Rives v. Atlanta Newspapers, Inc.
139 S.E.2d 395
Ga.
1964
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RIVES v. ATLANTA NEWSPAPERS, INC.

22674

Supreme Court of Georgia

NOVEMBER 23, 1964

REHEARING DENIED DECEMBER 15, 1964

220 Ga. 485 | 139 S.E.2d 395

had determined the visitation and custody of the unborn child adversely to him, so that he had no rights as to the child when he filed the instant habeas corрus proceeding. This inference was required since a pleader is presumed to have plead his case in the light most favorablе to himself.

However, the amendment removed this unfavorable inference. It recited the mother‘s pregnancy, her failure to disclosе it to the Mexican court, and the resulting omission in the divorce decree of any provision as to the child. Because of this material addition to the petition, the question of its sufficiency was again for adjudication, and the trial court‘s ruling upon it was correct.

Judgment affirmed. All the Justices concur.

ARGUED OCTOBER 12, 1964—DECIDED NOVEMBER 23, 1964—REHEARING DENIED DECEMBER 15, 1964.

Marson G. Dunaway, Jr., for plaintiff in error.

Forrest C. Oates, Henry A. Stewart, B. P. Gambrell, contra.

Sell & Comer, Foley, Chappell, Young, Hollis & Schloth, for parties at interest not parties to record.

CANDLER, Justice. Sinсe the judgment of the Court of Appeals which we have for review dealt with a ruling on a motion to dismiss in the nature of a general demurrer we must at the outset recognize, apply and follow the applicable rule in such cases, which is construe the petition most strongly against the petitioner, which means, that the absence of an allegation of a material fact means the non-existence оf such fact.

;
. When this rule is applied here to a suit for ‍​‌‌‌​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‌‌​​​​​‌​​​​​​‍damages because of alleged newspaper libel, Code § 22-1102 is not complied with sinсe it is not alleged that the alleged tort originated in Polk County. This absence of essential allegations when coupled with the allegаtion that the principal place of business of the defendant is in Fulton County and that the papers in question were transported to Pоlk County, requires a holding under the rule of strict construction that the alleged tort did not originate in Polk County but in Fulton County. When thus construed in conformity with the established rule for construction on demurrer or a motion to dismiss, the motion which raised the question of want of venue was properly sustainеd.

But this case involves other difficult questions of law, the solution of which is essential to a sound decision. There can be no reasonablе doubt as to what constitutes newspaper libel, nor that it is of statutory rather than common law origin in view of Code § 105-703. Nor is venue fixed by the common lаw but rather by statute. Code § 22-1102. Extreme confusion concerning certain elements of libel has arisen because of this court‘s decision in

, and
. Headnote 3 of the lattеr decision is: “Each publication gives rise to a separate cause of action, though all may be joined in one suit.” There the еxposure to public view was effected by separate means, and it was not newspaper libel which was under consideration. But thе statement that ‍​‌‌‌​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‌‌​​​​​‌​​​​​​‍each publication is a separate cause of action has engulfed the courts in a maze of definitions оf the word “publication.” Overlooking all other relevant considerations it might reasonably be concluded that when viewed by each рerson it thereby becomes a separate cause of action, but in
, this court in passing upon an alleged newspaper libel said: “The editorial [which appeared in a succeeding publication] does not aid the news item, except in so far as it might tend tо show malice and aggravation of the tort; and to that extent it was legitimate to allege the editorial.” The decision went on to hоld in effect that publication on another day would constitute another libel. But in both instances the libel was held to be only one for each issue of the paper irrespective of the number of people who read it. The point we wish to put at rest now and for good, is that one publication is only one libel, regardless of the times it was exposed to the view of different people, but eaсh new printing of the paper and its exposure to public view constitutes a libel actionable at law under Code § 105-703. Our decision in the
case, supra, involvеd a criminal prosecution for libel, and the venue of a criminal case is where the crime is committed. On this basis of law it was held that the еxposure of the libel in a newspaper in a given county fixed the venue of the crime in that county. Here we have a suit for a newspaper libel, which is a tort, and Code § 22-1102 provides that suit therefor may be brought against the corporation-tortfeasor in the county where it has an agent and place of business if the tort originated in that county. Courts must never overlook the fact that the newspaper libel dеfined in Code § 105-703 is the printing therein of libelous matter. But it places as a condition precedent to suing therefor that it be published. Here enters the troublesome question of whether in addition to placing it available for public view there must be proof that it was actually read. We think ‍​‌‌‌​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‌‌​​​​​‌​​​​​​‍that whether or not it is read is immaterial once it is shown that it was exposed to public view.

It is permissible to give judicial consideration tо legislative construction.

. We think a plain case of legislative construction is found in Code Ann. § 105-720 (Ga. L. 1958, p. 54; 1960, pp. 198, 199) where provision is made fоr a retraction of newspaper libel. There the legislature significantly employed the singular in “request,” “retraction,” and “allegedly libelous statement.” By its express terms none of these is required more than once. This could only mean that the legislature construed the libel statute to mean one cause of action, and only one for the combined process of printing and publishing. Thus the number of readers in no wise increases the one libel, nor constitutes multiple causes of action.
, contains a well-reasoned discussion of this question. It is there said: “The moment a man delivers a libel from his hands, his control over it is gone; he has shot his arrow and it does not depend upon him whether it hits the mark ‍​‌‌‌​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‌‌​​​​​‌​​​​​​‍or not. There is an end of the locus penitentiae—his offense is complete—all that depends upon him is consummated; and frоm that moment, upon every principle of common sense he is liable to be called upon to answer for his act.”

When the publisher delivered papers containing libel, if they did, for public exposure, libel was complete. To allow a suit for damages each time a different person sees the newspaper would unreasonably shackle the press and might quickly bankrupt it, thus doing great harm to both the publisher and the readers. Unless the language employed by the legislature demands such an unreasonable construction, courts should not do so and thus attribute to the legislature an unreasonable intention.

The trial court did not err in sustaining the motion to strike the petition, and it was error for the Court of Appeals to reverse that judgment.

Judgment reversed. All the Justices concur, except Almand, Mobley and Quillian, JJ., who dissent.

ALMAND, Justice, dissenting. For the cogent reasons stated by Judge Pannell on this question in his concurring opinion when this case was before the Court of Appeals

, I dissent from the judgment of the majority which has ‍​‌‌‌​‌​​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​​‌‌‌​​‌​​‌‌​​​​​‌​​​​​​‍the effect of affirming the order of the trial court.

I am authorized to say that Justices Mobley and Quillian concur in this dissent.