Opinion
No. 62-430.
February 5, 1963.
Appeal from the Circuit Court, Dade County, Pat Cannon, J.
Carey, Goodman, Terry, Dwyer Austin and Joseph A. McGowan, Miami, for appellants.
Papy Carruthers, Miami, for appellees.
Before CARROLL, HORTON and BARKDULL, JJ.
By this appeal, review is sought of an order of the trial judge dismissing a complaint for personal injuries brought by a minor through his father as his next friend, and also the father's derivative claim for medical expenses incurred because of the alleged injuries.
It appears that the dismissal was with prejudice because of the failure of the father to appear at the time he was noticed for the taking of his deposition on more than one occasion. A trial judge is possessed of the authority, under the rules, to dismiss a complaint or a cause of action because of failure to comply with discovery procedures and, under certain circumstances, may be within his power in dismissing a complaint or a cause of action with prejudice. However, the record in this case fails to support a dismissal of both the minor's and the father's complaints or causes of action with prejudice and, therefore, so much of the order of dismissal as dismissed the cause with prejudice be and the same is hereby reversed, with directions to eliminate this provision from the final order of dismissal. See: Palm Shores, Inc. v. Nobles, 1941, 149 Fla. 103, 5 So.2d 52.
Rule 1.31, F.R.C.P., 30 F.S.A.
Affirmed in part; reversed in part.