Summary
holding that plaintiff set forth a viable defamation action based upon defendant’s alleged false statement that plaintiff had committed theft
Summary of this case from Cate v. PattersonOpinion
35925.
DECIDED FEBRUARY 2, 1956.
Damages. Before Judge Kelley. Habersham Superior Court. June 7, 1955.
Irwin R. Kimzey, for plaintiff in error.
Kimzey Crawford, contra.
The plaintiff's evidence was prima facie proof of the case as laid in the petition and the trial judge erred in granting a nonsuit.
DECIDED FEBRUARY 2, 1956.
The petition as originally drawn was in three counts. Counts two and three were stricken on general demurrer and an oral motion to strike. Count one alleged in substance that the defendant was a resident of Habersham County, the Superior Court in which county the suit was instituted; that the defendant damaged the plaintiff in the sum of $25,000; that on November 16, 1953, the plaintiff was a student at Piedmont College in Habersham County, where she was engaged in various campus activities and was an assistant in the college library and laboratory; that on November 2, 1953, the defendant interrogated the plaintiff in the presence of other students in reference to stealing among the student body of the college; that on November 14, 1953, a named student delivered a $2.00 bill to the plaintiff to purchase food at stores in the town of Demorest, which service the plaintiff performed; that on November 16, 1953, the defendant summoned the plaintiff from the laboratory of the college and escorted her at about 2:30 o'clock in the afternoon to the office of Dr. Benjamin Scott, an employee of the college, where after certain recited preliminary statements had been made by the defendant he exhibited to the plaintiff a bill-fold from which he took a $2.00 bill and asked her if she had seen it before; this question the plaintiff answered in the negative; that the defendant then instructed the plaintiff to be very careful of her statements and informed her "we have fingerprint men here"; that the statement was untrue; that the plaintiff informed the defendant that she was willing to have her fingerprints taken; that the plaintiff then informed the defendant and Dr. Scott of having made the purchases with a $2.00 bill for Joel Bearden on the previous Saturday; that the defendant questioned the plaintiff and Joel Bearden.
The petition then set forth as the basis of the plaintiff's cause of action that the defendant slandered the plaintiff by making certain false and defamatory statements of and concerning her. The specific allegations in reference to the alleged slanderous matters were contained in paragraphs 10, 13, 15, and 16 of the petition reading as follows: "10. During said interrogation the defendant stated to plaintiff in the presence of Dr. Benjamin Scott, `I do not care to see a dramatic act from you. If you won't tell us you are stealing perhaps officers can get the truth from you', which accusation was made maliciously and falsely by said defendant and charged and imputed to the plaintiff the crime of theft or larceny. . . 13. Plaintiff shows that on said date above mentioned the defendant publicly told Woody Wilson and George H. Pardue that plaintiff was a liar and a thief, which accusation was falsely and maliciously made by said defendant. . . 15. On November 18, 1953, defendant stated to Ralph Williams, a fellow student, that plaintiff was being expelled from Piedmont College for stealing (meaning plaintiff was a thief) which accusation was falsely and maliciously made by said defendant. 16. On November 18, 1953, the defendant stated to Faye Ayers that plaintiff was being expelled from Piedmont College for stealing, which accusation was falsely and maliciously made by said defendant."
The case proceeded to trial on Count One of the petition. The plaintiff, sworn as a witness in her own behalf, testified to the truth of the material averments except those contained in paragraphs 13, 15 and 16 thereof.
The plaintiff on cross-examination testified: "Yes, I testified that Dr. Walter inferred that I was lying, when in Dr. Scott's office Dr. Walter told me that if I wouldn't admit to him that I was stealing, that he would see if the officials couldn't get the truth out of me. No, he didn't say I was a liar. No, he said if I wouldn't tell that I stole the money, that maybe they could get the truth out of me. No, he didn't say I was a liar. No, he didn't say I was a thief either."
On direct examination concerning the same matter her testimony was: "As to what else was said to me by Dr. Walter during that afternoon, well, when I was called to Dr. Scott's office, Dr. Walter kept insisting that I confess to stealing the $2.00 bill, or that I confess to stealing in the dormitory, and I told him that I couldn't confess to something I hadn't done. He told me to stop lying and I told him that I was not lying, and he said he didn't care to see a dramatic act out of me."
The defendant, made a witness for the purpose of cross-examination as provided in Code Section 38-1801, positively denied that he accused the plaintiff of being a thief, and further related that he did not make any statement whatever concerning her conduct on the occasion she charged in the petition and testified upon the trial he did not accuse her of stealing and with being a thief, that he made no statement whatever concerning the witness's conduct, that Dr. Benjamin Scott, whose function as chaplain of the college was to inquire into and regulate the behavior of members of the student body, conducted the investigation on that occasion; that Dr. Benjamin Scott alone interrogated the plaintiff and the other students in reference to the thefts that were reported to have occurred at the college. He emphasized his denial by the further declaration that he merely acted as a messenger boy when the investigation was in progress and did not open his mouth. He explained that while he discussed with Dr. Scott the advisability of summoning the law enforcement officers, and that one of them did invite the officers to appear, that the discussion of that phase of the matter was solely between him and Dr. Scott. The defendant related certain other matters relative to the plaintiff's adaptability or lack of proficiency as a library and laboratory assistant. He also related some matters pertaining to the policy of the school, and his activities in helping the plaintiff and other students.
At the conclusion of the plaintiff's evidence the defendant made a motion for a nonsuit. This motion was granted and the plaintiff excepted and now excepts to that ruling. The plaintiff also excepts to the trial judge's rulings on demurrers and the admission of evidence.
The plaintiff in error, Zenith Davidson, will be referred to in this opinion as the plaintiff, and the defendant in error, J. E. Walter, as the defendant, the parties having occupied those respective relations in the case in the trial court.
1. The exceptions to the court's ruling as to the sufficiency of pleadings and the admissibility of evidence do not show error. An extended discussion of them is unnecessary since they raise only familiar and well settled rules of pleading and evidence.
2. The question remains as to whether the trial court should have granted a nonsuit. The rule is well established that a nonsuit should not be granted if the plaintiff introduces prima facie proof of the case as laid in the petition, whether it sets forth a cause of action or not. Lowe v. News Publishing Co., 9 Ga. App. 103 ( 70 S.E. 607); Southern Bauxite Mining c. Co. v. Fuller, 116 Ga. 695 (1) ( 43 S.E. 64); Bradford v. City of Commerce, 91 Ga. App. 581 ( 86 S.E.2d 645).
The petition in the instant case, however, did set forth a cause of action. The plaintiff's evidence was prima facie proof of every averment of the petition essential to her right of recovery, though no evidence was submitted by her concerning any of the several alleged defamations of her character by the defendant, except the single charge that he accused her in the presence of Dr. Benjamin Scott with the offense of theft or larceny. To falsely and maliciously accuse a person in the hearing of another with an indictable offense constitutes actionable defamation within the meaning of Code § 105-702. Upon the plaintiff submitting prima facie proof that the accusation was made by the defendant in the presence of Dr. Scott, and that it was false, the law imputed malice to its author. Code § 105-706.
Perhaps it should be here observed that the petition alleged in substance, and the proof supported the allegation that the plaintiff did not commit, nor was concerned in the commission of the larceny, to which the defendant referred when making the defamatory accusation against her.
We have considered the defendant's contentions: (a) that in cross-examination the plaintiff made an admission which was tantamount to a retraction of her evidence given on direct examination; (b) that the language attributed to the defendant by the plaintiff's testimony did not, without the aid of innuendo defame the plaintiff's character, and since it could not reasonably have been so understood by the only person to whom or in whose presence the words were alleged to have been spoken, they were not, according to the plaintiff's own testimony, actionable.
The admission referred to was: "Yes, I testified that Dr. Walter inferred that I was lying when in Dr. Scott's office. Dr. Walter told me that if I wouldn't admit to him that I was stealing, that he would see if the officials couldn't get the truth out of me. No, he didn't say I was a liar. No, he said if I wouldn't tell that I stole the money, that maybe they could get the truth out of me. No, he didn't say I was a liar. No, he didn't say I was a thief either."
On direct examination the plaintiff's testimony in reference to the same matter was: "On the 16th, Dr. Walter told me that if I would not admit I was stealing, that maybe the officers could get the truth from me. He said `You are lying to me.' He said that when I told him I was not stealing. This conversation that took place in Dr. Scott's presence, I suppose it was the house mother's office, but it's referred to as Dr. Scott's office. Dr. Scott was present. Joel Bearden was present. Dr. Walter was present. And I was present. I met with Sheriff Pardue and Mr. Woody Wilson subsequent to that."
The petition did not allege that the defendant employed either the word "liar or thief" in accusing the plaintiff of theft and delinquency of lying.
Paragraph ten of the petition quoted in the statement of facts contained the exact words of which plaintiff's testimony was prima facie proof and it must be observed that her testimony did not materially vary on direct and cross-examination. So the first point does not alter our opinion that the plaintiff proved her case as alleged in the petition.
The familiar rule that one, who by his own testimony given on direct examination proves his case, but makes contradictory statements on cross-examination, cannot recover, has no application to the facts of this case. Nor does the second point have merit for the reason: First, the words spoken without the aid of innuendo were actionable in that their plain import was understandable by a reasonably intelligent person familiar with the English language. Moreover, it could be said that there was necessity for interpretation of those words in the light of the circumstances in which, according to the plaintiff's testimony they were spoken. Certainly Dr. Scott, a college professor, who the defendant himself testified was conducting an investigation of the alleged theft, was familiar with the facts pertaining to it, and knew that the plaintiff at the very moment the defamatory words were uttered, if her account of the events transpiring on the occasion in question is to be believed, was being interrogated as to whether she had committed the theft.
Distinguished counsel for the defendant earnestly insist that the trial judge was right in granting a nonsuit for the reason that, even if the plaintiff's evidence was sufficient to prima facie prove that the defendant did speak of and concerning her, in the presence of a third person, words that would ordinarily constitute actionable defamation, her evidence revealed that no liability attached for the reason that the communication referred to was privileged. In this connection the defendant contends that the facts disclosed by the plaintiff's testimony furnishing to him immunity from liability for the words attributed to him were that: Previously to the occasion on which the petition alleged and the plaintiff by her testimony undertook to prove the words were spoken, there had been reported a theft of a two-dollar bill committed on the premises of the college, of which the defendant was president, that it was the duty of the defendant as head of the institution to keep informed of the conduct of its students and to regulate their behavior; that it was to the interest of the college and its students that the identity of the thief be ascertained; that the words the plaintiff attributed to the defendant were, if uttered at all, spoken in the course of an investigation of the matter conducted by the school's chaplain, Dr. Benjamin Scott, and attended by the defendant; that whatever he said on the occasion of the investigation was incident to and in the proper discharge of his duty as president of the college.
It is apparent that the privilege relied upon by the defendant, and which he insists was shown to exist by the plaintiff's own testimony was not a privilege absolute in its nature, but the words thus spoken would, under some circumstances, be a privileged communication. In Atlanta News Publishing Co. v. Medlock, 123 Ga. 714 (3, 4) ( 51 S.E. 756) it is held: "The characteristic feature of absolute, as distinguished from conditional privilege, is that in the former the question of malice is not open; all inquiry into good faith is closed.
"In every case of conditional privilege, if the privilege is used merely as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed has a right of action."
The Supreme Court speaking through the scholarly and lamented Associate Justice Hines in a very strong opinion in McIntosh v. Williams, 160 Ga. 461, 464 ( 128 S.E. 672) said: "Comments upon the acts of a public officer are privileged. Civil Code (1910), § 4436. But such privilege is not absolute. It is conditional. If used as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed has a cause of action."
The discussion in the McIntosh case was confined to the limitations of protection afforded in cases of communications conditionally privileged.
The plaintiff testified in her own behalf to the events leading to and the circumstances under which the defendant, according to her version of the incident, charged her with the indictable offense of theft or larceny. If her account of those events and circumstances were true, they were of such nature as to authorize the inference that the words spoken by the defendant concerning her conduct were not uttered in good faith, but maliciously to vent his private spleen against her. Some of these events were that the defendant had previously interrogated the plaintiff as to her possession of similar property to that which had been stolen, namely a two-dollar bill, and the plaintiff on that occasion assured the defendant that the bill which had been in her possession was not stolen by her, and gave him a thorough and reasonable explanation of how she obtained possession of it; that she produced the person from whom she obtained the bill, who corroborated her explanation.
That the defendant, called as a witness by the plaintiff, denied that he had spoken derogatory words of or in reference to the plaintiff on the occasion under investigation, or that he had criticised her conduct in any manner, cannot be considered in deciding the question as to whether a nonsuit should be granted, for the reasons that the plaintiff was not bound by his testimony, and even if she had, instead of calling him on cross-examination, placed him on the witness stand as her witness, his testimony would have done no more than contradict her. Her testimony would still, if believed by the jury, have furnished prima facie proof of her case as laid in the petition. That the testimony of witnesses of a party to a case conflicts, does not as a matter of law, defeat such party's right of recovery or the validity of his defense.
We are of the opinion that the trial court erred in granting a nonsuit.
Judgment reversed. Felton, C. J., and Nichols, J., concur.