Holmes v. Clisby

• Decision Date: 11 November 1904
• Citation: 48 S.E. 934,121 Ga. 241
• Parties: HOLMES v. CLISBY.
• Court: Georgia Supreme Court

48 S.E. 934

121 Ga. 241

HOLMES v. CLISBY.

Supreme Court of Georgia

November 11, 1904

Syllabus by the Court.

1. Statements published in good faith by one to protect his own interests in a matter where he is concerned, as well as to protect the interests of another, whom he represents as agent, are privileged, when the character of the publication is such as to make it reasonably necessary, under the surrounding circumstances, to accomplish the desired purpose.

2. A willful falsehood cannot be uttered in good faith, and therefore can never be the subject of a privileged communication.

3. Negligence in failing to ascertain the meaning and effect of a writing before a publication of the same, under circumstances where it would be injurious to the character or reputation of another, is so inconsistent with good faith as to prevent the communication from being privileged as a statement in the performance of a private duty, or a statement by the writer to protect his own interests in a matter where he is concerned.

4. The general rule is that the question of libel or no libel is one of fact for a jury. Especially is this true when the writing is not a libel per se, but its character as such depends upon the circumstances under which it was published.

5. Upon proof of the publication of a writing which is libelous on account of the circumstances under which it was published, a presumption arises that the party libeled is innocent of the charge therein preferred, and an inference is raised that the publisher was actuated by malice.

6. Evidence which may be insufficient to so establish good faith as to sustain a plea of privilege in an action for a libel may still be sufficient to rebut the inference of malice and mitigate the damages.

7. The judge should explain to the jury the meaning of technical terms which occur in his instructions, but a failure to do so will not generally be ground for a new trial, in the absence of an appropriate and timely written request for such explanation.

8. Whether answers to interrogatories which are claimed to be leading shall be read is a question resting in the sound discretion of the trial judge, and this discretion will not be controlled unless it is manifest that injustice has been done.

9. In the trial of an action for libel, it is error for the judge to fail to instruct the jury on the law of nominal damages when the evidence in the case is of such a character that under no view of it would a general verdict for the defendant be authorized. This is true even though there be no written request for instructions on such subject.

Error from City Court of Macon; Robt. Hodges, Judge.

Action by J. R. Holmes against J. W. Clisby. Judgment for defendant and plaintiff brings error. Reversed.

Jere Moore, M. W. Harris, and Dessau, Harris & Harris, for plaintiff in error.

Steed & Ryals and Lane & Park, for defendant in error.

COBB J.

1, 2. When this case was before this court on a former occasion, it was said: "That the publication was intended to refer to the plaintiff cannot, in view of the allegations of the petition, admit of doubt. If one reading the publication knew that it referred to the plaintiff--knew that he was selling Queen Quality shoes at a reduced price--the inference was irresistible that he was selling damaged goods; and, when this is coupled with the further fact that the plaintiff had advertised that his goods were perfect and undamaged, the conclusion is well warranted that the author of the publication intended to charge that the plaintiff's advertisement was false, and that in inserting the advertisement he was guilty of a deliberate falsehood, and intended thereby to cheat and defraud the ladies of Macon who were likely to become his customers." 118 Ga. 823, 824, 45 S.E. 686. The defendant, in his answer, denies that the publication referred to the plaintiff, or was intended to refer to him. He claims that he was advised that certain shoes manufactured by the Plant Company, but inferior to those stamped "Queen Quality," were sold generally to the trade in Macon and throughout the country, and that there was great danger of such shoes being confused with Queen Quality shoes, in the sale of which the defendant was interested; that the advertisement was furnished him by the Plant Company, and was published by him in good faith to protect his own interests as the seller of the Queen Quality shoes, and also in the discharge of the private duty owing to his principal, the Plant Company, to protect its business interests. If there were persons in Macon or elsewhere who were selling shoes of the Plant Company which were imperfect or damaged as perfect shoes of the Queen Quality stamp, then the defendant had a right, as the seller of the genuine Queen Quality shoes, and as the agent of the Plant Company, to communicate this fact to the public. If in his communication to the public he used such words only as were appropriate and necessary to accomplish the desired end--that is, to place the public on notice that they were liable to be deceived--and the communication was made in good faith, in the belief that the statements therein were true, it would be properly classed as one which was privileged, under the law; and the defendant would not be liable to one who was engaged in selling in Macon the genuine Queen Quality shoes, unless it appeared from the publication and the circumstances under which it was made that what was stated in the advertisement, taken in connection with the circumstances, must have been intended to apply to such seller, and when so applied could have no other meaning than that such seller was selling damaged shoes of the Plant Company as perfect Queen Quality shoes, and that the defendant knew at the time of the publication that the shoes sold by the plaintiff as Queen Quality shoes were in fact perfect shoes of that brand. If the communication was of the character above indicated, and published under the circumstances referred to, it could not be properly classed as privileged, as against the seller of the genuine Queen Quality shoe, who was known to be such by the publisher of the advertisement, for such a communication, under such circumstances, would contain a willful falsehood. Such a falsehood is always inconsistent with good faith, and is never privileged, either in law or morals. Etchison v. Pergerson, 88 Ga. 621, 15 S.E. 680 (4). The plea of privilege was good in substance, although it may have been subject to special demurrer. Hence the court did not err in instructing the jury in reference to the law of privileged communications.

3. Did the evidence sustain the plea of privilege? The defendant testified that he did not write the advertisement; that it was furnished to him by the Plant Company on a form which had been used in Boston and in a number of other places; that while he read it before he had it published, he did not read with a great deal of care; that he presumed it was simply a notice of a change of agency; and that he did not have the plaintiff in mind at the time of the publication, nor was it the result of the cut-price sale had by the plaintiff. The defendant admits that he knew that the plaintiff was selling genuine Queen Quality shoes. The evidence conclusively shows that the plaintiff was the only person except the defendant engaged in the sale of these shoes in Macon. The evidence is of such a character as to almost demonstrate with certainty that at the time of the publication any one in Macon who had any information in reference to the shoe market could not reach any other conclusion upon reading the advertisement than that it was intended to apply to the plaintiff, so far as it referred to the sale of Queen Quality shoes. There may have been others in Macon engaged in the sale of other brands of shoes of the Plant Company's manufacture, but the plaintiff was the only seller of the genuine Queen Quality shoes that the advertisement could possibly apply to. But ...