Liberty Mutual Insurance v. Scammaca

303 So. 2d 46, 1974 Fla. App. LEXIS 8235

• Court: District Court of Appeal of Florida
• Decided: November 12, 1974
• Docket: No. 74-200
• Status: Published

Opinion

PEARSON, Judge.

The defendant, A-l Auto Leasing, Inc., and its insurer appeal a final judgment based on a jury verdict. The final judgment was entered in favor of the plaintiff in an action for subrogation arising out of a personal injury case.

The rental car company had rented a car to one Martinez, who left the country, entrusting the car to a relative. Thereafter, during the rental period, a minor living in the same home as the relative used the car and had an accident. The plaintiff recovered a judgment against the defendant-driver and the rental company. This action was for the purpose of determining the liability of the rental company’s insurer. The defendant rental company and its insurer defended upon the basis that the use by the minor had been a conversion of the automobile. The jury found for the plaintiff and this appeal followed.

The only substantial issue presented goes to the correctness of certain instructions given by the trial court. The trial court did instruct the jury as requested by both parties upon the law applicable to common law conversion. In our view this was error, but harmless error.

Under the holding of the Supreme Court of Florida in Roth v. Old Republic Insurance Company, Fla. 1972, 269 So.2d 3, and Susco Car Rental System of Florida v. Leonard, Fla. 1959, 112 So.2d 832, the plaintiff was entitled to a directed verdict upon the evidence presented, there being no substantial evidence to support a conversion but merely evidence of an unauthorized use.

Affirmed.