Fiore v. Rogero
| Decision Date | 31 August 1962 |
| Docket Number | No. 2972,2972 |
| Citation | 144 So.2d 99 |
| Parties | H. M. FIORE, Appellant, v. Albert L. ROGERO, Appellee. |
| Court | Florida District Court of Appeals |
I. R. Ludacer of Harkavy, Doyle, Feigin, Hasson & Ludacer, Sarasota, and Frank Schaub, Bradenton, for appellant.
Barry V. Forde of Wightman, Rowe & Tanney, Clearwater, for appellee.
By this appeal, plaintiff below seeks a review of a final judgment dismissing his second amended complaint. The complaint was framed in two counts. Count one alleged slander per se and count two, slander per quod, asserting specific elements of damage.
The essential portions of the first count of the complaint read:
'2. On or about October 28th, 1960, in Pinellas County, Florida, the defendant, ALBERT L. ROGERO, a resident of Pinellas County, Florida did maliciously and falsely state to AL HUTCHINSON and MARTIN WALDRON, two reporters in the employ of the Tampa Tribune that plaintiff was 'just about the most dishonest person I know' and that the Lee County News was 'nothing more than a scandal sheet.'
'3. On or about November 18th, 1960, in Pinellas County, Florida, the defendant, stated to Jerry Blizen, a reporter in the employ of the St. Petersburg Times, in reference to the plaintiff, 'that foul-mouthed Fiore.'
'4. On or about October 28, 1960, in Pinellas County, Florida, the defendant told Alan Hopkins, a newspaper reporter in the employ of the St. Petersburg Evening Independent, that the plaintiff was 'dishonest' in giving testimony before the Florida Legislature's Interim Roads Committee.
'5. On each of the aforesaid occasions the defendant knew that the men he spoke to were reporters and that his statements would be publicized in the newspapers they represented.
'6. On October 28th, 1960, the statements set forth in paragraph two were published in the Tampa Tribune, the statement set forth in paragraph four was published in the October 28th, 1960, edition of the St. Petersburg Independent. Each of these newspapers are metropolitan newspapers having wide circulation and in each of these newspapers the defendant's above described remarks were given prominent display as defendant realized they would be.
'7. Although the defendant knew or should have known that the plaintiff was not a dishonest person, did not have a foul mouth and that the Lee County News was not a scandal sheet, he maliciously and wantonly sought to defame and injure plaintiff, his reputation and his business and occupations by defaming plaintiff by both direct statements and imputation.
'8. On and before the 1st day of December, 1960, the defendant, ALBERT L. ROGERO, requested to give testimony to the Florida Legislature's Interim Committee on Roads. Although the defendant had not been subpoened [sic] or requested to give any testimony before said committee he voluntarily appeared with his counsel at the meeting of said committee held in the Hillsborough County Courthouse in Tampa, Florida, on December 1st, 1960, and through his counsel made repeated and continual demands to testify at the hearing being held at such time and place by said committee.
'9. Defendant knew that said hearing was being broadcast over local television and should have realized that there would be a large television audience and the testimony presented was being reported by the major newspapers of the State of Florida and various press associations.
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'11. Defendant knew at the time he made these statements that they were false. He knew that plaintiff had not committed perjury on October 27th, 1960 and he knew that not only had the plaintiff never attempted to bribe the defendant but that the meeting he related having with the defendant never occurred.
'12. Both of the foregoing statements and accusations contained therein were made willfully and wantonly by the defendant for the purpose of causing injury and damage to plaintiff.
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'15. Each of these aforesaid statements of the Defendant were broadcast to a large television listening audience and were published in many newspapers with large circulations.
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The complaint went on to allege that defendant, in his statements before the legislative committee, had falsely charged plaintiff with perjury before the committee and, further, that plaintiff had attempted to bribe defendant on an earlier occasion concerning the alignment of a certain road.
Defendant's motion to dismiss the second amended complaint for failure to state a cause of action was granted and upon plaintiff's refusal to plead further, final judgment was entered in favor of defendant. This appeal followed.
Drawn into focus by this appeal is the question whether or not the judge below erred in ruling that the aforementioned complaint failed to state a cause of action. Plaintiff-appellant maintains first that his allegations of publication of a slander were sufficient to state a cause of action; and secondly, that his allegations regarding the absence of an absolute privilege in regards to defendant-appellee's testimony before the legislative committee were sufficient to withstand motion to dismiss.
In order to maintain an action for the utterance of slanderous matter, communication or publication thereof to a third person must be alleged and proved. Gelhaus v. Eastern Air Lines, C.A. 5, 1952, 194 F.2d 774; McClellan v. L'Engle, 1917, 74 Fla. 581, 77 So. 270. This allegation is necessary to withstand a motion to dismiss a complaint bottomed in libel or slander for the reason that the very nature of the action is based on injury to reputation or to character. Publication is sufficiently accomplished, however, by the communication of the slander to only one person other than the person defamed. See Burnham v. State, 1896, 37 Fla. 327, 20 So. 548; 20 Fla.Jur., Libel and Slander, Secs. 45, et seq; and 33 Am.Jur., Libel and Slander, Sec. 90. The complaint in the instant litigation alleges that the complained of statements were made to certain newspaper reporters and that they subsequently appeared in print in the newspapers. We hold, then, that the complaint sufficiently alleged a publication of slanderous utterances insofar as regards the remarks made by the appellee to the newspaper reporters.
Next, we shall discuss the statements made by the appellee by way of testimony before the legislative committee. The allegations of the complaint in this regard are set out, in pertinent part, in the first portion of this opinion.
Testimony given before a legislative body or a committee thereof, such as in the instant case, conducting an authorized investigation, is generally subject to the same rules of privilege accorded similar testimony in judicial proceedings. 33 Am.Jur., Libel and Slander, ...
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...witnesses who supply voluntary testimony to a legislative body are entitled only to a conditional privilege. See Fiore v. Rogero, 144 So.2d 99, 103 (Fla.Dist.Ct.App.1962) (testimony given before legislative body conditionally privileged where witness appeared voluntarily without having been......
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