Witham v. Atlanta Journal , 1906 Ga. LEXIS 589 ( 1906 )

Fish, C. J.

(After stating the facts.) We think it clear from the language of the publication, that, with the exception of the concluding sentence thereof, no statement of fact therein was made of and concerning the plaintiff as an individual; and that it contained no charge on the plaintiff, in reference to his business or trade. The use of the plaintiff’s surname as an adjective descriptive of the particular bank which, was alleged to have assigned was merely incidental to the charge made in the article against .the bank. It was hot charged that the plaintiff had assigned, which might have amounted to a libel, if he had been engaged in business as a private banker, or otherwise, where his success was dependent upon his financial credit. Nor was it alleged that the plaintiff’s bank had assigned, which, if he had owned and operated a bank, might be construed to be a charge on him in rgference to his trade or business. But the charge was that “Witham Bank at Barnesville assigns;” and there is nothing in the petition, which shows that Witham owned any bank at Barnesville, or even elsewhere. The effect of the allegations in the plaintiff’s petition is, that as he was connected, either as president or financial agent,-with thirty banks in this State, the use in a newspaper publication of his surname to describe the Barnesville bank alleged therein to have assigned was a charge on him in reference to his business, which naturally tended to impair his credit and destroy public confidence in him as a business man. Granting, as the innuendo alleges, that the publication meant that a bank at Barnesville, of which the plaintiff was either president or financial agent, had failed, still it seems to us clear that the charge in the publication was against the bank, and not against the plaintiff either personally or in reference to his business. We apprehend that if the plaintiff had been president of this very bank and the allegation as to its having made an assignment had been untrue, the right of action for the libel would have been in the corporation, and not in the plaintiff. The libel would be on the corporation, and not on its president. There would be no charge on the person who happened to be president of the bank, in reference to his trade, office, profession, or business. IIow then can the mere written intimation that the plaintiff was president, financial agent, or otherwise closely connected with a bank alleged to have failed, amount to a charge on him in reference to his trade or business? Suppose the charge had been that “The People’s Bank at Barnesville, of which W. S. Witham is president,” or, “'The People’s Bank of Barnesville, of which W. S. Witham is financial agent, has assigned/’- would Witham have had a cause of action based upon the falsity of the statement that he was president, or financial agent, of this bank, unless he had suffered special damage by reason of the publication? We think not. Words to be actionable per se,' as tending to injure the plaintiff in bis trade, profession, or business, must contain a charge made on him in reference to such trade, profession, or business. Civil Code, §3837; Van Epps v. Jones, 50 Ga. 240. The language which we are now discussing contains no charge made on Witham of any character whatever. For these reasons, we do not think that the plaintiff had anjr cause of action upon that portion of the newspaper article in reference to the alleged assignment of the People’s Bank at Barnesville. While it is alleged in the petition that the defendant “falsely and maliciously did publish of and concerning petitioner” the language in question, yet, as the demurrer' only admitted what, was well pleaded, and this allegation is not well pleaded in reference to this portion of the publication, which is not legitimately susceptible of this construction, such allegation is not aided by the demurrer. ■

2. But while the petition fails to show that the portion of the newspaper article in reference to the assignment of the People’s Bank, at Barnesville, contains a libelous charge on the plaintiff in reference to his trade, profession, or business, it does show that the statement in reference to the plaintiff, with which the publication concludes, if false, as the petition alleges, is libelous per se, as it in effect charges that there are “criminal cases pending against Witham, growing out of his connection with the old Barnesville Savings Bank.” This is equivalent to imputing to the plaintiff crimes punishable by law, and, under our code, such an imputation, if false, is actionable per se. Civil Code, § 3837. It matters not that the article failed to mention what particular crimes were charged against the plaintiff, in the criminal cases alleged to be pending against him. The charge that there were “criminal eases pending against Witham, growing out of his connection with the old Barnesville Savings Bank,” necessarily implied that there were crimes charged against him which were punishable by law. “To render words actionable per se, it is not necessary that they should, in express words, charge another with a crime punishable by law; it is sufficient if they impute a crime, that the hearers understand that this is what is meant.” Lewis v. Hudson, 44 Ga. 568. Besides, this is an action for libel, which, according to the definition given by our code, “is a false and malicious defamation of another, expressed in print, or writing, or pictures, or signs, tending to injure the reputation of an individual, and exposing him to public hatred, contempt, •or ridicule.” Civil Code, §3832. “A publication coming within this definition is actionable without any averment of special damage.” Holmes v. Clisby, 118 Ga. 820, 822. It is clearly apparent from the language now under consideration that the statement therein contained tended to injure the reputation of the plaintiff, and to expose him to public hatred or contempt; and it was therefore actionable without any allegation of special damage arising therefrom.

Counsel for the defendant in error state, in their brief, that this last paragraph of the publication “is not claimed by petitioner to be libelous,” and that he “bases his entire cause of action on the fact that the People’s Bank of Barnesville was also designated as the ‘Witham Bank.’ ” While it is true that the argument of counsel for the plaintiff in error, in this court, has been directed, to establishing the proposition that the plaintiff had a cause of action for the publication of the portion of the. article in reference to the assignment of the People’s Bank, and nothing has been directly said by him as to a cause of action arising merely from- the last paragraph of the publication, yet as the whole of the article is alleged to be libelous, and this portion thereof is referred to by counsel for plaintiff, in his brief,, we can not say that the plaintiff has admitted that he does not rely for a recovery upon the language of this paragraph; and therefore we have felt bound to deal with it in deciding the question raised by the demurrer.

It follows that the petition was not, as a whole, subject to a general demurrer, and that the court erred in sustaining the motion to dismiss it.

Judgment reversed.

All the J'ustices concur, except Beck, J., not presiding.