Montgomery v. Knox

• Citation: 23 Fla. 595,3 So. 211
• Court: Florida Supreme Court
• Decision Date: 23 November 1887
• Parties: MONTGOMERY v. KNOX.

3 So. 211

23 Fla. 595

MONTGOMERY v. KNOX.

Florida Supreme Court

November 23, 1887

Appeal from circuit court, Alachua county; THOMAS F. KING, Judge.

Action against the appellant, L. Montgomery, for libel. The opinion states the facts.

Syllabus by the Court

SYLLABUS

In libel, any language published of a person that tends to degrade him, or to bring him into ill repute, or to destory the confidence of his neighbors in his integrity, or to cause other like injury, is actionable per se. ^[1]

A publication in regard to business, made by one having interest therein, and only to others also having an interest is privileged; and the privilege furnishes a good defense in a suit for libel, unless it can be shown that the publication was made from express malice, in which case the privilege does not avail. But publication to others than those interested would not be privileged. ^[2]

M published of K. this: 'We have recently been defending a suit brought against this association by a citizen of Micanopy, who lost his stock of goods by fire during last October. There were circumstances which satisfied the board of directors that the fire was not accidental; consequently we did not feel that we had the right to assess the members of this association to pay what we had reason to believe a fraudulent loss.' Held, that a declaration in libel, with a count on this language containing proper colloquium and innuendo as to its being of and concerning K., and as to his connection with the subject-matter, is sufficient.

It is no objection to a declaration in libel that the libelous matter does not charge a crime; nor, where such matter is actionable per se, that special damage is not alleged.

It is not error in a libel case to charge the jury that if they are satisfied the publication was made from 'ill will,' meaning express malice, they may find exemplary or punitive damages to such amount as the facts and circumstances in evidence may justify.

It was error in this case to instruct the jury that if they found the libel false, and without probable cause, that was evidence of express malice to warrant a verdict for plaintiff awarding exemplary damages. Want of probable cause has nothing to do with libel cases. If the belief which prompted the publication was an unreasonable one, that and falsity did not necessarily imply express malice; but were facts to be left to the jury along with others. It was their province to decide upon the sufficiency of the evidence to show express malice.

In libel, under a plea of not guilty, it is admissible for defendant to prove, in mitigation of damages, that there was a general suspicion and belief of the truth of the published charge; and, under a plea of privileged publication, such evidence is admissible, as pertinent to the question of express malice.

A charge of the court to the jury, correct as far as it goes but wanting in fullness, will not be held objectionable in this court, where it appears that the defect was afterwards cured by instructions given by the court at the request of counsel.

Under our statute it is error to permit a party to prove that his witness has made statements before, inconsistent with his present statements, unless, during his examination, the circumstances and the occasion of his former statements have been brought to his attention.^[3]

COUNSEL

Taylor & Sauchez, for appellant.

Ashby, Scott & Thrasher, for appellee.

OPINION

MAXWELL C.J.

The appellant was sued in the court below by appellee, Knox, for libel. The declaration contains three counts, but they are the same as to the matter of libel; each alleging for such matter that appellant published of and concerning the appellee these words: 'We have recently been defending a suit brought against this association by a citizen of Micanopy, who lost his stock of goods by fire during last October. There were circumstances which satisfied the board of directors that the fire was not accidental; consequently we did not feel that we had the right to assess the members of this association to pay what we had reason to believe a fraudulent loss.' The difference between the counts is that the first connects appellee with this language by stating that appellant made the publication to cause it to be suspected and believed that appellee had been guilty of burning his own property, or causing it to be burned, with the view of collecting the insurance thereon; while the second connects appellee with it by more specifically stating that he had lost goods by fire in Micanopy during the month mentioned, and that at the time of the publication he had sued the insurance company, of which appellant was president, to recover for the loss, and also stating that the publication was made in 'The Orange Growers' Gazette, a newspaper published in Micanopy;' and the third alleges the publication of the language, but does not otherwise connect appellee with it than to say it had reference to him.

Appellant demurred to the declaration on grounds that will be stated hereafter. The court overruled the demurrer. He then filed two pleas: First. That the matter complained of as libelous 'is a detached portion of an official communication, made by the defendant in the official capacity which he occupies as president of the corporation * * * known as the 'Florida Mutual Fire Insurance Association,' to the members only of said corporation, * * * relating entirely and exclusively to the condition and business generally of said corporation;' and that said communication 'contained no facts or charges except such as pertained to the business' of the corporation, and which its members 'had a right to be informed about,' and were 'interested' in; 'and which official communication it was the legal duty of this defendant, as the president of said corporation, to make to the members' thereof. That said 'communication was not published with any malice, or with any intention to injure * * * the plaintiff;' and that it was not published in the newspaper in which the declaration alleges it to have been published, 'with the sanction or consent of the defendant, or by his procurement, or by his authority, or through his agency, but was a privileged communication, made by this defendant as president of said corporation, only to the members thereof.' The second was the plea of not guilty.

The appellee took issue on the first plea, and the case went to trial, resulting in a verdict of $7,000 for appellee. Thereupon appellant made a motion for a new trial, which was denied; and to this he excepted, and subsequently entered his appeal to this court from the judgment rendered on the verdict.

Before turning to the bill of exceptions, and the matters therein set out, on which errors are assigned, it is deemed appropriate to dispose of the questions raised by the demurrer to the declaration, the overruling of which is the first error assigned by appellant. The three grounds on which the demurrer rests are: (1) That the charges and statements of the declaration, even if true, do not make a case of actionable libel; (2) that a punishable offense or crime is not charged, nor any special damage or injury shown; and (3) that the defamatory matter alleged consists merely of the expression of opinion or suspicion. Whether the declaration is defective on the first ground depends upon the further question whether the published matter is a libel actionableper se; that is, actionable without having caused special damage. As to this, any language published of a person which tends to degrade him, or to bring him into ill repute, or to destroy the confidence of his neighbors in his integrity, or to cause other like injury to him, is actionable, irrespective of special damage. Of the numerous authorities on the subject we cite only a few, there being none we know of to a contrary effect. Townsh. Sland & Lib. § 176; White v. Nichols, 3 How. 266; Chaddock v. Briggs, 13 Mass. 248; Colby v. Reynolds, 6 Vt. 489; Rice v. Simmons, 2 Har. (Del.) 417.

But the publication in this case was such as to require, in the declaration founded on it, that the person and the facts referred to should be given, in order to make explicit what was otherwise not apparant on the face of it. In other words, merely setting out the language, without a colloquium as to the person, and an innuendo as to the facts of burning, would be insufficient. See Chit. Pl. (16th Amer. Ed.) 418, 422. Testing the declaration by this rule, we deem it unnecessary to analyze the first and third counts, whose sufficiency may be questionable, especially the latter, because we find the second free from objections applicable to the others, and not amenable to the attack of the demurrer. It is in the usual form as to the previous good character and standing of the appellee, and the falsity and malice of the publication, while it also explains that the reference was to him, he having lost property by fire in Micanopy, in the October mentioned, and having sued the insurance association of which appellant was president to recover his loss. Taking these allegations in connection with the language of the publication, a case is presented which, if true, tends to degrade and injure the reputation of appellee, and therein meets the requirements for his declaration.

The objections raised by the second and third grounds of demurrer are untenable. It is not necessary in a libel suit to allege that a crime was charged, as may be seen from the class of cases actionable per se, given in Townsh. Sland. & Lib. § 176; nor is it necessary to allege special damage, (Chaddock v. Briggs, 13 Mass. 248,) nor is it a good objection in this case that the defamatory matter consists merely of the expression of opinion or suspicion, as that...