Rosenberg v. Ryder Leasing, Inc., 64-263
| Citation | 168 So.2d 678 |
| Decision Date | 10 November 1964 |
| Docket Number | No. 64-263,64-263 |
| Parties | Josephine ROSENBERG, Appellant, v. RYDER LEASING, INC., a Delaware corporation, Appellee. |
| Court | Florida District Court of Appeals |
Jay M. Lurie, Miami, for appellant.
Charles J. Crowder, Miami, for appellee.
Before CARROLL, HORTON and HENDRY, JJ.
Appellant-plaintiff appeals from the dismissal of her complaint by the Circuit Court for failure to state a cause of action.
Appellant, in her complaint, sought to recover compensatory and punitive damages from the appellee for its violation of §§ 818.01 and 818.03, Fla.App.,Stat., F.S.A. 1 Specifically, appellant charged appellee with removing from Dade County and disposing of a ten foot power brake on which appellant held a first mortgage. Upon appellee's motion, the trial court dismissed the complaint for failure to state a cause of action, evidently based upon the theory that no civil remedy is available to an injured party for violation of this penal statute.
At the outset, it should be pointed out that the appellant had no action for conversion, because at the time of the act of which she complained, she, as a mortgagee, had no present right to possession. The present right to possession is an indispensable element of the tort of conversion. 2 Accordingly, the appellant's complaint may only stand if she has a right of recovery by virtue of being the person who was injured by appellee's violation of the penal statutes, §§ 818.01 and 818.03 Fla.App.,Stat., F.S .A.
This presents an interesting question for our determination. Our research only reveals two previous Florida cases even remotely dealing with the subject. In Williams v. Dickenson, 28 Fla.App., 90, 9 So. 847 (1891), the plaintiff's action was for hiring someone to burn down his property. The issue before the Supreme Court was whether the plaintiff's action must be held in abeyance until such time as criminal proceedings were instituted. The court rejected this argument, saying:
'The civil and the criminal prosecution may therefore go on pari passu, or the one may precede or succeed the other; or, if the criminal prosecution is never commenced at all, the failure to seek public justice is no bar to the private remedy.' 9 So. at 849.
The court never discussed the question presently before us, but in order to reach their result it was first necessary to decide that the commission of the criminal act (arson) was recompensable civilly . The Williams case, however, is limited in its precedential value to us, in that, the tortious activity was recognized as such, and not dependent upon the statute (arson) for the creation of the plaintiff's remedy.
In Shaw v. Fletcher, 137 Fla.App., 519, 188 So. 135 (1939) the plaintiff was raped by the defendant; she instituted the action to recover damages.
The court held:
"Although the same act may constitute both a crime and a tort, the crime is an offense against the public pursued by the sovereign, while the tort is a private injury which is' redressed at the suit of 'the injured party." 188 So. at 136.
In order to determine whether a criminal statute affords civil relief, the courts have adopted a sort of foreseeable test, similar to negligence cases. 3
'Where a statute, though penal in character, plainly imposes a duty for the benefit of a class of individuals, a right of action accrues to a person of such class injured through breach of the duty .' Donaldson v. Tucson Gas, Elec. Light & Power Co., 14 F.Supp. 246, 247 (D.C.Ariz.1935).
A reading of the statutes, here involved, readily demonstrates that appellant was that person which, in the contemplation of the legislature, the statute sought to protect. The statutory duty imposed upon appellee was not to remove the property subject to mortgage from Dade County without the prior written consent of the mortgagee, nor sell or otherwise injure the mortgagee's proprietory interest.
By the allegations of the complaint, appellee is clearly charged with breaching the duty owed to appellant. The cause of action arises by virtue of the duty created by the statute. 4
Inasmcuh as, it is our opinion that a cause of action arose by virtue of the statute, the complaint stated a cause of action by alleging that the defendant violated that statute.
We must now deal with the question of whether the appellant's complaint is sufficient to sustain his request for punitive damages.
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Fischer v. Metcalf
...ground that the case is of exceptional importance. We requested supplemental briefs from the parties on whether Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla. 3d DCA 1964), should be overruled. The panel opinion filed in this case on December 15, 1987, is withdrawn, and the following......
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Littman v. Commercial Bank & Trust Co., s. 81-847
...may give rise to a civil cause of action for compensatory and punitive damages as well as criminal penalties. Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla.3d DCA 1964). Turning then, to the issues raised, we find that a resolution of appellants' first contention involves constructio......
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