H. LESLIE QUIGG
v.
VANCE W. HELM, THOMAS J. KELLY, ET AL., IN THEIR INDIVIDUAL CAPACITIES AND ALSO AS MEMBERS OF AND COMPOSING A COMMITTEE KNOWN AS CITIZENS' VIGILANCE COMMITTEE, UNINCORPORATED
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Plaintiff Quigg appealed a directed verdict in favor of defendants in a defamation action based on conspiracy. The Florida Supreme Court affirmed, holding that plaintiff failed to prove the conspiracy alleged as the material element of his complaint, and therefore the trial judge properly directed a verdict against him.
The judgment directing a verdict for defendants was proper because plaintiff presented no proof of the alleged conspiracy between defendants, which was the gravamen of his complaint. A plaintiff must recover upon the case made by the declaration, and without evidence supporting the conspiracy alleged therein, plaintiff could not prevail.
“A plaintiff must recover, if at all, upon the case made by his declaration and not upon some other case, made by evidence. However meritorious a case may be, as shown by the evidence, there can be no recovery unless the declaration makes out such a case.”
Establishes the fundamental principle that plaintiff must prove facts alleged in the declaration to recover, regardless of what evidence might show.
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Join FLexlaw to unlock all legal intelligencePlaintiff Quigg filed a seven-count declaration against defendants Helm, Kelly, and others alleging they had conspired together to maliciously publish…
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The writ of error brings for review judgment in favor of defendants pursuant to a directed verdict on trial after the plaintiff had closed the taking of testimony.
The declaration is one declaring on a conspiracy alleged to have been entered into between the defendants by which conspiracy and confederation the defendants “did maliciously contrive, compose, utter and publish of and concerning as a party to said suit a certain false, scandalous, malicious and defamatory libel of the said plaintiff.”
The declaration was in seven counts, but each of said counts is so cast and framed as to allege the conspiracy and confederation between the defendants as a material element of, if not the gravamen of, the offense or tort charged to have been committed by the defendants.
There is no proof in the record of any conspiracy or agreement between the defendants named to utter or publish the alleged defamatory matter complained of. Therefore, the trial judge was warranted upon the closing of the *695plaintiff’s case in directing a verdict in favor of the defendants. The rule is well settled that:
“A plaintiff must recover, if at all, upon the case made by his declaration and not upon some other case, made by evidence. However meritorious a case may be, as shown by the evidence, there can be no recovery unless the declaration makes out such a case.”
South Atlantic Telephone & Telegraph Co. v. Shaw, 83 Fla. 463, 92 Sou. 277; Coons v. Pritchard, 69 Fla. 362, 68 Sou. 225; Dexter v. S. A. L. Ry., 55 Fla. 292, 45 Sou. 887; Fla. Fire & Casualty Co. v. Hart, 73 Fla. 670, 75 Sou. 528.
It is contended here that aside from the fact that the case made by the declaration was not supported by proof it also appears from the case made by plaintiff that the communication was a privileged communication and, therefore, it was necessary, the plaintiff having shown this fact, to then show that the publication was both false and malicious, citing Cooley on Torts, 255, and authorities in note 3; Wieman v. Mabee, 45 Mich. 484, 8 N. W. 71; O’Donaghue v. McGovern, 23 Wend. 26.
It is not necessary, however, for us to decide whether or not the alleged communication was privileged because we have found that the proof submitted did not support the declaration.
The judgment should be affirmed and it is so ordered.
Affirmed.
Ellis, P. J., and Terrell and Buford, J. J., concur.
Whitfield, C. J., concurs in the opinion and judgment.
Davis, J., concurs in the result.
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Regan v. Davis, 97 So. 2d 324 (Fla. 2d DCA 1957)…w 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 Proce…
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Carlton W. Faulk v. Allen, 152 Fla. 413 (Fla. 1943)…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, et al., 99 Fla. 191, 126 So. 157; Quigg v. Helm, et al., 119 Fla. 693, 161 So. 55. Hunter Lyon, Inc., v. W. H. Walker, et al., 152 Fla. 61, 11 So. (2nd) 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,…
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Carter v. Fla. Power & Light Co., 138 Fla. 220 (Fla. 1939)…v. Tampa Electric Co., 82 Fla. 79, 89 So. 352; Florida East Coast Ry. Co. v. Davis, 96 Fla. 171, 117 So. 842; Stover v. Stovall, 103 Fla. 284, 137 So. 249; Biscayne Trust Co. v. Pennsylvania Sugar Co., 103 Fla. 155, 137 So. 147; Quigg v. Helm, 119 Fla. 693, 161 So. 55; Maas Bros. v. Fuller, 121 Fla. 175, 163 So. 470. The above statement of facts taken from plaintiff’s own testimony is sufficient to show that he contributed proximately to whatever injury he may have sustained from collision with the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coons v. Pritchard, 69 Fla. 362 (Fla. 1915)
- Roach v. Keep, 73 Fla. 1048 (Fla. 1917)
- Dexter v. Seaboard Air Line Railway, 55 Fla. 292 (Fla. 1908)
- S. Atl. Tel. & Tel. Co. v. Shaw, 83 Fla. 463 (Fla. 1922)