Southland Pub. Co. v. Sewell

Citation143 S.E.2d 428,111 Ga.App. 803
Decision Date27 May 1965
Docket NumberNo. 41264,No. 1,41264,1
PartiesSOUTHLAND PUBLINSHING COMPANY v. C. E. SEWELL
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court

The language employed in the alleged libelous publication was reasonably susceptible of a construction by the average reader which would render such publications libelous under the provisions of Code § 105-703; and under the allegations of the petition the determination of the question of whether or not the tendency of the alleged publications was to bring the plaintiff into hatred, contempt, or ridicule, was an issue of fact for the jury as it cannot be said as a matter of law that the alleged newspaper libel was not of and concerning the plaintiff.

Carl Earl Sewell filed suit against the Southland Publishing Company, publisher of a daily newspaper, to recover damages for the publication of an alleged newspaper libel of the plaintiff. The petition was predicated upon a series of articles published in the defendant's newspaper during the third week in July, 1963, the prinshed basis of the suit being an article published on the front page of the Sunday edition of July 14, 1963, and set forth as Exhibit A to the petition. This article was as follows:

'Activity on Increase

'LAW OFFICERS SEIZE $30,000 STOLEN CARS.

'By Tom Winfield, Times District Editor

'CUMMING--Area lawmen struck a hard blow at car thieves in Forsyth County Friday and confiscated close to $30,000 in stolen automobiles.

'Sheriff Loy Barnett found four 1963 model cars stripped in the northeast section of the county Friday morning.

'In the afternoon he teamed with GBI, NATB and FBI agents in a raid on Smith and Sewell Garage in Cumming. Four more cars were found at the garage and were impounded, GBI Agent R. J. Cleghorn said Saturday.

'Barnett said he received a call early Friday morning from Mr. and Mrs. Mell Mashburn, who live in rural Forsyth County about five miles from the Hall County line.

'He said they told him they had found some automobiles in the woods. He investigated and found three 1963 Chevrolet Impala sport coupes and a 1963 fastback Ford. The cars were stripped of every available, part, except for a front seat in one of the Chevrolets and a rear window on the Ford.

'The cars represented a minimum $14,000 investments, Forsyth County Deputy Hoyt Burruss said.

'Mashburn told The Daily Times he lives 'just up the road from where the cars were found.' The location is some three or four miles down a dirt road off Georgia 141 to Cumming. The dirt road leaves the highway at Earl Burruss' store. 'He and his wife said, 'We've seen cars coming in and out of here this week and wondered what was going on. Last night (Thursday) we saw a big truck, it looked like a moving van, coming down here.'

"You know, this is Dr. Charles Stone's place * * * we thought he was building something.' So they took a walk Friday morning to see what was going on. When they reached Dr. Stone's place, an old barn deep in the woods, they found the cars.

"I saw a boy come down here in an old car, and I know who it was, but I can't remember his name. My eyesight's not what it used to be,' Mrs. Mashburn said.

'Lawmen called

'Sheriff Barnett called in other lawmen on the case. GBI Agents, R. J. Cleghorn, R. C. McCracken, M. J. Vandiver and Van Worthy; NATB Agent Tom Todd and FBI agent out of Gainesville.

'The cars found in the woods were from Fulton, Cherokee and Thomas Counties and one from Virginia.

'Finishing their work at Dr. Stone's place the lawmen drove to Cumming where they pulled a surprise raid on Smith & Sewell Garage.

'Here, Agent Cleghorn said they found four more automobiles: a 1963 Pontiac convertible, a 1963 Oldsmobile, a 1962 Chevrolet and a 1961 Chevrolet Corvair.

'No Charges

'Cleghorn said none of the cars had serial numbers on them and were impounded for that reason. They are believed to be stolen cars, he said, which had serial plates removed to prevent identification. 'No charges were made in the raid, not yet, anyway,' Cleghorn said. * * *' (Emphasis supplied.)

On July 16, 1963, an article set forth as Exhibit B to the petition, was published which read in part as follows: 'Officers of the law made a haul of stripped cars last week in Forsyth County deep in the northeast section of the county. When their work was finished in the woods they motored to Cumming and pulled a surprise raid on Smith & Sewell Garage. At the garage they found four automobiles without identification plates. They were impounded. Altogether, lawmen found and impounded about $30,000 in automobiles before the day was over. * * *'

The petition alleged that the statements in the articles complained of that a 'surprise raid' had been conducted on the Smith & Sewell Garage and certain automobiles 'thought to be stolen' had been impounded were libelous, defamatory, false and untrue; that no raid, surprise or otherwise, had been conducted on the Smith & Sewell Garage, and that the story of the alleged 'surprise raid' was a figment of the imagination of the writer of the story and the alleged quotation attributed to Agent R. J. Cleghorn in the article of July 14, 1963 that 'No charges were made in the raid, not yet, anyway,' was a malicious fabrication on the part of the writer as no such statement was made by Mr. Cleghorn.

The petition further alleged that the plaintiff was the co-owner of the Smith & Sewell Garage and that 'the divers citizens of Forsyth County, Georgia, knew petitioner, Carl E. Sewell to be the Sewell affiliated with the Smith & Sewell Garage, and as such the publication of said articles identified petitioner personally;' and that the plaintiff by means of the publication of the false and malicious libel had been greatly injured in his good name, reputation, fame and credit, and exposed to public hatred, contempt and ridicule, 'amongst all his neighbors, and other good and worthy citizens of said county and state and elsewhere, insomuch that divers of his neighbors and citizens to whom the innocence and integrity of the plaintiff in the premises are unknown, on account of the committing of the said grievances from thence hitherto suspected and believed, and still and do suspect and believe the said plaintiff to have been guilty of the larceny and stealing of automobiles and a surprise raid having been conducted upon the premises of the business of which petitioner is a coowner wherein stolen automobiles were found by said law officers and petitioner be a person guilty of said crime so falsely and maliciously charged upon him and imputed to him by the defendant, as aforesaid, and have by reason of the publications of said libel by the defendant, from thence hitherto wholly refused, and still do refuse to have any transaction, acquaintance or discourse with the said plaintiff as they did before the publication of said libel.'

The defendant's general and special demurrers to this petition were overruled and the exception is to that judlgment.

Wheeler, Robinson & Thompson, Emory F. Robinson, Gainesville, for plaintiff in error.

Robert J. Reed, Darrell W. MacIntyre, Gainesville, for defendant in error.

JORDAN, Judge.

1. This action is predicated upon an alleged newspaper libel which is defined by Code § 105-703 as: '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.'

A publication coming within this definition is actionable without any averment of special damage to the plaintiff (Holmes v. Clisby, 118 Ga. 820, 822, 45 S.E. 684; Witham v. Atlanta Journal, 124 Ga. 688, 693, 53 S.E. 105, 4 L.R.A.,N.S., 977; Sheley v. Southeastern Newspapers, Inc., 87 Ga.App. 167, 73 S.E.2d 211; Davis v. Macon Telegraph Publishing Co., 93 Ga.App. 633, 92 S.E.2d 619) or of actual malice on the part of the defendant. Code § 105-706; Horton v. Georgian Company, 175 Ga. 261(1), 165 S.E. 443. As stated in the Horton case in headnote 1, 'a false defamation of another, by means of a newspaper publication which may tend to injure the reputation of any individual and expose him to either hatred, contempt, or ridicule, is libelous. The publication of a statement in writing, which is untrue, and which may tend to injure the reputation of another and expose him to public hatred, contempt, or ridicule, will be presumed to have been a malicious publication until sufficient evidence has been produced to rebut the presumption.' And as stated in the Witham case, supra, 124 Ga. at p. 693, 53 S.E. at p. 107: 'It is clearly apparent from the language now under consideration that the statement therein contained tended to injure the reputation of the plaintiff and to expose him to public hatred or contempt; and it was, therefore, actionable without any allegation of special damage arising therefrom.'

As a general rule the question of whether or not a particular publication is libelous, as well as whether the libelous matter was of and concerning the plaintiff, is a question of fact for determination by a jury. Horton v. Georgian Co., 175 Ga. 261(2), 165 S.E. 443, supra; Whitley...

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