Fouts v. Margules, 57-125
| Decision Date | 05 November 1957 |
| Docket Number | No. 57-125,57-125 |
| Parties | Anne M. FOUTS, Appellant, v. Louis MARGULES, d/b/a Modern Interiors, Appellee. |
| Court | Florida District Court of Appeals |
E. E. Jordan, Fort Lauderdale, for appellant.
Lane, Primm & Lane, Miami, for appellee.
The plaintiff appeals from an order dismissing her complaint with prejudice. The trial judge ruled that the complaint was not amendable. The complaint sounds in tort and the allegations purporting to set forth negligence are clearly insufficient. These allegations do not, however, preclude the existence of a cause of action; therefore, that portion of the order of dismissal, dismissing the cause with prejudice and denying the privilege of amendment, is reversed.
That allegations of the complaint pertaining to the duty and the breach thereof are, if summarized in the light most favorable to the pleader, to the effect that the plaintiff was a business invitee in the defendant's place of business, where she was directed by the sales woman into the rear portion of the defendant's store in order to inspect merchandise for purchase. Further that she there fell over an exposed iron frame hollywood bed. No further particulars are given except by way of conclusion that the frame bed was left in a dangerous place.
It is strenuously urged that the plaintiff should have seen the article over which she stumbled and cut herself. Possibly she should have done so, but it cannot be said to be conclusively true from the scanty allegations of the complaint. Leave to amend should not be denied unless, and until the privilege to amend has been abused. This is true even though the trial judge is of the opinion that the proffered amendments would not result in the statement of a cause of action. Rule 1.15, 1954 Rules of Civil Procedure, 30 F.S.A.; Slavin v. McCann Plumbing Co., Fla.1954, 73 So.2d 902; Town of Coreytown v. State ex rel. Ervin, Fla.1952, 60 So.2d 482, 487, and cases therein cited. Of course this rule does not preclude a dismissal with prejudice where the complaint is clearly not amendable.
Affirmed in part and reversed in part.
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Cheney v. Dade County
...Hunter v. Fairmount House, Inc., 191 So.2d 92 (Fla. 3d DCA 1966); Richards v. West, 110 So.2d 698 (Fla. 1st DCA 1959); Fouts v. Margules, 98 So.2d 394 (Fla. 3d DCA 1957). ...
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Point East One Condominium Corp., Inc. v. Point East Developers, Inc.
...the third count of the dismissed complaint does not, in its present form, wholly fail to state a cause of action. Cf. Fouts v. Margules, 98 So.2d 394 (Fla. 3d DCA 1957), and Hunter v. Fairmount House, Inc., 191 So.2d 92 (Fla. 3d DCA 1966). Therefore, in accordance with the holding in Avila ......
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DiPaolo v. Rollins Leasing Corp., 96-3367
...In my view, not to have allowed the amended complaint to be filed in this case was an abuse of discretion. See Fouts v. Margules, 98 So.2d 394 (Fla. 3d DCA 1957). 1 See, e.g., cases which hold that where summary judgment should be entered, but matters presented indicated that the unsuccessf......
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Petterson v. Concrete Const., Inc., of Lake Worth
...be resolved in favor of allowing amendment unless and until it appears that the privilege to amend has been abused. Fouts v. Margules, Fla.App.1957, 98 So.2d 394, and cases cited therein. This is true even though the trial judge is of the opinion that the proffered amendments will not resul......