Shiver v. Valdosta Press, 33086
| Decision Date | 19 September 1950 |
| Docket Number | No. 2,No. 33086,33086,2 |
| Citation | 82 Ga.App. 406,61 S.E.2d 221 |
| Parties | SHIVER v. VALDOSTA PRESS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. An article in a newspaper which fairly and honestly sets forth the substance of the allegations of a suit for damages brought in the federal court against the plaintiff and others, and which is published in good faith by the newspaper, constitutes a privileged communication.
2. However, where special demurrers by the defendant regarding malicious publication are overruled by the court and no exceptions taken thereto, and the petition is dismissed on general demurrer, and it appears from the allegations of the petition that the defendant newspaper maliciously published such article, although same constituted a correct report of the judicial proceedings dealt with therein, and that the defendant therefore did not exercise good faith in publishing said article but used same 'for venting private malice' against the plaintiff, the defendant newspaper could not claim that said article was privileged and the petition set out a cause of action good as against general demurrer.
Eddie Shiver brought suit in the City Court of Valdosta against The Valdosta Press, a de facto newspaper corporation, publisher of a daily newspaper of general circulation in Lowndes County, Georgia, known as the Valdosta Times, seeking to recover damages on account of the alleged malicious publication by the defendant of an alleged libel in said newspaper of and concerning the plaintiff. The plaintiff asked for general damages, alleging that the matter published was libelous per se, and also sought to recover $10,000 as a reasonable attorney's fee because of defendant's bad faith in holding itself out as a corporation after the expiration of its charter and in refusing to make its return to the Secretary of State as required 'in section 22-1703 of the 1949 Act * * * approved February 23, 1949.' Acts 1949, pp. 950, 953. The defendant demurred to plaintiff's petition generally upon the grounds that no cause of action was alleged, that no matter or thing entitling the plaintiff to recover the amounts sued for, or any amounts, was alleged; and that neither the petition or any part or paragraph sets out any ground for relief to which the plaintiff is entitled. The defendant demurred generally to that part of said petition wherein the plaintiff seeks to recover of it $10,000 attorney's fees, there being nothing set out therein entitling the plaintiff to recover same. Defendant also specially demurred to various paragraphs. The plaintiff amended his petition and set out, in addition to the allegations of the original petition as to the libelous publication, that the defendant was further liable to it for the selection and publication of an inflammatory and improper headline for the article published by it concerning the plaintiff and the court action against him therein dealt with. The defendant renewed its demurrers, general and special, to the petition, as amended, and to said amendment, and the trial judge sustained the general demurrers of the defendant and specifically overruled said special demurrers. To the judgment dismissing his petition on general demurrer the plaintiff excepts. There is no exception by the defendant in this court to the ruling of the court on the special demurrers.
J. T. Edwards, Valdosta, for plaintiff in error.
Langdale, Smith & Tillman, Valdosta, for defendant in error.
It appeared from plaintiff's petition, as amended, that on November 8, 1949, in Valdosta, Lowndes County, Georgia, the defendant newspaper published in its daily newspaper the following article:
'Another $300,000 Suit Is Filed In Race Case
case did not come under the jurisdiction of the federal court of the Middle District of Georgia. Since the original suit was filed, the Whites have moved to Gilchrist County, Florida. The attorney for the family said that the case is now under the jurisdiction of the federal court. The six individuals named as defendants filed a formal complaint with the Lowndes County School Board, the suit charges, asking that the children of the Whites be excluded from the Clyattville Consolidated School on the grounds that they were of Negro ancestry. The White couple were subsequently arrested on warrants signed by Mrs. Lillie Holderby, charging 'felony-miscegenation' (marriage between whites and negroes). They were released on bonds of $500.00 each. The Lowndes County Grand Jury is to consider the charge November 21. In the suit filed today the Whites' attorney again denied that Dollie Seay White and her children have Negro blood in their veins. The suit again contended that the White family was a victim of members of a 'subversive organization known as the Ku Klux Klan and/or the Southern Klan, Inc., whose object and purpose is to promote envy, hatred, malice and discord' who 'did conspire to cause the issuance of said civil process for the purposes aforesaid and to satisfy their individual craving and desire and in the furtherance of the objects and purposes of said subversive organization.' The suit charged 'that as a direct result of the malicious abuse of civil process, plaintiffs have been excluded from society and held up to public contempt, hatred and ridicule, and the minor plaintiffs have been forced by said exclusion, contempt and hatred, to interrupt their education.''
Plaintiff alleged said article to have been maliciously published by the defendant and as being libelous per se in that same charges the plaintiff with being a member of a subversive organization and guilty of treason, namely the Ku Klux Klan, and also imputed to the plaintiff disgraceful conduct. The plaintiff further alleged that said article was not a fair and honest report of the court proceedings purported to be reported therein, and said article set out that the plaintiff and the others did conspire, confederate and agree among themselves and caused the malicious issuance and abuse of civil process against the Whites, the family bringing the proceeding referred to and dealt with in this article. It was stated in the petition that the plaintiffs therein, the Whites, alleged 'Upon information and belief' that the plaintiff in this case and the others were members of said 'Subversive organization' and the defendant in said article purposely left out this preface from the article. The plaintiff further set up therefore that the said article was not privileged. The plaintiff also set up that the petition referred to was filed in the Federal Court in Valdosta at ten thirty a. m. on November 8, 1949, and the newspaper of the defendant went to press at eleven a. m. on that day and that said publication appeared on that day and before there had been any service on the plaintiff thereof and that it appeared, therefore, that the defendant did not exercise good faith in the transaction and that same was not a privilege, but was used merely as 'a cloak by defendant for venting private malice.' Plaintiff alleged that the wrongful acts and conduct charged to him by said newspaper article are false.
'A libel is a false and malicious defamation of another, expressed in print, or writing, or pictures, or signs, tending to injure the reputation of an individual,' and its publication 'is essential to recovery.' Code, Sec. 105-701. Words need not charge a specific crime in order to be libelous; they are actionable if they charge moral turpitude. See Hardy v. Williamson, 86 Ga. 551(b), 12 S.E. 874, 22 Am.St.Rep. 479, 'Any false and malicious defamation of another in any newspaper, magazine, or periodical, tending to injure the reputation of any individual and expose him to public hatred, contempt, or ridicule, shall constitute a newspaper libel, the publication of such libelous matter being essential to recovery.' Code, Sec. 105-703. The publication of untrue statements which may tend to injure reputation of another and expose him to public hatred, contempt, or ridicule, is presumed to have been malicious until sufficient evidence rebuts that presumption. Horton v. Georgian Co., 175 Ga. 261, 165 S.E. 443. Code, Sec. 105-706.
When language used is actionable per se malice is implied, except where the utterance is privileged. Lack of malice in cases of privileged communications will prevent recovery. Ivester v. Coe, 33 Ga.App. 620, 127 S.E. 790. However, in the present case, the petition, as amended, charges express malice by the defendant in the...
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