Gerardi v. Carlisle

• Decision Date: 30 December 1969
• Docket Number: No. L--500,L--500
• Citation: 232 So.2d 36
• Parties: Rudolph GERARDI and Loretta Gerardi, his wife, Appellants, v. Elizabeth CARLISLE, Appellee.
• Court: Florida District Court of Appeals

Page 36

232 So.2d 36

40 A.L.R.3d 1171

Rudolph GERARDI and Loretta Gerardi, his wife, Appellants, v. Elizabeth CARLISLE, Appellee.

No. L--500.

District Court of Appeal of Florida, First District.

Dec. 30, 1969.

Rehearing Denied March 4, 1970.

Blalock, Holbrook, Lewis, Paul & Bennett, Jacksonville, for appellants.

Howell, Kirby, Montgomery & D'Aiuto, Jacksonville, for appellee.

WIGGINTON, Judge.

Plaintiffs seek appellate review of a summary final judgment rendered in favor of defendant. There is no contention that the pleadings, exhibits and other evidence in the file create any disputed issues of fact. It is agreed that in rendering the judgment appealed the trial court found that defendant was entitled to judgment as a matter of law. Plaintiffs challenge the correctness of this adjudication.

Plaintiff wife suffered personal injuries and other damages as a result of a collision between a motor vehicle in which she was riding and a vehicle owned by one Bobby Polk and operated with his knowledge and consent by Elizabeth Carlisle. As a result plaintiffs instituted an action against the owner of the vehicle, Bobby Polk, alleging damages suffered by them as a result of the negligent operation of Polk's vehicle by Carlisle. Final judgment in that action was rendered in favor of plaintiffs and against Polk who paid into the registry of the court the amount necessary to satisfy the judgment in full, together with all accrued interest and costs, pursuant to the applicable provisions of the statute. ¹ Plaintiffs appealed on the ground that the amount of the verdict was insufficient, but the judgment was affirmed by this court. ² Plaintiffs have refused to accept the registry deposit, and have taken no action toward execution of that judgment.

While the first case was pending on appeal in this court plaintiffs instituted the case sub judice in which they name as the sole defendant the driver, Elizabeth Carlisle. The cause of action alleged in the complaint is the same cause of action sued upon in their case against the owner of the vehicle, Bobby Polk, the only difference being that defendant is sued as operator of the offending vehicle whereas in the former suit the defendant, Bobby Polk, was sued as the owner of the vehicle vicariously liable for the damages resulting from its negligent operation by Carlisle. To the complaint defendant filed a defense of general denial, and in addition interposed a defense of res judicata and estoppel by judgment. By this latter defense the defendant alleges the recovery of a judgment by plaintiffs against Polk and the satisfaction of that judgment by payment of the amount thereof into the court registry. The answer further alleges that the issues in the suit against Polk are identical with the issues raised by the pleadings in this case, and the cause of action is based upon the identical facts alleged and proved in the first case against Polk. Based upon these allegations defendant alleges that plaintiffs are estopped from claiming damages in this case by reason of the judgment rendered in their favor in the action brought by them against the owner Polk which has been satisfied in full, or, in the alternative, are barred from recovery under the doctrine of res judicata. A copy of the complaint, answer and final judgment in the Polk suit are attached to the answer as exhibits.

Based upon the pleadings, admissions of fact, and the exhibits attached to defendant's answer, the court rendered summary final judgment in defendant's favor. It is that judgment which we are called upon to review on this appeal.

It is appellants' position that since Bobby Polk, the owner of the offending vehicle, and defendant Elizabeth Carlisle, operator of that vehicle, are joint tort-feasors, plaintiffs possess the right to sue them in separate actions, and if judgment is secured against each, then plaintiffs may elect which of the two judgments they will seek to enforce by execution. Appellee does not question the correctness of this postulate. ³

Appellants recognize the well established principle of law that the satisfaction by a plaintiff of a judgment secured against one joint tort-feasor will discharge all other joint tort-feasors from liability and immunize them against subsequent claims by plaintiff arising out the same cause of action. Appellants contend, however, that their judgment against Bobby Polk has not been voluntarily satisfied by them within the meaning and intent of the foregoing rule because they have refused to accept the amount deposited by Polk in the court registry in payment of the judgment. Appellants urge that their right to pursue in separate and successive actions each of the joint tort-feasors, the owner and the operator of the offending vehicle, may not be taken from them merely by the judgment debtor, Polk, depositing the amount of the judgment secured against him into the court registry pursuant to the provisions of the statute. ⁴ Appellants recognize that the statute in question characterizes such a deposit as a satisfaction in full of the judgment. They submit, however, that the weight of authority in this country holds that a deposit into the court registry by a join tort-feasor of the amount of a judgment secured against him under statutes similar to the one in effect in this state does not have the legal effect of releasing all other joint tort-feasors from liability or of constituting a satisfaction of the judgment to the extent of precluding the injured plaintiff from bringing a separate and successive action against another or other joint tort-feasors on the same cause of action.

Appellants therefore present as the sole point on appeal the question of whether the payment of a judgment by a defendant joint tort-feasor into the registry of the court pursuant to F.S. § 55.141, F.S.A., without acceptance of the deposit by the plaintiff constitutes such a satisfaction of the judgment as to preclude a subsequent suit by the injured party against another joint tort-feasor. A careful analysis of the statute persuades us to the view that it was enacted primarily for the benefit of judgment debtors, and not judgment creditors. In fact the statute operates to penalize the judgment creditor who accepts the payment so deposited in the court registry because when the amount is withdrawn, the total amount of the judgment is diminished by the amount of the fee charged by the clerk for passing the money into and out of his registry fund. The benefits conferred upon the judgment debtor under the statute are substantial. By making such a deposit he precludes a levy from being made against his property, arrests the further accrual of interest on the judgment, and at the same time releases and property he may own from the lien of the judgment. The statute furthermore permits the judgment debtor to discharge his obligation by availing himself of the provisions of the statute under circumstances where the judgment creditor is unknown, cannot be reached, or his place of residence cannot be ascertained. We do not conceive it to have been the legislative intent by the enactment of this statute to withdraw from an injured party the right to bring separate and successive actions against two or more joint tort-feasors by requiring such party to involuntarily accept as satisfaction in full the amount of a judgment secured against one tort-feasor in the first action instituted, if that defendant deposits in the court registry the amount of the judgment rendered against him. The great weight of authority in this country is to the contrary, and stands for the proposition that a deposit under a statute similar to the one involved in this case amounts to a satisfaction of the judgment only insofar as it pertains to the judgment debtor making the deposit, but does not constitute such a satisfaction as to preclude the injured plaintiff from pursuing his remedies against remaining tort-feasors in separate and successive actions against them. ⁵

Prosser, in his treatise on the Law of Torts, says:

'The first (English rule) has generally been repudiated in the United States, and it is now held everywhere that an unsatisfied judgment against one tort-feasor does not bar an action against another. The plaintiff may bring separate suits, pursue each to judgment, and elect to enforce either or both. It has even been held that he may refuse tender of payment of the first judgment, and still proceed to speculate upon the possibility of a larger recovery by means of a second.' ⁶

In the Restatement of the Law of Torts, the general rule is stated to be:

'The issuance of execution against one of the tort-feasors does not destroy the right to proceed against the others. Likewise an unaccepted tender of payment or a payment into court of the amount of the judgment by a judgment debtor without the consent of the judgment creditor does not terminate the claim against other persons liable for the same harm.' ⁷

The foregoing statements of principle have been adopted by the author of Corpus Juris Secundum as the general rule in effect in this country:

'Payment of a judgment into court, without acceptance thereof by plaintiff in satisfaction of his recovery, will not bar an action against a joint tort-feasor. * * *' ⁸

Although appellee does not agree that the point on appeal presented and argued by appellants is necessarily the controlling question to be decided, she takes the position that if such point is valid, then the question has been resolved against appellants by the decision of the Fourth District Court of Appeal in the case of Weaver v. Stone. ⁹ The Weaver case is factually identical in all material respects with the case sub judice. From the opinion we are unable to determine whether the court treated the defendant owner of the vehicle in the first case and the defendant operator in the second case as joint tort-feasors, or whether the court based its decision on some other and different...