Wolfson v. Kirk

• Decision Date: 28 February 1973
• Docket Number: No. 71--962,71--962
• Citation: 273 So.2d 774
• Parties: Louis E. WOLFSON, Appellant, v. Claude R. KIRK, Appellee.
• Court: Florida District Court of Appeals

Page 774

273 So.2d 774

Louis E. WOLFSON, Appellant, v. Claude R. KIRK, Appellee.

No. 71--962.

District Court of Appeal of Florida, Fourth District.

Feb. 28, 1973.

William H. Maness, Jacksonville, for appellant.

Joseph D. Farish, Jr. of Farish & Farish, West Palm Beach, and Ray C. Osborne, Boca Raton, for appellee.

REED, Chief Judge.

This is an appeal from a final judgment consequent on an order of the Circuit Court for Palm Beach County, Florida, which granted defendant's motion to dismiss plaintiff's amended complaint on the ground that the same failed to state a cause of action. The issue before us is whether or not the amended complaint states a cause of action for slander per se.

The amended complaint was filed in the Circuit Court on 8 July 1971. It establishes the facts for purposes of passing on the motion to dismiss. The complaint states in its introductory clause that the plaintiff, Louis E. Wolfson, is referred to in the body of the complaint as 'Wolfson'. The complaint then avers that Wolfson is a financier, businessman and business consultant, and that Hayden Stone, Inc., is a stock Brokerage house which for its customers buys and sells securities on the New York and other stock exchanges. It is then averred that the defendant while Governor of the State of Florida, on October 11, 1970, eleven days before an election in which the defendant was running for relection, spoke in Niceville, Florida, before an audience which included political reporters and a television crew. In the course of this speech, the defendant allegedly stated that he knew the plaintiff and said, 'When I was running Hayden Stone, we invited him (Wolfson) out of the office.' The complaint further alleges that the statement was not true and, '. . . imputes to Wolfson conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession or office . . .'. The complaint further alleged that the statement was intended to defame the plaintiff and was deliberately contrived for defendant's political benefit.

The motion to dismiss asserts that the complaint (a) fails to state a cause of action for slander per se or per quod; (b) omits allegations as to plaintiff's business, occupation and/or reputation at the time the alleged cause of action occurred, and (c) fails to state facts sufficient to identify the plaintiff as the subject of the alleged defamation. We hold that the complaint states a cause of action and that the motion to dismiss should have been denied.

Defamation (libel and slander) may generally be defined as the unprivileged publication of false statements which naturally and proximately result in injury to another. Cooper v. Miami Herald Pub. Co., 1947, 159 Fla. 296, 299--300, 31 So.2d 382, 384; Delacruz v. Peninsula State Bank, Fla.App.1969, 221 So.2d 772, 775. Malice is an essential element of the tort. In Layne v. Tribune Co., 1933, 108 Fla. 177, 146 So. 234, 238, the court said, '. . . Without malice, either express or implied by law, no tort could result from the publication of a defamatory statement concerning another, however untrue it might be.'

The law at an early time recognized a distinction between defamations 'per se' and defamations 'per quod'. The reason underlying the distinction is that some statements are so obviously defamatory, that is damaging to reputation, that the mere publication of them gives rise to an absolute presumption both of malice and damage. See Layne v. Tribune Co., supra.

Apparently some of the early authorities dealing with the law of defamation, developed the notion that Slander would be actionable per se only where the words imputed a crime whereas written defamation, i.e., libel, would be actionable per se where the words covered a greater spectrum of defamatory meanings. See Commander v. Pedersen, 1934, 116 Fla. 148, 154, 156 So. 337, 339. Obviously the reason for limiting slander per se in this fashion, if ever sound, has lost its rational basis in view of the facilities available today for the widespread dissemination of oral communication. Hence it was recognized in Sharp v. Bussey, 1939, 137 Fla. 96, 187 So. 779, that oral communications could be actionable per se where the publication was false and not privileged and was such that, 'its natural and proximate consequences Necessarily caused injury to the plaintiff in his social, official and business relations of life.' (Emphasis added.) That general principle was given more specificity in the case of Campbell v. Jacksonville Kennel Club, Fla.1953, 66 So.2d 495, 497, where the Florida Supreme Court in a slander case stated:

'It is established in most jurisdictions that an oral communication is actionable per se--that is, without a showing of special damage--if it imputes to another (a) a criminal offense amounting to a felony, or (b) a presently existing venereal or other loathsome and communicable disease, or (c) conduct, characteristics or a condition incompatible with the proper exercise Of his lawful business, trade, profession or office, or (d) the other being a woman, acts of unchasity.' (Emphasis added.)

In the later case of Teare v. Local Union No. 295, Fla.1957, 98 So.2d 79, 82, the court in another slander case noted that the categories of slander per se adopted in Campbell v. Jacksonville Kennel Club, supra, constituted an expansion in the law of slander.

The significance of the classification of a communication as actionable per se lies in the fact that its victim need not plead or prove malice (except where a privilege is involved) or special damage because malice and the occureence of damage are both presumed from the nature of the defamation, Sharp v. Bussey, supra; Johnson v. Finance Acceptance Co. of Georgia, 1935, 118 Fla. 397, 159 So. 364. Such a presumption is not an ordinary presumption of fact, but is a presumption of law and is not, therefore, dispelled by the production of evidence. Communications which are not actionable per se may be actionable upon adequate averments of actual damage and express malice. See Layne v. Tribune Co., supra, wherein the court noted that words which are not so obviously harmful that they may be presumed by courts to be damaging and uttered with malice, must be shown by pleading and proof to have been damaging and communicated with malice.

In Adams v. News-Journal Corporation, Fla.1955, 84 So.2d 549, 551, the court noted that the task of testing the effect of the language used is not an easy one because there is no fixed rule that guides to a conclusion. The court reiterated the rule which has been stated in any number of cases:

'. . . The language used will be given neither a mild nor harsh construction but the words will be construed 'in that sense in which they may be understood and in which they appear to have been used and according to the ideas which they were adopted to convey to those who hear them, or to whom they are addressed' . . .'.

Together with the foregoing, the cases also apply the so-called common mind rule which holds that the words used will be construed as the 'common mind' would naturally have understood them. See Diplomat Electric, Inc. v. Westinghouse Electric Supply...