Brown v. Fawcett Publications, Inc.

• Decision Date: 10 March 1967
• Docket Number: No. 5881,5881
• Citation: 196 So.2d 465
• Parties: Woodrow BROWN, Appellant, v. FAWCETT PUBLICATIONS, INC., a Delaware corporation, and Duval Bibb Company, a Florida corporation, d/b/a Hillsboro News Company, Appellees.
• Court: Florida District Court of Appeals

Page 465

196 So.2d 465

Woodrow BROWN, Appellant, v. FAWCETT PUBLICATIONS, INC., a Delaware corporation, and Duval Bibb Company, a Florida corporation, d/b/a Hillsboro News Company, Appellees.

No. 5881.

District Court of Appeal of Florida, Second District.

March 10, 1967.

Rehearing Denied April 10, 1967.

H. Eugene Johnson and John D. Menas, Tampa, for appellant.

Louis M. Jepeway, of Jepeway & Gassen, Miami, for appellees.

PIERCE, Judge.

This is an appeal by appellant Woodrow Brown, plaintiff in the Court below, from an order entered on January 6, 1965, by the Hillsborough County Circuit Court granting new trial on behalf of Fawcett Publications, Inc., defendant below, after a jury verdict in favor of Brown against Fawcett Publications upon trial of an action brought for libel.

The jury had returned a verdict against the publisher defendant finding no actual damages but awarding $45,000 punitive damages. The defendant, by motion for new trial, contended that the trial Court was in error in failing to give Jury Instruction No. 7, requested by the defendant, which was as follows:

'Under the facts before you, it will be your duty to determine whether punitive damages should be assessed against the defendant if you find that the defendant did in fact libel the plaintiff. Before punitive damages can be assessed against the defendant, however, there must be proof of express malice. In other words, while some malice is inferred automatically from a libelous publication, this type of malice is not sufficient for the awarding of punitive damages and before such punitive damages can be awarded, the plaintiff must prove by a preponderance of the evidence that express malice, or malice in fact, exists. This type of malice is such as would indicate ill-will, hostility or an intention to defame or injure the plaintiff.'

Plaintiff contended that the matter of punitive damages was fairly covered by the trial Court in the instructions as given. The trial Court upheld the defendant publisher and granted a new trial, citing Montgomery v. Knox, 1887, 23 Fla. 595, 3 So. 211; 20 Fla.Jur. 612; and an excerpt in 33 Am.Jur., page 289. From this order plaintiff has appealed to this Court and urges that, upon the entire record and considering the given instructions to the jury in their entirety, the trial Judge was in error in granting defendant's motion and ordering a new trial. We hold that the trial Judge fairly and adequately charged the jury as to all aspects of the case, that said requested Jury Instruction No. 7 was defective, and that the verdict of the jury should not have been set aside.

We interpolate at this point to observe that we are cognizant 'a stronger showing is required to reverse an order granting a new trial than one denying it', Mead v. Bentley, Fla.1952, 61 So.2d 428, but here, the point being one strictly of law uncontaminated with factual conflict the area of discretion is drastically diminished if not entirely eliminated. We interpolate further to mention that plaintiff voluntarily withdrew special damages from the jury, leaving punitive damages the only practical element of damages for consideration.

The basic facts of the case are without substantial conflict. Fawcett Publications, Inc. is the New York owner and publisher of a magazine called 'True Police Cases' of general circulation throughout the country, including Hillsborough and Pasco counties, Florida. In its monthly issue of April, 1961, the magazine featured a story entitled 'Girl In The Open Grave' wherein is depicted the lurid, sensational and sordid story made the basis of the subject libel suit. In the article, which not only names plaintiff but also features his picture, he is held up, in effect, as a lecher, a sodomist, a rapist, a 'Peeping Tom', a murderer and a generally animalistic brute. The Facts, as they may be gleaned from the morass of morbidly sensational expletives and interjectories, concern the ravishing and murder of young twenty year old Patricia S_ _, a housewife and mother of an infant daughter, in the rural community of Zephyrhills, Pasco County, near Tampa, Hillsborough County, on the night of October 7, 1960. To illustrate the tenor of the thoroughly disreputable story we quote the following passages which are a fair example of its contents:

'He had peeped in a lot of windows, but he had never seen anything like this before * * *

'Like what I was born to see, born to have,' he kept whispering over and over inside his mind where the evil urges festered and bubbled * * *

'He had to have her. He had to have her if he had to kill to have her.

'In the bedroom, his mind a turmoil of passion and raging need, he stood for a moment, breathing raggedly, staring at Patricia, the outline of her body against the fabric of her night gown.

'The man hitting him (Ed Suits) was strong, muscled, and he was putting all his frantic impulses into the blows.

'The man struck Patricia again, the pine board breaking at last, blood clotted, smeared. He threw it behind him, part of it falling into the baby's crib.

'His quivering fists reached out, caught the insensible blonde's gown, ripped it away so nothing would be between that beautiful body and him again.

'In the darkness then, he lifted her again, panting, and ran across a weedgrown field with her to the deeper shadows of a moss-choked fallen tree. And there he had everything he wanted from her, every way he wanted it, his perverted mind driven to wild excesses by his own violence and by her clean and radiant-looking young beauty * * *

'Then sated, like an animal wearied and exhausted, there was nothing for him to do but slink away in the dark, return softly and silently into the black night from which he had come * * *

'Three men questioned on October 9 by deputies were regarded with suspicion. These men were Lucas Tidings, Woodrow Brown and John Bement.

'Brown's address was ascertained to be that of a boarding house in Tampa, Florida * * *

'Gaining admittance, the lawmen found the suspect's room a vile rookery of dirty stories, lewd pictures, smutty magazines--all the soothing literature of an ailing mind.

'Meanwile in Zephyrhills, Sheriff Bessenger ran a check on Woodrow Brown, learned the following facts about him: Born May 13, 1913, Brown, a carpenter by trade, was a sodomite by choice.

'And Sheriff Bessenger had proof that this unsavory ex-convict with a long criminal record had been in the area of the murder on the night Patricia Ann was slain. He was a convicted Peeping Tom, and worse, no one could swear that he was in bed on that fatal evening--as his family had supposed and so stated on questioning.

'This lawbreaker had gone casually about his life during these past weeks, coming and going in Zephyrhills, working at his job as carpenter.'

To further pin-point the article as being directed toward plaintiff Woodrow Brown, there was appended to the narration the printed note: '(t)he names Lucas Tidings and John Bement, as used in the foregoing story, are fictitious. The real names have been changed to protect the identities of the actual persons concerned.' Woodrow Brown was not included in this 'delousing' the significance of which is pointedly obvious.

At the time the April, 1961, issue hit the newsstands plaintiff Brown was in the Pasco County jail for suspicion of the crimes, but on April 4, 1961 the Pasco County grand jury exonerated Brown of any part in the criminal business by declining to indict him upon grossly insufficient evidence. He was forthwith released from custody.

On December 29, 1961, and again on January 29, 1962, plaintiff invoked F.S. Sec. 770.01, F.S.A. by serving written notice on Fawcett, the publisher, demanding apology and retraction of the specified article in the manner required by the statute. ¹ Fawcett refused to avail itself of the benefit of apology and retraction afforded by F.S. Sec. 770.02, F.S.A. ² which would legally have restricted plaintiff to actual damages. On the contrary, Fawcett ignored such notice and demand until its magazine issue of some Thirteen months later, wherein is contained the following belated advice to the public:

'Woodrow Brown is innocent. When our story 'Girl In The Open Grave', was published in the April 1961 issue of 'True Police Cases', Woodrow Brown was awaiting trial. ³ We are pleased to report that on April 4, 1961, the Pasco County, Florida, Grand Jury decided that there was insufficient evidence against Woodrow Brown to justify indictment for prosecution for the murder of Patricia _ _. (deleted here). Woodrow Brown was therefore immediately released from the County Jail where he had been held since November 16, 1960'.

In his charge to the jury the trial Judge held the article to constitute libel per se as a matter of law, in the following language:

'Now, in this regard, gentlemen, I have ruled, I have determined as a matter of law that the Plaintiff, the article about the Plaintiff contains certain items, that in the law of libel we call libel per se, that is as to his being a peeping tom and as to his having pornographic and lewd literature in his house.'

The trial Judge was generous to defendant publisher in giving to the jury in elaborate detail the defenses of 'good faith', also 'good motives', also 'the right of comment', also 'qualified privilege', and even 'the defense of truth'.

On the question of malice and punitive damages, the Court charged the jury as follows:

'Malice may be implied or inferred where the plaintiff is accused of a crime. In other words, if you are reasonably satisfied from the evidence that the Defendant accused the Plaintiff of a crime he did not commit, then you may infer that it was maliciously made, and it is not necessary to prove any express malice in order to warrant a verdict for the plaintiff under those circumstances.

'Punitive damages are awarded for the purpose of punishing the Defendant, if you find from the evidence in this case that such are called for,...