Regan v. Davis

• Citation: 97 So.2d 324
• Decision Date: 11 October 1957
• Docket Number: No. 11,11
• Parties: Mary C. REGAN, Appellant, v. Sarah Lee Thompson DAVIS et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 324

97 So.2d 324

Mary C. REGAN, Appellant, v. Sarah Lee Thompson DAVIS et al., Appellees.

No. 11.

District Court of Appeal of Florida, Second District.

Oct. 11, 1957.

Parkinson & Sessions, Daytona Beach, for appellant.

Coles, Himes & Germany, Tampa, for appellees Mertz, LaVoy and Davis.

Richard W. Ervin, Atty. Gen., for appellee Bob Gates.

Bogue & Harris, St. Petersburg, for appellee Betty Zentgraf.

McClure & Turville, St. Petersburg, for appellee Christian.

ALLEN, Judge.

Mary C. Regan filed a complaint in Hillsborough County charging the several defendants with maliciously and willfully conspiring together to defame her and to cause her to lose her position as a speech therapist, which deprived her of the opportunity of making a livelihood in her profession. Motions were filed by all of the defendants to dismiss the complaint on the ground, among others, that it failed to state a cause of action. Defendant, Davis who was served in Walton County, claimed lack of jurisdiction of the Court over her as an additional basis for dismissal. The trial judge dismissed the complaint with leave to amend as to all of the defendants except Davis. He dismissed the complaint as to Davis for lack of jurisdiction. Plaintiff declined to amend, whereupon the trial judge entered a final judgment for the defendants.

The order of the trial judge does not show the basis for his order refusing to permit the plaintiff to amend the complaint as against the defendant, Davis, nor does the record show the basis of the court's holding that it had no jurisdiction as to Davis. We note, however, that in the Brief of the attorneys for Sarah Lee Thompson Davis, page 14, under Question No. 2, stated as being:

'Whether or not the Court was correct in dismissing the complaint against the Appellee Sarah Lee Thompson Davis on the ground that it did not have jurisdiction.' they cite Rule 1.8(b) of the 1954 Florida Rules of Civil Procedure, 30 F.S.A., and italicize a portion of the same as follows:

'Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, or cross-claim, must state a cause of action, and must contain allegations of fact sufficient to show the jurisdiction of the court.'

Defendant Davis' attorneys then state:

'The lower court found that there were not sufficient facts contained in appellant's complaint to justify jurisdiction over the appellee Sarah Lee Thompson Davis, and therefore, dismissed the cause as to the appellee Davis for lack of jurisdiction.'

We will not further allude to the distinction made in the order between the defendant Davis, and the other defendants as to the right of the plaintiff to amend, since we conclude that the complaint stated a cause of action against all the defendants.

The complaint was apparently grounded on conspiracy to defame and we are of the impression that the able judge of the lower court so construed the action and concluded that it did not set out sufficient facts to show defamation, necessitating the dismissal of the complaint. We are inclined to agree with the lower court that the facts set forth in the complaint are insufficient for an action of defamation, but even if it be conceded that this is true, a question arises as to whether or not the complaint stated a cause of action on any ground. If so, the motions to dismiss should have been overruled.

We believe that the complaint states sufficient facts to state a cause of action against all of the defendants for conspiracy to interfere with her right to practice her profession as a speech therapist.

In 4 Florida Law and Practice, page 213, Conspiracy, III, Civil Liability, Section 5, Scope of action, it is stated:

'* * * a civil action will lie where any combination of two or more persons to commit an unlawful act, or to commit a lawful act by unlawful means, results in private injury.'

It is then stated:

'As discussed in § 2, supra, an action of conspiracy lies for any combination to commit any offense. However, the scope of the action is much broader than this, for under the common law it includes combinations to commit crimes, torts or any other wrongs which cause private injuries to individuals.

'It may be said generally that a civil action will lie where any combination of two or more persons to commit an unlawful act, or to commit a lawful act by unlawful means, results in private injury. The Florida court has recognized conspiracy as a separate tort for which the person injured may sue all or any one or more of the conspirators.'

In Loeb v. Geronemus, Fla.1953, 66 So.2d 241, the Court held that the gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is alleged to have been done pursuant to the conspiracy.

In the case of Faulk v. Allen, Fla.1943, 12 So.2d 109, 110, the Court held that in one count of the complaint it was charged, in effect, that two parties wrongfully and maliciously conspired with each other to procure the dismissal of plaintiff from his employment by complaining and falsely swearing to the Governor of Florida that plaintiff had accepted bribes.

The Court, in its opinion, said * * * The gist of plaintiff's suit is the wrongful and malicious act of defendant which resulted in plaintiff's losing the emoluments of the office. It is asserted that there is no adjudicated case in England or this country where an action has been maintained to collect damages for wrongfully procuring the removal of an officer. We are dealing with an administrative office holder under the executive branch of the state government. * * * If therefore the defendant as it is alleged wrongfully and maliciously procured the governor to exercise his discretion and remove plaintiff, we can see no good reason why the defendant should not be answerable to plaintiff.'

Also in Faulk v. Allen, supra, the Court said:

'* * * Appellant asserts that conspiracy as an independent civil action was unknown at common law as well as in this country. Some respectable authority is cited for this assertion. We do not feel that the question is open in this state however since it was held in the affirmative in Garsed v. Sugarman, 99 Fla. 191, 126 So. 157; Quigg v. Helm, 119 Fla. 693, 161 So. 55. Hunter Lyon, Inc., v. W. H. Walker, Fla., 11 So.2d 176, opinion filed December 11, 1942. A comprehensive discussion of this question will be found in Chapter XVI, Carson's Revised Edition Florida Common Law Pleading, Practice and Procedure. See also Law of Conspiracy by Harrison.'

A complaint alleging a conspiracy to damage the credit and financial rating of the plaintiff, an overt act done in pursuance with the conspiracy and damages resulting from such overt act was held to contain all the essential elements of malicious conspiracy. See Dr. P. Phillips and Sons, Inc., v. Kilgore, 1943, 52 Fla. 578, 12 So.2d...