Collins v. Hall

• Decision Date: 17 November 1934
• Citation: 157 So. 646,117 Fla. 282
• Parties: COLLINS v. HALL.
• Court: Florida Supreme Court

157 So. 646

117 Fla. 282

COLLINS v. HALL.

Florida Supreme Court, Division B.

November 17, 1934

Error to Circuit Court, St. Lucie County; Elwyn Thomas, Judge.

Action by Emma Collins, a widow, against Murray E. Hall. From the judgment, the plaintiff brings error.

Affirmed.

COUNSEL

Alto Adams, of Ft. Pierce, for plaintiff in error.

Fee &amp Liddon, of Ft. Pierce, for defendant in error.

OPINION

BROWN Justice.

Plaintiff in error's husband was injured in an automobile accident which occurred on January 24, 1928. He brought suit therefor against the owner and driver of the car, defendant in error here, with whom he was riding as an invited occupant alleging negligent driving as the cause of his injury. This suit was begun in July, 1928, and resulted in a final judgment in favor of the defendant on demurrer to the amended declaration, rendered on July 12, 1929. Writ of error was sued out to this court, which writ was by this court dismissed on motion of defendant in error on August 17, 1931. See 102 Fla. 451, 135 So. 909.

The husband having died in April, 1931, this action was brought by the widow on September 24, 1931, more than three years after the accident, for damages for the wrongful death of her husband, under sections 7047, 7048, Comp. Gen. Laws. The defendant pleaded the general issue, the statute of limitations, and a plea referred to as a plea of res judicata, but the allegations show it to be, in substance, a plea of estoppel by judgment, there being lack of identity in the party plaintiff and in the elements of damages claimed. See 34 C.J. 902 et seq.; 21 C.J. 1064.

The latter plea alleged that the negligent act of the defendant which the widow, in her declaration, alleged had caused the injury and death of her husband was the same alleged act of negligence which the husband had sued for in his lifetime as being the cause of his injury, and that the judgment rendered therein against the husband was a final adjudication in favor of the defendant to the effect that, under the facts alleged, he was not liable for the injury or injuries received by plaintiff in error's husband, and from which injuries so received she alleged he subsequently died. The allegations of negligence in the declaration in both suits are practically identical. Plaintiff in error demurred to both pleas, which demurrer was overruled.

The court below was without error in upholding the sufficiency of the plea of estoppel by judgment. Under the statute, section 7047, Comp. Gen. Laws, the widow had no cause of action for the death of her husband unless in the language of the statute, the negligence alleged as the cause of such death was 'such as would, if the death had not ensued, have entitled the party injured thereby to maintain an action * * * and to recover damages in respect thereof.' This issue, going to the existence of the cause of action against the defendant, had been adjudicated adversely to plaintiff in error's husband in the action brought by him in his lifetime. See 17 C.J. 1250; Harris v. Illinois Cent. R. Co., 111 Miss. 623, 71 So. 878; note, L. R. A. 1915E, 1152.

In Duval v. Hunt, 34 Fla. 85, 15 So. 876, it was held that:

'No recovery can be had for the death of any one caused by the wrongful act, negligence, carelessness, or default of another, unless the wrongful act, negligence, carelessness, or default from which the death ensues was such as would have entitled the deceased person to a recovery of damages had death not ensued. If, for any reason, the deceased person would have been defeated or barred from recovery had he been alive and suing for personal injury only, then the same reason or cause for his bar or defeat will bar and defeat a recovery for his death by any one suing on that behalf.'

See, also, Carter v. J. Ray Arnold Lumber Co., 83 Fla. 470, 91 So. 893. And in O'Brien v. Standard Oil Co. (C. C. A.) 38 F. (2d) 808, it was held that the widow can recover only if the deceased could have recovered had he not died.

True it is that the judgment against the husband was a judgment on demurrer to the declaration in his case, but, as above shown, the allegations of that declaration, and the present one, filed by the wife, as to the negligence charged against the defendant are in substance, and in language, practically identical, and in legal effect the same. 34 C.J. 894, 915. This brings this case within the principles laid down in Prall v. Prall, 58 Fla. 496, 50 So. 867, 870, 26 L. R. A. (N. S.) 577, wherein Mr. Chief Justice Whitfield, speaking for the court, said:

'Where a final judgment or decree is rendered for the defendant on demurrer, the plaintiff is estopped from maintaining a similar or concurrent action or suit for the same cause upon the same grounds that were disclosed in the first suit or action, for the reason that the judgment determines the merits of the cause as presented by the pleadings affected by the demurrer. But, where a demurrer to a pleading is sustained because essential allegations of fact were omitted from the pleading, a final judgment on the demurrer concludes the parties and their privies only as to the sufficiency of the facts as alleged to state a cause of action. In general a final judgment on demurrer is not a bar to a second suit or action for the same cause between the same parties as an estoppel by judgment because of the former adjudication, where the pleadings in the second suit or action supply the...