Tribbitt v. Crown Contractors, Inc., BP-414

• Decision Date: 24 September 1987
• Docket Number: No. BP-414,BP-414
• Citation: 513 So.2d 1084,12 Fla. L. Weekly 2315
• Parties: 12 Fla. L. Weekly 2315 Leon E. TRIBBITT and Barbara Tribbitt, His Wife, Appellants, v. CROWN CONTRACTORS, INC., and Ensco, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1084

513 So.2d 1084

12 Fla. L. Weekly 2315

Leon E. TRIBBITT and Barbara Tribbitt, His Wife, Appellants, v. CROWN CONTRACTORS, INC., and Ensco, Inc., Appellees.

No. BP-414.

District Court of Appeal of Florida,

First District.

Sept. 24, 1987.

J. Clark Hamilton, Jr. of Penland, Penland & Pafford, Jacksonville, for appellants.

William M. Howell of Howell, Liles, Braddock & Milton, Jacksonville, for appellees.

NIMMONS, Judge.

This is an appeal from an order granting summary judgment in favor of defendants, Crown Contractors, Inc. (Crown) and Ensco, Inc. (Ensco). We reverse.

In June 1984, plaintiff/appellant, Leon E. Tribbitt, while riding as a passenger in a car driven by his wife, Barbara, was injured when their car was struck from the rear by a car operated by the defendant, Carol Cobb Jacobs (Jacobs). The car operated by Jacobs was owned by the defendant, Crown, and leased by Crown to defendant, Ensco. Ensco assigned the vehicle to its employee, Joe Brashier, for his business and personal use. Jacobs was Brashier's fiance.

Plaintiffs' complaint sought damages against defendants, Crown, Ensco and Jacobs. Among other things, the answer filed by defendants, Crown and Ensco, alleged that Jacobs operated the motor vehicle without their permission and consent. Jacobs' answer alleged that she was without knowledge as to whether or not permission or consent was given to her regarding the operation of the vehicle.

Subsequently, Crown and Ensco moved for summary judgment on the grounds that the record affirmatively showed that the vehicle was being operated without their "knowledge, permission, consent or authority." This motion was based on two affidavits. ¹ In the first affidavit, Robert Green, the President of Crown, stated the following:

During the pendency of the lease, it was anticipated by Crown Contractors, Inc. that the vehicle would be operated exclusively by the employees of Ensco, Inc.

In fact, page 2 of the Lease Agreement specifically provides as follows:

"OPERATORS: Lessee shall cause the equipment to be operated by competent employees only, and shall pay all expenses of operation."

Crown Contractors, Inc., had no knowledge that the vehicle was used or operated by anyone other than authorized employees of Ensco, Inc. Crown Contractors, Inc. has never consented to or agreed to permit the vehicle to be operated by anyone other than authorized employees of Ensco, Inc.

On June 29, 1984, Defendant, Carol Cobb Jacobs, was operating the vehicle without the knowledge, permission, consent or authority of Crown Contractors, Inc.

The second affidavit was executed by David Childs, Vice President of Ensco. It stated:

Joe Brashier was an employee of Ensco, Inc. on June 29, 1984. He had been authorized to use the company leased vehicle for his business and personal use. He had been instructed as per company policy and as per the terms of the Lease that the vehicle was only to be operated by authorized Ensco, Inc. employees. As with all Ensco, Inc. employees, Mr. Brashier was required to reimburse the company and/or pay for operating expenses incurred in connection with his personal use of the vehicle. During the relevant time period of the Summer of 1984, Ensco, Inc., was not reimbursed for the personal use of the vehicle by Defendant, CAROL COBB JACOBS. In that Ensco, Inc., was paying the lease on the subject motor vehicle and paying for the operating expenses for the vehicle, Defendant Ensco, Inc. was wrongfully deprived of its leasehold interest and use of the motor vehicle it had under lease from Defendant, Crown Contractors, Inc. The unauthorized use of the motor vehicle by Defendant, Carol Cobb Jacobs was inconsistent with and interfered with the leasehold interest of Ensco, Inc. and their right of possession and control.

Ensco, Inc. had no knowledge that the vehicle was used or operated by anyone other than Mr. Brashier, or other authorized employees of Ensco, Inc. Ensco, Inc., had never consented to or agreed to permit the vehicle to be operated by anyone other than Mr. Brashier and other authorized employees of Ensco, Inc.

On June 29, 1984, Defendant, Carol Cobb Jacobs, was operating the vehicle without the knowledge, permission, consent or authority of Ensco, Inc.

Based on the foregoing, the trial court entered summary judgment in favor of defendants, Crown and Ensco. In this the court erred because there remained a genuine issue of fact as to whether or not the driver of the vehicle was guilty of a "species of conversion or theft."

When control of a vehicle is voluntarily relinquished to another, only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse. Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959). In Susco, a Mr. Salicetti rented an automobile from Susco Car Rental System of Florida, Inc. Under the rental agreement, Salicetti agreed that no one other than himself would drive the automobile without the express consent of the rental agency. The automobile was involved in an accident while being driven by Domingo Gonzalez who had Salicetti's consent but who had never obtained Susco's permission.

The Supreme Court was faced with the question of whether the owner was relieved of responsibility for the damages resulting from the operation of the vehicle by someone other than the person to whom it was rented when such operation was contrary to the express terms of the printed contract as well as verbal instruction at the time of the rental. The...