Watters & Son v. Retail Clerks Union No. 479 , 120 Ga. 424 ( 1904 )

Lamar, J.

Where it is necessary to allege special damages in order to set out a cause of action, the particular loss or injury must be distinctly stated, the ad damnum clause, that the plaintiff had been damaged $25,000, not being the equivalent of such an averment. Pollard v. Lyon, 91 U. S. 225. In view of this well-recognized rule, and the assignment of error on the judge’s order, the present case does not raise any question as to defendants’ liability for a conspiracy. Brown v. Jacobs Co., 115 Ga. 433; 3 Joyce on Damages, § 2231. Even after a special demurrer calling attention to the omission, there was no amendment. The petition set out no loss of trade, profits, or customers; no decreased ability to buy or sell; no violence; no intimidation of patrons; no interference with plaintiff’s business, and no injury of any sort, except tbe general damage alleged to flow from the use of the .words claimed to be libelous per se. In fact the plaintiffs treat this solely as an action for libel, and claim in their brief that “the record presents but two questions for determination: first, are the publications libelous; second, are they actionable per sé?” In cases of this sort the publication or conversation must be construed as a whole, and in the sense in which it is evident the language was intended to be used. Under this rule words ordinarily harmless may from the context convey such a meaning as to give ground for an action. On the other hand, words which are sometimes actionable may, when taken in connection with the entire article, be( deprived of their usual sting and afford no ground for a recovery. So the word “unfair” may sometimes mean “dishonest,”' and, when by a colloquium or innuendo shown to have this meaning, might give rise .to a cause of action. But it does not necessarily involve so serious a charge. It may convey the idea of “discrimination.” It may mean that one is “prejudiced” or “ partial.” It may mean “ illiberal,” “ hard,” “ ungenerous,” or “ exacting.” But whatever the sense in which it may on occasions be used, it is perfectly^ evident that in the present case it imputed nothing involving moral turpitude to the firm or to the individuals composing it, arid cast no imputation upon their credit, solvency, or conduct as merchants. Eeading the publication as a whole, there was no suggestion of the use of short weights or measures, no accusation of fraud, deceit, or misrepresentation in the sale or purchase of goods. Nor did it charge anything against the honesty, integrity, solvency, or credit of the partnership. A state of facts was given. The words “unfair” and “unfair list” were coupled with these facts, and amounted to a characterization or statement of whaf defendants thought of plaintiffs’ refusal to become a party to the early closing movement. Any one reading the communication must have seen that, the plaintiffs were not charged with overstepping their rights or. doing anything unlawful. It was in principle analogous to a somewhat similar publication concerning a merchant who refused to contribute to a fund for keeping the streets sprinkled. People v. Jerome, 1 Mich. 142. A case even more in point was that of Donnaghue v. Gaffy, 53 Conn. 43, where the defendant published that because he had quit buying from plaintiffs they privately overbid him and by “base treachery ” secured the property which he had leased, and ordered him immediately to vacate. After stating these facts, the defendant in the article alleged to be libelous added: “ The firm is not worthy of our support, being guilty of foul and unfair dealings to ‘ get square,’ as they say, with one who exercises the right to trade where he likes; and I , . request those who believe in the fair thing as between man and man to give their support to some other house.” It was there held (citing Homer v. Englehardt, 117 Mass. 539) that the words were not actionable per se, the whole publication showing that the transaction was perfectly lawful; and that, in the absence of an allegation of some special damage, the court could not legally presume that the plaintiffs were degraded in the estimation of the public, or that they suffered loss of character, profits, or business. See also Railroad v. Delany, 102 Tenn. 289, where an employee sued for general damages alleged to have resulted from a false publication that he had gone on a strike. The blacklisting cases, like that of White v. Parks, 93 Ga. 633, cited for the plaintiffs, do not apply, because there the words were actionable per se, as they tended to lessen the plaintiff’s credit, charging as they did that he was a delinquent debtor, guilty of dishonest and fraudulent methods. Here the publication was not per se libelous, and no special damages are set out. The judgment sustaining the demurrer is

Affirmed.

All the Justices concur, except-Evans, J., disqualified.