Constitution Pub. Co v. Leathers, 23339.

• Citation: 172 S.E. 923,48 Ga.App. 429
• Decision Date: 06 February 1934
• Docket Number: No. 23339.,23339.
• Parties: CONSTITUTION PUB. CO. v. LEATHERS.
• Court: Georgia Court of Appeals

48 Ga.App. 429

172 S.E. 923

CONSTITUTION PUB. CO.

v.LEATHERS.

No. 23339.

Court of Appeals of Georgia, Division No. 1.

Feb. 6, 1934.

Syllabus by the Court.

1. One who publishes matter concerning a family in its collective capacity, which Is so framed as to make defamatory imputations against all members of the family, assumes the risk of its being libelous as to any member thereof, because the libel applies to each individual member throughout the class by the use, without discrimination, of the collective appellation. Fernstermaker v. Publishing Co., 13 Utah, 533 (3), 45 P. 1097, 35 L. R. A. 611.

2. On the other hand, if the words used expressly, but impersonally and indefinitely, refer to two or more members thereof, one of the members, in order to maintain his action, must establish the application of the language to himself.

3. Where the article stated that five members of two families were guilty of crimes, and in the same article named the five persons to whom reference was made (the plaintiff not being one of the five), it was such a designation of the persons referred to as to exclude from the mind of the reader any imputation that the defendant intended any other persons than the ones personally named. Under the allegations of the petition, the only reasonable construction by a reader of which the article was reasonably susceptible is that the explanation showed to the minds of its readers that it did not make an imputation upon the plaintiff. The court therefore erred in overruling the general demurrer.

Error from Superior Court, Fulton County; Vlrlyn B. Moore, Judge.

Suit by J. E. Leathers against the Constitution Publishing Company. To review a judgment overruling its general demurrer to the petition, defendant brings error.

Reversed.

Mark Bolding and Howell, Heyman & Bold-ing, all of Atlanta, for plaintiff in error.

A. Walton Nall, of Atlanta, for defendant in error.

MacINTYRE, Judge,

J. E. Leathers instituted an action against the Constitution Publishing Company to recover damages for an alleged libel. The petition alleged that the defendant falsely and maliciously did publish of and concerning the petitioner in the Atlanta Constitution the following false and malicious language, to wit: "The Constitution, Atlanta, Georgia. Saturday March 7, 1931. Five Members of two families are jailed in war on Bandits: Friday was anything but a red letter day in the lives of the Chestnut Street Leathers and the Griffin Street Spratlins, who, according to the police, have contributed no less than five pictures to Atlanta's rogues gallery, all five subjects being convicted or alleged bandits. The fourth and fifth members of the two families were jailed in Miami early Friday morning while the Atlanta police, who late Tuesday had locked up the second and third members and were checking the records of the State prison commission to make certain that the first member to become embroiled with the law still is in the chain gang. The first member, Jack Spratlin, still is on the gang, where he is serving a long term for the robbery of the Foote-Davies plant several years ago. Ernest Leathers and E. W. Spratlin, 22, younger brother of Jack's, were caught in the Atlanta police net Thursday when six alleged burglars were rounded up. Chief of Detectives, A. Lamar Poole, after the arrest of Leathers and Spratlin, ordered the arrest of Leathers cousin, Clyde Leathers, and Jack and E. W. Sprat-lin's still younger brother, R. M. Spratlin, whom he sought to question in the Atlanta robberies. While his men were out searching for the pair advices came from Miami which said the pair had been locked up there within a few minutes after three bold holdups in the business sections, and further that the victims in the three robberies had identified them as the bandits. Chief Poole said Friday nightthat he had telegraphed Miami police asking that the pair be turned over to Atlanta police but that the Florida authorities had refused, saying they were positive of convicting them there. The chief, however, said four Atlanta officers, two county policemen, and two city detectives, were to leave Atlanta this morning for Miami to make a personal effort to obtain custody of the two men. 'If we can get those two to add to the six we have, we can clear up a number of robberies here, ' Chief Poole said. 'The six men we have arrested have given us details of at least 20 cases, all save one admitting participation in them, and it may be that we will be able to clean up more than 75 holdups and burglaries and motor car thefts to the gang. I wish we could have them all here, but if the Miami police are able to convict the two they have, I'll be satisfied.' Chief Poole's office was busy Friday taking care of a number of hold-up victims who called to identify the alleged bandits and to recover property taken from them in the robberies. Much of the loot was recovered by the police when they rounded up the six men here Thursday."

The petition Is not aided by innuendoes as to the person referred to, nor do the allegations in the petition show by extraneous facts that the plaintiff was the person referred to, other than it alleges that the defendant did unlawfully, falsely, and maliciously charge the petitioner and the members of his family with crimes against the laws of the state of Georgia and termed the petitioner and members of his family as convicted criminals or contributors to the rogue's gallery of Atlanta, and also alleges that: "Petitioner shows that he did not nor did any of his family have any part in any crime punishable under the laws of the State of Georgia, any other State, or the United States, nor has your petitioner or his family ever been alleged bandits...