Devlin v. McMannis

• Decision Date: 04 February 1970
• Docket Number: No. 38815,38815
• Citation: 231 So.2d 194
• Parties: Francis J. DEVLIN, A. B. Wolosoff, Morty Wolosoff, Maximo Moorings Marine Center, Incorporated, a Florida corporation; Waterways Development, Inc., a Florida corporation, and Maximo Moorings Marina, Inc., Petitioners, v. James D. McMANNIS, as Administrator of the Estate of John H. McMannis, a deceased minor; James D. McMannis, for himself and on behalf of Marion R. McMannis, as parents of John H. McMannis, deceased minor, Respondents.
• Court: Florida Supreme Court

Page 194

231 So.2d 194

Francis J. DEVLIN, A. B. Wolosoff, Morty Wolosoff, Maximo Moorings Marine Center, Incorporated, a Florida corporation; Waterways Development, Inc., a Florida corporation, and Maximo Moorings Marina, Inc., Petitioners, v. James D. McMANNIS, as Administrator of the Estate of John H. McMannis, a deceased minor; James D. McMannis, for himself and on behalf of Marion R. McMannis, as parents of John H. McMannis, deceased minor, Respondents.

No. 38815.

Supreme Court of Florida.

Feb. 4, 1970.

Marvin E. Barkin and Edward M. Waller, Jr., of Fowler, White, Collins, Gillen, Humkey & Trenam, St. Petersburg, for petitioners.

William L. Penrose of Harris, Barrett, Dew & Sieber, and Masterson, Lloyd, Sundberg & Rogers, St. Petersburg, for respondents.

ERVIN, Chief Justice.

We have for review a decision of the District Court of Appeal, Second District, in McMannis v. Devlin, Fla.App.1969, 222 So.2d 492, on the basis said decision directly conflicts with Ellingson v. Willis, Fla.App.1964, 170 So.2d 311.

James D. McMannis, Respondent herein, filed suit against one Devlin and other Petitioners herein as joint tort-feasors for damages arising from an accident in which Respondent's minor son was killed. The suit was brought in two counts, one by Respondent as administrator of the estate of his deceased son and the other by Respondent individually and on behalf of his wife as surviving parents of their minor son.

Prior to trial of the cause Respondent executed a settlement with Devlin, one of the joint tort-feasors. The total amount of the settlement was $20,000, a release being executed in the amount of $2,000 for the estate's claim, and a separate release being given by Respondent acknowledging an $18,000 sum for the claim of the parents individually.

Thereafter, Respondent and Petitioners proceeded to trial on the claims Respondent asserted against Petitioners as joint tort-feasors with Devlin. At the conclusion of trial, the jury returned verdicts in the amount of $10,000 for Respondent on the estate's claim and in the amount of $5,000 for Respondent individually and on behalf of his wife as surviving parents.

Following the trial, Respondent filed separate motions for judgments pursuant to the jury's verdicts. Petitioners filed a motion for judgment in the sum of zero dollars, maintaining the $20,000 received in settlement should be used as a set off against the two verdicts rendered by the jury in the amount of $15,000. The trial judge entered a judgment in the sum of zero dollars pursuant to Petitioners' motion.

On appeal, the District Court reversed and held:

'We think the trial judge erred in rendering his judgment. Florida has long recognized the distinction between a suit on behalf of a minor child, deceased, and damages for wrongful death. See, e.g., Stokes v. Liberty Mutual Ins. Co., Fla.1968 213 So.2d 695; Miami Dairy Farms, Inc. v. Tinsley, 1934, 115 Fla. 650, 155 So. 850; Latimer v. Sears Roebuck and Co., 285 F.2d 152, 86 A.L.R.2d 307 (5th Cir.1960). The judge treated the verdicts as one verdict when in fact there were two verdicts. He treated the settlements as one settlement and the verdicts as one verdict when in fact he should have allowed the settlement obtained by James D. McMannis, as administrator of the estate, to be set off against the verdict rendered for James D. McMannis, as administrator of the estate, and the settlement to James D. McMannis, individually and on behalf of Marion R. McMannis, to be set off against the verdict to James D. McMannis, individually and on behalf of Marion R. McMannis. In so doing there would have been left a balance of $8,000 due plaintiff, James D. McMannis, as administrator of the estate of John H. McMannis, deceased minor. Section 768.041(2), F.S.A.' McMannis v. Devlin at...