Nicholson v. Dillard

• Decision Date: 14 December 1911
• Citation: 73 S.E. 382,137 Ga. 225
• Parties: NICHOLSON v. DILLARD.
• Court: Georgia Supreme Court

73 S.E. 382

137 Ga. 225

NICHOLSON v. DILLARD.

Supreme Court of Georgia

December 14, 1911

Syllabus by the Court.

The motion to dismiss the bill of exceptions in this case is without merit, as it comes within the ruling made in the case of Castleberry v. Parrish, 135 Ga. 527, 69 S.E. 817.

The following words, spoken of a female school-teacher, are actionable in a suit for slander, brought by the person of whom the words were spoken against the person speaking them to wit: "That under the circumstances I cannot send to her; that her character was not good; that my daughter Claudie Dillard had heard things concerning her character and that she would not go to her unless I made her; that I have been told things by several that pointed to bad character; that I have been told by young men that they had been to her home and had taken drinks of coca-cola, cider, or something, and that she would give toasts that would actually make them blush, and that she and her sister, Susie Nicholson, lived in a home alone in Buena Vista, and that this house was a regular stopping-off place for traveling men; that if she was taken for a teacher it will cut me out of school, as she was mighty fast from what I have been told and I believe what I have heard to be true; that I have a particular reason for not sending to her; that I have been told that her character was bad; that I have been particular with my own girl, and I don't [care] for her to associate with her."

At common law only words imputing a crime to another were actionable per se; but under our statute words calculated to injure one in his trade or profession are actionable.

Privileged communications are absolute or conditional; in the former case, the privilege is a bar to recovery; in the latter case in order for communications to be so privileged as to be a bar in a suit for slander, it must appear that the words were spoken bona fide to protect the speaker's private interests, and not with malicious intent.

Error from Superior Court, Chattahoochee County; S. P. Gilbert, Judge.

Action by Mary Nicholson against J. S. Dillard. From a judgment sustaining a demurrer to the petition, plaintiff brings error. Reversed.

J. J. Dunham, C. C. Minter, and Hatcher & Hatcher, for plaintiff in error.

Wynn & Wohlwender, for defendant in error.

HILL J.

Mary Nicholson filed her petition against James S. Dillard, in which it was alleged that the defendant did falsely and maliciously say of plaintiff to Mr. C. H. McGlaun, who had called on petitioner in behalf of petitioner's application to teach school: "That under the circumstances I cannot send to her (meaning petitioner); that her (meaning petitioner) character was not good (meaning that petitioner was not virtuous); that my daughter Claudie Dillard had heard things concerning her (meaning petitioner's) character, and that she (meaning his daughter Claudie) would not go to her (meaning petitioner) unless I made her (meaning his daughter Claudie); that I have been told things by several that pointed to bad character (meaning that petitioner was not a virtuous woman); that I have been told by young men that they (meaning the young men) had been to her (meaning petitioner's) home and had taken drinks of coca-cola, cider, or something, and that she (meaning petitioner) would give toasts that would actually make them (meaning the young men) blush (meaning that petitioner was a debauched and immoral person), and that she (meaning petitioner) and her (meaning petitioner's) sister, Susie Nicholson, lived in a home alone in Buena Vista, and that this house (meaning the home wherein petitioner lived) was a regular stopping-off place for traveling men (meaning that the home of petitioner was a place of ill repute); that if she (meaning petitioner) was taken for a teacher it will cut me out of school, as she (meaning petitioner) was mighty fast from what I have been told (thereby meaning that your petitioner was not virtuous), and I believe what I have heard to be true (meaning that he, Dillard, did not believe petitioner to be a virtuous woman)." And also that the defendant used the following language in a conversation with Mr. Wess McGlaun: "That I have a particular reason for not sending to her (meaning petitioner); that I have been told that her (meaning petitioner's) character was bad (meaning petitioner was not a virtuous woman); that I have been particular with my own girl, and I don't [care] for her (meaning his daughter) to associate with her (meaning petitioner)." Plaintiff further alleged that, by reason of the "false, malicious, and defamatory" statements made by said Dillard concerning her character, she had failed to be selected as a teacher for the school for which she applied, and she alleged as special damages the sum of $400 and as general damages the sum of $5,000.

The defendant filed both special and general demurrers to the petition. The first special demurrer was as follows: "Paragraph third of said petition is specially demurred to, on the ground that the language, to wit: 'That under the circumstances I cannot send to her; that her character is not good; that my daughter Claudie Dillard had heard things concerning her character, and that she would not go to her unless I made her; that I have been told things by several that pointed to bad character; that I have been told by young men that they had been to her home and had taken drinks of coca-cola, cider, or something, and that she would give them toasts that would actually make them blush, and she and her sister, Susie Nicholson, lived in a home in Buena Vista, and that this house was a regular stopping-off place for traveling men; that if she was taken for a teacher it will cut me out of school, as she was mighty fast from what I have been told, and I believe what I have heard to be true'--are not such words and language as would in law entitle plaintiff to a cause of action against this defendant, for the reason that such words are not in their nature slanderous, and that such words are too general to inform defendant of plaintiff's demand, and that they fail to set out in what way the said words could or did affect said plaintiff, and said words and language could not in any wise affect the plaintiff's trade, calling, or profession, and they fail to state wherein the same was or could have been affected, and that said words or language do not impute to plaintiff the commission of a crime punishable by law, or with any contagious disorder, or being guilty of an act which would exclude her from society, nor do they relate to said plaintiff's trade, office, or profession, calculated to injure her therein, nor are such words productive of special damages flowing therefrom, and no special damages are set out therein." The general demurrer was to the effect that no sufficient cause of action was set out in said petition and that no special damages were alleged. The court sustained the special demurrers to paragraphs 3 and 4 of the petition, on the ground that the words set out, independent of innuendoes, were not sufficient to set out a cause of action. No ruling was made upon the demurrer to the fifth paragraph of the plaintiff's petition. The court also sustained the general demurrer and ordered the petition dismissed.

1. On the call of the case in this court, a motion was made to dismiss the bill of exceptions, because it had not been tendered to the judge within 30 days from the rendition of the order and judgment sustaining the demurrers of the defendant and dismissing the plaintiff's petition, "in that the record shows that the judgment complained of was rendered on the 1st day of June, 1911, and the certificate of the judge shows that the bill of exceptions was tendered to him on July 8, 1911, and the certificate also shows that the judge was absent only from June 21, 1911, to July 3, 1911, and fails to show any reason why the bill of exceptions was not presented and certified sooner than the 8th day of July, 1911, or that the plaintiff in error was without fault." The bill of exceptions itself recites that "now, within 30 days from the rendition of said judgment," etc., comes the plaintiff and presents this bill of exceptions, etc. The judge also certifies: "I was out of the circuit and state from June 20 to July 3, 1911." Under the repeated rulings of this court, a writ of error will not be dismissed, where it appears from the bill of exceptions and certificate of the trial judge that it was tendered within 30 days from the date of the judgment complained of. Castleberry v. Parrish, 135 Ga. 527, 69 S.E. 817. The recital in the bill of exceptions that it was tendered within 30 days after the rendition of the judgment complained of is not negatived by the statement of the judge in his certificate: "I was out of the circuit and state from June 20 to July 3, 1911."

2. This was a suit for slander, brought by Mary Nicholson against James S. Dillard in Chattahoochee superior court. The court below sustained general and special demurrers filed to the petition, and we are called upon to decide whether this judgment was error. The answer to that question depends upon whether...