Teare v. Local Union No. 295 of the United Ass'n of Journeymen and Apprentices of Plumbers and Pipe Fitters Industry of U.S. and Canada
| Decision Date | 06 November 1957 |
| Docket Number | No. 295,295 |
| Citation | 98 So.2d 79 |
| Parties | 41 L.R.R.M. (BNA) 2097, 33 Lab.Cas. P 71,073 Harry E. TEARE, Appellant, v. LOCAL UNION NO. 295, OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBERS AND PIPE FITTERS INDUSTRY OF THE UNITED STATES AND CANADA; Hugh K. Rule, Individually and as Business Agent for Local Unionof the United Association of Journeymen and Apprentices of the Plumbers and Pipe Fit ters Industry of the United States and Canada, Appellees. |
| Court | Florida Supreme Court |
Thomas A. Koehler, Daytona Beach, for appellant.
Berrien H. Becks, Daytona Beach, for appellees.
Appellant Teare, who was plaintiff below, seeks reversal of a judgment in favor of the appellees, Rule and Local Union No. 295, who were defendants below, in an action for damages resulting from the alleged slander of the appellant by the appellees.
Our decision must turn on whether the words used by Rule were slanderous per se or on the other hand whether the spoken words were qualifiedly privileged.
Appellant Teare was a plumber engaged in his trade in Volusia County. He had a contract to do the plumbing work on a building which was being constructed by Edmund and Margaret Flagg. The Hawes brothers were general foremen and masonry contractors. The Hawes were members of the Local Masons Union. Teare was not a member of the Local Plumbers Union. Appellee Rule was the business agent for Local Union No. 295 of the United Association of Journeymen and Apprentices of the Plumbers and Pipe Fitters Industry of the United States and Canada. While the Flagg building was under construction, Mr. Rule in the company of the Hawes brothers went to see Mr. and Mrs. Flagg and allegedly made the the following statements to them:
' If Mr. Teare continued on the job, none of the other sub-contractors would be allowed to work.
' That for the sake of your health you are making a mistake in engaging Mr. Teare, since his work is known to be unsatisfactory and will not pass inspection.
' That Mr. Teare's work has been repeatedly found to be unsatisfactory.'
The numbering of the quoted paragraphs has been inserted by us for convenience of later reference to the alleged slanderous statements.
Substantially the same statements were later made by Mr. Rule at the Union Hall when Mr. and Mrs. Flagg called upon him in an effort to obtain the consent of the Union to the partial completion of their job by Mr. Teare.
When Mr. Rule remained adamant in his position the Flaggs thereupon cancelled the plumbing contract with Teare and proceeded to employ Union plumbers to complete the job.
Deeming himself to have been damaged by the statements, Teare instituted this action against Rule and the Plumbers Union seeking an award of damages.
At the trial the above stated facts were sustained by the evidence offered by the plaintiff. At the close of the plaintiff's case the trial judge granted defendants' motion for a directed verdict. Judgment for the defendants was entered on the directed verdict. Reversal of this judgment is now sought by the appellant-plaintiff.
Appellant here contends that the words used by Rule were slanderous per se and therefore were actionable regardless of allegation or proof of malice or special damages.
It is the contention of the appellees that under the circumstances reflected by the record, Rule enjoyed a qualified privilege when he made the statements and therefore his remarks were not actionable, absent proof of malice and special damages.
At the outset it should be recalled that the cause comes here on a judgment based on a directed verdict at the close of the plaintiff's case. We have held that the power to direct a verdict should be cautiously exercised in order to avoid encroaching on a party's right to a jury trial in a common law action. When we consider the correctness of an order directing a verdict for the defendant at the close of the plaintiff's evidence we necessarily must indulge every reasonable inference from the evidence which is favorable to the plaintiff. In order to support a verdict directed by the trial judge at the close of the plaintiff's evidence it should be clear that there is no evidence whatsoever that could in law support a verdict for the plaintiff. Bryan v. Loftin, Fla.1951, 51 So.2d 724; Hardware Mut. Cas. Co. v. Tampa Electric Co., Fla.1952, 60 So.2d 179, 40 A.L.R.2d 1293.
It is unnecessary to cite extensive authorities to delineate the distinction between words which are actionable per se as contrasted to those actionable per quod. When words are actionable in themselves, or per se, they are such as necessarily import damage and malice is presumed. When the words are slanderous per se, the offended party is not obligated to prove either malice or special damages in order to sustain his cause of action. Commander v. Pedersen, 116 Fla. 148, 156 So. 337; Tip Top Grocery Co. v. Wellner, 135 Fla. 518, 186 So. 219. In the early development of the law of slander spoken words were considered as slanderous per se only when they imputed to the offended party the commission of some indictable criminal offense. The rule has been expanded. In Campbell v. Jacksonville Kennel Club, Fla.1953, 66 So.2d 495, 497, we held:
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...exercise of his lawful business, trade, profession or office; or (d) the other being a woman, acts of unchastity. Teare v. Local Union No. 295, Fla.1957, 98 So.2d 79. The principle defenses to an action upon a publication, libelous, per se, are consent, justification and privilege. The defe......
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