Quest v. Joseph

• Decision Date: 20 May 1980
• Docket Number: No. 78-2090,78-2090
• Citation: 392 So.2d 256
• Parties: Edward S. QUEST et al., Appellants, v. Leon JOSEPH, etc. et al., Appellees.
• Court: Florida District Court of Appeals

Page 256

392 So.2d 256

Edward S. QUEST et al., Appellants, v. Leon JOSEPH, etc. et al., Appellees.

No. 78-2090.

District Court of Appeal of Florida, Third District.

May 20, 1980.

On Rehearing Jan. 7, 1981.

Magill, Sevier & Reid and Kevin P. O'Connor, Miami, for appellants.

Horton, Perse & Ginsberg, Hawkesworth & Schmick, Miami, for appellees.

Before HAVERFIELD, C. J., and BARKDULL and HENDRY, JJ.

PER CURIAM.

Defendant, Edward Quest, appeals an adverse final judgment and the withholding of execution of judgment on his third party claim for contribution in an action for damages arising out of a motor vehicle pedestrian accident.

On the day in question, plaintiff Daren Joseph, a minor, was riding a tricycle (known as a Big Wheel) down a slight incline of the driveway at his home and into the street, at which time he was struck by a vehicle owned by Edward Quest and driven by his wife, Marion. Leon Joseph, individually and on behalf of Daren, sued Quest, his wife, and their liability insurer for damages as a result of the accident. Eyewitness testimony was conflicting as to whether Daren darted out of the driveway into the path of the oncoming Quest vehicle or whether he had been in the street for a number of seconds before the accident. Nevertheless, it was uncontroverted that Daren's mother knew he was riding his Big Wheel down the driveway and into the street. Quest alleged that Daren's mother was negligent in her supervision and filed a third party complaint for contribution against her. The cause was tried by jury which apportioned the negligence amongst the parties as follows:

                Leon Joseph   10%
                Daren Joseph  10%
                Marion Quest  55%
                Ellen Joseph  25%
                

In addition, the jury assessed Daren Joseph's total damages at $150,000 and those of his father, Leon, at $17,000. The trial court entered final judgment ¹ accordingly awarding Daren the net sum of $135,000, his father, Leon, $13,600 and Quest, on his third party complaint, $37,150. However, execution on the $37,150 judgment was stayed until Quest paid the $135,000 and $13,600 judgments. Quest appeals and alleges that the court (1) improperly apportioned the jury verdict, and (2) should have permitted a reduction or set-off of the award against him in the main claim by that amount he recovered on his third party claim against Ellen Joseph. Leon Joseph cross-appeals and urges as error the entry of judgment against his wife, Ellen, for contribution.

The dispositive issue in the case at bar is that presented on cross-appeal, whether or not a right of contribution existed from Ellen Joseph, the mother of the minor child Daren.

Joseph argues that his wife Ellen is immune from liability by virtue of the family immunity doctrine and therefore cannot be considered a joint tortfeasor from whom Quest is entitled to contribution. See 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979). Nevertheless, our Supreme Court in Shor v. Paoli, 353 So.2d 825 (Fla.1978), held that the common law doctrine of interspousal immunity does not prevent a tortfeasor from seeking contribution from another tortfeasor under the Uniform Contribution Among Joint Tortfeasors' Act (Section 768.31, Florida Statutes (1975)) even though the other tortfeasor is the spouse of the successful plaintiff. The court in Shor, supra, reasoned as follows:

"The doctrine of family or interspousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury.

"In the case at bar it was determined that both Paoli and Shor caused the injury. Shor's husband collected 100% of his damages from Paoli. To say that Shor doesn't have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute." . . . 353 So.2d at 826

Likewise, the instant case does not present a situation where the minor Daren Joseph is suing his mother Ellen for negligence or Leon is suing Ellen as his wife. She as well as Quest was found by the jury to have been negligent, thus having caused Daren's injuries. To hold that Ellen does not have to contribute and account for her wrongdoing would be unfair to Quest and a windfall to Ellen. Under the facts of this case we find that Quest is entitled to contribution and judgment was properly entered in his favor on his third party complaint. To the extent that 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), supra, (which we believe is distinguishable on the facts) is inconsistent with the present holding, we hereby recede from the holding in 3-M We next considered Quest's arguments on appeal that the trial court improperly apportioned the jury verdict and erred in failing to permit a reduction in the judgment against him. ²

Elec. Corp. We further note that the 3-M Elec. Corp. case relied upon Mieure v. Moore, 330 So.2d 546 (Fla. 1st DCA 1976) which was overruled by Shor v. Paoli, 353 So.2d 825 (Fla.1978), supra, insofar as the holdings were inconsistent. Thus, we find no reversible error has been presented by Josephs on cross-appeal.

Quest having admitted that the above arguments have been decided adversely to his position, we find no merit therein. See Metropolitan Dade County v. Asusta, 359 So.2d 58 (Fla. 3d DCA 1978); Moore v. St. Cloud Utilities, 337 So.2d 982 (Fla. 4th DCA 1976).

For the reasons stated, the judgments on the complaint and cross-complaint are affirmed.

Affirmed.

Before HUBBART, C. J., and BARKDULL, HENDRY, SCHWARTZ, NESBITT, BASKIN and PEARSON, JJ.

ON REHEARING EN BANC

SCHWARTZ, Judge.

Based on the fact that the panel opinion conflicts with and specifically recedes from our prior decision in 3-M Electric Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), upon our own motion we ordered and have heard reargument en banc. Fla.R.App.P. 9.331(c)(1). We now adhere to the conclusion that an action for contribution may be maintained against the parent of an injured minor child-plaintiff, notwithstanding the child's inability to sue the parent directly and even when the parent's liability involves the negligent supervision of the child. Thus, we confirm the consignment of 3-M to oblivion.

As the panel opinion indicates, our holding to this effect is founded upon the determination in Shor v. Paoli, 353 So.2d 825 (Fla.1977), that the doctrine of interspousal immunity does not include or preclude a contribution action by a defendant-tortfeasor against the spouse of the injured plaintiff. In Florida Farm Bureau Ins. Co. v. Government Employees Ins. Co., 387 So.2d 932 (Fla.1980), the supreme court emphatically reiterated this principle in a decision which was significantly rendered after it had similarly readhered to the immunity rule itself. Raisen v. Raisen, 379 So.2d 352 (Fla.1979). Florida is thus a member of the small but growing minority of jurisdictions which have adopted the doctrine that family immunity is merely a bar to the right to sue another and does not affect the status of the negligent family member as a joint-tortfeasor, which, under Section 768.31, Florida Statutes (1979), is indispensable to liability for contribution. Perchell v. District of Columbia, 444 F.2d 997 (D.C.Cir.1971); Bedell v. Reagan, 159 Me. 292, 192 A.2d 24 (1963); Restifo v. McDonald, 426 Pa. 5, 230 A.2d 199 (1967); Puller v. Puller, 380 Pa. 219, 110 A.2d 175 (1955); Zarrella v. Miller, 100 R.I. 545, 217 A.2d 673 (1966); see W. Prosser, Law of Torts § 50 (4th ed. 1971), text and authorities at n.75; Annot., Tortfeasor-Contribution-Family Member, 19 A.L.R.2d 1003 (1951). Moreover, since the Shor rule is based on the principle that all those jointly responsible for a particular injury should bear proportionate liability, there is, as was stated and held in Withrow v. Woods, 386 So.2d 607 (Fla. 5th DCA 1980), no meaningful distinction between the Raisen interspousal immunity involved in Shor and Florida Farm Bureau and the parent-child relationship, governed by Orefice v. Albert, 237 So.2d 142 (Fla.1970), as in 3-M and the case at bar. See, Restifo v. McDonald, supra; Puller v. Puller, supra; Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980) (Bakes, J., dissenting, citing and relying on Shor).

The decision in 3-M was not directly contrary to this line of reasoning. Although the opinion admittedly did not articulate this factor, it was based upon the fact that unlike Shor, Mieure v. Moore, ¹ and Florida Farm Bureau, in all of which the spouse negligently operated a motor vehicle, the asserted liability of the parent, as here, arose from the failure properly to supervise the child. ² It was thought that, in contrast with the obvious obligation to drive an automobile in a reasonably careful manner to avoid injury to others, there was no existing duty owed by the parents to the child properly to supervise him and thus no tort which would (absent immunity) be actionable by the child directly against the parent. Hence, it was silently reasoned that the defendant and the negligently supervising parent were not commonly liable to the child and were therefore not "joint tortfeasors," so as to permit an action for contribution. Prosser, supra, § 50; Annot., Uniform Contribution Among Tortfeasors Act, 34 A.L.R.2d 1107 (1954); see, Touche Ross & Co. v. Sun Bank of Riverside, 366 So.2d 465 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979). This view was adopted in the much-discussed case of Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974). In Holodook, the New York Court of Appeals, which had previously abolished parent-child immunity itself in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, ...