Montgomery v. Pacific & Southern Co., Inc.

• Decision Date: 11 April 1974
• Docket Number: No. 49123,No. 3,49123,3
• Citation: 206 S.E.2d 631,131 Ga.App. 712
• Parties: LeRoy MONTGOMERY v. PACIFIC & SOUTHERN COMPANY, INC., et al
• Court: Georgia Court of Appeals

Page 631

206 S.E.2d 631

131 Ga.App. 712

LeRoy MONTGOMERY v. PACIFIC & SOUTHERN COMPANY, INC., et al.

No. 49123.

Court of Appeals of Georgia, Division No. 3.

April 11, 1974.

Rehearing Denied May 2, 1974.

Davis & Stringer, Robert H. Stringer, Decatur, for appellant.

Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., F. Clay Bush, Atlanta, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

Mrs. Fred King owned a ten-year-old Volkswagen automobile, and carried it to Montgomery Enco Station for repairs. The repairs were made, and warranted for three months. Montgomery charged $234 for the repairs, which she paid. Eight months later the car needed further repairs, and Mrs. King requested Montgomery to make the further repairs, contending that he was obligated to do so because of the earlier repairs. Montgomery explained that his warranty lasted for three months, and that she had used the car for more than twice that length of time, and that no further repairs were needed until eight months had elapsed. He explained that he would make further repairs, but Mrs. King would have to pay for the new repairs.

Mrs. King then contacted Action Line, a television program conducted by Paul Reynolds, which is carried on Station WQXI-TV in Atlanta, Action Line attempts to secure relief for dissatisfied consumers and customers. It sent its agent to Montgomery's place of business where he took photographs of other Volkswagens that were there for repairs. A telephone interview was conducted with Montgomery about Mrs. King's complaint. Montgomery explained the situation-that he had made the repairs on Mrs. King's Volkswagen and warranted the same for three months; that the repairs had held up for eight months, and that Montgomery had no obligation to make further repairs, unless he was paid for same; albeit he did agree to give to Mrs. King a discount on any new parts that might be required in the new repair job.

Action Line stated it was going to air the controversy on its television program; Montgomery requested that it not do so, because although he was completely in the clear, some viewers of the telecast might gain the impression that Montgomery was the villain in the plot and was at fault. Despite Montgomery's pleas, Action Line did place the controversy on television-not one time but three times-and thereafter Montgomery suffered a reduction in custom and business.

The broadcast did not at any time suggest that Montgomery was right in his position, but to the contrary, it emphasized how expensive the repairs were, and that Montgomery refused to do the repairs over again without being paid therefor. The final statement on the broadcast was by Action Line as follows: 'This man has agreed now to do the work for her again, he says, on a cash basis; and the best he will come up with is a discount on some of the parts. Mrs. King, a Volkswagen can be expensive.' (Emphasis supplied.) Webster defines 'expensive' as 'highpriced; dear' and by innuendo it was here suggested that Montgomery over-charged for the repairs at the time they were made.

The only purpose of putting this matter on the air was to illustrate that one of the parties was at fault. It was not an ordinarily newsworthy item, such as an automobile wreck, or a fight. Absent a suggestion that one of the parties was right and one was wrong, it had no news value whatever.

The broadcast was clearly slanted in Mrs. King's favor and against Montgomery. It illustrated how expensive were the repairs, and by innuendo the viewers could easily have concluded that Action Line felt Montgomery had over-charged Mrs. King.

The language in the last comment of Action Line, to wit, 'the best he will come up with,' was suggestive of the idea that Montgomery ought to 'come up' with something better. Actually, he had no obligation of any nature as to the latest repairs.

Action Line referred to Montgomery as 'this man' while referring to the opposing party to the controversy as 'Mrs. King.' Action Line well knew the name of Montgomery, yet pointed him out as 'this man.' The very last statement, to wit: 'Mrs. King, a Volkswagen can be expensive,' in that context, suggested that it was the fault of Montgomery that this particular Volkswagen had proven so expensive. Actually, all automobiles are expensive, and repairs to all cars are expensive. Action Line made it sound as if this particular Volkswagen was the exception to the rule, which was contrary to the facts.

Never at any time during the three broadcasts was Montgomery placed in his proper light. He had no legal obligation to make repairs a second time; and the repairs he made lasted more than twice as long as he warranted them to last. But that was never emphasized, and Action Line took care to slant the broadcast against Montgomery.

Montgomery filed suit against Pacific and Southern Company, Inc. and Paul Reynolds, the owner and agent of Action Line, and alleged that they had falsely defamed plaintiff's place of business, vocation and occupation, and had exposed him and his business to public ridicule without plaintiff's consent; that their acts and conduct were done with malice and intent to injure plaintiff personally and in his vocation and occupation. Defendants answered, and denied the material allegations of complaint and on trial of the case, the trial judge directed a verdict against the plaintiff. Plaintiff appeals to this court. Held:

1. This case was decided in defendant's favor on motion for directed verdict. In such cases, all of the evidence and all inferences from the evidence must be construed most favorably toward the party against whom the verdict is directed, which, in this case, is in favor of the plaintiff. Royal Blue Transportation Co. v. First &c. Nat. Bank, 44 Ga.App. 754(1), 162 S.E. 879; McNabb v. Hardeman, 77 Ga.App. 451, 452, 49 S.E.2d 194; Lathan v. Murrah, Inc., 121 Ga.App. 554, 557, 174 S.E.2d 269, id., 124 Ga.App. 258, 183 S.E.2d 496. The statement of facts heretofore made is amply justified under the above legal principle.

2. Defamation by telecast is now actionable by law regardless of whether it be libel or slander. See Code Ch. 105-7, as amended (Ga.L.1949, p. 1137); American Broadcasting etc., v. Simpson, 106 Ga.App. 230(1), 126 S.E.2d 873; WSAV-TV, Inc. v. Baxter, 119 Ga.App. 185, 116 S.E.2d 416. In the case of American Broadcasting Co. v. Simpson, 106 Ga.App. 230(1), 126 S.E.2d 873, supra, Judge Homer C. Eberhardt of the Georgia Court of Appeals, coined a new word, now in general use, which is quite descriptive of being defamed by television, to wit 'defamacast.'

3. The broadcasting or publishing of news stories of the happenings in a community in which the public has an interest is a qualified privileged communication unless it relates to matters as to which the law confers an absolute privilege. Code §§ 105-709, 105-712; American Broadcasting etc., v. Simpson, 106 Ga.App. 230, 126 S.E.2d 873, supra; WSAV-TV, Inc. v. Baxter, 119 Ga.App. 185, 116 S.E.2d 416, supra.

4. A case in which this court has recently reversed the trial court for dismissal of a complaint which alleged certain libelous publications, is that of Thibadeau v. Crane, 131 Ga.App. 591, 206 S.E.2d 609, and which holds in the First Division: 'The trial court was without authority to make a finding of fact that the statements were not false, and genuine issues of material fact remain as to the truth or falsity of the matter complained of.' In the above case the question was as to dismissal of the complaint; in the case sub judice, the question is as to directing a verdict in favor of defendant.

5. A publisher of matter is responsible, not only for the actual words published, but for the innuendo that may arise from such words. Words apparently innocent may convey a libelous charge when considered in connection with innuendo and circumstances surrounding the publication. Williams v. Equitable Credit Co., 33 Ga.App. 441(1), 126...