Opinion
43188.
ARGUED NOVEMBER 6, 1967.
DECIDED NOVEMBER 8, 1967.
Libel. Tift Superior Court. Before Judge Gray.
J. E. B. Stewart, for appellant.
Reinhardt, Ireland, Whitley Sims, John S. Sims, Jr., Hansell, Post, Brandon Dorsey, Allen Post, Albert G. Norman, Jr., Maxwell A. Hines, for appellees.
1. The motions to dismiss are denied.
2. Though conspiracy is not itself a tort, an amendment seeking to add a charge of conspiracy to a petition charging one defendant with slander and another with libel would add a new cause of action as to each defendant; consequently it was proper to disallow it.
3. (a) A petition seeking to recover for an alleged slander, consisting only of allegations that a statement made by the defendant tended to link plaintiff with the Ku Klux Klan, with no allegation that the Klan itself was illegal or engaged in any illegal or immoral activity, or that it stands in such disrepute as that a charge of connection with it is damaging to one's standing or reputation, and no allegation that the charge was productive of any special damage, no special damage being pleaded or sought, fails to set out a cause of action and is subject to general demurrer.
(b) A petition seeking to recover for an alleged libel resting on innuendo, but failing to allege that a covert meaning was intended to be attributed to the article by its author or publisher, what the covert meaning may have been, and that the readers of it understood it to have a covert meaning, fails to set out a cause of action and is subject to general demurrer.
(c) Where a petition sets out no cause of action against the defendant who is a resident of the county where the suit was brought, the court has no jurisdiction of the nonresident defendant and the petition is subject to a general demurrer on that ground.
ARGUED NOVEMBER 6, 1967 — DECIDED NOVEMBER 8, 1967.
R. A. Griffin brought suit in Tift Superior Court seeking to recover damages from Frank Branch, a resident of that county, and from Atlanta Newspapers, Inc., a corporation of Fulton County. Plaintiff alleged that he was a resident of Decatur County where he had lived all his life and where, for the past eight years, he had been engaged in the insurance and real estate business; that he was not engaged in politics, was not the holder of any political office and was not seeking any office, elective or appointive.
He alleged that on October 20, 1966 (during the then current gubernatorial campaign) Atlanta Newspapers, Inc. published in the Atlanta Journal under the headline "DEMO FOR CALLAWAY LASHES MADDOX," and in a later edition under the headline "BRANCH SEES KLAN RULE WITH MADDOX," an item alleged to have been a statement made by Representative Branch, as follows: "The State Capital of Georgia will be the first Ku Klux Klavern with a gold-plated dome. The State Purchasing Department will be buying bed sheets, ax handles and pistols in carload lots. Do you want Marvin's brother, Cheney Griffin, as state purchasing agent? Do you want Ku Kluxer Calvin Craig as head of your State Highway Patrol?"
This statement is alleged to have been defamatory, and it is alleged that by reason thereof the defendants have "defamed petitioner in that said Frank Branch said and said Altanta Newspapers, Inc. printed the defamatory statement of said Frank Branch . . . and that said statement falsely, wickedly and maliciously linked or tended to link petitioner with the Ku Klux Klan." (Emphasis supplied). He alleges that "all of said acts of the defendants . . . constitute a libel against petitioner . . . with the intention of doing grave injury to [him], if not in fact attempting to totally destroy his reputation, and constitute libel per se"; that these acts "have caused petitioner to be exposed to public hatred, contempt or ridicule," and he asks damages in the sum of $3,000,000.
Demurrers, both general and special, were filed by each defendant, as well as a plea to the jurisdiction by the Atlanta Newspapers. Plaintiff then sought to amend the petition by adding a single paragraph alleging that "Branch and an agent and servant of the Atlanta Newspapers, Inc., said agent and servant being one Charles Pou, unlawfully conspired together to blacken and destroy the name and reputation of plaintiff because plaintiff was a supporter of Lester Maddox for Governor of Georgia and said defendants were supporters of Howard Callaway for Governor of Georgia. That said Pou was at all times herein mentioned acting within the scope of his employment and was acting under orders of his superiors whose names are unknown to plaintiff but well known to [defendants]."
Objections to allowance of the amendment were filed on the ground that it sought to set out, as to each of the defendants, a new and distinct cause of action.
After a hearing, orders were signed August 14, 1967, by which the amendment was disallowed, the plea to the jurisdiction of Atlanta Newspapers, Inc. was sustained and the general demurrers of each defendant were sustained, and plaintiff appeals.
This action was filed and the judgments were entered prior to the effective date of the Civil Practice Act; consequently its provisions have no application. Abercrombie v. Ledbetter-Johnson Co., 116 Ga. App. 376, 378 ( 157 S.E.2d 493).
1. Headnote 1 needs no elaboration.
2. Was the proffered amendment properly disallowed? This is to be answered by a determination of whether, as to each of the defendants, the amendment sets up a new cause of action, and this requires a consideration of the allegations of the petition as originally filed. Warner Bros. Pictures, Inc. v. Stanley, 56 Ga. App. 85, 110 (4) ( 192 S.E. 300). The charge against defendant Branch is that he said or made a statement of a matter alleged to be derogatory to the plaintiff. This is a charge of an oral assertion, or of slander. Code § 105-702. The charge against Atlanta Newspapers is that it printed and published the substance of the Branch statement. This is a charge of libel. Code §§ 105-701, 105-703. Libel and slander are similar and related but do not give rise to the same cause of action. "It has been doubted whether such a distinction should have been drawn originally, but it has become firmly fixed. Of course, if words are slanderous, they would not become less defamatory by publishing them in writing, though words which might not be actionable per se as slander may be libelous per se when put in writing or print. In some of the discussions this distinction has been overlooked, and the question of whether language was libelous has been treated as though libel and slander were identical." Spence v. Johnson, 142 Ga. 267, 270 ( 82 S.E. 646, AC 1916A 1195). Thus, the petition sought to set out a cause of action against Branch for slander, and against Atlanta Newspapers for libel. No joint participation was alleged.
The amendment seeking to charge the defendants with a conspiracy in the matter thus sought to add against Branch the charge of libel and against Atlanta Newspapers the charge of slander. In each instance and as to each defendant the amendment sought to set out a new cause of action, which could not be done. Code § 81-1303; Colvard v. Black, 110 Ga. 642, 647 (3) ( 36 S.E. 80); Central of Ga. R. Co. v. Sheftall, 118 Ga. 865 (4) ( 45 S.E. 687); The amendment would, in effect, add new charges of publication of the alleged defamatory statement as to each of the defendants, and thus set up a new cause of action as to each. Howe v. Bradstreet Co., 135 Ga. 564 ( 69 S.E. 1082, AC 1912A 214); Central of Ga. R. Co. v. Sheftall, supra. Disallowance of the amendment was proper.
3. Does the petition set out causes of action against the defendants which were good as against general demurrer? For reasons appearing in the following discussion of this question we conclude that it does not, and we may observe that even if the amendment had been allowed our conclusion would be the same.
The petition must be construed against the plaintiff, considering its omissions as well as it allegations, and the absence of an allegation of material facts must be taken to mean that the facts do not exist. Rives v. Atlanta Newspapers, Inc., 220 Ga. 485, 486 ( 139 S.E.2d 395). If an inference unfavorable to the plaintiff can be fairly drawn, it must prevail. Krueger v. MacDougald, 148 Ga. 429 (1) ( 96 S.E. 867). The court cannot supply allegations of essential or material facts to a deficient petition and make it set out a cause of action. Ford Motor Co. v. Williams, 219 Ga. 505 ( 134 S.E.2d 32).
It is not alleged in this petition (or in the proffered amendment) that the plaintiff, R. A. Griffin, and "Marvin's brother, Cheney Griffin," are the same person. Consequently, we must assume that they are not, and in that posture there is a total failure to connect the alleged statement and article with the plaintiff, even if they be defamatory. But if plaintiff and "Marvin's brother, Cheney Griffin," are one and the same, the petition is fatally deficient in other essentials.
(a) Taking up first the charge of slander by defendant Branch, we find it lacking. Under Code § 105-702, for the alleged slander to be actionable, it must appear that the person alleged to have been slandered has been charged with a crime punishable by law — which is obviously absent; or that he suffers from some contagious disorder or has been guilty of a debasing act which may exclude him from society — and this is likewise obviously absent; or that a false charge has been made with reference to his trade or profession, calculated to injure him. Plaintiff alleges that he is in the insurance and real estate business, and nothing in the charge can have any reference to either of those matters. Or, fourthly, it must appear that disparaging words were spoken productive of special damage flowing naturally therefrom, in which event the special damage is essential to support the action.
If there is a charge of slander it falls under the fourth category. Plaintiff contends that by innuendo Branch linked, or tended to link, plaintiff with the Ku Klux Klan. It is not alleged that the Klan is illegal, or that membership in it or connection with it is in any manner contrary to law, immoral or dishonest. It is not alleged that the Klan is or was engaged in any illegal or immoral activity, or that it stands or stood in disrepute so that being linked with it would adversely affect plaintiff's standing or reputation or in any wise damage him, or that it was productive of any special damage, and no special damage is pleaded. The allegations being in the alternative, the charge is only that the statement tended to link plaintiff with the Klan. Doyal v. Russell, 183 Ga. 518 ( 189 S.E. 32).
Under the cited cases we must conclude that the suggestion of possible membership in or connection with the Klan, if the petition suggests that, is in no wise damaging to the plaintiff, and that even if it were, no special damage has resulted to him. Failure to allege these matters rendered the petition subject to the general demurrer of defendant Branch. Ford v. Lamb, 116 Ga. 655 ( 42 S.E. 998).
(b) For similar reasons the petition falls short of alleging libel against Atlanta Newspapers. There is no allegation that those who may have read the article even understood it to amount to a charge that plaintiff was a member of or connected with the Klan. Certainly there is no statement in the article that plaintiff was or is a member of or was or is in any way connected with the Klan. If that meaning is to be ascribed to it, it is only by way of innuendo; and when charging libel by innuendo or because of a covert meaning it is essential that the pleader allege what the covert meaning is and that the author of the libel intended the statements in the article to be so understood, and that they were in fact so understood by those who read them. Anderson v. Kennedy, 47 Ga. App. 380, 385 ( 170 S.E. 555); Mathews v. Atlanta Newspapers, Inc., 116 Ga. App. 337 ( 157 S.E.2d 300). There is an utter failure to plead these requirements in this petition. We must, accordingly, construe it to mean that readers attributed no such covert meaning to the article, without which no libel is alleged.
(c) Moreover, since it appears that the petition failed to set out a cause of action against Branch, the resident defendant, it was proper to sustain the general demurrer of the nonresident defendant and dismiss the petition as to it. Richards Associates, Inc. v. Studstill, 212 Ga. 375 ( 93 S.E.2d 3); Lewis v. Wilson, 111 Ga. App. 666 ( 142 S.E.2d 852); Harrell v. Gardner, 115 Ga. App. 171 (1) ( 154 S.E.2d 265); Rives v. Atlanta Newspapers, Inc., 220 Ga. 485, supra.
A consideration of the ruling on the plea to the jurisdiction by the nonresident defendant, Atlanta Newspapers, Inc., is unnecessary.
Judgment affirmed. Felton, C. J., and Hall, J., concur.