Aiken v. May

• Decision Date: 26 February 1946
• Docket Number: 31131.
• Citation: 37 S.E.2d 225,73 Ga.App. 502
• Parties: AIKEN v. MAY.
• Court: Georgia Court of Appeals

37 S.E.2d 225

73 Ga.App. 502

AIKEN v. MAY.

No. 31131.

Court of Appeals of Georgia, Division No. 2.

February 26, 1946

Syllabus by the Court.

The article complained of, when considered as it must be with all the attending facts and circumstances, was not libelous; the petition did not set out a cause of action, and the court did not err in dismissing the case on general demurrer.

G Seals Aiken, of Atlanta, for plaintiff in error.

Weekes & Candler, of Decatur, and Herbert J. Haas and Joseph F Haas, both of Atlanta, for defendant in error.

PARKER Judge.

G Seals Aiken sued Armand May for an alleged libel claiming damages in the sum of $50,000. The action was based on an article in the form of a letter written by the defendant and delivered to the Atlanta Constitution, a daily newspaper, and published by it. The article complained of appears in full in the reported case of Aiken v. Constitution Publishing Co., Ga.App., 33 S.E.2d 555, and will not be set out herein. General demurrers filed by the defendant to the petition of the plaintiff were sustained by the trial court, and the action was dismissed. The sole exception here is to that ruling.

The plaintiff excepts to the order sustaining the general demurrer and dismissing his petition as being contrary to the federal and state constitutions in depriving him of his property without due process of law, and denying him the equal protection of the law, and depriving him of trial by jury, and the right to prosecute his own cause in the courts of this state, and denying to him the protection to person and property guaranteed by the Georgia Constitution. He excepts to the order and judgment dismissing his case as being contrary to statutes, and to applicable and controlling and well-established principles of law, and to decisions and rulings of this court and the Supreme Court of this State. These several contentions and grounds of exception made by the plaintiff, when boiled down to their final analysis, assert simply that the trial court could not, under the law, and as a matter of law, hold that the article complained of was not libelous; and that whether or not it was libelous was solely and wholly a question for the jury.

A libel is a tort and is defined as 'a false and malicious defamation of another, expressed in print, or writing, or pictures, or signs, tending to injure the reputation of an individual, and exposing him to public hatred, contempt, or ridicule.' The Code, 105-701. The general rules of pleading and practice apply to actions for libel. A defendant in a suit for libel may demur as in other cases, and if the petition fails to set out a cause of action for any reason it is the duty of the trial court to dismiss it on general demurrer. These propositions would seem to be axiomatic. We state them here because the general tenor and effect of the plaintiff's argument is that a trial judge can never adjudge and determine as a matter of law that the writing complained of in a libel suit is not libelous, and dismiss the suit on demurrer. We cannot agree to that conclusion. The contrary has been held many times. Anderson v. Kennedy, 47 Ga.App. 380, 170 S.E. 555; Watkins v. Augusta Chronicle Pub. Co., 49 Ga.App. 43, 174 S.E. 199; Constitution Publishing Co. v. Andrews, 50 Ga.App. 116, 177 S.E. 258; Mell v. Edge, 68 Ga.App. 314, 22 S.E.2d 738; Watters v. Retail Clerks' Union, No. 479, 120 Ga. 424, 47 S.E. 911. Similar rulings have been made in actions for slander, which may be defined concisely as an oral defamation. Whitley v. Newman, 9 Ga.App. 89, 70 S.E. 686; Hardeman v. Sinclair Refining Co., 41 Ga.App. 315, 152 S.E. 854; the Code, § 105-702.

The plaintiff relies heavily on the case of Horton v Georgian Co., 175 Ga. 261, 165 S.E. 443, in which the Supreme Court reversed the decision of this court as reported in 43 Ga.App. 19, 157 S.E. 892. There is a lengthy dissent to the opinion of this court by Judge Stephens, which in effect was upheld by the Supreme Court. The plaintiff quotes at considerable length from the decision of the Supreme Court and from the dissent in this court. The facts of the Horton case differ so substantially and materially from the facts of the instant case, the ruling therein that the general demurrer was improperly sustained and that the action should not have been dismissed does not control the case at bar. However, the dissenting opinion of Judge Stephens cites Holmes v. Clisby, 118 Ga. 820, 45 S.E. 684, which holds that a publication must be construed in the light of all the attending circumstances, the cause and occasion of the publication, and...