Petition — Fletcher v. Florida Publishing Co.
Supreme Court brief1977
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SS
Supreme Court, U.S,
FILED
APR 11 1977
3u The
Supreme Court of Auited tates = |
Ocroser TERM, 1976
“76-1398
KLENNA ANN FLETCHER,
Petitioner,
FLORIDA PUBLISHING COMPANY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF
THE STATE OF FLORIDA ~—
ELLIS E. NEDER, JR.
GRISSETT, HUMPHRIES & NEDER
801 Blackstone Building
Jacksonville, Florida 32202
(904) 632-2020
Attorneys for Petitioner
April 1977
Page
Citations to Opinions Below .....................55. 1
cau chap ddudteoeneren sep ibhecnbes 2
ERS NT PPT POT Pee TEE ET CEE 2
Constitutional and Statutory Provisions Involved ...... 3
Statement of the Case and Facts ..................... 5
EE SRb cabs bE he ce8sedddecocdescdendaceseecves 10
a £0 cn oe edhenecssdhWerestanncete acne 13
i nie cca consenesecaseee es 13
Silhouette of Death, Photograph and Article... A 1-2
Opinion of the Circuit Court, 4th Judicial Cir-
cuit, In and For Duval County ............ A 3-13
Opinion of the First District Court of Appeal,
EE brink ces unde oencannsseenn A 14-37
Opinion oftheSupreme Court, State of Florida A 38-50
Order of the S Court of the State of
Florida denying Petition for Rehearing .... A 51-52
Cute dtigussnccndebisneddeokaess A 53-55
Meme WO-GIRE Fn. on cc ccccccsccvccceess A 56-59
Respondent’s Suggestion to Certify to the
kt Pee A 60-61
TABLE OF AUTHORITIES
Cases
Cason v. Baskin, 30 So.2d 635 (Fla. 1947) ............ 12
Dietmann v. Time, Inc., 449 Fed.2d 245 (9th Cir. 1971)... 9
Fletcher v. Florida Publishing Co., 40 Fla.Supp. 1, Cir.Ct.,
(1974), rev'd. 319 So.2d 100 (Fla. lst DCA, 1975),
rev'd. 340 So.2d 914 (Fla. 1976) ................ 1, 2
Gertz v. Robert Welch, Inc., 418 US 323, 41 L.Ed.2d 789,
a Oc accesualenens 12
Griswold v. Connecticut, 381 US 484-5, 486, 14 L.Ed.2d
a et a ll
Katz v. United States, 389 US 347, L.Ed 576 (1967) .... 1
Meyer v. Nebraska, 262 US 390, 67 L.Ed. 1042 (1923) .. 11
New York Times Co. v. Sullivan, 376 US 254 (1964) .... 9
Olmstead v. United States, 277 US 438, L.Ed. 944 (1928) 11
Osborne v. United States, 385 US 323, 17 L.Ed.2d 394
BENS <1 3. J es su pend cpemnedseieeeaal ll
Rosenbloom v. Metromedia, 403 US 29, 29 L.Ed.2d 296,
OS hic REINA Mlkasttehe 6, 8, 9
Stanley v. Georgia, 394 US 557, 22 L.Ed.2d 542 (1969) .. 11
Terry v. Ohio,392 US 1, 20 L.Ed.2d 889 (1968) ........ ul
Time v. Hill, 385 US 374, 17 L.Ed.2d 456, (1967) ...... 6, 8
ii
TABLE OF AUTHORITIES (Cont‘d)
Page
Time, Inc. v. Firestone, US, 47 L.Ed.2d 154 (1976) .... 12
Union Pacific Railroad Co. v. Botsford, 141 US 250, 35
es icc davakesdteensespecesdine ll
Other Authority
ED on icuekeceefhsbeeeveseviaeveseves 2, 5
Ts herp icvoveceeete Seeevsssedebsceces 3, 5
U. S. Constitution, First, Fourth, Fifth, Ninth,
Fourteenth Amendments .................. 3, 4, 5, Ll
Iu The
Supreme Court of the United States
Ocroser TERM, 1976
os. ae
KLENNA ANN FLETCHER,
Petitioner,
versus
FLORIDA PUBLISHING COMPANY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF
THE STATE OF FLORIDA
INTRODUCTION
Petitioner respectfully prays that a Writ of Certiorari be
issued to review the opinion and final order of the Supreme
Court of the State of Florida, opinion filed October 7, 1976.
Petiiton for Rehearing denied on January 10, 1977.
1.
CITATIONS TO OPINIONS BELOW
The opinion of the Supreme Court of Florida is reported
at 340 So.2d 914 (Fila. 1976) and is set forth in the Appen-
dix, pages A - 38-50.
The opinion of the First District Court of Appeal, State of
Florida is reported at 319 So.2d 100 (Fla. lst DCA, 1975) and
is set forth in the Appendix, pages A - 14-37.
The opinion of the Circuit Court, Fourth Judicial Circuit,
State of Florida is reported at 40 Fla.Supp. 1 (Cir. Ct., 1974)
and is set forth in the Appendix, pages A - 3-13.
2.
JURISDICTION
Jurisdiction of the Court is invoked pursuant to 28 USC
§1257(3), this being a Petition for Writ of Certiorari, and in
accordance with Rule 19 of the Supreme Court Rules.
The opinion and final order of the Supreme Court of Florida
was entered on October 7, 1976. The Petitioner's Petition for
Rehearing was denied by the Supreme Court on January 10,
1977.
3.
QUESTIONS PRESENTED
(A) Whether the First, Fourth, Fifth, Ninth and Four-
teenth Amendments to the Federal Constitution protect a citi-
zen’s right to privacy against invasion by a newspaper pub-
lishing company?
(B) Whether a newspaper publishing company violates
a homeowner's right to privacy and civil rights (42 USC
1983) where its newspaper photographer and reporter entered
without permission the bedroom of the owner's home and
photographs a silhouette of the homeowner's daughter left
in the bedroom floor as a result of a fire in the home and
the publishing company publishes the photograph of the
silhouette of death and other photographs taken in the home?
(C) Whether the First Amendment of the Federal Con-
stitution permits a newspaper photographer and reporter to
trespass into the sanctity of a bedroom of a private home
3
and invade the privacy of a homeowner by publishing pri-
vate facts occurring in the home and publishing photographs
taken during the wrongful entry?
(D) Whether the State of Florida may adopt a custom
and usage to allow newspaper reporters and photographers
to accompany police officers and fire marshals into the bed-
rooms of the homes of the citizens of th. State of Florida
where there has been a fire to gather information and photo-
graph inside the homes where the newspaper reporters are
not assisting the officials and have not entered with the con-
sent of the owners of the homes and whether such custom
and usage violates the Federal Constitution and Civil Rights
Act, 42 USC 1983?
(E) Whether a fire that occurred in a homeowner's. home,
with the resulting death of her daughter, leaving a silhouette
burned in the bedroom floor of her home, constitutes a matter
of public controversy and interest sufficient to insulate the
publishing company for the acts of its newspaper reporters
and photographers in entering into the homeowner's home
and publishing the photographs taken during the entry with-
out obtaining prior approval of the homeowner?
4
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
This case involves the First, Fourth, Fifth, Ninth and Four-
teenth Amendments to the Constitution of the United States.
This case also involves violation of rights guaranteed by
the Civil Rights Act, 42 USC §1983.
4
Amendment I.
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridg-
ing the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the govern-
ment for a redress of grievances.
Amendment IV.
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seiz-
ures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the per-
sons or things to be seized.
Amendment V.
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of
war or public danger; nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness
against himself; nor be deprived of life, liberty, or property
without due process of law; nor shall private property be
taken for public use, without just compensation.
Amendment IX.
The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.
5
Amendment XIV.
SECTION 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
42 USC $1983.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, sub-
jects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party in-
jured in an action at law, suit in equity, or other proceeding
for redress.
5.
STATEMENT OF THE CASE AND FACTS
Proceedings in the Trial Court.
The Petitioner brought suit in a three-count complaint in
the Circuit Court, Fourth Judicial Circuit, In and For Duval
County, Florida, alleging in Count I of the Complaint an
action for trespass and for invasion of privacy for the wrong-
ful entry into the Petitioner's home by the Respondent pub-
lishing company’s photographers and reporters. Invasion of
the Petitioner's privacy is also sought in Count I for the
intrusion into the Petitioner's private life for the wrongful
publication of the silhouette photograph and other photo-
graphsof the interior of the Petitioner’s home by the Respond-
ent publishing company’s photographers and reporters pub-
lished on the front page of the Florida Times-Union, Septem-
ber 16, 1972 issue (Appendix, pages 1-2). The silhouette was
left by the Petitioner's deceased daughter burned into the
floor of the bedroom in the Petitioner's home as a result of a
fire in the home.
The Respondent answered Count I of the Complaint setting
forth twelve defenses including the defense that the matter
was a news event of great public interest and concern and
protected under the First andFourteenth Amendments to the
United States Constitution, that the right of privacy does not
prevent any publication of the matter which is of general or
public interest citing Time v. Hill, 385 US 374, 17 L.Ed.2d
456 (1967) and Rosenbloom v. Metromedia, Inc., 403 US 29,
29 L.Ed. 2d 296 (1971). Additionally, the defense that the
news media may lawfully enter upon private premises as a
common custom and usage where the entry is for the purpose
of publication of matters of public interest and concern. (Ap-
pendix, Pages 56-59). The issues then, of the Constitutional
and Federal questions were specifically drawn in the Trial
Court.
On September 15, 1972, while the Petitioner was tempo-
rarily absent from the City of Jacksonville, and absent from
her residence on Castellon Drive, a fire broke out in the home,
which caused the death of her daughter, Cindy Sloan Fletcher,
in one of the bedrooms in the home. The silhouette of the
deceased, Cindy Sloan Fletcher, was left in the bedroom floor
of the Petitioner's home due to the said fire and the smoke in
thehome. Immediately after the fire was extinguished, on
September 15, 1972, and while the Petitioner was still tempo-
rarily absent from her home, the Respondent, acting through
7
its newspaper reporters and photograhers, entered the Peti-
tioner’s said home without requesting or receiving prior au-
thorization from the Petitioner, and without the Petitioner's
knowledge or consent.
The entry into the Petitioners home was made ‘~ the
Respondent's reporters after they had been adviseu it a
child’s body had been found in the bedroom on the second
floor of the home. The initial entry was made by the Re-
spondent’s reporters and photographers after the fire had been
extinguished and after the emergency was over. There was
nothing to indicate that the officials, being the fire marshal
and sergeant, had, in the absence of an emergency, any au-
thority to invite or allow the photographers of the Respond-
ent to enter the home, nor was there any contention that the
initial entry into the bedroom of the Petitioner's home was
for the purposes of rendering any assistance to the occupants
nor to the officials. Fire Marshal Henry Edward Melzer, and
Sergeant Paul H. Short of the Sheriff's Department, did not
prevent the newspaper photographers’ initial entry into the
home of the Petitioner, and the said newspaper photograph-
ers initially entered the home knowing that the Petitioner
was not at home and knowing that no authorization was
given for entry other than the fact that the fire marshal and
sergeant did not prevent their entry.
The Respondent's newspaper photographers and reporters
went through the foyer of the home, upstairs to the bedroom
on the second floor, and there began taking photographs, all
while the body of the deceased child of the Petitioner lay
exposed, blackened and burned on the floor. Once the pho-
tographers were in the home, they began having access of
their own to the entire home, wandering through it and
photographing it from inside and out, all without the Peti-
tioner being at home, and without anyone giving them au-
thorization who was in possession or ownership of the home.
Sometime thereafter, the fixe marshal and Sergeant Short
desired a picture of the silhouette of the Petitioner's child's
body, which was left on the floor after the removal of the
body, and instead of calling the evidence technician, decided
to have the picture taken by Bill Cranford of the Respondent's
publishing company. This picture of a sillouette of the body
of the child, taken in the bedroom of the Petitioner’s home,
was taken as part of the official investigation of the sheriff
and fire marshal. Each investigative report is not open to the
public for review, but is an official report and confidential.
The newspaper photographers had not apprised the fire
marshal or sergeant that they were going to publish any of
the photographs that were taken inside the home. Mr. Melzer
and Sergeant Short did not know that the pictures taken in-
side the home were going to be used for commercial purposes,
nor did they know that the silhouette picture was going to
be published on the front page of the September 16, 1972 issue
of the Florida Times-Union.
On Respondent's Motion for Summary Judgment, the Trial
Court entered a Summary Final Judgment on January 4, 1974,
granting the Respondent’s Motion for Summary Judgment in
all respects. (Appendix, pages 3-13).
The Trial Court specifically held that there can be no re-
covery for an invasion of privacy by the publication of a true
story of a matter of public interest which the Court found
existed. Citing Time v. Hill and Rosenbloom.
The Trial Court determined that the fire was a matter of
public interest, but that the media could not be held in dam-
ages for what others call a breach of good judgment, and
based its ruling on the First Amendment.
Proceedings in the First District Court of Appeal.
The First District Court of Appeal reversed the Trial Court
and in an Opinion written by the Chief Judge, Tyre Boyer,
specifically noted the Petitioner did not either impliedly or
expressly invite the newspaper employees into her home, nor
was there anything in the record to indicate that she or per-
sons in like circumstances had acquiesed in persons coming
into her home. There was nothing to indicate that the offi-
cials had, in the absence of an emergency, the authority to
invite others to enter the home and the fire had been extin-
guished prior to the entry into the home and the emergency
was over. The employees of the Respondent did not enter
the home for the purpose of rendering assistance to the occu-
pants, nor to the officials. The First District noted the case
of Dietmann v. Time, Inc., 449 Fed.2d 245 (9th Cir. 1971)
as being a case analogous to the case in fact. The First Dis-
trict, in following Dietmann, held that the First Amendment
has never been construed to accord newsmen immunity from
torts or crimes committed during the course of newsgathing
and is not a license to trespass, to steal or to intrude by elec-
tronic means into the precincts of another’s home. The First
District rejected the Trial Court’s proposition of law that the
New York Times Co. v. Sullivan, 376 US 254 (1964) and
Rosenbloom v. Metromedia (supra) insulated news publish-
ing companies under the First Amendment from tortous gath-
ering of news (the entire opinion of the First District is pro-
vided in the Appendix at pages 14-37).
10
Proceedings in the Florida Supreme Court.
The Supreme Court of Florida reversed the First District
at the urging of the Respondent and Amicus Curiaes from the
major publishing companies in the United States and of
Florida. The Supreme Court of Florida held that where
there was a matter of interest to the public, common custom
and usage permitted governmental officials to invite news-
paper photographers into the sanctity of a home and to take
photographs therein. The Supreme Court of Florida held
that the First Amendments protects a publishing company
in this instance from liability and equated “public contro-
versy” with all controversies of interest to the public, even
if they occur in the bedroom of a private home. “Newsmen”
are now allowed entry into all parts of a home in Florida
where any governmental agency is called to the home. A
Petition for Rehearing was denied by the Florida Supreme
Court on January 10, 1977.
6.
ARGUMENT
The Federal questions are substantial.
The Supreme Court of Florida has decided substantial Fed-
eral questions not previously determined by any Court. The
questions presented have not been previously considered by
the Supreme Court of the United States.
The Respondent, in its suggestion to certify the Supreme
Court, pages 60-61 of the Appendix) states as follows:
“This decision affects not only the public but every
newspaper, every television station, every radio station,
and every aspect of the news media in every part of
“There are important constitutional questions here
under both the Florida and United States Constitu-
“Not only is this question important both to Florida
and nationwide .. .”
The Petitioner would respectfully agree with the Respond-
ent that the questions decided in this case are substantial
Federal questions which involve the Federal Constitution
and have nationwide impact.and should be decided by the
Supreme Court of the United States.
In a line of decisions going back perhaps as far as Union
Pacific R. Co. v. Botsford, 141 US 250, 35 L.Ed. 734, (1891),
the Supreme Court of the United States has recognized that
a right of personal privacy or a guarantee of certain areas or
zones of privacy exist under the Constitution. In varying con-
texts, the Court or individual Justices have found the roots
of that right of privacy in the First Amendment. See Stanley
v. Georgia, 394 US 557, 22 L.Ed.2d 542, (1969); in the Fourth
and Fifth Amendments, see Terry v. Ohio, 392 US 1, 20 L.Ed.
2d 889 (1968), Katz v. United States, 389 US 347, 19 L.Ed2d
576 (1967), Olmstead v. United States, 277 US 438, 72 L.Ed.
944 (1928) (Brandeis, Jr., dissenting); particularly 277 US,
478, in the Bill of Rights, Griswold v. Connecticut, 381 US
at 484-485, 14 L.Ed.2d 510, in the Ninth Amendment, id., at
486, (Goldberg, J., concurring); in the concept of liberty
guaranteed by the first section of the Fourteenth Amendment,
see Meyer v. Nebraska, 262 US 390, 67 L.Ed 1042, (1923).
Privacy, though not expressly mentioned in the Federal
Constitution, is essential to the exercise of the other rights
guaranteed by it. Osborn v. United States, 385 US 323, 17
12
L.Ed.2d 394, (1966) (from separate opinion by Douglas, J.)
The right of privacy has been recognized in the State of
Florida as early as 1947, in Cason v. Baskin, 30 So.2d 635 (Fla.
1947 )
In Gertz v. Robert Welch, Inc., 418 US 323, 41 L.Ed.2d
789, (1974) and in Time, Inc. v. Firestone, .... US ..... 47 L.Ed.
2d 154, (1976), this Court has restricted “public interest” in
libel cases, increasing protection to private citizens inadvert-
ently thrown into the public limelight.
This decision of the Supreme Court of Florida converts the
home and the privacy of the home into a public place at the
whim of the newsmedia and governmental agencies. The de-
cision has such far reaching effect that it has been termed by
the Respondent to be “the most important news media case
before the Court today.” The eleven amicus curiae briefs in
support of the Respondent, filed in the Supreme Court of Flor-
ida, represented the leading publishing companies through-
out Florida and the United States.
In the case at bar, the constitutional questions concerning
privacy and invasion of the rights of privacy should be deter-
mined by the highest court of our land.
13
CONCLUSION
Accordingly, the Petitioner prays that this Honorable Court
grant her Petition for Writ of Certiorari herein, filed to review
the Opinion and Final Order of the Supeme Court of Florida.
Respectfully Submitted,
PAS
Ellis E. Neder, Jr.
Grissett, Humphries & Neder
801 Blackstone Building
Jacksonville, Florida 32202
Attorneys for Petitioner
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that three (3) copies of the printed
petition for Certiorari to the Supreme Court of Florida has
been ished to Harold B. Wahl, Esquire, by hand, this
the ..//’= day of April, 1977.
GRISSETT, HUMPHRIES & NEDER
Ellis E. Neder, Jr.
801 Blackstone Building
Jacksonville, Florida 32202
Attorney for Petitioner
Che Florida Time
“lt TION ER
Florida Cimes-Union
lo-\ ear-Old Girl Killed Here
\
Youne Girl Dies
In Raging Flames «
A-3
IN THE CIRCUIT COURT OF THE FOURTH
JUDICIAL CIRCUIT, IN AND FOR DUVAL
COUNTY, FLORIDA.
KLENNA ANN FLETCHER,
Plaintiff,
vs.
FLORIDA PUBLISHING COMPANY,
a Florida Corporation,
Defendant.
SUMMARY FINAL JUDGMENT
The Plaintiff has sued the Defendant for trespass, invasion
of privacy and intentional infliction of emotional distress. The
court dismissed Count II of the complaint, seeking damages
for an invasion of privacy, without leave to amend and denied
a motion to dismiss Count I seeking damages for trespass. The
Plaintiff filed an amended complaint adding a Count III which
seeks to recover damages for intentional infliction of emotional
distress by the Defendant. To Count III, the Defendant has
filed motions to strike and dismiss.
The Defendant also filed a motion for summary judgment
and at the hearing on all the motions, urged the court to rule
on the motion for summary judgment and to consider, for such
motion, that Count III states a cause of action. The court
therefore deems said motions to dismiss and strike to be
waived by the Defendant. The matters alleged in Counts I
and III have been answered by the Defendant and said causes
are at issue.
The court dismissed Count II of the complaint without
leave to amend. It is abundantly clear to the court that there
A-4
can be no recovery for an invasion of privacy by the publi-
cation of a true story of a matter of public interest which
the court found exists here. There was no allegation of
falsity of the matters alleged to have been published by the
Defendant. See Cason v. Baskin (Fla. 1947) 30 So. 2d 635,
638; Jacova v. Southern Radio (Fla. 1955) 83 So. 2d. 34, at 40;
Benson v. Florida Publishing (Fla. 1971) 262 So.2d. 196, at
37 Fla. Supp. 157; Time o. Hill (1967) 385 U.S. 374; and
Rosenbloom v. Metromedia (1971) 403 U.S. 29, at 43,44,48.
Also, it is settled that one cannot recover for the alleged
invasion of privacy of a deceased person, no matter how
close the relationship of the deceased to the one seeking
damages. See Cordell v. Detective Publications (C.A.6, 1969)
419 F. 2d. 989; 32 Fla. Jur., Torts, Section 10, 1973 Supple-
ment; and Young v. That Was The Week That Was (C.A. 6,
1970) 423 F. 2d. 265.
The court finds there is no real dispute as to the material
facts. Mrs. Fletcher left Jacksonville for New York on Septem-
ber 15, 1972, to visit a friend. She left in Jacksonville her
three young daughters, including seventeen-year-old Cindy.
A “baby sitter” was to spend the nights with the children,
but there was no one with them in the home during the day-
time except a young man who had a room in the house and
whom Mrs. Fletcher described as Cindy's “boy friend.” On
the afternoon of September 15, 1972, while Cindy was alone
in the house, a fire of undetermined origin did large damage
to the home, and Cindy died.
The fire and police departments were called by a neighbor
who discovered the fire, but too late to save the child. A
large group of firemen, news media representatives, and on-
lookers gathered at the scene and on Mrs. Fletcher's property.
A-5
When the Fire Marshal and Police Sergeant Short entered
the house to make their official investigation, they ixvited the
news media to accompany them, as they deposed was their
standard practice. The media representatives entered through
the open door; there was no objection to their entry; they
entered quietly and peaceably; they did no damage to the
property; and their entry was for the purpose of their news
coverage of this fire and death.
The Fire Marsha! desired a clear picture of the “silhouette”
left on the floor after the removal of Cindy’s body. He and
Sergeant Short in their depositions explained that the picture
was important for their respective investigations to show
that the body was already on the floor before the heat of the
fire did any damage in the room. The Fire Marshal took one
polaroid picture of the silhouette, but it was not too clear,
he had no further film, and he requested photographer Cran-
ford to take the “silhouette” picture which was made a part
of the official investigation file of both the Fire and Police.
This picture was not only a part of the investigation but
News Photographer Cranford turned it and his other pictures
over to the defendant newspaper. It and several other pictures
appeared in the news story of the Florida Times-Union on
September 16, 1972.
As to Count I, the question raised by the motion for sum-
mary judgment is one of law as there is no genuine issue of
material fact. The question raised is whether the trespass
alleged in Count I of the complaint was consented to by the
doctrine of common custom and usage.
The law is well settled in Florida and elsewhere that there
is no unlawful trespass when peaceable entry is made, without
objection, under common custom and usage. See Prior v. White
A-6
(1938) 132 Fla. 1, at 19, 180 So. 347; Boston v. Fornalski
(Fla. D.C.A. 4, 1970) 234 So. 2d. 386, 387; 52 Am. Jur.,
Trespass, Section 39; 87 C.J.S., Trespass, Section 49b; Conley
on Torts (4th Edition) Sections 251 and 248; Harper and
James on Torts, Section 1.11; Restatement of the Law of
Torts, Section 167 (d), Trespass, page 403.
In Martin v. Struthers (1943) 319 U.S. 141, 149, the Court
struck down as unconstitutional and “invalid in conflict with
the freedom of speech press” a city ordinance which made it
unlawful trespass to knock on doors and ring doorbells to
distribute literature. In so doing, at pages 147-149 it made
the far reaching pronouncement followed by the Florida Su-
preme Court in Prior vo. White (Fla. 1938) 132 Fla. 1,180
So. 347, 356:
“Traditionally the American law punishes persons who
enter onto the property of another after having been
warned by the owner to keep off. ***We know of no
state which, as does the Struthers ordinance in effect,
makes a person a criminal trespasser if he enters the
property of another for an innocent purpose without
an explicit command from the owners to stay away.”
In McKee v. Gratz (1922) 262 U.S. 127, the Supreme Court
recognized the rule that it was not trespass when under the
“habits of the country” entry was commonly made.
A case which has just been decided illustrates the principles
applicable here. See Cantrell v. Forest City Publishing Com-
pany (Case +73-1081, decided by the United States Court of
Appeals for the Sixth Circuit on September 10, 1973)--Fed.
2d.--. There plaintiff sued for $1,000,000 compensatory dam-
ages, plus another $1,000,000 punitive damages. The news-
paper reporter and photographer, without permission, and
A-7
while the plaintiff widow was away with only children at
home, entered her home, took 50 pictures, and thereafter
published a story and pictures to which Plaintiff objected. In
paragraph (12) of her complaint, a copy of which has been
furnished the court, Plaintiff alleged an “unwarranted trespass”
on her property without her consent, and in “deliberate and
scornful disregard of the rights of plaintiffs to security of
their persons, family and home, and their precious right of
privacy.” There, as here, the trespass was relied on as a basis
There is no force used in the entry and no physical damage
to the property. The publication complained of was a feature
story which, in the words of the court, “placed the Cantrell
family in a bad light because of its inaccuracies and untruths.”
It was a follow up on a bridge collapse where 44 persons
lost their lives, including the deceased husband.
In Cantrell, the court ruled that the “judgment of what is
news worthy must remain primarily the function of the pub-
lisher,” that there was no basis to hold there was no “news-
worthiness,” and that in the absence of “calculated falsehood”
(See St. Amant v. Thompson (1968) 390 U.S. 728, 733)
judgment must be entered for defendant newspaper.
Not only did the Fire Marshal and Detective Sergeant Short
testify it was common custom and usage to permit the news
media to enter under the circumstances here, and of the great
number of times they had permitted it in private homes, but
many affidavits were filed to the same effect, including those
of Duval County Sheriff Carson and Florida Attorney General
Shevin.
Similar affidavits have been filed from the Chicago Tribune;
the ABC-TV News, New York; the Tallahassee Democrat;
A-8
the Pensacola Journal; the Associated Press; the President of
the American Newspaper Publishers Association; the Miami
Herald; United Press International; the Florida Times-Union
and Jacksonville Journal; the Washington Post; TV-12 at
Jacksonville; TV-10 at Miami; TV-4 at Jacksonville; the
New York Daily News; the Milwaukee Journal; the Birming-
ham Post-Herald; the Memphis Commercial-Appeal; the Ma-
con Telegraph; and the Tampa Tribune; all attesting that it
is common usage, custom and practice for news media to
enter private premises and homes under circumstances like
those here.
Plaintiff filed no affidavits except her own; she makes no
attempt to qualify as an expert; and she simply states her
personal belief generally, without going into the situation
involving coverage of a news story of public interest. She
shows no qualifications to make an affidavit on the custom
and usage in such matters.
In Mrs. Fletcher's deposition, she stated she was in New
York at the time of the fire; there was no one at the scene
who objected to the entry; and she makes it clear she does
not contend there was any force used for entry, or any physi-
cal damage done to the premises.
Plaintiff likewise concedes that it was perfectly proper for
the Fire and Police to enter without permission. The Fire and
Police used the picture as part of their official investigation
and actually requested that such picture be taken and would
have made such request even had the Plaintiff been there and
objected. There is no evidence that any restriction was placed
upon the Defendant’s photographer in the use of the photo-
graphs he took at the request of the Police and Fire Marshal.
Numerous affidavits, as above set forth, have been filed by
A-9
the Defendant in support of its motion for summary judg-
ments. All these affidavits attest to the fact that it is common
usage, custom and practice for news media to enter private
premises and homes to report on matters of public interest
or a public event. The court therefore finds that there is no
genuine issue of material fact and that as a matter of law an
entry, that may otherwise be an actionable trespass, becomes
lawful and non-actionable when it is done under common
usage, custom and practice. The court further finds that the
entry complained of in Count I of the Plaintiffs complaint
was one permitted by common usage, custom and practice,
and that the Defendant is entitled to a summary judgment as
a matter of law as to matters alleged in Count I of the Plain-
tiffs complaint.
As to Count III, the court must determine whether there
is a genuine issue of material fact in which event Defendant's
motion for summary judgment will be denied. The matters
alleged in Count III are similar to those in Count I except
there are allegations that the course of conduct by the Defend-
ant’s photographer were such as would not have been followed
by a person of ordinary sensibilities. There were allegations
of the wrongful viewing, inspecting and stepping over the
child’s body, wrongful taking of photographs and the wrong-
ful publiciation of the story and photographs of the child’s
death, all of which it is alleged was done for the purpose
of intentionally inflicting severe emotional distress upon the
Plaintiff and all of which was done wilfully, unlawfully, ma-
liciously, and wantonly and intentionally to inflict severe emo-
tional distress or with the knowledge that severe emotional
distress was substantially certain to be produced to the
Plaintiff.
There ave no allegations that the story and photographs as
A-10
published were false nor has there been any affidavit to con-
trovert the Defendant's affidavits that the photographer never
saw the body of the child except as it was covered by a sheet
as it was being removed on the stretcher nor the affidavit of
the managing editor of the Defendant's newspaper that the
matter was handled in a routine way without personal animus,
bias or prejudice against the Plaintiff or knowledge of the
Plaintiff by the editor or to others handling the story. There
was filed an affidavit by a practicing psychiatrist that a
certain set of facts would have caused severe emotional
distress.
There is no evidence by the depositions of the representa-
tives of the Sheriff's or Fire Department or otherwise that
the photographer acted in any way other than lawfully or
properly or interfered with their task in investigating the fire.
The court has previously determined that the fire was a
matter of public interest. The only recovery in an action for
invasion of privacy for the publication of a story about such
a public interest matter is where there is alleged and proved
a calculated falsehood with the intent to harm through such
falsehood.
While a story of public interest may have the effect of
causing severe emotional distress or embarrassment to persons
involved, the courts have consistently held that the public's
right to know is of paramount importance. The media can-
not be held to answer in damages for what others may call
a breach of good judgment. The law is clear that only limited
sanctions can be placed on the freedom guaranteed by the
First Amendment. Even though the newspaper may anticipate
that persons involved in the publication may suffer severe
emotional distress, and desire money damages, yet under the
A-ll
First Amendment a sanction may not be had which would
prevent the publication. The fear of such a suit or judgment
must not be a sanction which would prevent publication.
Finally, on a story of public interest and concern, the
court may not review the manner in which the news media
obtains its information. See New York Times v. United States
(1971) 403 U.S. 713, the “Pentagon Papers” case, where not-
withstanding the documents had been stolen (see dissent of
Chief Justice Burger at 748-752), it was held that under the
First Amendment the press had the right to publish.
A leading case is that of Liberty Lobby v. Pearson (D.C.-
D.C. 1966) 261 Fel Supp. 726, affirmed C.A.D.C. 1967, 390
Fed. 2d. 489. There Drew Pearson, the columnist, illegally
obtained certain information, but the court said at 261 Fed.
Supp. 726:
“The Court is of the opinion that freedom of the
press that is safeguarded by the Constitution and which
is one of the basic features of American institutions,
is not limited to such information as is personally
obtained by newspaper men by observation or from
official statements, or in any other open way. The
mere fact that a newspaper man obtained information
in a clandestine fashion or in a surreptitious manner
or because someone unguardedly and unwittingly re-
veals confidential information, or even through a breach
of trust on the part of a trusted employee, does not
give rise to an action for an injunction. The courts may
not review the manner in which a newspaper man
obtains his information and may not restrain the publi-
cation of news merely because the person responsible
for the publication obtained it in a manner that may
perhaps be illegal or immoral. It would be a far-
A-12
reaching limitation on the freedom of the press if courts
were endowed with power to review the manner in
which the press obtains its information and could re-
strain the publication of news that is obtained in a way
that the court does not approve. If such were the law,
we would not have a free press; we would have a con-
trolled press. Such, however, is not the law.”
(Underscoring added. )
Mr. Chief Justice Burger, at that time a Judge of the Court
of Appeals, spoke for a unanimous Court in affirming at 390
F. 2d. 489.
See also Cullen v. Grove Press (D.C.N.Y. 1967) 276 F.
Supp. 727; Time v. Geis (D.C.N.Y. 1968) 293 Fed.Supp. 130,
where the Court in headnote 9 relies on the “public interest
in having the fullest information”; and Pearson v. Dodd (C.A.-
D.C 1968) 410 F. 2d. 701, cert. den. 395 U.S. 947 (where,
unlike here, there was a break in and taking of documents).
We quote headnotes 8 and 9:
“Fact that newspaper columnist received copies of
documents knowing that they had been removed with-
out authorization from office of United States senator
did not render columnists liable for invasion of privacy
anced te Seiten?
“In analyzing claimed breach of privacy, injuries
from intrusion and injuries from publication should
be kept clearly separate.”
In order to causally connect the publication of a photograh
and story of a matter of public interest there must be not only
allegations but evidence of wrongdoing and malice which
has not here been produced to oppose the affidavits of Defend-
ant that it had no contact of any kind with the body or to
A-13
show malice. See Kimple v. Riedel (Fla. DCA 2 1966) So.2d
133-437. In the case at bar there is no evidence to counter
the affidavit of the Defendant or to support in any way the
contention that there is a genuine issue of material fact which
would bar the entry of a summary judgment.
Therefore, even considering that Count III states a cause
of action, which the court seriously doubts, the court finds, in
the case at bar, no genuine issue of material fact and that
the Defendant is entitled to a summary judgment as a matter
of law.
Therefore, it is
ORDERED:
The Defendant's motion for summary judgment as to
Counts I and III of the Plaintiff's complaint as amended is
granted and the Plaintiff shall take nothing by this action and
the Defendant shall go hence without day.
DONE AND ORDERED in Chambers at Jacksonville,
Duval County, Florida, this 4th day of January, A.D. 1974.
(Signed) Major B. Harding
Copies: Harold B. Wahl, Esquire (2)
414 Florida Title Building
Jacksonville, Florida 32202
Ellis E. Neder, Jr., Esquire (2)
810 American Heritage Building
Jacksonville, Florida 32202
FLORIDA PUBLISHING
COMPANY, a Florida
corporation,
Appellee.
Opinion filed September 10, 1975.
An Appeal from the Circuit Court for Duval County.
Major B. Harding, Judge.
Ellis E. Neder, Jr.; and Rudolph J. Inman, Jr., for Appellant.
Harold B. Wahl, of Loftin & Wahl, for Appellee.
BOYER, Chief Judge.
While appellant was absent from the State her home lo-
cated in Jacksonville was severely damaged by fire. After
the fire was extinguished the fire marshal and a police ser-
geant entered the residence accompanied by various repre-
sentatives of the news media including a photographer em-
ployee of appellee. The body of appellant’s seventeen-year-old
daughter, clad only in underclothing, was discovered on the
floor of a second-story bedroom. When the body was re-
moved a silhouette remained on the bedroom floor. The
officials, having exhausted their supply of film, requested
appellee’s photographer to make a picture of the silhouette,
such being important to their investigation as it allegedly
demonstrated that the child was on the floor of the bedroom
prior to the fire. Other photographs were taken, some of
which (together with the silhouette picture) were delivered
—
A-15
to the authorities to be made a part of their official file. The
photographs were also delivered to the appellee who pub-
lished in its newspaper an account of the fire together with
several of the photographs including the silhouctte of the
child’s body. Beneath the silhouette picture in large type
appeared the words “Silhouette of Death.” Appellant first
learned the facts surrounding the tragic death of her daughter
by reading the story and viewing the photographs published
by the appeellee.
Appellant's amended complaint was in three counts. The
first count alleged trespass and invasion of privacy; the sec-
ond count alleged invasion of privacy without reference to
trespass and the third count was for the wrongful intentional
infliction of emotional distress, seeking punitive damages.
The learned: trial judge, upon appropriate pleadings, dis-
missed Count II of the complaint with prejudice and granted
a summary final judgment in favor of the defendant (appellee
here) on Counts I and III. This appeal followed.
We will here treat each count separately and will recite
such other facts as are gleaned from the record as may be
found to be material to the specific point being considered.
The trial court, in its order granting the motion for sum-
mary judgment as to Count I, found nat “as a matter of
law an entry, that may otherwise be an actionable trespass,
becomes lawful and non-actionable when it is done under
common usage, custom and practice” and that ‘it is common
usage, custom and practice for news media to enter private
premises and homes to report on matters of public interest
or a public event.” Those findings were based upon numer-
ous affidavits filed by the defendant in support of its motion
for summary judgment.
-
A-16
Historically, trespass has its roots in the criminal law. How-
ever, as the law developed it became also recognized as a
tort, compensible in damages.(1) Thus, at common law, every
entry upon the land of another, except by consent, was
trespass for which satisfaction in damages would lie.(2) There
is now a clear distinction between criminal trespass and civil
trespass. Among other things, the burden of proof is different
as is the ultimate result upon a determination of guilt. A crim-
inal trespass is an offense against the State or one of its politi-
cal subdivisions and is punishable as such. On the other hand,
one found guilty of a civil trespass responds in damages to
the injured party.
In an action for civil trespass the plaintiff is always en-
titled to at least nominal damages,(3) and all damages of
which the act of trespass was the efficient cause and for
which the plaintiff is entitled to recover in any form may be
recovered in such action although in point of time they did
not result until sometime after the act was committed. (4)
Consent is, of course, an absolute defense to an action
of the land or one competent and authorized to give such
consent and provided further that the acts of the party ac-
(1) Leonard v. Nat Harrison Associates, Inc., Fla. App. 2nd 1960,
122 So.2d 432.
(2) See Harris v. Beden, Sup. Ct. Fla. 1944, 154 Fla. 373, 17 So.2d
608, wherein the Court said: Bt A gy tT yh
upon another’s land, except consent, was deemed a trespass
for which satisfaction would tie. Every man’s land was consid-
a of law, to be enclosed and set apart from his
ne gh 4sh ot 4 a eK,
(3) Leonard v. Nat Harrison Associates, Inc., supra.
(4) 52 Am Jur., Trespass, §47 and cases there cited.
A-17
cused of the trespass do not exceed, or are not in conflict with,
the purposes for which such consent was given. (5)
The defense of common custom and usage is but another
way of expressing consent by implication; that is, consent may
be implied from custom, usage or conduct.(6) However, con-
sent to an entry on property by a person named cannot be
extended by inference to justify the unlicensed entry of oth-
ers,(7) and while permission to go upon the premises of
another may be implied from custom, usage or conduct, such
implied consent is necessarily limited to those acts which are
within a fair and reasonable interpretation of the terms of the
grant.(8) In order for custom and usage to constitute implied
consent to a trespass the custom and usage must have been
at the acquiescence of the possessor or others similarly situ-
ated. As an example, the opening of an office to transact
business with the public is a tacit invitation to all persons
having business with the proprietor, and a permission to oth-
ers to enter the place of business. Further, unless a home
owner manifests externally in some way his or her wish to
remain unmolested by the visits of solicitors seeking orders
for merchandise, a solicitor may take custom and usage as
implied consent to call where such custom and usage exists. (9)
In the absence of some external indication to the contrary, cus-
tom and usage would render unactionable a trespass on the
(5) Restatement of the Law of Torts, Chapter 8, §167, et seq.
(6) Restatement of the Law of Torts, Chapter 8, §167, Comment d.;
52 AmJur., Trespass, §39.
(7) 52 Am.Jur., Trespass, §39 and cases there cited.
(8) Boston Manufacturers Mut. Ins. Co. v. Fornalski, Fla. App.
4th 1970, 234 So.2d 386, and authorities therein cited.
(9) 52 Am.Jur., Trespass, §39 and cases there cited. See also Prior
v. White, Sup. Ct. Fla. 1938, 180 So. 347; Martin v. Struthers,
US. S.Ct. 1943, 319 U.S. 141, 87 L.Ed 1313.
A-18
premises of another for the purpose of a social visit, retrieving
young children who had wandered away or to seek the assist-
ance of the possessor at a time of emergency.(10) Thre are
unquestionably other instances in which consent will be im-
plied based on common custom, usage and conduct: The
foregoing examples are merely by way of explanation, and
are not intended to be inclusive.
Appellee relies heavily upon Prior v. White, supra. How-
ever, it is readily apparent that that case has no application
to the facts sub judice. There the Supreme Court of Florida
had for consideration the constitutionality of a municipal ordi-
nance declaring solicitation “in and upon private residences”
a nuisance, constituting a misdemeanor punishable by fine or
imprisonment. The Supreme Court there simply held that
such solicitation was not a nuisance, either private or public,
and that it did not have any relation to the public health,
safety, or general welfare of the community, (a requisite basis
for assertion of the police power) emphasizing that “where
the householder permits solicitors, the city cannot forbid.”
Quoting 2 Cooley on Torts, 4th Ed., page 238, §248, the Court
said:
““Every retail dealer impliedly invites the public to
enter his shop for the examination of his goods, that
they may purchase them if they see fit; the mechanic
extends the like invitation to those who may have occa-
sion to become his customers; the physician and the
lawyer invite them to their respective offices, and so
on * * * No doubt one may visit another's place of
business from no other motive than curiosity, without
(10) Boston Manufacturers Mutua] Insurance Company v. Forn-
alski, supra.
A-19
incuring liability, unless he is warned away by placard
or otherwise. So every man, by implication, invites
others to come to his house as they may have proper
occasion, either of business, or courtesy, for informa-
tion, etc. Custom must determine in these cases what
the limit is of the implied invitation.”
(180 So. 355; emphasis the Court's)
Declaring the offending ordinance unconstitutional the Su-
preme Court emphasized that the defendant, a Fuller Brush
salesman, though going to the home in question without ex-
press invitation, remained at the implied invitation of the
occupant who placed orders for the merchandise which he
was selling. Entry of the home of another without invitation
was not an issue in Prior v. White.
Neither is State v. Blocker(11) of any help. First, that
opinion is the opinion of a single judge of the County Court of
Dade County, and therefore not binding by the doctrine of
stare decisis upon this Court. Second, in that case the de-
fendant newsman, who was being prosecuted criminally, did
not go into the residence of the prosecuting witness. The
holding of that opinion is summed up in the second sentence
thereof: “Joel Blocker did approach Mr. Fernandez’s house,
go on to his property and knock on the door, but this activity
was not extraordinary and is permitted by custom. See Prior
v. White, 132 Fla. 1, 180 So. 347, 356 (1938).” (39 Fla. Supp.
138) In short, the defendant there went to the front door
of the home of the prosecuting witness. He did not go in.
Prior v. White, supra, was properly cited as a precedent for
the granting of the order of dismissal in that case. Such are
not the facts sub judice.
(11) 39 Fla. Supp. 136 (1973)
=
ane
A-20
McKee v. Gratz(12) is also distinguishable upon the same
basis. That case involves a trespass upon unenclosed land in
reliance upon implied consent by custom and usage, not an
intrusion into a private dwelling.
In Martin v. Struthers,3) the United States Supreme
Court had occasion to consider an ordinance, similar to the
ordinance involved in Prior v. White, supra. There the ap-
pellant was convicted in the Mayor's Court and fined for
violating an Ordinance which declared it unlawful for any
person to distribute handbills, circulars or other advertise-
ments, to ring the doorbell, sound the door knocker, or other-
wise summon the inmate or inmates of any residence to the
door for the purpose of receiving such handbills, circulars or
other advertisements. Holding that the ordinance was viola-
tive of the Federal Constitution’s guarantee of free speech
and the press the Supreme Court said:
“* * * Whether such visiting shall be permitted has in
general been deemed to depend upon the will of the
individual master of each household, and not upon the
determination of the community. In the instant case,
the City of Struthers, Ohio, has attempted to make this
decision for all its inhabitants. * * * ” (87 L. Ed. at
page 1316)
Recognizing the distinction between criminal trespass and
civil trespass the writer of the opinion further said:
“Traditionally the American law punishes persons who
enter onto the property of another after having been
warned by the owner to keep off. *** We know of no
(12) US. S.Ct. 1922, 260 US. 127, 67 L.Ed. 167
(13) U.S. S. Ct. 1943, 319 U.S. 141, 87 L.Ed. 1313
A-2l1
state which, as does the Struthers ordinance in effect,
makes a person a criminal trespasser if he enters the
property of another without an explicit command
from the owners to stay away. * * *”
(87L.Ed. 1319)
There is nothing in Martin v. Struthers relating to damages
for a civil trespass as distinguished from a fine for criminal
trespass. Neither does it involve an entry into a house. It is
in every regard very similar to Prior v. White.
Pearson v. Dodd, (14) is cited as authority for appellee’s posi-
tion here. However, the facts are readily distinguishable. In
that case former employees of Senator Dodd, neither of whom
were parties to the suit, with the assistance of two members
of his staff, entered his office without authority, removed
various documents from his files, made copies of them, re-
placed the originals and turned over the copies to columnist
Jack Anderson who was then associated with columnist Drew
Pearson. The defendants Pearson and Anderson thereafter
published articles containing information gleaned from those
documents. The court emphasized that neither Anderson nor
Pearson has trespassed upon Dodd’s premises although they
were aware that the documents had been removed without
authorization. Under those circumstances the court said:
“* * * If we were to hold appellants liable for invasion
of privacy on these facts, we would establish the propo-
sition that one who receives information from an
intruder, knowing it has been obtained by improper
intrusion, is guilty of a tort. In an untried and develop-
ing area of tort law, we are not prepared to go so far.
** *” (410 F.2d 705)
(14) 410 F.2d 701 (D.C. Cir. 1969)
A-22
The court thereupon concluded:
“ * * * Since we have also concluded that appellants’
role in obtaining the information did not make them
liable to appellee for intrusion, their subsequent pub-
lication, inself no invasion of privacy, cannot reach
back to render that role tortious.” (410 F.2d 706; em-
phasis added )
It is apparent from the language emphasized in the fore-
going quote that had the appellants’ role in obtaining the
information constituted actionable trespass then the decision
would have been contra. Indeed, the court appeared to have
anticipated this very case when it said:
“* * * But in analyzing a claimed breach of privacy,
injuries from intrusion and injuries from publication
should be kept clearly separate. Where there is in-
trusion, the intruder should generally be liable what-
ever the content of what he learns. * * * ” (410 F.2d
705; emphasis added )
New York Times Co. v. United States,(15) the infamous
Pentagon Papers case, has no application at all to the
case sub judice. The sole holding of the several separate
opinions constituting that case is that an injunction against
the publication by the newspaper of information wrongfully
obtained will not be enjoined. No such issue is here involved.
Both parties cite Cantrell v. Forest City Publishing Co. (16)
In that case a mother and son brought a diversity action
(15) 403 U.S. 713, 29 L.Ed. 822, 91 S.Ct. 2140
(16) (6th Cir. 1973) 484 F.2d 150, certiorari granted and case re-
versed by the Supreme Court of the United States, Cantrell
v. Forest City Publishing Co., (S.Ct. 1974) 95 S.Ct. 465.
—= —--
A-23
against a newspaper publisher, a photographer and a reporter,
claiming that a feature story in the newspaper discussing the
impact upon their family of the death of their father in a
bridge collapse, which story contained several admitted in-
accuracies and false statements about the family, entitled
them to compensatory and punitive damages under the “false
light” theory of invasion of privacy. The United States dis-
trict Judge entered judgment on the jury’s verdict awarding
damages and the Court of Appeals reversed. The United
States Supreme Court granted certiorari, holding that the
evidence was insufficient to support the jury’s verdict against
the photographer but that the judgment based upon the jury
verdicts should have been sustained as to the reporter and
publisher. The action was bottomed on the “false light” theory
of invasion of privacy and not upon trespass. In that manner
it differed from the action sought to be asserted in Count I
of the plaintiff's complaint sub judice. The Circuit Court
observed that there was little evidence as to whether the
reporter and photographer were invited into the plaintiff's
home. One of the plaintiff's children testified that one had
asked them in and that no one had asked them to get out.
He further testified that the door was open “because the
men were coming.” The court observed:
“On appeal the appellees attempt to treat the entry
of the two defendants into their home without an
invitation when only children were present as the
intrusion for which damages were justified. However,
this was not the theory on which the case was tried
in the District Court.” (484 F.2d 153)
In reversing the judgments the Court of Appeals said:
“ * * * The two newsmen may have been guilty of
trespass against the property of the Cantrells. How-
A-24
ever, the gravamen of this action lies in the claim
that the publication of the article, not the physical
intrusion, damaged the plaintiffs. * * * ~
(484 F.2d 154-155)
On certiorari, the United States Supreme Court reversed
the Court of Appeals as to the reporter and publisher, re-
instating the judgments against them. In so doing, it did
not disturb those portions of the opinion of the Court of
Appeals above quoted but, instead, specifically recited that
“the case went to the jury on a so-called ‘false light’ theory
of invasion of privacy. In essence, the theory of the case
was that by publishing the false feature story about the
Cantrells thereby making them objects of pity and ridicule,
the respondents damaged Mrs. Cantrell and her son William
* * *”
It is abundantly clear therefore that the Cantrell v. Forest
City Publishing Co. decisions have no effect upon a case
bottomed on actual trespass.
Cases have been found wherein custom and usage was
construed to imply consent to enter onto business property
and into business establishments.(17) Cases have also been
found wherein custom and usage was construed to imply
consent for entering onto the private residential property
of another.(18) However, no case has been cited to us by
counsel, nor has independent research revealed any, in which
consent by custom and usage was held to have authorized
(17) Please see citations in footnotes 6, 7, 8, 9, 10 and 11 above.
(18) Boston Manufacturers Mutual Insurance Co. v. Fornalski, supra;
State v. Blocker, supra; Prior v. White, supra.
e+ omnes
A-23
entry into the private dwelling of another. (19)
The law is so well established as to render citations super-
fluous that “every man’s home is his castle”. Even the law
applicable to searches and seizures incident to the commission
of crimes differs as to whether the property involved is a
residence or some other type of property. (20)
Sub judice, it is clear that appellant did not either im-
pliedly or expressly invite appellee’s employees into her home;
nor is there anything in the record to indicate that appellant
(nor others like situated) had theretofore acquiesced in other
tion
took place the porch of the prosecuting witness and not
inside her home. By way of dicta the court there stated “it
has been held that a license may be implied to entered the
house of another, at usual and reasonable hours, and in a
citing Lakin v. Ames, 10 Cush., Mass, 198 and Section 167 of
the :
entries on us occasions, may lead the actor reasonably
to believe the possessor is willing that he shall enter the
land.” ( added) There, it will be noted, it is the
s to object that leads to consent by custom
(20) Dunnavant v. State, Sup. Ct. Fla. 1950, 46 So.2d 871; See also
Swartz, , ‘
filed July 14, 1975.
A-26
persons coming into her home: Therefore there was no basis
for the establishing of an implied consent by custom and usage.
Though it is conceded by appellant that the fire marshal
and police rightfully entered the premises for the purpose
of discharging their official duties, there is nothing to indicate
that those officials had, in the absence of an emergency,
authority to invite others to do so. The fire had been ex-
tinguished prior to the entry complained of. The emergency
was over. There is no contention that appellee’s employee
went into the premises for the purpose of rendering assistance
to the occupants nor to the officials. The established fact that
photographs were taken by appellee’s employee at the request
of the authorities after the entry has no effect on the alleged
initial trespass which would have occurred when appellee's
employee crossed the threshold of appellant’s home. Under
the authorities above cited, in the light of the affidavits filed
by appellee in support of its motion for summary judgment,
custom and usage implied consent to go onto the yard of
appellant’s home and up to the front door: However, the
proofs before the trial court were not sufficient to show
that there was no genuine issue as to he very material fact
as to whether implied consent by custom and usage authorized
entry into the premises, without invitation by appellant or
someone authorized by her.
While custom and usage are matters of fact which may
properly be alleged in affidavits in support of, or in opposition
to, motions for summary judgment, the legal effect of such
facts are matters of law to be resolved by the courts. As a
matter of law the implication of consent by custom and
usage to go onto and into business premises, or onto a yard
or enclosure surrounding a residence, or onto the entrance
of that residence does not extend to an implied consent to
proceed into the dwelling place. If custom and usage are
A-27
to be relied upon as implying consent to enter into a dwelling
place, after an emergency has subsided, as distinguished from
entering onto a yard or a porch or into a common hallway,
then the proofs must relate to that specific point. Affidavits
reciting custom and usage as to emergency situations, or as to
customary conduct involving exterior portions of a private
dwelling may not be extended to include the interior. Said
another way, although custom and usage may be relied upon
as implying consent to enter into a private dwelling after
an emergency has subsided, the proofs of such custom and
usage must establish that specific fact, otherwise an issue is
presented to be resolved by a trier of fact.
As far back as 1961 this Court recognized the right to re-
cover damages for invasion of privacy in a negligence action.
(21) Allowance of such damages as an incident to a trespass
is no extension of that doctrine.
Dietemann v. Time, Inc.(22) involves a factual situation
so analogous to that sub judice that we feel justified in
quoting extensively therefrom. Indeed, to paraphrase rather
than to quote would serve only to lengthen this opinion. There
the plaintiff, appellee, was engaged in the practice of healing
with clay, minerals and herbs for which he made no charges,
but did accept donations. Time, Inc. entered into an arrange-
ment with representatives of the District Attorney’s office
whereby Time’s employees would visit Dietemann at his
bome and obtain facts and pictures concerning his activities.
They gained entrance to the plaintiffs home through a
(21) See Thompson v. City of Jacksonville, Fla. App. Ist 1961, 130
So.2d 105)
(22) 449 F.2d 245 (9th Cir. 1971)
eo oe
~ ~_
A-2
ruse, took pictures by use of a secret camera, and carried
on conversations which were transmitted by a hidden radio
transmitter to a tape recorder in a parked automobile outside
occupied by other employees of Time and an investigator
of the State Department of Public Health. The plaintiff was
thereafter arrested at his home on a charge of practicing
medicine without a license, at which time many pictures
were made by employees of Time of plaintiff and his home.
Also present were newspaper men who had also been invited
by the officials to be present at the time of the arrest. Time,
Inc. published a magazine article concerning Dietemann
together with various photographs. Suit was filed alleging
an invasion of privacy which resulted in a judgment for dam-
ages. In affirming the judgment the Court of Appeals said:
“The appeal presents three ultimate issues: (1) Under
California law, is a cause of action for invasion of
privacy established upon proof that defendant's em-
ployees, by subterfuge, gained entrance to the office
portion of plaintiff's home wherein they photographed
him and electronically recorded and transmitted to
third persons his conversation without his consent as
a result of which he suffered emotional distress? (2)
Does the First Amendment insulate defendant from
liability for invasion of privacy beause defendant's em-
ployees did those acts for the purpose of gathering
material for a magazine story and a story was there-
after published utilizing some of the material thus
gathered? (3) Were the defendant’s employees acting
as special agents of the police and, if so, did their
acts violate the First, Fourth, and Fourteenth Amend-
ments of the Federal Constitution, thereby subjecting
defendant to liability under the Civil Rights Act (42
U.S.C. $1983)? Because we hold that plaintiff, proved
A-29
a cause of action under California law and that the
First Amendment does not insulate the defendant from
liability, we do not reach the third issue. (449 F.2d at
page 247)
’>- s+ 8
“In jurisdictions other than California in which a com-
mon law tort for invasion of privacy is recognized,
it has been consistently held that surreptitious elec-
tronic recording of a plaintiff's conversation causing
him emotional distress is actionable. Despite some
variations in the description and the labels applied to
the tort, there is agreement that publication is not a
necessary element of the tort, that the existence of a
technical trespass is immaterial, and that proof of
special damages is not required. [Numerous citations
omitted] (449 F.2d at page 247)
“Although the issue has not been squarely decided in
California, we have little difficulty in concluding that
clandestine photography of the plaintiff in his den and
the recordation and transmission of his conversation
without his consent resulting in his emotional distress
warrants recovery for invasion of privacy in Califor-
nia. California began developing a common law pri-
vacy tort in 1931 with the decision of Melvin v. Reid,
112 Cal. App. 285, 297 P. 91. Since then, the Califor-
nia Supreme Court has decided a number of privacy
cases in some of which there are indications that Cal-
ifornia would recognize the plaintiffs claim. (449
F.2d at 248)
“* * * The First Amendment has never been construed
to accord newsmen immunity from torts or crimes
A-30
committed during the course of newsgathering. The
First Amendment is not a license to trespass, to steal,
or to intrude by electronic means into the precincts
of another's home or office. It does not become such a
license simply because the person subjected to intrusion
is reasonably suspected of committing a crime.” [Nu-
merous citations omitted] (449 F.2d at page 249)
_ oe
“Defendant relies upon the line of cases commencing
with New York Times Co. v. Sullivan (1964) 376 U.S.
254, 84 S.Ct. 710, 11 L.Ed.2d 686 and extending
through Rosenbloom v. Metromedia, Inc. (1971) 403
U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) to sustain
its contentions that (1) publication of news, however
tortiously gathered, insulates defendant from liability
for the antecedent tort, and (2) even if it is not thus
shielded from liability, those cases prevent considera-
tion of publication as an element in computing dam-
ages.” (449 F.2d at page 249)
“As we have previously observed, publication is not an
essential element of plaintiff's cause of action. More-
over, it is not the foundation for the invocation of a
privilege. Privilege concepts developed in defamation
cases and to some extent in privacy actions in which
publication is an essential component are not relevant
in determining liability for intrusive conduct antedat-
ing publication. (Cf. Nimmer, “The Right to Speak from
Time to Time: First Amendment Theory Applied to
Libel and Misapplied to Privacy’ (1968) 56 Calif. L.
Rev. 935, 947.) Nothing in New York Timés or its prog-
eny suggests anything to the contrary. Indeed, the
A-3l
Court strongly indicates that there is no First Amend-
ment interest in protecting news media from calcu-
lated misdeeds. E.g., Time, Inc. v. Hill, supra, 385
U.S. at 389-390 and 384 n. 9.)” (449 F.2d at pages
449 and 450)
“No interest protected by the First Amendment is
adversely affected by permitting damages for intrusion
to be enhanced by the fact of later publication of the
suffered by a plaintiff when the wrongfully acquired
data are purveyed to the multitude chills freedom of
expression guaranteed by the First Amendment. A rule
forbidding the use of publication as an ingredient of
damages would deny to the injured plaintiff recovery
for real harm done to him without any: countervailing
benefit to the legitimate interest of the public in being
informed. The same rule would encourage conduct by
news media that grossly offends ordinary men.
“The judgment is affirmed.” (449 F.2d at page 250)
Unquestionably the fire in appellant’s home coupled with
the tragic death of her daughter was of obvious legitimate
public interest. That the published matter complained of is
of general public interest has always been considered a de-
fense to a claim of invasion of privacy by publication. Finding
that the matter published was of obvious legitimate public
interest, the publication, per se, was not an invasion of pri-
vacy.(23) However, if the entry by appellee’s employees into
appellant’s home constituted a trespass or “intrusion” it fol-
(23) Pearson v. Dodd, supra.
aR ay
A-32
lows that such intrusion constituted a sufficient basis for the
tort of invasion of privacy, entitling the injured party (appel-
lant here) to such damages incident to the trespass action
as may be proved to have resulted therefrom. (24) As stated in
Pearson v. Dodd:
“We approve the extension of the tort of invasion of
privacy to instances of intrusion, whether by physical
trespass or not, into spheres from which an ordinary
man in a plaintiff's position could reasonably expect
that the particular defendant should be excluded. Just
as the Fourth Amendment has expanded to protect
citizens from government intrusions where intrusion is
not reasonably expected, so should tort law protect
citizens from other citizens. The protection should
not turn exclusively on the question of whether the
intrusion involves a technical trespass under the law
of property. The common law, like the Fourth Amend-
ment, should ‘protect people, not places.” (410 F.2d
701 at page 704)
We do not here hold that a trespass or “intrusion” did in fact
occur sub judice: We simply find that such is alleged in
Count I of the amended complaint and that the proofs before
the learned trial judge were insufficient to resolve the point
by summary judgment.
Count I of the amended complaint seeks punitive damages
in addition to compensatory. Punitive damages are, of course,
properly recoverable when the requisite elements are pres-
(24) Pearson v. Dodd, supra; 52 Am.Jur., Trespass, §47, and cases
therein cited.
A-33
ent.(25) Although not unambiguously, the Supreme Court of
the United States in Cantrell v. Forest City Publishing Co. (26)
distinguished between “actual malice” as established in New
York Times Co. v. Sullivan(27) and the commonlaw standard
of “malice” required to support an award of punitive damages.
In our view the Supreme Court intended to hold in Cantrell
v. Forest City Publishing Co. that under factual situations
as alleged sub judice the commonlaw standard is applicable.
Being so, it is apparent from a reading of the first count of
the amended complaint that plaintiffs allegations met the
tests of the auhorities above mentioned. However, it is equally
apparent that in responding to the defendant's motion for
summary judgment the plaintiff did not rebut by facts under
oath the negative allegations of fact contained in the defend-
ant’s affidavits.(28) Accordingly although we here recognize
that punitive damages are recoverable in a proper case for
trespass resulting in an invasion of privacy, we find from the
record before us that the learned trial judge did not err in
granting a motion for summary judgment in favor of the de-
fendant on the issue of punitive damages in the case sub judice.
As to Count II of appellant’s complaint, a careful reading
thereof reveals that it is no more than a reiteration of the
allegations contained in Count I, absent the allegation of
trespass. There is no allegation of falsity or defamation. Nei-
(25) Winn & Lovett Grocery Co. v. Archer, Sup. Ct. Fla. 1936, 171
So. 214; Cason v. Baskin, Sup. Ct. Fla. ‘1947, 30 So.2d 635; Buie
v. Barnett First National Bank of Jacksonville, Sup. Ct. Fla.
1972, 266 So.2d 657; Campbell v. Government Employees In-
og ee Sup. Ct. Fla. 1974, 306 So.2d 525, reh. den. Feb.
(26) Supp. Ct. Fla. 1974, 95 S.Ct. 465.
(27) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 686
(28) Rule 1.510 RCP
A-34
ther are there any allegations sufficient to bring that count
within the ambit of Cantrell v. Forest City Publishing Co.,
supra. There is nothing in the allegations of that count, nor
does there appear anything in the record-on-appeal, to sug-
gest that by further amendments the count could be amended
to state a cause of action for any claim not encompassed by
the allegations of Count I. It follows that the learned trial
judge was eminently correct in dismissing Count II with
prejudice.
We now turn to a consideration of Count III of appellant's
amended complaint which count seeks damages, compensa-
tory and punitive, for an alleged intentional infliction of emo-
tional distress. Such an action has long been recognized in
Florida and elsewhere.(29) To sustain such an action the com-
plaint must allege conduct exceeding all bounds that could
be reasonably tolerated by society of a nature especially cal-
culated to cause severe emotional distress to a person of ordi-
nary sensibilities and the wrongful act alleged must be such
as to reasonably imply malice or be such that, from the entire
want of care or attention to duty or great indifference to the
person, property or rights of others, such malice may be im-
puted as would justify assessment of exemplary or punitive
damages. The wrongful act giving rise to the cause of action
must also have been done intentionally or in reckless dis-
regard of the rights of others.
Although we find that the allegations of Count III of the
amended complaint sub judice were such as to meet the re-
(29) Kirksey v. Jernigan, Sup. Ct. Fla. 1950, 45 So.2d 188; Korbin
v. Berlin, Fla. App. 3rd 1965, 177 So.2d 551; Kimple v. Riedel,
Fla. App. 2nd 1961, 133 So.2d 437; LaPorte v. Associated In-
dependent, Inc., Sup. Ct. Fla. 1964, 163 So.2d 267; 32 Fla. Jur.,
Torts, §15; Restatement of the Law of Torts, 2nd Ed., §46, 312.
A-35
quirements above mentioned, there is nothing in the record-
on-appeal to support the allegations. On the contrary, the
affidavits filed in support of the motion for summary judgment
negated the allegations of Count III in that regard, and those
affidavits were not rebutted. No issue of material fact having
been demonstrated as to the allegations of Count III of the
amended complaint, the learned trial judge was eminently
correct in entering summary judgment thereon in favor of the
defendant, appellee here. (30)
In summary, we reverse as to compensatory damages as
alleged in Count I and affirm as to punitive damages alleged
in that count. We further affirm as to dismissal of Count II
and the summary judgment as to Count III.
Remanded for further proceedings consistent herewith.
RAWLS, J., CONCURS; McCORD, J., DISSENTS.
McCORD, J. (Dissenting)
I disagree with the ruling of the majority opinion that the
news photographer, in entering the burned home, was a tres-
passer, and that, thus, the photograph published by appellee
and the news story resulting from the entry were an action-
able invasion of privacy. The only photographs taken and
published were of fire damage - none were of deceased or
injured persons. There is no contention that the particular
photograph complained of (the silhouette picture) and the
news story were in any way false or inaccurate. There could,
therefore, be no recovery under the “false-light” doctrine of
invasion of privacy. See Cantrell v. Forest City Publishing
(30) See Kimple v. Riedel, supra.
A-36
Company, ........ U.S. ........, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974).
Thus, there could be no recovery from the publication if the
same photograph had come from a source other than from
the news photographer's entry upon the premises. Any re-
covery in this case must necessarily be based upon trespass,
and, therefore, the only question is whether or not there was
a trespass by the news photographer. The majority opinion
discusses the implied consent doctrine under which a person,
who does not have express consent from the owner or pos-
sessor of premises, may legally enter under circumstances
which infer or imply consent (common usage, custom and
practice). It is my view that the entry in this case was by
implied consent.
It is not questioned that this tragic fire and death were
being investigated by the fire department and the sheriff's
office and that arson was suspected. The fire was a disaster
of great public interest and it is clear that the photographer
and other members of the news media entered the burned
home at the invitation of the investigating officers. (Numer-
ous members of the general public also went through the
burned house.) Many affidavits of news editors throughout
Florida and the nation and affidavits of Florida law enforce-
ment officials were filed in support of appellee’s motion for
summary judgment. These affidavits were to the general
effect that it has been a long-standing custom and practice
throughout the country for representatives of the news media
to enter upon private property where disaster of great public
interest has occurred--entering in a peaceful manner, without
causing any physical damage, and at the invitation of the offi-
cers who are investigating the calamity. The affidavits of law
enforcement officers indicate that the presence of the news
media at such investigations is often helpful to the investiga-
tions in developing leads, etc.
A-37
The affidavits as to custom and practice do not delineate
between various kinds of property where a tragedy occurs.
They apply to any such place. If an entry is or is not a tres-
pass, its character would not change depending upon whether
or not the place of the tragedy is a burned out home (as here),
an office or other building or place. An analysis of the cases
on implied consent by custom and usage, indicates that they
do not rest upon the previous non-objection to entry by the
particular owner of the property in question but rest upon
custom and practice generally. Implied consent would, of
course, vanish if one were informed not to enter at that time
by the owner or possessor or by their direction. But here there
was not only no objection to the entry, but there was an invita-
tion to enter by the officers investigating the fire. The question
of implied consent to news media personnel to enter premises
in a circumstance such as this appears to be one of first im-
pression not only in this jurisdiction but elsewhere. This, in
itself, tends to indicate that the practice has been accepted
by the general public since it is a widespread practice of long
standing. Due to such widespread and long-standing custom,
reason and logic support the application of implied consent
to enter the premises in the case before us. It, therefore, was
not a trespass, and I would affirm the trial court.
A-38
IN THE SUPREME COURT OF FLORIDA
JULY TERM, A. D. 1976
FLORIDA PUBLISHING COMPANY,
a Florida corporation,
Petitioner (Defendant),
V.
KLENNA ANN FLETCHER, ETC.
Respondent ( Plaintiffs ).
CASE NO. 48,372
DCA CASE NO. V-101
Opinion filed October 7, 1976
Writ of Certiorari to the District Court of Appeal, First Dis-
trict
ROBERTS, J.
This cause is before us on petition for writ of certiorari to
review the decision of the District Court of Appeal, First Dis-
trict, in Fletcher v. Florida Publishing Co., reported at 319
So.2d 100 (Fla. App. 1, 1975), which directly conflicts with
Jacova v. Southern Radio and Television Co., 83 So.2d 34
(Fla. 1955), thereby vesting jurisdiction in this Court pursu-
‘ ant to Article V, Section 3(b)(3), Florida Constitution.
The facts supported by the record are succinctly stated in
the summary final judgment of the trial judge who deter-
mined that there was no real dispute as to the material facts.
Respondent, Mrs. Fletcher, left Jacksonville for New York on
September 15, 1972, to visit a friend. She left in Jacksonville
her three young daughters, including seventeen-year-old Cindy.
A-39
A “baby sitter” was to spend the nights with the children,
but there was no one with them in the home during the day-
time except a yo. ng man who had a room in the house and
whom Mrs. Fletcher described as Cindy’s “boy friend.” On
the afternoon of September 15, 1972, while Cindy was alone
in the house, a fire of undetermined origin did large damage
to the home, and Cindy died.
The fire and police departments were called by a neighbor
who discovered the fire, but too late to save the child. A large
group of firemen, news media representatives, and onlookers
gathered at the scene and on Mrs. Fletcher’s property.
When the Fire Marshal and Police Sergeant Short entered
the house to make their official investigation, they invited the
news media to accompany them, as they deposed was the +
standard practice. The media representatives entered through
the open door; there was no objection to their entry; they
entered quietly and peaceably; they did no damage to the
property; and their entry was for the purpose of their news
coverage of this fire and death.
The Fire Marshal desired a clear picture of the “silhouette”
left on the floor after the removal of Cindy’s body. He and
Sergeant Short in their depositions explained that the picture
was important for their respective investigations to show that
the body was already on the floor before the heat of the fire
did any damage to the room. The Fire Marshal took one pola-
roid picture of the silhouette, but it was not too clear, he had
no further film, and he requested photographer Cranford to
take the “silhouette” picture which was made a part of the
official investigation file of both the Fire and Police.
This picture was not only a part of the investigation but
News Photographer Cranford turned it and his other pictures
Rae veween
A-40
over to the defendant newspaper. It and several other pic-
tures appeared in the news story of The Florida Times-Union
on September 16, 1972.
Respondent first learned of the facts surrounding the death
of her daughter by reading the newspaper story and viewing
the published photographs.
Respondent filed an amended complaint against petitioner
alleging (1) trespass and invasion of privacy, (2) invasion
of privacy, (3) wrong intentional infliction of emotional dis-
tress - seeking punitive damages.
The trial court dismissed Count II and granted final sum-
mary judgment for petitioner as to Counts I and III. Relative
to the granting of summary judgment for Petitioner as to Count
I, the trial judge cogently explicated:
“As to Count I, the question raised by the motion
for summary judgment is one of law as there is no
genuine issue of material fact. The question raised is
whether the trespass alleged in Count I of the com-
plaint was consented to by the doctrine of common cus-
tom and usage.
“The law is well settled in Florida and elsewhere
that there is no unlawful trespass when peaceable en-
try is made, without objection, under common custom
and usage. See Prior v. White (1938) 132 Fla. 1, at
19, 180 So. 347; Boston v. Fornalski (Fla. DCA 4, 1970)
234 So.2d. 386, 387; 52 Am. Jur., Trespass, Section
39; 87 CJ.S., Trespass, Section 49b; Conley on Torts
(4th Edition) Sections 251 and 248; Harper and James
on Torts, Section 1.11; Restatement of the Law of Torts,
Section 167 (d), Trespass, page 403.
A-4l
_ “In Martin v. Struthers (1943) 318 U.S. 141, 149, the
Court struck down an unconstitutional and ‘invalid in
conflict with the freedom of speech and press’ a city
ordinance which made it unlawful trespass to knock
on doors and ring doorbells to distribute literature. In
so doing, at pages 147-149 it made the far reaching pro-
nouncement followed by the Florida Supreme Court in
Prior v. White (Fla. 1938) 132 Fla. 1, 180 So. 347, 356:
““Traditionally the American law punishes per-
sons who enter onto the property of another after
having been warned by the owner to keep off. ***
We know of no state which, as does the Struthers
ordinance in effect, makes a person a criminal tres-
passer if he enters the property of another for an
innocent purpose without an explicit command from
the owners to stay away.’
“In McKee wv. Gratz (1922) 262 U.S. 127, the Su-
preme Court recognized the rule that it was not tres-
pass when under the ‘habits of the country’ entry was
commonly made.
ses ee ee
“Not only did the Fire Marshal and Detective Ser-
geant Short testify it was common custom and usage
to permit the news media to enter under the circum-
stances here, and of the great number of times they
had permitted it in private homes, but many affidavits
were filed to the same effect, including those of Duval
County Sheriff Carson and Florida Attorney General
Shevin.
“Similar affidavits have been filed from the Chicago
Tribune; the ABC-TV News, New York; the Tallahas-
A-42
see Democratic; the Pensacola Journal; the Associated
Press; the President of the American Newspaper Pub-
lishers Association; the President of the Radio Tele-
vision News Directors Association; the Miami Herald;
United Press International; The Florida Times-Union
and Jacksonville Journal; The Washington Post; TV-12
at Jacksonville; TV-10 at Miami; TV-4 at Jacksonville;
the New York Daily News; the Milwaukee Journal; the
Birmingham Post-Herald; the Memphis Commercial
Appeal; the Macon Telegraph; and the Tampa Trib-
une; all attesting that it is common usage, custom and
practice for news media to enter private premises and
homes under circumstances like those here.
“Plaintiff filed no affidavits except her own; she
makes no attempt to qualify as an expert; and she
simply states her personal belief generally, without
going into the situation involving coverage of a news
story of public interest. She shows no qualifications to
make an affidavit on the custom and usage in such
matters.
“In Mrs. Fletcher's deposition, she stated she was
in New York at the time of the fire; there was no one
at the scene who objected to the entry; and she makes
it clear she does not contend there was any force used
for entry, or any physical damage done to the premises.
“Plaintiff likewise concedes that it was perfectly
proper for the Fire and Police to enter without per-
mission. The Fire and Police used the picture as part
of their official investigation and actually requested
that such picture be taken and would have made such
request even had the Plaintiff been there and ob-
jected. There is no evidence that any restriction was
A-43
placed upon the Defendant's photographer in the use
of the photographs he took at the request of the Police
and Fire Marshal.
“Numerous affidavits, as above set forth, have been
filed by the Defendant in support of its motion for
summary judgments. All these affidavits attest to the
fact that it is common usage, custom and practice for
report on matters of public interest or a public event.
The court therefore finds that there is no genuine issue
of material fact and that as a matter of law an entry,
that may otherwise be an actionable trespass, becomes
lawful and non-actionable when it is done under com-
mon usage, custom and practice. The court further
finds that the entry complained of in Count I of the
Plaintiffs complaint was one permitted by common
usage, custom and practice, and that the Defendant is
entitled to a summary judgment as a matter of law
as to matters alleged in Count I of the Plaintiff's com-
plaint.”
On appeal, the District Court of Appeal reversed as to the
granting of summary judgment on Count I, stating:
“We do not here hold that a trespass or ‘intrusion’
did in fact occur sub judice. We simply find that such
is alleged in Count I of the amended complaint and
that the proofs before the learned trial judge are in-
sufficient to resolve the point by summary judgment.”
Although recognizing that consent is an absolute defense
to an action for trespass and that the defense of custom and
usage is but another way of expressing consent by implica-
tion - that is consent may be implied from custom, usage or
conduct - the District Court commented that the emergency
A-44
of the fire was over and that there was no contention that
petitioner's employees entered the premises to render assist-
ance, explained that respondent did not either impliedly or
expressly invite petitioner's employees into her home, and
concluded that the proofs before the court were not sufficient
to show that there was no genuine issue of material fact as
to whether implied consent by custom and usage authorized
entry into the premises without invitation by appellant.
As to the other points on appeal, the District Court of Ap-
peal, First District, determined that although punitive dam-
ages are recoverable in a proper case for trespass resulting
in invasion of privacy, the trial judge did not err in granting
summary judgment for petitioner on issue of punitive dam-
ages, held that the trial court correctly dismissed Count II
with prejudice, and correctly granted summary judgment for
petitioner as to Count III.
The District Court erred in reversing summary judgment
for petitioners as to Count I. The trial court properly deter-
mined from the record before it that there was no genuine
issue of material fact insofar as the entry into respondent's
home by petitioner's employees became lawful and non-action-
able pursuant to the doctrine of common custom, usage, and
practice and since it had been shown that it was common
usage, custom and practice for news media to enter private
premises and homes under the circumstances present here.
Judge McCord in his dissenting opinion could not agree
with the majority that the news photographer who entered
the burned out home was a trespasser or that the photograph
published by petitioner and the news story resulting from
the entry were an actionable invasion of privacy. We agree
with and approve the following well-reasoned explication by
A-45
Judge McCord in his dissenting opinion:
“The only photographs taken and published were of
fire damage--none were of deceased or injured persons.
There is no contention that the particular photograph
complained of (the silhouette picture) and the news
story were in any way false or inaccurate. There could,
therefore, be no recovery under the ‘false-light’ doctrine
of invasion of privacy. See Cantrell v. Forest City
Publishing Company, 419 U.S. 245, 95 S.Ct. 465, 42
L.Ed.2d 419 (1974). Thus, there could be no recovery
from the publication if the same photograph had come
from a source ot!ier than from the news photographer's
entry upon the premises. Any recovery in this case
must necessarily be based upon trespass, and, therefore,
the only question is whether or not there was a tres-
pass by the news photographer. The majority opinion
discusses the implied consent doctrine under which a
person, who does not have express consent from the
owner or possessor of premises, may legally enter under
circumstances which infer or imply consent (common
usage, custom and practice). It is my view that the
entry in this case was by implied consent.
“It is not questioned that this tragic fire and death
were being investigated by the fire department and
the sheriff's office and that arson was suspected. The
fire was a disaster of great public interest and it is
clear that the photographer and other members of the
news media entered the burned home at the invita-
tion of the investigating officers. (Numerous members
of the general public also went through the burned
house.) Many affidavits of news editors throughout
Florida and the nation and affidavits of Florida law
enforcement officials were filed in support of appellee’s
A-46
motion for summary judgment. These affidavits were
to the general effect that it has been a long-standing
custom and practice throughout the country for repre-
sentatives of the news media to enter upon private
property where disaster of great public interest has
occurred--entering in a peaceful manner, without caus-
ing any physical damage, and at the invitation of the
officers who are investigating the calamity. The affi-
davits of law enforcement officers indicate that the
presence of the news media at such investigations is
often helpful to the investigations in developing leads,
etc.
“The affidavits as to custom and practice do not
delineate between various kinds of property where a
tragedy occurs. They apply to any such place. If an
entry is or is not a trespass, its character would not
change depending upon whether or not the place of
the tragedy is a burned out home (as here), an office
or other building or place. An analysis of the cases
on implied consent by custom and usage, indicates
that they do not rest upon the previous nonobjection
to entry by the particular owner of the property in
question but rest upon custom and practice generally.
Implied consent would, of course, vanish if one were
informed not to enter at that time by the owner or
possessor or by their direction. But here there was
not only no objection to the entry, but there was an
invitation to enter by the officers investigating the fire.
The question of implied consent to news media person-
nel to enter premises in a circumstance such as this
appears to be one of first impression not only in this
jurisdiction but elsewhere. This, in itself, tends to
indicate that the practice has been accepted by the
A-47
general public since it is a widespread and long-
standing. Due to such widespread and long-standing
custom, reason and logic support the application of
implied consent to enter the premises in the case
before us. It, therefore, was not a trespass, and I would
affirm the trial court.”
(emphasis supplied )
Accordingly, that portion of the decision of the District
Court of Appeal, First District, reversing summary judgment
for petitioner as to Count I is quashed, and the cause is re-
manded for further proceedings consistent herewith.
It is so ordered.
OVERTON, C.J., ADKINS, BOYD and HATCHETT, JJ.,
Concur
SUNDBERG, j., Dissents with an opinion
ENGLAND, J., Did not participate in this decision
SUNDBERG, J., dissenting.
I dissent from the majority opinion. I dissent not because
of the decision reached on merits, but because I cannot con-
scientiously conclude, as does the majority, that there is direct
conflict between the decision of the District Court of Appeal
in the instant case and Jacova v. Southern Radio & Television
Co., 83 So.2d 34 (Fla. 1955). Jacova dealt altogether with
the issue of whether a communications medium has a quali-
fied privilege to publish the name or photo of a person who
has become an “actor” in a newsworthy event. No element
of trespass was presented in that case as it is here. In Jacova
the plaintiff was photographed by television camera during
a police “raid” at a cigar shop located in a hotel.
A-48
As explicated by the majority, the issue sub judice is wheth-
er the trial court erred in entering summary judgment on the
count of the amended complaint which alleged trespass and
invasion of privacy. The District Court of Appeal concluded
that the poofs were insufficient to determine on summary
judgment that there was no trespass based on the affidavits
of ‘custom and usage” utilized to supply the implied consent
to the entry found by the trial judge. The opinion below ex-
pressly recognized the principle of Jacova with respect to
the privilege to publish matters of legitimate, general public
interest without being subject to a claim of invasion of pri-
vacy:
“Unquestionably the fire in appellant’s home coupled
with the tragic death of her daughter was of obvious
legitimate public interest. That the published matter
complained of is of general public interest has always
been considered a defense to a claim of invasion of
privacy by publication. Finding that the matter pub-
lished was of obvious legitimate public interest, the
publication, per se, was not an invasion of privacy.
However, if the entry by appellee’s employees into
appellant's home constituted a trespass or ‘intrusion’
it follows that such intrusion constituted a sufficient
basis for the tort of invasion of privacy, entitling the
injured party (appellant here) to such damages inci-
dent to the trespass action as may be proved to have
resulted therefrom. . . .”
(Footnotes omitted )
Fletcher v. Fla. Publishing Co., 319 So.2d 100, 111
Fla. Ist DCA 1975).
It might be asserted that there is conflict on the issue of
trespass with the decision of this Court in Prior v. White, 132
A-49
Fla. 1, 180 So. 347 (1938). The Prior case dealt with the
constitutionality of a municipal ordinance declaring solicita-
tion “in and upon private residences” a nuisance. As pointed
out by the majority below, the opinion discussed the principle
of implied consent supplied by custom and usage but in the
context of the city’s exercise of its police power to declare
certain conduct a nuisance. The District Court of Appeal
opinion carefully discussed and distinguished the Prior deci-
sion as not being determinative of the trespass issue sub judice.
Fletcher v. Fla. Publishing Co., supra, at 105.
Judge McCord in dissenting from the majority opinion be-
low recognized that this is a case of first impression when he
stated, “The question of implied consent to news media per-
sonnel to enter premises in a circumstance such as this appears
to be one of first impression not only in this jurisdiction but
elsewhere.” 319 So.2d 100, 113 at 114.
There is little doubt in my mind that this case is one of
great public interest which would justify consideration by
this Court. Nonetheless, our jurisdiction is circumscribed by
Article V of the Constitution, and it is the function under
our constitutional scheme of the district courts of appeal to
initiate review by this Court of questions of great public in-
terest through certification. See Article V, Section 3(b)(3),
Florida Constitution.
As so aptly stated by Justice Drew in Fla. Power & Light
Co. v. Bell, 113 So.2d 697, 699 (Fla. 1959):
“, . . Although the question at hand is not whether
certiorari should be granted but whether the case is
one within the express limitations of our constitutional
provisions, the same principals of division of appellate
jurisdiction were plainly operative in the drafting of
our amended judiciary article and must influence any
ke er er Po Pn ere |
A-50
interpretation of its terms. The constitutional objectives
can be achieved and the creation of the district courts
justified only if we recognize that the primary func-
tion of this Court, particularly in the area of ‘conflicts’
here involved, is to stabilize the law by a review of
decisions which form patently irreconcilable prece-
dents. . . .”
Finding no decisional conflict and the absence of certifica-
tion of the question to this Court by the District Court of
Appeal, First District, I would discharge the writ for lack of
jurisdiction.
A-5l
IN THE SUPREME COURT OF FLORIDA
MONDAY, JANUARY 10, 1977
FLORIDA PUBLISHING COMPANY,
a Florida corporation,
Petitioner (Defendant),
vs.
KLENNA ANN FLETCHER, ETC.,
Respondent (Plaintiffs).
On consideration of the Petition for Rehearing filed by
Respondent Kay Fletcher and Reply thereto, it is ordered that
said petition is denied.
OVERTON, C.J., ADKINS, BOYD, AND HATCHETT, JJ.,
AND ROBERTS, RET. J., CONCUR ;
SUNDBERG, J., DISSENTS
A True Copy
TEST:
/s/ SID J. WHITE
SID J. WHITE
Clerk Supreme Court.
Y,CC: Hon. Raymond E. Rhodes, Clerk
Hon. Major B. Harding, Judge
Hon. Rudolph J. Inman, Jr.
Hon. Ellis E. Neder, Jr.
Hon. Harold B. Wahl with copy for Messrs, Daniel, Feagin,
Walters
Hon. George D. Gabel, Jr.
Re Se ee
A-52
Rogers and Wells, Hon. Richard N. Winfield,
Hon. Betty B. Robbins
Isler, Higby, Brown & Smoak, Hon. Charles S. Isler, Jr.,
Hon. George P. Daniels
Hon. William C. Ballard
Hen. Ted R. Manry, III
Hon. J. Laurent Scharff
Mr. A. A. Fredrickson
PAUL & THOMSON, Hon. Dan Paul, Hon. Sanford L. Bohrer
FLEMING, O’BRYAN & FLEMING, Hon. John W. Fleming,
Hon. Rex Conrad, Hon. Paul Regensdorf
KIRKLAND & ELLIS, Hon. Don H. Reuben, Hon. Lawrence
Gunnels, Hon. Samuel Fifer, Hon. James A. Klenk
Hon. William G. Mateer
AUSLEY, McMULLEN, McGEHEE, CAROTHERS AND
PROCTOR
Hon. DuBose Ausley, Hon. C. Gary Williams
Hon. Robert L. Shevin, Hon. James D. Whisenand
Hon. Sharyn L. Smith
A-53
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA.
NO. 73-3374 DIVISION “L”
KLENNA ANN FLETCHER,
a/k/a KAY FLETCHER,
Plaintiff,
vs.
FLORIDA PUBLISHING COMPANY,
a Florida corporation,
| Defendant.
AMENDED COMPLAINT FOR TRESPASS, INVASION
OF PRIVACY, AND INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS
The plaintiff, Klenna Ann Fletcher, a/k/a Kay Fletcher
(hereinafter “Kay Fletcher”), sues the defendant Florida
Publishing Company, a Florida corporation and alleges:
COUNT I
1. This is an action for compensatory damages in excess
of the sum of $5,000.00, exclusive of interest and costs and
for punitive damages in the amount of $1,000,000.00.
2. At all times hereinafter mentioned, the plaintiff, Kay
Fletcher, was the owner of and was in lawful possession of
that certain home located at 2743 Castellon Drive, Jackson-
ville, Duval County, Florida, which was used and occupied
as the family residence of the plaintiff, Kay Fletcher and
her children and particularly her child, Cindy Sloan Fletcher.
3. At all times hereinafter mentioned, the defendant, Flor-
A-54
ida Publishing Company, is a Florida corporation, having its
place of business at Jacksonville, Florida and is the owner
and publisher of “The Florida Times Union” newspaper.
4. On September 15, 1972, while the plaintiff was tem-
porarily absent from the City of Jacksonville and absent from
her residence on Castellon Drive, a fire broke out in the home
which caused the death of the plaintiffs daughter, Cindy
Sloan Fletcher, in one of the bedrooms in the plaintiff's home.
The silhoutte of the deceased, Cindy Sloan Fletcher, was left
on the bedroom floor of the plaintiff's home, due to the said
fire and the smoke in the home.
5. Immediately after the fire was extinguished on Sep-
tember 15, 1972, and while the plaintiff was still temporarily
absent from her home, the defendant Florida Publishing Com-
pany, acting through its agents and employees, who were act-
ing within the scope of their employment, authority and
agency, did wrongfully enter the plaintiff's said home with-
out requesting or receiving prior authorization from the plain-
tiff and without the plaintiff's knowledge or consent. Such
wrongful entry and trespass was made by the defendant's
agents and employees for the purpose of taking photographs
of the silhouette left by the body of the plaintiff's daughter,
Cindy Sloan Fletcher, on the bedroom floor in the plaintiff's
home, as evidenced by attached Exhibit “A” and Exhibit “B”
and Exhibit “C” filed in this cause.
6. (a) Said wrongful entry into the plaintiffs home and
the taking of photographs in the bedroom of the plaintiff's
home constituted a trespass and an invasion of the privacy
of the plaintiff's home and an invasion of the plaintiff's pri-
vacy.
(b) The defendant ratified, adopted and confirmed the
A-55
actions of its agents and employees alleged herein and the tres-
pass an intrusion alleged herein by the defendant publishing,
without the plaintiff's consent the photograph and article in
the newspaper, Exhibit “C” filed in this cause.
7. The defendant's wrongful acts as alleged herein, wrong-
fully entering the plaintiff's home and trespassing therein and
invading the privacy of the plaintiffs home and the plain-
tiff's privacy were done willfully, unlawfully, malliciously and
with a total and wanton disregard for the plaintiff's rights and
the plaintiff's feelings.
8. By reason of the defendant’s said wrongful acts as al-
leged herein, the plaintiff has been deprived of her right of
privacy and of her right to the exclusive use and possession
of her home, the plaintiff has been subjected to mental and
physical suffering, the plaintiff has become frightened, nerv-
ous and upset, the plaintiff has been made to feel insecure
and unsafe in her said home, the plaintiff has suffered and
been subjected to extreme humiliation and public ridicule
and the defendant’s wrongful acts have caused the plaintiff
severe mentai and emotional distress.
WHEREFORE, the plaintiff, Kay Fletcher, demands judg-
ment against the defendant Florida Publishing Company, a
Florida corporation, for compensatory damages in excess of
$5,000.00 and for punitive damages in the sum of $1,000,000.00
A-56
IN THE CIRCUIT COURT OF THE FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA.
Civil Action No. 73-3374-CA
Division “L”
KLENNA ANN FLETCHER,
Plaintiff,
vs.
FLORIDA PUBLISHING COMPANY,
a Florida corporation,
Defendant.
ANSWER TO COUNT I OF
COMPLAINT
Now comes the defendant and, subject to its motions herein,
files this Answer to plaintiffs complaint, Count I:
First Defense
Said Count states no claim on which relief may be had
against defendant.
Second Defense
There is no valid claim for trespass or invasion of privacy
here. By custom and usage, the news media may lawfully
enter upon private premises where an event of public interest
and concern takes place, when they do so peacefully, without
force, without objection, do no physical damage to such prem-
ises, and the entry is open and for the purpose of publication
on such matter of public interest and concern. This is what
A-57
defendant’s employee did on this occasion.
Third Defense
Defendant's photographer Cranford was invited into the
house by the Fire Marshal and police who were investigating
the fire and death, he accompanied them, and he was spe-
cifically requested by the Fire Marshal to take, and did take,
the silhouette picture, which the Fire Marshal and police
advised was important to their investigation of the fire and
its origin.
Fourth Defense
Bill Cranford, the photographer who took the silhouette pic-
ture, entered the premises along with, and at the invitation
of, the public fire and police officers investigating death and
possible arson. Cranford took the silhouette picture at the
specific request and direction of such public fire and police
officers as part of their official investigation, such picture is
a part of the official investigation file, and Cranford was the
agent of such public officers. The entry of the public fire and
police officers was for a lawful purpose and was not trespass,
and the entry of Cranford with them was likewise not a tres-
pass.
Fifth Defense
No unreasonable restraints may be put upon the working
news reporter and photographer in their coverage of a matter
of public interest and concern such as that disclosed by the
complaint and its attached exhibit here. To hold the defend-
ant liable for the type of peaceful and accustomed entry here
would be an unconstitu’ional prior restraint on publication
under the First and Fourteenth Amendments to the United
States Constitution.
Ven 8 ne a!
Pe he Ae,
A-58
Sixth Defense
It is standard and accepted custom, usage and procedure,
in the public interest, and not trespass, for representatives of
the news media to enter upon private premises where the
Fire Department has just extinguished a fire, particularly
when the fire is of mysterious origin, a death has resulted,
the authorities are investigating possible arson, and the news
media can enter peacefully, openly, and without objection,
and in company with the fire and police officers.
Seventh Defense
There are no sufficient facts alleged or shown to justify
the recovery of punitive damages.
Eighth Defense
As to the allegations of Count I, defendant admits para-
graphs 3 and 4 and denies all other allegations of said Count.
Ninth Defense
The right of privacy does not prevent any publication of
matter which is of general or public interest, and the publi-
cation here came within that category. See Cason v. Baskin
(Fla. 1947) 30 So.2d. 635, 638; Jacova v. Southern Radio (Fla.
1955) 83 So.2d 34, at 40; Benson v. Florida Publishing Com-
pany (Fla. 1971) 262 So.2d. 196, where this Court entered
up summary judgment for the newspaper at 37 Fla.Supp. 157;
Time v. Hill (1967) 385 U.S. 374; and Rosenbloom v. Metro-
média (1971) 403 U.S. 29, at 43, 44, 48.
Tenth Defense
Plaintiff may not sue for the invasion of privacy of a de-
ceased person regardless of how close the relationship.
A-59
Eleventh Defense
(a) There was no forced entry here, the entry was peace-
able, quiet and open, and there was no physical damage done.
(b) The courts may not review the manner in which a
newspaperman obtains his informa tion, and may not restrain
the publication of news, or impose prior restraint upon such
publication, or impose damages for such publication, merely
because the person responsible for the publication obtained
it in a manner that may perhaps be illegal or immoral; par-
ticularly when the matter is of general or public interest; and
defendant alleges the publication here was of such general
and public interest.
Twelfth Defense
Even if there were trespass here, which defendant denies,
there was no force, surreptitious entry, deception, use of hid-
den electronic equipment, or other similar action, or actual
damage, plaintiff's damages would be limited at the outside
to nominal damages, and there is no claim in good faith of
sufficient damages to invoke the jurisdiction of this Court.
LOFTIN AND WALL
By:
By: /s/ HAROLD B. WAHL
Attorneys for Defendant.
Suite 414,
Florida Title Building,
Jacksonville, Florida
32202.
A-60
IN THE DISTRICT COURT OF APPEAL,
FIRST DISTRICT, STATE OF FLORIDA.
Case No. V-101
KLENNA ANN FLETCHER,
a/k/a KAY FLETCHER,
Appellant,
vs.
FLORIDA PUBLISHING COMPANY,
a Florida corporation,
Appellee.
SUGGESTION TO CERTIFY TO THE SUPREME COURT
Without prejudice to its Petition for Rehearing, Appellee
(Defendant) respectfully suggests that this Court certify to
the Supreme Court of Florida under Florida Appellate Rule
2.1(a)(5)(b) and Article V, Section 3(3) of the Florida Con-
stitution, that the decision here passes upon a question of
great public interest, for the following reasons:
1. This decision affects not only the public but every news-
paper, every television station, every radio station, and every
aspect of the news media, in every part of Florida. It involves
the public’s access to news, and the right to know what goes
on in matters of public concern, as shown by the affidavits
filed herein. Accordingly, it necessarily involves a most im-
portant question of statewide significance.
2. There are important constitutional questions here under
both the Florida and United States Constitutions.
3. Not only is this question important both to Florida and
nationwide, but the depositions taken by plaintiff (when the
A-61
witnesses were sworn as witnesses for the plaintiff) of Homi-
cide Sergeant Short and Fire Marshal Melzer reflect that
Short has personal knowledge of several dozen situations
where the news media went into private homes in Duval
County, and Fire Marshal Melzer has personal knowledge of
over a hundred occasions where the news media went into
private homes and bedrooms in Duval County, under a com-
mon custom, usage and practice for the news media to so
enter peacefully and without objection, along with public
officials investigating fires, arson, or crimes, to report on such
matters of public interest. Here there was an ongoing inves-
tigation of death by fire and suspected murder by arson.
4. No one has shown where there has heretofore been any
question as to such custom and practice.
WHEREFORE, for the foregoing reasons, we respectfully
suggest that it is clear that this decision has passed on a
question of the greatest public interest throughout the State
of Florida and one that should be passed upon by the highest
court in this State so that the rule of law will be uniform
throughout Florida.
Appellee (Defendant) therefore suggests that this Honor-
able Court certify to the Supreme Court of Florida that the
decision passes upon a question of great public interest.
WAHL AND GABEL
By: ..
HAROLD B. WAHL
Attorneys for Defendant-Appellee.
Suite 405,
Florida Title Building,
Jacksonville, Florida
32202.
SA ee NO CES OE A ee een eee
A - 62
I HEREBY CERTIFY I have this September 23, 1975,
mailed a copy of the foregoing to Rudolph J. Inman, Esquire,
2229 Gulf Life Tower, Jacksonville, Florida 32207, and to
Ellis E. Neder, Jr., Esquire, 803 Blackstone Building, Jack-
sonville, Florida 32202, attorneys for the plaintiff.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.