Peacock v. Retail Credit Company

• Decision Date: 12 June 1969
• Docket Number: Civ. A. No. 11597.
• Parties: Cassius L. PEACOCK, Jr. v. RETAIL CREDIT COMPANY.
• Court: U.S. District Court — Northern District of Georgia

302 F. Supp. 418

Cassius L. PEACOCK, Jr. v. RETAIL CREDIT COMPANY.

Civ. A. No. 11597.

United States District Court N. D. Georgia, Atlanta Division.

June 12, 1969.

Shoob, McLain & Jessee, C. James Jessee, Jr., Atlanta, Ga., for plaintiff.

Hansell, Post, Brandon & Dorsey, Bryan, Carter, Ansley & Smith, Atlanta, Ga., for United States Fidelity & Guaranty Co.

ORDER

EDENFIELD, District Judge.

This suit for libel, and for invasion of the right of privacy, is presently under a stay order, being continued by this court until the issuance of a further order upon pending discovery matters. The court's stay order stated that it would consider defendant's motion for summary judgment after the discovery ruling. However, the court's view of the law controlling the case enables the court to pass on all motions simultaneously, and it hereby grants defendant's motion for summary judgment and denies any further discovery to plaintiff.

Plaintiff, Cassius L. Peacock, Jr., sued the defendant, Retail Credit Company, a large national mercantile credit information agency, for libel, and for invasion of the right to privacy, alleging that defendant had accused plaintiff of making false financial reports in his capacity as an officer of Peacock Construction Company, and of adultery with prostitutes and three successive bookkeepers in his employ. The alleged publications appeared in credit and insurance reports furnished, in the normal course of defendant's business, to insurance companies, banks and other businesses requesting such information. These allegations would amount to libel per se, under Ga. Code Ann. § 105-701 (1968). Plaintiff argued that each review or exhibition to a third party, of a report once furnished a customer and placed in its file, was a republication of the original libel. Defendant denied all of plaintiff's contentions and further contended that, even if it had published a libel against plaintiff, more than one year had intervened between the date of publication and the date of suit and that the action was therefore barred by the Georgia statute of limitations, Ga.Code Ann. § 3-1004 (Supp.1968). Defendant's view of the Georgia law of libel was that each republication by others of an original libel created a separate cause of action against such subsequent publisher but did not renew the original publication. Therefore, it contended, republication by its customers, if any, did not renew the original publisher's libel. Plaintiff further contended that defendant's collection and publishing of the alleged libelous statements were violations of his constitutional right to privacy, to which defendant countered that plaintiff's failure to show a physical intrusion, similar to a trespass, or a public disclosure of the libel, was fatal to plaintiff's claim.

Plaintiff requested discovery, by means of a motion to produce, under Fed.R.Civ.P. 34, of all reports or documents concerning him, which had ever been in the files of Retail Credit Company. Defendant objected to production of such documents for any period beyond the one-year period of limitations, alleging that such documents published before that period would be irrelevant to the plaintiff's libel suit because barred by the statute of limitations. To counter this allegation, plaintiff alleged that defendant's concealment of libelous statements amounted to such fraud as would toll the statute of limitations, under Ga.Code Ann. § 3-807 (1962). The court ordered defendant to produce all such documents furnished customers during the one-year statute of limitations period. Those documents revealed no libel. The court also ordered defendant to furnish for its in camera inspection all other documents outside the one-year period. These documents are now in the custody of the court.

Defendant filed its motion for summary judgment. Plaintiff filed a motion, under Fed.R.Civ.P. 56(f), to continue the hearing of defendant's motion for summary judgment, "until such time as plaintiff may have taken depositions or obtained affidavits" essential to the establishment of his case. Plaintiff readily admitted that he had not established a case for libel, but stated, in an affidavit of his attorney, that "plaintiff expects to establish through discovery the continued use and reuse of said libelous statements by the customers of Retail Credit Company, which continued use constituted a republication of the libelous statements for which Retail Credit is responsible."

The plaintiff then attempted to discover relevant information by notices to take depositions, under Fed.R.Civ.P. 30(a), and subpoenas duces tecum, under Fed.R.Civ.P. 45(d), addressed to representatives of various corporations, alleged to be customers of the defendant. Motions to quash the subpoenas duces tecum were filed. The court then stayed the action, pending this order.

At the outset the court could not discern from the pleadings or the affidavits whether plaintiff was asserting a separate claim for invasion of privacy or whether his allegations in this regard were merely intended to show the aggravating character of the alleged libel. The court therefore entered an order stating:

"The court is somewhat at a loss * * * as to plaintiff's exact contentions with respect to how and when he contends his right to privacy was invaded.

"* * * The plaintiff is instructed * * * to elaborate by affidavit or otherwise, as to how and when he contends his right to privacy was invaded, and on what legal theory. * * *" (See Cabaniss v. Hipsley, 114 Ga.App. 367, 151 S.E.2d 496.)

In response, the plaintiff filed a second amendment to his complaint, a brief, and affidavits by him and by his attorney in which he asserted, in essence, that the publication of the credit report itself constituted the invasion of his privacy. Defendant, on the other hand, asserts that more was required, to-wit, either (1) a physical intrusion of plaintiff's solitude, or (2) a public, rather than a restricted, disclosure of embarrassing private facts about plaintiff. In this posture, the case presently awaits decision.

The libel issue in this case ultimately turns on the Georgia law of libel, that every publication of libelous matter is a separate cause of action, regardless of the time, place or publisher of the original publication.

"After a libel is published, and subsequently the same libel is again published by an independent party, without participation by the first publisher, the republication is independent and separate from the first publication. It is an independent tort." Howe v. Bradstreet Co., 135 Ga. 564, 565, 69 S.E. 1082 (1911).

See also Central of Georgia Ry. Co. v. Sheftall, 118 Ga. 865, 867, 45 S.E. 687 (1903); Atlanta Journal Co. v. Doyal, 82 Ga.App. 321, 327, 60 S.E.2d 802 (1950); Western Union Tel. Co. v. Vickers, 71 Ga.App. 204, 209, 30 S.E.2d 440 (1944); Crowe v. Constitution Publishing Co., 63 Ga.App. 497, 507, 11 S.E.2d 513 (1940).

In order to establish a contrary rule, plaintiff has cited a dictum in Howe v. Bradstreet Co., supra, 135 Ga. at 565-566, 69 S.E. 1082, to the effect that facts attending a second publication of a libel may be such as to hold the original publisher liable in an independent action for damages accruing from the publication, provided the second publication was the natural consequence of the original publication. In other words, if republication by its customers were the natural consequence of the original publication by Retail Credit, then it would be liable, in an independent cause of action, for damages accruing from the republication. But this is not the law, at least in Georgia. The court has been unable to find a single Georgia case in which this dictum has been followed. Moreover, the Howe case itself involved facts very similar to the case plaintiff attempts to make here, and the court there held that defendant, the Bradstreet Company, was not liable for the republication by its customer.¹ While cases cited by plaintiff, such as Riley v. Dun & Bradstreet, Inc., 172 F. 2d 303 (6th Cir.1949), and Weaver v. Beneficial Financial Co., 199 Va. 196, 98 S.E.2d 687 (1967), would, in the absence of controlling Georgia law, be persuasive to this court, such is not the case here. Therefore, the court holds that Retail Credit is not liable for republication to third parties² by its customers of any libelous matter which it originally published.

The question remains, however, whether there was concealment of the publication of libelous matter, tantamount to fraud, under Ga.Code Ann. § 3-807 (1962). Of course, "mere ignorance of the existence of the facts constituting a cause of action does not prevent the running of the statute of limitations." Davis v. Boyett, 120 Ga. 649, 651, 48 S.E. 185, 186, 66 L.R.A. 258 (1904). There is also no evidence in the case of "deceit or false representation, or other conduct involving moral turpitude." Carnes v. Bank of Jonesboro, 58 Ga.App. 193, 196, 198 S.E. 338, 340 (1938). In short, there is no actionable fraud. See Clinton v. State Farm Mutual Auto Ins. Co., 110 Ga.App. 417, 421-424, 138 S.E.2d 687 (1964); Saffold v. Scarborough, 91 Ga.App. 628, 86 S.E.2d 649 (1955). Therefore, the court holds that the allegations of fraud are insufficient to toll the statute of limitations.

With regard to plaintiff's allegation that his right to privacy has been violated, the court notes that Georgia has long recognized such a cause of action. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L. R.A. 101 (1905).

With this realization, the court turns to the case of Cabaniss v. Hipsley, 114 Ga.App. 367, 151 S.E.2d 496 (1966), in which Judge Eberhardt has analyzed the Georgia cases in this area and has categorized them into the following four parts: (1) intrusion upon the plaintiff's seclusion or solitude or into his private affairs, (2) public disclosure of embarrassing private facts about the plaintiff, (3) publicity which places the plaintiff in a false...