Atlanta Journal Co. v. Doyal

Decision Date08 June 1950
Docket NumberNos. 33040-33043,No. 2,s. 33040-33043,2
Citation82 Ga.App. 321,60 S.E.2d 802
CourtGeorgia Court of Appeals

Syllabus by the Court.

1. General allegations which amount to conclusions must yield, on demurrer, to specific contradictory allegations. Atlanta Coca-Cola Bottling Co. v. Brown, 46 Ga.App. 451(2), 167 S.E. 776.

2. The privilege extended newspapers under Code, §§ 105-704 and 105-709 to fairly and honestly report judicial proceedings

is a conditional and not an absolute privilege.

3. Such conditional privilege is not a right to publish but is rather the right to be free from legal liability for libel when such publication is fairly and honestly and bona fide done in the process of news dissemination. Whether the publications as alleged here are fair and honest is a question of fact for the determination of a jury. It follows that the general demurrers were properly overruled.

4. (a) Where the allegations of a petition in an action for libel are sufficient to charge libel per se general damages are recoverable without proof of special damage. Where special damages are not prayed for, and general damages only are sought, such damages are authorized under Code, § 105-2003, the entire injury being to the peace, happiness and feelings of the plaintiff.

(b) Where it is further alleged that the libel is wilfully and maliciously made and published, additional damages may properly be sought under Code, § 105-2002 to deter the wrongdoer from repeating the trespass, but not as compensation for the wounded feelings of the plaintiff, as to allow this item of damage under both Code, §§ 105-2202 and 105-2003 would be to award double damages for one injury.

(c) Where, in the course of his authorized employment, a newspaper reporter takes advantage of the opportunity to gratify his personal malice by writing for publication defamatory material and, between him and his employer, a libel is published so as to inflict a wrong and thereby cause damage to the plaintiff, both the employee and the newspaper corporation are concerned in the common transaction, and each of them is liable to the plaintiff in libel, the malice of the agent under such circumstances being imputable to the principal.

5. The bad faith authorizing expenses of litigation including attorney fees under Code, § 20-1404, in actions sounding in tort, means bad faith in the transaction out of which the cause of action arose. An allegation that the allegedly libelous material was an unfair and dishonest report, wilfully and maliciously made, necessarily implies bad faith in the transaction and sets out a cause of action for attorney fees as an expense of litigation.

6. Mere conclusions unsupported by any specific allegations of fact should be stricken on demurrer. See many cases cited under Code, § 81-101, catchword, 'Conclusions.'

R. L. Doyal brought a libel action in the Superior Court of Fulton County against the Atlanta Journal Co. and Franklin Nix. The petition is in two counts, one based upon an article written by Nix and published in the evening edition of the Journal on November 18, 1949, concerning testimony given that day of Mrs. Robert Carpenter in the course of a divorce proceedings, and the second on the article on the same subject appearing in the morning edition on November 19. The headlines and leads of these articles differ; otherwise, they are substantially the same. The petition as amended alleges in substance that the defendant Atlanta Journal is a newspaper of wide circulation; that Nix is a reporter thereon assigned to the Fulton County Court House; that Nix was present and heard the testimony of Mrs. Carpenter; that defendants libeled the plaintiff by charging in said newspaper that Mrs. Carpenter testified that the plaintiff was a gambler, took part in a dice game with other persons named as gamblers, and was in her apartment at night with other persons named as gamblers; that Mrs. Carpenter did not so testify, and the charges are untrue, dishonest and malicious; that the defendant Nix wrote said article, well knowing same was untrue, for the spiteful and malicious purpose of destroying petitioner's reputation and exposing him to public hatred, contempt and ridicule; that Nix stated to the plaintiff on November 7, 1949, that he would put petitioner in his grave many years before his time with the articles he would write about him in his paper, meaning the Atlanta Journal that in so ding he was acting within the scope of his employment; that plaintiff has been a teacher and coach of boys since 1921; is now teaching and coaching boys; has established a reputation for fair play and sportsmanship; was elected to the Board of Commissioners of Roads and Revenues of Fulton County and is now holding said office; that he has never gambled or taken part in a dice game in his life; has condemned gambling as vicious and criminal and forbidden any of the boys on his squads to do so; that the intention of the defendants in publishing said article was to cause his students, their parents, and the general public to lose confidence in him as a hypocrite, and that said article has brought him into public ridicule and made him the butt of jokes concerning shooting dice and gambling; that Mrs. Carpenter did not testify the plaintiff was there that night; that she did testify it was her understanding the plaintiff was there, but that said testimony was ruled out as hearsay. Both newspaper articles and a transcript of the record of the testimony of Mrs. Carpenter are set out as exhibits, and are discussed in greater detail in the body of this opinion. The headline and lead of the November 18 article are as follows: 'Mrs. Carpenter Tells Of Dice Game. Wife Names Group Invited to Home; Says She Paid Out-of-Town Debt for $1,600.

'By Franklin Nix

'Fulton Commissioner Chairman R. L. Doyal was named Friday by Mrs. Helen S. Carpenter as being among a group of 'gamblers' Judge Robert Carpenter had out to their former Peachtree rd. apartment.'

The headline and lead of the November 19 article is as follows: 'Carpenter Divorce Trial In Recess. Wife's Testimony on Judge's 'Gambling' Includes Name of County Commissioner.

'By Franklin Nix

'Trial of the Carpenter divorce case was recessed until Monday after Mrs. Helen S. Carpenter took the witness stand Friday afternoon to tell her side of the marital tangle for the first time.

'Mrs. Carpenter related gambling trips Judge Robert Carpenter allegedly made to various cities, and she had allegedly paid some of the judge's gambling debts on promises that he would never gamble again.

'Fulton Commissioner Chairman R. L. Doyal was named by Mrs. Carpenter as being among a group of 'gamblers' Judge Carpenter had out to their former Peachtree rd. apartment.'

'As the case was recessed until Monday morning, Judge Virlyn B. Moore 'cautioned and reprimanded' one of Mrs. Carpenter's attorneys, for allegedly proposing to another attorney that he approach jurors he might know.

'Mrs. Carpenter's testimony about Chairman Doyal came shortly after she took the stand. She mentioned that the judge had had a number of 'gamblers' in their apartment while she was away.'

The defendants filed identical demurrers to the petition and amendments thereto, numbered 1 to 16 inclusive, the first two being grounds of general demurrer and the remainder grounds of special demurrer. All grounds of both general and special demurrer were overruled except grounds 13 and 14 of special demurrer to the petition, and grounds 6 and 11 of the renewed demurrer attacking paragraph 4 of each count as amended. To the judgment of the trial court overruling these grounds of demurrer the defendants excepted, and to the grounds sustained by the trial court the plaintiff excepted in his cross bills of exceptions. These cases are dealt with together, as the pleadings and briefs involve the same issues.

Arnold, Gambrell & Arnold, Atlanta, for Atlanta Journal Co. and Franklin Nix.

Houston White, Atlanta, for R. L. Doyal.

TOWNSEND, Judge. (after stating the foregoing facts).

1. Grounds 3, 4, 5, 6, 7, 8, 9 and 10 of the demurrers attack paragraphs 11, 12, 13, 14, 15, 17, 18 and 21 of each count of the petition on the grounds that the attached exhibit containing Mrs. Carpenter's testimony speaks for itself, that the paragraphs contain conclusions not authorized by the language of the exhibits, and that the plaintiff, having pleaded the exhibits, should let them speak for themselves instead of attempting to set up conclusions as to the meaning of the language therein contained. The defendants contend that the exhibit shows on its face that the transcript of the record attached as an exhibit reveals the newspaper account to be a fair and honest report of Mrs. Carpenter's testimony concerning the plaintiff so far as the gambling activities are concerned, and that said transcript also affirmatively shows that said testimony was not ruled out, as contended in the petition.

Paragraph 21 of the petition states that said article charged petitioner (1) with being a gambler; (2) with taking part in a dice game; (3) with attendance at night in the company of other persons who were named and identified as gamblers. It further alleges that each of said charges is untrue. It is necessary to examine the newspaper reports and compare them with the transcript of testimony in the case in order to determine (1) Whether the newspaper article contains the information alleged, and (2) whether this information, if contained therein, is a fair and honest report of Mrs. Carpenter's testimony on the stand. Although the main headlines in the two editions of the paper, referred to in Counts 1 and 2 respectively, differ, there is in each the identical sub-head, 'Group Played Dice.' Following this the article continues:

"But he asked you to name the...

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