Thibadeau v. Crane , 131 Ga. App. 591 ( 1974 )

Evans, Judge,

concurring specially.

I concur in all that is stated in the majority opinion. However, as to the statement in Division 2 on page 592, as follows, to wit: "... for no recovery is authorized, unless it shall appear that the statements were false and were made with actual malice.”New York Times Co. v. Sullivan, 376 U. S. 254. (Emphasis supplied.) It should be pointed out, in connection with the above language, that it is most difficult, if not impossible, for a plaintiff to come forward with direct evidence of actual malice; and such proof must necessarily, in the great majority of cases, be made by circumstantial evidence. This is so because a plaintiff cannot be expected to produce a witness who heard the defendant expressly state that the publication in question was made with malice against plaintiff. Nor can it be expected that defendant himself will testify that he published an untruth of and concerning plaintiff with malice.

As to state of mind, or scienter, such has always been shown by the totality of the circumstances surrounding the actions of the party. In some of the earlier authorities, doubt was expressed as to the propriety of allowing the party himself to testify as to his state of mind or good faith. But this doubt was finally resolved by allowing the party to testify, with cautionary instructions that the party’s testimony must be considered and weighed in connection with all of the facts in the case, in order to determine the actual state of his mind at the time of committing a certain act.

In Royce & Co. v. Gazan, 76 Ga. 79, 80 (5), it was held: "A party may testify to his intention. It is evidence to be considered, but the facts — all the facts — are to be considered, to arrive at the truth respecting his real motive. ’’(Emphasis supplied.) Holding to the same effect, see Childers v. Ackerman Const. Co., 211 Ga. 350 (3) 354 (86 SE2d 227), and the several authorities there cited. Also see Bowen v. Consolidated Mort. Corp., 115 Ga. App. 874, 876 (156 SE2d 168), holding as above.

In other words, although there is authority to the effect that direct evidence will sometimes outweigh contradictory circumstantial evidence, such is not the rule here. A party, in a case of slander or libel, may testify that he acted in good faith (or without malice) and yet a consideration of all of the facts surrounding the publication may properly authorize the conclusion that such publication was not in good faith, but was characterized by malice.