Witham v. Journal

• Decision Date: 13 January 1906
• Citation: 53 S.E. 105,124 Ga. 688
• Parties: WITHAM. v. ATLANTA JOURNAL.
• Court: Georgia Supreme Court

53 S.E. 105

(124 Ga. 688)

WITHAM.

v.ATLANTA JOURNAL.

Supreme Court of Georgia.

Jan. 13, 1906.

1. Libel—Pleading—Innuendo.

Although in the headline over a newspaper article, wherein a named bank is stated to have made an assignment,. owing to its failure to meet its obligations, the surname of an individual having no connection with such bank may be used as an adjective descriptive of the bank named in the body of the article, yet if the publication, in plain and unambiguous terms, refers to the bank, and does not refer to such individual, or his trade, profession, or business, except by thus using his surname, the meaning of the published words cannot be enlarged or extended by innuendo, so as to give him a cause of action for alleged libel, in the absence, of an allegation of special damage.

[Ed. Note.—For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 103, 205-208.]

2. Same—What Constitutes.

To falsely publish of another that there are criminal cases pending against him is libelous per se.

[Ed. Note.—For cases in point, see vol. 32, Cent. Dig. Libel and Slander, § 22.]

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by W. S. Witham against the Atlanta Journal. Judgment for defendant, and plaintiff brings error. Reversed.

This was an action for libel, brought by W. S. Witham against the Atlanta Journal. After a jury had been impaneled, and before any evidence was introduced, the defendant made an oral motion to dismiss the petition, which was sustained, and the plaintiff excepted. The alleged libelous language declared on constituted an article in a newspaper published by the defendant in Atlanta, and, including headlines, was as follows:

"Witham Bank at Barnesville Assigns.

"People's Bank has Made an Assignment Following Failure to Pay Deposit Certificates.

"(Special Dispatch to The Journal.)

"Barnesville, Ga., Jan. 6.—The People's Bank has made an assignment to Mr. E. Rumble and A. A. Murphy, following its failure to meet the certificates which fell due January 1, given on its plan of reorganization in January, 1902. The records show that the assignment was filed with the clerk of Pike superior court at Zebulon, Saturday, January 3, 1903, at 11:30 o'clock p. m. After all efforts had failed Saturday to secure money with which to pay the bank's obligations, as per promise of its re-organizers, the assignment was decided upon by the bank officials after a consultation with some of the creditors. It is understood that the assignment is satisfactory to the holders of the certificates. While everybody here regrets the new turn affairs have taken, there is little excitement over it. Efforts will be made to yet reach a settlement without having any extensive litigation, as all the parties at interest seem to be satisfied to have as little litigation as possible. Judge Howard Van Epps, of Atlanta, and Col. R. L. Berner, of Forsythe, were in the city to-day representing W. S. Witham, and it is understood that a proposition has been made looking to a settlement of the civil [and] criminal cases pending against Witham, growing out of his connection with the old Barnesville Savings Bank."

It was alleged that all of this publication was false, malicious, and libelous, and that it was "of and concerning petitioner." It was further alleged that at the time of the publication in question the plaintiff, Witham, was president of 19 banks located throughout the state of Georgia, and financial agent of 11 other such banks; that all of these banks were commonly known as "Witham Banks, " and that no other Witham in Georgia is connected in the public mind with the term "Witham Bank." The publication complained of meant, and intended the public to understand, that the People's Bank therein referred to was a "Witham Bank, " and that this one of the Witham banks hadmads an assignment on account of its failure to meet the demands of holders of certificates of deposit, when as a matter of fact plaintiff had no connection whatever with the People's Bank, owned no stock in it, held no office in it, and had no interest in its success or failure; and the charge in the newspaper article that it was a "Witham Bank" w-as recklessly false, malicious, and libelous, and, owing to the large circulation of the newspaper, has worked irreparable damage to the plaintiff, "subtle and intangible in its nature, and not capable of accurate itemization, or of special proof." Plaintiff is connected, either as president or financial agent, or both, with 30 banks doing business in Georgia, all of which are known by the public and commonly designated as "Witham Banks, " and, by reason of his financial connection with banks in New York and other money centers he is enabled freely to command the necessary funds for the use and protection of his banks, all of which are upon a solid foundation and being successfully operated, "save that their confidence in petitioner will necessarily be impaired and the public favor withdrawn from him by reason of said publication." Such a publication, in a newspaper of such extensive circulation as the one published by the defendant, "naturally and inevitably tends to shake public and general confidence in the system of banks operated and controlled by petitioner in the state of Georgia, or with which his name is connected, and to deter depositors from depositing in any one of the Witham Banks, or to cause them to withdraw their deposits already made, and to create suspicion and distrust in the minds of creditors, such as to incline them to precipitate and press their claims, " and by reason of petitioner's financial connection and business employment "the publication by the defendant of the false and malicious article aforesaid tends naturally and inevitably to impair his credit, impair or destroy the public confidence in him, and in part at least to injuriously affect and destroy his ability to retain his present...