Hertz Corp. v. Hellens, 2593

• Decision Date: 11 April 1962
• Docket Number: No. 2593,2593
• Parties: The HERTZ CORPORATION, a corporation, Appellant, v. Alice A. HELLENS, Appellee.
• Court: Florida District Court of Appeals

Page 73

140 So.2d 73

The HERTZ CORPORATION, a corporation, Appellant, v. Alice A. HELLENS, Appellee.

No. 2593.

District Court of Appeal of Florida, Second District.

April 11, 1962.

James D. Druck, McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, for appellant.

G. H. Martin and L. Fred Austin, Fort Lauderdale, for appellee.

ALLEN, Acting Chief Judge.

The Hertz Corporation, appellant, was the defendant below and appeals from a judgment in favor of the plaintiff-appellee entered pursuant to a jury verdict in favor of the plaintiff for damages arising from an automobile accident.

The only issue raised for appellate review concerns the effect of a covenant not to sue, pursuant to a settlement between the plaintiff and the defendant, Eli Bordetsky, who was the driver of the car which injured the plaintiff-appellee. The Hertz Corporation was the owner of the said car.

The appellant takes the position that an act passed during the 1957 session of the Florida Legislature, which authorized the releasing of one tort-feasor without its effect being to release all tort-feasors and providing for a set-off in an action against other tort-feasors was not applicable in an action brought against vicarious tort-feasors.

We hold that the act applies to all tortfeasors, whether joint or several, including vicarious tort-feasors.

Chapter 57-395, Laws of Florida, 1957, provides:

'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-feasors.

'Be it Enacted by the Legislature of the State of Florida:

'Section 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.

'Section 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.

'Section 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.'

It will be observed from the above act, which appears in the Florida Statutes as § 54.28, F.S.A., that it does not exempt or except joint tort-feasors.

It a plaintiff settles with one of two or more tort-feasors, Section 2 of the above act directs the court to set off the amount of that settlement against any judgment recovered against the remaining 'non-released' tort-feasors. The appellant in the instant case apparently did not request a set-off.

The one who entrusts the operation of an automobile to another is vicariously liable to a person injured by the negligence of the party to whom the automobile was entrusted.

Since the Supreme Court of Florida in the case of Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255, enunciated the doctrine that an automobile in its operation is a dangerous instrumentality, the owner is vicariously liable for the negligence of the driver. The legal relationship of the owner to the driver in this context is equivalent to that of master and servant, principal and agent or bailor and bailee. Even though he has committed no tortious act, the owner of an automobile is by law charged as a tort-feasor when, with his consent, his automobile is negligently operated by another resulting in injury to persons or property.

In the case of Susco Car Rental System of Florida v. Leonard, Fla.1959, 112 So.2d 832, the Supreme Court, in its opinion, quoted from Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255, which in turn quoted from Barmore v. Vicksburg, S. & P. R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, as follows:

"The servant is empowered by the master to discharge certain duties, and it is incumbent upon him to exercise the same care and attention which the law requires of the master; and, if that care and attention be about the management and custody of dangerous appliances, the master cannot shift the responsibility connected with the custody of such instruments to the servant to whom they have been intrusted, and escape liability therefor. This rule arises from the absolute duty which is owing to the public by those who employ in their business...