131 Ga. 421 | Ga. | 1908
Slander consists, (1) in imputing to another a crime punishable by law, (3). charging one with having some contagious disorder, or being guilty of some debasing act which may exclude him from society, (3) in charges made on another in reference to his trade, office, or profession, calculated to injure him therein, or (4) any disparaging words productive of special damage flowing naturally therefrom. In the latter ease, the special damage is essential to support the action; in the three former, damage is inferred. Civil Code, §3837. There is no such crime as the larceny of land, and
The plaintiff sought to avoid a dismissal of his p'etition, by striking out the words which referred to the subject-matter of the larceny, viz., the land of Mrs. Kierce, — leaving-words imputing a crime and actionable per se. The court allowed the amendment, against the defendant’s objection that the effect of striking the words was to allege a new and distinct cause of action. The mere fact that a petition is open to general demurrer does not necessarily preclude its amendment. The allegations of such petition may be amplified or added to if it contains a well-defined basis of a cause of action. For instance, this petition may have been amended by an allegation of special damage. Tut a petition which alleges that certain disparaging words were used, and no special damage is claimed, can not be vitalized by lopping off some of the words so that what is left imputes a crime. The basis of the plaintiff’s case was disparaging words; he could build thereon by alleging matter which would make such words actionable. To completely alter their -import by sheer curtailment changes the basis of the plaintiff’s cause of action as alleged, and introduces an entirely distinct cause of action. The difference between the petition before and after its amendment was as radical as if entirely different words were substituted. Where a petition for slander states a cause of action, the words as alleged may be varied by amendment, so long as their substance is not changed. So far as relates to other words of the same character, or imputing the same crime as that already charged in the petition, the plaintiff may amend. The cause of action is the same; the. effect of the words is the same, and the amendment only serves to relieve the plaintiff of the consequences of a variance. Thus it has been held that a petition alleging words directly charging a particular forgery may be amended by the substitution of other words charging the same forgery. Hawks v. Patton, 18 Ga. 52 (63 Am. D. 266); see also Graven v. Walker, 101 Ga. 845 (29 S. E. 152). In these cases there was no departure from the original charge; the amendment still clung to the original basis of the action. In the pres
It may be added, although it is stated in the petition that the spoken words were intended to injure the plaintiff in the practice of his profession, that the alleged charge of stealing land had no reference to, nor did they concern, the plaintiff’s profession as a practicing physician, and therefore were not actionable without alleging special damage. The court erred in allowing the amendment and refusing to dismiss the petition.
Judgment reversed.
The fact that a petition may be subject to a general demurrer as it stands does not necessarily prevent its being amendable. Ellison v. Georgia R. Co., 87 Ga. 691 (13 S. E. 809). In a suit for slander, where the petition merely alleged that the defendant had spoken certain words of the plaintiff, but did not allege that they were spoken in the presence of any person, it was certainly subject to general demurrer, and'it failed, as it stood, to set out a cause of action; but it was held to be amendable by alleging 'that they were spoken in the presence of a named person. Wolfe v. Israel, 103 Ga. 773 (39 S. E. 935). It would be incompetent to add by amendment a distinct and separate cause of action, or to add words spoken at a different time, or a distinct and different publication of a libel. Colvard v. Black, 110 Ga. 642 (36 S. E. 80); Central Ry. Co. v. Sheftall, 118 Ga. 865 (45 S. E. 687). But in the case at bar, the amendment did not refer to a different occasion or conversation from that referred to in the petition, but merely varied the allegation as to the words used in the same conversation and of the same general character. It was alleged in the petition, that on a given occasion, in the presence of others, and in a conversation with a named person, the defendant said: “Haven’t you heard about Dr. Bush [the petitioner] going out here and stealing the widow Kierce’s land?” and also stated that he could prove it, “meaning thereby, he would prove that petitioner had stolen the lands of Mrs. Kieree, and had committed the offense of larceny.” The amendment merely struck the words, “the lands of Mrs. Kierce,” and added after the expression, “in conversation with,” the words, “and in the presence of.” Thus
I am authorized to say that Chief Justice Pish concurs in the views here expressed.