Mims Crane Service, Inc. v. Insley Mfg. Corp., No. 68--627

CourtCourt of Appeal of Florida (US)
Writing for the CourtPIERCE; HOBSON, C.J. and MANN
Citation226 So.2d 836
PartiesMIMS CRANE SERVICE, INC., a Florida corporation, Appellant, v. INSLEY MANUFACTURING CORP., Appellee.
Decision Date03 October 1969
Docket NumberNo. 68--627

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.

Page 837

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

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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

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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...

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58 practice notes
  • Perkins State Bank v. Connolly, No. 78-3480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 19, 1980
    ...Commercial Code. See Dunham-Bush, Inc. v. Thermo-Air Service, Inc., supra; Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.Dist.Ct.App.-2d Dist.), cert. denied, 234 So.2d 122 It is doubtful that the wording of section 674.4-207 is explicit enough to allow for awar......
  • In re Sunrise Securities Litigation, MDL No. 655.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 22, 1992
    ...the latter's wrongdoing for which the former is held liable." Id., citing Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.Dist.Ct.App.1969). Thus, the Florida Supreme Court held that "indemnity can only be applied where the liability of the person seekin......
  • Scott & Jobalia Const. Co., Inc. v. Halifax Paving, Inc. for Use and Benefit of U.S. Fidelity and Guar. Co., No. 87-1052
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 1989
    ...or has made a voluntary payment of its legal liability to an injured party. Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla. 2d DCA), cert. denied, 234 So.2d 122 (Fla.1969); Castle Construction Co. v. Huttig Sash & Door Co., 425 So.2d 573 (Fla. 2d DCA 1982). T......
  • Hager v. Brewer Equipment Co., No. 7318SC109
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 14, 1973
    ...92 P. 411 (1907); Northwest Airlines v. Glenn L. Martin Co., 161 F.Supp. 452 (D.Md.1958); Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla.App.1969), cert denied, 234 So.2d 122 (Fla.1969); McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 MacBryde relies upon various cases which h......
  • Request a trial to view additional results
58 cases
  • Perkins State Bank v. Connolly, No. 78-3480
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 19, 1980
    ...Commercial Code. See Dunham-Bush, Inc. v. Thermo-Air Service, Inc., supra; Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.Dist.Ct.App.-2d Dist.), cert. denied, 234 So.2d 122 It is doubtful that the wording of section 674.4-207 is explicit enough to allow for awar......
  • In re Sunrise Securities Litigation, MDL No. 655.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • May 22, 1992
    ...the latter's wrongdoing for which the former is held liable." Id., citing Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.Dist.Ct.App.1969). Thus, the Florida Supreme Court held that "indemnity can only be applied where the liability of the person seekin......
  • Scott & Jobalia Const. Co., Inc. v. Halifax Paving, Inc. for Use and Benefit of U.S. Fidelity and Guar. Co., No. 87-1052
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 1989
    ...or has made a voluntary payment of its legal liability to an injured party. Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla. 2d DCA), cert. denied, 234 So.2d 122 (Fla.1969); Castle Construction Co. v. Huttig Sash & Door Co., 425 So.2d 573 (Fla. 2d DCA 1982). T......
  • Hager v. Brewer Equipment Co., No. 7318SC109
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 14, 1973
    ...92 P. 411 (1907); Northwest Airlines v. Glenn L. Martin Co., 161 F.Supp. 452 (D.Md.1958); Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla.App.1969), cert denied, 234 So.2d 122 (Fla.1969); McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 MacBryde relies upon various cases which h......
  • Request a trial to view additional results

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