaintiff first discovered, or reasonably should have discovered, the defect constituting the breach of warranty, and not at the time of the sale of the defective product. 225 So.2d 331.

It is Mims' position that the action is based on indemnification and that the statute of limitations does not begin to run until the indemnitee has been required to pay a judgment or makes voluntary payment to the injured party or original plaintiff. We agree with Mims.

Insley relies on the decisions in Riesen v. Leeder, 1961, 193 Cal.App.2d 580, 14 Cal.Rptr. 469; City & County Savings Bank v. M. Kramer & Sons, Inc., 1964, 43 Misc.2d 731, 252 N.Y.S.2d 224; and Nelson v. Sponberg, 1957, 51 Wash.2d 371, 318 P.2d 951, for the proposition that Mims' cause of action against Insley was upon a breach of warranty rather than indemnity. We do not consider these cases controlling. The original action in the case sub judice was a Tort case, whereas the Riesen and Kramer cases were actions for breach of implied warranty and breach of contract brought by the original plaintiffs. In Riesen, an action for breach of implied warranty brought by a purchaser against a retailer which filed a cross-complaint against the manufacturer, the Court said:

'Nowhere does Leeder plead, prove, or even suggest an agreement by manufacturer to indemnify him. Nor does he plead or prove any tort liability, much less that unusual situation which can give one tort-feasor a claim over, perhaps akin to indemnity, against the other * * *'.

In Kramer, which involved an action for breach of contract in which various contractors attempted to implead their subcontractors, alleging breach of implied warranties, the Court said:

'In support of this position, Kramer cites several authorities in which the procedural device of impleader was utilized. However, the authorities cited are Tort cases and, in such situations, there is a recognized liability on the part of the active wrongdoer to indemnify the passive one. Such liability is implied in law, and the procedure outlined in Section 1007, Civil Practice Law and Rules (formerly 193--a, CPA) may properly be used. Such procedure may also be permissible in other situations where a person not a party to the original action may be liable to a defendant for all or part of the plaintiff's claim * * *.' (Emphasis supplied.)

Sponberg was an action for indemnification for payment made by plaintiff to a business invitee who was allegedly injured because of a defective handrail installed by defendants. The Supreme Court of Washington found that the evidence was insufficient to show a causal relationship between the injuries sustained and the condition of the handrail.

It has been stated that a purchaser of a defective appliance or machine which causes injuries to another for which he is liable may recover indemnity from the manufacturer or vendor. 41 Am.Jur.2d, Indemnity, § 25; First National Bank of Arizona v. Otis Elevator Co., 1966, 2 Ariz.App. 596, 411 P.2d 34; John Wanamaker, New York, Inc. v. Otis Elevator Co., 1920, 228 N.Y. 192, 126 N.E. 718; Otis Elevator Co. v. Cameron, Tex.Civ.App.1918, 205 S.W. 852; Liberty Mut. Ins. Co. v. J. R. Clark Co., 1953, 239 Minn. 511, 59 N.W.2d 899; Frank R. Jelleff, Inc., to Use of Liberty Mut. Ins. Co. v. Pollak Bros., Inc., U.S.D.C. N.D.Ind.1957, 171 F.Supp. 467; McDonald v. Blue Jeans Corp., U.S.D.C. S.D.N.Y.1960, 183 F.Supp. 149, unless the party making payment is barred by the wrongful nature of his conduct, Florida Power & Light Co. v. General Safety Equip. Co., Fla.App.1968, 213 So.2d 486. The so-called active-passive tortfeasor principle is recognized in Florida, Great A. & P. Tea Co. v. Federal Detective Agency, Inc., Fla.App.1963, 157 So.2d 148; Winn-Dixie Stores, Inc. v. Fellows, Fla.App.1963, 153 So.2d 45; Fincher Motor Sales, Inc. v. Lakin, Fla.App.1963, 156 So.2d 672; Olin's Rent-A-Car Sys., Inc. v. Royal Continental Hotels, Inc., Fla.App.1966, 187 So.2d 349. As stated in Florida Power & Light Co. v. Hercules Concrete Pile Co., U.S.D.C. S.D.Fla.1967, 275 F.Supp. 427, 429:

'Under this principle one who is considered a 'passive' tortfeasor may recover indemnity from a so-called 'active' tort-feasor, the measure of damages being the recovery which the injured party received from the passive tortfeasor.'

The obligation to indemnify need not be based upon an express contract of indemnification but may arise out of implied contractual relations or out of liability imposed by law. The rule is stated in 41 Am.jur.2d, Indemnity, § 2, p. 688:

'Although it has been said that the right to indemnity springs from a contract, express or implied, the modern cases note that contract furnishes too narrow a basis, and that principles of equity furnish a more satisfactory basis for indemnity. Thus, a right of indemnity has been said to exist whenever the relation between the parties is such that either in law or in equity there is an obligation on one party to indemnify the other, as where one person is exposed to liability by the wrongful act of another in which he does not join. The rule proposed in the Restatement of Restitution makes no specific reference to contract and appears to be based on principles of equity; it provides that a person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor (indemnitee) is barred by the wrongful nature of his conduct.'

See 42 C.J.S. Indemnity § 20, pp. 594, 595; 17 Fla.Jur., Indemnity § 6; Hutchins v. Frank E. Campbell, Inc., Fla.App.1960, 123 So.2d 273; Olin's Rent-A-Car Sys. v. Royal Continental Hotels, supra; First National Bank of Arizona v. Otis Elevator Co., supra; Hertz Corporation v. Ralph M. Parsons Company, U.S.D.C., M.D.Fla.1968, 292 F.Supp. 108.

In the case sub judice the third party complaint, hereinbefore briefly outlined,...