Bradstreet Co. v. Oswald , 96 Ga. 396 ( 1895 )

Atkinson, Justice.

The official report sufficiently states the facts.

1. We think the declaration contains such a substantial cause of action as would prevail against a gen■eral demurrer. It alleged that the defendant caused to be circulated, concerning the plaintiff and the business in which he was engaged, a certain rumor which was wholly false and unfounded, and which, if believed, was calculated seriously to embarrass him in his business. It is a rule of law of universal application, that wherever one person commits a wrong upon the person, property or reputation of another, which is accompanied with damage, the latter may maintain an action. The privilege of free speech does not confer upon one individual the right to use that privilege to the injury of another; and if one print or publish words concerning another, or his business, which are themselves false, the law will presume that it was done maliciously, and award damages .accordingly. The idea of malice, however, may be rebutted, but such evidence is receivable only in mitigation of damages and not in extinguishment of the right ■of action; for even though the words be innocently or negligently spoken or printed, but not maliciously, if the plaintiff, as a result thereof, suffer a special particular damage, he may nevertheless recover such special damage. The declaration in this case it is true does not .allege that the words were maliciously written, but it ■does allege a special damage resulting from the negligent act of the defendant; and though he be guiltless of an evil design in the premises, he must, notwithstanding, answer for the damage actually done.

2. In stating the elements of damage in such a case, the declaration should plainly, fully and distinctly allege how and wherein the plaintiff suffered damage because-of the wrongful act of the defendant, and these facts should be averred with such fullness and precision as to enable the defendant intelligently to plead thereto. To say, in general terms, that in consequence of the wrongful act alleged against the defendant, the plaintiff had •suffered damage in the sum of one thousand dollars or in other gross sum, without alleging how or wherein the damage consisted, would be good as against a general demurrer to the declaration as stating no cause of action; but as against a special demurrer demanding a more minute and accurate statement of the elements of damage, such a declaration would not prevail. One of the most universal rules of pleading is, that the plaintiff* should not only set forth a cause of action, but should allege his cause of action with such fullness and precision as will enable the defendant to answer.

3, 4. The plaintiff' alleged, that in consequence of the publication of these false and unfounded rumors, it became necessary for him to expend a considerable sum of money in his effort to communicate with and remove from the minds of persons with whom he dealt erroneous impressions made by the false representations of the defendant. He further alleged, that in consequence of these false statements, a great many persons with whom he had commercial transactions, became doubtful of his solvency, and demanding immediate payment of his debts, he was compelled, at a great expense, to discount his own notes in order to raise cash with which to meet such debts and silence the clamors of his creditors; and he likewise alleged as one of the elements of damage this fact, and the measure of that damage to be the amount he had to pay in order to have his notes discounted. There was a special demurrer directed to these two averments in the declaration, and the demurrer was upon the ground that the averments were too general to inform the defendant of the nature of the plaintiff’s demand, in that they did not set out the names of the persons upon whose minds the false impressions were made, nor specifically state the sums of money actually expended by him and the manner of the expenditure in removing these impressions. The demurrer was also special to that portion of the declaration which alleged the incurring of expense for the discounting of his notes, upon the ground that such averments were too uncertain and too general. We think the special demurrers in these instances were well taken, and the court should have required the plaintiff to set forth a fairly accurate, though not unnecessarily minute, itemized statement of the sums so expended and upon what account, with an additional averment that such sums were necessarily expended.

5. The plaintiff alleged as an element of damage, amongst other things, that in consequence of the injury to.his credit caused by the wrongful misrepresentations of the defendant, he was unable to obtain goods to be by him in turn sold to his customers in the conduct of his mercantile business, and that as the result of his inability to buy the goods, he lost profits that he might have earned otherwise. We think such damages are too remote and speculative, and are too much dependent upon other and independent causes, to be made the basis for a recovery. There are too many hazards and chances dependent upon the conduct of a mercantile business, to allow prospective profits in the computation of damages. Of course, in a special mercantile transaction, where the anticipated profit is capable of exact ascertainment and the loss of it traceable directly to the wrongful act of the defendant, a recovery may be had; but such is not the case disclosed by the record now under consideration.

Let the judgment of the court below be Reversed.