Hall v. Kelly , 61 Ga. App. 694 ( 1940 )

Before the passage of the act of 1939 (Ga. L. 1939, p. 343), a libellous charge which was actionable per se, i. e., without proof of special damage, gave a right of action to the person libelled and the right to recover general damages therefor, notwithstanding the publisher of the libel might have acted in good faith, might have had reasonable grounds for believing that the statements contained in the libel were true, or might have published a full and fair correction or retraction of the charge contained in the publication. This was a vested right in the person libelled. The act of 1939 abrogates this right where by its terms it provides that where it appears upon the trial that the alleged libellous article was published in good faith, that its publication was due to an honest mistake of the fact, that there were reasonable grounds for believing that the statements were true, and that within ten days after service of a prescribed notice upon the publisher of the libel the publisher made a full and fair correction or retraction, the libellous charge is not actionable per se, and the person libelled can not recover of the publisher general damages as in the case of a libel which is actionable per se, but can recover only "such special or actual damages" as he shows he has sustained. If the act of 1939 is construed as applying to actions for libel which had accrued before the date of its passage it would operate to deprive the person who had been libelled under a charge which was actionable per se of a vested right, and would therefore be unconstitutional. Giving to the act a construction that will render it constitutional, it must be construed as not having application to any cause of action for libel which had arisen before its passage. This is true notwithstanding the act by its terms expressly states that it shall not apply to any action for libel pending at the time of its passage in any of the courts of this State.

I am of the opinion that the act of 1939 has no application to the present suit for libel, which is one in which the right of action arose before the passage of this act. I therefore dissent from the judgment of reversal, which is based upon the ground that the provisions of the act of 1939 are applicable, and that upon an application of these provisions the petition failed to set out a cause of action.