Dun & Bradstreet, Inc. v. Miller

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: JOHN R. BROWN, , AINSWORTH and GODBOLD, Circuit
• Citation: Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218 (5th Cir. 1968)
• Decision Date: 01 July 1968
• Docket Number: No. 24933.,24933.
• Parties: DUN & BRADSTREET, INC., Appellant, v. John A. MILLER, d/b/a Miller & Company, Appellee.

398 F.2d 218 (1968)

DUN & BRADSTREET, INC., Appellant, v. John A. MILLER, d/b/a Miller & Company, Appellee.

No. 24933.

United States Court of Appeals Fifth Circuit.

July 1, 1968.

W. Colquitt Carter, Melburne D. McLendon, Bryan, Carter, Ansley & Smith, Atlanta, Ga., for appellant.

Grady E. Rozar, Atlanta, Ga., for appellee.

Before JOHN R. BROWN, Chief Judge, AINSWORTH and GODBOLD, Circuit Judges.

AINSWORTH, Circuit Judge:

In this diversity libel action, defendant Dun & Bradstreet appeals from an adverse money judgment of $25,000 ($10,000 general damages and $15,000 punitive damages) entered on a jury verdict for plaintiff. We reverse on the ground that it was error for the District Court to deny defendant's motions for a directed verdict and for judgment notwithstanding the verdict.

Appellee John A. Miller is engaged as a sales agent and manufacturers' agent in the business of buying, selling, and trading new and used machinery and parts for heavy construction and allied fields under the trade name of Miller & Company. Appellant Dun & Bradstreet operates a mercantile agency which prepares and furnishes to members and subscribers, upon request, financial and credit reports on various individuals and organizations. This cause of action arose as the result of an allegedly libelous written report on Miller & Company, prepared by Dun & Bradstreet, and sent by it to Plattsburg Foundry & Machine Company, a subscriber.¹

Miller alleged in his complaint that the report was libelous per se and by innuendo, made wilfully and maliciously, that there was a complete absence of reasonable care and prudence in obtaining the facts from which the report was made and published, that Dun & Bradstreet was grossly negligent in its investigation in obtaining the facts, and that the report had caused him to lose business and profits. General and punitive damages were sought but no special damage was claimed.

Miller inferred the following innuendos from the report and alleged in his complaint that:

"The said libelous report by innuendo, inference, intimation, and imputation was meant and intended to convey that plaintiff was conducting a business at `555 Northside Dr. N.W.\' and operating a business at several locations one of which was a false address; that no reliable information could be obtained about his early background but if it could be obtained it would be of a sordid nature in that he was a bastard and a member of the criminal underworld; that he was ignorant, uneducated, incompetent, senile, and of low mentality by stating `that he attended high school at Tulane University;\' that his `associations have been reported to have been of short duration\' due to his being irresponsible, incompetent, untrustworthy, undependable, and that no reasonable business man would hire him or do business with him; that he is a liar by stating that General Machinery Corporation had ceased doing business, that he will state one thing and do just the opposite, and that his word is no good; that due to `a number of suits filed against\' General Machinery Corporation it was the same as if they were filed against him, that he would not pay his debts unless forced to by a law suit, that he would be a bad credit risk, and that no distinction should be made between him and General Machinery Corporation due to both being bad credit risk; that Miller & Company `owed past due rent of approximately $2,000,\' that it would not pay its rent and there was no need to expect payment for goods sent on credit, and that credit should not be extended under any circumstances; that `recent efforts to contact John A. Miller have been unsuccessful due to his being reported out of town\' is based on well-founded reports that he moves from town to town without notifying any one; that he has to move around to avoid creditors and the law; that he is of dissolute character, and that he could never be found in order to collect a debt; and that `Miller\'s current activities are not known at this time\' due to his elusive character, and due to the fact that defendant has no employee in the criminal underworld by which contact could be made."

The report was sent by Dun & Bradstreet to Plattsburg Foundry at the latter's request, which request had been prompted by Miller's solicitation to represent Plattsburg in the wear parts field. After receiving the report Plattsburg Foundry wrote a letter on April 21, 1965 to Miller, stating that it would like Miller to see the report because it raised some questions about Miller & Company and Miller's personal background from a credit standpoint.²

Miller did not reply to the letter. One month later he filed this complaint. Motions by Dun & Bradstreet for dismissal, and subsequently for directed verdict, judgment notwithstanding the verdict and new trial were denied.

To constitute a libel under Georgia statutory law, there must be a published statement which is both false and defamatory, "tending to injure the reputation of an individual, and exposing him to public hatred, contempt or ridicule."³ A charge "made against another in reference to his trade, office, or profession, calculated to injure him therein," although embodied in the definition of "slander,"⁴ gives rise to an action for libel as well, and a person against whom such an allegation is made need not allege or prove special damages.⁵ Georgia recognizes that a cause of action exists for libel by innuendo as well as for libel per se. However, an alleged defamatory publication must be construed in the sense in which the readers to whom it is addressed would ordinarily, naturally and normally interpret it,⁶ and plain, nondefamatory, unambiguous words may not be enlarged by innuendo. In this regard the Supreme Court of Georgia held in Central of Georgia Ry. Co. v. Sheftall, 118 Ga. 865, 1903, 45 S.E. 687, 688:

"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 Garland v. State, 211 Ga. 44, 1954, 84 S.E.2d 9, 11, the Supreme Court of Georgia, citing the Central of Georgia Ry. case, said:

"The purpose of innuendo is to explain ambiguities in the charge made in the statement, and cannot introduce any new matter."⁷

The District Court, in trial conference while discussing the jury charges requested by counsel, correctly ruled that the involved report was not libelous per se and refused to give a charge on that subject. In his order denying defendant's motions for judgment notwithstanding the verdict and, alternatively, for a new trial, the District Judge reiterated that the report in question "was not libelous per se under Georgia law," but held, nevertheless, that "This left a jury question as to whether it was libelous in fact." In this connection the District Court charged the jury as follows:

"Now, certain words, such as a direct charge of commission of a serious crime, are considered to be libelous in themselves. Other words such as praise for good character can never be defamatory. Between these two extremes lies the case of ambiguous or uncertain language where it is for the jury to say whether in view of all the facts charged the publication amounts to a libel or not. . . . words harmless in themselves may become libelous when the circumstances under which they are published are such as to confer a covert or secret meaning to the reader, reflecting injuriously upon the reputation of the person to whom they refer. All in all, you must determine for yourselves, as a common sense matter, under all the facts and circumstances of this case, whether this particular report here constitutes libel or not."

Although the charge correctly reflects the law of Georgia where in fact a statement contains ambiguous language, the Court erred in sending the case to the jury. Although Georgia law clearly contemplates allowing a jury in a libel case to determine the effect of ambiguous language, it does not contemplate submission of the question of liability where no ambiguity appears and the statements are not libelous per se. The law of Georgia is consistent in requiring the factor of ambiguous language as a prerequisite for the employment of innuendo.⁸ The only segments of the report which could have possibly been construed as defamatory were the statements referring to past due rent of approximately $2,000 owed by General Machinery Company and to the suits filed against General Machinery Corporation. Truth, of course, is a complete defense to a charge of libel,⁹ and appellant conclusively proved by testimony and documentary evidence both of these statements.¹⁰ The remaining portions of the report are plain, harmless and not reasonably susceptible of reflecting injury upon the reputation of appellee so as to justify jury consideration. The innuendos charged are so farfetched, forced and strained that we are unable to see any relationship between them and the remaining statements in the report.

A motion for judgment notwithstanding the verdict is actually a renewal of a previous motion for a directed verdict and the standard is the same for both motions as to when they should be granted, 2B Barron and Holtzoff (Wright Ed.) § 1075, p. 375; both raise only questions of law. Id. § 1075, pp. 384-385; Glazer v. Glazer, 5 Cir., 1967, 374 F.2d 390, 400. The test employed by this circuit in considering the necessity for jury determination is that a fact issue must be submitted to the jury if reasonable men could differ on the conclusions to be reached from the evidence; the evidence and all reasonable inferences must be viewed most favorably to the party against whom the motion is made, and only the evidence and the...