Hammac v. Windham, B-321

• Decision Date: 07 April 1960
• Docket Number: No. B-321,B-321
• Citation: 119 So.2d 822
• Parties: Betty HAMMAC, a minor, by her next friend and father, Rufus Hammac, Appellant, v. Betty Donaldson WINDHAM, Dorothy Labrie and Joseph E. Labrie, Appellees.
• Court: Florida District Court of Appeals

Page 822

119 So.2d 822

Betty HAMMAC, a minor, by her next friend and father, Rufus Hammac, Appellant, v. Betty Donaldson WINDHAM, Dorothy Labrie and Joseph E. Labrie, Appellees.

No. B-321.

District Court of Appeal of Florida, First District.

April 7, 1960.

Rehearing Denied April 28, 1960.

Cecil C. Jackson, Pensacola, for appellant.

Yonge, Beggs & Lane, Pensacola, for appellees.

WIGGINTON, Chief Judge.

Plaintiff has appealed from a final summary judgment in favor of defendant. The only point on appeal involves the law of res judicata.

The complaint filed in this case seeks damages for personal injuries arising out of a motor vehicle collision. Plaintiff was riding as a passenger in one of the automobiles involved in the collision and operated by defendant Dorothy Labrie. The cause of action against Labrie is brought under the guest statute. ¹ To the complaint defendant Labrie filed an answer, the fifth defense of which pleads res judicata on the basis of a similar action previously brought by plaintiff against defendant in the Court of Record of Escambia County. Attached to the answer are copies of an original and amended complaint brought under the guest statute and previously filed in the Court of Record by which plaintiff sought damages for personal injuries arising out of the same automobile collision described in the complaint filed in this cause. In that action the trial court granted defendant's motions to dismiss both the original and amended complaints on the ground that each failed to state a cause of action as against defendant Labrie. The order dismissing the amended complaint was appealed to this court and affirmed. ² On the basis of the foregoing disposition of the first suit, the trial court granted defendant's motion for summary judgment on the defense of res judicata.

There is no dispute but that in the first cause of action sued upon by plaintiff both her original and amended complaint failed to allege sufficient facts to make out a case of liability for gross negligence under the guest statute. It was because of the insufficiency in pleading that both the original and amended complaints were dismissed. The position taken by plaintiff in her complaint filed in this proceeding is in no manner inconsistent with nor contrary to the position taken in her original suit. The complaint in this proceeding contains allegations of fact with respect to the issue of gross negligence which were not present in either of the complaints filed in the first suit. The question presented for our determination is whether the order dismissing the amended complaint for failure to state a cause of action in the first action was an adjudication on the merits, and res judicata as to this subsequent action brought by the same plaintiff against the same defendants based upon the same cause of action alleged in the original suit.

Appellant contends that the trial court's ruling which sustained the defense of res judicata is in conflict with the settled rule of law as set forth in the decisions of the Supreme Court and the District Courts of Appeal of Florida. On the contrary, appellee contends that the trial court's ruling accords with the proper interpretation to be placed on Rule 1.35(b), F.R.C.P., 30 F.S.A., and should be sustained.

In the Pellicer case ³ this court held that a final judgment dismissing with prejudice a complaint to revoke a will on the ground that plaintiff had failed to allege an essential fact necessary to entitle him to the relief sought was not an adjudication on the merits of controversy, and would not preclude plaintiff from instituting a new suit on the same cause of action provided the on the same cause of action provided the complaint contained all essential allegations of action. Our decision in Pellicer was controlled to a large extent by the decision of the Second District Court of Appeal in the Bricklayers, etc., Union case. ⁴ It was there held that the generally approved rule is to the effect that a judgment for defendant based on failure of the plaintiff to allege facts constituting a cause of action does not preclude the original cause of action from being raised again, even though the plaintiff has failed to take advantage of leave to amend.

An explanation of the principle applicable to the issue with which we are now confronted was made by Mr. Justice Sebring in Kautzmann case. ⁵ In quoting with approval a New York decision the principle was stated to be that if the judgment of dismissal is predicated upon failure of the complaint to allege certain essential facts, which facts could be supplied by an amendment, the judgment does not then constitute an adjudication that the plaintiff does not have a cause of action, but rather because certain essential facts are not alleged, plaintiff has failed to set forth his cause of action, and the merits of plaintiff's cause are not determined. The test was stated to be: does the insufficiency relate to the facts alleged or to the allegations of fact? If the insufficiency relates to some inherent defect in the case shown by the facts alleged, the judgment of dismissal was held to be on the merits. If, however, the insufficiency relates to the failure of the complaint to allege necessary facts to state a cause of action, the judgment of dismissal was held not to be an adjudication of the merits nor a bar to a subsequent suit on the same cause of action. In Kautzmann the principle was stated to be that a judgment of dismissal based on merely formal or technical defects will not preclude the filing of an amended complaint setting forth a good cause of action, or operate as a bar to a second suit on the same cause of action. Thus, when the plaintiff failed in the first suit simply by reason of an omission of a material allegation of fact, a second suit in which the complaint supplied the additional necessary allegations would be maintainable.

A careful examination of the decisions cited above clearly reveals that Rule 1.35(b), F.R.C.P., was not considered by the courts in reaching the conclusions expressed therein. Those decisions cannot, therefore, be considered as precedent for the proposition that the trial court's interpretation and application of the rule in this case was erroneous.

In urging affirmance of the trial court's summary judgment in this case appellee relies upon Rule 1.35(b), F.R.C.P., ⁶ as construed by the Supreme Court in the Capers ⁷ and Hinchee cases. ⁸

In Capers an order was entered granting defendant's motion to dismiss a complaint with leave to amend within thirty days. Upon no amendment being filed within the time limited, a final judgment of dismissal with prejudice was entered. In what was apparently obiter dictum the Supreme Court said that the failure of plaintiff to comply with the court's order granting leave to amend the complaint within the time limited rendered the final judgment of dismissal an adjudication on the merits within the contemplation of Rule 1.35(b), F.R.C.P.

In Hinchee an order was entered allowing plaintiffs the privilege of filing an amended complaint conditioned upon plaintiff's depositing into the registry of the court a stated sum of money which plaintiffs admitted was owed to defendants, and which it was alleged they were ready and willing to pay. Upon plaintiffs' default in complying with that portion of the order requiring the deposit to be made in the court's registry, a final judgment of dismissal was entered. The Supreme Court held that plaintiff's failure to comply with the court's order with respect to the registry fund deposit constituted the final judgment of dismissal and adjudication on the merits within the purview of the rule.

In the case now before us there is no contention that plaintiff failed to comply with any order of the court entered in the first action filed by her in the Court of Record of Escambia County. It affirmatively appears that in neither the first nor in this suit were the merits of the cause presented by either of the parties. We are therefore not concerned with that provision predicated. Our consideration will be confined Supreme Court in Capers and Hinchee was predicated. Our consideration will be confined to that part of the rule which provides that 'Unless the court in its order for dismissal otherwise specifies, a dismissal under ...