Opinion
36524, 36525.
DECIDED FEBRUARY 12, 1957.
Tort; slander. Before Judge Guess. DeKalb Superior Court. October 18, 1956.
Charles W. Anderson, Oze R. Horton, for plaintiff in error.
Walter P. McCurdy, Hubert C. Morgan, contra.
1. "`Where, in ruling upon demurrers, the trial court allows time for the filing of an amendment, such court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the earlier judgment on the demurrers, and such earlier judgment or judgments shall not be subject to exception or review.' Weinstein v. Rothberg, 87 Ga. App. 94 (1) ( 73 S.E.2d 106); Sellars v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99); Aiken v. State Farm Mutual c. Ins. Co., 88 Ga. App. 131 ( 76 S.E.2d 141)." Godwin v. Hudson, 93 Ga. App. 858 ( 93 S.E.2d 379).
2. Properly construed, the two petitions as finally amended stated a cause of action for slander, and the trial court erred in sustaining the general demurrers thereto and in dismissing the actions.
DECIDED FEBRUARY 12, 1957.
E. P. Blackstock filed two actions for slander against Ralph L. Fisher. Except for the dates on which, and the places at which, the two torts are alleged to have been committed, the two petitions, as finally amended on August 2, 1956, are almost identical, involve identical points of law, and will be consolidated here for decision. The material allegations of the two petitions (numbered 20,060 and 20,061 in the trial court) are substantially as follows. The defendant has hurt, injured and damaged the plaintiff in the sum of $5,000 as the proximate result of the acts hereinafter related.
In the case numbered 20,060, it is alleged that on November 7, 1955, at Adams Cafe, located in the City of Atlanta, where many persons come and go, and while the plaintiff was on his own business, the plaintiff was encountered, embarrassed, harassed, harshly spoken to, demeaned and insulted by the defendant, and the defendant threatened to throw the plaintiff out of the place of business. While the plaintiff was seated as a customer to be served and was being served, the defendant came out of the kitchen and said to the plaintiff: "You owe me for newspapers and you have snaked on me," meaning that the plaintiff owed Atlanta Newspapers, Inc., for newspapers and that he was guilty of a crime, to wit, that the plaintiff owed for newspapers which he had stolen. The defendant also told the plaintiff, "I will stomp you and throw you out of here." At that time and place, the plaintiff and the defendant were known respectively as a street-sales vendor and the street-sales manager of the Atlanta Journal and the Atlanta Constitution, and this was known by the employees, manager, and owner of the cafe, and by many other persons who were in the cafe. The defendant intended by implication to accuse and to charge the plaintiff with being a thief and the defendant intended others to so understand him and he knew they would understand him to be accusing the plaintiff of being a thief and the persons present did so understand the defendant. The defendant intended to be understood to make the accusation with reference to the defendant's business and employment as a street-sales vendor of the newspapers. The language could not have had any other intent and could not be otherwise understood. The accusation was wholly false and untrue. The defendant's conduct, accusation and language was intended to and did hurt, injure, embarrass the plaintiff and held him up to ridicule and scorn and slandered the plaintiff in his business as a street-sales vendor of newspapers.
In the case numbered 20,061, it is alleged that on November 5, 1955, while the plaintiff was on business of his own at the office of Atlanta Newspapers, Inc., where many people come and go, he was encountered, embarrassed, harassed, harshly spoken to, demeaned and insulted by the defendant who threatened to throw him out of the office. At that time and place, the plaintiff was present to pay his subscription for newspapers mailed to him at his home by Atlanta Newspapers, Inc. At that time and for many years prior thereto the plaintiff was engaged as a street-sales vendor, in selling the Atlanta Constitution and Atlanta Journal, the defendant was engaged as street-sales manager of the street-sales vendors, including the plaintiff. At that time and place, the plaintiff was not under the direction or control of the defendant, and the defendant was not in the conduct of the publisher's business relative to its street sales. The defendant approached the plaintiff and said to him: "What are you doing here? You owe me for some papers that you got and snaked on me about them." In so speaking to the plaintiff, the defendant imputed that the plaintiff had purloined or stolen newspapers which he had obtained from the defendant, owed for them, did not intend to pay for them, and was guilty of the crime of cheating and swindling. That this was the meaning of the word "snake" and was so understood by those present at that time and place and the defendant intended that it should be so understood. The defendant then and there made menacing gestures and approached closer to the plaintiff, indicating his intention to grapple with, touch and hurt the plaintiff physically. The defendant's accusation was wholly false and untrue, and hurt, injured, embarrassed, humiliated and held the plaintiff up to ridicule and scorn and accused him of a crime. The defendant's accusation, conduct, language and its imputation that the plaintiff was guilty of a crime concerning the newspapers was intended to and did hurt the plaintiff's reputation in connection with his business as a street-sales vendor.
On August 13, 1956, the defendant renewed general and special demurrers which he had previously interposed to the petitions, and on September 25, 1956, the trial court sustained the general demurrers to the petition and allowed the plaintiff 20 days within which to amend. On October 18, 1956, the trial court entered an order dismissing the plaintiff's petitions, as the petitions had not been amended within the time allowed, and the plaintiff assigns error on both these judgments in both cases.
1. Under an application of the principle of law stated in headnote 1, the assignment of error upon the judgment of September 25, 1956, in which time was allowed for amendment, is not subject to exception or review.
2. "Slander, or oral defamation, consists, first, in imputing to another a crime punishable by law; or, second, charging him with having some contagious disorder, or being guilty of some debasing act which may exclude him from society; or, third, in charges made against another in reference to his trade, office, or profession, calculated to injure him therein; or, fourth, any disparaging words productive of special damage flowing naturally therefrom. In the last case, the special damage is essential to support the action; in the first three, damage is inferred." Code § 105-702.
This section did not arise from a legislative act, but is a codification of the common law. Spence v. Johnson, 142 Ga. 267, 271 ( 82 S.E. 646, Ann. Cas. 1916A 1195). Prior to this codification of the law of slander, our Supreme Court had ruled: "It is impossible for a man to slander in one sense, and defend in another. To cover vituperation under irony, untechnical hints, covert insinuations, or any form of words, which skillfully avoiding a legal definition of crime, yet communicates the poison of slander." Giddens v. Mirk, 4 Ga. 364, 373. In Little v. Barlow, 26 Ga. 423, 424 (71 Am. D. 219), we find the Supreme Court saying: "The old rule, that words spoken in disparagement of the character of a person, which are susceptible of two constructions, are to be understood in their milder sense is exploded. They are now to be interpreted in the sense that a person of ordinary capacity who heard them spoken would understand them."
With reference to slang and provincial terms, the following rule is announced in 53 C. J. S. 50, § 10: "An actionable imputation may be made by the use of cant or slang words or provincialisms which, according to their ordinary meaning are not defamatory." And this rule was applied in Georgia as early as 1833 in the case of Cooper v. Perry, 1 Dudley 247, even prior to the establishment of our Supreme Court.
"It is, of course, the rule that if the words are clearly not defamatory, they cannot have their meaning enlarged by innuendo. Jones v. Poole, 62 Ga. App. 309 ( 8 S.E.2d 532); Central of Georgia Ry. Co. v. Sheftall, 118 Ga. 865 ( 45 S.E. 687); Aiken v. Constitution Publishing Co., 72 Ga. App. 250 ( 33 S.E.2d 555). And a petition in an action on such words would be subject to a general demurrer. Watters Son v. Retail Clerks Union, 120 Ga. 424 ( 47 S.E. 911). Where, however, the words are ambiguous and capable of being understood in a double sense, the one criminal and the other innocent, the plaintiff may by proper allegation aver the meaning with which he claims that they were published and the jury may find whether they were published with that meaning or not. Rubenstein v. Lee, 56 Ga. App. 49 ( 192 S.E. 85); Park Iverson v. Piedmont Arlington Life Insurance Co., 51 Ga. 510; Colvard v. Black, 110 Ga. 642 ( 36 S.E. 80); Beazley v. Reid, 68 Ga. 380; Michael v. Bacon, 5 Ga. App. 332 ( 63 S.E. 228); Holmes v. Clisby, 121 Ga. 241 ( 48 S.E. 934, 104 Am. St. R. 103.)" Southeastern Newspapers v. Walker, 76 Ga. App. 57, 60 ( 44 S.E.2d 697).
In one of his two petitions, the plaintiff charges that the defendant slandered him by the following utterance: "You owe me money for newspapers and you have snaked on me." By way of innuendo, it is further alleged in substance that the defendant intended, by implication, to accuse and to charge the plaintiff with being a thief, intending others to so understand him and that those present at the time did so understand him; and, that this accusation was wholly false and untrue.
In the other petition, the plaintiff alleges in substance that the defendant slandered him by the following utterance: "You owe me money for some papers that you got and snaked on me about them." By way of innuendo, it is further alleged in substance that the defendant intended, by implication, to charge that the plaintiff had purloined or stolen the newspapers which he had obtained from the defendant, owed for them, did not intend to pay for them, and was guilty of the crime of cheating and swindling; and, that the meaning of the word "snaked" was so understood by those present at the time and place that the defendant made the accusation; and that the accusation was wholly false and untrue. In both of the petitions, it is alleged that these accusations were calculated to injure the plaintiff as a street-sales vendor of newspapers.
Counsel for the defendant in his briefs in this court contends that the verb "to snake" is clear and unambiguous, does not impute a crime and cannot be enlarged upon by innuendo, as Webster's Dictionary defines this verb thus: "To wind one's way in the manner of a snake; to move sinuously; to drag or draw forcibly or at length as a log; also, to skid (logs); to crawl or move like a snake sinuously." Counsel for the defendant does not indicate in which edition of Webster's Dictionary this limited definition of the verb appears, but in Webster's New International Dictionary of the English language (2d edition, unabridged, 1955), p. 2378, our research reveals that this verb is also defined thus: "To take slyly; to steal, filch," when used in dialect.
Under the foregoing authorities and the allegations of the petitions, we can but conclude that the accusations made by the defendant against the plaintiff in the presence of third persons were ambiguous, and that it was a question of fact for the determination of a jury whether or not the auditors of the utterances understood the defendant to charge the plaintiff with crimes. The trial court, consequently, erred in sustaining the general demurrers to the petitions and in dismissing the actions.
Judgments reversed. Gardner, P. J., and Townsend, J., concur.