Merriman v. Lewis

• Decision Date: 20 February 1940
• Citation: 194 So. 349,141 Fla. 832
• Parties: MERRIMAN v. LEWIS et al.
• Court: Florida Supreme Court

194 So. 349

141 Fla. 832

MERRIMAN v. LEWIS et al.

Florida Supreme Court, Division A.

February 20, 1940

Rehearing Denied March 18, 1940.

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Action for libel by Fred G. Merriman, Jr., against O. H. Lewis and another, as copartners trading and doing business as the Lewis Candy & Tobacco Company. To review an order granting defendants a new trial after a verdict for plaintiff plaintiff brings error.

Reversed and remanded with directions.

THOMAS J., dissenting.

COUNSEL G. P. Garrett and Donald Walker, both of Orlando, for plaintiff in error.

Maguire Voorhis & Wells, of Orlando, for defendant in error.

OPINION

BUFORD Justice.

On writ of error we review order granting new trial after verdict in favor of plaintiff.

New trial was granted on grounds 1 to 7, inclusive, and 23 and 25. Grounds 1 to 7, inclusive, of the Motion were:

'1. That the said verdict is against the evidence.

'2. That the said verdict is not supported by the evidence.

'3. That the verdict is contrary to the weight of the evidence.

'4. That the verdict is contrary to law.

'5. That the verdict is contrary to law and the evidence.

'6. That the verdict is grossly excessive.

'7. That the verdict indicates that the jury were actuated by sympathy, prejudice or otherwise than by the evidence in the case.'

Grounds 23 and 25 were:

'23. There is no evidence that the defendants were actuated by express malice in making and filing with the Hartford Accident & Indemnity Company the proof of claim complained of.'

'25. The verdict is contrary to the law as given by the Court in certain charges requested by defendants.'

Unless ground 23 stated a legal reason for granting a new trial, the other grounds upon which the new trial was granted were without merit. Of course, if that ground was well founded, then the other mentioned had merit.

It is well settled that express malice may be inferred from the intemperate character of the language used in the alleged libel or when the language used is utterly beyond and disproportionate to the facts, or even where improper motives are unnecessarily imputed. Newell on Libel and Slander, 4th Ed., 328.

Where it is shown that the alleged perpetrator of the libel knew that the statement was false when made, express malice will be conclusively presumed. 37 C.J. 84; 18 Am.Eng.Enc. of Law (2) 1007-1037; Newell on Libel and Slander, 4th Ed., 318.

The libel complained of was in the following language:

'Hartford Accident and Indemnity Co.

'Hartford, Conn.

'Fred G. Merriman

'(Name of Principal)

'Lewis Candy & Tobacco Company

'(Bond No. 1415443 Name of Insured)

'I, M. C. Lewis, co-partner and manager (If corporation, title of party making this affidavit must appear after his name) of Orlando, Florida, hereby certify that on or about August 6, 1936, (I, we or this company) we suffered loss through the dishonesty of Fred G. Merriman employed as salesman & collector and that the amount of money dishonestly misappropriated by said Fred G. Merriman amounts to one hundred eighteen 15/100 dollars ($118.15); that the following is a detailed statement of said loss, and of all sums due or owing said employee, and the balance stated below is the true net loss from ---, 19--, to August 12, 1936.

------------------------------------------------------- Date Description of Item. Amount Total ------------------------------------------------------- Aug. 9/36 Sales ticket dated July 9, 1936, No. 9072 covering transfer of merchandise for which Fred G. Merriman obtained credit but which was not delivered by him to the person shown as purchaser on the ticket. $83.15 Aug. 6/36 Cash Shortage ............ 35.00 ------ Total loss............ Credits By salary; ........................... By Commission ........................ By cash .............................. Other credits (including securities, notes, offsets, etc.) ...................................... ------ Total credits ...... Net Loss.............. $118.15 ------------------------------------------------------- ------------------------------------------------------- Date Description of Item. Amount Total ------------------------------------------------------- Aug. 9/36 Sales ticket dated July 9, 1936, No. 9072 covering transfer of merchandise for which Fred G. Merriman obtained credit but which was not delivered by him to the person shown as purchaser on the ticket. $83.15 Aug. 6/36 Cash Shortage ............ 35.00 ------ Total loss............ Credits By salary; ........................... By Commission ........................ By cash .............................. Other credits (including securities, notes, offsets, etc.) ...................................... ------ Total credits ...... Net Loss.............. $118.15 -------------------------------------------------------

'(If additional space is necessary, please use reverse side.)

'I further certify that knowledge of this misappropriation first came to me on or about the 12th day of Aug. 1936; that the manner in which this money was misappropriated is as follows: failure to turn in moneys or merchandise entrusted to him.

'..... that nothing has been suppressed, withheld, or misrepresented by me material to a knowledge of the facts of said loss, and that the above statement is a complete and truthful recital of the facts.

'There is no other suretyship or insurance under which the above claim, or any portion thereof, is claimable, except the following:

Name of Insurer Kind of Insurance Amount.

M. C. Lewis

(Official Capacity)

'Sworn to and subscribed before me this 21st day of October, 1936.

'Bertha B. Luke

'Notary Public, State of Florida at Large

'My Commission expires July 5, 1937.

'(See instructions on reverse side.).'

It was contended by the defendant in the court below, and is contended here, that the communication containing the alleged libel was a privileged one because it constituted the statement of a basis for a claim against the Surety Company which the defendant intended, if necessary, to enforce in a court of law.

Defendants in error rely upon the cases of Ange v. State, 98 Fla. 538, 123 So. 916; and Myers v. Hodges, 53 Fla. 197, 44 So. 357; Watson v. M'Ewan, 3 Ann.Cas. 124, A.C. (1905) 480, 4 B.R.C. 934, 74 L.J.P.C.,N.S., 151, 93 L.T.N.S. 489, on the theory that the affidavit submitted in which the alleged libelous statement was made constituted preliminary proof of loss which was a necessary predicate for the action on the bond.

In all of the above mentioned cases criminal prosecution was involved.

It is true that in the Ange case it was said [98 Fla. 538, 123 So. 917]:

'The doctrine is well settled that defamatory words when used by parties, counsel, or witnesses in the due course of judicial procedure, and when relevant to the matter in hand, and pertinent to the subject of inquiry, are privileged and cannot be made the basis of a proceeding for libel or defamation, no matter how false or malicious such statements may in fact be.' Citing Myers v. Hodges, supra.

The Court further said:

'This rule of privilege as applied to statements made in the course of judicial proceedings is not restricted to trials of actions, but includes proceedings before a competent court or magistrate in the due course of law or the administration of justice which is to result in any determination or action by such court or officer.'

Insofar as has been pointed out by counsel, this is as far as the rule of privilege in such matters has been extended. We do not think that the facts in the present case come within that rule. Here the record shows that Lewis made the statement above quoted, under oath, for the sole purpose of collecting money from the Surety Company. The record further shows conclusively that at the time the statement was made Lewis knew of no proof that established any dishonest conduct or misappropriation of funds by Merriman. He testified at the trial as follows:

'Q. Mr. Lewis, you were very friendly with Mr. Merriman and his wife at all times, is that correct? A. So far as I was concerned.

'Q. And you are still so friendly? A. Well, I have passed them several times since--

'Q. I mean you feel friendly toward them? A. So far as I am concerned.

'Q. When you swore that he was dishonest, you did that as a friendly act did you? A. I didn't swear to anything to that effect, only I was trying to get my money.

'Q. I understand, but you swore here didn't you, on this complaint, Plaintiff's Exhibit 11--you swore to that, didn't you? A. I swore to this item right here (indicating)

'Q. You swore to that statement didn't you? A. This one right here (indicating)

'Q. The whole thing you swore to, didn't you? A. I didn't swear to all of it, as I explained to you, that's what we put in there.

'Q. You understood you were signing a paper which says: 'I, M. C. Lewis, co-partner and manager, of Orlando, Florida, hereby certify that on or about August 6, 1936, we suffered loss through the dishonesty of Fred G. Merriman, employed as salesman and collector, and that the amount of money dishonestly appropriated by said Fred G. Merriman amounts to $118.15'. You knew you were swearing to that, didn't you? A. I knew I was swearing to what was misappropriated.

'Q. You knew you were swearing that he was dishonest, did you not?

'Q. Did you, or didn't you? A. I didn't swear...