CECILIA SALCEDO, APPELLANT,
v.
SOUTHEASTERN NATURAL GAS CO., APPELLEE
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A plaintiff sought to dismiss three of four defendants in a negligence action arising from a gas explosion but continue the case against the fourth defendant, Southeastern Natural Gas Co. The trial court dismissed the entire case, but the appellate court reversed, holding that a plaintiff may voluntarily dismiss some defendants while proceeding against others when their liability is several rather than joint.
A plaintiff may voluntarily dismiss some defendants while continuing the action against remaining defendants when their liability is several and not joint. The trial court erred in dismissing the entire cause merely because plaintiff dismissed three of four defendants.
“What occurred here, by dismissal of three of the defendants, amounted to an election by the plaintiff to proceed severally and separately against the one remaining defendant.”
Establishes that voluntary dismissal of some defendants is permissible and constitutes an election to proceed against remaining defendants.
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Join FLexlaw to unlock all legal intelligencePlaintiff Salcedo, a lessee of premises, was injured in a gas explosion. She sued four defendants for negligence: Mrs. Joseph Farley (property owner),…
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By an amended complaint the plaintiff sought damages for personal injuries alleged to have resulted from negligence of the defendants. The plaintiff was a lessee of premises owned by the defendant Mrs. Joseph Farley, for whom the defendant Keyes Company was alleged to have acted as agent. The injury was caused by an explosion of gas. Faulty installation and service were charged to the defendants Blackwell Plumbing Co. and Southeastern Natural Gas Co. Without detailing the allegations of facts and of duties owed and breached, the amended complaint shows the liability of the defendants as declared upon therein was joint and several.
Prior to trial plaintiff voluntarily dismissed as to three of the four defendants. The defendant Southeastern Natural Gas Co. remained. Later, on its motion the cause was dismissed as to that defendant also. The ground upon which the trial court relied in making that ruling was-that because plaintiff had voluntarily dismissed some but not all parties defendant,, the entire case should be dismissed.
That ruling of the trial court was incorrect. The defendants were severally liable. Plaintiff’s voluntary dismissal of all2 except one of them did not compel dismissal of the remaining defendant. Ruis v. Halloway, Fla.App.1962, 139 So.2d 745. See Scott v. Permacrete, Inc., Fla.App. 1960, 124 So.2d 887.
What occurred here, by dismissal of three of the defendants, amounted to an election by the plaintiff to proceed severally and separately against the one remaining defendant. We have been shown no decision or rule of court which required the dismissal of the cause as to the fourth. *399defendant, who remained after plaintiff voluntarily applied for dismissal of three. On the contrary, in the case of Shannon v. McBride, Fla.App.1958, 105 So.2d 16, 19, it was recognized that rule 1.35, F.R.C.P., 30 F.S.A. concerns dismissal of an entire cause and is not applicable when it is sought to dismiss individual parties or a claim against one or more but less than all of the defendants. And, as there noted, rule 1.18, F.R.C.P. is specifically applicable and permits dropping parties. True, the latter rule provides that the court may authorize parties to be dropped, “[up]on such terms as are just,” but it would not appear to be a “just term” to require, as a condition of permission to drop three of four defendants whose liability is several, that the entire cause should be dismissed.
Accordingly the order appealed from which dismissed the cause as to the defendant Southeastern Natural Gas Co. is reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
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Citator
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Holman v. Ford Motor Co., 239 So. 2d 40 (Fla. 1st DCA 1970)…d a voluntary nonsuit was announced as to that defendant, leaving only Ford as the sole party against which the jury would be instructed to find damages. Such practice is permissible in this jurisdiction. See Salcedo v. Southeastern Natural Gas Co., 171 So. 2d 398 (Fla.App.1965); Adler v. Segal, 108 So. 2d 773 (Fla.App.1959); and Hutchins v. City of Hialeah, 196 So. 2d 741 (Fla.1967). After plaintiff nonsuited the defendant Duval, the trial court changed its order granting a directed verdict against both def…
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Eason v. LAU, 369 So. 2d 600 (Fla. 1st DCA 1978)…1971)). We agree with the learned trial judge that a dismissal with prejudice under the rule is equivalent to or tantamount to a release. Reliance upon Martin v. Burney, 160 Fla. 183, 34 So. 2d 36 (1948) and Salcedo v. Southeastern Natural Gas Co., 171 So. 2d 398 (Fla. 3rd DCA 1965) for a contrary position is misplaced. Those cases are both factually and legally distinguishable and have no application sub judi-ce. The query therefore becomes whether the dismissal or release of Virgo, a joint tortfeasor, als…
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City OF Hialeah v. Hutchins, 189 So. 2d 165 (Fla. 3d DCA 1966)…Thus, the policeman and the City are jointly and severally liable and therefore may be sued separately or in the same suit. See Fincher Motor Sales, Inc. v. Lakin, Fla.App.1963, 156 So. 2d 672; Salcedo v. Southeastern Natural Gas Co., Fla.App.1965, 171 So. 2d 398. The fact that the policeman and the City may be sued together does not make them joint tort-feasors because the liability of the City is based upon the doctrine of respondeat superior as pointed out in the opinions last cited. Therefore, we reject…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- David L. Shannon and Helen v. Shannon, 105 So. 2d 16 (Fla. 2d DCA 1958)
- Scott v. Permacrete, Inc., 124 So. 2d 887 (Fla. 1st DCA 1960)
- Ruis v. Halloway, 139 So. 2d 745 (Fla. 2d DCA 1962)