Bell v. Anderson, AE-368
| Decision Date | 21 April 1982 |
| Docket Number | No. AE-368,AE-368 |
| Citation | 414 So.2d 550 |
| Parties | Sam BELL, Appellant, v. Dr. H. C. ANDERSON, an individual and American States Insurance Co., a foreign corporation, Appellees. |
| Court | Florida District Court of Appeals |
Jerome M. Novey of Frates, Jacobs, Farrar, Novey & Blanton, Tallahassee, for appellant.
Fred M. Johnson and Randolph P. Murrell of Fuller, Johnson & Harrison, Tallahassee, for appellees.
Expressing himself in the common vernacular, Sam Bell threatened to kick a certain portion of Dr. Anderson's anatomy, whereupon Anderson caused to be executed a sworn complaint by which Bell was charged with and tried for the criminal offenses of disorderly conduct and bare assault. Bell was acquitted on both charges. He then filed this action against Anderson for malicious prosecution. The trial court granted a summary final judgment for Anderson, holding that as a matter of law the admitted threat established probable cause for Anderson to initiate criminal proceedings against Bell. We reverse.
Since lack of probable cause for initiating a prior judicial proceeding is an essential element of a cause of action for malicious prosecution, Tatum Bros. Real Estate & Inv. Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926), the existence of probable cause is necessarily a complete defense. Probable cause to have instituted the prior judicial proceeding is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged. Dunnavant v. State, 46 So.2d 871 (Fla.1950); Gallucci v. Milavic, 100 So.2d 375 (Fla.1958); Kelly v. Millers of Orlando, Inc., 294 So.2d 704 (Fla. 4th DCA 1974). In a malicious prosecution action, the existence of probable cause is a question of law to be determined by the court when the facts are without dispute. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979).
The operative facts surrounding the incident out of which the threat arose are without material dispute. 1 For some period of time Bell and Anderson had been in a continuing dispute over Bell's right to use a certain lake which borders on both Anderson's property and property owned by Bell's brother. 2 On the day of this incident, Bell and his brother were fishing from a rowboat on the lake. Anderson, with his two sons, approached in a motorboat and after a brief conversation with Bell, Anderson and sons departed, only to return shortly thereafter. This time, Anderson's boat came close enough to Bell's rowboat to cut a fishing line and cause Bell's rowboat to rock. At that point, Bell stood up and warned Anderson that should Anderson return and again attempt to cut Bell's fishing line, Bell would "kick his ass." Anderson, who at that time was at least 30 to 40 feet away from Bell's rowboat, did not respond but immediately left the area in his motorboat, apparently to proceed directly to the authorities to initiate the criminal proceedings against Bell.
In order for the words spoken by Bell to Anderson to constitute a breach of the peace or disorderly conduct, as proscribed by Section 877.03, Florida Statutes (1977), the words had to be such which "by their very utterance would inflict injury or tend to incite an immediate breach of the peace." State v. Saunders, 339 So.2d 641 (Fla.1976). Obviously the words were not such that by their very utterance would inflict injury on Anderson and we need not pursue that facet. However, Anderson argues that the threat was offensive and in the absence of a "disarming smile," amounted to "fighting words," Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); White v. State, 330 So.2d 3 (Fla.1976), which would tend to incite an immediate breach of the peace. While we would hope that our civilization had progressed beyond the point where the urge for combat was so easily aroused, we remain cognizant of the realities of life. Nonetheless, given the undisputed circumstances of this case--Bell and his brother in a rowboat, and Anderson and two teen-aged sons in a motorboat separated from Bell by 30 to 40 feet of water--we...
To continue reading
Request your trial
-
Dorf v. Usher
...Beach, 462 So.2d 595 (Fla. 5th DCA 1985); Phelan v. City of Coral Gables, 415 So.2d 1292 (Fla. 3d DCA 1982). See also Bell v. Anderson, 414 So.2d 550 (Fla. 1st DCA), rev. denied, 424 So.2d 760 (Fla.1982). In this case there was an investigation by the officer, and the participants were inte......
-
Auto-Owners Ins. Co. v. Hooks, AUTO-OWNERS
...an action exists is a question of law for the trial court. Gause v. First Bank of Marianna, supra, at 584; see also Bell v. Anderson, 414 So.2d 550, 551 (Fla. 1st DCA 1982), pet. for rev. den., 424 So.2d 760 (Fla.1982). The trial court found probable cause for Auto-Owners to initiate and se......
-
Davis v. Williams, 05-13373.
...cause under § 877.03 when plaintiff was not using profanity, was not yelling, and was not agitated); see also Bell v. Anderson, 414 So.2d 550 (Fla.Dist.Ct.App.1982) (finding no probable cause for criminal action because words did not incite a breach of the The facts in this case, viewed in ......
-
Anderson v. Wal-Mart Stores, Inc.
...probable cause under § 877.03 when plaintiff was not using profanity, was not yelling, and was not agitated); Bell v. Anderson, 414 So. 2d 550 (Fla. Dist. Ct. App.1982) (finding no probable cause for criminal action because words did not incite a breach of the peace)). "[W]here the basis fo......
-
Procedural torts
...strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged. Bell v. Anderson , 414 So.2d 550, 551 (Fla. 1st DCA 1982), pet. for rev. denied , 424 So.2d 760 (Fla. 1982). PROCEDURAL TORTS (This page intentionally left blank.) PROCEDUR......