Opinion
28515.
DECIDED NOVEMBER 27, 1940. ADHERED TO ON REHEARING, DECEMBER 19, 1940.
Action for damages; from Fulton superior court — Judge Moore. April 11, 1940. (Certiorari denied by Supreme Court.)
Eugene A. Epting, for plaintiff.
McElreath, Scott, Duckworth DuVall, for defendant.
1. Language contained in a letter and in a telegram to the effect that the plaintiff assigned to the defendant a certain account for value received, and that the plaintiff without authority collected this account from the debtor and failed to remit the proceeds thereof to the defendant, which by innuendo, as alleged in the petition, falsely and maliciously charged the plaintiff with making a collection of money to which he was not entitled, may, in the minds of a jury, constitute a libel, and is actionable per se.
2. The exhibition to third persons of libelous writings constitutes a publication. The filing of such a libel with the telegraph company and its transmission was a publication to employees of the telegraph company, and therefore a publication of the libel.
DECIDED NOVEMBER 27, 1940. ADHERED TO ON REHEARING, DECEMBER 19, 1940.
Howard R. Brandon brought suit against the Arkansas Fuel-Oil Company, a West Virginia corporation, having an office and place of business in Fulton County, Georgia, seeking to recover damages of the defendant as the result of the publication of an alleged libel. The petition alleged that the plaintiff was engaged in Athens, Georgia, under the registered trade-name of Brandon Oil Company, in the business of operating filling-stations, and therein selling to the public gasoline, oils, automobile supplies, and equipment; that on August 15, 1939, the defendant, acting through its agent and credit manager, L. P. Nichols, uttered and published certain libelous matter, damaging to the plaintiff, in a letter addressed to the Brandon Oil Company, copies of which were sent to and read by J. C. Taylor, S. M. Riggs, E. A. McCurdy, and the Highway Express Company; that such letter read in part as follows: "In June you assigned to us charge tickets against the Highway Express Company, Charleston, South Carolina, and Savannah, Georgia, in the amount of $32.72 and you were paid full face amount of the tickets therefor; however, in trying to collect from the Highway Express Company, they have forwarded to us their check dated July 11, in favor of Brandon Oil Company in the amount of $30.72, duly endorsed by you and showing that you received the money for these invoices. We can find no record of where you have remitted to us, so the Highway Express Company sent us a duplicate of each ticket for which they have paid you and deducted that amount from their settlement with us, therefore we request that you forward exchange immediately for the $30.72 to cover this unauthorized collection, and show that it is to be credited on the account of the Highway Express Company;" that on September 13, 1939, the defendant wrote and published in a telegram sent by it to the plaintiff, through the Western Union Telegraph Company the following libelous matter, which was damaging to the plaintiff, to wit: "We demand immediate payment Highway Express account $30.72 which you assigned to us and also collected from them;" that such libelous matter was uttered and published by the defendant's agents to the agents and employees of the telegraph company, handling the transmission of the message from Shreveport, Louisiana, to Athens, Georgia; that such letter and telegram imputed to the plaintiff acts criminal in their nature, "and are each libelous per se," and accused the plaintiff of misappropriating funds received by him and "of acting in a fraudulent, dishonest, and unauthorized and illegal manner;" that these accusations were damaging to the plaintiff in that they caused him humiliation, cast a suspicion upon him in the minds of all persons to whom they were or may have been published; that such accusations and inferences therefrom served to injure the plaintiff in his business and to retard him in his credit transactions, and subjected him to suspicion and contempt in his dealings with the public, and were wantonly and maliciously published with the intent to injure the plaintiff in his business transactions and credit standing; that as a direct result thereof the Highway Express Company withheld payment of subsequent indebtedness owed by it to the plaintiff, "apparently having become, on account of defendant's wrongful accusations, doubtful of plaintiff's honesty in business;" and that such statements are untrue and unjustified and plaintiff has in no wise been guilty of the acts thus charged and imputed to him by the defendant and its agents.
The defendant demurred generally and specially to the plaintiff's petition. The judge, on February 16, 1940, passed the following order: "The plaintiff's suit is based upon an alleged libel, by a letter and by a telegram, both of which appear in the petition. The plaintiff alleges that the letter and telegram charged him with a crime. He alleged `that all of said statements are entirely untrue and unjustified, and that plaintiff has in no wise been guilty of the acts charged and imputed to him.' Construing this denial as a general denial of guilt of crime, and not as a specific denial of the facts stated in the letter and telegram, the demurrer filed by the defendant to plaintiff's petition is sustained at this time to the extent that the plaintiff is required to amend by pleading specifically with reference to the several facts stated in the letter referred to. The plaintiff is allowed twenty days in which to amend as herein required, in default of which, the petition will stand as dismissed. The other grounds of the demurrer are not now passed upon."
On March 1, 1940, the plaintiff amended the petition and alleged that in the letter written by the defendant to him, dated August 15, 1939, it is stated: "In June you [meaning plaintiff] assigned to us charge tickets against the Highway Express Company . . and you were paid full face amount of the tickets therefor;" that this statement is false in that the account referred to was not assigned to the defendant and the plaintiff was not "paid full face amount," nor any amount whatever therefor; that, however, the plaintiff did offer to assign certain accounts to the defendant in payment of rent by the plaintiff to the defendant, but the defendant refused to accept such accounts and demanded payment of the rent by check, and that the rent was paid by the checks of the plaintiff duly received and cashed by the defendant. It is further alleged in the amendment that the statement contained in the letter of August 15, 1939, wherein the defendant demanded "that you [meaning plaintiff] forward exchange immediately for the $30.72 to cover this unauthorized collection," which is in effect a statement that the plaintiff had no right to collect the account of the Highway Express Company, is false and malicious because the collection referred to was not unauthorized, but the plaintiff owned the account referred to and furnished to the Highway Express Company the merchandise charged on the account, and such account had not been assigned to the defendant nor had the defendant credited the plaintiff with the amount thereof nor with any other amount therefor; and that such statement accuses the plaintiff of receiving money under false pretenses and of making a collection of money which he was not legally entitled to receive, which accusation was untrue. It is further alleged in the amendment that the statement contained in the telegram sent "collect" by the defendant to the plaintiff under date of September 13, 1939, and published to the employees of the telegraph company, as alleged, in which the defendant demanded "immediate payment Highway Express account $30.72 which you assigned to us and also collected from them," is false because the account referred to was not assigned to the defendant and the defendant was not entitled thereto; and that such telegram conveyed the meaning that the plaintiff had illegally collected an account owned by the defendant, which was untrue, because the defendant did not own the account but the account referred to was the property of the plaintiff, and the plaintiff was lawfully entitled to collect and retain it. It is further alleged in the amendment that the sending in regard to such matter of a telegram "collect" in the form of a demand, and in language which conveys the meaning that the plaintiff had without authority collected an account and received and retained the proceeds thereof, "all combine to give the definite impression that plaintiff was acting illegally and fraudulently, when as a matter of fact, plaintiff had collected only what he was legally entitled to, and in a legal manner, and defendant has neither right to nor interest in said account nor the proceeds thereof."
The defendant renewed its demurrer to the petition as amended and the judge sustained the demurrer and dismissed the petition. To this judgment the plaintiff excepts.
"A libel is a false and malicious defamation of another, expressed in print, or writing, . . tending to injure the reputation of an individual, and exposing him to public hatred, contempt, or ridicule." Code, § 105-701. Where language does not directly and expressly contain a libel, it may do so if the words are capable of such construction, and would be so understood by persons to whom the words might be communicated. The defendant charged that the plaintiff had transferred and assigned to the defendant certain unpaid accounts owing to the plaintiff by the Highway Express Company in the amount of $32.72, for which the plaintiff was paid in full by the defendant; that the plaintiff thereafter collected from the Highway Express Company the accounts so assigned to the defendant, and that the plaintiff had retained and failed to remit to the defendant the amount so collected, and demanding that the plaintiff forward to the defendant the proceeds of "this unauthorized collection." The words as contained in the letter and the telegram are capable of the construction of charging the plaintiff with misappropriating money belonging to the defendant, and thereby charging the plaintiff with conduct which would expose the plaintiff to public hatred or contempt, and would be so understood by any person to whom these words were communicated. The petition contains allegations which in effect attribute the above meaning to the words used in the letter and the telegram.
Where the language of a publication is reasonably susceptible of the construction that it makes a libelous charge, it becomes libelous when it conveys that charge and would be so understood by the person to whom the writing might be communicated. In Holmes v. Clisby, 118 Ga. 820, 823 ( 45 S.E. 684), it was said: "Whenever a publication is susceptible of two constructions, one of which would make it libelous and the other not, it is for the jury to say whether the words are in fact libelous. . . The plaintiff can not by innuendo draw from a writing a conclusion not justified by the language used; but it is competent for the plaintiff to explain in this way an ambiguous publication, to point out the intention of the author, and to show wherein the effect of the language was to injure his reputation. . . And the rule is that a publication must be construed in the light of all the attending circumstances, the case and occasion of the publication, and all other extraneous matters which will tend to explain the allusion or point out the person in question. . . Words harmless in themselves may become libelous when the circumstances under which they are published are such as to convey a covert meaning to the reader reflecting injuriously upon the reputation of the person to whom they refer."
In Park v. Piedmont Arlington Ins. Co., 51 Ga. 510, the Supreme Court said: "If the plain, unambiguous words contained in the publication do not impute a criminal offense the meaning thereof can not be enlarged or extended by an innuendo for that purpose; but when the language used is capable of being understood in a double sense, the one criminal and the other innocent, the plaintiff, by making the proper allegations in his declaration, may, by an innuendo, aver the meaning with which he thinks it was published, and the jury may find whether the publication was made with that meaning or not." In Williams v. Equitable Credit Co., 33 Ga. App. 441 ( 126 S.E. 855), this court stated: "Words that do not in themselves unequivocally convey a charge which may become libelous when falsely and maliciously published may nevertheless convey such a charge when the words are capable of being so understood and are so understood by the person to whom they are uttered. Words apparently innocent may convey such a charge when they are considered in connection with the innuendo and the circumstances surrounding their publication."
The Supreme Court of the United States in Washington Post Co. v. Chaloner, 250 U.S. 290 ( 39 Sup. Ct. 448, 63 L. ed. 987), held: "A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. . . When thus read [the entire writing read together], if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not. If, upon the other hand, it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read." In 36 C. J. 1161, it is stated: "Words used in imputing a crime should be weighed and considered in the light of the circumstances surrounding the parties at the time, and that effect given to them that they probably produced on the person to whom they were used." In Odgers on Libel and Slander (5th ed.) 116 it is stated: "If the words are incapable of the meaning ascribed to them by the innuendo and are prima facie not actionable, the trial judge will stop the case. If, however, the words are capable of the meaning ascribed to them, however improbable it may appear that such was the meaning conveyed, it must be left to the jury to say whether or no they were in fact so understood." See Bayliss v. Lawrence, 11 Ad. El. 920. See also Beazley v. Reid, 68 Ga. 380, and the able opinion of the superior court judge who presided on the trial of the case reported in the 68th Georgia, supra, quoted in Horton v. Georgian Company, 43 Ga. App. 19, 33 ( 157 S.E. 892); Morgan v. Black, 132 Ga. 67 ( 63 S.E. 821); Colvard v. Black, 110 Ga. 642, 646 ( 36 S.E. 80).
The language of the two publications charged to the plaintiff the unauthorized collection and retention of money belonging to the defendant. It is alleged by innuendo in effect that the plaintiff was charged with the commission of a crime, and was exposed to public hatred and contempt. The petition contains allegations sufficient to charge a libel of the plaintiff by the defendant, by which the plaintiff is accused of the dishonest act of appropriating to his own use money which he knew belonged to another. This is conduct which would tend to expose him to public hatred and contempt. It would be a question for the jury whether the language as used, under the innuendo alleged, constituted a libel of the plaintiff. Such libelous charge is actionable without proof of special damages. It is actionable per se. See Augusta Evening News v. Radford, 91 Ga. 494 ( 17 S.E. 612, 20 L.R.A. 533, 44 Am. St. R. 53); White v. Parks, 93 Ga. 633 ( 20 S.E. 78); Western Union Telegraph Co. v. Pritchett, 108 Ga. 411 ( 34 S.E. 216); Colvard v. Black, supra; 25 Cyc. 250. A libelous charge is actionable per se, whether the words directly or indirectly by intimation or innuendo, contain a libel. A libelous charge is just as effectively harmful, and therefore actionable per se, i. e., without proof of special damages, whether the harmful effect results from words which directly and unequivocally make the charge, or whether it results from words which do so indirectly or by inference. It is the harmful effect of the defamatory language which renders it actionable per se, and not its directness or unequivocal nature.
While a letter addressed to the person libeled does not constitute a publication, yet where copies of such letter are sent by the author to and received by third persons such sending and receiving thereof constitute a publication. It is alleged in the petition that copies of the letter were sent to named third persons and read by them. Likewise a libel may be published by transmission thereof through telegraph. The writing of a message and the delivery of it to the telegraph company for transmission to the plaintiff constitute a publication by the writer of the message. See Newell on Libel and Slander (4th ed.) 224-229, §§ 179-182; 36 C. J. 1224, 1227, 1229, and cit. "A libel is published as soon as it is communicated to any person other than the party libeled." Code, § 105-705.
The petition as amended set out a cause of action, and the court erroneously sustained the demurrer.
Judgment reversed. Felton, J., concurs. Sutton, J., dissents.
I do not think that the language used in the letter or telegram is libelous, or that the circumstances alleged in connection therewith make it libelous by innuendo. Neither the letter nor telegram charges the plaintiff with a crime; nor were they of such a nature as to injure the reputation of the plaintiff and to expose him to public hatred, contempt, or ridicule. The letter is only a request by the defendant to the plaintiff to pay it the sum of $30.72, the same being for accounts originally owing by the Highway Express Company to the plaintiff, but which had been sold and transferred by the plaintiff to the defendant and later paid to the plaintiff by the Highway Express Company. The telegram from the defendant was a demand for settlement of the amount above mentioned. The letter and telegram were not published to the same people. It is true that these writings stated that the receipt of the money by the plaintiff from the Highway Express Company was not authorized by the defendant; but neither of these writings charges the plaintiff with misappropriation of the money, nor can they reasonably be construed to so charge. These writings are unambiguous and are not susceptible to the meaning or construction which the plaintiff has sought to allege or to impute to them by way of innuendo. The whole import of these writings is to the effect that the plaintiff, without authority from the defendant, had received the amount in question from the Highway Express Company, the only reasonable inference therefrom being that the Highway Express Company had not been notified of the sale and transfer of the charge accounts to the defendant by the plaintiff, and consequently had paid the amount direct to the plaintiff. I am of the opinion that the court properly sustained the defendant's general demurrer, and therefore I dissent from the decision of the majority of the court.