Davis v. Macon Tel. Pub. Co., 35984

Decision Date05 March 1956
Docket NumberNo. 35984,No. 1,35984,1
Citation93 Ga.App. 633,92 S.E.2d 619
CourtGeorgia Court of Appeals
PartiesErnest DAVIS v. MACON TELEGRAPH PUBLISHING COMPANY

Syllabus by the Court.

1. It is libel per se to charge a person with the offense of misdemeanor.

2. In libel per se cases allegations of special damages are unnecessary and the plaintiff may recover general damages without proof of special damages.

3. If sufficient facts are alleged by way of colloquium whereby an average and reasonable reader, under the circumstances, may determine that the unnamed party in the libelous article referred to the plaintiff in the case, such issue is to be determined by a jury.

4. Whether or not a person be charged with a crime directly or based upon hearsay, is immaterial to the liability of the libeler. 'The bearer of a libel is as guilty as its author,' and, 'Talebearers are as bad as talemakers.' In like manner it is immaterial that the fact of identification of the plaintiff in the article complained of is based upon hearsay.

The plaintiff in error, Ernest Davis, brought suit against the defendant in error, Macon Telegraph Publishing Company, in the City court of Macon, Bibb County, claiming general damages in the amount of $50,000. The suit is based on an alleged libel published in the Macon Telegraph, a daily newspaper owned and published by the defendant in error. The entire article comprising the alleged libelous matter is attached to the plaintiff in error's original petition as an exhibit.

The defendant in error filed general and special demurrers to the petition. Thereafter the plaintiff in error amended his petition, and after said amendment was filed, the trial judge upon a hearing sustained both the general and special demurrers, and it is to this judgment that the plaintiff in error excepts.

Roy B. Rhodenhiser, Jr., Andrew W. McKenna, Buckner F. Melton, Macon, for plaintiff in error.

Lane & Sell, Mallory C. Atkinson, Macon, for defendant in error.

NICHOLS, Judge.

1. The particularly pertinent portion of the newspaper article which is the basis for this action, is as follows: 'The car was found a few hours later parked at the Rocking Palace in Unionville by two deputies and a patrol car, Adams said. (Captain William Adams, Bibb County law enforcement officer) Three men ran from the car, but two in the back of the vehicle were caught. When a search was made, it was learned that they were sitting on 50 gallons of moonshine whisky, the sheriff's captain said. The two, listed as Wayman Davis, owner and operator of the tavern, and his brother, were arrested at the scene, reports showed. Adams said Davis' brother, who was unidentified, escaped and was still at large late last night.' The article charges Wayman Davis with possessing illicit whisky and Davis' brother, who was unidentified, with possessing illicit whisky and also with escape, after having been apprehended. Each of these offenses are misdemeanors under the laws of Georgia. Code §§ 58-1056 and 26-4513, Acts 1953, November Session, pp. 187, 188. It is libel per se to charge a person with the offense of misdemeanor. Atlanta Journal Co. v. Doyal, 82 Ga.App. 231, 60 S.E.2d 802.

2. The plaintiff alleges that he has been injured and damaged and he sues for $50,000 general damages to his reputation and feelings, no special damages being alleged or prayed for. In libel per se cases general damages are recoverable without proof of special damages. Weatherholt v. Howard, 143 Ga. 41, 84 S.E. 119; Atlanta Journal Co. v. Doyal, 82 Ga.App. 331, 60 S.E.2d 802.

3. The defendant demurs generally to the petition on the grounds that it does not set out a cause of action. Accepting as true, as the court must on demurrers, well pleaded factual averments of the plaintiff's petition, as amended, the sole question to be determined by this court is not whether the newspaper article, which is the basis for this lawsuit was false and defamatory so as to fall within the pruview of Code § 105-703, but whether the plaintiff's petition, as amended, alleged sufficient facts by way of colloquium whereby an average and reasonable reader, under the circumstances, may determine that the unnamed party referred to in the newspaper article was intended to be the plaintiff in this case. We think sufficient facts were so alleged to set out a cause of action and raised a factual issue to be submitted to a jury. As a general rule in Georgia the question of whether or not a particular publication is libelous, as well as whether the libelous matter was of or concerning the plaintiff, is a question of fact for determination by a jury. Horton v. Georgian Co., 175 Ga. 261(2), 165 S.E. 443; Whitley v. Newman, 9 Ga.App. 89(1), 70 S.E. 686; McIntosh v. Williams, 160 Ga. 461, 128 S.E. 672.

The defendant's special demurrers 2, 4, 5, and 6 are directed at and attack paragraphs 1, 4, 5 and 6 of the petition respectively on the ground that each paragraph constitutes a conclusion of the pleader without allegations to support it. With this we do not agree. The petition, as amended, alleges that the plaintiff is a brother of Wayman Davis, and the only brother of Wayman Davis that has ever resided in Macon, Bibb County, Georgia; and further that the plaintiff's other three brothers not only resided in Fort Myers, Florida, but on February 13 and 14, 1955, were actually in and about Fort Myers, Florida and not in Macon, Bibb County, Georgia: that the plaintiff was not present at the time and place specified in the published article, was not arrested, did not escape, was not guilty of the crime charged in the newspaper article; that the libelous article was reasonably susceptible of being construed as referring to himself, and was in fact so construed by his friends, associates and other persons who know him, and that he was injured and damaged thereby. 'If the words used expressly, but impersonally and indefinitely, refer to two or more members [of a family] * * * one of the members, in order to maintain his action, must establish the application of the language to himself. Constitution Publishing Co. v. Leathers, 48 Ga.App. 429(2), 172 S.E. 923.

Words or pictures which are in themselves innocent may be shown by coloquium and inducement to be libelous. Briggs v. Byrd, 33 N.C. 353; Cooper v. Perry, Dudley 247, 8 Enc.Dig. 726. It may be shown by extraneous facts that the defamatory matter applied to the plaintiff. Colvard v. Black, 110 Ga. 642, 36 S.E. 80.

'The defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff * * * though the words used may at first sight appear only to apply to a class of individuals, and not to be specially defamatory of any one member of that class, still an action may be maintained by any one individual of that class who can satisfy the jury that the words referred especially to himself. The words must be capable of bearing such special application, or the judge should stop the case.' Odgers, Libel and Slander, p. 127. The Supreme Court in Hardy v. Williamson, 86 Ga. 551, 12 S.E. 874, 876, after approvingly quoting the above had this further comment: 'While, at first sight, the words contended to be libelous in this case may appear to apply only to the subordinate engineers as a class, and not to be specially defamatory of any particular one of them, still, if this plaintiff can satisfy the jury that the words referred especially to him, under this rule he would be authorized to maintain the action.' The Hardy v. Williamson and the Colvard v. Black cases, supra, are cases common with the case at bar in that no specific party was named in either of the libelous articles upon which the suits were predicated.

The language of an alleged libel must be construed, not by what the writer intended to mean, but by the construction which would be placed upon it by the average and reasonable reader. Southeastern Newspapers v. Walker, 76 Ga.App. 57, 60, 44 S.E.2d 697. Whether or not an average and reasonable reader, under the circumstances, in reading the libelous article may have determined that the unnamed party referred to therein is the plaintiff in this case is a question for a jury to determine. Horton v. Georgian Co., 175 Ga. 261(2), 165 S.E. 443, supra; Warner Brothers Pictures, Inc., v. Stanley, 56 Ga.App. 85, 109, 192 S.E. 300; Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times L.R. 581, 99 A.L.R. 864.

Paragraph 3 of the petition alleges that 'the defendant did falsely, wickedly and maliciously compose, publish, print and cause to be composed, published and printed * * * false, scandalous, malicious and defamatory libel of the petitioner.' The aforesaid allegations were demurred to specially in paragraph 3 of the demurrers on the ground that 'said allegations represents a conclusion of the plaintiff and is not supported by any allegations appearing in said paragraph or elsewhere in said petition.' In paragraph 10 of the petition it was again charged that the libel complained of was 'false, malicious and defamatory.' In paragraph 11 of the petition said libel was referred to as 'false and malicious.' We construe these allegations to be general charges of express malice, said charge being made generally in each of paragraphs 3, 10 and 11 of the petition. The only special demurrer addressed to these general charges is addressed to the general charges in paragraph 3 of the petition. A general charge of express malice is good against a general demurrer. Shiver v. Valdosta Press, 82 Ga.App. 406, 61 S.E.2d 221; Central of Georgia R. Co. v. Sheftall, 118 Ga. 865, 867(2), 45 S.E. 687. However where a special demurrer demands that the facts be set out sufficiently to show express malice, and there are no facts in the petition setting forth express malice, the special demurrer should be sustained. Western Union Telegraph Co. v. Nix, 73 Ga.App. 184(2), 36 S.E.2d 111. The...

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