Park & Iverson v. Piedmont & Arlington Life Insurance , 51 Ga. 510 ( 1874 )

Warner, Chief Justice.

This was an action brought by the plaintiffs against the defendant, to recover damages for publishing a libel of and concerning them as insurance agents for defendant. The defendant admitted its publication, and alleged in its plea that the facts stated therein were true. On the trial of the case the court charged the jury that the language of the alleged libel was not ambiguous or uncertain, and that the innuendoes in the plaintiffs’ declaration did extend the meaning of the language set out in the publication, that such being the case the jury would not determine whether the innuendoes were true or false, but would, from the evidence, determine whether the defendant had proved that the published language was true; if so, they should find for the defendant, if not, then for the plaintiff. The plaintiffs requested the court to charge the jury that the language, charged-as published in the first count of the declaration, may be construed to mean that plaintiffs embezzled the money of defendant, and it is for you to determine from the evidence whether, by this publication, the defendant intended to ascribe embezzlement to plaintiffs. • The language charged as published in the second count of the declaration may be construed to mean that plaintiffs fraudulently appropriated the money of defendant, and it is for you to determine from the evidence whether the defendant intended to ascribe to the plaintiff a fraudulent appropriation of money. If you believe from the evidence that plaintiffs, in good faith, claimed the amount due them for commutation which defendant refused to allow, and therefore plaintiffs did not settle with defendant, then plaintiffs cannot be truly charged with embezzlement, or fraudulently appropriating the money of defendant to their use, although on a trial afterwards it may have been determined that such commutation was not a proper charge against the defendant. The foregoing three requests to charge the jury wmre refused by the court, and the plaintiffs excepted. The plaintiffs also excepted to the charge of the court as given to the jury.

1. In our judgment there was no error in the charge of the court to the jury, on the statement of facts contained in the record. The language of the publication was neither doubtful or ambiguous. The office of an innuendo is to explain that which is of doubtful or ambiguous meaning in the language of the publication, but cannot enlarge the meaning of wrords plainly expressed therein. If the plain, unambiguous words contained in the publication do not impute a criminal offense, the meaning thereof cannot be enlarged or extended by an minuendo for that purpose; but when the language- used is capable of being understood in a double sense, the one criminal and the other innocent, the plaintiff, by making the proper allegations in his declaration, may, by an innuendo, aver the meaning with which he thinks it was published, and the jury may find whether the publication was made with that meaning or not. The truth of an innuendo cannot be proved at the trial; its truth must always depend on the proof of precedent facts which would authorize the innuendo to be made. If the precedent facts alleged in the plaintiffs’ declaration do not make out a cause of action against the defendant, an innuendo cannot do it. The plain, unambiguous language of the publication either imputed a criminal offense to the plaintiffs or it did not, and whether it did or not, the defendant alleged that it was true, and that was the issue to be tried. The issue to be tried was whether the language contained in the publication made by the defendant of and concerning the plaintiffs, according to the plain import and meaning thereof, was true or not; and that was the question which the court submitted under the evidence in its charge to the jury.

2, 3. The two first requests made of the court to charge the jury will bo considered together, as both involve the same principle. By the 3248th section of the Code it is declared to be error for the superior courts to express or intimate an opinion as to what has or has not been proved, in its charge to the jury. The first request asked the court to say to the jury that the language contained in the publication offered in evidence did mean to charge the plaintiffs with having embezzled the money of defendant. The second request asked the court to say to the jury that the publication offered in evidence did mean to charge the plaintiffs with having fraudulently appropriated the money of defendant. If the language contained in the unambiguous publication may be construed to mean certain things, then it does mean them, and that is what the court was requested to charge the jury. Whether the language of the publication did or did not charge the plaintiffs with having embezzled the defendant’s money, or whether it charged them with having fraudulently appropriated the defendant’s money, were questions of fact for the jury to determine from the plain, unambiguous language of the publication itself, without any intimation or expression of opinion by the court as to what offense that publication charged against the plaintiffs, or whether it charged any offense against them. Whatever charge the publication did contain, the defendant alleged to be true, and was bound to prove the truth thereof at the trial, and that was the issue between the parties. The practical effect of these two requests to charge, was to require the court to say to the jury what was the meaning and import of the language contained in the publication, instead of leaving that question to the jury, whose province it was to determine it, without any intimation or expression of opinion by the court in relation thereto.. We find no error in the refusal of the court to give in charge the two first requests of the plaintiffs set forth in the record.

4. It is my individual opinion that the third request to charge was properly refused by the court, in view of the facts contained in the record, because it assumes that the language of the publication did charge the plaintiffs with embezzlement, or a fraudulent appropriation of the defendant’s money, but the majority of the court are of the opinion that the third request should have been given.

5. Inasmuch, however, as the refusal of that request did not hurt the plaintiffs, as the verdict under the evidence ought to have been as it is, even if that request had been given in charge, we all concur in affirming the judgment.

Let thé judgment of the court below he affirmed.