Stembler v. Smith, HI-
| Decision Date | 08 December 1970 |
| Docket Number | N--99,HI-,Nos. N--98,INC,s. N--98 |
| Citation | 242 So.2d 472 |
| Parties | John H. STEMBLER and Insurance Company of North America, Appellants, v. Michael Sanford SMITH, Appellee. William Jenkins STEMBLER, John H. Stembler, and Insurance Company of North America, Appellants, v., d/b/a Shakey's Pizza Parlor of Gainesville, Florida, Appellees. |
| Court | Florida District Court of Appeals |
Sanders, McEwan, Mims & McDonald, Orlando, for appellants.
Howell, Kirby, Montgomery & D'Aiuto, Orlando, for appellee, Michael Sanford Smith.
Charles A. Williams, Jr., Jenkins & Williams, Gainesville, for appellee, Hi-J, Inc.
Appellants Stembler and his insurer, who were defendants and third party plaintiffs below, appeal from two final judgments dismissing their third party complaints seeking indemnity.
By their primary point the appellants submit that the general rule prohibiting contribution between tort-feasors is based on public policy denying to an intentional wrongdoer the aid of the law in adjusting any claim against his collaborator in causing a deliberate and planned injury to a third person, and so the rule ought to be inapplicable where the tort against the third person is due only to simple negligence without any moral turpitude or deliberate intention to commit the injury. Succinctly, appellant is asking this Court to recede from the rule of noncontribution among joint tort-feasors.
Plaintiff Shackelford, a minor, and his father brought an action for personal injuries received when the minor was struck by a car owned by defendant John Stembler, and operated by his son, William Stembler. The issue was clearly drawn: Were Shackelford's injuries proximately caused by the negligence of William Stembler? It was at this stage that appellants filed third party complaints against Smith, whom they alleged darted out into the highway in front of Stembler causing him to swerve his automobile and hit Shackelford; and against Hi-J, Inc., whom appellants alleged sold beer and other intoxicating beverages to Shackelford. On behalf of the driver of the automobile the appellants by their brief and argument of able counsel importunes this Court to blaze a new trail and abolish the rule of noncontribution among joint tort-feasors because it is 'immoral to continue the no contribution rule except in cases of willful tort.'
On behalf of the owner of the automobile the appellants contend that since he is not in pari delicto with the tort-feasors, his liability being vicarious only and not due to active negligence, he is entitled to indemnity from those whose active negligence was the proximate cause of the accident. They urge this Court to adopt a rule allowing...
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