FLORIDA EAST COAST RAILWAY COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
JOHN C. CHAPIN, APPELLEE
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Florida East Coast Railway Company appealed a trial court's dismissal without prejudice in a personal injury action brought by an employee under the Federal Employers' Liability Act. The appellate court affirmed the trial judge's discretionary decision to dismiss without prejudice rather than with prejudice, rejecting the railroad's argument that the judge abused discretion.
The trial judge did not abuse discretion in granting dismissal without prejudice. The judge properly treated the application as a motion for dismissal without prejudice under the applicable rule, and the dismissal order reflected an exercise of discretion with conditions designed to protect the defendant.
“The trial judge entered his order thereon which shows he treated the application as a motion for dismissal without prejudice under rule 1.35(a) (2) and recited in the order that it was made in the exercise of discretion.”
Establishes that the trial court properly invoked discretionary authority under the applicable rule and the order clearly reflected this discretionary exercise
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Join FLexlaw to unlock all legal intelligenceJohn C. Chapin, an employee of Florida East Coast Railway Company, filed a personal injury action under the Federal Employers' Liability Act. During j…
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The appellee John C. Chapin filed an action in the circuit court in Dade County against the appellant Florida East Coast Railway Company for damages for personal injuries sustained in the course of his employment by the company. His action was brought under Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-60. On trial of the cause before a jury certain happenings having to do with the attitude of a member of the jury and conduct of a witness prompted plaintiff’s counsel to move under rule 1.35(a) (2), Fla.R.C.P., 30 F.S.A., for dismissal of the cause without prejudice. *108Defendant moved that dismissal be with prejudice. The trial judge granted plaintiff’s motion, and the defendant appealed. The question presented is whether the trial judge abused discretion in dismissing without prejudice, or stated differently, whether it was abuse of discretion for the trial judge to refuse to make the dismissal one with prejudice.
The motion for dismissal was presented under circumstances which formerly might have prompted a plaintiff to take a non-suit. Recognizing that nonsuit no longer was permitted (see Crews v. Dobson, Fla. 1965, 177 So.2d 202), plaintiff’s counsel made it clear that his application was not for nonsuit but for a dismissal without prejudice under the rule, and showed willingness to proceed with the trial if the court should not grant his motion.
The appellant argues it was error to deny defendant’s motion for dismissal with prejudice, contending the dismissal without prejudice was not an exercise of discretion because the trial judge was of the view that nonsuit was permissible, and that otherwise the trial court would have dismissed with prejudice. In support thereof the appellant refers to the colloquy between the trial judge and counsel with reference to the plaintiff’s motion. However, any uncertainty on the part of the trial judge as to the nature of the motion which the colloquy disclosed, became immaterial when the trial judge entered his order thereon which shows he treated the application as a motion for dismissal without prejudice under rule 1.35(a) (2) and recited in the order that it was made in the exercise of discretion. Also, as provided for in the rule, the dismissal order imposed conditions designed to protect defendant and its counsel from monetary loss occasioned by such dismissal without prejudice.
On considering the circumstances of the case upon which the trial court acted, we are of the opinion appellant has failed to show an abuse of discretion.
Affirmed.
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Citator
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Wellons v. Howe, 181 So. 2d 370 (Fla. 3d DCA 1966)…retion by the trial judge in the entry of the order appealed from or in the order taxing costs-against the appellee. Rule 1.35(a) (2),. Florida Rules of Civil Procedure, 30 F.S.A. [*372] In Florida East Coast Railway Company v. Chapin, Fla.App.1965, 179 So. 2d 107, Judge Carroll stated the rule, approved herein, that “the dismissal order imposed conditions designed to protect defendant and its counsel from monetary loss occasioned by such dismissal without prejudice.” Such was the case here. The orders appea…
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Dade Cnty. v. Peachey, 181 So. 2d 353 (Fla. 3d DCA 1965)…al without prejudice was given. Therefore, there was no basis for an exercise of discretion by the trial court. We think this fact distinguishes the instant appeal from our prior decisions. In Florida East Coast Railway Co. v. Chapin, Fla.App.1965, 179 So. 2d 107, we affirmed a dismissal without prejudice upon a holding that the trial judge had properly exercised the discretion inherent in the situation. That holding does not collide with the instant case. In Continental Aviation Corp. v. Southern Bell T. &…
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Arkus G. Austin v. Se. Title & Ins. Co., 181 So. 2d 174 (Fla. 3d DCA 1965)…the defendant now appeals. There was no showing that in granting the plaintiff’s motion the trial court abused its discretion. Rule 1.35(a) (2) Florida Rules of Civil Procedure, 30 F.S.A.; Florida East Coast Railway Company v. Chapin, Fla.App.1965, 179 So. 2d 107. Affirmed.…
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- Crews v. Dobson, 177 So. 2d 202 (Fla. 1965)