Lamb v. Fedderwitz

A cause of action for damages from alleged libel was alleged, as against the demurrer. One J. dissents.

DECIDED OCTOBER 10, 1942. REHEARING DENIED NOVEMBER 4, 1942. 1. The right to sell malt beverages in this State under the act of 1935 (Ga. L. 1935, p. 73; Code, § 58-701 et seq.) is a mere privilege or permit, and involves no personal or property right. McKown v. Atlanta, 184 Ga. 221 (190 S.E. 571).

2. The revocation of the permit granting such privilege, under the facts alleged in the petition in the present case, was neither a judicial nor a quasi-judicial act. SoutheasternGreyhound Lines v. Public Service Commission, 181 Ga. 75 (181 S.E. 834, 102 A.L.R. 517); Acree v. Ragsdale, 60 Ga. App. 717 (4 S.E.2d 708).

3. "An absolutely privileged communication is one in respect of which, by reason of the occasion on which, or the matter in reference to which, it is made, no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously. The class of absolutely privilege communications is narrow and is practically limited to legislative and judicial proceedings and other acts of State, including, it is said, communications made in the discharge of a duty under express authority of law, by or to heads of executive departments of the State, and matters involving military affairs." 33 Am. Jur. 123, § 125.

4. The privileged communications enumerated in Code, § 105-709, "1. Statements made bona fide in the performance of a public duty. 2. Similar statements in the performance of a private duty, either legal or moral. 3. Statements made with the bona fide intent, on the part of the speaker, to protect his own interest in a matter where it is concerned. 4. Fair and honest reports of the proceedings of legislative or judicial bodies. 5. Comments of counsel, fairly made, on the circumstances of his case, and the conduct of parties in connection therewith. 6. Comments upon the acts of public men in their public capacity and with reference thereto," are conditional privileges. "``The characteristic feature of absolute, as distinguished from conditional, privilege is that in the former the question of malice is not open; all inquiry into good faith is closed.' In every case of conditional privilege, if the privilege is used merely as a cloak for venting private malice, and not bone fide in promotion of the object for which the privilege is granted, the party defamed has a right of action." Atlanta NewsPublishing Co. v. Medlock, 123 Ga. 714 (3, 4) (51 S.E. 756, 3 L.R.A. (N.S.) 1139).

5. "The defense of privilege can not be raised by demurrer to the petition, unless the facts upon which the privilege may be asserted appear upon the face of the petition." Bibb v.Crawford, 6 Ga. App. 145 (3) (64 S.E. 488); Ivins v. L. N. R. Co., 37 Ga. App. 684 (7) (141 S.E. 423); Atlanta NewsPublishing Co. v. Medlock, supra.

6. Upon the application of the above-stated principles of law, the petition which alleged that the defendants, who were members of a voluntary organization known as the Brewers Beer Distributors Committee of Georgia, "organized for the purpose of refusing to sell beer to flagrant law-violating outlets and to ask for revocation of license at such outlets," wilfully and maliciously caused to be filed with the Revenue Commission (now the Department of Revenue) of Georgia, on or about March 14, 1940, a written report which in substance charged that the plaintiff, to whom had been issued licenses for the sale of beer and wine near Augusta, Georgia, in the County of Richmond, "had been engaged in the improper and illegal sale and distribution of alcoholic beverages in, at, on and near the premises for which the above retail licenses were issued, and has permitted drunkenness, intoxication, vulgar and profane language in, at, on and near the premises where licenses are in effect for the sale of malt beverages and wine, and has encouraged and promoted illegal and improper relationships between girls employed on said premises and customers of the said D. J. Lamb," the plaintiff, "which publication was fraudulent, untrue and maliciously made for no other purpose than that of injuring him as a citizen and injuring his business, thus causing damage to him in his business and his reputation as a citizen and in his credit transactions, and subjecting him to suspicion and contempt in his dealings with the public, such petition, not showing that the alleged libelous report was made to a tribunal which exercised judicial or quasi-judicial powers, or even powers of a kindred nature, in the revocation of the plaintiff's licenses, did not show on its face that the publication of the defamatory report was absolutely privileged, but showed only a conditional or qualified privilege, and a cause of action was set forth in the petition. It was error for the trial court to sustain the defendants' general demurrer, the sole ground of which was that no cause of action was set forth in the petition.

Judgment reversed. Felton, J., concurs.