McMannis v. Devlin

• Decision Date: 07 May 1969
• Docket Number: No. 68--312,68--312
• Citation: 222 So.2d 492
• Parties: 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, Appellants, v. 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., Appellees.
• Court: Florida District Court of Appeals

Page 492

222 So.2d 492

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, Appellants, v. 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., Appellees.

No. 68--312.

District Court of Appeal of Florida, Second District.

May 7, 1969.

Rehearing Denied June 4, 1969.

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

Edward M. Waller, Jr., of Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, for appellees.

LILES, Chief Judge.

Appellants, plaintiffs in the trial court, brought suit against defendants, appellees here, in their respective capacities.

The suit was brought in two counts, one by James D. McMannis, as administrator of the estate of John H. McMannis, the deceased minor son of James D. McMannis and Marion R. McMannis, pursuant to Section 768.02, F.S.A., and one by James D. McMannis, individually and on behalf of Marion R. McMannis, as surviving parents of John H. McMannis, pursuant to Section 768.03, F.S.A. At the conclusion of the trial the jury returned two verdicts, one in the amount of $10,000 to James D. McMannis, as administrator of the estate of John H. McMannis, and one for James D. McMannis, individually and on behalf of Marion R. McMannis, as surviving parents of John H. McMannis, deceased, in the amount of $5,000.

Prior to the trial of the cause a settlement was perfected with one of the joint tortfeasors, who was not a party to this action and is not a party in this appeal. Section 768.041, F.S.A. The settlement was in the total amount of $20,000. This settlement consisted of $18,000 for the claim of the parents individually, and $2,000 for the claim by the estate.

Following the trial, plaintiffs filed motions for judgments pursuant to the jury's verdicts, one on behalf of the estate and one on behalf of the surviving parents.

Defendants filed one motion for judgment in the sum of zero dollars, maintaining that the $20,000 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 his judgment in the amount of zero dollars pursuant to defendants' motion. This appeal followed.

We think the trial judge erred in rendering his judgment. Florida has long recognized the distinction between a suit on...