Grad v. Copeland

• Decision Date: 22 June 1973
• Docket Number: No. 71-319,71-319
• Citation: 280 So.2d 461
• Court: Florida District Court of Appeals
• Parties: A. S. GRAD et al., Appellants, v. Paul R. COPELAND, Jr., Appellee.

Page 461

280 So.2d 461

A. S. GRAD et al., Appellants, v. Paul R. COPELAND, Jr., Appellee.

No. 71-319.

District Court of Appeal of Florida, Fourth District.

June 22, 1973.

Rehearing Denied July 30, 1973.

Thomas A. Hoadley of Howell, Kirby, Montgomery, D'Auito, Dean & Hallowes, West Palm Beach, for appellants.

Harry Lee Anstead, of Simpson & Anstead, West Palm Beach, for appellee.

PER CURIAM.

Upon careful consideration of the record, briefs and oral argument of counsel, we find that appellants have failed to demonstrate reversible error and the judgment appealed is therefore affirmed.

We have given particular attention to appellants' point concerning the correctness of certain jury instructions. There were multiple issues, involving different standards of proof, i.e., the libel action brought by plaintiff as a public official required clear and convincing evidence, whereas the issues of agency, malicious prosecution and damages required only proof by the greater weight of the evidence. The trial court carefully delineated these several issues and the proper standard of proof as to each and we are of the view that the court's instruction to the jury taken in its totality and in context with the particular issue then being addressed was a clear, concise and correct statement of the applicable law, and could not have been misleading to the jury.

The judgment is affirmed.

CROSS and OWEN, JJ., concur.

SALFI, D. J., Associate Judge, dissents with opinion.

SALFI, D. J., Associate Judge (dissenting):

I must respectfully dissent from the Majority opinion. That opinion has the effect of destroying the requirement for trial judges to state clearly and concisely, the disputed issues of fact and the basic rules to apply in resolving those disputes. I believe, without this kind of guidance the proceedings cannot result in an intelligent verdict. In fact, this principle is vital to a fair submission of a case to a jury.

In the instant case, the defendants appealed from a jury verdict and judgment in favor of plaintiff entered in a suit filed by plaintiff to recover damages sustained as a result of an alleged libelous letter.

Plaintiff was a Police Officer for the Town of Palm Springs, Florida and also maintained a part-time lawn maintenance business.

Defendant, Mr. Grad, a naturalized citizen, was a manager of an apartment building in the same town. On June 27, 1969, Mr. Grad sent a letter to the Chief of Police with copies to the City Commission, about a series of incidents that had occurred between Mr. Grad and the Plaintiff. This letter was written after consulting with an attorney who actually drew up the letter for Mr. Grad's signature.

Briefly, the letter outlined a series of factual incidents, one of which involved the arrest of Mr. Grad by Officer Copeland as a result of a near accident between automobiles driven by Mr. Grad and Officer Copeland. The procedure followed in the arrest was somewhat unusual in that it involved the locking up of Mr. Grad, in the patrol car, and transporting him to the police station and then back to his car. This whole procedure involved approximately one and a half hours.

In the letter, Mr. Grad placed the cause of the arrest and the unusual arrest practice to an earlier refusal on his part to hire Officer Copeland to do the lawn maintenance at Mr. Grad's home, the apartment building.

The part of the letter that allegedly did the damage is set forth as follows:

'. . . I feel that this officer has made a concerted effort to intimidate me and my person. His actions are such that I would suggest he was looking for protection money or insurance money.'

The letter concluded by only requesting an investigation and appropriate action.

The cause was submitted to the jury on the issues of libel and a counter claim by Mr. Grad against Officer Copeland for malicious prosecution. As noted, the jury found in favor of the plaintiff on the libel claim and against the defendant, Grad, on his malicious prosecution claim.

On this appeal, Mr. Grad contends, among others, that the trial judge erred in his instructions to the jury.

Although the Majority has given these instructions particular attention and have found them to be, 'clear, concise and correct statement of the applicable law,' I must agree with the appellant's position. In order to understand the confusion that the jury was presented with we must examine the instructions individually and as a whole. ¹

The trial court gave the following three instructions to the jury, all on the elements of libel:

'. . . The issues for your determination on the claim of plaintiff, Paul R. Copeland, Jr., against defendants, A. S. Grad and Chateau Village, Inc., are whether A. S. Grad did with Actual malice publish or cause to be published, defamatory statements in the letter of June 27, 1969, Knowing such statements to be false or with a reckless disregard of whether they were true or false, and with the intent of injuring the person of Paul R. Copeland, Jr., against whom said statements were directed, and whether at the time of A. S. Grad's making of such statements as contained in the letter of June 27, 1969, A. S. Grad was an agent of defendant, Chateau Village, Inc., and was acting within the scope of his employment.' Emp. added.

The next instruction on the issues was a mandatory one and immediately followed the earlier instruction:

'You are instructed that the publication of any false or defamatory printing, writing, or recordation tending to expose a person to public hatred, contempt or ridicule to deprive him of the benefits of public confidence or social intercourse or to impeach the honesty, integrity or reputation of the party to which directed when Maliciously made Is libel and a wrong in law.' Emp. added.

The final instruction on the issues also was a mandatory instruction and was separated from the two earlier instructions.

'. . . If, therefore, you believe that the article complained of or any part thereof was untrue and was uttered with Actual malice as referring to the plaintiff and was libelous, it being admitted to have been published by the defendants, Your verdict will be for the plaintiff.' Emp. added.

Parties to a law suit have fundamental right to have a Court instruct a jury as to the law applicable to the case. Williams v. Sauls, 151 Fla. 270, 9 So.2d 369; Holdsworth v. Crews, Fla.App.1961, 129 So.2d 153.

This right goes to the very heart of our jury system. It has been stated a number of times that the purpose of jury charges is to guide and control the jury in their deliberations so that they may arrive at a verdict which is fairly based on the law and facts of the case. Hattaway v. Florida Power & Light Company, Fla.App.1961, 133 So.2d 101.

Today the law in all states requires the judge to instruct the jury. Even in the absence of statute or rule, the duty to do so without request is not only obvious and necessary but it is a power inherent in the Court.

This rule goes beyond a judge just giving requested jury instructions of the parties. It requires the Court to be solely responsible to charge a jury on the basic Fundamental rules necessarily in issue. Holdsworth v. Crews, Supra. Even where the instructions on the Basic fundamental rules are not properly requested the Court must clear away the excess and erroneous verbiage and charge the jury on the correct law. West Coast Hospital Ass'n v. Florida National Bank of Jacksonville, 1958 Fla., 100 So.2d 807.

The only duty upon counsel for the parties is to make special requests if they deem the Basic fundamental rules need further elucidation. Holdsworth v. Crews, Supra.

The Supreme Court has recognized that even the approval of standard instruction would not relieve a trial judge of his responsibility under the law, to properly and correctly charge a jury. Standard Jury Instructions, 1967 Fla., 198 So.2d 319.

Although it has not been stated in so many words, it would be obvious that the 'basic fundamental rules necessarily in issue,' would include, among others, charges on: issues or elements of the cause of action; the standard proof as well as upon whom the burden rests; accurate definitions of all legal terms used in instructions; all defenses available to the cause of action that are properly in issue.

The instructions to a jury in a libel case have not been standardized in this State and as a result the practice of numerous jury requests that are contradictory, cumulative, and outdated were filed in this case by both parties. In some instances the plaintiff appears to have requested instructions that were also requested by the defendant and were subsequently given by the court. Now the defendant is calling them improper. This fact undoubtedly has bothered the Majority and rightfully so for the doctrine of 'invited error' is important in our Judicial appellate principles. However, I believe that the invited error principle must give way when it comes in direct conflict with the mandatory duty to instruct on the basic and fundamental rules necessarily in issue.

It is this judge's opinion that the right to have a jury instructed properly on the 'basic and fundamental rules necessarily in issue,' cannot be waived or abrogated because the party now complaining may have waived his objection at the charge conference. This type of defect goes to the very substance of the law suit and may even be raised for the first time on appeal. See Martinez v. Balbin, 76 So.2d 488 (Fla.1954), and cases cited therein.

In the instant case the jury was given the three separate sets of criteria to follow in regards to the issues in this libel case. Each criteria was contradictory of the other. One instruction included such elements as;

1) a defamatory statement

2) actual malice

3) publication

4) knowing the statement is false or with a reckless disregard of truth or falsity

5) with intent to do injury to the plaintiff

* (Note No. 2 and No. 4 are legally identical)

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