Opinion
40779.
DECIDED OCTOBER 29, 1964.
Libel. Chatham Superior Court. Before Judge Harrison.
Lewis Javetz, Emanuel Lewis, for plaintiff in error.
Stephens Gignilliat, Thomas H. Gignilliat, contra.
The petition in this case fails to show that the alleged libelous publications charged the plaintiff with the commission of a crime, or a dishonest or immoral act. The only statement of positive fact contained in the publications and alleged to have been untrue at most merely charged the plaintiff with doing that which he might lawfully and properly have done. The other statements and charges contained in the publications were merely expressions of the opinions held by the editors of the defendant's newspapers of the plaintiff's service as a public official and were not libelous. The petition, therefore, did not set forth a cause of action for libel, and the trial court did not err in sustaining the general demurrer and in dismissing it.
DECIDED OCTOBER 29, 1964.
Spence M. Grayson sued the Savannah News Press, Inc. for libel on account of the publication of two editorials. One of the editorials complained of was published on Sunday, October 14, 1962, in the Savannah Morning News. The second editorial was published on Monday, October 15, 1962, in the Savannah Evening Press. Copies of these editorials were attached to the petition as exhibits. The defendant filed general and special demurrers to the petition, the trial court sustained the general demurrer and that judgment is assigned as error here.
The publications complained of were as follows, from the Sunday, October 14, 1962 Morning News:
"MR. GRAYSON SHOULD BE RETIRED.
"Senator Spence Grayson should be retired from public office. Chatham County Democrats will have the opportunity to do this job Tuesday when they go to the polls to nominate new state senators for the upcoming general election.
"The Savannah Morning News endorses the efforts of Harris Slotin to gain the Democratic Third District Senatorial nomination in his race with Mr. Grayson.
"Mr. Grayson has served many years as a representative of Chatham County in the General Assembly. Since 1926, when he was first elected to office, he has had the opportunity to aid his home community as well as provide leadership for the rest of the state.
"This newspaper does not feel that Mr. Grayson has contributed significantly to the welfare and progress of Chatham County during those years. Improvements made in our community were made despite Mr. Grayson, not due to his efforts. Those years were marked by outside cries of dissension and disunity within Chatham's borders.
"It is time for a change.
"It is time for the voters to elect others to the important roles as representatives of Georgia's second city, Chatham County needs representation which will help fulfill her role as a leader among Southern cities.
"Mr. Grayson's tenure in the General Assembly has been marked by negative thinking and a refusal to face up to the changing times. Chatham County has needed much during the quarter century in which Mr. Grayson has been on the scene. These needs are well known to everyone and need not again be enumerated here. The deplorable state of our roads is one of them.
"The time has come to elect men who will be better able to provide Savannah with a fairer share of the improvements and representation she deserves.
"If Mr. Grayson has sought to establish community cooperation, he has met with a notable lack of success.
"The legislator who represents Chatham County in the General Assembly has a wide responsibility to cooperate with other elected officials in providing Savannah with the equipment to build a better life for all. The Savannah Morning News does not feel that Mr. Grayson has lived up to this responsibility.
"He has introduced legislation affecting ad valorem taxation (in January, 1962) which would have rendered the City of Savannah powerless in controlling its own purse strings. He has introduced legislation which would have discriminated against the city and its residents.
"Mr. Grayson has sniped at Savannah's city manager form of government which has more than once been given a sweeping vote of confidence by the people of Savannah. Mr. Grayson does not agree with this newspaper's stand earlier this year:
"`In the opinion of this newspaper, the city manager system is not open to indictment. We believe the system, on balance, has produced good results for the people and the city.'
"Mr. Grayson has tinkered with the legislation involving proposed fire districts, which would have given the county authorization to contract with municipalities to supply fire protection. We feel these changes are highly restrictive.
"Mr. Grayson this year killed a bill approved by his colleagues in the House which would have annexed Bacon Park to the city. Bacon Park belongs to the city and should have been protected accordingly. This was a simple mark of cooperation in the Community which Mr. Grayson failed to observe.
"Mr. Grayson's bill to limit the terms of members of the Savannah District Authority was not in the best interest of our community. The Savannah Morning News has pointed out that rapid turnover does not insure success on such an important board.
"However, Mr. Grayson this year had the opportunity to broaden the base of the Authority by voting for a bill increasing the membership from 10 to 15 members. The purpose of the bill was to make the District Authority more representative. Mr. Grayson voted against this bill.
"His tax equalization measure which was introduced in the 1962 General Assembly would have called for special taxes in Chatham County to be allocated on an unfair basis to the municipalities. The bill was protested bitterly by the City of Savannah — and properly so.
"The list is long and spans many years. Mr. Grayson has had more than a quarter of a century to prove himself as a leader of our community.
"The time has come to retire him from public office and seek out men who will provide better representation in these important times."
From the Monday, October 15, 1962, edition of the Savannah Evening Press:
"TIME FOR A CHANGE, RETIRE GRAYSON.
"State Senator Spence M. Grayson has had ample opportunity over a period of many years to demonstrate qualities of leadership sorely needed by Chatham County and the State of Georgia.
"He has not, in our opinion, filled this role.
"By their votes in tomorrow's primary, Chatham County Democrats should retire Senator Grayson from public office.
"Votes cast for his opponent, Harris Slotin, in the contest to determine the Democratic candidate from the newly-created Third Senatorial District, would accomplish this purpose.
"Senator Grayson has served several terms as a representative of Chatham County in the General Assembly since first being elected in 1926, and has been confronted with countless opportunities to assume a position of vital leadership for his community and his state. In the opinion of this newspaper he has not made the significant contributions to our progress that the voters expected of him. Indeed, it might be said that advancements that were accomplished were made in many instances despite Senator Grayson.
"Too often in regard to vital matters affecting our welfare, Senator Grayson's attitude was negative rather than positive. His attitude toward the city manager form of government is a prime case in point. He persistently criticized the form of Savannah's municipal government in the face of a sweeping vote of confidence by the people of Savannah.
"He has blocked what we consider important changes in county fire protection districting, needed annexation provisions, and constructive efforts to broaden the membership of the District Authority. He sponsored tax measures which, we believe, would have been unfair to municipalities.
"The record, as we said, extends over a period of many years, a period that was marked by an accumulation of many deficiencies in Chatham County — particularly regarding the state of our road system — that would not have occurred had Mr. Grayson been more aware of the changing times and less negative in approaching problems as they arose.
"Senator Grayson has been given a number of chances. It is time now for the voters to turn to other men who give greater promise of providing them with the representation they deserve, and need."
The substance of the plaintiff's complaint respecting these publications is that they were wilfully and maliciously false and untrue and not based on facts or on the records; that they injured the reputation of the plaintiff as a public official and as an individual, exposing him to public hatred, contempt and ridicule; that the purpose of the editorials "was to maliciously and falsely smear and destroy petitioner's record of nearly 25 years of public service to the people of his county, district and state as well as to injure, defame and destroy the plaintiff's reputation as an individual" so as to destroy both public and private confidence in plaintiff as an official and as an individual; that said editorials as published by defendant were motivated solely by vindictiveness and a desire for revenge because of plaintiff having won a previous libel suit against defendant and that they made it appear to the public that petitioner as a public official has brought only harm to the people he represented and no benefits. Specifically the petition charged that the editorials were false and untrue in three particulars. First, it was alleged that the editorials charged the petitioner with failing to furnish state leadership "as well as to aid his home community." Petitioner alleged that this charge was false and in support of this allegation he set forth in the petition an enumeration of some 13 different laws and proposed constitutional amendments passed by the General Assembly which he alleged that he sponsored during his career as a representative in the State House of Representatives and as a State Senator. Secondly, he alleged that the charge made by the defendant in its editorial that "improvements made in our community were made despite Mr. Grayson and not due to his efforts" was knowingly false, libelous and maliciously defamatory. In support of this contention petitioner set forth a list of some 26 local laws and constitutional amendments alleged to have been enacted or introduced as a result of petitioner's efforts, which he alleged were of benefit to the people of the State of Georgia as well as to the local community of Chatham County. In addition thereto he alleged that over the years he had been instrumental in bringing to Savannah and Chatham County certain enumerated industries and public facilities which were of benefit to the community.
Finally, petitioner alleged that the statement contained in the editorial that "Mr. Grayson's bill to limit the term of members of the Savannah District Authority was not in the best interest of our community," was knowingly, wilfully, vindictively and maliciously false and untrue and not founded on fact or record in that the bill therein referred to was not in truth and in fact his bill but was a bill sponsored in the House of Representatives by the three then representatives from Chatham County, a fact which could have been ascertained by the defendant if it had investigated the matter.
"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." Code § 105-701. Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. Anderson v. Kennedy, 47 Ga. App. 380, 382 ( 170 S.E. 555). At common law it was not necessary that a written or printed article charge one with the commission of a crime for it to be actionable. It was sufficient if it tended to bring the plaintiff into public hatred, contempt or ridicule. Augusta Evening News v. Radford, 91 Ga. 494, 495 ( 17 S.E. 612, 20 LRA 533, 44 ASR 53); Horton v. Georgian Co., 175 Ga. 261 (1) ( 165 S.E. 443). This definition of libel is recognized and has been adopted by statute in this State. Floyd v. Atlanta Newspapers, Inc., 102 Ga. App. 840, 841 (1) ( 117 S.E.2d 906). The distinction between pleading libel per se and pleading libel by use of words of covert meaning is that in the former no innuendo need be alleged, the words themselves, if in fact untrue, being a sufficient basis for the action, while in the latter, it is necessary that the pleader allege that a covert meaning attached to the words and that the words were understood by the readers (or at least by some of them) in the covert sense, which was untrue in fact. Clearly nothing contained in the editorials complained of in the petition in this case could be construed as charging the plaintiff with having committed a crime, nor was he charged with any dishonest or immoral act. There is, therefore, no allegation contained in the petition and, in fact, no contention that the publications were libelous per se.
"`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, 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.' Washington Post Co. v. Chaloner, 250 U.S. 290 ( 39 SC 448, 63 LE 987). This rule was quoted and applied in Brandon v. Arkansas Fuel-Oil Co., 64 Ga. App. 139, 145 ( 12 S.E.2d 414). The language of an alleged libel `is to be taken in its plain and natural meaning, and to be understood by courts and juries as other people would understand it, and according to the sense in which it appears to have been used and the ideas it is adapted to convey to those who read it.' Lancour v. Herald Globe Association, 111 Vt. 371 ( 17 A.2d 253, 132 ALR 486). `The office of an innuendo is to explain that which is of doubtful or ambiguous meaning in the language of the publication, but cannot enlarge the meaning of words plainly expressed therein.' Park v. Piedmont c. Ins. Co., 51 Ga. 510; Holmes v. Clisby, 118 Ga. 820 ( 45 S.E. 684); Spence v. Johnson, 142 Ga. 267 ( 82 S.E. 646, AC 1916A, 1195); Paschal v. Georgian Co., 43 Ga. App. 195 ( 158 S.E. 372). `If the words are incapable of the meaning ascribed to them by the innuendo, and are prima facie not actionable, the judge at the trial will stop the case.' Odgers' Libel and Slander (5th Ed.), p. 116." Aiken v. Constitution Pub. Co., 72 Ga. App. 250, 254 ( 33 S.E.2d 555).
There is no innuendo alleged in the petition in this case. There is nothing doubtful or ambiguous in the language of the publication and in fact the language is so plain and unambiguous that in our opinion no construction could be placed on the language by the plaintiff which would support his contention that the editorial was libelous or defamatory. With but one exception, with which we shall presently deal, the editorials are merely expressions of the opinion entertained by the writer of the quality of the plaintiff's service as a public official. Whether or not petitioner's work and efforts as a public official and as a private individual did benefit his state and community, and whether or not improvements made in Chatham County had been made despite his efforts and whether or not the petitioner had been effective as a legislator were all matters with respect to which reasonable men might entertain differing opinions. The editors of the newspapers had the right to express in the editorial columns of the newspapers their opinions as to these matters even though their opinions might have been wholly at variance with the opinions of the great majority of the voters in the plaintiff's district. Merely to hold such contrary opinions and to express them, even to the extent of using persuasive arguments to sway voters of uncertain opinion to their views, did not constitute libel. Furthermore the mere allegation that the publication was intended to expose petitioner to contempt, hatred and ridicule was not the equivalent of an allegation that it had that effect. Even if the editorials were malicious, vindictive and made for the purpose of injuring petitioner this alone was not sufficient to constitute actionable libel since the editorials were not libelous per se and no special damages flowing therefrom were alleged. Anderson v. Kennedy, 47 Ga. App. 380, supra.
The only statement of fact contained in either editorial which is positively alleged in the petition to be false is the statement with reference to "Mr. Grayson's bill." Conceding that an inference that the petitioner sponsored or promoted the bill there referred to was permissible from a reading of this statement and that this was in fact untrue, standing alone, this would not constitute libel. "It is not libelous to charge a person with the doing of a thing which he may legally and properly do." Garland v. State, 211 Ga. 44, 48 ( 84 S.E.2d 9). Obviously the petitioner quite properly might have sponsored the bill, and for him to have done so would not have been illegal, dishonest or immoral. Whether or not sponsorship of the bill was "in the best interest of" Savannah and Chatham County was merely a matter of opinion, and the editor of the newspaper had a right to express his opinion as to the wisdom of such a measure.
It follows that the petition in this case failed to state a cause of action and the trial court did not err in sustaining the general demurrer and in dismissing it.
Judgment affirmed. Felton, C. J., and Pannell, J., concur.