Howe v. Bradst. Co

• Decision Date: 10 January 1911
• Citation: 69 S.E. 1082,135 Ga. 564
• Parties: HOWE v. BRADSTREET CO. et al.
• Court: Georgia Supreme Court

69 S.E. 1082

135 Ga. 564

HOWE

v.BRADSTREET CO. et al.

Supreme Court of Georgia.

Jan. 10, 1911.

(Syllabus by the Court.)

Action (§ 50^*) — Joint Action — Distinct Publications op Libel.

If there are two distinct publications of the same libel, and there is no concert of action between the first and second publishers, a joint action against them will not lie.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 524-526; Dec. Dig. § 50.*]

Error from Superior Court, Lowndes County; R. G. Mitchell, Judge.

Action by R. E. Howe against the Brad-street Company and others. Demurrer filed by defendant company was sustained, and plaintiff brings error. Affirmed.

G. A. Whitaker, H. B. Simmons, and Shipp & Sheppard, for plaintiff in error.

Smith, Hammond & Smith and Denmark & Griffin, for defendants in error.

EVANS, P. J. R. E. Howe brought suit in the superior court of Lowndes county against Joseph Stump, of that county, and the Garrett-Williams Company and the Bradstreet Company, nonresident corporations, to recover damages for the publication of an alleged libel. The defendant Stump was served, the Garrett-Williams Company was dismissed as a party defendant, and the Bradstreet Company's agent was served by second original in Bibb county. The petitioner alleged that he was a retail liquor dealer doing business at De Soto, Ga., the Garrett-Williams Company was a wholesale liquor dealer of Baltimore, Md., that sold him goods on credit, the Bradstreet Company was a mercantile corporation of New York, engaged in the business of furnishing reports for a moneyed consideration to wholesale dealers, on which report they would grant credit to merchants, and Stump was the traveling salesman of the Garrett-Williams Company; that the Bradstreet Company, about October 1, 1906, for a valuable consideration, furnished to the Garrett-Williams Company a written report, which was set out in haec verba, the substance of which was to impute to the plaintiff the crime of arson; that on October 6th the Garrett-Williams Company sent the writing to its salesman, Stump, who, on October 8th, at the instance of his employers, mailed it to S. L. Sills, at Americus, Ga., who "was a wholesale liquor dealer or distributor at Americus, Ga., and sold goods in De Soto, Ga., and the goods of the said Gar-.. rett-Williams Company which were sold to plaintiff at De Soto, Ga., were sold through and by the advice of the said S. L. Sills, and, said report being of and concerning your petitioner, it was natural and expected that when the said Garrett-Williams Company received the same that it would be referred to the said S. L. Sills." It was alleged that the report was false and maliciously published. The Bradstreet Company demurred to the petition, on the ground that under the allegations it was not jointly liable with the local defendant, and that the court was without jurisdiction as to it. The demurrer was sustained.

Under the Constitution (Civ. Code 1895, § 5872), suits against joint trespassers residing in different counties may be tried in either county. Persons who jointly publish a libel are joint trespassers within this constitutional provision. Cox v. Strickland, 120 Ga. 104, 47 S. E. 912. The demurrer raises the point that the Bradstreet Company and the local defendant, under the allegations of the petition, did not jointly publish the alleged libel, and therefore the former could not be sued in the county of the residence of the latter. Publication of a libel is essential to a recovery. All who engage in the publication of the writing are liable as publishers; and where they jointly engage in the publication, their act is joint, and they may be jointly sued. After a libel is published, and subsequently the same libel is again published by an independent party, without participation by the first publisher, the republication is independent and separate from the first publication....