Seaboard Coast Line R. Co. v. Gordon, No. Y--128

CourtCourt of Appeal of Florida (US)
Writing for the CourtBARKDULL, THOMAS E.; RAWLS, Acting C.J., and MELVIN, WOODROW M.
Citation328 So.2d 206
PartiesSEABOARD COAST LINE RAILROAD COMPANY, and National Railroad Passenger Corporation, a corporation, Appellants, v. Allen Mack GORDON and Delcher Brothers Storage, Inc., Appellees.
Decision Date16 March 1976
Docket NumberNo. Y--128

Page 206

328 So.2d 206
SEABOARD COAST LINE RAILROAD COMPANY, and National Railroad Passenger Corporation, a corporation, Appellants,
v.
Allen Mack GORDON and Delcher Brothers Storage, Inc., Appellees.
No. Y--128.
District Court of Appeal of Florida, First District.
March 16, 1976.

Gary A. Bubb, Toole, Taylor, Moseley & Milton, Jacksonville, for appellants.

E. Robert Williams, Boyd, Jenerette, Leemis & Staas, and Claude K. Slater, Slater & Randle, Jacksonville, for appellees.

BARKDULL, THOMAS E., Associate Judge.

From the record on appeal, it appears that while transporting household goods of the Nordeens (parties not involved in this appeal) a truck, owned by Delcher Brothers Storage, Inc. and being driven by Allen Mack Gordon, became stuck across the tracks of the Seaboard Coast Line Railroad Company. This crossing was shortly beyond a curve in the Seaboard tracks. When the train rounded the curve, upon observing the stalled truck, it was unable to stop because of its speed before colliding with the truck. Subsequently, an action was commenced by the Nordeens against Seaboard and Gordon to recover for the damage to their personal property. Seaboard filed a crossclaim against Gordon and a third-party complaint againt Gordon's employer, seeking indemnification based upon a theory of passive negligence

Page 207

on the part of the Railroad and active negligence on the part of Gordon, which would make his employer vicariously liable. The trial judge dismissed with prejudice the crossclaim and the third-party complaint. This appeal ensured.

Subsequent to the order of the trial court, here under review, the Nordeens settled with Gordon and Delcher. The appellees contend that this in and of itself, because of the provisions of the new Uniform Contribution Among Tort Feasors Act, enacted by the 1975 Legislature, and particularly § 768.31(5)(b), 1 releases them from any action seeking contribution. 2

We hold, first, that the trial judge was correct in dismissing the cross-claim and third-party complaint becuase it is apparent on the face thereof that the Railroad was at least an active tort feasor. Florida East Coast Railway Company v. Soper, Fla.App.1962, 146 So.2d 605. We further affirm the action because of the provisions of § 768.31(5)(b), of the Uniform Contribution Among Tort Feasors Act, it being conceded that the original plaintiffs had settled their original claim against Gordon.

Therefore, the order here under review be and the same...

To continue reading

Request your trial
8 practice notes
  • Stuart v. Hertz Corp., 46553
    • United States
    • United States State Supreme Court of Florida
    • 28 Julio 1977
    ...recovery was had, neither is entitled to indemnity from the other. 41 Am.Jur.2d Indemnity § 21. See Seaboard Coast Line R. Co. v. Gordon, 328 So.2d 206 (Fla.1st DCA 1976); Armor Elev. Co., Inc. v. Elev. Sales & Serv., Inc., 309 So.2d 44 (Fla.3d DCA 1975); Dura Corp. v. Wallace, 297 So.2d 61......
  • Puder v. Raymond Intern. Builders, Inc., Nos. 80-2128
    • United States
    • Florida District Court of Appeals
    • 14 Diciembre 1982
    ...v. Simmons, 375 So.2d 858 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980); Seaboard Coast Line Railroad Co. v. Gordon, 328 So.2d 206 (Fla. 1st DCA 1976); (2) the legal relationship between Puder and Raymond would not support an indemnity claim and, in addition, there was no evide......
  • Schreier v. Parker, No. 81-1594
    • United States
    • Court of Appeal of Florida (US)
    • 8 Junio 1982
    ...denied 386 So.2d 639 (Fla.1980); Martinez v. Gonzalez, 368 So.2d 92 (Fla. 3d DCA 1979); Seaboard Coast Line Railroad Company v. Gordon, 328 So.2d 206 (Fla. 1st DCA We turn now to one other point which merits discussion. During the close of the case, counsel for defendant Schreier, and couns......
  • Sell v. Torres, No. 84-1110
    • United States
    • Court of Appeal of Florida (US)
    • 5 Febrero 1985
    ...415 So.2d 794 (Fla. 3d DCA 1982); Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978); Seaboard Coast Line Railroad Company v. Gordon, 328 So.2d 206 (Fla. 3d DCA 1976); Section 768.31(5) Florida Statutes...
  • Request a trial to view additional results
8 cases
  • Stuart v. Hertz Corp., 46553
    • United States
    • United States State Supreme Court of Florida
    • 28 Julio 1977
    ...recovery was had, neither is entitled to indemnity from the other. 41 Am.Jur.2d Indemnity § 21. See Seaboard Coast Line R. Co. v. Gordon, 328 So.2d 206 (Fla.1st DCA 1976); Armor Elev. Co., Inc. v. Elev. Sales & Serv., Inc., 309 So.2d 44 (Fla.3d DCA 1975); Dura Corp. v. Wallace, 297 So.2d 61......
  • Puder v. Raymond Intern. Builders, Inc., Nos. 80-2128
    • United States
    • Florida District Court of Appeals
    • 14 Diciembre 1982
    ...v. Simmons, 375 So.2d 858 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980); Seaboard Coast Line Railroad Co. v. Gordon, 328 So.2d 206 (Fla. 1st DCA 1976); (2) the legal relationship between Puder and Raymond would not support an indemnity claim and, in addition, there was no evide......
  • Schreier v. Parker, No. 81-1594
    • United States
    • Court of Appeal of Florida (US)
    • 8 Junio 1982
    ...denied 386 So.2d 639 (Fla.1980); Martinez v. Gonzalez, 368 So.2d 92 (Fla. 3d DCA 1979); Seaboard Coast Line Railroad Company v. Gordon, 328 So.2d 206 (Fla. 1st DCA We turn now to one other point which merits discussion. During the close of the case, counsel for defendant Schreier, and couns......
  • Sell v. Torres, No. 84-1110
    • United States
    • Court of Appeal of Florida (US)
    • 5 Febrero 1985
    ...415 So.2d 794 (Fla. 3d DCA 1982); Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978); Seaboard Coast Line Railroad Company v. Gordon, 328 So.2d 206 (Fla. 3d DCA 1976); Section 768.31(5) Florida Statutes...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT