Hood v. Dun & Bradstreet, Inc.

• Decision Date: 01 December 1971
• Docket Number: Civ. A. No. 13148.
• Citation: 335 F. Supp. 170
• Parties: David Pope HOOD v. DUN & BRADSTREET, INC.
• Court: U.S. District Court — Northern District of Georgia

335 F. Supp. 170

David Pope HOOD v. DUN & BRADSTREET, INC.

Civ. A. No. 13148.

United States District Court, N. D. Georgia, Atlanta Division.

December 1, 1971.

COPYRIGHT MATERIAL OMITTED

Reeves & Collier, Atlanta, Ga., for plaintiff.

Hansell, Post, Brandon & Dorsey, Atlanta, Ga., for defendant.

ORDER

RICHARD C. FREEMAN, District Judge.

This is a civil action arising from an allegedly defamatory and false publication by defendant, a mercantile agency, in regard to plaintiff, a general contractor. For the alleged libel, plaintiff seeks general damages, punitive damages and attorneys' fees. The case has been submitted to the court on motions for summary judgment by both plaintiff and defendant and on plaintiff's motion to strike certain defenses from defendant's answer.

The facts which comprise the background of this lawsuit are, in the main, not disputed, and may be summarized as follows: Defendant Dun & Bradstreet, Inc., is a mercantile agency which was, and is, engaged in preparing and furnishing to its subscribers credit reports on individuals, firms and corporations engaged in business in Georgia and throughout most of the world. Such reports are furnished to subscribers who have signed a contract with defendant, which contract specifies that the information furnished is for the exclusive use of the subscribers and shall not be shown to other persons.

The alleged libel occurred when defendant prepared and distributed to eleven (11) subscribers on or about October 11, 1968, a "Business Information Report" regarding the plaintiff David Pope Hood in his business as general contractor. The four statements in that report which plaintiff alleges to be libelous are as follows:

(1) "In interview of October 10 1968 Mrs. Hood referred all details to her husband who has been inavailable (sic) for comment to date."

(2) "As a matter of interest, David P. Hood has always declined financial information other than to say that sales are in excess of $100,000 and that net worth is in excess of $3,000. These two estimates were submitted in July 1967."

(3) "Public records reveal suit #248479 filed June 10 1968, for $103, Whittock Dobbs Inc. vs. subject. Also suit #238558 filed Apr 3 1968, Westron Corp vs. subject."

(4) "Although complete details are not available, working capital appears limited at times with some trade, slowness noted."¹

Defendant apparently does not dispute the allegation that all four of these statements were in fact false, and it is clearly acknowledged that the two lawsuits in the report were actually filed against a different person, also named David Hood.

On November 6, 1968, plaintiff's attorney telephoned an employee of Dun & Bradstreet and informed defendant of the erroneous report. On November 7, defendant mailed correction notices² regarding the erroneous report of two lawsuits to the eleven subscribers who had received the "Business Information Report" dated October 11, 1968.

Plaintiff alleges that such false statements published in regard to him were libelous in that they were calculated to harm him in his business and that such defamations did in fact cause him injury.

Plaintiff has renewed his motion to strike portions of defendant's answer, which motion was denied by order of Judge Henderson dated May 19, 1970. For the reasons stated in that order, the court denies plaintiff's motion to strike.

Plaintiff's motion for judgment and summary judgment is set forth in numbered paragraphs, each of which seeks summary judgment as to one of the defenses set forth in defendant's answer. Plaintiff seeks summary judgment in paragraphs two, three, four and five as to defendant's eighth, ninth, tenth and eleventh defenses, which are based on freedom of the press and New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny. In paragraph six of this motion plaintiff moves for summary judgment on defendant's fifth defense, which is that the publication was conditionally privileged under Georgia law. Summary judgment as to defendant's first defense of failure to state a claim upon which relief can be granted is sought in paragraph seven of plaintiff's motion. Paragraph eight seeks summary judgment holding that the words published by defendant were libelous and libelous per se and that the plaintiff may recover general damages without proof of special damages.

Defendant has filed a motion in which it seeks summary judgment for the following reasons:

(1) The statements were not libelous and if they were, they were not libelous per se, and since plaintiff has suffered no special damages, plaintiff cannot recover;

(2) Commercial credit reports are entitled to the qualified privilege accorded the press by the First Amendment and New York Times v. Sullivan and its progeny;

(3) Commercial credit reports are conditionally privileged under the laws of Georgia;

(4) There was no actual malice on the part of defendant which would operate to defeat the qualified constitutional privilege or the conditional privilege under Georgia law;

(5) Plaintiff is not entitled to recover general damages in this case;

(6) Plaintiff has not suffered any actual damages;

(7) Plaintiff is not entitled to attorneys' fees; and

(8) Plaintiff is not entitled to punitive damages.

It is obvious from a mere listing of the contentions made by the parties that there is considerable overlapping of the issues raised by the two motions. For that reason, and for the sake of clarity, the court will deal with the issues of law which are raised by the motions and the facts in the following order:

I. Did the statements constitute libel under Georgia law? Did they constitute libel per se?

II. Was the publication of the statements protected by the qualified privilege afforded by the First Amendment and New York Times v. Sullivan?

III. Was the publication conditionally privileged under Georgia law?

IV. Were the statements published with express malice?

Because of the court's resolution of the above issues, it is unnecessary to deal with the question of damages.

I. DID THE STATEMENTS CONSTITUTE LIBEL UNDER GEORGIA LAW? DID THEY CONSTITUTE LIBEL PER SE?

A libel is constituted under Georgia law when a false and defamatory statement is published which tends to injure the reputation of an individual and which exposes him to public hatred, contempt or ridicule.³ Charges made against a person in reference to his trade, office or profession, calculated to injure him therein are considered libel per se.⁴

In Georgia there may be libel by innuendo if the meaning of the allegedly libelous words becomes clear only by a showing of their particular meaning in context or by evidence of circumstances outside the writing which render the words defamatory. As the Supreme Court of Georgia held in Central of Georgia Ry. Co. v. Sheftall, 118 Ga. 865, 45 S.E. 687 (1903):

Words which are clearly not defamatory cannot have their natural meaning changed by innuendo. Words which are libelous per se do not need an innuendo. But between these two extremes are found many expressions which may be ambiguous, and the real meaning can then be explained by reference to the circumstances. It is for the jury in such instances to say whether, in view of all the facts, the writing was libelous.

In this respect, an allegedly libelous statement must be construed in the sense in which the readers to whom it is addressed would ordinarily understand it. Haggard v. Shaw, 100 Ga.App. 813, 112 S.E.2d 286 (1959); Aiken v. May, 73 Ga.App. 502, 37 S.E.2d 225 (1946); Aiken Constitution Pub. Co., 72 Ga.App. 250, 33 S.E.2d 555 (1945).

Applying the Georgia law to the four allegedly libelous statements in the "Business Information Report," it appears that the first two of the statements could not be considered libelous per se or even ambiguous so as to require a jury's consideration of them. To say that plaintiff has been unavailable for comment to date and that his wife referred all details to her husband does not tend to injure the plaintiff's reputation or expose him to public contempt or ridicule. Such a statement is clearly harmless and unambiguous. The same is true of the statement that Hood had always declined financial information other than to say that sales were in excess of $100,000 and net worth in excess of $3,000. The figures stated are clearly indicated as lower limits and are not set forth as the actual amount of sales or net worth; as a result, such statements cannot be construed as defamatory. As the Fifth Circuit held in a case which presented facts similar to those before the court in this action, such statements were "plain, harmless and not reasonably susceptible of reflecting injury upon the reputation of appellee so as to justify jury consideration." Dun & Bradstreet v. Miller, 398 F.2d 218, 223 (5 Cir., 1968).

As to the remaining two statements, however, the court finds that they are ambiguous and might, in fact, be considered libelous. The third allegedly libelous statement is that, "Public records reveal suit #248479 filed June 10, 1968, for $103, Whittock Dobbs Inc. vs. subject. Also suit #238558 filed Apr 3 1968, Westron Corp. vs. subject." Plaintiff argues that the report of two suits against plaintiff would indicate to those doing business, or considering doing business with him that he had failed to pay his bills and that such suits were filed to collect unpaid debts. It is urged that such statements were detrimental to the plaintiff's financial and business ability and standing.

While it may well be that the Dun & Bradstreet subscribers who requested and received this "Business Information Report" interpreted the report of two suits as reflecting adversely upon the credit rating and standing of plaintiff, such an interpretation is not the only reasonable one which could be given to such report. A lawsuit might be filed against an individual for many reasons having no relationship whatsoever to his...