Goldman v. Kent Cleaners & Laundry, Inc., 58-492

• Decision Date: 17 March 1959
• Docket Number: No. 58-492,58-492
• Parties: Herman GOLDMAN, Appellant, v. KENT CLEANERS & LAUNDRY, INC., Appellee.
• Court: Florida District Court of Appeals

Page 50

110 So.2d 50

Herman GOLDMAN, Appellant, v. KENT CLEANERS & LAUNDRY, INC., Appellee.

No. 58-492.

District Court of Appeal of Florida, Third District.

March 17, 1959.

Rehearing Denied April 8, 1959.

Loewenstein & Dunn and Roderick Knott, Miami, for appellant.

Brown, Dean, Adams & Fischer and W. Thomas Spencer, Miami, for appellee.

MILLEDGE, STANLEY, Associate Judge.

In an action of negligence for damage to the plaintiff's person, a judgment for the defendant on the pleadings was entered on the ground that all matters in controversy were adjudicated by a final judgment in a prior action.

In this prior action, the appellant joined his wife in an action of negligence in which the wife sought damages for injury to her person, and the husband, the appellant, sought damages for his loss through his wife, that is, for medical expenses and loss of consortium. About two weeks before the trial, the husband moved for leave to amend his complaint by including a claim for 'the personal injuries suffered by the plaintiff, Herman Goldman', and to grant a continuance. His only ground for the motion was that subsequent to filing the action the Supreme Court of Florida had decided Mims v. Reid, Fla.1957, 98 So.2d 498, and because of this holding, Mr. Goldman feared that he must join his claim for personal injuries or be barred from ever doing so.

The circuit judge before whom this prior action was pending denied the motion on the ground that the husband could bring a separate and later action for damages to his car and to his person. With this reason we do not agree, but there may well have been other reasons justifying a denial of the motion to amend and for a continuance. At any rate, this ruling was not challenged and its correctness is not involved in this appeal. The appellant acquiesced in the ruling and filed a distinct claim for his personal damage. The prior case proceeded to trial resulting in a verdict and judgment for the plaintiffs, husband and wife. In the present action, the defendant pleaded the prior adjudication. The circuit judge in this action agreed that the controversy was res judicata and from his judgment on the pleadings the plaintiff appealed.

The appellant relies on Gaynon v. Statum, 151 Fla. 793, 10 So.2d 432. In that case, it was held that the husband had two causes of action, one for those damages growing out of the damage to the wife, medical expenses and loss of consortium, and another cause of action for the damage to his person and his property. He could bring them...