Hardboard Machinery Co. v. Coastal Products Corp.

• Decision Date: 29 June 1967
• Docket Number: Civ. A. No. 726-729.
• Parties: HARDBOARD MACHINERY CO., Inc., Plaintiff, v. COASTAL PRODUCTS CORPORATION and Robert D. Conner, Defendants. The TAYLER CORPORATION, Plaintiff, v. COASTAL PRODUCTS CORPORATION and Robert D. Conner, Defendants. WALLBOARD DRAYER CORPORATION, Plaintiff, v. COASTAL PRODUCTS CORPORATION and Robert D. Conner, Defendants. William R. TAYLER, Plaintiff, v. COASTAL PRODUCTS CORPORATION and Robert D. Conner, Defendants.
• Court: U.S. District Court — Middle District of Georgia

289 F. Supp. 496

HARDBOARD MACHINERY CO., Inc., Plaintiff, v. COASTAL PRODUCTS CORPORATION and Robert D. Conner, Defendants.

The TAYLER CORPORATION, Plaintiff, v. COASTAL PRODUCTS CORPORATION and Robert D. Conner, Defendants.

WALLBOARD DRAYER CORPORATION, Plaintiff, v. COASTAL PRODUCTS CORPORATION and Robert D. Conner, Defendants.

William R. TAYLER, Plaintiff, v. COASTAL PRODUCTS CORPORATION and Robert D. Conner, Defendants.

Civ. A. No. 726-729.

United States District Court M. D. Georgia, Valdosta Division.

June 29, 1967.

Reinhardt, Ireland, Whitley & Sims, Tifton, Ga., for plaintiffs.

Parker, Foster & Madigan, Tallahassee, Fla., Franklin, Barham, Coleman, Elliott & Blackburn, Valdosta, Ga., for defendants.

MEMORANDUM

BOOTLE, Chief Judge.

I have decided to sustain the motions to dismiss these four libel suits.

In Georgia libel and slander are succinctly defined in Code §§ 105-701 and 105-702 (and newspaper libel in 105-703). Under § 105-702 "charges made against another in reference to his trade, office, or profession, calculated to injure him therein" are actionable per se, because in such instances said Code Section says "damage is inferred." Van Epps v. Jones, 50 Ga. 238 (1873).

We pretermit the question whether it is sufficiently alleged, or could be, that the words complained of were used "in reference to" plaintiffs' "trade, * * * or profession." In Van Epps, the court said:

"The defect in the declaration is, that it does not charge that the words were used in reference to the plaintiff's profession. The statute is positive, that they must be so spoken or made. Nor is there anything in the declaration from which it can be fairly inferred that the charge was made in reference to plaintiff's profession. It is not enough that defendant knew he plaintiff was a lawyer. Can it be contended that it is actionable to say of a lawyer that he will not pay his debts, much less a particular debt? I am not sure that it would be actionable to say of a lawyer, falsely, that he would not pay some particular money collected by him as a lawyer, or that it would be actionable to say of a blacksmith, untruly, that he had burned a certain horse in shoeing him. The authorities indicate that the charge must be of something that affects his character generally in his trade. A particular act may or may not do this, and the matter would depend on the colloqium. But the authorities are uniform that the words must be charged to have been used in reference to one's trade or profession. The speaker must have had the trade or profession of the plaintiff in view, and utter the words in reference to it, as if he should say of a grocery merchant, he keeps false weights, or of a lawyer, that he won't pay his clients the money he collects for them: Starkie on Slander, 109, 126. It would be entirely a new ground of action to hold that it was actionable to utter of a lawyer that he refused to pay a particular debt, there being nothing in the words or in the colloqium to indicate that the speaker was alluding to him as a lawyer. Such a rule would put lawyers on a vantage ground that the law has not put them on: See Starkie on Slander, 109, 126." pp. 241, 242.

Similarly, it may be asked in these cases whether it is actionable to say of the plaintiffs that they in one instance made a mistake in concluding that one firm was indebted to them, or that they in one instance were late in rendering an accounting, absent any charge that they generally or customarily do such things. See also Mell v. Edge, 68 Ga.App. 314(1), 22 S.E.2d 738 (1942) and Ford v. Lamb, 116 Ga. 655, 42 S.E. 998 (1902).

But there is another phrase in the definition, namely, "calculated to injure him therein." That raises the question whether the language used in these three letters complained of is libelous or not. In 33 Am.Jur., Libel and Slander, § 5, page 41, it is said:

"* * * the conclusion must not be drawn that every conceivable statement will give rise to a cause of action on proof of injury to another. Where words are innocent or justifiable they will not support an action even though they may have occasioned some special damage, and it has been said that in per quod actions it is not only necessary to show that the language used did produce actual damage, but it must also appear that such language was defamatory and scandalous,"

and in determining whether words are defamatory and scandalous or not, the same authority, in § 84, page 97, continues:

"A forced construction is not to be put upon words in order to relieve the defendant from liability; nor will the courts hunt for a strained construction in order to hold the words libelous. Now, words are to be taken not in their mildest or most grievous sense, but in that sense in which they would be understood, and in which they appear to have been used, and according to the idea which they are adapted to convey to those who hear them, or to whom they are addressed. The ordinary signification in popular parlance of the statement made is the vital question in each case, or, in other words, it is a question of the natural and obvious meaning of the words used, * * *."

See Anderson v. Kennedy, 47 Ga.App. 380, 170 S.E. 555 (1933).

Three letters are complained of, all virtually the same, except as to addressees and names of plaintiffs referred to, and while two of the letters say "we have been unable to get an accounting", the third says "they have not yet given us an accounting." It is obvious that these letters are defensive in nature. The writer begins by acknowledging receipt of a copy of a letter dated 8 days earlier, written by the individual plaintiff (as distinguished from the three corporate plaintiffs) in which the individual plaintiff had alleged that the corporate defendant had failed to pay ("failure to pay") one or more of the corporate plaintiffs. The complained of letters continue: "We are not at this time indebted to Hardboard Machinery Company, Inc. for any amount which is due and payable." (Underscoring supplied). The letters continue to recite that the corporate defendant had advanced certain sums to the corporate plaintiffs many months ago as a deposit on equipment to be furnished by them and that "at this date we owe them nothing that is due and payable. In fact, they have not yet given us (in two letters `we have been unable to get') an accounting for the $285,000 which we advanced to them." The letters conclude with this paragraph.

"We hope you will be able to resolve to your satisfaction any problems you have with these people. We felt compelled, in view of Mr. Tayler's letter, to write you and set the record straight that we are not responsible for any cash difficulties which Mr. Tayler or his (`various' in two letters) corporations might be experiencing." All emphasis supplied).

The plaintiffs and the corporate defendant were having complicated business transactions involving large sums of money and a complicated written contract which was rescinded by a second contract, which second contract was revised by a third and fourth contract under all of which the plaintiffs were constructing a manufacturing plant for the corporate defendant. During the progress of the construction the plaintiffs wrote three letters to some suppliers of machinery and equipment alleging that plaintiffs' failure to pay these suppliers had resulted from the corporate defendant's "failure to pay" the plaintiffs. While this charge made by plaintiffs against the corporate defendant may or may not be libelous (we have not seen those letters), it was nevertheless of such serious nature as to prod the defendants into feeling "compelled * * * to write * * * and set the record straight." We pretermit the question here whether these suits could be dismissed because of Code § 105-709, which says:

"The following are deemed privileged communications:

"* * *

"3. Statements made with the bona fide intent, on the part of the speaker, to protect his own interest in a matter where it is concerned,"

this pretermission being on the theory that this is a conditional privilege and the burden rests upon the defendants to prove the elements thereof including bona fide intent. Sheftall v. Central of Georgia Railway Company, 123 Ga. 589, 51 S.E. 646 (1905); Lamb v. Fedderwitz, 71 Ga.App. 249, 252-254, 30 S.E.2d 436 (1944); Ivins v. Louisville & Nashville Railroad Company, 37 Ga.App. 684, 685(8), 141 S.E. 423 (1928). To the contrary, however, see Whitley v. Newman, 9 Ga.App. 89, 70 S.E. 686 (1910) holding that it was proper to dismiss on demurrer a slander suit charging that a representative of plaintiff's employer had said to plaintiff's wife, "Mr. Whitley plaintiff is short with us * * *. For your meaning Mrs. Whitley own good, you had better give me this mortgage, for in the wind-up you will have to pay it" notwithstanding the fact that the complaint alleged that the speaker knew that his statement was untrue and that it was not made bona fide in the performance of any duty nor with a bona fide intent to protect his own interest. (Pages 92 and 93, 70 S.E. page 687). To the same effect, see Hardeman v. Sinclair Refining Company, 41 Ga.App. 315, 152 S.E. 854 (1930). At any rate, we think it proper to consider the defensive and privileged character of the letters in determining the sense "in which they appear to have been used, and * * * the idea which they are adapted to convey * * *." 33 Am. Jur., Libel and Slander, § 84, page 97.

The law looks a little askance at one's failure to deny a specific charge made in his presence. If the defendants had not denied this charge of "failure to pay" could the defendants reasonably apprehend that in the breach of contract litigation then in the offing, and which was instituted in this court on the same day these four libel suits were filed, (in the breach of contract litigation The Tayler Corporation and Hardboard Machinery Co., Inc. claim against Coastal Products Corporation $457,855.98,...