Johnson v. Ruffino

Full title: DAVID JOHNSON, APPELLANT, v. DUSTIN RUFFINO, A MINOR, BY AND THROUGH HIS…

Court: District Court of Appeal of Florida, Third District

Date published: Apr 8, 1975

310 So. 2d 421 (Fla. Dist. Ct. App. 1975)

Opinion

No. 74-373.

April 8, 1975.

Appeal from the Circuit Court for Dade County, William Herin, J.

Talburt, Kubicki Bradley, Jeanne Heyward, Miami, for appellant.

Podhurst, Orseck Parks, Walton, Lantaff, Schroeder, Carson Wahl and David K. Tharp and Ray B. Gonas, Miami, for appellees.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

PER CURIAM.

Appellant seeks review of an order dismissing his third party complaint.

Plaintiff, Dustin Ruffino, a minor, by and through his father and next friend, John Ruffino, filed a complaint for damages against Dave Johnson and State Farm Fire and Casualty Company for personal injuries received when Dave Johnson was sawing plexiglass and a piece thereof struck the minor plaintiff as he stood in Johnson's garage and watched him. Defendant Johnson, appellant herein, answered and thereafter filed a third party complaint for indemnity against Sears, Roebuck Company which retailed and/or distributed and/or manufactured the saw which Johnson was using at the time of the accident. Johnson alleged therein that the accident was due solely to the defective design and manufacture of the saw in that the anti-kickback device thereof designed to prevent materials being sawed from kicking out failed to function.

In response thereto, Sears, the third party defendant, appellee herein, moved to dismiss the third party complaint. The trial court entered its order of dismissal and Johnson appeals therefrom.

The plaintiffs having filed an amended complaint naming Sears, Roebuck Company as a co-defendant and appellant Johnson having answered and having incorporated a cross-claim against Sears, Roebuck Company, we conclude this appeal presents a moot question as the herein appealed order, if error, was at most harmless in light of the above pleadings.

NATHAN, Judge (specially concurring).

I agree that the present appeal is moot, however, I would hold that the appellant did have a valid third party complaint at the time of the filing of such complaint. See Peoples Gas System, Inc. v. B P Restaurant Corp., Fla.App. 1973, 271 So.2d 804 and Stuart v. Hertz Corporation, Fla. App. 1974, 302 So.2d 187, 190.