Cooper v. Miami Herald Pub. Co.

• Citation: 159 Fla. 296,31 So.2d 382
• Parties: COOPER et al. v. MIAMI HERALD PUB. CO.
• Decision Date: 18 July 1947
• Court: United States State Supreme Court of Florida

31 So.2d 382

159 Fla. 296

COOPER et al. v. MIAMI HERALD PUB. CO.

Florida Supreme Court

July 18, 1947

Rehearing Denied July 25, 1947.

Appeal from Circuit Court, Dade County; Charles A Carroll, judge.

Daniel L Ginsberg, of Miami, for appellants.

Murrell Fleming & Flowers, of Miami, for appellee.

CHAPMAN, Justice.

On February 10 1947, the appellants here (plaintiffs below) filed in the Circuit Court of Dade County, Florida, an amended declaration consisting of six Counts against The Miami Herald Publishing Company. The trial court sustained defendant's demurrer directed to each count of plaintiffs' amended declaration, and, after counsel for plaintiffs advised the court that they did not care to plead further, the trial court entered a final judgment on demurrer for defendant below and plaintiffs appealed.

Count I of the plaintiffs' amended declaration is viz.: 'Walter Cooper, Edward Schwartz and Jules Rudnick, doing business under the fictitious name of Dragon Inn, by their attorneys, sues The Miami Herald Publishing Company, a Florida corporation, for: I. That, to-wit, on November 10, 1946, said defendant falsely and maliciously published in The Miami Herald, a daily newspaper published in Miami, Florida, and widely circulated throughout the United States of America and some foreign countries, of the plaintiffs, Walter Cooper, Edward Schwartz and Jules Rudnick, doing business under the fictitious name of Dragon Inn, a restaurant doing business in Dade County, Florida, the following article:

'Miamian Shot at Night Spot

'Police were waiting early Sunday for Wesley Gardner, 23, of 1940 N.W. Miami Ct., to recover consciousness, so they could question him about how he was shot Saturday night in the Dragon Club, 2728 N.W. North River dr.

Although many of the club patrons, including some who were in Gardner's party, were questioned, none threw any light on the scrape in which Gardner was shot in the chest. At Jackson Memorial hospital his condition was described as serious.

Immediately after the shooting, Gardner ran into the kitchen, where he collapsed.

Officers G. L. Weaver and J. P. Berdaux are investigating.'

that the said Dragon Club, located at No. 2729 N.W. North River dr., so mentioned in the said libelous article, and the Dragon Inn Restaurant, owned by the plaintiffs and located at No. 2729 N.E. North River dr., are one and the same and are commonly and generally known and understood to be one and the same place, and any other reference made to that said place of business or premises located at No. 2729 N.W. North River dr., are congruous with the place of business owned by the said plaintiffs; and that, on, to-wit, November 15th, 1946, the plaintiffs served on the defendant a notice in writing specifying said article, and the statement therein, which they alleged to be false and defamatory a copy of which notice is hereto attached and made a part hereof as plaintiffs' Exhibit 'A': but, that the defendant did not publish in said newspaper any apology or retraction of said article; as a result of which plaintiff's business has declined sharply and considerably; and the plaintiffs' chances to sell their interests have grantly diminished; the said libelous article has made it impossible to procure a liquor license; due to the article, help is hard to get; and due to the article managing the said place of business has been made much more difficult.

Wherefore, the plaintiffs sue and claim damages in the sum of $50,000.00.'

'Exhibit A'

Plaintiffs' Exhibit A consists of a notice signed by counsel of record for plaintiffs dated November 15, 1946, and addressed to the defendant: 'Notice: A civil action for libel will be brought against you in the Circuit Court of Dade County, Florida, after five days from the service of this notice, for the publication in the Miami Herald, on or about November 10, 1946, of the following article: (The same as set out supra in Court I) which were false and defamatory in that the shooting did not occur in the 'Dragon Club,' at 2792 N. W. North River Dr., and other false and defamatory statements. Govern Yourself Accordingly.' Briefs filed in the cause fail or omit to point out the distinguishing features or allegations of Counts I, II, III, IV, V and VI of the amended declaration but a cursory study suggests different elements of damage sued for in each Count. Our ruling on Count I, supra, therefore will be determinative of the controversy.

The defendant...