Ivester v. Coe, (No. 15830.)

• Decision Date: 10 April 1925
• Docket Number: (No. 15830.)
• Citation: 127 S.E. 790,33 Ga.App. 620
• Parties: IVESTER. v. COE.
• Court: Georgia Court of Appeals

33 Ga.App. 620

127 S.E. 790

IVESTER.

v.COE.

(No. 15830.)

Court of Appeals of Georgia, Division No. 2.

April 10, 1925.

(Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Slander.]

Error from Superior Court, Stephens County; J. B. Jones, Judge.

Action by Leonora Coe, by next friend, against J. C. Ivester. Judgment for plaintiff, and defendant brings error. Affirmed.

Fermor Barrett, of Toccoa, and J. J. & Sam Kimzey, of Cornelia, for plaintiff in error.

John C. Bell, of Gainesville, and T. G. Dorough, of Toccoa, for defendant in error.

JENKINS, P. J. [1, 2] 1. "Slander, or oral defamation, consists, first, in imputing to another a crime punishable by law, " or, among other charges and disparaging words recognized by the statute, it may consist in charging a person of "being guilty of some debasing act which may exclude him from society." Civil Code 1910, § 4433. Words charging a person with illegal sexual intercourse with another impute a crime and are actionable per se. Penal Code, § 372; Nicholson v. Dillard, 137 Ga. 225, 231, 73 S. E. 382; Richardson v. Roberts, 23 Ga. 215, 221 (8).

2. An essential ingredient of an action for libel is malice, express or implied (Civil Code 1910, § 4428; State Mut. Life Ass'n v. Baldwin, 116 Ga. 855[1], 43 S. E. 262), and it would seem that the same rule should apply where the statement is merely oral and not written or printed (Civil Code, § 4429; Nelson v. Davis, 9 Ga. App. 131, 137, 70 S. E. 599), but where the language used is actionable per se, malice is implied, except where the occasion of the utterance renders it privileged, in which case, while the occasion does not excuse if the accusation is maliciously made (Civil Code, § 4437), the burden is put upon the plaintiff to establish malice (Lester v. Thurmond, 51 Ga. 118;482 Hendrix v. Daughtry, 3 Ga. App. 481, 60 S. E. 206).

3. Communications which are deemed privileged may be such in an absolute sense (Civil Code, § 4438), or may be only conditionally so. Among the latter are communications made in the performance of a private duty, either legal or moral, and statements made to protect the speaker's own interest in a matter where it is concerned. Civil Code, § 4436 (1, 2, 3). In order to make the defense of privilege complete, the defendant must show, among other things, a proper occasion for the utterance, and that the publication was limited to proper persons. In the instant case the charge by the defendant, impugning the chastity of the plaintiff, whether it consisted of the language alleged in the petition or that set forth in the plea, was admittedly made, not only in the presence of the plaintiffs father, but in the presence of some four or five other witnesses, whose presence was then and there procured by the defendant. Consequently, it cannot be said that the plea setting up that the communication was privileged was in any wise sustained. Sheftall v. Cent, of Ga. Ry. Co., 123 Ga. 589, 51 S. E. 646.

4. In a suit for slander, charging the utterance of language which is slanderous per se, where the utterance was not privileged, the defendant may defend by denying that the words were uttered, or he may defend by setting up the truth of the charge in full justification. Civil Code 1910, § 4435. Where the plea in effect admits the utterance of language the natural and reasonable construction of which imputes a crime, and reiterates the charge, nothing short of proving the truth of the charge as admittedly made will justify a verdict in favor of the defendant. In the absence of such proof, malice is conclusively presumed, but, if the defendant should partially and imperfectly establish his charge by the production of evidence strongly tending to establish, though failing to establish the same, the jury may mitigate the damages imposed, on the theory that the defendant, though wrongfully negligent and guilty of legal malice in making the accusation, was not moved therein by the promptings of actual and express malice. In the instant case no exception is taken to any charge as made, nor to any failure to comply with a written request to charge, relating to the measure of damages or their mitigation, but complaint is made that the charge as a whole failed to state properly the law of the case, especially with reference to mitigation of damages, and that the court should have charged without request—

"the correct rule for the jury to assess damages, and the correct rule by which the jurycould consider the pleadings filed by the defendant, and the evidence offered by the defendant on the question of mitigating the damages, if the jury believed that the defendant had published the slander alleged."

The court gave in charge the language of section 4429 of the Civil Code, and in other instructions gave the defendant the full benefit of the principle of law as above set forth in mitigation of damages.

5. The court did not err in admitting, over the defendant's objection that it was irrelevant and unauthorized by the pleadings the evidence of the plaintiff to the effect that, one or two weeks before the alleged slander, the defendant had unsuccessfully attempted to kiss and to forcibly embrace her. Such evidence was material on the issue as to good faith or malice of the defendant in making the alleged communications to the father in the presence of several witnesses. 17 E. C. L 167. See, also, Ad-kins v. Williams, 23 Ga. 222 (1), 224; 36 C. J. 1246, 1248. This was one of the vital issues in the case under certain portions of the testimony tending to show that the presence of the witnesses and the making of the statements arose from the initiative and acts of the defendant alone.

6. "Talebearers are as bad as tale-makers." Every repetition of a slander originated by a third person is a willful publication of it, rendering the person so repeating it liable to an action, and it is no defense that the speaker did not originate the slander, but heard it from another, even though he in good faith believed it to be true. Cox v. Strickland, 101 Ga. 482 (3), 493, 28 S. E. 655; Anderson v. Savannah Press Pub. Co., 100 Ga. 454, 28 S. E. 216; Richardson v. Roberts, 23 Ga. 215 (3, 4), 220; Bennett v. Crumpton, 1 Ga. App. 476, 478, 58 S. E. 104; Newell on Slander & Libel (4th Ed.), p. 337; Odgers on Libel & Slander, 173. The charge giving in effect this rule was not an erroneous statement as to the law, nor was it unauthorized, as...