Stewart v. Codrington

• Decision Date: 04 February 1908
• Citation: 55 Fla. 327,45 So. 809
• Parties: STEWART v. CODRINGTON et al.
• Court: Florida Supreme Court

45 So. 809

55 Fla. 327

STEWART v. CODRINGTON et al.

Florida Supreme Court, Division B.

February 4, 1908

Error to Circuit Court, Volusia County; Minor S. Jones, Judge.

Action by Isaac A. Stewart against Christopher O. Codrington and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

In an action for libel, and language published of a person that tends to degrade him, or bring him into ill repute, or to destroy the confidence of his neighbors in his integrity, or to cause other like injury, is actionable per se; and in such a case it is not necessary to allege special damages.

In order for the plaintiff to be entitled to prove that he was libeled in his office as judge of the criminal court of record, or in his business as a solicitor or attorney, it is essential that the declaration should allege that the alleged libelous matter was published of and concerning the plaintiff in his said office as judge or in his business as a solicitor or attorney.

When matter which would otherwise be a privileged communication or qualifiedly privileged communication is alleged to have been published falsely, recklessly, and maliciously with intent to injure the plaintiff, such allegation deprived it of the character of a privileged or qualifiedly privileged communication.

It is perhaps not the best practice to recite or state the facts which go to make up a cause of action after a 'whereas,' yet, as such practice has been followed by many authorities, we are not disposed to hold that, where this is done, no cause of action is alleged. The defect is a formal one, which could only be reached at common law by special demurrer.

On Rehearing.

In a joint action against alleged joint tortfeasors, all the defendants except one joined in a demurrer to the declaration. One defendant demurred to the declaration separately. The demurrers were separately heard on the same day and separately sustained, and separate judgments upon the demurrers entered in favor of the defendants. A single writ of error was sued out by the plaintiff as though there was but one judgment. No motion was made under rule 4 of the rules of the Supreme Court to dismiss the writ of error (37 South. v), but the case was argued on its merits. Held, that inasmuch as it took both judgments to dispose of the entire case of the plaintiff, and inasmuch as no motion was made to dismiss the writ under our rules, this court would not treat the error, if there was any, as jurisdictional.

COUNSEL Egford Bly, for plaintiff in error.

D. U Fletcher, Cockrell & Cockrell, and E. E. Ropes, for defendants in error.

OPINION

HOCKER J.

On the 7th day of May, 1906, the plaintiff in error filed a declaration in the circuit court of Volusia county, the first and second counts of which are as follows:

'Isaac A. Stewart, plaintiff, by Egford Bly, his attorney, complains of Christopher O. Codrington, J. Hall Brumsey, J. Edward Bigelow, Edward E. Ropes, and Uriah M. Bennett, defendants in a plea of trespass on the case. For that whereas the plaintiff, before and at the time of the committing by the defendants of the several grievances hereinafter mentioned was a person of good name, fame, and reputation, and deservedly enjoyed the esteem and good opinion of his neighbors and other worthy citizens of this state; and whereas, also, the said plaintiff, for a long time before the committing of the said several grievances by the said defendants, had been and was and still is an attorney at law and solicitor in chancery of the state of Florida, and had used, exercised, and carried on the profession and business of attorney at law and solicitor in chancery with great credit and reputation, and was then, and from thence hitherto hath been and still is, judge of the criminal court of record in and for the county of Volusia, assigned to keep the peace of the state in and for said county of Volusia, and also to hear and determine misdemeanors and divers felonies committed in said county, and during all that time governed and conducted himself in his said office with justice, uprightness, and integrity. Yet the said defendants, well knowing the premises, but contriving, conspiring, and wrongfully and maliciously intending to injure prejudice, and aggrieve the plaintiff, and to bring him into public scandal, disgrace, and disrepute, and to injure the good name and reputation of plaintiff as aforesaid, and also in his said profession and business of attorney and solicitor as aforesaid, and to further cause it to be suspected and believed that the plaintiff had acted corruptly and unjustly in his said office of judge of the criminal court of record of Volusia county, did in the year 1905, and in the months of April and May of said year, falsely, wickedly, and maliciously publish, and cause and procure to be published, of and concerning the plaintiff, to divers good and worthy citizens of the state of Florida, in a certain written letter signed with the names of the defendants, Christopher O. Codrington, J. Hall Brumsey, Uriah M. Bennett, and one John A. Bradley, and addressed to Hon. N. B. Broward, Governor of the state of Florida, the following false, malicious, defamatory, and libelous words and matters of and concerning the plaintiff, to wit: 'Isaac A. Stewart [meaning plaintiff] and James W. Perkins are unscrupulous office holders; * * * that they [meaning plaintiff and said James W. Perkins] are not fit and competent servants of the people.' They, the said defendants, meaning thereby to say and to charge and to cause to be published of and concerning the plaintiff that plaintiff was an unscrupulous, unfit, and incompetent judge of the said criminal court of record of Volusia county, Fla.

'Whereby, and by means of the committing of which said grievance by the defendants, the plaintiff has been and is greatly injured in his good name, fame, and reputation, and has been brought into public scandal and disgrace, and has been and is greatly injured, prejudiced, and aggrieved in his said office, and has been and is otherwise greatly injured; to the damage of plaintiff in the sum of $18,000, wherefore he brings this suit.

'(2) And for that whereas the said defendants, further contriving, conspiring, and intending to injure and damnify the plaintiff as in the first count hereof set forth and alleged, afterwards, to wit, in the year 1905, and in the months of April and May of said year, falsely, wickedly, and maliciously did publish, and cause and procure to be published, of and concerning the plaintiff, to divers good and worthy citizens of the state of Florida, in a certain other written letter signed with the names of the defendants, Christopher O. Codrington, J. Hall Brumsey, Uriah M. Bennett, and one John A. Bradley, and addressed to Hon. N. B. Broward, Governor of the state of Florida, the following false, malicious, defamatory, and libelous words and matters of and concerning the plaintiff, to wit: 'People who are political friends of theirs [meaning of plaintiff and of one James W. Perkins] are practically exempt from punishment; persons who swear out warrants against any one who may have been interested in aiding them [meaning plaintiff and said James W. Perkins] in any way in securing their offices [meaning the office held by plaintiff and by said James W. Perkins] are persuaded to effect settlements and the criminal prosecutions are dropped.' They, the said defendants, meaning thereby to say and to charge, and to cause to be published of and concerning the plaintiff, that plaintiff had wrongfully and corruptly used his power and influence as judge of said criminal court of record of Volusia county for the purpose of protecting his political friends from punishment in said court for criminal offenses; and meaning thereby further to say and to charge and to cause to be published of and concerning the plaintiff that plaintiff as judge of said criminal court of record had participated in and procured the compounding of criminal charges pending in said court against persons who had aided plaintiff in securing his said office.

'Whereby, and by means of the committing of which said grievance by the defendants, the plaintiff has been and is greatly injured in his good name, fame, and reputation, and has been brought into public scandal and disgrace, and has been and is greatly injured, prejudiced, and aggrieved in his said office, and has been and is otherwise greatly injured, to the damage of the plaintiff in the sum of $18,000, wherefore he brings this suit.'

There are 20 other counts similar in structure to the second count, except that the libelous language in the twelfth count is alleged to have been contained in an affidavit made by E. E. Ropes, and in all the remaining counts to have occurred in so-called pleas filed by E. E. Ropes in a case pending between the plaintiff and E. E. Ropes, and which pleas were prior to the alleged publication of the libels stricken from the files of the circuit court in which the case was pending as being libelous and irrelevant.

In the fifth, fourteenth, fifteenth, seventeenth, eighteenth nineteenth, and twentieth counts the plaintiff is alleged to have been injured in his good name, fame, and reputation, and has been brought into public scandal and disgrace. In the sixth, sixteenth, and twenty-second he is alleged to have been injured in his good name, fame, and reputation, and in his said business and profession of attorney and solicitor, and has been brought into public scandal and disgrace. In all the remaining counts it is alleged that the plaintiff has been and is greatly injured in his good name, fame, and reputation, and has been brought into public scandal and disgrace,...