389 F.2d 579 (5th Cir. 1967), 23623, Belli v. Orlando Daily Newspapers, Inc.

Docket Nº:23623.
Citation:389 F.2d 579
Party Name:Melvin M. BELLI, Appellant, v. ORLANDO DAILY NEWSPAPERS, INC., et al., Appellees.
Case Date:December 28, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 579

389 F.2d 579 (5th Cir. 1967)

Melvin M. BELLI, Appellant,

v.

ORLANDO DAILY NEWSPAPERS, INC., et al., Appellees.

No. 23623.

United States Court of Appeals, Fifth Circuit.

December 28, 1967

Rehearing Denied Feb, 16, 1968.

Page 580

Paul A. Louis, Bertha Claire Lee, Murray Sams, Jr., Miami, Fla., J. P. Tonkoff, Yakima, Wash., for appellant.

Richard W. Bates, Joseph P. Baker, George T. Eidson, Jr., Robert Dyer, Orlando, Fla., for appellees.

Before WISDOM and GODBOLD, Circuit Judges, and McRAE, District Judge.

WISDOM, Circuit Judge.

This action for damages for libel and slander is based on a false statement relating to Mr. Melvin Belli. Belli, an attorney of national prominence, is well known in the legal profession for his pioneering in the development of demonstrative evidence as a trial tactic and his success in obtaining large judgments for plaintiffs in personal injury suits. He is well known to the general public because of his representation of Jack Ruby and others in the public eye.

In March 1964 Mr. Leon Handley, an attorney in Orlando, Florida, in a conversation with Miss Jean Yothers, a columnist for the Orlando Evening Star, repeated a story he had heard concerning Belli. Handley told Yothers that the Florida Bar Association had invited Belli to serve as a member of one of the panels on the program of the Association at its 1955 Convention in Miami Beach. Belli agreed, with the understanding that 'since there were no funds provided in the budget for payment per se for his contribution as a lawyer to the program the Florida Bar instead would pick up the hotel tab for himself and his wife during their stay.' According to Handley, after Mr. and Mrs. Belli left Florida, the Association discovered that the Bellis 'ran up a bunch of (clothing) bills' which they charged to their hotel room. 1

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The derogatory portion of the story was admittedly false: the Bellis had not charged any purchases to their hotel account. Unfortunately for all, Jean Yothers reported, with embellishments, this nine-year old story in her gossip column in the Orlando Evening Star for March 19, 1964. She commented, in part: '* * * Oops. * * * the plan backfired on the Florida Bar * * * (Mr. Belli and 'his well-dressed wife' had charged) clothing bills amounting to hundreds of $s * * * to their hotel rooms. * * * The Florida Bar had been taken. * * * After all, that was the plan.' 2

On these facts, Belli brought this diversity action. The complaint alleges that (1) Yothers, the Orlando Evening Star, and its editor libeled Belli through publication of the article, (2) that Handley slandered Belli in making the false statement to Yothers, and (3) that all of these parties, with others, participated in a conspiracy to defame belli.

The district court dismissed Belli's complaint for failure to state a claim upon which relief could be granted. The court relied on the erroneous assumption that the determination whether a statement is a libel (or slander) per se is solely for the court. We consider it a close question whether the publication is so clearly defamatory that as a matter of law the case should not be submitted to the jury. We hold, however, that the publication itself, without reference to extrinsic facts, is capable of carrying a defamatory meaning. It is for a jury to determine whether it was so understood by the 'common mind'. We reverse and remand.

I.

Historically, libel, as generally distinguishable from slander, was actionable without the necessity of pleading or proving that the plaintiff had suffered any damages as a result of it. 3 That is the accepted rule today in England 4 and in many jurisdictions in the United States 5 both as to libel per se and libel per quod. 6 A libel per se is one that is

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defamatory on its face, including a publication that is susceptible of several meanings, one of which is defamatory; it is actionable without proof of special harm. A libel per quod is one in which the defamatory meaning, or innuendo, is not apparent on the face of the publication, but must be established by proof of extrinsic facts. Here the district court held, correctly, that the Belli claim 'must be determined solely on the basis of whether it sufficiently alleges a publication which is libelous per se'--since, as is evident from the complaint, the plaintiff did not allege defamation by extrinsic facts or plead special damages. 7

A. In its opinion below the court recognized that there are four categories of defamatory imputations which traditionally have been considered actionable without proof of harm. As set out in the Restatement of Torts, Second, Tentative Draft 12, Section 569, these are statements which impute to another '(1) a criminal offense, (2) a loathsome disease, (3) matter incompatible with his business, trade, profession or office, and (4) unchastity on the part of a woman plaintiff'. Such defamatory statements, whether the publication is in the form of libel or in the form of slander, are regarded as especially likely to cause harm to the reputation of the person defamed, although such harm is not and perhaps cannot be proved. See Restatement, Second, Tentative Draft 12, Sections 569-574; Prosser, Law of Torts § 107 (1963); I Harper and James, Law of Torts § 5.9 (1956). Florida law recognizes these four traditional categories of per se libel and slander. Richard v. Gray, Fla.S.Ct.1953, 62 So.2d 597, 598; Layne v. Tribune, 1933, 108 Fla. 177, 146 So. 234, 236, 86 A.L.R. 466; Adams v. News-Journal Corp., Fla.S.Ct.1955, 84 So.2d 549, 551; Miami Herald Pub. Co. v. Brautigan, Fla.App.1961, 127 So.2d 718, 722.

Libel per se is not limited to these four categories: Courts use a stock formula to describe a general class of per se libel (but not per se slander). The Restatement's formula is:

One who publishes defamatory matter is subject to liability without proof of special harm or loss of reputation if the defamation is (

  1. Libel whose defamatory innuendo is apparent from the publication itself without reference to extrinsic facts by way of inducement. Restatement, Second, Tentative Draft 12, Section 569.

    In Florida and in many states the rubric runs: a libel per se is 'any publication which exposes a person to distrust, hatred, contempt, ridicule, obloquy'. For example, in Briggs v. Brown, 55 Fla. 417, 46 So. 325, 330 (1908) the court states the formula for libels per se as follows:

    A civil action for libel will lie when there has been a false and unprivileged publication by letter or otherwise which exposes a person to distrust, hatred, contempt, ridicule, or obloquy * * * or which has a tendency to injure such person in his office, occupation, business, or employment. If the publication is false and not privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his personal, social, official, or business relations or life, wrong and injury are presumed and implied, and such publication is actionable per se.

    This definition is in accord with earlier Florida cases and has been repeated with approval in many later decisions. 8

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    1. There is no dispute between the parties as to these fundamental principles. The dispute centers about the district court's conclusion that 'whether a given writing is or is not libelous per se is a question of law for the Court to determine'. The court below found that Florida 'appellate decisions do not disclose any clear statement that the existence of libel per se is a question for the Court and not for the jury, (but) the Court interprets cases (throughout the United States) as establishing this as a sub silentio proposition of Florida law'.

    We find that the general law and Florida law are in agreement with Dean Prosser's conclusion: 'It is for the court in the first instance to determine whether the words are reasonably capable of a particular interpretation, or whether they are necessarily so; it is then for the jury to say whether they were in fact understood as defamatory. If the language used is open to two meanings * * * it is for the jury to determine whether the defamatory sense was the one conveyed.' Prosser, Law of Torts § 106, at 765 (1963). Similarly the Restatement, Second, Tentative Draft 12, Section 614, expresses the rule as follows:

    (1) The Court determines (

  2. Whether a communication is capable of bearing a particular meaning, and (b) Whether that meaning is defamatory. (2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.

    Section 615 states:

    (1) The Court determines (

  3. Whether the defamatory meaning of libel is apparent from the publication itself without reference to extrinsic facts, and (b) Whether an imputation of crime or disease or of unchastity to a woman, is of such a character as to make libel or slander actionable without proof of special harm.

    (2) Subject to the control of the court whenever the issue arises, the jury determines whether language imputes to another conduct, characteristics or a condition incompatible with the proper conduct of his business, trade, profession or office.

    Both judge and jury play a part in determining whether language constitutes libel. The Supreme Court has delineated these roles in Washington Post Co. v. Chaloner, 1919, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987:

    A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. * * * When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not. If, upon the other hand, it...

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