Murray ROSENTHAL and Joseph Rosenthal, Petitioners, v. Paul Andrew SCOTT, Respondent, 150 So. 2d 433

O’CONNELL, Justice. On May 21, 1960 there was filed with this Court a petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, in Scott v. Rosenthal, Fla.App.1960, 118 So.2d 555. Subsequently, this Court entered its decision therein, Rosenthal v. Scott, Fla.1961, 131 So.2d 480, wherein it was observed that the decision of the district court of appeal was a per curiam reversal.

This Court ordered that the cause be returned to the district court of appeal with the request that that court write an opinion setting forth the theory and reasoning upon which it based its judgment of reversal. The district court of appeal complied graciously and expeditiously with this request. Scott v. Rosenthal, Fla.App.1961, 132 So.2d 347. The cause was forthwith returned to this Court for further consideration of the defendants’ petition for writ of certiorari, wherein it was contended such decision was in direct conflict with decisions of this Court.

Defendants’ original petition, filed on May 21, 1960, is now considered as being directed to the opinion entered by the district court of appeal in compliance with the request of this Court. 132 So.2d 347, supra. For convenience the facts of the case are again summarized. Scott, the plaintiff in the court below, appellant in the district court of appeal, and respondent here, was involved in an automobile collision with the Rosenthals.

Scott, on receipt of payment for damages to his automobile from his insurer, gave the insurer an assignment and subrogation agreement as to Scott’s claim for damages to his automobile. In February 1958 the insurer brought suit, in its name, against the Rosenthals for the damages to Scott’s automobile.

A month later Scott filed suit against the Rosenthals for his personal injuries Subsequently the insurer’s suit was dismissed with prejudice, after which in an answer filed to Scott’s amended complaint in the personal injury suit, the Rosen-thals pleaded the action for automobile damages and its dismissal with prejudice. The answer alleged that since only a single cause of action arose when Scott’s person and automobile were damaged by defendants’ alleged single tort, plaintiff’s second action violated the rule against splitting a cause of action, which rule was laid down in Mims v. Reid, Fla.1957, 98 So.2d 498.

The Rosenthals moved for

summary judgment and the trial court granted the motion on the authority of Mims v. Reid, supra. The district court of appeal reversed the trial court. It ruled that there was no splitting of the cause of action. This ruling was elaborated upon in nowise, the court simply stating at 132 So.2d p. 348: “ * * * The majority of this court are of the view, and so hold, that under the factual situation in this case, there was no splitting of a cause of action * sjs $ »

The court did add immediately thereafter that assuming, arguendo, that there had been a splitting of the cause of action the defendants had by their actions waived that defense. Petitioners contend that this ruling that there was no splitting of a cause of action is in direct conflict with the decision of this Court in Mims, 98 So.2d 498, supra. We concur with this contention. In Mims the same situation arose, with two differences. First, in Mims the insured filed the first suit against the tort-feasor, claiming damages for his personal injuries.

Subsequently he filed a second, separate suit against the tort-feasor for the use and benefit of the insurer, seeking to recover damages to the automobile. In the instant case, the insurer filed the first suit against the tort-feasors on the claim for property damages and thereafter the insured, Scott, filed his action against them for his personal injuries. We find this difference in the factual situation to be completely immaterial.

Next, in the instant case the insurer paid its insured, the respondent Scott, for the property damages to his automobile and respondent gave the insurer an assignment and subrogation agreement as to his claim against the petitioners for such damages. In Mims, however, a “loan receipt” arrangement was utilized in lieu of an actual assignment and subrogation agreement.

A loan receipt arrangement is one whereby the insurer does not actually indemnify the insured’s claim under the policy for physical damages to his automobile by paying to him the amount of such damages but “advances” to him, as a loan, a sum equal in amount to such damages. This is done by the insurer in exchange for a loan receipt executed by the insured. If it were concluded that in Mims such loan receipt arrangement did not constitute a subrogation agreement, it could then be argued that the instant case is distinguishable.

But reference to this Court’s opinion in Mims, at 98 So.2d 500, reveals that this Court did in fact treat the loan receipt arrangement as a subrogation agreement.

The Court said therein: “ * * * Midway between these two extreme views some courts recognize the general principle that but one cause of action arises out of a single act or omission resulting in injuries to both person and property, nevertheless they permit recovery by insured for personal injury, under some circumstances at least, irrespective of the prior institution of a suit by an insurer who is subrogated, as in this case, to the rights of insured with respect to property damage. * * * ” (Emphasis supplied.) It thus appears that in Mims this Court considered and rejected the exception to the one-cause rule which some jurisdictions recognize where an insurer has a subrogation right against the tort-feasor.

It also can be derived from Mims that therein this Court announced its intention to follow the so-called majority rule that only one cause of action arises out oí a single tort committed on an individual, even though that tort results in damages to both the person and to his physical property. The decision of the district court of appeal in the instant case that there was no splitting of a cause of action is therefore in direct conflict with Mims.

In Mims we said only a single cause of action arises out of such a tort and the district court of appeal in the instant case has ruled in effect that two causes of action arose from a like tort. We have again considered the point involved in the Mims case and in this and have concluded that we should continue to adhere to the so-called majority rule. We thereby again reject the minority rule and the “subrogation” exception to the one-cause rule for the same reasons set forth in the authorities cited in the Mims case. As a matter of interest, we note that this same district court of appeal adhered to Mims v.

Reid, 98 So.2d 498, supra, in Titus v. Emmco Ins. Co., Fla.App.1959, 109 So. 2d 781. As previously noted, the district court of appeal also ruled that assuming, arguendo, that there had been a splitting of the cause of action, such defense had been waived by the actions of the defendants, petitioners here. The court, at 132 So.2d 348, said: “We feel it was incumbent on the Rosenthals, who were parties defendant in both actions, and simultaneously defending these actions, to come forth at the first opportunity after gaining knowledge of their pendency, and seek to abate one or the other of the actions.

Having failed so to do, they should now be estopped to urge the abatement of the action after judgment of dismissal in the first action. * * * Although we recognize the similarity of a plea which seeks to bar a pending action on the theory of splitting causes of action, and a plea of res judicata, nevertheless, we are not confronted with the application of the latter because the Rosenthals have not attempted to plead the judgment in the civil court of record as a bar to the action in the circuit court.

The Rosenthals simply sought an abatement of the action in the circuit court under the theory announced in Mims v. Reid, Fla.1957, 98 So.2d 498.” It can be inferred that the court’s reasoning was that the petitioners were estop-ped because they failed to raise the defense against the splitting of the cause of action timely, and such defense was not the affirmative defense of res judicata and thus should not be treated in the same manner as such a plea would be treated. We are of the view that such reasoning is faulty and the decision is in direct conflict with the decision of this Court in Hough v.

Menses, Fla.1957, 95 So.2d 410. We note first that under similar circumstances no waiver was adjudged to have occurred in Mims. However, the record in Mims, on file with this Court, reveals that the plaintiff did not contend that the defendant there had waived his right to enforcement of the rule.

In Restatement, Judgments, Sec. 62, p. 257 it is said that one consents to the splitting of a cause of action where “in none of the actions does the defendant make the objection that another action is pending based upon the same claim.” The petitioners here did object to the splitting in their answer to the amended complaint in the second suit, the one for personal injury damages.

However, the district court of appeal was of the view that this obj ection was not made at “the first opportunity.” It indicated the defense was not one such as the affirmative defense of res judicata, which must be raised in a defendant’s answer to the complaint filed against him. In Mims this Court cited with approval 1 Fla.Jur., Actions,

Section 42, wherein it is stated that the rule against splitting causes of action is “closely related to the doctrine of res judicata” and the remedy is a defense in the nature of a plea in abatement. Until the abolishment of such pleas, the objection to the splitting of a single cause of action could have been made as a plea in the nature of a plea in abatement. Glasser v. Hackett, 1896, 37 Fla. 358, 20 So. 532. But pleas in abatement have been abolished and the proper way to plead matters in abatement is by answer or motion. 1 Fla.Jur., Abatement & Revival,

Section 4; Rules 1.7(

e) and 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A. However, in the instant case a plea in abatement would not have been the proper plea to be asserted by the defendants, for by the time plaintiff’s amended complaint was filed in the instant suit the first suit had been dismissed with prejudice. The proper plea was one to bar absolutely the second action, not merely to delay it pending disposition of another suit. In other words, the proper defense was one in the nature of res judicata. The district court of appeal’s reasoning, noted previously, is thus faulty.

Rule 1.11(b), Fla.R.Civ.P., lists those matters which may be raised by motion, requiring all other defenses to be raised by answer. Rule 1.8(d), Fla.R.Civ.P., requires that all affirmative defenses be raised by answer. Res judicata and “any other matter constituting an avoidance or affirmative defense” are included within that rule. The subject defense of splitting a cause of action clearly comes within that category and should have been raised,in the answer, just as any other affirmative defense must be raised, as we so held in Hough v. Menses, 95 So.2d 410, supra.

The effect of the decision of the district court of appeal must be said to be that the defendant should have raised the affirmative defense against the splitting of the cause of action prior to filing their answer, i. e., by motion. This is contra to and in conflict with the holding of this Court in Hough, supra. The petition for writ of certiorari having heretofore been issued, the decision of the district court of appeal is hereby quashed for the reasons expressed above and the cause is remanded for further proceedings consistent herewith. TERRELL, DREW and THORNAL, JJ., concur. ROBERTS, C.

J., dissents (agrees to jurisdiction but disagrees on merits). THOMAS and HOBSON, JJ., dissent.