Scott v. Rosenthal, 59-231

• Citation: 118 So.2d 555
• Decision Date: 03 March 1960
• Docket Number: No. 59-231,59-231
• Parties: Paul Andrew SCOTT, Appellant, v. Murray ROSENTHAL and Joseph Rosenthal, Appellees.
• Court: Court of Appeal of Florida (US)

Page 555

118 So.2d 555

Paul Andrew SCOTT, Appellant, v. Murray ROSENTHAL and Joseph Rosenthal, Appellees.

No. 59-231.

District Court of Appeal of Florida, Third District.

March 3, 1960.

Rehearing Denied March 23, 1960.

David Goldman, Miami, for appellant.

Reece & Murray, Miami, for appellees.

BARNS, PAUL D., Associate Judge.

In this action for personal injuries the lower court granted defendant's motion for a summary judgment because of the prior settlement and judgment of dismissal of the action of the subrogated insurer for damages to plaintiff's automobile. The prior judgment was a judgment in retraxit. Both actions were pending at the time of settlement of the suit in the Civil Court of Record of Dade County but the latter was not pending when the judgment of dismissal in this action was rendered. Plaintiff appealed from the judgment of dismissal herein and assigns as error the entry of summary judgment. We find error and reverse.

Statement of the Case.

In April, 1957, a collision occurred between the automobile of the plaintiff, Scott, and the defendant, Rosenthal, resulting in injury to Scott's automobile and personal injuries to Scott. At the time of the collision Scott was protected by an insurance policy issued to him by Mid-States Insurance Co. which agreed to indemnify Scott against loss or damage caused by collision of Scott's automobile. In accordance with the terms of the insurance policy on June, 1957, the insurer paid Scott $800 and received from Scott an assignment and subrogation agreement as to Scott's claim against the defendant, Rosenthal, for injury to his automobile.

In February, 1958, the insurer in its own name brought suit in the Civil Court of Record against Rosenthal for injury to Scott's automobile and in March, 1958, this action by Scott was commenced by Scott against Rosenthal for personal injuries.

Thereafter on July 9, 1958, the insurer's suit pending in the Civil Court of Record against Rosenthal was dismissed 'with prejudice' pursuant to a stipulation between the parties worded as follows:

'It is hereby stipulated and agreed by and between the respective attorneys for the parties to this cause, that the same has been amicably settled and may be dismissed with prejudice to and at the cost of the plaintiff.'

This action against Rosenthal for personal injuries was commenced and service of process on the defendant was perfected before the settlement and dismissal of the action by the insurer in the Civil Court of Record. To the amended complaint in this action the defendant filed an answer setting up as a defense the proceedings and judgment of dismissal in the Civil Court of Record on the claim for damages to the automobile.

The question is whether the judgment on the claim for damages to the automobile is res judicata of the plaintiff's claim for personal injuries. We think not under the circumstances of this case.

Mims v. Reid--distinguished: Appellees rely on Mims v. Reid, Fla.1957, 98 So.2d 498, 499, for affirmance of the judgment appealed. The holding of the court in that case is to be distinguished from this decision. The factual matters differ. The holding of the Mims case, pertinent here, was stated in headnote 3 as follows:

'Where plaintiff's suit for personal injuries arising out of collision of plaintiff's automobile with defendant's automobile was settled and judgment rendered, paid and satisfied after plaintiff dismissed claim for property damages with defendant's consent, such consent judgment prevented maintenance of separate action which was instituted by plaintiff, prior to entry of consent judgment, for use and benefit of plaintiff's automobile insurer to recover for damage to plaintiff's automobile.'

The relative status of the parties in the Mims case and in this case are such as might have been so handled as to create the same questions of law, but the Mims case, inter alia, differs by reason of the stipulation at pre-trial conference for the dismissal of plaintiff's claim for property damages and defendant's consent to judgment for the personal injury. In that case the rights of the plaintiff's insurer to subrogation of plaintiff's claim for injury to the automobile seems not to have been brought to the attention of the defendant until after consenting to the entry of the consent judgment against him for personal injuries, and the court held the prior judgment to be res judicata of the subsequent suit for property damage. The court recognized the conflict of the doctrine of one-cause-of-action with the doctrine of two-causes-of-action by reason of a tortious act inflicting injury to a person and his property, and reaffirmed the majority one-cause-of-action rule; and, although recognizing the existence of an exception to the one-cause rule, it did not find it material to the case.

I

Waiver

In Splitting Causes of Action. Judgment for Plaintiff or Defendant.

The majority rule is to the effect that when one tortious act results in injury to the person and property of another it gives rise to only one cause of action. The rule against splitting one cause of action seems to be well stated in Restatement, Judgments, § 62 (1942) as follows:

'Splitting Cause of Action--Judgment For Plaintiff or Defendant.

'Where a judgment is rendered, whether in favor of the plaintiff or of the defendant, which precludes the plaintiff from thereafter maintaining an action upon the original cause of action, he cannot maintain an action upon any part of the original cause of action, although that part of the cause of action was not litigated in the original action, except

'(a) where the procedure adopted by the plaintiff precluded his recovery for the entire claim and this procedure was essential to preserving his rights, or

'(b) where the defendant's fraud or misrepresentation prevented the plaintiff from including the entire claim in the original action, or

'(c) where the defendant consented to the splitting of the plaintiff's cause of action.'

And in comment on clause (c) supra, p. 257, it is stated:

'Where the plaintiff brings separate actions based upon different items included in his claim and in none of the actions does the defendant make the objection that another action is pending based upon the same claim, a judgment for the plaintiff in one of the actions does not preclude him from obtaining judgment in the other actions. In such a case the failure of the defendant to object to the splitting of the plaintiff's claim is effective as a consent to the splitting of the claim.'

The rule that a cause of action may not be split into two or more causes of action is for the benefit of the party defendant and he may waive his right to insist on the rule forbidding splitting of a single cause of action, 1 Am.Jur., Actions, § 101, p. 484.

In Georgia Ry. & Power Co. v. Endsley, 167 Ga. 439, 145 S.E. 851, 855, 62 A.L.R. 256, the court adhering to the doctrine that a tortious act causing injury to a person and his properly gives rise to only one cause of action between the same parties held that the rule against splitting of a cause of action may be waived and that the defendant may be estopped to set up a prior judgment rendered in one of two pending suits on the same cause of action when he does not object to the splitting until judgment is rendered against him in one of the two actions. The Court stated:

'* * * It was too late for the defendant to object to the splitting of the action into two suits after judgment had been rendered against it in one of them, where both had been started at practically the same time, and where to each the defendant had pleaded only a general denial. In such a situation a defendant is presumed to have waived his right to object; he has impliedly consented.'

II

Subrogation

An exception to the rule that a single tort causing injury to a person and his property constitutes one cause of action which cannot be split arises when rights of subrogation under insurance policies accrue. The application of the exception is proper under the facts and circumstances of this and the following cases.

In Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 716, 166 A.L.R. 855, the Court held:

'Clearly, after a single right of action has accrued, the plaintiff may not assign a part of it and escape the consequences of splitting a single cause of action. But where, before any causes of action for injury to person and property arise, the owner of the property, by contract, invests another with certain potential or equitable rights or interests in such property, there is no basis for the denial of the right of the owner of such interest so acquired to prosecute a separate action for damages to such property arising out of its subsequent injury.

'Where an injury to person and to property through a single wrongful act causes a prior contract of indemnity and subrogation to come into...