Lamb v. Fedderwitz

• Decision Date: 12 May 1944
• Docket Number: 30483.
• Citation: 30 S.E.2d 436,71 Ga.App. 249
• Parties: LAMB v. FEDDERWITZ et al.
• Court: Georgia Court of Appeals

30 S.E.2d 436

71 Ga.App. 249

LAMB v. FEDDERWITZ et al.

No. 30483.

Court of Appeals of Georgia, Division No. 2.

May 12, 1944

Rehearing Denied June 7, 1944.

Syllabus by the Court.

Pierce Bros. and W. D. Lanier, both of Augusta, and Perry Brannen of Savannah, for plaintiff in error.

Shelby Myrick and Hitch, Morris & Harrison, all of Savannah, for defendants in error.

SUTTON Presiding Judge.

This is a suit for libel by D. J. Lamb against Henry Fedderwitz and others constituting the Brewers & Beer Distributors Committee of Georgia. The case has been here once before, and it was held that the petition set out a cause of action good against the defendants' demurrer (Lamb v. Fedderwitz, 68 Ga.App. 233, 22 S.E.2d 657) and, on certiorari, the Supreme Court affirmed the decision of this court. Fedderwitz v. Lamb, 195 Ga. 691, 25 S.E.2d 414. A statement of the alleged libelous report made by the defendants to the State Revenue Commissioner is set out in the two written reports of the case just referred to. The defendants had filed an answer in which they denied making and publishing the alleged libelous report; and when the case went back for trial they filed an amendment admitting the publication of the alleged libelous report but denying that it was made maliciously or with any intent to injure the plaintiff in his person, reputation or business, but on the contrary alleged it was made "in behalf of the defendants in the performance of a public duty, and also in the performance of a private duty, and was also made with the bona fide intent to protect their own interests in their business and occupation in a matter in which they were concerned, and that the said report and writing and the statements therein were and are therefore privileged, and are not actionable." Defendants further amended their answer by adding thereto a plea of justification, as follows: "And for further answer and defense defendants show and say that the alleged defamatory statements set forth in the 20th paragraph of plaintiff's petition were true and that accordingly these defendants are in no wise liable to the plaintiff in damages or otherwise." These two amendments were introduced in evidence by the plaintiff.

The plaintiff introduced evidence tending to establish the allegations of his petition. He testified as to the location and general set up of his place of business--Lamb's Tavern--and that it was operated in an orderly, decent and lawful manner, and that he did not allow any improper conduct on the premises or any immoral relationship or practices between men and women at his place of business. He testified that his license to sell beer and wine was revoked without a hearing on account of the alleged libelous report and as to his income before and after said report and as to his damages; that his mother and daughter-in-law were the only women who worked at his place of business, his mother being more than eighty years old. His daughter-in-law testified as to the decent manner in which Lamb's Tavern was operated and that there was no improper conduct allowed on the premises or any immoral practices. A deputy sheriff of Richmond County testified that he was familiar with Lamb's Tavern and the manner in which it was operated and that the reputation of the place was good.

At the conclusion of the plaintiff's evidence, the court granted a nonsuit and the exception here is to that judgment.

1. The plaintiff in error contends that the court erred in granting a nonsuit, because the evidence introduced tended to prove the allegations of the petition and was sufficient to carry the case to the jury; that publication of the article in question was admitted, that it was libelous per se and malice was inferred from the character of the charge; that it was for the jury to determine from the alleged libel and the other evidence whether or not the article was published maliciously; that the defendants filed a plea of justification and qualified privilege and the burden was on them to sustain such pleas.

"A libel is a false and malicious defamation of another, expressed in print, or writing, or pictures, or signs, tending to injure the reputation of an individual, and exposing him to public hatred, contempt, or ridicule. The publication of the libelous matter is essential to recovery." Code, § 105-701. It will be seen that malice is one of the essential elements of libel. Code, § 105-706, declares: "In all actions for printed or spoken defamation, malice is inferred from the character of the charge. The existence of malice may be rebutted by proof, which in all cases shall go in mitigation of damages, and in cases of privileged communications it shall be in bar of the recovery." The defendants admit making the alleged libelous report to the Revenue Commissioner but deny that it was made maliciously, and they contend that it was privileged. The privileged communications enumerated in Code, § 105-709, have been held to be conditional privileges. The first three paragraphs of this section are as follows: "1. Statements made bona fide in the performance of a public duty. 2. Similar statements in the performance of a private duty, either legal or moral. 3. Statements made with the bona fide intent, on the part of the speaker, to protect his own interests in a matter where it is concerned." The defendants in this case plead the statements in the article in question were privileged under these three paragraphs of the Code section just mentioned. The next Code section, § 105-710, provides: "In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action." It has been held that these two Code sections should be construed together, and it will be observed that good faith and good intention are necessary and essential ingredients of such privileged communications. The statute says: statements made bona fide in the performance of a public or private duty, statements made with a bona fide intent; if the privilege is used as a cloak, and not bona fide, etc., the party shall have a right of action. It was held in Holmes v. Clisby, 118 Ga. 820(2), 45 S.E. 684, 686, "If the communication is properly to be classed as one made in the interest of the defendant, the question whether it is or is not privileged would be dependent upon the intention with which it was published. If bona fide, with the sole purpose of protecting himself, it would be; if otherwise, it would not. This question of intention is a question of fact, to be submitted to and determined by a jury. If published with such an intention as would justify a classification of the communication as privileged, this would be a matter of defense of which the defendant could avail himself by proper plea." See, Flanders v. Daley, 120 Ga. 885(4), 48 S.E. 327, to the same effect. In Sheftall v. Central of...