Tip Top Grocery Co. v. Wellner

• Decision Date: 14 November 1938
• Citation: 186 So. 219,135 Fla. 518
• Parties: TIP TOP GROCERY CO. v. WELLNER et al.
• Court: Florida Supreme Court

186 So. 219

135 Fla. 518

TIP TOP GROCERY CO. v. WELLNER et al.

Florida Supreme Court

November 14, 1938

Rehearing Denied Jan. 3, 1939.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by Catherine Wellner, joined by her next friend and husband Stanley V. Wellner, against the Tip Top Grocery Company for slander. A verdict for $2,000 was returned for plaintiffs. The trial court ordered the filing of a remittitur of all recovery in excess of $600, or in the alternative a new trial. A judgment for $600 was entered for plaintiffs, and defendant brings error.

Judgment affirmed.

BROWN J., dissenting.

On Petition for Rehearing.

COUNSEL Wiseheart & Wiseheart and Knight & Green, all of Miami, for plaintiff in error.

Price &amp Price and Arthur F. Bauer, all fo Miami, for defendants in error.

OPINION

CHAPMAN Justice.

This case is here on writ of error to a final judgment for the plaintiff below entered by the Circuit Court of Dade County Florida. The verdict of the jury was for the plaintiff in the sum of $2,000 and the trial court, in its order denying a motion for a new trial, ordered the filing of a remittitur by the plaintiff of all the recovery in excess of the sum of $600, and upon a failure to do so a new trial would be granted. The judgment for the plaintiff was entered in the sum of $600 by the trial court and the defendant below seeks in this Court a reversal of said judgment. The parties will be referred to in this opinion as plaintiff and defendant.

The case was tried on counts 2 and 3 of the declaration, viz.:

'II. That on or about the 7th day of January, 1935, that the plaintiff, Catherine Wellner, approached the bread counter of the defendant, Tip Top Grocery Company, a corporation, in the store of the defendant at No. 27 N.W. 5th Street, Miami, Florida, and inquired of one Ruth Arrant, an employee of the defendant working at the bread counter for the plaintiff which the plaintiff had theretofore ordered, whereupon the said Ruth Arrant falsely and maliciously spoke and published of and concerning the plaintiff the following words, to-wit: 'You did not pay for the bread you got Saturday.' Where upon the said Ruth Arrant continued to repeat the said accusation in a high and accusing tone of voice in the presence and hearing of divers persons within the said store, meaning and intending thereby to charge the plaintiff with the larceny of the bread on the preceding Saturday; that by reason of such accusation, the plaintiff was greatly damaged and prejudiced in her name, fame, credit and reputation, and suffered and endured and will continue to suffer and endure mental and physical pain as a result of the said accusations; that by reason of said accusations the plaintiff was greatly humiliated and embarrassed in the presence of divers and sundry persons, and as a result thereof has been greatly damaged in the sum of $10,000.00.

'III. Plaintiff further sues the defendant in the third count, for that, heretofore, towit, on the 7th day of January, 1935, the Tip Top Grocery Company, a corporation, was engaged in the business of selling groceries and other food supplies to the public in its store building located at No. 27 N.W. 5th Street, Miami, Florida; that on said day and date, the plaintiff, Catherine Wellner, went into the store aforesaid to purchase bread which she had theretofore requested the plaintiff to hold for her, and inquired of one Ruth Arrant, a clerk and employee of the defendant in the bakery department of said store for the bread which was to be held for the plaintiff. Whereupon the said Ruth Arrant, working within the line of her duty and the scope of her employment, then and there did publish of and concerning the plaintiff a certain false and malicious libel, to-wit, 'You did not pay for the bread you got Saturday.' meaning thereby to charge the plaintiff with the larceny of the bread which she had purchased on the preceding Saturday; that upon the charge being made, the same was denied by the plaintiff, whereupon the said Ruth Arrant, in a high tone of voice that could be heard throughout the store, repeated the accusations in such a manner and tone as to call the attention of divers and sundry persons then in the store to the such accusations, and in the presence and hearing of divers persons within the store as aforesaid, did repeat the said accusations, meaning thereby to charge this plaintiff as being dishonest and a thief; that as a direct result of the act of said accusation, the plaintiff, Catherine Wellner, is greatly prejudiced in her good name, fame, credit and reputation, and has suffered and endured, and will continue to suffer great mental pain and anguish, humiliation and embarrassment caused by reason of the malicious speaking of the libel aforesaid. Wherefore, plaintiff sues and claims damages in the sum of $10,000.'

The case went to trial on the plea of not guilty to counts 2 and 3 of the declaration, supra, and a third plea to the 2nd and 3rd counts to the effect that the alleged slanderous words were spoken by its employee in the usual course of business. Another plea was to the effect that the words spoken were in good faith and without malice and were true, and another plea was to the effect that the words spoken were in the usual course of business for good motives and were true.

It is contended here by the plaintiff in error, defendant below, that counts 2 and 3 fail to state a cause of action. The words alleged to have been used by an employee of the defendant being: 'You did not pay for the bread you got Saturday', were said in a loud and accusing voice in the defendant's grocery store where it could be heard by those present. The words are per se slanderous and from their use it may be implied that the plaintiff committed the crime of larceny by taking the bread. If the publication is false and not privileged and the proximate consequence is to injure a person in his personal, social, official or business relations in life, wrong and injury are presumed. In the case of McClellan v. L'Engle, 74 Fla. 581, text 588, 589, 77 So. 270, text 272, this Court said:

'A civil action for libel will lie when there has been a false and unprivileged publication which exposes a person to distrust, hatred, contempt, ridicule, or obloquy, or which causes such person to be avoided, or which has a tendency to injure such person in his office, occupation, business or employment. If the publication is false and not privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his personal, social, official, or business relations of life, wrong and injury are presumed or implied

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