Opinion
No. 62-250.
October 30, 1962.
Appeal from the Civil Court of Record for Dade County, Boyce F. Ezell, Jr., J.
Leonard H. Rubin and Von Zamft Kravitz, Miami, for appellant.
Norman Schwarz, Miami Beach, for appellee.
Before PEARSON, TILLMAN, C.J., and HORTON and HENDRY, JJ.
The appellant was plaintiff in the trial court and the appellee was defendant. The plaintiff appeals an order dismissing her complaint with prejudice. We reverse.
The complaint alleged false and malicious statements which were defamatory per se made during the progress of a trial in the Small Claims Court in Dade County. It was specifically asserted that the alleged defamatory statements were not relevant or material to the matter being heard in the Small Claims Court.
The allegations were sufficient to state a cause of action under the rule set forth in Myers v. Hodges, 53 Fla. 197, 44 So. 357, wherein it was stated that in order for defamatory words published by parties in the course of judicial proceedings to be absolutely privileged they must be connected with or relevant or material to the cause in hand or subject of inquiry. We are mindful of the limitation upon this rule set forth in Taylor v. Alropa Corporation, 138 Fla. 137, 189 So. 230, to the effect that when said statements are irrelevant, they are privileged if the speaker or writer believed that the words used were relevant and had reasonable or probable cause so to believe.
It does not affirmatively appear from the complaint that the defendant-appellee believed that the words used were relevant or had reasonable or probable cause so to believe. Therefore, such a contention is a matter for defensive pleading to be raised by answer. Accordingly, the judgment of dismissal is reversed and the cause remanded for further proceedings.
Reversed.