Ivins v. Louisville & N. R. Co, (No. 18197.)

• Decision Date: 17 January 1928
• Docket Number: (No. 18197.)
• Citation: 141 S.E. 423,37 Ga.App. 684
• Parties: IVINS. v. LOUISVILLE & N. R. CO.
• Court: Georgia Court of Appeals

37 Ga.App. 684

141 S.E. 423

IVINS.

v.LOUISVILLE & N. R. CO.

(No. 18197.)

Court of Appeals of Georgia,

Division No. 2.

Jan. 17, 1928.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by J. B. Ivins against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

Harwell, Fairman & Barrett, of Atlanta, for plaintiff in error.

Tye, Peeples & Tye, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

BELL, J. [1] 1. Where, from the allegations in an action for defamation, it is uncertain whether the words complained of were written or spoken, that is, whether the plaintiff is suing for a slander or for a libel, but it is fairly probable from all the averments made that the words were written, and therefore that the plaintiff's intention was to sue for a libel, an amendment which seeks merely to remove the ambiguity is not objectionable as adding a new and distinct cause of action. In such a case a petition which describes the cause of action as a "slander" may be amended by substituting the word "libel." Verdery v. Barrett, 89 Ga. 349 (1), 15 S. E. 476; Armour & Co. v. Ross, 110 Ga. 403 (1), 35 S. E. 787; City of Columbus v. Anglin, 120 Ga. 785 (5), 48 S. E. 318; Albany V. Cameron Co., 121 Ga. 794 (1), 49 S. E. 798; Atlanta & W. P. R. Co. v. Ga. Ry., etc., Co., 125 Ga. 798 (1, 2), 54 S. H. 753; Atkinson v. Brantley, 15 Ga. App. 129 (1), 82 S. E. 773; Smith v. Rome, 16 Ga. App. 96 (1), 84 S. E. 734; 25 Cye. 248. This is not to hold that a suit for slander may be converted by amendment into a suit for libel.

2. In the petition as amended, the plaintiff in several paragraphs sought a recovery for written words as libels, and in other paragraphs complained of distinct oral words as a slander. Under the decisions in this state, a corporation is not liable for a slander or oral defamation by an agent, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question. Headley v. Maxwell Motor Co., 25 Ga. App. 26, 102 S. E. 374, and cases cited.

3. In a suit against a corporation for an alleged slander by one of its agents, where the petition alleged that the "utterances were expressly authorized and ratified by the defendant company, " and where this averment was specially demurred to upon the ground that it was not shown "when, where, or how" the alleged slanderous words were authorized or ratified, the demurrer was properly sustained, in the absence of more specific allegations.

4. Averments to the effect that, as a result of an alleged slander uttered by one agent of the defendant, and certain libels alleged to have been committed by another agent, the plaintiff was discharged from the defendant's employment, and that, after knowledge of "said alleged libelous and slanderous matter, " the defendant failed to repudiate the same, and the "dismissal of plaintiff from defendant's service continues, " and that the defendant has refused the plaintiff's applications for reinstatement after "knowledge of the alleged libelous and slanderous acts and words of its said servants and agents, " are insufficient to show a ratification by the defendant of the alleged slander.

5. But in cases of libel the rule is different, and it is not essential to the cause of action that express or direct authority of the agent to utter the libel should be shown. So, in a suit against a corporation for a libel by one of its agents, where the libelous matter is otherwise sufficiently set forth, an allegation that the libel was uttered by the agent within the scope of the company's business and in the course of the agent's employment is sufficient to charge the corporation. Behre v. National Cash Register Co., 100 Ga. 213, 27 S. E. 986, 62 Am. St. Rep. 320; Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 (1), 38 S. E. 989, 84 Am. St. Rep. 250; Civil Code 1910, § 4413.

6. A written statement charging another with having committed a crime is libelous per se. Atlanta News Co. v. Medlock, 123 Ga. 714 (1), 51 S. E. 756, 3 L. R. A. (N. S.) 1139.

7. In an action for libel, that the publication was privileged is a matter for plea, and, being defensive, can be taken advantage of by demurrer only when all the facts essential to establish the defense affirmatively appear in the plaintiff's petition. Nicholson v. Dillard, 137 Ga. 225 (4), 73 S. E. 382; Bibb v. Crawford, 6 Ga. App..145 (3), 64 S. E. 488; Adams v. Scribner, 36 Ga. App. 15, 135 S. E. 110; Brown v. McCann, 36 Ga. App. 812, 138 S. E. 247.

8. "To make the defense of privilege complete, in an action of slander or libel, good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper...