Mathis v. Virgin, 64-343
| Decision Date | 13 October 1964 |
| Docket Number | No. 64-343,64-343 |
| Citation | 167 So.2d 897 |
| Parties | Barbara MATHIS, a minor, by her father and next friend, Roswell E. Mathis and Roswell E. Mathis, individually, Plaintiffs, v. Herbert W. VIRGIN, Jr., Defendant. |
| Court | Florida District Court of Appeals |
Ross, Reinhardt & Goodman, Richard M. Gale, Miami, for plaintiffs.
Carey, Terry, Dwyer, Austin, Cole & Stephens and Edward Perse, Miami, for defendant.
Before BARKDULL, C. J., and HORTON and HENDRY, JJ.
The following question has been certified to this court for determination, pursuant to the applicable rule pertaining thereto, 1 to wit:
'Does the satisfaction of a judgment by the plaintiff against the defendant owner and operator of an automobile for injuries received in an automobile accident discharge from liability in a subsequent suit an allegedly negligent defendant physician who treated the plaintiff for the injuries received in that automobile accident, or is the responsibility of the physician as a tort feasor discharged only pro-tanto by virtue of Section 54.28 of the Florida Statutes?'
The circuit judge certified that the question of law above referred to is determinative of the cause; is without controlling precedent in this State; that it can be answered without regard to other issues in the cause and without affecting the jurisdiction of the circuit or this court; and that an answer to said question will ultimately determine the final disposition of the cause. Therefore, it is our view that same is entitled to an answer. See: Scott v. Scott, Fla.App.,1950, 45 So.2d 878; Forsyth v. Southern Bell Telephone & Telegraph Co., Fla.App.,App.1964, 162 So.2d 916.
From the record presented to us, it appears that the question arose out of the following factual situation: The minor plaintiff was injured in an automobile accident when the vehicle in which she was riding [driven by one William Rufus Johnson] collided with a vehicle driven by Frank Leroy Creech. Thereafter, through the plaintiff, Roswell E. Mathis as her next friend, she instituted a common law action, to recover for injuries sustained in said accident, against William Johnson and Julia Johnson, as Guardians of the person of William Rufus Johnson, a minor; and Charles M. Baldwin, as Guardian of the property of William Rufus Johnson; and Julia Johnson, individually; and William Rufus Johnson, a minor, individually; and Myrtle Creech and Frank Leroy Creech, a minor. During the pendency of said cause, the respective parties entered into a stipulation of settlement in said case, which read in part as follows:
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'That the parties to this Stipulation and Petition have entered into an agreement to amicably settle the pending litigation; and that said agreement is to pay an aggregate amount of EIGHTY FIVE HUNDRED DOLLARS ($8,500.00) * * *.
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'* * * the parties hereto request the court to enter an order approving this stipulation in accordance with applicable statutes, and authorize ROSWELL E. MATHIS to accept and collect the amount of said settlement and to execute whatever satisfactions, releases and other documents or instruments are necessary to effect a full and final release and settlement of this matter * * *.' [emphasis added]
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This stipulation of settlement was confirmed by a court order 2 and, thereafter, a final judgment was rendered pursuant to the stipulation, which was ultimately satisfied. Subsequently, the instant common law action was commenced in the trial court to recover damages from the defendant herein for alleged negligence in the treating of the injuries sustained by the minor plaintiff as a result of the tortious conduct of the aforesaid Frank Leroy Creech and William Rufus Johnson.
The defendant affirmatively alleged, as a total defense, that the aforementioned judgment and satisfaction against William Johnson and Julia Johnson, as Guardians ad Litem of William Rufus Johnson, a minor; and Julia Johnson, individually; and William Rufus Johnson, a minor, individually,...
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...to situations involving subsequent medical malpractice, as plaintiffs argue. Accordingly, plaintiffs' reliance on Mathis v. Virgin, 167 So.2d 897 (Fla. 3d DCA 1964), cert. denied, 174 So.2d 30 (Fla.1965), for the proposition that a general release only releases pro tanto the joint tortfeaso......
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