
    Inez WILSON, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellee.
    No. S-115.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1975.
    Rehearing Denied March 26, 1975.
    R. P. Warfield, of Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for appellant.
    Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appel-lee.
   BOYER, Judge.

We here again consider the applicability of the estoppel by judgment doctrine, particularly as affected by the intervening doctrine of Hoffman v. Jones, Sup.Ct.Fla. 1973, 280 So.2d 431.

Appellant’s husband was killed as a result of the collision between his car and appellee’s train on December 4, 1970. Appellant, as administratrix of her husband’s estate, sued appellee under the Florida Wrongful Death Act. Appellant also filed the instant suit individually and sought damages for loss of services, etc., for the death of her husband. On April 25, 1972, a jury verdict was rendered in favor of the railroad in the administratrix’s action. An appeal by the administratrix was affirmed by this Court, and certiorari was denied by the Supreme Court. On the 10th day of July, 1971, summary judgment was rendered by the trial court in the instant cause in favor of the railroad upon the principle of estoppel by judgment. Notice of appeal was timely filed and the cause apparently was left in limbo awaiting the results of the appellate review of the administratrix’s suit.

Now, appellant insists that estoppel by judgment does not apply in this cause by reason of the newly discovered comparative negligence doctrine in Hoffman v. Jones, supra, which was rendered after the trial of the administratrix’s action. We agree and reverse. (See Seaboard Coast Line Railroad Company v. Arnett, Fla.App. 1st 1974, 303 So.2d 653, and Fitzsimmons v. City of Pensacola, Fla.App. 1st 1974, 297 So.2d 107.)

Valdez v. Fesler, Fla.App. 2nd 1974, 298 So.2d 512, is not applicable for the reason that there it is apparent that the appellant (plaintiff in the trial court) consciously elected to waive his right to have made applicable the doctrine of comparative negligence in line with Hoffman v. Jones, supra.

Reversed and remanded.

McCORD, J., concurs.

RAWLS, C. J., dissents.

RAWLS, Chief Judge

(dissenting).

I dissent. The majority and appellant insist that estoppel by judgment does not apply to this cause by reason of the newly discovered comparative negligence doctrine in Hoffman v. Jones. I disagree. In speaking to the identical situation in Epps v. Railway Express Agency, the Florida Supreme Court stated:

“We are of the view that the holding in Collins v. Hall [117 Fla. 282, 157 So. 646] is peculiarly applicable to the facts of the case at bar. While the rights of both the personal representative and the widow or other statutory beneficiary to recover damages against the alleged tort-feasor were separate, distinct and independent rights, they nevertheless were necessarily dependent upon the existence of an original right of recovery in the injured person in the first instance. Though the separate suits maintainable by the personal representative and the widow were for the recovery of different items of damage the right of each to sue stemmed directly from the original act of negligence which initially gave rise to a cause of action in favor of the injured party.”

The instant cause is controlled by Epps v. Railway Express Agency, and in my opinion the judgment appealed should be affirmed.

ON PETITION FOR REHEARING

PER CURIAM.

As this court stated in Tuz v. Edward M. Chadbourne, Inc., Fla.App. (1st), 290 So.2d 547:

“Estoppel by judgment precludes the parties from litigating in a second suit issues which were actually adjudicated in a previous suit, even though the causes of action were different.”

But for Hoffman v. Jones, Fla., 280 So.2d 431, the above would be the situation in the-case sub judice. Now, however, comparative negligence is an issue in this case (see Seaboard Coast Line Railroad Company v. Arnett, Fla.App. (1st), 303 So.2d 653, opinion filed November 5, 1974, and Fitzsimmons v. City of Pensacola, Fla.App. (1st), 297 So.2d 107). In the administratrix action (Wilson v. St. Louis and S. F. R. Co., Fla.App. (1st), 280 So.2d 722) the issue was contributory negligence. Rehearing Denied.

BOYER and McCORD, JJ., concur.

RAWLS, C. J., dissents. 
      
      . Wilson v. St. Louis & S. F. R. Co., 280 So. 2d 722 (Fla.App.1st 1973).
     
      
      . Wilson v. St. Louis & S. F. R. Co., 287 So.2d 321 (Fla.1973).
     
      
      . Hoffman v. Jones, 280 So.2d 431 (Fla.1973).
     
      
      . Epps v. Railway Express Agency, 40 So.2d 131 (Fla.1949).
     