Dr. P. Phillips & Sons v. Kilgore
| Decision Date | 23 March 1943 |
| Citation | 152 Fla. 578,12 So.2d 465 |
| Court | Florida Supreme Court |
| Parties | DR. P. PHILLIPS & SONS, Inc., v. KILGORE. |
Rehearing Denied April 5, 1943.
Appeal from Circuit Court, Pinellas County; John U Bird, judge.
C. P Dickinson and Hugh Akerman, both of Orlando, and M. A McMullen, of Clearwater, for appellant.
A. B. Angle and W. B. Dickenson, Jr., both of Tampa, and S. Whitehurst's Sons and James Whitehurst, all of Brooksville, for appellee.
This appeal had its genesis in an action by B. Kilgore against Dr. P. Phillips Walter Phillips, Howard Phillips, Dr. P. Phillips & Sons, Inc., and Dr. P. Phillips Investment Company, Inc., a corporation. It is predicated on the theory that defendants conspired to injure the plaintiff in that they procured one I. Zemurray to institute a suit against him (Kilgore) for damages in the sum of $100,000. A trial resulted in a verdict of $25,000 for the plaintiff against Dr. P. Phillips & Sons, Inc., and an acquittal of all the other defendants. The trial court entered judgment on the verdict conditioned on a remittitur in the sum of $10,000 which was accepted. Dr. P. Phillips & Sons, Inc., appealed.
The first question may be stated as follows: When a corporation and its directors are sued jointly in an action of malicious conspiracy to injure another and the jury acquits the directors but returns a verdict against the corporation on which judgment is rendered, should the judgment be permitted to stand?
The alleged malicious conspiracy consisted not alone in having the suit of I. Zemurray v. Kilgore brought in the circuit court, but in keeping it in litigation for years and thereby injuring the credit and financial rating of Kilgore in his business, he being a large grower and shipper of citrus fruits and it being necessary for him at times to borrow large sums to operate his business.
The declaration contains all the essential elements of malicious conspiracy. It alleges a conspiracy by the defendants to damage the credit and financial rating of the plaintiff; it alleges the overt act done in pursuance of the conspiracy, the bringing of the suit and the damages resulting from the overt act. The defendants were sued as joint and several conspirators, and not as principal and agent. The jury found the directors 'not guilty' individually or severally but guilty as officers of the corporation.
Appellant contends that the judgment should not be permitted to stand on the theory that a corporation acts only through its officers or agents and that since they were acquitted, it necessarily follows that the corporation must be acquitted. The corporation cannot, in other words, be guilty of malice or a conspiracy except through its agents. Dwyer v. St. Louis Transit Co., 108 Mo.App. 152, 83 S.W. 303; Grorud v. Lossl et al., 48 Mont. 274, 136 P. 1069; Portland Gold Min. Co. v. Stratton's Independence, 8 Cir., 158 F. 63, 16 L.R.A.,N.S., 677, and like cases are relied on to support this contention.
This contention is not without support in some jurisdictions, particularly in cases where the defendants are sued as principal and agent but when the defendants are sued jointly and severally or individually and as officers of a corporation, the verdict may be against one or more and may be an acquittal as to others. The reason for the rule is that actions for conspiracy are a species of action on the case, the gist of which is the injury done and not...
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Northwestern National Casualty Company v. McNulty
...offense against the state, or consists of aggravated misconduct or a lawless act * * *." Similarly, in Dr. P. Phillips & Sons, Inc. v. Kilgore, 152 Fla. 578, 582, 12 So.2d 465, 467 (1943) the court again said: "Punitive or exemplary damages is an amount allowed over and above actual or comp......
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Miami Herald Pub. Co. v. Brautigam, 58-409
...further complains that the court erred in permitting the issue of punitive damages to go to the jury. As stated in Phillips & Sons v. Kilgore, 152 Fla. 578, 12 So.2d 465, 467: 'Punitive or exemplary damages is an amount allowed over and above actual or compensatory damages. Its allowance de......
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Moffett v. Commerce Trust Co.
...present petition is defective and insufficient in this same respect. As to abuse of process, plaintiff cites Dr. P. Phillips & Sons v. Kilgore, 152 Fla. 578, 12 So.2d 465; White v. McCoy Land Co., 229 Mo.App. 1019, 87 S.W.2d 672; White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18; Sovereign Cam......
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Rinaldi v. Aaron, 45935
... ... Shamrock Village, Inc., 94 So.2d 854 (Fla.1957); Dr. P ... Phillips & Sons, Inc. v. Kilgore, 152 Fla. 578, 12 So.2d 465 (1943); S. H. Kress & Co. v. Powell, 132 Fla ... ...
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Business & commercial cases
..., 66 So.2d 241, 243 (Fla. 1953). 5. Liappas v. Augoustis , 47 So.2d 582 (Fla. 1950). 6. Dr. P. Phillips & Sons, Inc. v. Kilgore , 12 So.2d 465, 466 (Fla. 1943). §4:70.1.1 Elements of Cause of Action — 1st DCA A conspiracy is a combination of two or more persons by concerted action to accomp......
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LEGAL FICTION: READING LOLITA AS A SENTENCING MEMORANDUM.
...See, e.g., Goodrich v. Malowney, 157 So. 2d 829, 834 (Fla. Dist. Ct. App. 1963) (citing Dr. P. Phillips & Sons, Inc. v. Kilgore, 12 So. 2d 465, 467 (Fla. 1943); Ross v. Gore, 48 So. 2d 412, 414 (Fla. 1950); Glickstein v. Setzer, 78 So. 2d 374, 375 (Fla. 1955)); RESTATEMENT (SECOND) OF T......