Cooley v. Rahilly
| Decision Date | 29 May 1967 |
| Docket Number | No. 446,446 |
| Citation | 200 So.2d 258 |
| Parties | Charles J. COOLEY and Marian A. Cooley, his wife, Appellants, v. George T. F. RAHILLY, Appellee. |
| Court | Florida District Court of Appeals |
Jay A. Swidler, Miami Beach, and Fred Patrox, Miami, for appellants.
A. H. Toothman, of Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, for appellee.
McLANE, RALPH M., Associate Judge.
The parties will be referred to as they stood in the trial court. This is an appeal from a final summary judgment in favor of the defendant.
The plaintiff, Marian A. Cooley, sustained injuries in an automobile accident and was treated by the defendant, a physician. Thereafter, in June 1962, the defendant performed a laminectomy upon Mrs. Cooley and in July performed an osteotomy upon her right limb. Marian A. Cooley, joined by her husband, Charles J. Cooley, sued the owner and operator of the automobile for damages. After the court granted summary judgment in favor of the plaintiffs on the issue of liability, a settlement and compromise was effected by the execution of a release. The negligence case was then dismissed, with prejudice. Subsequently, the plaintiffs filed the present case against the defendant for damages claimed by reason of alleged unauthorized surgery, the osteotomy. The complaint was framed as an action of trespass to the person, it being alleged the operation was performed without proper consent.
It is conceded that all elements of damage sought in the prior negligence action are now claimed against the defendant-physician. The defendant affirmatively plead that the prior settlement and release in the negligence case estopped the plaintiffs to seek the same damages.
The trial judge held that the plaintiffs elected their remedy by the first suit and were not entitled to recover damages for the same injuries. He ruled that an estoppel operated against the plaintiffs, which prevented them from maintaining the instant case and thereupon granted summary judgment in favor of the defendant-physician.
The plaintiffs insist that F.S. Section 54.28, F.S.A., is controlling, and that the trial court overlooked the effect of the statute. F.S. Section 54.28, F.S.A., in essence, provides that a release of one tort-feasor does not release or discharge any other tort-feasor for the Same tort.
On the other hand, the defendant asserts that the statute has no application inasmuch as the physician is not being sued for the Same tort. Further, he says, that the original tort sounded in negligence, while trespass is a wilful act, the damages arising therefrom were not the result of an effort to alleviate conditions caused by the first tort.
We are unable to agree with either contention.
The plaintiffs, as a result of the automobile accident, had a cause of action against the owner and operator of the vehicle for injuries and damages resulting from the negligence in said accident. Upon the performance of the alleged unauthorized operation, the plaintiffs had an additional, separate and distinct action against the physician for trespass to the body, which the...
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