Patterson v. Tribune Co., 3042

• Court: Florida District Court of Appeals
• Writing for the Court: WHITE; ALLEN, Acting C. J., and KANNER
• Citation: Patterson v. Tribune Co., 146 So.2d 623 (Fla. App. 1962)
• Decision Date: 24 October 1962
• Docket Number: No. 3042,3042
• Parties: Virginia D. PATTERSON, Appellant, v. The TRIBUNE COMPANY, a corporation, Appellee.

Page 623

146 So.2d 623

Virginia D. PATTERSON, Appellant, v. The TRIBUNE COMPANY, a corporation, Appellee.

No. 3042.

District Court of Appeal of Florida, Second District.

Oct. 24, 1962.

Rehearing Denied Nov. 19, 1962.

John R. Parkhill and Ralph Steinberg, Tampa, for appellant.

T. Paine Kelly, Jr. and Brooks P. Hoyt of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

WHITE, Judge.

Virginia D. Patterson, plaintiff in the trial court, appeals a summary final judgment rendered for the defendant-appellee, a corporate publishing establishment of Tampa, Florida. The plaintiff sued to recover damages for alleged invasion of her right of privacy through publication of progress docket entries reflecting judicial commitment of the plaintiff as a narcotic. The docket entries published by the defendant in the Tampa Tribune of June 14, 1958 under the heading 'News of Record' are as follows:

'Suits Filed'

* * *

* * *

'State of Florida vs. Virginia Patterson Commitment of narcotic; James M. McEwen, Attorney.'

* * *

* * *

'Orders and Decrees'

* * *

* * *

'The State of Florida v. Virginia Patterson Order of Commitment.'

The plaintiff alleged that the foregoing publication constituted an unlawful and damaging invasion of her right of privacy under Fla.Stat. § 398.18(1) F.S.A. which provides inter alia for voluntary commitment for treatment of narcotic addicts, and provides further:

'* * * The affidavit, and original notice shall be filed with the clerk of the circuit court at or before the time specified for such appearance, but the same and all other records shall be open for inspection only to the person named or described therein or his counsel or by narcotic officers * * *.' (emphasis added)

Prior to June 12, 1958, according to the complaint, the plaintiff became addicted to the use of demerol, a narcotic drug, as a result of a physical illness. On June 12, 1958 she voluntarily sought commitment for treatment by filing an affidavit in the Circuit Court for Hillsborough County. The court entered an order of commitment on the same date. The defendant then published the docket entires above set forth.

The plaintiff sued in two counts (1) for invasion of privacy and (2) negligent invasion of privacy. On defendant's motions directed to the complaint the trial court dismissed count (2) but denied the motion to dismiss count (1), thus holding as a matter of pleading that § 398.18(1), supra, created a special right of privacy in the class of persons to which the plaintiff allegedly belonged. After the defendant filed its answer to count (1) both the plaintiff and the defendant filed motions for summary judgment. In granting summary final judgment for the defendant, the court found and concluded as follows:

'2. It affirmatively appears from the publication itself, from the affidavits of the parties, and from the admission of counsel for the plaintiff * * * that all of the facts and matters * * * were actually taken from the progress docket of the proceeding * * * and that the defendant did not have access to or inspect the court file containing the affidavit, original notice, or other instruments or records filed in the cause.

'3. It is agreed by the parties that the progress docket * * * was kept by the Clerk of the Court as a record open to public inspection and that there was no prohibition or limitation imposed by the Clerk upon the inspection * * *.

'Conclusions of Law'

'1. That * * * Section 398.18, Florida Statutes requires only that the affidavit and original notice and other records filed in the proceeding shall not be open for inspection by members of the general public * * *.

'2. Section 28.21, Florida Statutes, expressly requires the Clerk of the Circuit Court to keep a progress docket * * * and in the absence of any prohibition in Chapter 398, the Clerk was required by said section to make the entry in the progress docket of the information published and to permit the same to remain open to inspection by the public.'

The trial court then determined and adjudged that the defendant's publication of the information contained in the progress docket did not constitute an unlawful invasion of privacy with respect to the plaintiff's commitment there reflected. This would appear to be, in effect, a determination of damnum absque injuria.

The order under review compares several sections of Florida Statutes with § 398.18(1). The trial court noted that § 794.03, for example, expressly prohibits publication of the name of any female who is raped or assaulted with an intent to commit rape, and that § 72.27 expressly requires the clerk to index adoption proceedings only in the names of the petitioners. Inasmuch as § 398.18(1) here involved does not in terms prohibit publication of the progrees docket, the court concluded that publication of the docket entries was permissible.

Thus is presented on appeal the question of whether or not it was error to hold as a matter of law that, notwithstanding the provisions of § 398.18(1), supra, there was no unlawful invasion of privacy in the publication of the docket entries reflecting the plaintiff's commitment as a narcotic. It is urged on appeal that an affirmance of the trial court would permit to be done indirectly that which the statute implicitly forbids to be done directly; that it would defeat the objective of encouraging unwitting victims of narcotics to come forward of their own volition, disclose their addiction and receive curative treatment without being fearful of noxious publicity.

The docket entries unquestionably disclosed the fact of commitment and the identity of the plaintiff as the one who was committed. In this situation we are constrained to the view that the entries became and were, in effect, part of the 'records' of the commitment proceedings within the spirit and intendment of the statute, supra. C/f Amos v. Gunn, 1922, 84 Fla. 285, 94 So. 615, 634, containing a definition of a 'public record.' The defendant urges that since the clerk of the court is required by Fla.Stat. § 28.21 ¹ to keep a progress docket and since the progress docket is a record open to public inspection under § 28.19 ² and § 119.01, ³ there could be no unlawful invasion of privacy in publishing the entries in question even though they divulged information which the plaintiff protests was not to be publicly divulged. Plaintiff insists, on the other hand, that § 398.18(1) takes all records and information revealing the identity of a committed narcotic out of the public domain and renders publication thereof unlawful.

A claimed right of privacy may be qualified in some circumstances by considerations of public interest. See for example Harms v. Miami Daily News, Inc., Fla.App.1961, 127 So.2d 715. The statute here, however, is clear in its meaning. No doubt the salutory purpose of limiting the information in the records to a privileged few may have been accomplished at the outset if the docket entries had been worded so as not to reveal the identity of the plaintiff as a committed narcotic. That,...