Dulman v. Seaboard Coast Line Railroad Company

308 So. 2d 53, 1975 Fla. App. LEXIS 14476

Opinion

308 So.2d 53 (1975)

Josef J. DULMAN, Appellant,
v.
SEABOARD COAST LINE RAILROAD COMPANY, Appellee.

No. 74-329.

District Court of Appeal of Florida, Fourth District.

February 14, 1975.

Robert Orseck and Edward I. Sternlieb of Podhurst, Orseck & Parks, Miami, and Wagner, Cunningham, Vaughan, Hapner & May, Tampa, for appellant.

William H. Davis of Giles, Hedrick & Robinson, Orlando, for appellee.

CROSS, Judge.

Initially we note that appellant-plaintiff, Josef J. Dulman, is attempting to prosecute an interlocutory appeal from an order dismissing without prejudice a complaint directed toward appellee-defendant, Seaboard Coast Line Railroad Company, in an action formerly cognizable at law. Rule 4.2 F.A.R. does not permit an interlocutory appeal from such order. However, we will treat the notice of appeal and the record herein as a petition for a writ of common law certiorari duly presented to this court. Goff v. General Motors Corporation, 292 So.2d 594 (Fla.App. 1974).

Upon review of the appellant's petition for a writ of common law certiorari and after consideration of the briefs and oral arguments of counsel for the respective parties, we determine that the appellant had the right to sue any one or all of the joint tortfeasors whose negligent acts or omissions united and produced his injuries. See Souto v. Segal, 302 So.2d 465 (Fla.App. 1974); Maybarduk v. Bustamante, 294 So.2d 374 (Fla.App. 1974); Winn Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla.App. 1963); Sands v. Wilson, 140 Fla. 18, 191 So. 21 (1939). Therefore, the trial court departed from the essential requirements of the law in dismissing without prejudice appellant's complaint for the reason that the appellant had failed to join a possible joint tort-feasor, Michael Anthony Tripi, as a party defendant.

Accordingly, the appellant's petition for a writ of common law certiorari is granted, the order dismissing without prejudice the appellant's complaint is quashed, and the cause is remanded to the trial court for further proceedings consistent with the views herein expressed.

Certiorari granted; cause remanded.

MAGER, J., and REDDICK, THOMAS J., Jr., Associate Judge, concur.