37 Ga. App. 650 | Ga. Ct. App. | 1928
In a suit by Gershon & Green, a partnership, to recover for an alleged slander spoken by the defendant, Herman Mendel, in the State of New Jersey, the petition made the following case: Gershon & Green were a partnership carrying on a general mercantile business in various cities in this State. Sam Gershon was the senior member, and in. the channels of trade in which the firm operated it was descriptively referred to and identified by the name “Gershon” or “Sam Gershon.” The defendant, in a city in New Jersey on a day named, while the plaintiffs were so in business, falsely uttered to, and in the presence and hearing of, a third person, one Harry Gordon, certain defamatory words concerning the plaintiffs in reference to their business and touching them therein, as follows: Herman Mendel: “Well, I see they [meaning creditors] closed up your friend.” Harry Gordon: “Who?” Herman Mendel: “Sam Gershon.” Harry Gordon: “Are you sure of it?” Herman Mendel: “Yes, New York is full of it.” The third person to whom such false and defamatory words were so uttered and published reasonably understood them to refer to the business of Gershon & Green, and, by reason of the facts stated, the defendant damaged the plaintiffs in a sum named, for which the plaintiffs prayed judgment. The court sustained demurrers and dismissed the petition, and the plaintiffs excepted.
Since the words complained of were spoken in New Jersey and no law or statute of that State is pleaded, it will be presumed that the common law prevails in that State, and the question of whether a cause of action is set forth will be determined by the principles of the common law as interpreted by the courts of this State. So. Ry. Co. v. Harper, 32 Ga. App. 267, 273 (123 S. E. 154); Charleston &c. Ry. Co. v. Miller, 113 Ga. 15 (38 S. E. 338); Krogg v. Atlanta & West Point R., 77 Ga. 202 (2) (4 Am. St. R. 79). The plaintiffs claimed general damages only, and the main question for decision is whether defamatory words falsely spoken of another in
The decision in the Pollard case was' cited and followed by the
But, if they be clear and well settled, the best evidence of what was the common law is the decisions of the courts of England in which the principles of the system were enunciated and applied (Robert v. West, 15 Ga. 122); and on pursuing the present inquiry to that source of authority, we are satisfied that defamatory words falsely spoken of another in reference to his trade or business and calculated to injure him therein were actionable per se at common law. In the English case of Onslow v. Horne, 2 Bl. Rep. 750, decided in 1771, De Grey, C.J., laid down “two general rules for determining whether words are actionable: (1) The imputation of crimes, which would make the party obnoxious to punishment . . . '(2) The other general rule is, if the words may be of probable ill consequence to a person in a trade, a profession, or an office.” See also Leycroft v. Dunker, Cro. Car. 317; Peard v. Jones, Cro. Car. 382; and cases collected in 13 Am. & Eng. Enc. of Law (1st ed.), 355. In Spence v. Johnson, 142 Ga. 267 (3) (82 S. E. 646, Ann. Cas. 1916A, 1195), the Supreme Court of this State recognized the rule that words falsely spoken of one in reference to his trade, office, or profession were actionable per se
To support the proposition that the words involved in the present ease would not have been actionable at common law, counsel for the defendant relies chiefly upon the cases of Pledger v. Hathcock, 1 Ga. 550, Ford v. Johnson, 21 Ga. 399, Castleberry v. Kelly, 26 Ga. 606, and Nicholson v. Dillard, 137 Ga. 225 (3) (73 S. E. 382); but in none of these cases did the words have reference to one’s trade or business, and therefore the decisions in these cases are not iu point. In the Nicholson case it was said that “at common law only words imputing a crime to another were actionable per se; but [that] under our statute words calculated to injure one in his trade or profession are actionable;” and yet, since the record in that case presented no question as to whether an oral defamation of another in reference to his trade or business was actionable per se at common law, the language quoted, if implying the negative of such question, is mere obiter, and can not be taken as a decisive ruling upon the proposition. “The law guards most carefully the credit of all merchants and traders. Any imputation on their solvency, any suggestion that they are in pecuniary difficulties, is therefore actionable without proof of special damages. In actions of slander for words affecting the pecuniary credit of a merchant, it need not be averred nor proved that they were spoken in relation to his occupation as a merchant; for in their nature they strike at the root of the mercantile character.” Newell on Slander and Libel (2d ed.), § 33; Brown v. Holton, 109 Ga. 431, 434 (34 S. E. 717).
The petition in this case stated a cause of action for slander as at common law, and was not subject to demurrer upon the ground that the alleged slanderous remarks were not shown to have been the direct and proximate cause of the damage for which the plaintiffs sued, nor upon the ground that no special damage was alleged or set forth. Nor was the petition subject to demurrer upon any other ground taken. The court erred in sustaining the demurrers and dismissing the petition.
Judgment reversed.