Miami Herald Pub. Co. v. Ane, 79-1463
| Decision Date | 12 October 1982 |
| Docket Number | No. 79-1463,79-1463 |
| Citation | 423 So.2d 376 |
| Parties | The MIAMI HERALD PUBLISHING COMPANY, Appellant, v. Aurelio ANE, Appellee. |
| Court | Florida District Court of Appeals |
Steel, Hector & Davis and Talbot D'Alemberte and Donald M. Middlebrooks, James D. Spaniolo, Miami, for appellant.
Adams & Ward and Robert Ward and James W. Kaufman, Miami, for appellee.
Before HUBBART, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
This is an appeal and cross-appeal from a final judgment awarding compensatory damages against a newspaper in a libel action brought in the Circuit Court for the Sixteenth Judicial Circuit in and for Monroe County, Florida.
The central question presented for review is whether a plaintiff [who is neither a public official nor public figure] in a libel action is required under Florida law to establish as an element of his cause of action that the defendant published the alleged false and defamatory statements sued upon with "actual malice" as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) [] when the alleged false and defamatory statements relate to an event of public or general concern. We hold, in accord with established First Amendment law and the overwhelming weight of authority throughout the country, that under Florida law such a non-public figure plaintiff is not required under any circumstances to make such an "actual malice" showing as an element of his cause of action, it being sufficient if the plaintiff establishes, as here, that the defendant published the alleged false and defamatory statements with negligence [i.e., without reasonable care as to whether the alleged false and defamatory statements were actually true or false].
We, accordingly, reject all contrary contentions, together with other related points, made upon this appeal and cross-appeal, and affirm the final judgment under review. We further certify that our decision herein passes upon a question, stated above, which is of "great public importance," so as to permit further review of this case by the Florida Supreme Court under Article V, Section 3(b)(4) of the Florida Constitution.
The facts of this case are as follows. On Monday, November 21, 1977, Monroe County Sheriff's deputies seized an "Old Milwaukee" beer truck containing three tons of marijuana outside Marathon, Florida, in the Florida Keys. Greg Kirstein, a reporter for the defendant Miami Herald, was dispatched from his Key West office to cover this event for his newspaper. In connection with this assignment, Mr. Kirstein spoke on several occasions to various officials from the Monroe County Sheriff's office and learned the details of the marijuana seizure, including the fact that Lillian Fernandez of Key West, Florida, was the licensed owner of the seized beer truck. He further checked with the Florida Department of Motor Vehicles in Tallahassee and confirmed the information that the beer truck was, in fact, licensed to Lillian Fernandez.
Mr. Kirstein, however, continued to make other inquiries concerning the ownership of the subject beer truck. He tracked down the former owner of the truck, Island Leasing Corporation, and the company which had formerly leased the truck from Island Leasing Corp., Universal Brands; this was done by tracing the fleet number of the truck and an expired beverage commission sticker on the truck. Mr. Kirstein had one brief telephone conversation with a person from Island Leasing Corp., and two longer telephone conversations with an official from Universal Brands, the defendant Marvin Kimmel.
Mr. Kimmel stated that his company no longer leased the beer truck, that the people from Island Leasing had told him that they had sold the truck to the plaintiff Aurelio Ane the prior Thursday for $2,750 cash. Mr. Kirstein made no attempt to verify this hearsay information by again contacting Island Leasing; he further was unable to obtain any documentation which would verify such a sale, but, to the contrary, discovered that the licensed, present owner of the truck was Lillian Fernandez of Key West. Moreover, he made no effort to contact Lillian Fernandez.
No other source contacted by Mr. Kirstein implicated the plaintiff Ane in any way with this truck; indeed, Monroe County Sheriff's officials investigating the case specifically told Mr. Kirstein that the plaintiff Ane was not a suspect in the case. A brief background check on the plaintiff Ane revealed him to be a beer distributor in Key West who was considered to be an honest man; efforts to locate Mr. Ane in Key West were unsuccessful as he was out of town at the time. Also Mr. Kirstein traced a decal on the license plate of the beer truck through a tag agency in Miami and discovered that the decal did not belong on the subject license tag, that it properly belonged on a 1964 Chevrolet pick-up truck owned by a man in North Miami, who was in no way connected with the plaintiff Ane.
On Tuesday, November 22, 1977, a news article written by Mr. Kirstein appeared in the Keys local section of the defendant Miami Herald newspaper which was widely circulated in the Florida Keys. The lead paragraph of the article stated that Monroe County Sheriff's officials had reported that a Key West distributor--identified in the fourth paragraph as the plaintiff Ane--was the owner of an "Old Milwaukee" beer truck containing three tons of marijuana which had been seized the day before by the Monroe County Sheriff's office had specifically excluded the plaintiff Ane as a suspect in the case, had named Lillian Fernandez as the licensed owner of the beer truck, and had never identified the plaintiff Ane as the owner of the subject beer truck. The article also repeated in the fourth paragraph the defendant Kimmel's unverified statement that the truck in question had been purchased the Thursday prior thereto by the plaintiff Ane. The article stated as follows:
The driver of the truck, 40-year-old William W. Horton, Slip 22, Tropical Marina, Key West, was charged with possession of more than 100 pounds of marijuana and an invalid driver's license. He was being held on $150,000 bond at the sheriff's Marathon sub-station late Monday.
Sheriff's officials promised 'a full-scale investigation' and said they have 'several other suspects' in the case.
THE LARGE red-and-white truck, which Monday contained bales either wrapped in burlap or packaged in cartons from Colombia, had been purchased Thursday by Aurelio Ane, Key West Distributors Inc. president, according to Marvin Kimmel, president of Miami's Universal Brands Inc." [emphasis added] 1
It is undisputed in this case that the plaintiff Ane had at no time purchased the subject beer truck from Island Leasing, that the defendant Kimmel's unverified and contradicted hearsay information concerning such a sale was entirely inaccurate, and that the plaintiff Ane had no connection whatever with the said beer truck. There is also uncontradicted testimony from the plaintiff Ane that he was personally shamed and humiliated by these admittedly false accusations which appeared in the above-stated news article.
In a follow-up article in the Miami Herald the next day, the correct ownership of the truck was acknowledged, but no effort was made [either then or later after proper written notice was served, see §§ 770.01--.02, Fla.Stat. (1979) ] to retract the false statements that the Monroe County Sheriff's office had accused the plaintiff Ane of owning the marijuana-laden truck in question, and that the plaintiff had purchased this truck the Thursday prior to the marijuana seizure. 2
The plaintiff Ane subsequently brought suit for libel against the defendant Miami Herald and Mr. Marvin Kimmel in the Circuit Court for the Sixteenth Judicial Circuit in and for Monroe County, Florida. The above-cited false statements were alleged, inter alia, as among the libelous statements appearing in the defendant Miami Herald's news article. After appropriate answers were filed and defense motions for summary judgment denied, the case was tried below before a jury. The above facts were established by the evidence as adduced at the trial and motions by all parties for a directed verdict were denied. The court instructed the jury that the plaintiff could recover in his libel action if the greater weight of the evidence showed that the defendants negligently published the false and defamatory statements sued upon. The jury returned a verdict for the plaintiff and awarded $5,000 in compensatory damages against the defendant Miami Herald and $10,000 in compensatory damages against the defendant Marvin Kimmel; no punitive damages were awarded.
The defendant Miami Herald appeals; the plaintiff Aurelio Ane cross-appeals. No appeal has been taken by the defendant Marvin Kimmel.
The central contention made by the defendant Miami Herald upon this appeal is that the trial court erred in denying its motion for a directed verdict because the plaintiff Ane failed to establish at trial that the defendant Miami Herald acted with "actual malice" as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), in publishing the false and defamatory statements sued upon in the November 22, 1977, news article; it is urged that such a showing of actual malice is an essential element of a libel action under Florida law where, as here, the publication in question relates to an event of public or general concern, to wit: a police investigation of a criminal act. We cannot agree because,...
To continue reading
Request your trial
-
Green v. Cosby, Civil Action No. 14–30211–MGM
...the defamatory remark. See Nguyen – Lam v. Cao , 171 Cal.App.4th 858, 90 Cal.Rptr.3d 205, 212 (2009) ; Miami Herald Publ'g Co. v. Ane , 423 So.2d 376, 382 (Fla.Dist.Ct.App.1982). Malice exists, generally, if a defendant or a defendant's agent makes the statement knowing it is false or with ......
-
Gazette, Inc. v. Harris
...Star Newspaper Co., 424 A.2d 78 (D.C.1980), cert. denied, 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981); Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla.App.1982); Cahill v. Hawaiian Paradise Park Corp., 56 Hawaii 522, 543 P.2d 1356 (1975); Troman v. Wood, 62 Ill.2d 184, 340 N.......
-
Brown v. Kelly Broadcasting Co.
...and free speech to such an extent, as urged here, that we needlessly plow under other important individual rights." (Miami Herald Pub. Co. v. Ane, supra, 423 So.2d at p. 387.) The need to redress defamation is as important now as when the tort of defamation was first recognized, perhaps mor......
-
Rouch v. Enquirer & News of Battle Creek
...but a negligence standard emanates from the courts' understanding and interpretation of public policy. See Miami Herald Publishing Co. v. Ane, 423 So.2d 376, 387 (Fla.App.1982); Cahill v. Hawaiian Paradise Park Corp., 56 Hawaii 522, 533-534, 543 P.2d 1356 (1975); Troman, supra, 62 Ill.2d pp......
-
Defamation & privacy
...n.5 (Fla. 3d DCA 2019). 4. Del Pino-Allen v. Santelises , 240 So.3d 89, 91 (Fla. 3d DCA 2018). 5. Miami Herald Publishing Company v. Ane, 423 So.2d 376, 388 (Fla. 3d DCA 1982), affirmed , 458 So.2d 239 (Fla. 1984) (“Without dispute, the plaintiff Ane was a private individual who was neither......