44 S.E.2d 697 | Ga. Ct. App. | 1947
Lead Opinion
1. Where in an action for libel the publication sued on is ambiguous and capable of being understood in a double sense, the one criminal and the other innocent, it is a question for the jury to determine whether or not the publication is susceptible to the criminal or the innocent interpretation under all the facts and attendant circumstances of the publication.
2. The intention of the defendant in publishing the alleged libel is immaterial unless the publication be privileged or unless the words, which are otherwise entirely innocent and unambiguous, are alleged to contain a covert meaning.
3. The communication from the person who was allegedly libeled calling attention to the inaccuracies of the publication was a sufficient compliance with the act of 1939 (Ga. L. 1939, p. 343, Code, Ann. Supp., § 105-712); and it does not appear from the petition that the retraction as contemplated by said act was made, and in the manner required, and therefore the allegation of special damages is not required.
2. Counsel for the defendant insist that the plaintiff must have alleged that the defendant intended the publication to be understood in the guilty sense attributed to it by the plaintiff. We do not apprehend this to be the law. "The sense in which the publisher meant the language cannot be material. The dicta which apparently sanction such a rule will, on comparison with their context, be found in reality to be, not what did the defendant mean but what properly he may be taken to have meant. How might the language be understood by those to whom it was published? It cannot, therefore, be correct to say that the language is to be construed in the sense in which the publisher intended it to be understood. `When a party has made a charge that clearly imputes a crime, he cannot afterwards be permitted to say, I did not intend what my words legally imply.'" Townshend on Slander and Libel (2d ed.), p. 176, § 139. "In an action for defamation it is immaterial what meaning the speaker intended to convey. He may have spoken without any intention of injuring another's reputation, but if he has done so he must *62
compensate the party. He may have meant one thing and said another; if so he is answerable for so inadequately expressing his meaning. If a man in jest conveys a serious imputation he jests at his peril. Or he may have used ambiguous language which to his mind was harmless, but to which the bystanders attributed a most injurious meaning; if so he is liable for the injudicious phrase he selected. What was passing in his own mind is immaterial save in so far as his hearers could perceive at the time. Words cannot be construed according to the secret intent of the speaker. `The slander and the damage consist in the apprehension of the hearers.'" Newell, Slander and Libel (4th ed.), p. 301, § 264. "Intent, except as a part of express malice, is immaterial in libel. When the press issues a story, it accepts full responsibility for any error or mistake which results in injury to reputation. According to the opinion stated in Hatfieldv. Gazette Printing Co. [
In Behre v. National Cash Register Co.,
Where words are clear and unambiguous, they will be construed in their ordinary and natural sense, and the court will hold as a matter of law that they are not libelous. However, it would seem that the courts have extended the rule, with regard to the necessity of alleging the intention of the author of the allegedly libelous matter, to include those situations where though the words are clear and unambiguous they are used with a covert meaning and the author intended them in such covert sense, for as said in Giddens v. Mirk,
Anything said in Park v. Piedmont c. Insurance Co.,
In Rubenstein v. Lee,
For an excellent study on the question of intention in actions for defamation of character see 60 Penn. L. Rev. pp. 365-387, 461-481.
3. The Code (Ann. Supp.), § 105-712, provides: "Before any civil action shall be brought because of any publication of a libel in any newspaper, magazine or periodical, the plaintiff shall, within the period of the statute of limitations for such actions and at least five days before instituting such action, give notice in writing to the defendant specifying the article and the statements therein which he claims to be false and defamatory and further stating in said notice what the complaining party claims to be the true state of facts." Six days after the publication of the alleged libel the plaintiff wrote the Augusta Chronicle: "On Sunday, January 12, 1947, you published on the front page of your mail edition the announcement of my engagement to Mr. B. C. Walker. As part of the announcement you published a picture purportedly mine with a baby sitting on the lap of the person that was purportedly my picture and in the picture there is also some man. The picture is not of me and the persons in the picture are unknown to me. You can immediately understand the impression created by a picture of this type. The wording in the picture designates me as Miss Kathryn Ann Beckworth, which is correct, but the picture as to me or my fiance is entirely false." The petition alleged that on Wednesday, January 15, 1947, the newspaper published a correct picture of the plaintiff together with her announcement on the inside pages of the paper without reference to or retraction of the earlier libelous publication. Code (Ann. Supp.) § 105-713 provides: "If it appears upon the trial of any case in which such notice has been given that the article published was true or that the same was privileged, the same shall be governed by all the laws *65 of Georgia now in force in reference to such actions, and the truth shall be a complete defense and the privileged communication, if there be no malice, as is now provided, shall be a complete defense, but in all other cases if it appears upon the trial that said article was published in good faith, that its publication was due to an honest mistake of the facts; that there were reasonable grounds for believing that the statements in said article were true, and that within 10 days after the service of said notice a full and fair correction or retraction was published in the same editions or corresponding issues of the newspaper, magazine or periodical in which said article appeared and in as conspicuous a place and type as was said original article, then the plaintiff in such case shall recover only such special or actual damages as the plaintiff shows he has sustained." The plaintiff clearly complied with the requirement of notice to the newspaper, while the newspaper did not retract as contemplated by the statute, and therefore the allegation of special damage is not required.
For the foregoing reasons the court did not err in overruling the general demurrer.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the whole court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., Gardner and Townsend, JJ.,concur. MacIntyre, P. J. and Parker, J., dissent.
Dissenting Opinion
This case is here on the overruling of a general demurrer filed by the defendant to the petition of the plaintiff. In considering a general demurrer the pleadings are always construed most strongly against the pleader (the plaintiff in the instant case), and if an inference unfavorable to her right to maintain the action may fairly be drawn from the facts stated in her petition, such inference will prevail in determining the rights of the parties. "It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties." Krueger v. *66 MacDougald,
Publication is not reasonably susceptible to two wholly different constructions, one innocent and the other criminal, as I see it, and as I believe the general reading public would ordinarily understand and construe it. The printed words contain merely a marriage announcement in the usual form; and the picture of a young woman with a small child sitting in her lap and a man in the foreground, has no evil implications or imputations whatever. A picture of a child sitting in a woman's lap should not be construed so as to make the child illegitimate and the woman immoral, when any number of innocent and intimate relationships other than that of mother and child could exist between them and may be fairly inferred from the picture. An evil insinuation and construction is derived from no fact at all except that a young child is in a young woman's lap, and such construction is far-fetched, strained, illogical and unreasonable, and especially so when the picture is accompanied by a wedding announcement. Who has ever even heard of a bride-to-be publishing her engagement along with a picture of herself and her child born out of wedlock? What bride-elect ever published her wedding announcement with a group picture of any kind? To ask these questions is to answer them.
It seems to me that the only natural reaction and inference in the normal mind reading the publication would be that it was evidently an error, that the picture and the reading matter did not go together, and that a mistake had been made. Readers who did not know the plaintiff would think there had been a mistake, and her friends and acquaintances would know it was a mistake. There is nothing in the publication, in the picture or in the words fairly and reasonably considered, alone or together, to justify or authorize any construction importing criminality or immorality, and it falls short of a libel for which an action will lie. *67
If the publication be construed as containing a covert meaning which may constitute a libel, it is necessary to resort to innuendo to aid in such construction and to sustain the action, but the meaning of the publication cannot be enlarged and extended by an innuendo. And in that case the pleader must allege an intention on the part of the publisher that the publication be understood in its covert sense, and must also allege special damages as no general damages are inferred. Anderson v.Kennedy,
I am authorized by Judge MacIntyre to state that he concurs in this dissent.