Arsenault v. Thomas
| Decision Date | 24 June 1958 |
| Docket Number | No. 57-193,57-193 |
| Parties | Gerald Maurice ARSENAULT, Maurice Arsenault, d/b/a Maurice Auto Trim, and Harry Polofsky d/b/a Harry's Auto Sale, Appellants, v. Richard E. THOMAS, Appellee. |
| Court | Florida District Court of Appeals |
Wicker & Smith, Miami, for appellants.
J. Ben Watkins, Miami, for appellee.
This appeal is from a final judgment rendered on a jury verdict in favor of the appellee for personal injuries sustained in an automobile accident. The accident involved three automobiles. Prior to the institution of suit in the court below, the appellee executed a release and covenant not to sue the driver of the third car, Gail Whitehead. Consideration for the release and covenant not to sue was $8,800.
The appellants urged, as one of the defenses in their answer, that any recovery by the appellee should be reduced by the amount paid appellee under the covenant not to sue. During the course of the trial, the appellants introduced in evidence, over the objection of the appellee, the covenant not to sue given by the appellee to to Gail Whitehead. At the conclusion of all the testimony and at the express request of the appellants, the court instructed the jury on the issue raised by the defense interposed in the appellant's answer, namely the diminution of any verdict that may be found in favor of the appellee, where such verdict would be predicated upon a finding of concurrent negligence on the part of the appellants and Gail Whitehead. This charge was given over the objection of the appellee.
The jury returned a verdict in the sum of $13,800 and indicated by its verdict that they found Gail Whitehead also negligent. This portion of the verdict was stricken sua sponte by the trial judge § surplusage.
The sole point raised by the appellants on this appeal is the alleged failure of the trial judge to apply the provisions of § 54.28, Fla.Stat., F.S.A., the pertinent portions of which provide:
'(1) A release or covenant not to sue as to one 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.
'(2) At any trial, if any defendant shall make it appear to the court that the plaintiff, or any person lawfully on his behalf, has delivered a release or covenant not to sue to any person, firm or corporation in partial satisfaction of the damages sued for, the court shall, at the time of rendering judgment set-off such amount from the amount of any judgment to which the plaintiff would be otherwise entitled and enter judgment accordingly.
'(3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court, shall not be made known to the jury.'
This cause was tried in the court below beginning on July 8, 1957, and the provisions of § 54.28, supra (chapter 57-395), became effective on June 19, 1957. Neither the court nor counsel for the respective parties appear to have been aware of the provisions of the aforesaid section. Consequently no request was made by counsel for either of ...
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...on the distribution of the escalated rentals, pending determination of that issue by the Supreme Court of Florida. Arsenault v. Thomas, 104 So.2d 120 (Fla. 3rd D.C.A. 1962); Union Trust Company v. Baker, 143 So.2d 565 (Fla. 2nd D.C.A. 1962); Holmes v. School Board of Orange County, 301 So.2......
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...not only not preserved but was affirmatively invited and may therefore not be successfully presented in this court. Arsenault v. Thomas, 104 So.2d 120 (Fla. 3d DCA 1958); Adams v. State, 465 So.2d 564 (Fla. 3d DCA 1985); 3 Fla.Jur.2d Appellate Review § 294 (1978). Second, and in any case, t......
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Adams v. Shiver
...ruling, she cannot later, on appeal, be heard to complain of the trial court's action in acceding to her request. See Arsenault v. Thomas, 104 So.2d 120 (Fla.1958). Appellant also argues reversal is required because the trial court failed to specifically cite and discuss subsection 61.13(2)......
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Casali v. Casado Transport, Inc.
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Striking a balance to win: balancing the need to win the trial with the need to preserve the record on appeal.
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