Layne v. Tribune Co.

• Decision Date: 03 February 1933
• Citation: 146 So. 234,108 Fla. 177
• Parties: LAYNE v. TRIBUNE CO.
• Court: Florida Supreme Court

146 So. 234

108 Fla. 177

LAYNE v. TRIBUNE CO.

Florida Supreme Court

February 3, 1933

En Banc.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by John H. Layne against the Tribune Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

COUNSEL

Hampton, Bull & Crom, of Tampa, for plaintiff in error.

McKay Withers & Ramsey, of Tampa, for defendant in error.

OPINION

DAVIS Chief Justice.

On February 19, 1932, the plaintiff in error, who will hereinafter be referred to as the plaintiff, brought an action at law against the defendant in error, the Tribune Company, as the publisher of a daily newspaper called the Tampa Morning Tribune, which will hereinafter be referred to as defendant, to recover $15,000 damages against the defendant for alleged publication in said newspaper of two press dispatches, both emanating from Washington, D. C., the one having been sent out by the Associated Press on June 30 1930, and the other having been sent out by Universal Service on July 7, 1930.

The publication which forms the basis of the first count of plaintiff's declaration, reads as follows:

"Washington, June 30--(A. P.)--Justice Gordon of District of Columbia Supreme Court today sustained the demurrer of Representative Dennison, of Illinois, to an indictment for possession of whiskey, holding that the charge was phrased in too general terms.

"The action virtually was equivalent to dismissal of the indictment.

"Dennison and his former secretary were indicted after prohibition agents had charged they found trunks containing liquor had been delivered to his office in the house office building."

The publication declared upon in the second count of the declaration is in the following language:

"Washington, July 7,--(Universal Service)--An appeal may be taken from Justice Peyton Gordon's decision sustaining a demurrer to the indictment of Rep. Edward E. Dennison, republican, of Illinois, charged with illegal possession of liquor, it was indicated today.

"District Attorney Rover announced he will ask Solicitor General Thatcher to sanction an appeal to the District of Columbia Court of Appeals.

"Judge Gordon dismissed the case on the ground that the indictment, eight lines in length, did not meet the constitutional requirements that a defendant be advised with particularity of the charge against him so that he may prepare a defense.

"Dennison, a dry, was indicted last Nov. 19, after a trunk said to have contained liquor, was found in his office in the house office building. A 'leaky' suitcase consigned to his office was found at union station. John Layne, described as his secretary, was indicted with Dennison."

The original declaration was demurred to, and the demurrer sustained, whereupon the plaintiff filed an amended declaration. A demurrer was filed to both counts of this amended declaration. The demurrer came on for argument on June 11, 1932; the judge of the lower court sustained the demurrer as to both counts of said amended declaration, and the plaintiff having announced that he did not desire to further amend his declaration, final judgment on demurrer was entered by the court against the plaintiff. It is from that final judgment that this writ of error has been sued out.

Libel per se may be defined as the false and unprivileged publication by letter, newspaper, or other form of writing, of unfounded statements or charges which expose a person to hatred, distrust, contempt, ridicule, or obloquy, or which tend to cause such person to be avoided, or which have a tendency to injure such person in his office, occupation, business, or employment, and which are such that in their natural and proximate consequence, will necessarily cause injury to the person concerned, in his so that legal injury may be presumed or implied from the bare fact of the publication itself. Briggs v. Brown, 55 Fla. 417, 46 So. 325.

Ordinarily it is regarded as a libel per se to falsely publish of and concerning another a statement that he has been indicted for a criminal offense involving the element of disgrace or moral turpitude. Posnett v. Marble, 62 Vt. 481, 20 A. 813, 11 L. R. A. 162, 22 Am. St. Rep. 126; Kelley v. Flaherty, 16 R.I. 234, 14 A. 876, 27 Am. St. Rep. 739. But this rule proceeds from the idea that the injurious character of such a publication is a fact of such common notoriety established by the general consent of men, that the courts must of necessity take judicial notice of its harmful effect.

Consequently the publication of a libel per se is such that, in the eyes of the law, its publication per se necessarily imports injury, and thereby obviates the necessity of either pleading or proving damage or malice in fact, since both of these elements are presumed as a matter of law in such cases. Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 10 L. R. A. (N. S.) 1051, 10 Ann. Cas. 1148.

The law has always made a distinction between false imputations that may be actionable in themselves, or per se, and those that may be actionable only on allegation and proof of special damage, or per quod. Words of both classes are actionable on the same grounds and for the same reasons. But a distinction between the two is based on a rule of evidence. The noxious quality in both lies in the fact that they are the natural and proximate causes of pecuniary damage to those concerning whom such words are maliciously written. The essential difference between the two lies in the matter of proof of the resulting injury.

In the case of words actionable per se their injurious character is a fact of common notoriety, established by the general consent of men, and the courts consequently take juridical notice of it. Words amounting to a libel per se necessarily import damage and malice in legal contemplation, so these elements need not be pleaded or proved, as they are conclusively presumed as a matter of law in such cases. Notes 12 Am. Dec. 39; 9 Eng. Rul. Cases 11; 17 R. C. L. 264.

But words or publications actionable only per quod are those whose injurious effect must be established by due allegation and proof. In determining their actionable nature the courts must, unless controlled by some settled precedent, decide in accordance with the general and fixed current of opinion of the locality of publication as to the damaging effect of the charge contained or suggested in the words used. Because of this, judicial decisions of the past are so apt to vary with the social and moral views of the different jurisdictions, that in cases where the utterances or publications of the defendant are not clearly actionable per se, the surrounding circumstances and conditions must be taken into account to determine the matter. Note 12 Am. Dec. 39; Cole v. Millspaugh, 111 Minn. 159, 126 N.W. 626, 28 L. R. A. (N. S.) 152, 137 Am. St. Rep. 546, 20 Ann. Cas. 717, note.

Innuendoes in the pleadings are, however, ineffective for the purpose of fixing the character of an alleged libelous publication as being libelous per se. In determining whether or not a publication is libelous per se the language of the publication itself can alone be looked to, without the aid of innuendoes, since the innuendo in libel cases is but the deduction of the pleader from the words used in the publication. Unless the pleader's deduction is supported by the language of the publication, the actionable quality of the publication is not legally disclosed. Wofford v. Meeks, 129 Ala. 349, 30 So. 625, 55 L. R. A. 214, 87 Am. St. Rep. 66.

The allegations of both counts of the amended declaration in this case show that the alleged false publication was made in a daily newspaper of general circulation. What everybody knows the courts are assumed to know, and of such matters may take judicial cognizance. St. Lucie County Bank & Trust Co. v. Aylin, 94 Fla. 528, 114 So. 438. We therefore judicially know that, since the publication complained of was by a daily newspaper, such publication occurred in the course of the newspaper's reproducing for the benefit of its local readers, the news gathered from all parts of the world by such recognized news gathering agencies as the Associated Press, Universal Press, and the like.

As a corollary to the foregoing proposition, the courts can, and must, take judicial notice of the fact that in printing an associated press, or other press service dispatch, of a purported news happening, emanating from other places or localities, the article or news item, as reproduced and published locally, is not considered as the original or voluntary composition of the newspaper publisher, who merely reproduces it in his daily news columns in the form in which it has been received, but is rather regarded by the public as a mere repetition of a publication that has already been made by its real authors in their course of disseminating the news.

Those are numerous authorities, most of them of early date, which are to the effect that one who hears a slander has a legal right to repeat it, if he does so in the same words, and at the same time gives his authority for the statement, because of the rebuttal of any presumption of malice in such cases. Waters v. Jones, 3 Port. (Ala.) 442, 29 Am. Dec. 261; Johnson v. St. Louis D. Co., 65 Mo. 539, 27 Am. Rep. 293.

While at the present day the great weight of authority (which we approve) is to the effect that in ordinary cases of slander or libel, a person must be held liable for the publication of a libel or defamatory words in regard to another, even though he is but repeating what he has heard, and names his authority, and although the repetition is made without any design to extend circulation of the repeated libel or defamation, or to cause the person addressed...