Morton v. Stewart

• Decision Date: 09 April 1980
• Docket Number: No. 58612,58612
• Citation: 266 S.E.2d 230,153 Ga.App. 636
• Parties: MORTON v. STEWART et al.
• Court: Georgia Court of Appeals

Page 230

266 S.E.2d 230

153 Ga.App. 636

MORTON v. STEWART et al.

No. 58612.

Court of Appeals of Georgia.

Argued Nov. 19, 1979.

Decided Jan. 31, 1980.

Rehearing Denied Feb. 28, 1980.

Certiorari Denied April 9, 1980.

Robert N. Meals, A. Lee Parks, Jr., Atlanta, Sol Altman, Thomasville, Edwin A. Carlisle, Cairo, for appellant.

Albert G. Norman, Jr., John E. Zamer, Atlanta, Bruce W. Kirbo, Bainbridge, for appellees.

QUILLIAN, Presiding Judge.

This is an appeal by Dr. William J. Morton from the grant of summary judgment in favor of four of eight defendants in an action alleging libel, conspiracy to commit libel, or in the alternative malicious use of privilege. The four defendants who were granted summary judgment were James D. Stewart and Paul J. Lieberman reporters for the other two defendants Atlanta Newspapers, Inc. and Cox Enterprises, Inc.

Dr. Morton, a physician and member of the Georgia Composite State Board of Medical Examiners (Board), based his complaint upon a letter to the Board signed by defendants Drs. Gardner and Palen, and a letter to the Board from defendant McCullough a former employee of Dr. Morton, and an article in the Atlanta Constitution written by Stewart and Lieberman, and an editorial in a later edition of the Constitution. The writers of the letters to the Board although defendants, are not involved in this appeal.

Reporters Stewart and Lieberman had written a series of articles in the Constitution on actions of various doctors and other medical problems in the state. During their investigation they talked to Drs. Gardner and Palen and a subsequent article was written for the Constitution which included medical practices attributed to Dr. Morton. Later, an editorial appeared in the Constitution on physicians "Healing Themselves" because "questionable ethics, and . . . unquestionable fraud . . . are too pervasive in the (medical) profession." The editorial included references to the Composite Board of Medical Examiners and the fact that two of its members, Drs. Morton and Jenkins, had been targets of investigations by the Board.

The reporters and the newspaper moved for and were granted summary judgment. Dr. Morton brings this appeal. Held :

1. Except as provided by statute, a newspaper is not privileged in publications made therein, but is liable on account thereof in the same manner as other persons, and defamatory matter does not become privileged simply for the reason it is published as news. Atlanta News Pub. Co. v. Medlock, 123 Ga. 714, 721, 51 S.E. 756. Any false and malicious defamation of one in a newspaper tending to injure his reputation and exposing him to public hatred, contempt, or ridicule constitutes newspaper libel. Code Ann. § 105-703 (Code § 105-703). However, some publications are privileged either absolutely or conditionally, depending upon the occasion. See 19 EGL 393, Libel and Slander, § 19.

A fair and honest report of proceedings of legislative and judicial bodies is conditionally privileged. Code Ann. § 105-704 (Code § 105-704); Atlanta Journal Co. v. Doyal, 82 Ga.App. 321(2), 60 S.E.2d 802. Thus, if the function of the Board constitutes proceedings of a judicial body, news reports of its activities are conditionally privileged. Id.

Further, the United States Supreme Court has superimposed its will on the states by holding that "constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice . . .' " Gertz v. Robert Welch, Inc., 418 U.S. 323, 334, 94 S.Ct. 2997, 3004, 41 L.Ed.2d 789. Accordingly, if the Board's function comes within the ambit of Code Ann. § 105-704, as Dr. Morton is a member and executive secretary of the Board he is a "public official" and would have two obstacles to overcome. The first threshold a public official must cross in a libel action is that only "actual malice" will suffice to establish defamation based on news articles of his activities. New York Times v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686. The second obstruction in the instant case could be the conditional privilege that attaches to news reports of proceedings of judicial bodies. In the case sub judice there is no critical distinction between the two as reports of proceedings of judicial bodies are conditionally privileged (Fedderwitz v. Lamb, 195 Ga. 691, 692, 25 S.E.2d 414), but such privilege disappears in the face of "actual malice." Atlanta News Pub. Co. v. Medlock, 123 Ga. 714, 721, 51 S.E. 756, supra; Retail Credit Co. v. Russell, 234 Ga. 765, 769, 218 S.E.2d 54. Thus, "actual malice" is the sine qua non for Dr. Morton to prevail on either theory.

(a) In summary judgment proceedings a movant defendant must effectively pierce any state of facts contained in the plaintiff's complaint, or those that may be proven in connection therewith, so as to preclude as a matter of law the plaintiff's right to prevail under any theory alleged. Ringer v. Lockhart, 240 Ga. 82, 83, 239 S.E.2d 349. Accordingly, in the instant case defendants must prove the absence of actual malice to sustain their motion for summary judgment. Prairieland Broadcasters of Ga. v. Thompson, 135 Ga.App. 73(1), 217 S.E.2d 296.

(b) First, we must determine whether the proceedings of the Board fall within the parameters of Code Ann. § 105-704 reports of proceedings of legislative and judicial bodies. We find that they do. The Georgia legislature established the Composite State Board of Medical Examiners (Code Ann. § 84-902 (Ga.L.1913, p. 101, as amended), and authorized it to investigate, license or refuse to license, inquire into grounds for disciplinary action, issue subpoenas, hold hearings, and take disciplinary action including revocation of license of physicians when warranted. See Code Ann. § 84-916 (Ga.L.1913, pp. 101, 107, as amended).

Our Supreme Court, in Southeastern Greyhound Lines v. Ga. Public-Service Commission, 181 Ga. 75, 82, 181 S.E. 834, 838, set forth " '(t)he real test as to the legislative or judicial character of (a) proceeding . . . depends upon the subject of the inquiry . . . It is . . . judicial to punish for infraction of, or to enforce, an existing rule.' " The court noted therein that "(i)t is generally held that in the exercise of public functions subordinate boards or tribunals, though not created as courts, may at times exercise powers which are judicial . . . 'It is clear, however, that it is the nature of the act to be performed rather than the office, board, or body which performs it, that determines whether or not it is the discharge of a judicial or a quasi-judicial function.' " Id. at 78, 181 S.E. at 836.

Furthermore, it is usually conceded that there is a general rule that a qualified privilege attaches to proceedings of, and fair, impartial, and accurate news accounts of, administrative agencies of the government. Restatement of the Law, Second, Torts 2d, § 611, p. 297; 50 Am.Jur.2d 772, 782, Libel & Slander, §§ 254, 263; 53 C.J.S. Libel and Slander § 123, p. 201; 45 A.L.R.2d 1296, 1298 § 1(b); Newell, Slander and Libel (4th Ed.), §§ 477, 479. Administrative proceedings by governmental agencies to discipline, remove from office, or revoke a license, are quasi-judicial in nature and are entitled, as a minimum, to a qualified privilege. See 45 A.L.R.2d 1296, 1305, § 5, and cits. Our appellate courts have applied conditionally privileged status to proceedings of a County Commission on Roads and Revenues. Pearce v. Brower, 72 Ga. 243(b); McCracken v. Gainesville Tribune, 146 Ga.App. 274, 276, 246 S.E.2d 360. Also the United States Supreme Court has applied conditionally privileged status to a newspaper report of the proceedings of the Virginia Judicial Inquiry and Review Commission, which performed a similar function for that state involving judicial acts, as the board in the instant case performs for this state involving doctors. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 839, 98 S.Ct. 1535, 1541, 56 L.Ed.2d 1). Accordingly, we find the board's jurisdiction and functions met the necessary criteria for it to be a "quasi-judicial" body (see 50 C.J.S. Judicial 562) and news reports of proceedings of the Board, if otherwise fair and honest, are entitled to the conditional privilege accorded by Code Ann. § 105-704.

2. Next we turn to the issue of whether the court erred in sustaining defendant's motion for summary judgment. We will address the issue of alleged defamation in the news article separate from the newspaper editorial.

(a) Editors have the right to express in editorial columns of a newspaper their opinions as to matters of public interest and concern. Grayson v. Savannah News-Press, 110 Ga.App. 561, 568, 139 S.E.2d 347. Plaintiff is a public official, and "acts and conduct of public officials are subject to just criticism and comment by the press . . ." Barwick v. Wind, 203 Ga. 827, 831, 48 S.E.2d 523, 526. The United States Supreme Court has held that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, supra.

In Time, Inc. v. Pape, 401 U.S. 279(a), 91 S.Ct. 633, 28 L.Ed.2d 45, the Supreme Court held that omission of the word "alleged" from the news summary of the complaint against the defendant amounted to adoption of one of several interpretations "of a document bristling with ambiguities, and while that choice might reflect a misconception, it was not enough to create a jury issue of 'malice' under the rule of New York Times (v. Sullivan) . . ." We also find that while the defendants used strong and derogatory language concerning the medical profession, no aspersions or innuendo were directed toward the pla...