(dissenting).
In my opinion there is a genuine issue of material facts in this case. That issue, raised generally by defendant in its answer to the complaint and more specifically in support of its answer to the motion for summary judgment, is whether it was intended by the parties in settling the Florida lawsuit for $116,000 that Frank Santomassino’s claim for bodily injuries against plaintiffs was included in the settlement and in the release signed by both Santomassinos.
It is true that a literal reading of the release would include a claim of Frank Santomassino for his bodily injuries, but defendant contends that parol evidence, if it were permitted to submit such evidence at trial, would demonstrate that the release was not intended to include any claim of Frank Santomassino for such injuries; that any such claim was abandoned when Frank Santomassino filed the lawsuit in Florida asking for consequential damages only; and that in the settlement of the case for $115,-000 no part of that sum was paid on account of any bodily injuries suffered or claimed to have been suffered by him individually. In other words, defendant contends that the release was signed to settle only the claims made in the Florida suit and to terminate that litigation wherein Frank Santomassino made no claim for damages for bodily injuries; and that an oral agreement, extrinsic to the release, existed to the effect that the release was to be given in return for the dismissal of the Florida lawsuit and this was all that was contemplated by the parties.
As part of its demonstration that there is a genuine dispute about what the settlement included, defendant attached as an exhibit to its motion to stay the entry of the summary judgment an excerpt from the court reporter’s transcribed notes of the settlement agreement. This excerpt contained the following colloquy between Mr. Sams, representing the plaintiffs Santomassinos, and Mr. Daniel Robson, one of the defendants (plaintiff here):
“Mr. Sams: I just want to put on the record that this case has been settled for $115,000.00 with the understanding that $100,000.00 will be paid by the Insurance carrier, and the remaining $15,000.00 to be paid by the defendant, — shall I put you personally or do you want to put—
“Daniel Robson: Put me personally.
“Mr. Sams: Well, let’s just put the defendant, — and that the de*660fendant, Daniel Robson agrees, — is it Daniel?
“Daniel Robson: Yes.”
The release itself makes reference to an understanding or agreement that plaintiff Daniel W. Robson was to pay $15,000 of the $115,000 settlement. The instrument reads in part:
"Of the above stated sum of money, it is expressly agreed and understood that the American Casualty Company obligates itself only for the the payment of One Hundred Thousand and No/100 Dollars ($100,000.-00); and that by separate agreement by and between Rose Santo-massino, Frank Santomassino and Daniel W. Robson, the sum Fifteen Thousand and No/100 Dollars ($15,-000.00) is to be paid by the said Daniel W. Robson in the following manner:
“(a) Five Thousand and No/100 Dollars ($5,000.00), on July 1, 1960;
“(b) Five Thousand and No/100 Dollars ($5,000.00), on July 1,1961; said sum to be evidenced by a promissory note payable to Sams, Anderson, Alper, Meadows & Spencer;
"(c) Five Thousand and No/100 Dollars ($5,000.00), on July 1, 1962; said sum to be evidenced by a promissory note payable to Sams, Anderson, Alper, Meadows & Spencer.
“It is further expressly understood that the American Casualty Company is not a party to said separate agreement and undertakes no responsibility or obligation with regard thereto.”
It would appear that the law of Florida required Frank Santomassino to bring any action for bodily injuries in the same suit in which he asserted his derivative claim based on injuries to his wife. In other words, he could not split his causes of action, bringing one suit for the derivative claim and a second for his bodily injuries. Goldman v. Kent Cleaners & Laundry, Inc., Fla.App., 110 So.2d 50; Mims v. Reid, Fla., 98 So.2d 498. Thus, it would appear that on June 15, 1960, when the release was executed, Frank Santomassino had no legally assertable claim for his bodily injuries. It seems to me this is support, in addition to the agreement by Daniel Robson to pay $15,-000, for defendant’s contention that there is a genuine issue of material facts relating to the true meaning of the release as that meaning may be shown by a contemporaneous oral agreement which defendant asserts existed.
Defendant further contends that under Florida law the parol evidence rule has no application in a dispute between parties on the same side of a written instrument, citing McClure v. Century Estates, Inc., 96 Fla. 568, 120 So. 4 and Applebaum v. Appel, Fla., 82 So.2d 738. I do not think these cases should be given the narrow application which the Court gives them.
In McClure the Florida Supreme Court stated:
“ ‘The rule excluding parol evidence to vary a writing has been held to be not applicable in a controversy between parties to an instrument whose interests thereunder are the same, or their privies.' 22 C.J. 1294. See, also, Chamberlain v. Lesley, 39 Fla, 452, 22 So. 736.
“In the case last above cited, this court held that the law preventing the introduction of parol evidence to vary or contradict the terms of a mortgage and notes did not apply in an action between Chamberlain and Lesley, wherein one was seeking to recover from the other compensation for money paid by him because of having executed the note and mortgage to a third person, for the other’s accommodation. Mr. Justice Carter, speaking for the court, 39 Fla. 457, 22 So. 738 (text) says: ‘The papers, neither separately nor combined, purported to state all the terms of the agreement between the plaintiff and defendant. As a matter of fact, the notes and mortgages *661were not contracts between the plaintiff and the defendant, but were contracts between the plaintiff and the defendant on the one part, and a third party on the other. These papers purported to show the contract between the plaintiff and defendant to and with a third person, but not as between themselves’ (Italics supplied.)”
In Applebaum the suit was by one alleged purchaser against his joint alleged purchaser of a drug store corporation. The sales contract gave plaintiff Apple-baum and defendant Appel the joint right to vote the stock, and the certificates were endorsed to both of them with title retained in the seller subject to the performance of the sales contract. Appel was permitted to show during the trial by extrinsic evidence that Applebaum had not actually purchased any of the capital stock of the drug store; that Ap-pel and his sister made the entire cash payment on the stock; that it was the understanding between Applebaum and himself that the balance of the purchase price was to be paid out of the profits of the business; and that he would sell Applebaum 30 shares of the stock on payment of his pro rata share of the purchase price. Although the contract provided for the sale and transfer of the stock to both parties, yet, on the basis of parol evidence, the trial court decreed that Applebaum had no interest in the business or owned any of the shares of the stock in the drug store. The Supreme Court of Florida approved the admissibility of this parol evidence, citing Chamberlain and McClure and also quoted from 32 C.J.S. Evidence § 862, as follows:
“ ‘The rule excluding parol evidence to vary a writing is not applicable in a controversy between parties to the instrument whose interests thereunder are the same, or their privies, as in the case of contests between grantors, grantees, co-obligors, or coobligees, or between privies of parties on the same aide.’ ”
It is my view that in principle there is no difference between Applebaum and defendant’s contention in the instant case. Whether that contention can be sustained would depend of course on the proof at trial.
I would reverse and remand with direction to vacate the judgment for summary judgment.