Opinion
No. 170.
February 21, 1958.
Appeal from Circuit Court, Palm Beach County; C.E. Chillingworth, Judge.
Gladstone L. Kohloss, Orlando, for appellant.
Lewis Zoller, Orlando; Sidney J. Catts, Jr., West Palm Beach; and Arthur L. Steed of Steed Steed, Orlando, for appellee.
This is a companion case to the case of May v. Citizens National Bank of Orlando, Fla., 100 So.2d 651. An automobile was taken from appellant's possession by appellee under a writ of attachment in aid of foreclosure issued in the companion case in the lower court. Appellant then instituted this action of replevin to recover the automobile from appellee.
Both parties below filed motions for summary judgment. The lower court granted appellee's motion, his order stating in part:
"The plaintiff made no inquiry from the Motor Vehicle Commissioner prior to accepting possession of the car, the original certificate and paying for the car in part by cash and in part by financing.
"Under the circumstances, it appears that where one of two innocent parties must suffer through the act of a third person — in this case Harrelson — the law should fall upon one who by his conduct created the circumstances which enabled the third party to perpetuate the wrong and cause the loss.
"It appears that the failure of plaintiff or the dealer from whom plaintiff procured the car, to make inquiry from the Motor Vehicle Commissioner in Tallahassee, brought about the loss to plaintiff without any fault or wrongful act on the part of the bank as a lien holder."
On authority of the opinion filed in the companion case this date, the judgment below is affirmed.
Affirmed.
ALLEN, Acting Chief Judge, and THORNAL and BARKER, A. JJ., concur.