Johnson v. Lasher Milling Co., Inc.

• Decision Date: 21 February 1980
• Docket Number: No. LL-323,LL-323
• Citation: 379 So.2d 1048
• Parties: Hinton Roy JOHNSON, Jr. and Doris L. Johnson, d/b/a Farmer's Exchange, Appellants, v. LASHER MILLING COMPANY, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1048

379 So.2d 1048

Hinton Roy JOHNSON, Jr. and Doris L. Johnson, d/b/a Farmer's Exchange, Appellants, v. LASHER MILLING COMPANY, INC., Appellee.

No. LL-323.

District Court of Appeal of Florida, First District.

Feb. 21, 1980.

Guyte McCord, III, of Spector & Tunnicliff, Tallahassee, for appellants.

W. Roderick Bowdoin, of Darby, Peele, Page & Bowdoin, Lake City, for appellee.

LARRY G. SMITH, Judge.

The Johnsons appeal a final judgment awarding compensatory and punitive damages to appellee, Lasher Milling Company, Inc. Appellants contend that the trial judge erred: (1) in failing to instruct the jury that punitive damages could be awarded only under Count I of appellee's counterclaim; and (2) in allowing the jury to use general verdict forms, making it impossible to determine whether the jury's verdict was based on Count I, or Count II. We affirm because the jury instructions were not objected to at trial, and there was no "fundamental error" requiring reversal; and because the evidence supports a verdict for appellee under either Count I or Count II, and there was ample evidence of fraud justifying the award of punitive damages.

Count I of appellee's amended counterclaim alleged that appellants knowingly and intentionally misrepresented the weight of numerous loads of corn sold to appellee by appellants, resulting in appellee paying for corn not received. Appellee further alleged that such misrepresentations were made with intention to induce appellee to rely and act upon said misrepresentations; that appellee did rely and act upon them; that appellee has suffered great losses as a result of paying for corn not received; and that the actions of appellants were intentional, willful, wanton, and with disregard for the rights of appellee. Both compensatory and punitive damages were sought as to Count I. Count II incorporated all allegations of Count I by reference, with exception of the allegations alleging intentional misrepresentation. Count II stated a cause of action for "restitution" to appellee of monies received by appellants to which they were not entitled by virtue of the overcharges made for shipments of corn not actually delivered.

Appellants contend that the trial court committed error in giving the punitive damage instruction without informing the jury that punitive damages were awardable only in event they found a cause of action under Count I, the fraud count, but not as to Count II, the restitution count. See Associated Heavy Equipment Schools, Inc. v. Masiello, 219 So.2d 465 (Fla.3rd DCA 1969).

In our view the trial judge did not affirmatively instruct the jury that punitive damages were awardable under both counts. On the other hand, it is true that the judge failed to specifically point out to the jury that consideration of punitive damages should be confined to the cause of action under Count I. Notwithstanding this deficiency, we are not persuaded that reversible error is presented. The trial judge fully and adequately instructed the jury upon the elements necessary to be proved under Count I in order for appellee to recover for actionable fraud based upon false representations. The instructions used were, with minor modifications, those submitted by appellants. The court also instructed the jury on the requirements necessary for recovery by appellee under the second count, for restitution of monies paid for corn not delivered. The judge then instructed on punitive damages. There was no objection to these instructions at the trial, and there is no contention here that they erroneously stated the applicable law. Therefore, even though as indicated in Associated Heavy Equipment Schools, Inc. v. Masiello, supra, the jury should have been instructed to limit their consideration of punitive damages to the fraud count, no reversible error can be shown in the absence of objection, Rule 1.470(b), Florida Rules of Civil Procedure, or unless, as appellants contend, the error was of such fundamental proportions as to make objection unnecessary. Morrison v. Hansen, 213 So.2d 306 (Fla.1st DCA 1968); Painter v. Town of Groveland, 79 So.2d 765 (Fla.1955); Jefferson v. City of West Palm Beach, 233 So.2d 206 (Fla.4th DCA 1970); Yacker v. Teitch, 330 So.2d 828 (Fla.3rd DCA 1976); Winthrop v. Carinhas, 142 Fla. 588, 195 So. 399 (1940).

We find no merit in appellants' contention that the instructions constituted a "misapplication of the law". We find it necessary, however, to consider whether the failure of the trial court to clearly restrict the punitive damage instruction to Count I "could reasonably have misled the jury to (appellants') detriment". Jefferson v. City of West Palm Beach, supra.

Appellants argue that because the court submitted the case to the jury on general verdict forms, and denied appellants' request for use of special verdict forms, it is impossible to determine whether the jury awarded punitive damages as an incident to recovery under Count I, which was permissible, or upon Count II, which was not. Appellants rely upon Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977), for reversal. We find no error based upon the Colonial Stores case. In that case the plaintiff pleaded alternatively or cumulatively a cause of action for both false imprisonment and malicious prosecution. The jury returned a general verdict for the plaintiff. The District Court held (Colonial Stores, Inc. v. Scarbrough, 338 So.2d 1119 (Fla.1st DCA 1976), affirmed by the Florida Supreme Court, Colonial Stores, Inc. v. Scarbrough, supra), that the general verdict could be upheld because the court found the evidence sufficient to sustain recovery under the count for malicious prosecution, thus making it...