Torok v. Yost , 176 Ga. App. 149 ( 1985 )

Beasley, Judge,

concurring specially.

I agree fully with Division 2. With respect to Division 1, I agree with what is said concerning the libel claim. But since plaintiffs allege by amendment that defendant orally made defamatory statements about them to others outside of the lawsuit, they have in this regard set forth a cause of action. OCGA § 51-5-4 (a). The allegation appears to embrace more than merely a reporting of what was contained in the lawsuit. See Savannah News-Press v. Hartridge, 110 Ga. App. 203 (2) (138 SE2d 173) (1964). In other words, plaintiffs contend that defendant discussed with others, who were strangers to the original lawsuit, that plaintiffs had sued him based on a fictitious automobile collision. This would be sufficient to constitute a cause of action for slander pursuant to OCGA § 51-5-4 (a) (4): “Uttering any disparaging words productive of special damage which flows naturally therefrom.” At this stage, when no evidence had been presented but only pleadings were before the court, dismissal as to Count 2 under OCGA § 9-11-12 (b) (6) therefore would not be warranted.

Decided September 5, 1985 Rehearing denied September 24, 1985 Robert A. Eisner, for appellants. Irwin W. Stolz, Jr., Seaton D. Purdom, for appellee.

However, it becomes obvious that one additional element is needed, as expressly reiterated in subsection (b) of OCGA § 51-5-4: “special damage is essential to support [such] an action; ...” There is no allegation in the complaint, as amended, claiming any special damages with particularity, and this is required. OCGA § 9-11-9 (g); Signal Oil & Gas Co. v. Conway, 126 Ga. App. 711, 716-717 (see also 722), (191 SE2d 624) (1972), rev’d on other grounds, 229 Ga. 849 (194 SE2d 909) (1972). Not only must they be pled, they must be shown to have actually flowed from the tortious act. OCGA § 51-12-2 (b); Meyer v. Ledford, 170 Ga. App. 245, 246 (1) (316 SE2d 804) (1984).

Here, although plaintiffs alleged that what defendant said was “calculated to injury (sic) both plaintiffs personally and in their trade and business reputation,” they did not state that it did so injure them, or how, in money terms. The only damages asserted were their conclusory “minimum sum of $25,000.00 or such sum as a jury should deem appropriate upon a hearing of the facts in this case. . . .” What that amount comprises remains a mystery the answer to which is needed to meet the elementary requirement of revelatory particularity. Special damages are concrete, and if they exist at all here, their hidden nature precludes further consideration of the claim.