Hartley & Parker v. Copeland

• Decision Date: 06 April 1951
• Court: Florida Supreme Court
• Parties: HARTLEY & PARKER, Inc. v. COPELAND et al.

Page 789

51 So.2d 789

HARTLEY & PARKER, Inc. v. COPELAND et al.

Supreme Court of Florida, Division B.

April 6, 1951.

Rehearing Denied May 4, 1951.

Taylor, Burr & Creel, Miami, for appellant.

J. A. Fitzsimmons and Robert J. Davis, Fort Lauderdale, for appellee.

ADAMS, Justice.

This appeal is from a judgment in the amount of $1500 in an action of libel.

The plaintiff is a retail liquor dealer and the defendant a wholesale dealer.

It is alleged and was proved to the satisfaction of the jury and trial court that defendant's agent and salesman falsely reported a sale of liquor to plaintiff causing defendant to charge plaintiff with the price of the liquor whereas in fact plaintiff had never ordered or received same. The gist of the action lies because of a report made and filed with the state beverage director pursuant to Section 561.42, Fla.Stat.1941, F.S.A., because defendant knew or should have known before filing the report that plaintiff was not in fact indebted.

Defendant claims both absolute and qualified privilege to preclude recovery. Reliance is upon the statute, Sec. 561.42, Fla.Stat.1941, F.S.A. (Subsection 3) '(3) In cases where payment for sales to a vendor are not made by the tenth day succeeding the calendar week in which such sale was made, the distributor who made such sale shall, within three days, notify the beverage department in writing of such fact and the beverage department, upon receipt of such notice, shall, after compliance with the proceedings hereinafter mentioned, declare in writing to such vendor and to all manufacturers and distributors within the State of Florida that all further sales to such vendor are prohibited until such time as the beverage department shall certify in writing that such vendor has fully paid for all liquors previously purchased.'

In regard to privilege we have held in Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 592, 10 L.R.A.,N.S., 1051, 10 Ann.Cas. 1148: 'The subject in relation to which a communication was made may be privileged, yet a communication made upon that subject may not be privileged. If the restraints and qualifications imposed by law upon the publicity to be given such communications be disregarded, the communication is not privileged. If reasonable bounds be exceeded in making the communication, or if the communication be made knowing it to be false, malice might be inferred, which would destroy the privilege.

'* * * In determining whether or not a communication is privilege, the nature of the subject, the right, duty, or interest of the parties in such subject, the time, place, and circumstances of the occasion, and the manner, character, and extent of the communication, should all be considered. When all these facts and circumstances are conceded, a court may decide whether a communication is a privileged one, so as to require the plaintiff to prove express malic. ...