Campbell v. Jacksonville Kennel Club

• Citation: 66 So.2d 495
• Parties: CAMPBELL v. JACKSONVILLE KENNEL CLUB, Inc.
• Decision Date: 24 July 1953
• Court: United States State Supreme Court of Florida

Page 495

66 So.2d 495

CAMPBELL v. JACKSONVILLE KENNEL CLUB, Inc.

Supreme Court of Florida, Special Division B.

July 24, 1953.

P. Donald DeHoff, Jacksonville, for appellant.

Rush & Pierce, John A. Rush and Victor Blue, Jacksonville, for appellee.

PARKS, Associate Justice.

Dorothy L. Campbell brings action for slander in two counts against the defendant, Jacksonville Kennel Club, Inc. The first count charges that defendant at its race track, through a servant or employee acting within the scope of his employment, falsely and maliciously spoke and published of and concerning plaintiff the words, "What man's pocket did you pick this out of?' meaning thereby that the plaintiff was a pickpocket and a criminal. Whereby, plaintiff suffered injury to her character and reputation, respect in the community and suffered mental anguish.' The second count charges that the servant and employee spoke and published of her the words, "I'm not cashing any ticket for any stoop.' meaning thereby, a person who picks up race track tickets off the ground and attempts to cash them in as his own purchased tickets. Whereby, plaintiff suffered injury to her character and reputation, respect in the community and suffered mental anguish.'

The defense to the 'pickpocket' count is that there was no publication of the slanderous words. The defense to the 'stoop' count is that the charge is not per se slanderous and no special damages are alleged or proven.

On the occasion of the incident giving rise to the utterances the plaintiff with Mrs. Gerald J. Golden, a friend of serveral years standing, attended the dog races at defendant's track. They had attended the races together on numerous prior occasions and had bought 'split' tickets many times. By 'split ticket' is meant that each contributed $1 towards the purchase price of a $2 ticket. The winnings, if any, are, of course, divided equally between them. During the meet and prior to the running of the third race Mrs. Golden suggested that they split a 1-8 quinella ticket for that race which, after some discussion, was agreed to by plaintiff. Mrs. Golden then gave plaintiff $1 to which she added a like amount of her own money an bought the ticket retaining it in her possession. The ticket won and after several intervening races they went to the pay window to cash it, Mrs. Golden standing near plaintiff as she passed the ticket through the window for payment. It was at this point that defendant's employee, one Blattner, whose duty it was to cash the ticket, upon examining it, uttered the 'pickpocket' charge. No one other than plaintiff and Mrs. Golden heard the charge. Upon plaintiff's demand the employee returned the ticket to her and she and Mrs. Golden turned away from the window and seeing nearby another of defendant's employees. one Pop Lavina, with whom they were well acquainted, related the incident to him. Thereupon, returning with them to the window he inquired of Blattner why he did not cash the ticket. His reply was the utterance charge in the 'stoop' count.

At the trial plaintiff introduced evidence establishing the foregoing facts and rested. Thereupon, defendant moved the Court to direct a verdict on the 'pickpocket' count on the ground that there was no publication of that charge. The Court agreed that there was no publication because Mrs. Golden, the only person other than plaintiff who heard it, was a joint adventurer in the purchase and collection of the ticket and announced that he would grant the motion. Then the defendant moved to dismiss the 'stoop' count on the ground that it failed to state a cause of action for the reason that no special damages were alleged. The Court also granted this motion and dismissed the count. Plaintiff thereupon took nonsuit with bill of exceptions to the ruling in the 'pickpocket' count and excepted to the granting of the motion to dismiss the 'stoop' count. Errors are assigned to both rulings.

We think the trial Judge was right in holding that plaintiff and Mrs. Golden were joint adventurers in the purchase of the ticket. It was a purchase of specific property for speculation. The elements of both profit sharing and loss sharing were present, a community of interest in the ticket, mutuality of control over it and, therefore, equal authority with respect to its collection at the pay window. Each party was the agent of the other in all matters concerning the purchase, disposition and collection of it. All elements of a joint adventure were present. Proctor v. Hearne, 100 Fla. 1180, 131 So. 173; Drew v. Hobbs, 104 Fla. 427, 140 So. 211, 141 So. 596; Coral Gables Securities Corp. v. Miami Corp., 123 Fla. 172, 166 So. 655; Albert Pack Corp. v. Fickling Properties, Inc., 146 Fla. 362, 200 So. 907; Livingston v. Twyman, Fla., 43 So.2d 354. The utterance of the slanderous words to plaintiff in the presence of her co-adventurer was no publication within the meaning of the law of slander. The accusation against plaintiff was, likewise, one against Mrs. Golden. Wrought Iron Range Co. v. Blotz, 123 Miss. 550, 86 So. 354; Mims v. Metropolitan Life Insurance Co., 5 Cir., 200 F.2d 800; McDaniel v. Crescent Motors, 249 Ala. 330, 31 So.2d 343, 172 A.L.R. 204; Starnes v. St. Joseph Ry., L. H. & P. Co., 331 Mo. 44, 52 S.W.2d 852; Harbison v. Chicago R. I. & P. R. Co....