Budd v. J. Y. Gooch Co.

• Decision Date: 12 July 1946
• Citation: 27 So.2d 72,157 Fla. 716
• Parties: BUDD et al. v. J. Y. GOOCH CO., Inc., et al.
• Court: Florida Supreme Court

27 So.2d 72

157 Fla. 716

BUDD et al. v. J. Y. GOOCH CO., Inc., et al.

Florida Supreme Court

July 12, 1946

Rehearing Denied July 27, 1946.

Appeal from Circuit Court, Dade County; Paul D. Barns Judge.

Robert C Lane and Alfred E. Sapp, both of Miami, for appellants.

John A Bouvier, Jr., and C. W. Peters, both of Miami, for appellees.

CHAPMAN, Chief Justice.

On October 27 1945, plaintiffs below, appellants here, filed their second amended declaration in two counts, in the Circuit Court of Dade County, Florida, against J. Y. Gooch Co., Inc., and John A. Bouvier, Jr. The first count was in the name of E. L. S. Budd, joined by her husband, R. D. Budd, and R. D. Budd, individually, against J. Y. Gooch Co., Inc., and John A. Bouvier, Jr., in an action for libel. The second count was for libel in the name of R. D. Budd, husband of E. L. S. Budd, against the same defendants. The Court below sustained demurrers directed to each count of the second amended declaration and entered final judgment for defendants below, and plaintiffs appealed.

Counts one and two of the second amended declaration are about the same and pertinent portions thereof are, viz.:

'* * * that on or about the 15th day of June, A.D. 1942 the defendant, j. Y. Gooch Co., Inc., a corporation under the laws of the State of Florida, was one of the appellees in that certain cause pending in the Supreme Court of the State of Florida in the case of R. D. Budd and E. L. S. Budd, his wife, appellants, vs. J. Y. Gooch Co., Inc., a Florida corporation, and Robert L. Weed, Architect, Inc., appellees, and that the said defendant, john A. Bouvier, Jr., was one of the solicitors of record for said defendant, J. Y. Gooch Co., Inc., and that on or about said 15th day of June, A.D. 1942, the said defendants, J. Y. Gooch Co., Inc., by and through its duly authorized officers, employee and attorneys, and John A. Bouvier, Jr., well knowing the premises, but contriving wickedly and maliciously and intending to injure the plaintiff, R. D. Budd, in his good name, fame and credit, and to bring him into contempt and ridicule before the public, and in particular before the members of the Supreme Court of the State of Florida, falsely and maliciously wrote and published of, and concerning the plaintiff, R. D. Budd, in a written reply brief filed with the Clerk of the Supreme Court of the State of Florida, on or about June 15, 1942, in said case of R. D. Budd and E. L. S. Budd, his wife, appellants, v. J. Y. Gooch Co., Inc., et al., appellees, therein then and there pending, the impertinent and irrelevant words following, that is to say: 'The woman, now Mrs. Budd, was joined as a party defendant under the name, Mrs. E. L. Schweigbert, when plaintiff (meaning defendant, J. Y. Gooch Co., Inc.) had cause to believe she (meaning plaintiff, E. L. S. Budd) was the common law wife of defendant (meaning plaintiff, R. D. Budd).' They, the said defendants, as aforesaid, meaning thereby to say and to charge and to cause to be published of, and concerning the plaintiff, R. D. Budd, that the plaintiff, E. L. S. Budd, was his concubine, and that he and the plaintiff, E. L. S. Budd, had lived with each other in a state of concubinage, which is the generally accepted meaning of said term 'common law wife' (even though common law marriages are recognized in Florida) and which was the meaning intended by the defendants; whereby, and by means of the committing of which said grievance by the defendants, as aforesaid, the plaintiff, R. D. Budd, has been and is greatly injured. * * *'

Our adjudicated cases give to a common law marriage the same dignity and recognition as is accorded to ceremonial marriages and the point of clevage apparently is the method of expressing consent. At the common law no formal ceremony is essential to a valid marriage and an agreement between parties per verba de praesenti to be husband and wife constitute a valid marriage. A ceremonial marriage is effectuated pursuant to a marriage license and marriage ceremony conducted by a minister or authorized civil officer in the presence of witnesses. Catlett v. Chestnut, 107 Fla. 498, 146 So. 241, 91 A.L.R. 212; Orr v. State, 129 Fla. 398, 176 So. 510.

The words published in the reply brief and filed in this Court, viz., 'The woman, now Mrs. Budd, was joined as a party defendant under the name of Mrs. E. L. Schweigbert, when plaintiff had cause to believe she was the common law wife of the defendant,' and here contended as libelous, are not be construed or taken in their mildest or most grievous sense, but in that sense in which they may be understood and in which they appear to have been used and according to the ideas which they were...