DuPuis v. 79th St. Hotel, Inc.
| Decision Date | 27 January 1970 |
| Docket Number | 69--413,Nos. 69--292,s. 69--292 |
| Citation | 231 So.2d 532 |
| Parties | June DuPUIS, joined by Carl DuPuls, Appellants, v. 79TH STREET HOTEL, INC., a Florida corporation and Able-Central Exterminators, Inc., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Horton & Schwartz, Miami, and Raymond VanderZeyde, Miami Shores, for appellants.
Fuller & Brumer, Bolles, Goodwin, Ryskamp & Ware and Howard Hirsch, Miami, for appellees.
Before PEARSON, C.J., and CHARLES CARROLL and SWANN, JJ.
We have previously consolidated interlocutory appeal #69--292 with full appeal #69--413 and will discuss both appeals in this opinion.
This action started when the plaintiff, 79th Street Hotel, Inc., filed a complaint against Carl DuPuis and Able-Central Exterminators, Inc., a Florida corporation.
Later plaintiff filed an amended complaint adding June DuPuis, the wife of Carl, as a party defendant. She was served with the proper papers but failed to answer within the time required. On January 23, 1969, plaintiff recovered a default judgment against June DuPuis, On March 25, 1969, June DuPuis filed a motion to set aside the default with a proposed answer in which she raised three affirmative defenses.
The trial judge denied the motion of June DuPuis to set aside the default. An interlocutory appeal was taken by June DuPuis, challenging the denial of her motion to vacate the default. Shortly thereafter the case came on for trial against all defendants and the trial judge permitted it to go to the jury as if no default had been entered and the defendant June DuPuis was permitted to testify in her own defense. The court directed a verdict for the defendant exterminating company which was not challenged by appeal. One of the instructions to the jury at the conclusion of the trial was:
Emphasis added.
Although the court refused to set aside the default judgment against June DuPuis, the jury was never told that a default judgment had been entered against her and the case was tried as if no default had been entered. Under these circumstances, it appears that June DuPuis was not harmed or prejudiced by the failure of the trial court to set aside the default and that the issues raised by her interlocutory appeal are moot. See 2 Fla.Jur. Appeals §§ 291--293.
Assuming arguendo, that the issues raised on the interlocutory appeal are not moot, we conclude that the failure to set aside the default judgment would be harmless error under these circumstances. See § 59.041, Fla.Stat., F.S.A.
After trial, the jury returned a final verdict for the plaintiff against the defendants Carl and June DuPuis. The verdict and final judgment was against Carl and June DuPuis for $50,000 compensatory damages and against Carl DuPuis for $20,000 punitive damages.
The first point on appeal asserts that the defendant wife, June DuPuis, was not liable for the alleged independent tort of her husband Carl. This suit was based on the alleged fraud, deceit and/or false representation of these defendants in connection with a sale of a hotel owned by them by the entirety to the plaintiff. The wife never had any direct conversations with the plaintiff concerning the sale, but it is claimed that the husband acted as her agent and that she ratified his acts.
Fla.Stat. § 708.03, F.S.A., provides, generally, that the property of a wife shall remain in the care and management of the husband. This statute has been construed as to create a principal and agent relationship between the wife and husband. Flash Bonded Storage Co. v. Ades, 152 Fla. 482, 12 So.2d 164 (1943); Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So 'When a married woman knowingly permits her husband to manage or control her property, or allows him so to deal with it as to induce others to believe that he is acting as her authorized agent, such facts are sufficient to establish the agency in favor of persons who deal with him in such belief. * * *'
473 (1925). In addition, in Craft v. American Agricultural Chemical Co., 81 Fla. 55, 87 So. 41 (1921), the court stated on page 42:
In Petersen v. Brotman, Fla.App.1958, 100 So.2d 821, the court ruled that a married woman's interest or property right in an estate by the entirety is her separate property. It would appear proper for a jury to find that a husband may act as an agent for the wife in the sale of property owned by the entirety in cases involving an intentional tort (as distinguished from a negligent tort), such as fraud, deceit and/or misrepresentation of an existing fact when such tort was committed in the course of his agency for her; or was ratified by her. See 41 Am.Jur.2d Husband and Wife, §§ 436--38. There was sufficient, competent and substantial evidence in this record from which a jury could have determined that the husband, Carl DuPuis, was acting as the agent of the wife in the sale of this hotel and that she ratified or confirmed his acts as her agent in the sale. See 37 Am.Jur.2d Fraud and Deceit, § 316.
We have reviewed the record and find that there was sufficient, competent and substantial evidence to go to the jury on the question of liability and that there was sufficient evidence for the jury to return a verdict finding both defendants liable.
The evidence as to the damages sustained by the plaintiff was set forth in appellant's brief as follows:
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...481 So.2d 1236, 1239 n. 4 (Fla. 3d DCA 1985); Hilsenroth v. Kessler, 446 So.2d 147, 150 (Fla. 3d DCA 1983); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532, 536 (Fla. 3d DCA), cert. denied, 238 So.2d 105 (Fla.1970). In DuPuis, the court noted that Florida has followed the out-of-pocket rul......
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...been an overstatement of assets of the corporation or an understatement of liabilities." Id. at 42. Finally, in DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. D.C.A. 3d), cert. denied 238 So.2d 105 (Fla.1970), the Florida courts recognized the advantages of a more flexible approach ......
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...or the "benefit of bargain" rule as justice demands. Hilsenroth v. Kessler, 446 So.2d 147 (Fla. 3d DCA 1983); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. 3d DCA), cert. denied, 238 So.2d 105 (Fla.1970).5 "There is a growing trend among the states toward awarding prejudgment inter......
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...flexibility theory's principles. (3) The first Florida decision to use the term "flexibility theory" was DuPuis v. 79th St. Hotel, Inc., 231 So. 2d 532 (Fla. 3d DCA 1970). In that tort case, the trial court approved a jury instruction which allowed the jury to consider awarding both "benefi......