Van Gundy v. Wilson, 33521

• Decision Date: 14 June 1951
• Docket Number: No. 33521,No. 2,33521,2
• Citation: 84 Ga.App. 429,66 S.E.2d 93
• Parties: VAN GUNDY et al. v. WILSON et al
• Court: Georgia Court of Appeals

Page 93

66 S.E.2d 93

84 Ga.App. 429

VAN GUNDY et al. v. WILSON et al.

No. 33521.

Court of Appeals of Georgia, Division No. 2.

June 14, 1951.

Rehearing Denied July 18, 1951.

Syllabus by the Court.

1 (a) A charge made against another in reference to his trade, office or profession, calculated to injure him therein, is actionable per se unless made under circumstances which constitute it a privileged communication, such as in the performance of a public duty, or a private duty, either legal or moral, or with a bona fide intent on the part of the speaker to protect his own interest in a matter where it is concerned. The burden is on the defendant to establish this defense. If the communication is conditionally privileged there can then be no recovery unless the privilege is used merely as a cloak for the venting of private malice. In this event the burden is on the plaintiff to show actual malice, and he may do so by introducing in evidence extraneous circumstances which show an actual spite, ill will or desire to injure the person defamed.

(b) Extrinsic evidence of actual malice is admissible for the purpose of destroying the defense of privilege.

2. An objection to a question calling for the opinion of a witness on a matter not relevant to any issue involved in the case is properly sustained.

3. A witness who made the original entries in books of account and knows the contents thereof to be correct of his own knowledge may refresh and assist his memory by the use thereof, provided he finally shall speak from his recollection thus refreshed or swear positively from the entries contained in such books.

4. Error demanding reversal must be shown to be harmful.

5. Where, in an action for slander, words used convey practically the same meaning as the words declared upon, the variances will be held to be immaterial.

6. Testimony as to things actually observed by witnesses is factual and therefore not objectionable as being conclusions.

7. Special grounds of an amended motion for a new trial not complete within themselves cannot be considered by this court.

8. (a) Isolated and incomplete portions of the charge excepted to cannot be intelligently considered in the absence of the entire charge, unless the portion of the charge excepted to is without qualification and is inherently erroneous.

(b) Extrinsic evidence admissible to show malice for the purpose of destroying the defense of privilege is not also admissible to increase the damages unless it is concerned with the gravamen of the complaint. Where a wilful wrong is committed, evidence of matters tending to aggravate the damages, when necessarily or legally arising from the act complained of, is admissible without special averment. Evidence of independent transactions, to be the basis of punitive damages, must be pleaded, and must be shown to have some relation to the transaction out of which the cause of action arises.

9. Slander of one in reference to his trade, office or profession calculated to injure him therein is actionable per se and upon proof general damages are recoverable. Evidence tending to show a decline in the business slandered immediately following the defamation is admissible as tending to substantiate the general damage, although general damages need not be specifically proved. Evidence tending to show a decline in § separate and distinct business of the plaintiff, to which no slanderous words were directed, would, as to the words declared upon here, be an item of special damage which must be alleged and proved. Accordingly, evidence which merely showed a decline in profits of three several and distinct businesses of the plaintiffs without proof that such general decline was due to the defamation was error. Where it appears that the amount of the verdict approximated to some extent the amount of the profit decline in the three combined businesses, such error must be deemed prejudicial, requiring the grant of a new trial.

10. The general grounds are not passed upon, since the case is to be tried again and it is not known what the evidence may be on another trial thereof.

The trial court erred in overruling the motion for a new trial for the reasons assigned in the ninth division of this opinion.

The plaintiffs, Mr. and Mrs. Ralph R. Wilson, filed suit in the Superior Court of Tift County against Violet Van Gundy, Jack Van Gundy and Mrs. Virginia Van Gundy, individually and severally, for certain slanderous remarks alleged to have been made by the defendants, owners of a tourist court next door to the plaintiffs' restaurant, 'not to eat at Wilson's Cafe, that it was not clean and that a couple had contracted ptomaine poisoning a short time before as a result of eating at Wilson's Cafe.' The slanderous remarks were proved substantially as alleged against the defendants Violet and Virginia Van Gundy by two witnesses who on June 1, 1949, stayed overnight at the Van Gundy Tourist Court. They were not proved as to Jack Van Gundy and on motion the case was nonsuited as to him. The remaining defendants relied upon the defense of a qualified privilege in stating to guests at their cabins who wished to eat meals that they did not recommend Wilson's Cafe and in giving their reasons therefor. In support of the bona fides of their statements they introduced four witnesses who testified that they had eaten on various occasions at the cafe as a result of which they had become sick and vomited; two witnesses who testified that they ceased patronizing the cafe because it was not clean and the food not good and the proprietress drunk; and a physician who testified that he had treated two persons at the Van Gundy Tourist Court who had become sick with food poisoning.

Plaintiffs, for the purpose of showing that the defendants had exceeded the privilege, and had acted maliciously, introduced evidence of the republication of the defamatory charges; that one of the defendants had called up the owners of other tourist courts and advised them not to recommend Wilson's Cafe; and that the plaintiffs had several times forced patrons of the restaurant to move their automobiles from the street where they were parked or had called the police in order to have the cars moved. On the question of damages, one of the plaintiffs testified that the net profit of the year 1949 was $101.03; for 1948, $1,070.36; for 1947, $1,024.29 and for 1946, $2,672.44, that this income included total profits on a restaurant, a grocery store and a filling station, all of which businesses were owned and operated by the plaintiffs, and that they did not keep separate books and the income from the three businesses had not been separated.

The jury returned a verdict in favor of the plaintiffs in the amount of $1800. Defendants filed their motion for a new trial on the general grounds which was later amended by adding special grounds numbered 4 through 27 inclusive. The overruling of this motion is assigned as error.

Briggs Carson, Jr., Robert R. Forrester, Tifton, for plaintiff in error.

John T. Ferguson, Tifton, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. Grounds 4, 5 and 6 and 7 of the amended motion for a new trial complain of the admission of testimony by Ralph Wilson that the Van Gundys objected to customers of plaintiff's restaurant parking in the street; that they were always squabbling about something; that each individual defendant made these statements; that Jack entered plaintiff's restaurant and informed a customer that he would have to move his truck, as a result of which he and others discontinued their patronage; that on another occasion he caused two trucks to move on, as a result of which four persons who had intended to eat did not stop. The objections are that the evidence is irrelevant, immaterial, that it does not tend to prove the words declared upon, and that 'they', referring to all the defendants, does not specify which defendant is meant and is in consequence too vague and indefinite. As to the last objection, the plaintiff explained the use of 'they' by saying that each of the defendants made the statements in question. He specified Jack Van Gundy as the person who caused the various drivers to move. The testimony was, in this respect, sufficiently definite. And, while not relevant upon the issue of the alleged slander itself, the testimony tended to show hostile acts on the part of the various defendants toward the plaintiffs at about the time of the alleged slander and thus to show the state of mind of the parties at that time.

Where a slander is alleged and the defendant, while denying that it was spoken, admits the use of other and milder words and pleads a qualified privilege, proof that the communication as made was privileged will defeat recovery unless actual malice on the part of the defendant exists. Code, § 105-710; Nicholson v. Dillard, 137 Ga. 225, 73 S.E. 382; Ivins v. Louisville & N. R. Co., 37 Ga.App. 684, 141 S.E. 423; Conklin v. Augusta Chronicle Pub. Co., 5 Cir., 276 F. 288; Pearce v. Brower, 72 Ga. 243; Central of Georgia Ry. Co. v. Sheftall, 118 Ga. 865, 45 S.E. 687; Doyal v. Atlanta Journal Co., 82 Ga.App. 321, 60 S.E.2d 802. Evidence not relevant to prove the slanderous utterance may thus be relevant upon the question of malice in that it is competent to show the state of mind of the parties at the approximate time of the remarks, and is of probative value. Wigmore, Evidence (3rd ed.), Vol. II, § 403; Conroy v. Fall River Herald News Pub. Co., 306 Mass. 488, 28 N.E.2d 729, 132 A.L.R. 927. If relevant for this purpose it is competent evidence to show malice. Tolleson v. Posey, 32 Ga. 372; Adkins v. Williams, 23 Ga. 222(1); Craven v. Walker, 101 Ga. 845, 29 S.E. 152. It was not relevant, of course, on the issue of the truth or falsity of the charge, but no error is assigned upon the court's failure to limit the evidence to this issue, and no objection was made on that ground. Grounds 4,...