
    STEAK ENTERPRISES, INC., a Florida Corporation, Individually and d/b/a Rapp Lounge, Buckaroo Steak Ranch Rapp and Buckaroo Steak Ranch, et al., Petitioners, v. John CLAUS, Respondent.
    No. 76-592.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.
    Eugene H. Steele, of Marlow, Mitzel, Ort-mayer & Shofi, and Robyn Greene, Miami, for petitioners.
    Jeffrey Michael Cohen, of Fromberg, Fromberg & Roth, Miami, for respondent.
   PER CURIAM.

On authority of Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4 DCA 1975) and Soliton Devices v. Reiland, 311 So.2d 729 (Fla. 4 DCA 1975), petition for writ of certiorari is hereby denied.

DOWNEY and ALDERMAN, JJ., concur.

MAGER, C. J., dissents with opinion.

MAGER, Chief Judge

(dissenting):

In my opinion the petitioners have clearly demonstrated that the trial court’s dismissal of their third party complaint seeking contribution and/or indemnity constitutes a departure from the essential requirements of the law which will cause material injury to the petitioners throughout the remainder of the proceedings below for which the remedy by appeal would be inadequate. Pic v. Hoyt Development Co., Inc., 309 So.2d 586 (Fla. 2d DCA 1975); see also Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974); Beta Eta House Corporation v. Gregory, 230 So.2d 495 (Fla. 1st DCA 1970); 5 Fla.Jur., Certiorari, § 12.

The petitioners’ third party complaint seeking contribution and/or indemnity is consistent with the Florida rules on third party practice, Rule 1.180(a), Fla.R.Civ.P., and conforms with the intended objectives embodied within the Uniform Contribution Among Tortfeasors Act, section 768.31, Florida Statutes, adopted by the Florida legislature in 1975. See Nationwide Mutual Insurance Company v. Fouts, 323 So.2d 593 (Fla. 2d DCA 1975); Stuart v. Hertz Corporation, supra ; see also Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976).

The purposes and objectives of third party practice as well as the newly enacted rule permitting contribution are defeated when a defendant is unable to bring into the litigation “a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” Rule 1.180(a), supra. See Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla. 2d DCA 1969).

The decisions in Siegei v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975) and Soliton Devices v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975), upon which the majority relies as a basis for denying the petition for certiorari, are factually distinguishable and therefore inapplicable. In Siegel and Solitron the orders sought to be reviewed were clearly matters which were directly relevant to the merits of the litigation for which an adequate remedy was available by appeal after final judgment. However, where the dismissal of a third party complaint is involved, an erroneous disposition of this issue would have no relation to the merits of the litigation nor to the disposition of the case on the merits on appeal. An appeal would simply not provide a full, adequate and complete remedy. Siegel v. Abramowitz, supra.

It would seem that by dismissing the third party complaint we do very little to avoid a multiplicity of actions which the third party practice rule was designed to eliminate. Mims Crane Service, Inc. v. Insley Mfg. Corp., supra. Therefore, I would grant certiorari upon the authorities herein-above cited and permit the plaintiff to file a third party complaint.

PER CURIAM.

ON PETITION FOR REHEARING

Respondent sued petitioners for damages sustained when he was stabbed by a patron in the restaurant owned by petitioner Steak Enterprises, Inc., while respondent was a patron in said restaurant. After the cause was at issue petitioners filed a motion for leave to file a third party complaint against one Robert Lawson, the patron who allegedly stabbed respondent. The trial court denied the motion, and petitioners sought a writ of certiorari to have that order reviewed.

On October 1,1976, we published an opinion denying the petition on authority of Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4 DCA 1975), and Solitron Devices v. Reiland, 311 So.2d 729 (Fla. 4 DCA 1975), Judge Mager dissenting.

In their petition for rehearing petitioners suggest that the majority of the court failed to consider the fact that if the case is allowed to proceed without permitting the petitioners to implead Lawson, the alleged wrongdoer, petitioners might sustain irreparable injury not rectifiable by plenary appeal. Petitioners point out that Lawson claims he stabbed respondent in self defense. If the trier of fact believes this claim, petitioners might well be absolved of liability. However, in the present status of this litigation, if the trier of fact decides that Lawson did not act in self defense, one or both of the petitioners might be held liable to respondent. But unless Lawson is made a party to this action the finding that he did not act in self defense would not be binding on him. Hence, if the petitioners filed an independent action against Lawson seeking indemnity, another trier of fact would be free to find that Lawson did act in self defense, thereby preventing petitioners from obtaining indemnity from Lawson. A plenary appeal from an adverse judgment in the main case could not rectify the injury petitioners might suffer in an indemnity action.

We therefore conclude that under the facts of this case, the trial court’s order denying petitioners’ motion for leave to file a third party complaint constituted a departure from the essential requirements of law which may reasonably cause material injury to petitioners for which remedy by plenary appeal would be inadequate. We therefore grant the petition for rehearing, vacate and withdraw our opinion published October 1, 1976, and remand the cause with directions to the trial court to grant petitioners’ motion for leave to file a third party complaint.

GRANTED AND REMANDED, with directions.

MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur.  