Floyd v. Atlanta Newspapers, Inc. , 102 Ga. App. 840 ( 1960 )

Townsend, Presiding Judge.

“At common law, it was not necessary that written or printed defamatory words should charge a crime in order to make them actionable, but it was sufficient if they tended to bring a man into public hatred, contempt, or ridicule. . . The definition of libel recognized at common law has been adopted by statute in this state.” Augusta Evening News v. Radford, 91 Ga. 494 (17 S. E. 612, 20 L. R. A. 533, 44 Am. St. Rep. 53). See also Stewart v. Swift Specific Co., 76 Ga. 280 (2 Am. St. Rep. 40), and Spence v. Johnson, 142 Ga. 267, 270 (82 S. E. 646, Ann. Cas. 1916A 1195). In Odgers, Libel and Slander, pp. 2 and 377, it is broadly stated that damages will be presumed from the nature of the words themselves “if the words, being written and published or printed and published, disparage the plaintiff or tend to bring him into ridicule and contempt” and that proof of special damage is not necessary in any action for libel. Where the words are capable of but one construction, and that not defamatory, a general demurrer will lie. Garland v. State, 211 Ga. 44 (84 S. E. 2d 9). Where the only possible construction is that the words are libelous per se, upon proof thereof the only remaining question for the jury is that of damages; in other cases the question of whether the words, used in the signification and in view of the extrinsic circumstances alleged, constitute libel, will remain a jury question. Aiken v. May, 73 Ga. App. 502 (37 S. E. 2d 225); Weatherholt v. Howard, 143 Ga. 41 (4) (84 S. E. 119). The Weatherholt case also points out that a so-called “business libel" may be actionable because of special damages although not libelous per se. No special damages are sought in the present case, and the point is important here only for the purpose of distinguishing certain cases as against the argument that special damages need be shown in a libel case such as this. In Mell v. Edge, 68 Ga. App. 314 (2) (22 S. E. 2d 738), quoting 33 Am. Jur. 78, § 60, it is stated: “As respects a charge of failure to pay debts, without any imputation of insolvency, it seems to be settled that a writing containing the mere statement that a person who is not a trader or merchant, or engaged in any vocation wherein credit is necessary for the proper and effectual conduct of his business, owes a debt and refuses to pay, or owes a debt which is long past due, is not libelous per se and does not render the author or publisher of such statement liable without proof of special damages.” Thus, delinquent debtor cases, such as the Mell case, Estes v. Sterchi Bros. Stores, 50 Ga. App. 619 (179 S .E. 222), Haggard v. Shaw, 100 Ga. App. 813 (112 S. E. 2d 286), and similar cases, stand in a class by themselves and have no bearing upon a cause of action such as the present one. They hold that merely to charge one as a delinquent debtor is, as a matter of law, not libelous per se under the provisions of Code §§ 105-701 and 105-703. Whether or not such cases are correct under common-law limits need not concern us now, although it is noted that in Holmes v. Clisby, 118 Ga. 820, 822 (45 S. E. 684) it is held that while a publication which has the tendency to injure the reputation of the person against whom it is directed and expose him to public hatred, contempt, or ridicule is actionable generally, one which has the effect merely of disparaging a tradesman’s goods is not actionable without an allegation of special damages. We know of no other exceptions where in libel special damages are necessary to sustain the cause of action, but the case under consideration if it alleges a cause of action does so on the theory that it shows the plaintiff suffered an injury to his reputation, for which right of action no special damages are necessary. As stated in Brandon v. Arkansas Fuel Oil Co., 64 Ga. App. 139, 146 (12 S. E. 2d 414): “A libelous charge is just as effectively harmful, and therefore actionable per se, i.e., without proof of special damages, whether the harmful effect results from words which directly and unequivocally make the charge, or whether it results from words which do so indirectly or by inference. It is the harmful effect of the defamatory language which renders it actionable per se, and not its directness or unequivocal nature.” That this is in conformity both with the common-law rule, the present English rule, and the view of the American Law Institute, see Restatement of the Law, Torts, Sec. 569, “Liability without proof of special harm, when imposed—libel.” Accordingly, the petition is not in any event subject to general demurrer because no special damages are alleged.

In considering whether a newspaper publication may be libelous, the headline and body of the article must be considered together. Augusta Chronicle Publishing Co. v. Arrington, 42 Ga. App. 746 (157 S. E. 394). And where the writing may be understood by the average reader in either of two senses, it is proper to allege in what sense it was actually understood by the reader. The plaintiff hero alleges that the article falsely states that he opposed the bill in question; that he offered an amendment to it; that he tried to “knock out” a section of it, and that he was a “Griffin man.” As to the first three of these four false statements, the plaintiff alleges that their purpose was to represent him as a man who opposed honesty in government and opposed the passage of legislation for the purpose of promoting honesty in government when in truth and in fact the plaintiff was promoting the bill and his suggestions were made for the purpose of strengthening it. It appears to us that the headline “2 HOUSE MEMBERS EIGHT ‘HONESTY’ BILL,” immediately followed by the names of the plaintiff and another, and by a quotation to the effect that since the only purpose of the bill was to promote honesty and integrity in government the speaker could not conceive of anyone opposing it, taken together alleges a sufficient factual basis to support the conclusions that the article was intended tp be and was understood by the average reader as conveying a slur upon the plaintiff’s character and reputation, tending to expose him to public hatred, contempt, and ridicule. Where the court cannot say as a matter of law that the newspaper article does not tend to injure the plaintiff’s reputation in the minds of the average reader, a jury question is presented. Savannah News-Press v. Grayson, 102 Ga. App. 59 (115 S. E. 2d 762); Barwick v. Wind, 203 Ga. 827 (48 S. E. 2d 523).

The trial court erred in sustaining the general demurrer and dismissing the petition.

Judgment reversed.

Felton, C. J., Carlisle, Nichols, Bell and Jordan, JJ., concur. Frankum, J., dissents.