Abram v. Odham

• Decision Date: 11 July 1956
• Citation: 89 So.2d 334
• Parties: Joe ABRAM, doing business as Florida Political Survey and Poll, Appellant, v. Brailey ODHAM, and The Florida Publishing Company, a Florida Corporation, Appellees.
• Court: Florida Supreme Court

Page 334

89 So.2d 334

Joe ABRAM, doing business as Florida Political Survey and Poll, Appellant, v. Brailey ODHAM, and The Florida Publishing Company, a Florida Corporation, Appellees.

Supreme Court of Florida, En Banc.

July 11, 1956.

Rehearing Denied Sept. 24, 1956.

Willard B. Dawson, III and Gerald R. Hart, Jacksonville, for appellant.

Boyd & Jenerette, Jacksonville, for Brailey Odham.

Harold B. Wahl and Loftin & Wahl, Jacksonville, for Florida Pub. Co.

ROBERTS, Justice.

This is an appeal by plaintiff from a judgment dismissing his complaint for libel and slander filed against the defendants. The points for determination here are whether in the circumstances disclosed by the complaint the defendants, or either of them, were qualifiedly privileged to make the defamatory remarks in question; and, if so, whether such circumstances were sufficient to negative the existence of express malice on the part of the defendants, or either of them, charged against them in the complaint.

The circumstances under which the defamatory remarks were made were well summarized by the trial judge in his opinion and order granting the defendants' motion to dismiss, as follows:

'* * * the Amended Complaint herein alleges, in substance, that during a very heated and controversial political campaign for Governor of the State of Florida, the plaintiff was the author of and published The Florida Political Survey and Poll, which said publication carried prognostications and comments of plaintiff as to the comparative strength of the various candidates for public office; that plaintiff commented very unfavorably as to the Defendant Brailey Odham's possibilities to be elected Governor of the State of Florida, stating that Odham was second to Johns and 'appearing to be slipping badly'; that the defendant, Brailey Odham, very strongly replied to said publications in defense of his popularity with the general public and his possibilities in the particular election; and that the defendant The Florida Publishing Company, in the ordinary course of reporting on the activities of the political campaign then in progress quoted defendant Brailey Odham's reply and comment that said plaintiff 'Joe Abram is a phony and his poll is a phony,' * * *.'

We agree with the trial judge that in these circumstances the remarks of the defendant Odham, even though defamatory, were qualifiedly privileged, for which there is no liability in the absence of express malice. The plaintiff injected himself into the 1954 gubernatorial campaign and made derogatory remarks respecting the defendant Odham's candidacy. The defendant Odham had an interest in defending and a right to defend his candidacy, and his remarks in rebuttal to those of the plaintiff were directed to persons having a corresponding interest, right, or duty, and were made upon an occasion to properly serve such right, interest or duty, within the rule stated in Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 10 L.R.A.,N.S. 1051, as to qualifiedly privileged communications. The defendant publishing company gave a fair and accurate account of the remarks made by the defendant Odham at a political rally, in accordance with its qualified privilege to publish matters of great public interest, Crowell-Collier Pub. Co. v. Caldwell, 5 Cir., 170 F.2d 941. There was no error, therefore, in the ruling of the trial judge that the defamatory remarks complained of were qualifiedly privileged.

The rule relative to qualified privilege is, however, subject to the limitation that the parties must act without malice. 'When a matter which otherwise would be a qualifiedly privileged communication is published falsely, fraudulently and with express malice and intent to injure the persons against whom it is directed, the communication loses its qualifiedly privileged character and the parties lay themselves liable to a suit for damages in an action of libel or slander.' Loeb v. Geronemus, Fla.1953, 66 So.2d 241, 244. The plaintiff's complaint contained the usual allegations of falsity and malice on the part of the defendants. So the question then becomes: Do the circumstances disclosed by the complaint negative the allegations of express malice made by the complaint?

It should first be noted that in cases of qualified privilege, '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.' Coogler v. Rhodes, 38 Fla. 240, 21 So. 109, 112. If the uncontroverted facts are equally consistent with either the existence or nonexistence of malice, there can be no recovery, for 'there is nothing to rebut the presumption which has arisen in favor of the defendant from the privileged publication.' Myers v. Hodges, 53 Fla. 197, 44 So. 357, 365. Evidence of malice may be either intrinsic, that is, inferable from the very nature of the defamatory language itself, or extrinsic. Myers v. Hodges, supra, 44 So. 357. But while malice may be inferred from the nature of the communication itself, it cannot be inferred from the mere fact that the statements are untrue. Coogler v. Rhodes, supra, 21 So. 109.

We think there can be no question but that the uncontroverted facts disclosed by the complaint negative any possibility of malice on the part of the defendant publishing company. As shown therein, this defendant published a news story concerning a political rally held by the defendant Odham in furtherance of his candidacy, which quoted Odham as saying that 'The gamblers are making big talk and the phoney pollsters are bluffing, but you, the people, have the final say in this tremendously important decision of nominating your governor,' and which stated that 'Odham cited Joe Abram [the plaintiff] of Jacksonville, 'As one of the phoney pollsters.'' This is not such violent and abusive language as to require an inference of malice from the mere publication of the candidate's remarks. In fact, the defendant publishing company has argued, with some logic, that all political polls and election predictions are, in a sense, 'phoney' and pure guesswork, since the voter himself does not always know in advance how he will vote once he has the secrecy and privacy of the voting booth, and that there is inherent in all polls, of whatever type, the possibility of...