
    SUN FIRST NATIONAL BANK OF MELBOURNE, as Administrator ad litem of the Estate of Ralph E. Balch and Bess D. Balch, Appellant, v. Lael N. BATCHELOR, Individually and as Executrix of the Estate of Mead W. Batchelor, Appellee.
    No. 73-1056.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1975.
    
      Sam Daniels, Miami, and Williams, Geil-ich & Potter, Melbourne, for appellant.
    Frank Clark, III Sarasota, for appellee.
   OWEN, Chief Judge.

The principal question involved in this case is whether Section 768.041(1), F.S., applies to an action for conversion. We conclude, as the trial court did, that the statute is not applicable and that the common law rule obtains, i.e., a release or discharge of one or more tort-feasors, excut-ed in satisfaction of the tort, is a discharge of all other tort-feasors who may be liable for the same tort.

This case was previously before the court and is reported as National Bank of Melbourne and Trust Co. v. Batchelor, Fla.App.1972, 266 So.2d 185. After we remanded, appellant was appointed administrator ad litem of the respective estates of Ralph E. Balch and Bess D. Balch, his wife, and in that capacity was substituted as plaintiff and was permitted to file an amended complaint against the appellees. The amended complaint, seeking some $400,000.00 in damages, was in two counts, one for conversion and the other for obtaining property by undue influence, both, however, arising out of the same alleged misconduct on the part of the appellees.

While the cause was thus pending, appellant executed a written release of all claims it might have against the National Bank of Melbourne and Trust Co. (and its bonding company, Aetna Insurance Co.) arising out of any conduct on the part of appellees, Lael N. Batchelor and Mead W. Batchelor, her husband, in connection with the handling, servicing or administration of any and all accounts, assets, securities and trusts belonging to or established by Ralph E. Balch and/or Bess D. Balch, his wife [occurring during the time that the said Lael N. Batchelor was in the course and scope of her employment as a trust officer at the National Bank of Melbourne and Trust Co.]. Upon proof being offered that appellant had executed and delivered such release agreement, the court entered summary judgment for appellees, ruling that the release operated to release and discharge the alleged liability of appellees arising out of the same tort.

Appellant contends that the trial court erred in holding that the release of appellant operated to discharge the liability of appellees because (1) Section 768.-041(1), F.S., was applicable to prevent the release from discharging appellees of their alleged liability, (2) in any event, the release of the bank and its bonding company for liability arising out of conversions allegedly committed by Lael N. Batchelor while in the course and scope of her employment by the bank, would not apply to the separate cause of action against appel-lees for undue influence, (3) the release agreement should properly be construed simply as a covenant not to sue, and (4) the common law rule no longer prevails in Florida since 1957 when the predecessor to present Section 768.041, F.S., was enacted.

Section 768.041(1), F.S., reads as follows :

“(1) A release or covenant not to sue as to one (1) tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.” (E. S.)

If the legislature had intended this statute to abolish the common law rule entirely, then surely it would have omitted as unnecessary the words which we have italicized, and would have had the statute read simply:

“A release or covenant not to sue as to one tort-feasor shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.”

We are satisfied that the words, “for property damage to, personal injury of, or the wrongful death of any person” were placed in the statute as words of limitation, and that the legislature intended for the common law rule to continue to prevail as to all cases not falling within these expressed limitations. Cf., Flowers v. Miskoff, Fla.App.1970, 233 So.2d 201.

On the foregoing premise, the issue is thus narrowed to the question of whether an action for conversion comes within the category of “property damage to any person”. A persuasive argument could be made that as to the owner of property the loss of the property is the same whether the loss be due to conversion by another or to the property being totally damaged or destroyed by the negligence of another. Yet, the gravamen of the action of conversion is a wrongful deprivation of property of the owner, and the damage to which the owner is entitled arises from the wrongful deprivation of the property, not from some damage to or depreciation of the property. We conclude that a conversion is not “damage to property of any person” within the meaning of Section 768.041 (1), F.S.

As to the remaining contentions we have no difficulty in concluding that the document is a full release — not merely a covenant not to sue — and that it effectively bars both counts of the amended complaint.

The judgment is affirmed. However, our decision does pass upon the following two questions which we conceive to be of great public interest:

1. Does Section 768.041(1) F.S. abolish in toto the common law rule to the effect that the release of one or more tort-feasors operates as a discharge of all other tort-feasors who may be liable for the same tort ?
2. If not, is an action for conversion one which is for “property damage to any person” within the meaning of Section 768.041(1) F.S.?

It is our intention to so certify such questions to the Supreme Court of Florida upon timely request of either party to the cause.

Affirmed.

CROSS, J., concurs.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge

(dissenting).

As pointed out in the majority opinion, the question on this appeal is whether the cause of action alleged in appellant’s amended complaint falls within the ambit of § 768.041(1), F.S. 1973.

Appellant’s primary argument is that § 768.041(1), F.S. 1973, saves appellant’s cause of action against appellees, and I agree. The divergence of opinion as to applicability of the statute results from differing interpretations of the following phrase contained in the statute: “property damage to any person.” Certainly, in the field of automobile negligence litigation the term “property damage” clearly refers to physical damage to personal property, such as an automobile or to real property resulting from an automobile collision. However, § 768.041(1), does not speak simply to “damage to property” or “property damage,” it refers to “property damage to any person.” It seems to me that when one person wrongfully converts another person’s property the first person has inflicted property damage upon the second person. Absurd consequences would result if the construction urged by the appellees is accepted. For example, under that construction, if two individuals took a sledge hammer to one’s car and damaged it or totally destroyed it, the release of one would not release the other. But if the same two individuals stole the car, the release of one thief from civil liability would release the other. The legislature could not have intended so absurd a result. I would also point out that not a single reason has been advanced, nor have I been able to conjure one up, to explain why the legislature would have passed a statute which abrogated the common law rule regarding the release of joint tortfeasors and limited it to certain torts. Although appellees do not say which torts the statute includes, they seem to suggest that it includes negligent torts and some intentional torts. Of course it is specious to argue that only negligent torts are included, because wrongful death, (expressly included in the statute) could result from an intentional tort as well as from negligence. Moreover, malicious prosecution, an intentional tort, has already been judicially declared to be within the statute. See Adler v. Segal, Fla.App.1959, 108 So.2d 773.

It should also be noted that appellant’s proposed construction is not unusual. Bouvier’s Law Dictionary, Third Revision, page 749, defines damage to personal property, inter alia, as the unlawful taking and detention thereof from the owner. Numerous cases have held that conversion is an “injury to property.” In McIntyre v. Kavanaugh, 242 U.S. 138, 37 S.Ct. 38, 61 L. Ed. 205, the Supreme Court of the United States had occasion to determine whether the plaintiff’s cause of action for conversion of stock certificates survived the defendant’s discharge in bankruptcy. The federal statute involved in that case provided that a discharge in bankruptcy released all provable debts except debts resulting from liability for, inter alia, “wilful and malicious injuries to the person or property of another.” In holding the term “injury to the property of another” included conversion, the Court stated:

“To deprive another of his property forever by deliberately disposing of it without semblance of authority is certainly an injury thereto within common acceptation of the words. Bouvier’s Law Diet., ‘Injury.’ And this we understand is not controverted; but the argument is that an examination of our several Bankruptcy Acts and consideration of purpose and history of the 1903 amendment will show Congress never intended the words in question to include conversion. We can find no sufficient reason for such a narrow construction. And instead of subserving the fundamental purposes of the statute, it would rather tend to bring about unfortunate if not irrational results. Why, for example, should a bankrupt who had stolen a watch escape payment of damages, but remain obligated for one maliciously broken?”

In Irwin v. McElroy, 91 Or. 232, 178 P. 791 (1919), the court construed the provisions of a statute providing for joinder of claims involving “injuries with or without force, to property” and held that the statute permitted joinder of conversion claims with a trespass claim in a single action.

In Lamb v. Howard, 145 Ga. 847, 90 S. E. 63 (1916), the Supreme Court of Georgia held that a statute establishing venue for suits aginst a railroad company for injury to person or property applied to a suit against a railroad company for conversion. The court stated:

“ . . . here we are dealing with the expression ‘injury to property’ in its broad and general sense; and that according to the general and uniform interpretation of those terms, is broad enough to comprehend a wrongful conversion of property.”

Though there are numerous others, the final case I would refer to is Weldler v. Koppel, Sup, 100 N.Y.S.2d 300 (1950), citing Mintzer v. Windsor Lamp Mfg. Co, 175 Misc. 551, 23 N.Y.S.2d 990 (1940), which held that the New York statute of limitations for injury to property applies to cases involving conversion.

It is true that the statutes involved in the foregoing cases use the term “injury” while the statute in the present case uses the term “damage.” However this difference is not crucial since the terms “injury” and “damage” appear to be synonymous. Bouvier’s Law Dictionary, Third Revision, page 749, states that “there seems in this country to be no distinction between the words damage and injury.” Black’s Law Dictionary, Fourth Edition, page 924, says, “The words ‘damage,’ ‘loss,’ and ‘injury’ are used interchangeably and, within legislative meaning and judicial interpretation, import the same thing. In re City of Pittsburgh, 243 Pa. 392, 90 A. 329.” See also Cheek v. Durasteel Co, Mo.App.1948, 209 S.W.2d 548. In the same work Black (at p. 466) further states that “By damage, we understand every loss or diminution of what is a man’s own, occasioned by the fault of another.” The case of Williams v. Young, 105 Ga.App. 391, 124 S.E. 2d 795 (1962), holds that the words “injury” and “damage” in a negligence instruction are synonymous. Florida Standard Jury Instruction 6.1. a, seems to authorize a court to use the terms “loss,” “injury,” and “damage” interchangeably. See 31 F.S.A., 484.

Appellees suggest the location of the statute in question in a chapter entitled Negligence indicates something. But what? Certainly it does not indicate that the statute applies only to negligence cases since, as has previously been discussed, the statute covers intentional torts also. It seems more likely that the location of § 768.041(1) in the Negligence chapter is a fortuitous result from a regrouping of laws dealing with similar subject matter, namely, injuries or damages. When it was originally passed as Chapter 57-395, Caws of Florida 1957, the act bore the following title:

“AN ACT to permit the releasing of one tort-feasor without its effect being to release all tort-feasors, and providing for set-off in actions against other tort-fea-sors.”

The act was then placed in Chapter 54 of the Florida Statutes of 1957, a chapter entitled “Trial Practice and Procedure.” The later transfer of the act to Chapter 768 of the Florida Statutes cannot be taken as a change in the original meaning of the act. Shortly after passage of the act a law review article stated the following: “In 1957 Section 54.28 of the Florida Statutes was enacted. The statute abolishes the common law rule that release of one joint tortfeasor releases all other joint tort-feasors.” Daniels, Torts, 14 University of Miami Law Review, 602, 629.

It seems to me that if malicious prosecution can be construed to fall within the statute as “personal injury to any person” (as was done in Adler v. Se-gal, supra) then surely conversion of one’s property must be contemplated with the term “property damage to any person.” Since that decision in 1959 the legislature has had numerous opportunities to nullify it by amending § 768.041(1), but it has chosen not to do so. In reliance upon Adler v. Segal, supra, commentators suggest the “personal injury” provision of the statute includes the invasions of individual rights. Kay, Civil Procedure and Appellate Review, 14 Miami Law Review 235, 281; Annot: Joint Tortfeasors — Release, 73 A.L.R.2d 403, 433.

Finally, appellees find comfort in Flowers v. Miskoff, Fla.App.1970, 233 So.2d 201, decided by this court. However, I would distinguish that case on two grounds. First, Flowers is a case sounding in contract, not in tort. Second, the statement that § 768.041(1) does not apply to conversion cases is dictum, as it was unnecessary to the decision in the case. If the first two grounds are insufficient to distinguish the Flowers case from the present case, then I think this court should recede from the foregoing statement contained therein. Courts do that from time to time! Darden v. State, Fla.App.1975, 306 So.2d 581, Second District Court of Appeal, opinion filed January 24, 1975. Thus, it appears to me the better reasoned conclusion is that § 768.041(1) applies to a conversion action so that the release of the Bank of Melbourne did not serve to release appellee.

Accordingly, I would reverse the final summary judgment and remand the cause for further proceedings. 
      
      . Section 768.041(1), F.S.:
      “(1) A release or covenant not to sue as to one (1) tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.”
     
      
      . Atlantic Coast Line Railroad Co. v. Boone, Fla.1956, 85 So.2d 834, 57 A.L.R.2d 1186.
     
      
      . Star Fruit Co. v. Eagle Lake Growers, Inc., 1948, 160 Fla. 130, 33 So.2d 858.
     
      
      . The author, Sam Daniels, takes a consistent position today as co-counsel for appellant.
     