Miami Herald Pub. Co. v. Brown

• Decision Date: 28 July 1953
• Citation: 66 So.2d 679
• Parties: MIAMI HERALD PUB. CO. v. BROWN.
• Court: Florida Supreme Court

Page 679

66 So.2d 679

MIAMI HERALD PUB. CO. v. BROWN.

Supreme Court of Florida, en Banc.

July 28, 1953.

Loftin, Anderson, Scott, McCarthy & Preston, Robert H. Anderson and William C. Steel, Miami, for appellant.

Chesterfield H. Smith, Wm. A. McRae, Jr., and Holland, Bevis & McRae, Bartow, for appellee.

THOMAS, Justice.

This litigation arose from a rather curious set of circumstances. In an issue of The Miami Herald there appeared an article entitled 'Wonder Who Will Default? Prosecutor or Bolita Kingpin' dealing with divorce litigation between one Emmett Caraker, described as a 'lottery king', mentioning an impending golf match between him and the State Attorney who lived in Polk County and referring to his pleas of guilty 'to attempted bribery and operating a lottery.' At the head of the item, on the left, was a photograph labeled 'Emmett Caraker' and on the right a photograph of the lawyer. As it developed the picture labeled Caraker's was not his at all but one of the plaintiff, Frank Brown, now appellee. A few months before Carker and Brown had been photographed together by a photographer of the newspaper and when the print was cut in two and the individual pictures filed in the morgue, the names had been inadvertently transposed so that the one of Brown reproduced in the publication in question bore the name of Caraker.

The newspaper published a retraction and apology.

After a pre-trial conference the case was tried before a jury which awarded the plaintiff a verdict of $1,500.

The question inherent in the controversy is the presence or lack of testimony supporting the judgment for the amount the jury fixed in view of the corrective statement the newspaper published and its efficacy under Section 770.02, Florida Statutes 1951, and F.S.A., which provides that where an honest mistake is made in the publication of news and within a stated period after notice given, pursuant to the preceding section, the paper publishes a retraction of certain specifications 'then the plaintiff in such case shall recover only actual damages.' (Italics supplied.)

The appellant contends that there was no evidence from which the jury could conclude that the appellee suffered 'actual' damages to the extent of $1,500.

In Ross v. Gore, Fla., 48 So.2d 412, 414, we held the act constitutional and remarked that a plaintiff was deprived of no property rights when a retraction removed from his grasp punitive damages, which do not constitute compensation but serve only as a 'deterrent to others inclined to commit a similar offense * * *.' They were characterized as an allowance for 'malice, moral turpitude, wantonness or outrageousness of tort.' A prompt retraction when the mistake is brought home to the erring newspaper by the notice removes these elements from the plaintiff's action.

It was settled in the cited case that 'actual damages' and 'compensatory damages' are synonymous terms, and being such, a plaintiff after retraction may recover whatever sum will 'compensate him for any harm sustained and remaining unsatisfied after the publication of the retraction.' (Italics supplied.)

With these pronouncements in mind, as well as the admission of the plaintiff recited in the pre-trial order that he claimed no punitive, or exemplary, damages, or special damages we are prepared to explore the record for evidence forming a basis for actual damages to the amount the jury found.

As a preface to that excursion we should say that it is appellee's position that the article was libelous per se and that he was therefore entitled to "general damages' which the law presumes to flow inevitably from the publication of a libel per se.' To support the point he draws our attention to the decision in Cooper v. Miami Herald Publishing Company, 159 Fla. 296, 31 So.2d 382, where we held that a libelous publication is actionable per se; and to our opinion in Le Moine v. Spicer, 146 Fla. 758, 1 So.2d 730, that a written false or malicious charge is libelous per se, and to other cases of like import.

Adopting appellee's view that the article was both libelous and actionable per se, and taking into consideration the fact that many elements of resulting damage cannot be measured in dollars and cents with exactness, still there must be some foundation upon which the damage rests. It is not enough simply to say that the publication was libelous, and punitive damages have been eliminated, the amount of damage, as well as damage itself, follows as a matter of law. If such were the law juries would need to consider only the article before fixing the verdict in any amount that suited their fancy.

Appellant contends that although at common...