Kellenberger v. Widener, 4230

Decision Date11 December 1963
Docket NumberNo. 4230,4230
PartiesMartin M. KELLENBERGER, Petitioner, v. Peter A. B. WIDENER, III, and M. E. Barnett, Respondents.
CourtFlorida District Court of Appeals

Charles A. Nugent, Jr., of Miller, Cone, Owen, Wagner & Nugent, West Palm Beach, and Hauser & Reed, Deerfield Beach, for petitioner.

Coe, Richardson & Broberg, Palm Beach, and Bedell, Bedell & Dittmar, Jacksonville, for respondent Peter A. B. Widener, III.

Edward W. Starr, West Palm Beach, for respondent M. E. Barnett.

SHANNON, Judge.

Martin M. Kellenberger has filed a petition for writ of certiorari to review an order of the Circuit Court for Palm Beach County. It appears from the petition that Kellenberger is suing the respondents for damages and has set forth allegations of fact which he claims will sustain a verdict for punitive and exemplary damages. The record shows that petitioner propounded two separate sets of interrogatories to the respondents, but that the court below entered an order dated May 15, 1963, sustaining the objections of Respondent Widener, and saying, in part:

'* * * [T]he Court is of the opinion that the objections of the defendant WIDENER should be sustained, in that they seek to inquire into the financial status of said defendant, and the weight of authority appears to be that, where there is more than one tort-feasor, the wealth or financial standing of one or more of the defendants is not proper [sic] for consideration by a jury in assessing punitive damages, in that it could result in unjust punishment by imposing a financial burden on a defendant less able to pay, the defendants being jointly and severally liable. * * *

'* * * [O]bjections of the defendants to said interrogatories are hereby sustained.'

Among other grounds of objection to the interrogatories, Respondent Widener objected because '[t]he subject matter of the discovery sought may not be availed of in this action against two parties defendant.'

Petitioner does contend that the trial court acted without, or in excess of, its jurisdiction. Hence, the question here is whether the order fails to conform to the essential requirements of law, and if so, whether the order may cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate.

Since we find that the order does conform to the essential requirements of law, the latter part of the question becomes moot. Thus, the facts as shown do not, as a matter of law, entitle the petitioner to the writ of certiorari. It is not alleged in the amended complaint that there were other than the two named defendants. Since the common law rule applies in Florida that there is no right of contribution among joint tort-feasors (7 Fla.Jur., Contribution, Sec. 7), and since there is no provision in Florida by statute or rule for the award of separate or apportioned verdicts for damages against several joined defendants, the jury may return only a single verdict for punitive damages against both defendants. The law is: 'Where the rule is not modified by statute, an assessment of damages in an action against joint tort-feasors must be for a lump sum against those found guilty and cannot be severally apportioned between them. * * *' 25 C.J.S. Damages, § 189c.

The majority rule is that evidence of a defendant's financial standing is inadmissible where the action is brought against two or more joint defendants. This rule is stated in 15 Am.Jur., D...

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12 cases
  • Lincenberg v. Issen
    • United States
    • Florida Supreme Court
    • July 30, 1975
    ...(Footnote: Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316; Kellenberger v. Widener, Fla.App.1963, 159 So.2d 267; Westinghouse Electric Corp. v. J. C. Penney Co., Fla.App.1964, 166 So.2d 211; Aircraft Taxi Co. v. Perkins, Fla.App.1969, 227 S......
  • McCauley v. Ray
    • United States
    • New Mexico Supreme Court
    • December 16, 1968
    ...Cattle Company. Appellants cite Washington Gaslight Co. v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 43 L.Ed. 543 (1898); Kellenberger v. Widener, 159 So.2d 267 (Fla.Ct.App.1963), and Walker v. Kellar, 218 S.W. 792 (Tex.Civ.App.1920), and further argue that, although it may be that where punitiv......
  • Shova v. Eller
    • United States
    • Florida District Court of Appeals
    • September 4, 1992
    ...against a joint tortfeasor, much less against a vice principal. See Lincenberg v. Issen, 318 So.2d 386 (Fla.1975); Kellenberger v. Widener, 159 So.2d 267 (Fla. 2d DCA 1963); Sec. 768.31, Fla.Stat. (1989).5 In fact, in a somewhat confusing decision, the supreme court seems to have reconfirme......
  • Keyes Co. v. Sens
    • United States
    • Florida District Court of Appeals
    • April 15, 1980
    ...Fla. 745, 138 So. 38 (1931); Davis v. First National Bank & Trust Co. in Orlando, 112 Fla. 485, 150 So. 633 (1933); Kellenberger v. Widner, 159 So.2d 267 (Fla. 2d DCA 1964); Licenberg v. Issen, 318 So.2d 386 (Fla.1975); Moore v. St. Cloud Utilities, 337 So.2d 982 (Fla. 4th DCA 1976). Fla.St......
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