44 So. 357 (Fla. 1907), Myers v. Hodges

Citation:44 So. 357, 53 Fla. 197
Opinion Judge:PARKHILL, J. (after stating the facts).
Party Name:MYERS v. HODGES.
Attorney:[53 Fla. 204]Bryan & Bryan and Jno. L. Doggett, for plaintiff in error. Alex. St. Clair-Abrams, for defendant in error. '[Signed] Alex. St. Clair-Abrams, 'Alex. St. Clair-Abrams,
Case Date:May 15, 1907
Court:Supreme Court of Florida

Page 357

44 So. 357 (Fla. 1907)

53 Fla. 197

MYERS

v.

HODGES.

Florida Supreme Court, Division B.

May 15, 1907

Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

Action by William B. Myers against Freeman S. Hodges. Judgment for defendant, and plaintiff brings error. Affirmed.

Cockrell, J., dissents.

Syllabus by the Court

SYLLABUS

In order that defamatory words, published by parties, counsel, or witnesses in the due course of a judicial procedure, may be absolutely privileged, they must be connected with, or relevant or material to, the cause in hand or subject of inquiry. If they be so published and are so relevant or pertinent to the subject of inquiry, no action will lie therefor, however false or malicious they in fact be.

Defamatory words published in the due course of a judicial procedure, and not relevant or pertinent to the subject of inquiry, are conditionally or qualifiedly privileged; that is, prima facie privileged. If the publications be irrelevant, they do not necessarily become actionable. They must be malicious as well as irrelevant.

If it appear upon the trial that the libelous allegations were published in the due course of legal procedure, though it be proved that the allegations were not pertinent to the legal procedure, still the law does not presume malice on the part of the defendant; but the plaintiff must prove express malice, to entitle him to recover. The simple fact that the libelous matters were published in the due course of legal procedure, though the libelous matters were impertinent, rebuts the prima facie presumption of malice, and makes it incumbent on the plaintiff to prove express malice; the case being what is called a conditionally privileged publication.

In cases of conditionally privileged publications, the presumption which attends cases not so privileged of malice from the publication of libelous language does not prevail; the burden of proof is changed, and in order for the plaintiff to recover he is called upon affirmatively and expressly to show malice in the publisher. This malice may be inferred from the language of the publication itself, or may be proven by extrinsic circumstances; but malice is not inferable from the mere fact that the statements are untrue, and the mere fact that the defendant used strong words, and the expressions are angry and intemperate, is not enough to show malice.

Where the circumstances of the publication are controverted or uncertain, the court should instruct the jury what condition of circumstances would render the publication privileged, and then leave it to the jury to determine the character of the publication and give verdict accordingly. The facts being uncontroverted, the court is to determine whether or not the publication is privileged. If the publication be absolutely privileged, that determines the action. If the publication be conditionally privileged, then it is a matter of law for the court to determine whether there is any intrinsic or extrinsic evidence of malice. If there is no such evidence, it is proper for the court to direct a verdict for the defendant. If there is any intrinsic or extrinsic evidence of malice, it then becomes the duty of the court to submit the question of malice to the jury, with appropriate instructions.

On a demurrer to the evidence properly framed, and joinder in demurrer, the usual course is immediately to discharge the jury of the issue of fact, and, if the defendant prevails, by the court sustaining the demurrer, final judgment should be entered on the demurrer to the evidence, as a final judgment on demurrer to a pleading. It is not reversible error, however, for the court to direct the jury to find a verdict for the defendant.

COUNSEL

Page 359

[53 Fla. 204]Bryan & Bryan and Jno. L. Doggett, for plaintiff in error.

Alex. St. Clair-Abrams, for defendant in error.

Page 358

[53 Fla. 199]The plaintiff in error, who was plaintiff in the court below, sued the defendant in error in the circuit court in and for Duval county in an action of libel. There were three counts to the declaration. The first count is as follows:

'First. For that, whereas the plaintiff below, and at the time of the committing by the defendant of the several grievances hereinafter mentioned, was a person of good name, credit, and reputation, and deservedly enjoyed the esteem and good opinion of his neighbors and other worthy citizens of this state; yet, the defendant, well knowing the premises, but contriving and maliciously intending to injure the plaintiff in his good name and reputation and bring him into public scandal and disgrace, and cause him to be suspected and believed by divers persons to be a tricky, dishonorable, unscrupulous, and conscienceless man, to wit, the 13th day of January, A. D. 1904, in a certain bill in equity filed in the circuit court of the Fourth judicial circuit of the state of Florida, in and for Duval county, said bill being signed by his solicitor and counsel, and sworn to by the said defendant, and in a clause or clauses, sentence or sentences, phrase or phrases, either or both, therein did unnecessarily, and without legal excuse therefor, wickedly and maliciously compose, write, typewrite, and publish, and cause to be composed, written, typewritten, and published, in the said bill, and in a suit in said court wherein the said Freeman S. Hodges, defendant herein, was complainant, and the Naval Stores Manufacturing Company, a corporation, etc., was defendant, a certain, false, scandalous, malicious, and defamatory libel, containing, among [53 Fla. 200] other things, the false, scandalous, malicious, defamatory, and libelous matter following of and concerning the plaintiff; that is to say:

"And your orator [meaning the defendant herein] thereupon instituted inquiry, and was informed and avers and charges, that the said W. B. Myers [meaning the plaintiff herein] was and is held as a tricky, dishonorable, unscrupulous and conscienceless man; that the said W. B. Myers [meaning the plaintiff herein] had stated in effect that he intended to do everything in his power to beat your orator [meaning the defendant herein] out of the money owing to him, short of swearing to a lie."

The second count is similar to the first, except the allegation that defendant meant to charge plaintiff with being a tricky, dishonorable, unscrupulous, and conscienceless man, and that the plaintiff would do everything in his power by tricky, dishonorable, unscrupulous, and conscienceless means, to defraud the defendant, or any one else with whom he had business relations, out of his or their money.

The third court alleges that plaintiff was engaged in the business of naval stores, real estate, merchant, etc., and that defendant, maliciously intending to injure him in his reputation and business, published in said bill of complaint the language complained of and set up in the first count of the declaration, and that by reason of the said publication plaintiff was injured in his business. A demurrer to the declaration was overruled.

The defendant filed five pleas; the first being a plea of not guilty, and the other four being special pleas. The plaintiff demurred to and moved to strike the second, third, fourth, and fifth pleas. The demurrer was sustained as to the [53 Fla. 201] third, fourth, and fifth pleas, and the motion to strike the second plea was granted.

On the 18th day of May, 1906, a trial was had, and, the evidence on behalf of the plaintiff being concluded, the defendant filed the following demurrer to the evidence of the plaintiff:

'And now comes the defendant, by Alex. St. Clair-Abrams and Frank Pope, his attorneys, and demurs to the evidence of the plaintiff in this cause, and admits that the evidence proves that the defendant by a certain bill in chancery filed a suit in which the defendant, Freeman S. Hodges, was complainant, and the Naval Stores Manufacturing Company, a corporation, of which the plaintiff, William B. Myers, was the president, was defendant, and used the following language of and concerning the plaintiff, William B. Myers: 'And your orator thereupon instituted inquiry, and was informed and avers and charges that the said W. B. Myers was and is held as a tricky, dishonorable, unscrupulous and conscienceless man; that the said W. B. Myers had stated in effect that he intended to do everything in his power to beat your orator out of the money owing to him, short of swearing to a lie.'

'And that said bill in chancery was duly filed by defendant's solicitor in the office of the clerk of the circuit court of Duval county, and was signed and sworn to by the defendant, Hodges.

'Defendant further admits that one John Pope, a clerk of Bryan & Bryan, under instructions from Bryan & Bryan, attorneys for the plaintiff, copied the bill containing the alleged defamatory matter soon after it was filed, and read the bill and the alleged defamatory words. That one D. J. Gray testified that he voluntarily read the bill in the office of Bryan & Bryan, attorneys for the [53 Fla. 202] plaintiff, the said Gray being the clerk of the said Bryan & Bryan, and prepared exceptions to the alleged defamatory language by dictation of W. J. Bryan. Defendant also admits that the witness, R. C. Dowling, testified that he copied the bill in chancery, as soon as it was filed, at the request of John L. Doggett, one of the attorneys for the plaintiff, and read the alleged defamatory words. Defendant further admits that the plaintiff put in evidence the exceptions of plaintiff to the bill of complaint, and that the alleged defamatory language was stricken out of the bill under the rule of the court. Defendant also admits that the plaintiff, W. B. Myers,...

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