Brown v. McCann , 1927 Ga. App. LEXIS 330 ( 1927 )

Bell, J.

Mrs. B. B. Brown brought an action for slander against X. Y. McCann in the city court of Jesup, alleging that the defendant, about March, 1925, injured her in her profession as a teacher in the public schools by making to members of the school board and other persons named a false report that she was afflicted with the contagious disease commonly known as tuberculosis. She alleged that as a result of such report she was summarily dismissed from the faculty of the Jesup public school, and was further damaged in that she was thereafter unable to obtain any other position as teacher. The defendant in his answer denied the making of any such statements, but set up no affirmative defense, as of privileged communication.

A. E. Knight, a member of the board of education of the school in which the plaintiff was teaching and in which a son of the defendant was a pupil, testified: that in April, 1925, the defendant came into his store and said to him: “Have you heard the report on Mrs. Brown?” stating that Dr. Colvin had told him that she had consumption, and asking the witness what the trustees “were going to do about it.” The witness replied that the matter would have to come before the board, and suggested that the defendant “appear before the board,” whereupon the defendant.said, “No, I have nothing to do with it. . . If she has tuberculosis I will take my boy out of school, as I do not want him exposed to it.” .On a different occasion, seemingly a little later, the defendant voluntarily made to Mr. and Mrs. Anderson; at their home in Adams Park, Georgia, the following statement: “A very unfortunate thing happened recently. Mrs. Brown’s doctor told me that she had tuberculosis, and asked me what I was going to do about it. . . I told the doctor I couldn’t do anything but stop my child, which I was going to do.” This is according to the evidence of Mrs. Anderson, who also testified: -“Mr. McCann said that he did all that he could when the doctor pronounced the disease tuberculosis, . . took' his child out of school. Further than taking his child out of school, he didn’t say that he was going to do anything.” Mrs. Anderson was a sister-in-law of the plaintiff, her brother being the plaintiff’s husband. The plaintiff testified that she had had no coughs and had not “suffered with anything except severe colds,” and that she was now, in October, 1926, in perfect health. The trial court granted a nonsuit, and the plaintiff excepted. •

Under the testimony submitted, the jury would have been authorized in finding that the defendant did in fact make the statements as charged, and, further, that these statements were false. This would make a prima facie case for the plaintiff, since the statements tended to show that the plaintiff was afflicted with a contagious disease and since also they related to the plaintiff’s profession and were calculated to injure her therein. Civil Code (1910), § 4433; Nicholson v. Dillard, 137 Ga. 225 (3) (73 S. E. 382); Flanders v. Daley, 124 Ga. 714 (52 S. E. 687. A false report of either character is actionable per se, unless the defendant comes forward and shows that it was privileged under the circumstances, this being a matter for defense. Sheftall v. Central of Ga. Ry. Co., 123 Ga. 589 (5) (51 S. E. 646).

The fact that the defendant merely repeated the report of the doctor is no defense, since it is the law that “Talebearers are as bad as talemakers.” Ivester v. Coe, 33 Ga. App. 620 (6) (127 S. E. 790), and cit. Every repetition of a slander originated by a third person is a new publication of it.

Whether or not the publication was a privileged communication would depend upon the circumstances, including the intention with which it was published. “If in good faith, with the sole purpose of protecting the interest of the defendant, it would be; if maliciously, for the purpose of injuring the reputation of the plaintiff, it would not be. -In view of the allegations of the petition, the question of privilege is one which must be raised by plea and submitted to a jury as an issue of fact.” Holmes v. Clisby, 118 Ga. 820 (2) (45 S. E. 684); Flanders v. Daley, 120 Ga. 885 (4) (48 S. E. 327); Whitley v. Newman, 9 Ga. App. 89 (70 S. E. 686). In order to make the defense complete, the defendant must show good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons only. Sheftall v. Central of Ga. Ry. Co., and Ivester v. Coe, supra. Whether the communication is made at the proper time and proper place and to a proper person and in good faith is usually a question for the jury to determine under the facts of the particular case. Gillis v. Powell, 129 Ga. 403, 409 (58 S. E. 1051); Nicholson v. Dillard, supra.

Assuming, without déciding, that it could be held as a matter of law that the defendant’s conversation with Knight, of the school board, was privileged (17 R. C. L., p. 362, § 111), the same is not true of the statements made to Mr. and Mrs. Anderson. Although the defendant did not plead privilege, the nonsuit would have been right if the defense had affirmatively and conclusively appeared from the plaintiff’s own evidence. But it did not. The trial court therefore erred in granting the nonsuit.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.