Horton v. Georgian Co.

• Decision Date: 10 August 1932
• Docket Number: 8431.
• Parties: HORTON v. GEORGIAN CO.
• Court: Georgia Supreme Court

165 S.E. 443

175 Ga. 261

HORTON v. GEORGIAN CO.

No. 8431.

Supreme Court of Georgia

August 10, 1932

Syllabus by the Court.

Publication of untrue statement in writing tending to injure another's reputation, and exposing him to public hatred contempt, or ridicule, is rebuttably presumed malicious (Civ Code 1910, § 4431).

Whether newspaper articles stating attorney was charged in civil suit with misusing trust funds, and referring to investigation of plot for murder of settlor, was libelous, held for jury (Civ. Code 1910, §§ 4431, 4432).

Generally whether particular publication is libelous and concerns plaintiff is fact question for jury.

Whether newspaper articles mentioning plaintiff attorney in connection with "murder plot" investigation charged plaintiff with commission of crime held for jury, in view of allegations of innuendo.

Whether newspaper articles charged "administrator" with part in plot to conceal cause of testatrix' death held for jury.

Newspaper articles referring to civil suit against plaintiff held not privileged as to additional statements regarding "murder plot" (Civ. Code 1910,§ 4432).

1. Under the terms of section 4431 of the Civil Code of 1910, a false defamation of another, by means of a newspaper publication which may tend to injure the reputation of any individual and expose him to either hatred, contempt, or ridicule, is libelous. The publication of a statement in writing, which is untrue, and which may tend to injure the reputation of another and expose him to public hatred contempt, or ridicule, will be presumed to have been a malicious publication until sufficient evidence has been produced to rebut the presumption.

2. Under the allegations of the petition in this case, the question as to what effect would be produced upon the public by reading the words employed in the publication, as also the determination of the question whether or not the tendency of the alleged publication was to bring the petitioner into hatred, contempt, or ridicule, is an issue of fact for the jury, and not a matter to be determined as matter of law by the court. As a general rule, the question whether a particular publication is libelous, as well as whether the alleged libelous matter was published of and concerning the plaintiff, is a matter of fact to be determined by a jury.

3. Aided by the allegations of innuendo made in explanation of the words "murder plot" in one of the publications, a jury might be authorized to find that the plaintiff was charged with the commission of a crime; and the Court of Appeals erred in holding, as matter of law, that none of the words used in the newspaper articles attached to the petition charged the commission of a crime to the petitioner. The Court of Appeals erred in holding, as a matter of law, that the petitioner is not charged in the alleged publications to have been concerned in a plot to conceal the cause of Mrs. Tucker's death by conspiring to prevent a proper examination of the cause of her death, and to avoid the issuance of a proper certificate of death as required by law.

4. Under the Civil Code of 1910, § 4432, fair and honest reports of the proceedings of judicial bodies or court proceedings are deemed to be privileged communications. Whether the publication in question was privileged to the extent that it contained a report of judicial proceedings, it was not limited to matter of this character, but contained additional statements tending to injure the reputation of the plaintiff and to expose him to public hatred and ridicule.

Certiorari to Court of Appeals.

Suit by O. E. Horton against the Georgian Company. Judgment for defendant was affirmed by the Court of Appeals (43 Ga.App. 19, 157 S.E. 892), and plaintiff brings certiorari.

Reversed.

ATKINSON, J., dissenting.

Branch & Howard, M. C. Horton, and Anderson, Rountree, Crenshaw & Hansell, all of Atlanta, for plaintiff in error.

Randolph & Woodruff, Harold Hirsch & Marion Smith, and D. F. McClatchey, Jr., all of Atlanta, for defendant in error.

RUSSELL C.J.

This was an action brought by the plaintiff against the defendant, in which the plaintiff sues for $100,000 damages. Since the defendant is alleged to be the publisher of a newspaper, it may be presumed that the action is based upon the provisions of the Civil Code of 1910, § 4431, which had its origin in the act of 1893 (Ga. Laws 1893, p. 131), instead of under the provisions of section 4428, which pertains to the subject of libel generally. In the superior court the petition was dismissed on general demurrer. The plaintiff carried the case by bill of exceptions to the Court of Appeals, where the judgment of the lower court was affirmed. It is now before this court upon a writ of certiorari to the Court of Appeals, which was allowed by this court in view of the importance of the questions involved and the extensive scope of the propositions presented as affecting the public generally.

Plaintiff's petition alleges that during the months of October and November, 1929, the Georgian Company published each day more than one edition of a newspaper, the Atlanta Georgian, under different designations. Plaintiff is a member of the firm of Horton Bros., a firm composed of O. E. Horton and M. C. Horton, practicing attorneys at law in the state of Georgia, their office being in the city of Atlanta. On Wednesday, October 30, 1929, there was published in thehome edition of the Atlanta Georgian, on the front page of the paper, with conspicuous headlines, an article in which petitioner and the firm of Horton Bros., of which he is a member, were mentioned. The article referred to is attached to the petition as Exhibit 1. The headlines are as follows:

"Atlanta Georgian--Wednesday, October 30, 1929--Home Edition.

"Expect Poison Murder Plot Baring Here.

"Exhuming of Woman's Body May Reveal 13-year old Slaying.

"Revelation of a poison murder plot, through which two women met their death 13 years ago, loomed as a possibility to-day with the exhumation in Anderson, S. C., yesterday of the body of Mrs. Clemmie Garrison Tucker, former wealthy Atlantan. As an outgrowth of the strange order for the disinterment of the woman's body, two prominent Atlanta attorneys have been named in a Fulton County superior court suit charging they misused the funds left by Mrs. Tucker 'for the education of poor girls,' The Georgian learned exclusively to-day. According to Sam Murrell, member of the Atlanta law firm of Murrell, Murrell, and Murrell, who secured the court order for Mrs. Tucker's disinterment and having her vital organs analyzed for traces of poison by the South Carolina chemist, Mrs. Tucker died here under mysterious circumstances which were not probed at the time of her death. Mrs. Tucker, who left an estate, with no direct heirs, said to be valued at $300,000, died suddenly within three days after an unnamed woman spent the night in the house on South Pryor Street in which she lived alone.

"Violently Ill.

"She became violently ill the following day, and died in a local sanitarium, where it was said her death certificate has become lost.

No investigation was then made. Less than two months later, according to Mr. Murrell, the woman whospent the night at Mrs. Tucker's home died suddenly also--under like circumstances. Recently, Mr. Murrell said, he came into definite information that Mrs. Tucker died as the result of poison. Two prominent Atlantans indirectly involved in the case are O. E. and M. C. Horton, of the law firm of Horton & Horton Brothers, with offices in the Atlanta Savings Bank Building.

"Were Administrators.

"The Horton Brothers were named as administrators of Mrs. Tucker's will, and in a suit filed in Fulton County superior court on October 23, the Murrell law firm charged them with misuse of funds left in their care by Mrs. Tucker. The section of the very short will which names the two Hortons follows, dated October 1, 1915. 'I give, devise, and bequeath to O. E. and M. C. Horton, in trust, all of my estate that I have at the time of my death, after payment of my funeral expenses, to be invested in safe securities and the income therefrom to be used for the purpose of educating poor, worthy girls of good family and legitimate. This fund to be used as the Frances Clementine Tucker Fund.'

"Charge Misuse.

"In the suit brought by the Murrell firm they charge the Hortons have misused the dead woman's money by loaning it instead of giving it for the purpose of educating the girls. They cite two alleged instances of such charges in the petition accompanying suit."

In Exhibit 1 is also set forth a copy of an extract from the Atlanta Georgian of Wednesday, October 30, 1929 (on which the edition does not appear), an eight-column streamer, page 15:

"Suspected Poisoning Investigated After Thirteen Years.

"Woman's Body Disinterred for Exam.

"Sensational developments, involving a suspected 13-year-old poison murder plot, were expected to-day, following the exhumation in Anderson, S. C., yesterday of the body of Mrs. Clemmie Garrison Tucker, former wealthy Atlantan. Mrs. Tucker's body was disinterred on an order secured by an Atlanta attorney, in Anderson, to examine her vital organs for traces of poison.

"Dead 13 Years.

"The wealthy former Atlantan died here 13 years ago, and her body was removed to Anderson, her former home, for burial. She left an estate valued at more than $200,000, and circumstances surrounding her death, at the time, were not considered suspicious. Recently, however, the attorney for the woman's estate, came into information which showed his former client died under mysterious circumstances. Operating with the greatest secrecy, he obtained a South Carolina court to exhume the woman's body for a

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