Pacific & Southern Co. v. Montgomery ( 1974 )

Per curiam.

This appeal presents in sharp focus the competing values lodged in two principles: (1) the freedom of the media to publish and broadcast; and (2) the right, not to be damaged by such a publication or broadcast, possessed by an individual citizen.

It is our view that a publication or broadcast, alleged to be a purely private defamation, is not entitled to absolute protection under the "free speech and press” principle.

In this case Mrs. King, a customer, had a dispute with the plaintiff, a repairer of automobiles. She contacted the defendants, a television station and its reporter, concerning her dispute with the plaintiff. The defendants talked with Mrs. King and plaintiff about the dispute; the defendants filmed Mrs. King with reference to her complaint; the defendants filmed the plaintiffs place of business; and the defendants then broadcast the pictures with the following narrative:

"[Reynolds] The lady who called me today has a Volkswagen. It needed repair and is still in the shop and she has a problem. Mrs. King told me her problem. 'What started this problem, Mrs. King?’ [King] 'It started back in January, when I had ... it just would not run; it had a noise in it. I took it out to Montgomery Eneo on Clairmont and Briarcliff to see what the problem was and they told me I needed a complete engine job.’ [Reynolds] 'So you had it and was it expensive?’ [King] 'Yes, it was very expensive. It was $234, that is a lot of money to me.’ [Reynolds] 'Where is your Volkswagen today?’ [King] 'It is still out at Montgomery Eneo. I had to have it taken back for really the same problem. And they refused to fix it.’ [Reynolds] 'Well, do they want you to pay all this money again to get your car out?’ [King] T tried to get Mr. Montgomery to. I let them know that I felt like they should do it free and he said he did not want to talk about it. I said, well, if I gave you the authorization to do the work and was willing to pay for it, how much would it cost me? And he said, I just don’t want to talk about it.’

"[Reynolds] 'Mrs. King, we talked to the man at the shop where you had your Volkswagen work done and even though those little, old, small engines are small and are generally dependable, this one is bringing you trouble and you are going to have more trouble with it. He says, there is no way that he is going to repair this engine under warranty, he gave you a three months’ warranty and well, the engine did not break down until 8 months. So I guess you’re out in the cold there and he is standing by his position. He feels there is no need for him to go back into that engine. He did say that he would discount the parts to you, which will realize a saving of a few dollars to you.’

" 'Well, that is the way it is folks, sometimes those engines are small and sometimes they are dependable and when they are not, they can be very expensive. And Mrs. King’s car is going to end up just that — very expensive. This man has agreed now to do the work for her again, he says on a cash basis and the best he will come up with is a discount on some of the parts. Mrs. King, a Volkswagen can be expensive.’ ”

The plaintiff then brought an action against the defendants in which he alleged that they "wilfully and through collusion and concert of actions with one Mrs. J. Fred King did conspire to expose pictures of the plaintiffs place of business and have Mrs. King appear and express words falsely defaming plaintiffs business, vocation, and occupation, and exposing him and his business to public ridicule without his consent. The acts and conducts by defendants were designed to dramatize a false situation for its own profit, and they did fail to exercise due care to prevent such libel and slander. To the contrary, the defendants encouraged same under the guise of public interest, thereby damaging and destroying plaintiffs business, misusing a privilege merely as a cloak for venting private malice. Defendants knew beforehand what Mrs. King was going to say and do on the television program, and that the words she was to speak against plaintiffs business were false. The broadcast was seen and heard throughout the metropolitan Atlanta area and adjoining counties exposed to the defendants’ television system. These acts and conduct on the part of defendants individually and jointly were done with malice and with intent to injure and damage the plaintiff personally and in his vocation and occupation.”

The defendants filed pleadings denying these allegations, the case was tried before a jury, and at the conclusion of the plaintiff’s presentation of evidence the trial judge granted a motion for a directed verdict in favor of the defendants. After hearing argument on the motion by counsel the trial judge said: "This court doesn’t think that there is sufficient evidence of any untruthfulness on that point alone. The court further doesn’t think that the transcript that was presented here in its skit on television met the requirements of defamation. I will, therefore, direct a verdict in favor of the defendant.”

The plaintiff appealed to the Court of Appeals, that court reversed the judgment of the trial court (131 Ga. App. 712 (206 SE2d 631)), and we granted the defendants’ application for a writ of certiorari to review the decision and judgment of the Court of Appeals.

We agree with the judgment of reversal rendered by the Court of Appeals. The telecast, the pictures and spoken narrative taken in their entire context, together with the testimony of the plaintiff and the defendant news reporter, convince us that the issue of defamation or no defamation was a question of fact for determination by the jury. The trial judge therefore should not have directed a verdict in favor of the defendants.

The plaintiff, answering questions propounded by counsel for the defendants, testified: "Q. Was the car based on your awareness of it and the number of times that ’61 car was brought into Montgomery Eneo Station between January 8,1971, and December 1st, 1971, giving Mrs. King trouble for whatever reason? A. Yes, sir, it was giving her some trouble other than the work that we had done on it. Q. Do you think it was going to keep on giving her trouble irrespective of the work you had done? A. As the car itself? Q. The car itself. A. I would imagine a car that old would constantly have maintenance problems — accelerator troubles, brakes and so forth. Q. From a variety of troubles? A. Yes, sir. Q. So this statement in the transcript here that the car is bringing Mrs. King trouble and she is going to have more trouble with it is true, isn’t it? A. The statement you read — if I may read it, please. 'That is the way it is, folks. Sometimes those engines are small and sometimes they are dependable, but when they’re not they can be very expensive.’ Are you referring to the engine itself? Q. Look on the front page, the one before that, the last paragraph, and let’s read this together. 'Mrs. King, we talked to the man at the shop where you had your Volkswagen work done and even though those little, old, small engines are small and generally dependable, this one is bringing you trouble and you are going to have more trouble with it.’ That’s true, isn’t it? A. No, sir. Q. What’s wrong about it? You just told us that it was going to keep on bringing her trouble. A. I said the car in general, but not the engine, the one that’s been repaired. Q. Was the crankshaft part of the engine? A. Yes, sir. Q. Had she had any trouble with that after the January, 1971 work? A. No, sir. Q. Hadn’t she had the crankshaft broken? A. When she brought it in in September, we found it to be broken. Q. Yes, so she had trouble with that part of the engine? A. Sure, that’s eight months. Q. That’s why I say. After December 1st, 1971, don’t you think she would continue to have trouble with the engine of that ’61 Volkswagen? And I am not casting any aspersions on your work. A. No, sir, not normally she would not have. Q. Tell us about what is part of the engine and what is not. Are the camshafts part of the engine? A. Yes, sir. Q. Crankshaft part of the engine? A. Yes, sir. Q. Cylinder head studs part of the engine? A. No, sir. Q. The various fuel lines, they are ancillary to the engine, aren’t they? A. That’s correct. Q. Don’t they on a car that old go bad and and give trouble? A. Yes, sir. We replace a lot of fuel lines, fuel pumps. Q. Would you not anticipate that likely to cause trouble in the future in a ’61 Volkswagen? A. No trouble to the engine, no, sir. It has nothing to do with the engine at all.”

Later, on re-cross examination of the plaintiff by counsel for the defendants, the following was elicited from him: "Q. Do you remember me asking you on your deposition given in Mr. Stringer’s office various statements contained in this transcript, plaintiffs Exhibit 2? A. I remember some of it, yes, sir. Q. I want to read the question on line 2 and I was quoting: 'Mrs. King, we talked to the man at the shop where you had your Volkswagen work done and even though those little, old, small engines are small and are generally dependable, this one is bringing you trouble and you are going to have to more trouble with it.’ Please read your answer. A. 'I’d say that was correct.’ ”

It is obvious that this last answer read by the plaintiff from his deposition taken earlier is in conflict with the plaintiffs actual testimony at the trial quoted above in that the trial testimony explained the deposition testimony, the trial testimony having reference to the engine that the plaintiff had repaired and the deposition testimony having reference to Mrs. King’s car in general.

Then on re-direct examination by plaintiffs counsel the plaintiff testified: "Q. And now page 87 as was read to you by Mr .Weinberg. 'Surely. Mrs. King, we talked to the man at the shop where you had your Volkswagen work done and even though those little, old, small engines are small and are generally dependable, this one is bringing you trouble and you are going to have more trouble with it.’ A. 'I’d say that was correct.’ Q. Tell this jury what you meant by that answer. A. I mean what he read in the question was correct. What was said over the air on the program when he said, 'Mrs. King, we talked to the man at the shop where you had your Volkswagen work done and even though those little, old, small engines are small and are generally dependable, this one is bringing you trouble and you’re going to have more trouble with it.’ My answer was, 'I’d say that was correct.’ That is what was said by Mr. Reynolds to Mrs. King on the program. Q. Did you state whether or not the statement, the contents of the statement were correct? A. No.”

The defendant reporter testified on cross examination as follows: "Q. All right, sir, this is still Mrs. King talking: Question: T had to have it taken back for really the same problem.’ She made that statement? A. Yes, sir. Q. Do you know whether or not she did, in fact, have to take it back for the same problem and what problem she was referring to? A. Yes, sir. Q. And whether or not that statement by her was true and correct? A. Yes, sir. Q. You know that it was? A. Yes, sir. Q. And how did you determine that, please, sir? A. In conversation with Mr. Montgomery. Q. And she testified: 'And they refused to fix it.’ She made that statement on your program? A. Yes, sir. Q. And do you know whether that statement is true or false of your own knowledge? A. Yes, sir. Q. It is true or false? A. It is true. Q. And how did you determine that, please, sir? A. By conversation with Mr. Montgomery. Q. All right, sir, he said that he refused to fix it? A. That it was unfixed. Mr. Weinberg: Excuse me, Mr. Montgomery has already testified that this is true. The court: Let’s go on with it a little faster if we can.”

This last answer by the defendant shows that the defendants permitted Mrs. King to say on their program, "And they refused to fix it,” when the reporter himself knew that the plaintiff had merely said that Mrs. King’s car was "unfixed.”

Also, the reporter’s question in the telecast narrative, asked to Mrs. King, "Well, do they want you to pay all this money again to get your car out?” seems to be a question that is derogatory of the plaintiff and totally without foundation. There is no indication anywhere in the entire investigation that would lead anyone to think that Mrs. King had to pay anything to take her car away from the plaintiffs premises.

In short, whether this telecast was defamatory of the plaintiff on its face, and whether it was true or not pursuant to the testimonial facts elicited at the trial, were issues for determination by the jury.

Slander, or oral defamation, consists of "charges made against another in reference to his trade, office, or profession, calculated to injure him therein.” Code § 105-702.

Code Ann. § 105-712 provides that a broadcasting station shall not be liable for any damages for a defamatory statement published or uttered by it unless it is alleged and proved by the complaining party that such station or its agent failed to exercise due care to prevent the publication or utterance of such statement in the broadcast.

Code § 105-708 provides: "The truth of the charge made may always be proved in justification of the libel or slander.”

Argued September 12, 1974, — Decided November 8, 1974. Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., F. Clay Bush, for appellants. Davis & Stringer, Robert H. Stringer, for appellee.

In this case, whether the defendants were justified in telecasting the matter at issue here should not be determined by the trial court or an appellate court as a matter of law. Justification on the part of the defendants is the only issue in this case, and that issue should be determined by a jury.

The judgment of the Court of Appeals was correct.

Judgment affirmed.

All the Justices concur, except Nichols, P. J., who concurs specially and Undercofler, Jordan and Hall, JJ., who dissent.