Mathews v. Atlanta Newspapers, Inc.

• Decision Date: 20 September 1967
• Docket Number: No. 43030,No. 1,43030,1
• Parties: John MATHEWS v. ATLANTA NEWSPAPERS, INC., et al
• Court: Georgia Court of Appeals

Page 300

157 S.E.2d 300

116 Ga.App. 337

John MATHEWS v. ATLANTA NEWSPAPERS, INC., et al.

No. 43030.

Court of Appeals of Georgia, Division No. 1.

Sept. 20, 1967.

Syllabus by the Court

The allegations of the amended petition do not state a cause of action for newspaper John Mathews filed an action for libel against Atlanta Newspapers, Inc. and its reporter, David Nordan, on account of the publication in the January 17, 1966, issue of the defendants' newspaper, the Atlanta Journal, of the following article:

libel; therefore, the sustaining of the motion to dismiss was not error.

'NO 'CLATON' COUNTY

SUIT DISMISSAL ASKED

* * * NAMES MISPELLED

'By David Nordan

'Clayton County Superior Court Clerk Joe Mundy has asked dismissal of a suit against him because it misspelled the names of the clerk, the county and the court.

'The suit, brought by a Forest Park plumber, is directed against 'Joe Monday, clerk of Claton County Superior Court,' It charges that 'Mr. Monday' 'has failed to carry out the duties of his office.'

'The suit against Mr. Mundy was brought after the clerk refused to issue a subpoena to Superior Court Judge Harold Blake (sic) to appear as a witness in a divorce case being tried in his own court.

'IT ASKED that Mr. Mundy be cited for contempt of court for not calling the judge as a witness in the case.

"I told him the judge was sure to be there anyway,' the clerk said. 'Besides, with the judge on the witness stand, who would preside over the court?'

'Attorney Hutcheson answered this question in filing Mr. Mundy's answer to the suit. He stated that 'no judge of the Superior Court can be subpoenaed, called, sworn as a witness in a case over which he is presiding.'

'TO FURTHER complicate the situation, the decision as to whether the plumber has a legitimate complaint will have to be made by Clayton County's only Superior Court judge, Harold Banke.'

The court sustained a general demurrer to the petition with leave to amend and the amended petition alleged substantially as follows: that the article was wilfully and maliciously written for the sole purpose of ridiculing and hurting the plaintiff because of his inability to spell correctly in his effort to prosecute his rights in the courts without the aid of an attorney, which he could not afford; that defendant Nordan wrote the article, well knowing that it did not depict the true picture of the matter and that it was not a fair representation and discussion of it, or did not care, but left the matter for speculation and conjecture by the general public, and for the spiteful and malicious purposes of destroying plaintiff's reputation, weakening his case before the court and public, exposing him to public hatred, ridicule and contempt, so that he could not successfully prosecute his case, and espousing the side of the defendant clerk in the case under discussion; that defendants made little effort to determine the truthfulness of the article or the legality of the plaintiff's action therein reported, merely taking the word of the clerk and his attorney and treating the publication as a sort of joke, without thought of the plaintiff's feelings; that defendants refused plaintiff's written requests for a retraction of the article in their newspaper; 'that plaintiff is not a man of means but a plumber, plying his trade, which at best is not of the highest order but entirely honorable and necessary to mankind, and the acts herein told, committed by defendants, have affected plaintiff and caused him untold concern in his work, peace, happiness and feelings, his chief and most valued possession.'

The appeal is from the judgment sustaining the defendants' motion to dismiss the petition as amended.

Oze R. Horton, Hapeville, for appellant.

Hansell, Post, Brandon & Dorsey, Allen Post, Albert G. Norman, Jr., Charles T. Zink, Atlanta, for appellee.

FELTON, Chief Judge.

1. Even assuming that the published article, which referred merely to 'a Forest Park plumber,' made the plaintiff's identity ascertainable, the article was not shown to be of a libelous nature, as is discussed hereinbelow.

2. The article was not libel per se, which consists of a charge that one is guilty of a crime, dishonesty or immorality. Anderson v. Kennedy, 47 Ga.App. 380, 382, 170 S.E. 555; Grayson v. Savannah News-Press, 110 Ga.App. 561, 566, 139 S.E.2d 347.

3. 'The distinction between pleading libel per se and pleading libel by use of words of covert meaning is that in the former no innuendo need be alleged, the words themselves, if in fact untrue, being a sufficient basis for the action, while in the latter, it is necessary that the pleader allege that a covert meaning attached to the words and that the words were understood by the readers (or at least by some of...