holding that "[t]he general rule [is] that the effect of the article on the reading public and whether or not it tends to bring the petitioner into hatred, contempt or ridicule are issues of fact for the jury."Summary of this case from Airtran Airlines, Inc. v. Plain Dealer Pub. Co.
ARGUED SEPTEMBER 6, 1967.
DECIDED SEPTEMBER 20, 1967.
Libel. Fulton Superior Court. Before Judge Shaw.
Oze R. Horton, for appellant.
Hansell, Post, Brandon Dorsey, Allen Post, Albert G. Norman, Jr., Charles T. Zink, for appellees.
The allegations of the amended petition do not state a cause of action for newspaper libel; therefore, the sustaining of the motion to dismiss was not error.
ARGUED SEPTEMBER 6, 1967 — DECIDED SEPTEMBER 20, 1967.
John Mathews filed an action for libel against Atlanta Newspapers, Inc. and its reporter, David Nordan, on account of the publication in the January 17, 1966, issue of the defendants' newspaper, the Atlanta Journal, of the following article:
"NO `CLATON' COUNTY. SUIT DISMISSAL ASKED. NAMES MISSPELLED.
"By David Nordan.
"Clayton County Superior Court Clerk Joe Mundy has asked dismissal of a suit against him because it misspelled the names of the clerk, the county and the court.
"The suit, brought by a Forest Park plumber, is directed against `Joe Monday, clerk of Claton County Superior Court,' It charges that `Mr. Monday' `has failed to carry out the duties of his office.'
"The suit against Mr. Mundy was brought after the clerk refused to issue a subpoena to Superior Court Judge Harold Blake [sic] to appear as a witness in a divorce case being tried in his own court.
"It asked that Mr. Mundy be cited for contempt of court for not calling the judge as a witness in the case.
"`I told him the judge was sure to be there anyway,' the clerk said. `Besides, with the judge on the witness stand, who would preside over the court?'
"Attorney Hutcheson answered this question in filing Mr. Mundy's answer to the suit. He stated that `no judge of the Superior Court can be subpoenaed, called, sworn as a witness in a case over which he is presiding.'
"To further complicate the situation, the decision as to whether the plumber has a legitimate complaint will have to be made by Clayton County's only Superior Court judge, Harold Banke."
The court sustained a general demurrer to the petition with leave to amend and the amended petition alleged substantially as follows: that the article was wilfully and maliciously written for the sole purpose of ridiculing and hurting the plaintiff because of his inability to spell correctly in his effort to prosecute his rights in the courts without the aid of an attorney, which he could not afford; that defendant Nordan wrote the article, well knowing that it did not depict the true picture of the matter and that it was not a fair representation and discussion of it, or did not care, but left the matter for speculation and conjecture by the general public, and for the spiteful and malicious purposes of destroying plaintiff's reputation, weakening his case before the court and public, exposing him to public hatred, ridicule and contempt, so that he could not successfully prosecute his case, and espousing the side of the defendant clerk in the case under discussion; that defendants made little effort to determine the truthfulness of the article or the legality of the plaintiff's action therein reported, merely taking the word of the clerk and his attorney and treating the publication as a sort of joke, without thought of the plaintiff's feelings; that defendants refused plaintiff's written requests for a retraction of the article in their newspaper; "that plaintiff is not a man of means but a plumber, plying his trade, which at best is not of the highest order but entirely honorable and necessary to mankind, and the acts herein told, committed by defendants, have affected plaintiff and caused him untold concern in his work, peace, happiness and feelings, his chief and most valued possession."
The appeal is from the judgment sustaining the defendants' motion to dismiss the petition as amended.
1. Even assuming that the published article, which referred merely to "a Forest Park plumber," made the plaintiff's identity ascertainable, the article was not shown to be of a libelous nature, as is discussed hereinbelow.
2. The article was not libel per se, which 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); Grayson v. Savannah News-Press, 110 Ga. App. 561, 566 ( 139 S.E.2d 347).
3. "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." Grayson v. Savannah News-Press, supra, p. 566. The present petition as amended fails to allege what, if any, covert, untrue meaning attached to the words and that they were, in fact, so understood by any readers. In the absence of such allegation, the allegations of the malicious intent with which the article was written and published amount to no more than mere conclusions of the pleader. The only allegation as to special damages is the plaintiff's "concern in his work, peace, happiness and feelings." It is not alleged in what manner the article injured the plaintiff in his trade as a plumber, the ability to spell correctly not being alleged to be a prerequisite of such trade. Davis v. General Finance Thrift Corp., 80 Ga. App. 708, 709 (1, 2) ( 57 S.E.2d 225), and cit. The general rule — that the effect of the article on the reading public and whether or not it tends to bring the petitioner into hatred, contempt or ridicule are issues of fact for the jury ( Horton v. Georgian Co., 175 Ga. 261 (2) ( 165 S.E. 443)) — does not apply where the alleged covert meaning by innuendo is not alleged ( Grayson v. Savannah News-Press, supra, p. 566), unless the "false construction . . . would necessarily be placed upon the words." (Emphasis supplied.) Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 330 ( 60 S.E.2d 802), and cit. The construction, urged in appellant's brief, that the plaintiff's case was to be dismissed because of either the misnomers or any other reason indicated, would not be necessarily placed upon the words by readers, since the article clearly states merely that the clerk had asked for the dismissal of the suit.
4. Furthermore, a libel must be false, as well as malicious. Code § 105-701; Savannah News-Press, Inc. v. Hartridge, 104 Ga. App. 22, 28 ( 120 S.E.2d 918), and cit. "A newspaper is fully within its rights in reporting a court proceeding, the only limitation being that in reporting such a proceeding it must do so correctly. Harrison v. Constitution Pub. Co., 41 Ga. App. 102 ( 152 S.E. 131)." Savannah News-Press, Inc. v. Hartridge, supra, p. 28. In the instant case, not only is there no affirmative allegation that the facts in the article are untrue, but also at least two such allegations in the original petition were specifically deleted by amendment, leaving only allegations to the effect that the article did not "depict the true picture of the matter." On demurrer, this allegation, construed against the pleader, means that the statements are true. We know of no authority requiring a newspaper to devote equal space to the contentions of and facts concerning every person mentioned in its columns. The contrary not appearing, the article was a factual and true report of what the parties said and did. As long as facts are not misstated, distorted or arranged so as to convey a false and defamatory meaning, there is no liability for a somewhat less than complete report of the truth, even if the newspaper happens to recognize an element of humor in the situation reported and conveys this, either impliedly or expressly, as well as some of its own editorial opinions in that regard.
It follows that the petition as amended in this case failed to state a cause of action and the trial court did not err in its judgment sustaining the motion to dismiss.
Judgment affirmed. Hall and Eberhardt, JJ., concur.