Lamb v. Fedderwitz

• Decision Date: 10 October 1942
• Citation: 22 S.E.2d 657
• Parties: LAMB. v. FEDDERWITZ et al.
• Court: Georgia Court of Appeals

22 S.E.2d 657

LAMB.

v.FEDDERWITZ et al.

Court of Appeals of Georgia, Division No. 2.

No. 29582.

Oct. 10, 1942.

Rehearing Denied Nov. 4, 1942.

Error from Superior Court, Chatham County; John Rourke, Jr., Judge.

Suit by D. J. Lamp against H. Fedderwitz and others for libel. To review a judgment sustaining defendants' general demurrer to the petition, the plaintiff brings error.

Reversed.

Ben. E. Pierce, Sr., and W. D. Lanier, both of Augusta, for plaintiff in error.

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

Syllabus Opinion by the Court

SUTTON, Judge.

1. The right to sell malt beverages in this State under the act of 1935 (Ga.L. 1935, p. 73, Code, § 58-701 et seq.) is a mere privilege or permit and involves no personal or property right. McKown v. Atlanta, 184 Ga. 221, 190 S.E. 571.

2. The revocation of the permit granting such privilege, under the facts alleged in the petition in the present case, was neither a judicial nor a quasi judicial act. Southeastern Greyhound Lines v. Public Service Commission, 181 Ga. 75, 181 S.E. 834, 102 A.L.R. 517; Acree v. Ragsdale, 60 Ga.App. 717, 4 S.E.2d 708.

3. "An absolutely privileged communication is one in respect of which, by reason of the occasion on which, or the matter in reference to which, it is made, no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously. The class of absolutely privileged communications is narrow and is practically limited to legislative and judicial proceedings and other acts of State, including, it is said, communications made in the discharge of a duty under express authority of law, by or to heads of executive departments of the State, and matters involving military affairs." 33 Am.Jur. 123, § 125.

4. The privileged communications enumerated in Code, § 105-709, "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 interest in a matter where it is concerned. 4. Fair and honest reports of the proceedings of legislative or judicial bodies. 5. Comments of counsel, fairly made, on the circumstances of his case, and the conduct of parties in connection therewith. 6. Comments upon the acts of public men in their public capacity and with reference thereto, " are conditional privileges. " 'The characteristic feature of absolute, as distinguished from conditional, privilege, is that in the former the question of malice is not open. All inquiry into good faith is closed.' In every case of conditional privilege, 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 has a right of action." Atlanta News Publishing Co. v. Medlock, 123 Ga. 714(3, 4), 51 S.E. 756, 757, 3 L.R. A..N.S., 1139.

5. "The defense of privilege cannot be raised by demurrer to the petition, unless the facts upon which the privilege may be asserted appear upon the face of the petition." Bibb v. Crawford, 6 Ga. App. 145(3), 64 S.E. 488; Ivins v. Louisville & N. R. Co., 37 Ga.App. 684(7), 141 S.E. 423; Atlanta News Publishing Co. v. Medlock, supra.

6. Upon the application of the above-stated principles of law, the petition which alleged that the defendants, who were members of a voluntary organization known as the Brewers & Beer Distributors Committee of Georgia, "organized for the purpose of refusing to sell beer to flagrant law-violating outlets and to ask for revocation of license at such outlets, " wilfully and maliciously caused to be filed with the Revenue Commission (now the Department of Revenue) of Georgia, on or about March 14, 1940, a written report which in sub stance charged that the plaintiff, to whom had been issued licenses for the sale of beer and wine near Augusta, Georgia, in the County of Richmond, "had been engaged in the improper and illegal sale and distribution of alcoholic beverages in, at, on and near the premises for which the above retail licenses were issued, and has permitted drunkenness, intoxication, vulgar and profane language in, at, on and near the premises where licenses are in effect for the sale of malt beverages and wine, and has encouraged and promoted illegal and improper relationships between girls employed on said premises and customers of the said D. J. Lamb, " the plaintiff, "which publication was fraudulent, untrue and maliciously made for no other purpose than that of injuring him as a citizen and injuring his business", thus causing damage to him in his business and his reputation as a citizen and in his credit transactions, and subjecting him to suspicion and contempt in his dealings with the public, such petition, not showing that the alleged libelous report was made to a tribunal which exercised judicial or quasi judicial powers, or even powers of a kindred nature, in the revocation of the plaintiff's licenses, did not show on its face that the publication of the defamatory report was absolutely privileged, but showed only a conditional or qualified privilege, and a cause of action was set forth in the petition. It was error, therefore, for the trial court to sustain the defendants' general demurrer, the sole ground of which was that no cause of action was set forth in the petition.

Judgment reversed.

FELTON, J., concurs.

STEPHENS, P. J., dissents.

STEPHENS, Presiding Judge (dissenting)-

The acts of 1935 and 1937 with reference to the establishment of the State Revenue Department and the duties of the Revenue Commissioner, as partially contained in the Code Ann. §§ 58-701, 58-714, 58-718, § 58-732, contemplate that the Revenue Commissioner of this State shall have the power and authority to issue and revoke licenses to wholesale and retail dealers of malt beverages for the sale of such beverages. While, as provided in these acts, the Revenue Commissioner can not issuesuch license or permit without the consent of certain designated local authorities, and upon the revocation of such permit by such local authorities the license or permit issued by the Revenue Commissioner is automatically revoked, yet the power of the commissioner to issue such license or permit, although such license or permit confers no vested right on the dealer to whom it is issued but is only a privilege granted by the governing authorities of this State to such dealer to deal in malt beverages, necessarily involves the exercise by the commissioner of some discretionary power which he can exercise, either in granting or in refusing to grant such license or permit, after an investigation and ascertainment of facts which in his opinion would justify his action in issuing or revoking such license or permit. Any charges or representations made to the Revenue Commissioner by...