33 Ga. App. 620 | Ga. Ct. App. | 1925
1. “Slander, or oral defamation, consists, first, in imputing to another a crime punishable by law,” or, among other charges and disparaging words recognized by the statute, it may consist in charging a person of “being guilty of some debasing act which may exclude him from society.” Civil Code (1910), § 4433. Words charging a person with illegal sexual intercourse with another impute a crime and are actionable per se. Penal Code, § 372; Nicholson V. Dillard, 137 Ga. 225, 231 (73 S. E. 382); Richardson v. Roberts, 23 Ga. 215, 221 (8).
2. An essential ingredient of an action for libel is malice, express or implied (Civil Code of 1910, § 4428; State Mut. Life Assn. v. Baldwin, 116 Ga. 855 (1), 43 S. E. 262), and it would seem that the same rule should apply where the statement is merely oral and not written or printed (Civil Code, § 4429; Nelson v. Davis, 9 Ga. App. 131, 137, 70 S. E. 599); but where the language used is actionable per se, malice is implied, except where the occasion of the utterance renders it privileged, in which case, while the occasion does not excuse if the accusation is maliciously made (Civil Code, § 4437), the burden is put upon the plaintiff to establish malice. Lester v. Thurmond, 51 Ga. 118; Hendrix v. Daughtry, 3 Ga. App. 481, 482 (60 S. E. 206).
3. Communications which are deemed privileged may be such in an absolute sense (Civil Code, § 4438), or may be only conditionally so. Among the latter are communications made in the performance of a private duty, either legal or moral, and statements made to protect the speaker’s own interest in a matter where it is concerned. Civil Code, § 4436 (1, 2, 3). In order to make the defense of privilege complete, the defendant must show, among other things, a proper occasion for the utterance, and that the publication was limited to proper persons. In the instant case the charge by the defendant, impugning the chastity of the plaintiff, whether it consisted of the language alleged in the petition or that set forth in the plea, was admittedly made not only -in the presence of the plaintiff’s father, but in the presence of some four or five other witnesses, whose presence was then and there procured by the defendant. Consequently, it can not be said that the plea setting up that the communication ivas privileged was in any wise sustained. Sheftall v. Cen. of Ga. Ry. Co., 123 Ga. 589 (51 S. E. 646).
4. In a suit for slander, charging the utterance of language which is slanderous per se, where the utterance was not privileged, the defendant may defend by denying that the words were uttered, or he may defend by setting up the truth of the charge in full justification. Civil Code
5. The court did not err in admitting, over the defendant’s objection that it was irrelevant and unauthorized by the pleadings, the evidence of the plaintiff to the effect that, one or two weeks before the alleged slander, the defendant unsuccessfully attempted to kiss and to. forcibly embrace her. Such evidence was material on the issue as to good faith or malice of the defendant in making the alleged communications to the father in the presence of several witnesses. 17 R. C. L. 167. See also Adkins v. Williams, 23 Ga. 222 (1), 224; 36 C. J. 1246, 1248. This was one of the vital issues in the case under certain portions 'of the testimony tending to show that the presence of the witnesses and the making of the statements arose from the initiative and acts of the defendant alone.
6. “Talebearers are as bad as talemakers.” Every repetition of a slander originated by a third person is a wilful publication of it, rendering the person so repeating it liable to an action, and it is no defense that the speaker did not originate the slander, but heard it from another, even though he in good faith believed it to be true. Cox v. Strickland, 101 Ga. 482 (3), 493 (28 S. E. 655); Anderson v. Savannah Press Pub. Co., 100 Ga. 454 (28 S. E. 216); Richardson v. Roberts, 23 Ga. 215 (3, 4), 220; Bennett v. Crumpton, 1 Ga. App. 476, 478 (58 S. E. 104); Newell on Slander & Libel (4th ed.), p. 337; Odgers on Libel & Slander, 173. The charge giving in effect this rule was not an erroneous statement as to the law; nor was it unauthorized, as contended, under the pleadings and the evidence, there being testimony from the defendant himself that his nephew, with whom the misconduct was alleged to have occurred, had told the defendant thereof prior to the alleged slander.
8. In two excerpts, to which separate exceptions are taken, the court charged as follows: “Now the question of whether or not it was intentionally done, or whether with malice or without malice, you may consider the pleading filed by the defendant in this case;” and, immediately following, this language: “If the defendant in his plea charged her with an offense, that the plaintiff made improper advances on him, and charges that the advances were immoral, then the burden would be on the defendant to prove those charges; and if he didn’t do it, you may consider that on the question of whether or not there was malice and a verdict could not be predicated on damages, but only on the question of malice at the time the language was used, if it was used.” The grounds of exception are that these instructions were “not a correct statement of the law,” and were misleading to the jury, unauthorized by the “pleadings and the evidence, and placed the burden of proof on the defendant to sustain his plea, while under the law the burden was on the plaintiff to make out her case,”, and that “the jury would, only be authorized to consider the pleadings of defendant on the question of. mitigating the damages.” While the plea of the defendant denied that he had in terms charged the plaintiff with the offense of fornication, it did set forth that he had seen the plaintiff and the defendant’s nephew “go into the woods together at a place near defendant’s house under suspicious circumstances, and that this meeting was effected bj' motions and signs by said parties so that they met together in said woods,” and that “the circumstances were very suspicious,” that he so informed the plaintiff’s father; and, in concluding, the plea referred to its allegations as “in justification.” The plea set up also that the communications, so far as thus admitted, were privileged because made in the performance of a legal and moral duty to the plaintiff and her father, and made bona fide with good intent, to protect the parties. However, in another paragraph of the plea, the defendant alleged that the plaintiff, “along about said time and before the filing of this suit, made improper advances on this defendant in an immoral way.” There was undisputed testimony from two physicians, offered in behalf of the plaintiff, that she was a virgin. The only
Judgment affirmed.