Opinion
27632.
DECIDED DECEMBER 5, 1939.
Action of libel; from Fulton superior court — Judge Humphries. February 13, 1939.
V. E. Adams, for plaintiff. Kennedy, Campbell Therrell, E. P. Rogers, Hirsch Smith, for defendant.
Where the petition, construed most strongly against the pleader, discloses that the alleged libelous statements were: "J. Linton Moore, father of the Auto-Soler," and "He considered the Auto-Soler his crowning achievement," and further discloses that both the plaintiff and Moore jointly invented the said "Auto-Soler," the petition does not set out a cause of action for libel, for the statements do not by innuendo or otherwise injure the reputation of the plaintiff and expose him to public hatred, contempt, or ridicule, and the judge properly sustained the general demurrer.
DECIDED DECEMBER 5, 1939.
Davis J. Ajouelo brought suit against Auto-Soler Company and William Wilkerson, in the sum of $25,000 for an alleged libel. The judge sustained a general demurrer to the petition and dismissed the action. The plaintiff excepted.
The petitioner alleges in effect that he is a "mechanical designer," holding several patents from the United States Patent Office; that Auto-Soler Company, a corporation, is engaged in the manufacture and sale of shoe-repairing machines, including machinery "for the use of shoe-repair shops and especially a machine called `Auto-Soler;'" that the defendant William Wilkerson is the president and general manager of Auto-Soler Company. "6. That your petitioner prior to August 4, 1931, invented a certain machine designed for the use of shoe repairing in shoe-repair shops and prior to September 28, 1931, invented another shoe-repairing machine as developed is now used in shoe shops and is known as the `Auto-Soler.' 7. That the said invention was properly and lawfully patented in the U.S. Patent Office in Washington, D.C. under No. 2036988 and date of April 7, 1936, the same having been filed June 29, 1932 and in the name of your petitioner, to wit: Davis J. Ajouelo. 8. That at all times and places your petitioner was the sole inventor of the said invention mentioned in the preceding paragraph and that no other person or persons owned any interest in the same at law or in equity whatsoever." That subsequently to the granting of the patent, certain large shoe-machinery companies throughout the country became acquainted with and accepted the knowledge that petitioner was the true and sole inventor and creator of the invention now used in the said "Auto-Soler." On or about April 12, 1932, petitioner entered into a contract with defendant Wilkerson, as an individual, for the sale of the exclusive right to manufacture and sell said patented article (patent No. 1817224), and on April 23, 1932, entered into another contract with this defendant with reference to another invention patent No. 1817224 (which according to the serial and patent numbers seemed to be the same machinery mentioned in the contract of April 12th). That on or about April 12, 1932, petitioner employed James L. Moore, now deceased, to aid and assist in certain experimental work. That on or about November 4, 1932, petitioner entered into a contract with the defendant, Auto-Soler Company, for the sale and transfer of a machine patent No. 1817224 (same as above) "and also for a machine for inserting metallic fastenings serial number patent applied for June, 1932." That on or about November, 1932, petitioner entered into a contract with the defendant Auto-Soler Company whereby he delivered to it "the exclusive right to manufacture and/or sell the inventions . . for and during the life of the patent No. 1817224, and the patent for which application was made in the United States Patent Office on June 29, 1932." That on or about May, 1938, petitioner entered into another contract with defendant corporation supplementing and superseding the contract of November 4, 1932, supra. This contract provided in part as follows: "Whereas the said Davis J. Ajouelo and James Linton Moore, deceased, lately a citizen and resident of the City of Decatur, DeKalb County, Georgia, during the lifetime of the said deceased, were joint inventors of certain new and useful improvements in machinery for making and affixing metal fasteners, and the exclusive joint owners of letters of patent of the United States of America, as follows: Patent No. 2036988, granted April 7, 1936," and that said Ajouelo and Mrs. Susan Ansley Moore, sole executrix and beneficiary of said James Linton Moore, under that contract of May, 1938, sold all the rights incident to the said letters patent. This contract was signed by the plaintiff. All of the foregoing contracts were attached to and made a part of the petition.
The plaintiff further alleged that "at all times and places defendant William Wilkerson, as an individual, has recognized and accepted your petitioner as the true and lawful sole creator and inventor of the invention and idea covered by patent No. 1817224, dated September 28, 1931, No. 2036988, dated April 7, 1936, and No. 2049240, dated July 28, 1936. 23. That at the present time defendant corporation is in the business of manufacturing, selling, and distributing machinery for the use of shoe-repair shops and especially a machine called `Auto-Soler' which embodies and is basically the idea and invention created by your petitioner as hereinbefore shown as treated in the various exhibits attached hereto." That at all times and places the general public and especially various friends and acquaintances of petitioner both in and out of the shoe-repair business have understood, recognized, and accepted petitioner as the inventor of the "basic idea and invention of the said `Auto-Soler.'" That before the existence of the defendant company and before he knew defendant Wilkerson or Moore, petitioner met representatives of Landis Shoe Machinery Company, American Shoe Machinery Company, and Champion Shoe Machinery Company in St. Louis, Missouri, and exhibited his working model and his application for patent on his shoe-repairing machine, now known as the "Auto-Soler." That said representatives from 1931 to midsummer, 1938, had known petitioner as the inventor of the "Auto-Soler." "That the Atlanta Leather Company from whom petitioner has purchased his supplies for his shoe shop, Tenth Street Shoe Shop, had known ever since 1931 that petitioner claimed to be the inventor and that he applied for a patent on the shoe-repairing machine, known as the `Auto-Soler,' and so considered him and extended him all credit he needed in his business until defendants published and distributed their libelous pamphlet in 1938 . . after which the Atlanta Leather Company has changed its attitude toward petitioner to his injury and damage, and he alleges that said change of attitude toward him on the part of the Atlanta Leather Company was and is due to said libelous publication." That Mr. Armand May, a wealthy resident of Atlanta, has known petitioner for five or six years as inventor of the machine known as the "Auto-Soler," and employed petitioner in the spring of 1938 during petitioner's spare time and paid him $25 per week therefor, and on receipt from defendants of their libelous pamphlet in 1938 said to petitioner: "I thought you were the inventor of the Auto-Soler. What about this book? I received a copy of it." That immediately thereafter he cut petitioner off of the spare-time work and that this was a direct result of the defendants' false statement. "That about August, 1938, defendants have jointly and severally caused to be published and distributed a certain piece of sales literature of sixteen pages styled `Meet These Fellow Shoe Repairmen,' over the signature and authority of the Auto-Soler Co. . . That the last one half page of the said publication contains photographs of three Auto-Solers and styled as follows: `First successful Auto-Soler November, 1932. J. Linton Moore, father of the Auto-Soler June, 1933. During his lifetime Mr. Moore invented many useful machines for the service of mankind. He considered the Auto-Soler his crowning achievement, a machine dedicated to lighten the burdens of the shoe-repair man and make him more prosperous. The constant aim of the factory crew he organized is to build as fine a machine as can be produced and sell it at a price all can pay. To-day's Auto-Soler just as modern as to-morrow. Often called the Auto-Heeler.' For information about the Auto-Soler, write: The Auto-Soler Company, Atlanta, Georgia, U.S. A. Complete information will gladly be sent without obligation. Nothing better for soles. The finest there is for top-lifts."
The petition further alleged that "said statement and representation, to wit: `J. Linton Moore, father of the Auto-Soler June, 1933,' is false, untrue, misrepresenting, misleading, fraudulent, and otherwise deceptive, and calculated to deceive, misrepresent, and otherwise mislead the public into believing that your petitioner is not the true inventor of the said `Auto-Soler' as hereinbefore shown by the various patents and copies of contracts for the sale or the rights to the said basic idea and invention." That the said pamphlet was distributed throughout this country and England in which pamphlet "they not only fail to give petitioner credit for being the inventor, but actually state that another, to wit, J. Linton Moore, is the inventor is very injurious to petitioner as an inventor and mechanical designer, and is equivalent to advertising to the world that petitioner's claim that he is the inventor of said machine is fraudulent and fictitious. . . That defendants knew that the full import of said sentences, the only meaning they could convey to the public, to wit, that J. Linton Moore was the inventor of the Auto-Soler and considered it his crowning achievement as an inventor, was not true when they published and distributed said pamphlet in 1938, for defendants knew that petitioner had invented said machine and obtained a patent thereon before J. Linton Moore ever saw said machine or had any knowledge or idea of the workings of said machine." That the pamphlet was distributed widely among the shoe-repair shops in the country and especially among the friends and acquaintances of petitioner, and defendants have libeled and damaged petitioner in that: "(a) Your petitioner has been greatly embarrassed in that his friends and acquaintances question his veracity as to his being the sole and true inventor of the said `Auto-Soler.' (b) Your petitioner has been greatly humiliated in that his friends and acquaintances question his veracity as to his being the sole and true inventor of the said `Auto-Soler.' (c) Your petitioner's reputation is damaged and injured in that defendants have by their wrongful acts and untrue statements which tend to discredit the reputation and invention of your petitioner. (d) The publication of the said sales literature, `Meet These Fellow Shoe Repairmen,' grossly misrepresents, misleads, deceives, and otherwise injures your petitioner's reputation as a mechanical designer and inventor. (e) Your petitioner's reputation as an honest person of good repute suffers by reason of the cloud brought about and occasioned and caused by the wrongful acts of the defendants, jointly and severally, in concert and otherwise. (f) That the said untrue, false, misleading, and fraudulent statement recited . . and part of the sales literature hereinbefore mentioned shall embarrass, humiliate, damage and injure your petitioner in the future by reason of the said misstatement and misrepresentations being in open and notorious circulation and reaching particularly the various shoe-machinery manufacturers in the United States upon whom your petitioner has previously stated and represented that he was the sole and original inventor of the said invention."
"Every man has a right to the enjoyment of a good reputation unassailed, as he has a right to life, liberty, or property. It was long ago said that `A good name is rather to be chosen than great riches.' Prov. xxii: 1. A suit for defamation is based on the injury done to reputation. Libel and slander are both methods of defamation. The former is expressed by print, writing, pictures, or signs; the latter is expressed orally." Spence v. Johnson, 142 Ga. 267, 269 ( 82 S.E. 646, Ann. Cas. 1916A, 1195). Our Code, § 105-701, defines libel as follows: "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 exposing him to public hatred, contempt, or ridicule. The publication of the libelous matter is essential to recovery." Black's Law Dictionary (3d ed.), 1103, defines libel as "A false and unprivileged publication by writing, printing, pictures, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." 36 C. J. 1143, § 3, declares: "A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule. In its most general and comprehensive sense it may be said that any publication that is injurious to the reputation of another is a `libel.'"
It is generally held that the foundation of an action for defamation is the injury done to the reputation, that is, injury to character in the opinion of others arising from the publication, and on account of the greater deliberation and permanency of a libel the courts came to hold certain things to be libelous per se which would not have been sufficient as the basis of an action of slander without showing special damage. Of course if words are slanderous they would not become less defamatory by publishing them in writing, though words which might not be actionable per se as slander may be libelous per se when put in writing or print. It is a rule of law of universal application that whenever one person commits a wrong upon the person, property, or reputation of another, which is accompanied with damage, the latter may maintain an action. The privilege of free speech does not confer upon one individual the right to use that privilege to the injury of another, and if one prints or publishes words concerning another, or his business, which are themselves false, the law will presume that it was done maliciously, and award damages accordingly. Malice in the law of defamation may be used in two senses. First, in a special and technical sense to denote absence of lawful excuse or to indicate absence of privileged occasion. Such malice is known as "implied" malice or "malice in law." There is no imputation of ill will with intent to injure. Second, "malice" involving intent of mind and heart, or ill will against a person, and is classified as "express" malice or "malice in fact." 36 C. J. 1146, § 6. "Where, in an action for words written and alleged to be `false and unfounded,' there is no allegation of malice [as in the instant case] in the printing or publication, the plaintiff is entitled to recover only his actual damages, and must by his declaration allege the various elements of actual damage with such certainty as fully and distinctly to advise the defendant of the sources and extent of the injury." Bradstreet Company v. Oswald, 96 Ga. 396 ( 23 S.E. 423). Where it is necessary to allege special damages in order to set out a cause of action the particular loss or injury must be distinctly stated, and the ad damnum clause, that the plaintiff has been damaged in the amount of $25,000, is not the equivalent of such an averment. Watters v. Retail Clerks Union, 120 Ga. 424, 426 ( 47 S.E. 911). In the case of Green v. Archer (1891), 7 Times L. R. 542, cited in Odgers, Libel and Slander (5th ed.), 105, it was said: "The plaintiff and the defendant were architects, who formerly carried on business in partnership, and as such they joined in, designed, and supervised the construction of many important buildings in London. Immediately after the dissolution of their partnership the defendant circulated photographs of these buildings, with the words below: `Designed by Thomas Archer, F. R. I. B. A.' omitting all reference to the plaintiff. Held, that no action lay, for the omission of the plaintiff's name was no libel on him; there was no slander of title and no special damage." It appears from the petition in the instant case, construing it most strongly against the pleader and to the upholding and sustaining of the general demurrer, that the petitioner alleged in paragraph 6, quoted above, that the petitioner invented a machine now known as the "Auto-Soler." In the next paragraph (7) he alleged that this machine (Auto-Soler) was patented in the United States Patent Office under the patent No. 2036988. In effect the petitioner alleged that the "Auto-Soler" was patented under the patent No. 2036988. Elsewhere in his petition a certain contract between the plaintiff and the defendant company was alleged to have been entered into, and the contract was attached to and made a part of the petition. The pertinent part of the contract was as follows: "Davis J. Ajouelo and James Linton Moore, deceased, . . were joint inventors of certain new and useful improvements in machinery for making and affixing metal fasteners, and the exclusive joint owners of letters of patent of the United States of America, as follows: Patent No. 2036988, granted April 7, 1936." (Italics ours.) It therefore follows from the petition itself that the plaintiff Davis J. Ajouelo and James Linton Moore were joint inventors of the said "Auto-Soler."
Under the foregoing, the present suit being on the theory of injury to reputation, we do not think that the statements "J. Linton Moore, father of the Auto-Soler" and "he considered the Auto-Soler his crowning achievement," tended to injure the reputation of the plaintiff and expose him to public hatred, contempt, or ridicule. The court did not err in sustaining the general demurrer and in dismissing the plaintiff's petition for damages for alleged libel.
Judgment affirmed. Broyles, C. J., and Guerry, J., concur.