GODBOLD, Circuit Judge:
The defendant, Manhattan Fire & Marine Insurance Co., was granted summary judgment. James P. Caswell, plaintiff, appeals. This Florida diversity case arose out of an allegedly libelous report published by the National Board of Fire Underwriters (now the American Insurance Association) to various insurance companies.
The district court granted summary judgment on the grounds that the report was not libelous per se
The report was published following a fire which destroyed a portion of Caswell's restaurant in DeFuniak Springs, Florida, and contained a detailed account of an investigation of the cause of the fire. The report concluded:
The complaint alleged the report was libelous in that it accused plaintiff of committing arson and of lying. Defendant's answer denied the libelous nature of the report and raised the affirmative defense of privilege. In the course of pre-trial discovery plaintiff sought a subpoena duces tecum directing the Chief Deputy Fire Marshal of the State of Florida to produce all records on Mr. and Mrs. Caswell. The district court granted the Fire Marshal's motion to quash the subpoena, holding that any information in his files of an investigatory nature is privileged and immune to the discovery process.
Of the several errors assigned on appeal we consider three to merit discussion: whether the report was libelous per se, whether the publications alleged in the complaint were privileged, and whether the district court erred in granting the Fire Marshal's motion to quash.
It is libelous per se under Florida law falsely to accuse another of the commission of a crime. LeMoine v. Spicer, 146 Fla. 758, 1 So.2d 730 (1941); see Richard v. Gray, 62 So.2d 597 (Fla. 1953) (en banc). The district court found the report summarized the physical evidence and statements from witnesses tending to show the fire was deliberately set and that plaintiff had an opportunity to set it and a motive for doing so. The court concluded, however, "the report contains the investigator's conclusion that suspicion is directed toward
Exercising our best judgment to determine what the courts of Florida would hold had they, rather than we, been presented this question,
Although the investigator who authored the report concluded only that under the circumstances suspicion was directed toward the plaintiff, the suspicion was supported in the body of the report by a comprehensive outline of the evidence gathered during the investigation. The tentative nature of the conclusion cannot alter the natural inference to be drawn by any reader from the facts set out in the report.
The Florida Supreme Court long ago held it is not necessary for a published statement unequivocally to charge the crime of arson to be actionable per se. In Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887), that court held the following statement actionable per se:
A contention that this statement was no more than an opinion or suspicion was rejected. We conclude, therefore, that under Florida law the report, if false and not privileged, contained a libelous charge of arson and is actionable without allegation or proof of special damages.
The complaint further alleged Caswell was libeled by the statement in the report that he lied about the $900 claimed to be in a safe at the time of the fire. Relying on Wade v. Sterling Gazette Co., 56 Ill.App.2d 101, 205 N.E.2d 44 (1965), the district court held a published statement which charges only that a person lied on one occasion is not libel per se.
In Richard v. Gray, supra, the Florida Supreme Court stated the general rule
Id. 62 So.2d at 598. The general rule was applied in Walsh v. Miami Herald Publishing Co., 80 So.2d 669 (Fla.1955) (en banc). In Walsh the defendant newspaper published an account of a policeman's testimony in court which was said to be "exactly opposite" to his own official report of an accident. The newspaper account referred only to this single instance of lying. Construing the account "as the common mind would naturally understand it," Cooper v. Miami Herald Publishing Co., 159 Fla. 296, 31 So.2d 382 (1947), the Florida court held the libel was actionable per se because it tended to subject the officer to distrust. Although the court made reference to the fact that part of the plaintiff's duties as a police officer was to testify in court, and the libel would thus tend to injure him in his trade, it was pointed out that "even absent the element of injury to trade or
Thus, as we view the Florida authorities the allegations of Caswell's complaint are sufficient to state a claim of libel per se.
A second basis for the grant of summary judgment was the district court's conclusion that the publications alleged in the complaint were privileged. In the leading case of Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 592, 10 L.R.A.,N.S., 1051 (1906), the court stated the Florida view of privilege:
See also Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942); O'Neal v. Tribune Co., 176 So.2d 535 (Fla.App.1965). On the scope of the privilege in Florida, compare Teare v. Local Union No. 295 of the United Ass'n of Journeymen & Apprentices of Plumbers & Pipe Fitters, Industry, etc., 98 So.2d 79 (Fla.1957) (communication from union business agent to employer of nonunion plumber not privileged), and Merriman v. Lewis, 141 Fla. 832, 194 So. 349 (1940) (employer's report to surety company not privileged), with Johnson v. Finance Acceptance Co., 118 Fla. 397, 159 So. 364 (1935) (letter from finance company to client concerning unethical practices of another company held privileged).
For a communication to be privileged it is necessary that both the communicating party and the receiving party have an interest worthy of protection in its subject matter. There can be no doubt that the National Board of Fire Underwriters had an interest in warning at least some and perhaps all of its member insurance companies of potential risks in insuring an individual against fire loss. Nor can there be any doubt as to the interest of at least some member companies in receiving such information. The district court predicated its finding of privilege on the fact that publication was by Manhattan or its agent to other insurance companies and concerned the desirability of Caswell as an insurance risk. On the present state of the record, we are unable to conclude whether the publications were privileged.
The amended complaint alleges nine instances of publication to five named insurance companies. The record contains nothing to indicate the nature of the interest of these companies in the
Caswell obtained a subpoena duces tecum directing the Chief Deputy Fire Marshal of Florida to appear for the taking of his deposition and to have in his possession "all of his records * * * in regard to Mr. and Mrs. James P. Caswell." The district court granted the Fire Marshal's motion to quash holding that "information reposing in his official files of an investigatory nature is confidential and is immune from process to the same extent as police reports." The quashing of the subpoena is assigned as error on appeal.
Manhattan contends we are without jurisdiction to review this question. We disagree. Although an order granting or denying a motion to quash a subpoena is normally considered interlocutory and not subject to review by immediate appeal, such an order, like other discovery orders, may be assigned as error on appeal from a final judgment on the merits. See Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 992 (1961). A nonparty may appeal an order denying his motion to quash when under the circumstances he would be otherwise denied an effective mode of review. Carter Products, Inc. v. Eversharp, Inc., 360 F.2d 868 (7th Cir. 1966); Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965). Compare Robinson v. Bankers Life & Cas. Co., 226 F.2d 834 (6th Cir. 1965). An order requiring a nonparty to produce documents often will be final insofar as the nonparty is concerned. Moreover in many cases substantial prejudice may result from denying immediate appellate review. Cf. Overby v. United States Fidelity & Guaranty Co., 224 F.2d 158 (5th Cir. 1955). On the other hand a party seeking discovery by way of a subpoena duces tecum is in a different position. An order quashing the subpoena does not terminate the proceeding as to him, and he has no alternative but to await the entry of a final judgment and assert the denial of discovery as error on appeal or cross-appeal. See generally 4 Moore, Federal Practice ¶ 26.37  (2d ed. 1967).
In our opinion a party should not be precluded from review on appeal from a final judgment of an order quashing his subpoena duces tecum simply because the subpoena was directed to a nonparty. Accordingly, we hold this Court has jurisdiction to review the question. Our examination of the Florida statutes and cases leads us to the conclusion the records are not privileged.
In general "all state, county and municipal records shall at all times be open for a personal inspection of any citizen of Florida, and those in charge of such records shall not refuse this privilege to any citizen." Fla.Stat.Ann. § 119.01 (1960). However, "all public records which presently are deemed by law to be confidential or which are prohibited from being inspected by the public, whether provided by general or special acts of the legislature or which may hereafter be so provided, shall be exempt from the provisions of this section." Fla.Stat.Ann. § 119.07 (Supp.1968).
The Florida legislature has chosen to grant a privilege from public
The legislature has accorded no such privileged status to investigation reports of the State Fire Marshal. Pertinent statutory sections governing reports of the Fire Marshal are set out in the margin.
The courts have recognized that public policy may require restrictions on the right to inspect public records. See Patterson v. Tribune Co., 146 So.2d 623 (Fla.App.1962).
Lee v. Beach Publishing Co., 127 Fla. 600, 173 So. 440, 442 (1937); see also 1957 Fla.Ops. Att'y Gen. 057-157 (June 10, 1957); 1958 Fla.Ops. Att'y Gen. 058-156 (May 9, 1958). While certain records of the Fire Marshal may be analogous to investigative police reports, the Florida courts have not extended the public policy exception to the Fire Marshal's records.
In the absence of statutory privilege, and in light of a general policy favoring public inspection of government records, we conclude the district court erred in quashing Caswell's subpoena duces
The judgment of the district court granting summary judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
"While it is not necessary that a person should have made the charge of crime with nicety or in technical terms, nevertheless if there is not a clear imputation of guilt, the words are not slanderous per se."
"The state fire marshal shall investigate the cause, origin, and circumstances of every fire occurring in this state wherein property has been damaged or destroyed where there is probable cause to believe that the fire was the result of carelessness or design. Report of all such investigations shall be made on approved forms to be furnished by the state fire marshal." Fla.Stat.Ann. § 633.111 (Supp.1968):
"The state fire marshal shall keep in his office a record of all fires occurring in this state upon which he had caused an investigation to be made and all facts concerning the same, such as the damage caused thereby, whether such losses were covered by insurance, and to what amount. Such records shall be made daily from the reports furnished him by his deputies, or others."