Williamson v. Lucas

Sognier, Judge.

Lucas sued Williamson and Georgia Communications Corporation for defamation based on statements concerning Lucas made by Williamson during a radio talk show. The jury returned a verdict in favor of Lucas for $75,000 general damages and $125,000 punitive damages. On appeal to this court, the judgment was reversed as to damages. Williamson v. Lucas, 166 Ga. App. 403, 406 (6) (304 SE2d 412) (1983). On retrial, the jury awarded Lucas damages of $25,000 general damages and $35,000 punitive damages. Williamson and Georgia Communications Corporation appeal.

1. Appellants contend that the trial court erred by refusing to allow individual and isolated voir dire of those prospective jurors who indicated they had knowledge of the first trial, arguing that this was the only means for determining which jurors knew the amount of the first verdict without imparting such information to all jurors.

Whether or not to allow sequestered questioning of individual jurors is a matter within the discretion of the court. See Stevens v. State, 247 Ga. 698, 700 (2) (278 SE2d 398) (1981); Finney v. State, 242 Ga. 582, 585 (4) (250 SE2d 388) (1978). See also Stinson v. State, 244 Ga. 219, 220 (2) (259 SE2d 471) (1979). We agree with appellee that in the instant case defense counsel could have obtained the desired information in a less burdensome manner than that requested; for instance, by cautioning the prospective jurors not to mention any dollar amount but rather to answer by a “Yes” or “No” the question, “Do you know what damages, if any, were awarded in the prior proceeding?” We do not find that the trial court abused its discretion in this respect. This enumeration is without merit.

2. Appellants contend that the trial court erred (a) by failing to adequately instruct the jury on the question of damages and (b) by instructing the jury that the amount of damages was to be determined by the jurors’ “enlightened conscience.”

(a) The record reveals that contrary to appellants’ contentions, the trial court in giving instructions regarding damages, used either the phrase “if any” or similar expressions importing the same meaning several times. Thus, the jurors were given the option of determining, had the evidence so indicated, that no damages at all were appropriate. While appellants contend that the trial court erred by failing to give their request to charge on damages, it is not error to refuse to give a requested charge where the substance of the request is covered in the general instructions given. Johnston v. Woody, 148 Ga. App. 152, 155 (3) (250 SE2d 873) (1978); Gates v. Southern R. Co., 118 Ga. App. 201, 203 (3) (a) (162 SE2d 893) (1968).

(b) Once the determination has been made that damages should be awarded in cases such as that sub judice, the proper standard for determining the amount is “the enlightened conscience of impartial jurors.” Atlanta Consolidated &c. Co. v. Hardage, 93 Ga. 457, 459 (3)-460 (21 SE 100) (1893). See also Franklin v. Evans, 55 Ga. App. 177 (189 SE 722) (1937). Contrary to appellants’ contentions, the “enlightened conscience” standard is not in conflict with OCGA § 51-5-10 (c), which provides that only those “actual, consequential, or punitive damages as have been alleged and proved ...” may be allowed. Obviously the measure of damages is applied after the jury has determined that damages have been proved, and the trial court so instructed the jury in the instant case.

3. Appellants contend that the trial court erred by denying their motion for a directed verdict because appellee failed to allege and to prove damages as required by OCGA § 51-5-10 (c). This court held in the prior appeal, Williamson, supra at 405 (5)-406, that there was ample evidence of damages to authorize a verdict for appellee. Substantially the same evidence was presented on retrial. “Not only do we continue to adhere to that ruling as a matter of . . . law [see OCGA § 9-11-50; Findley v. McDaniel, 158 Ga. App. 445, 446 (280 SE2d 858) (1981)], but also our earlier ruling is binding upon us. Atlanta Cas. Co. v. Williams, 139 Ga. App. 732 (229 SE2d 534) (1976). This enumeration is still without merit.” Hixson v. Barrow, 142 Ga. App. 65, 67 (2) (234 SE2d 805) (1977). See Sam Finley, Inc. v. Barnes, 156 Ga. App. 802, 803 (3) (275 SE2d 380) (1980).

4. Appellants contend that the trial court erred by ruling that the retraction provisions of OCGA § 51-5-11 apply only to printed media and not to electronic media. In the appeal of this case, Williamson, supra, the same question was raised — whether the retraction provisions of OCGA § 51-5-11 apply to preclude the award of punitive damages under OCGA § 51-5-10. Our court did not reach this question in the earlier appeal because no request to charge OCGA § 51-5-11 was made. However, in the case sub judice, a request to charge this statute was made and denied by the trial court. Thus, the question is now squarely raised.

The statute now codified at OCGA § 51-5-11 was enacted in 1958 (Ga. Laws 1958, p. 54) and modified in 1960 and reads as follows:

“Section 1. In any civil action for libel, charging the publication of an erroneous statement alleged to be libelous, it shall be relevant and competent evidence for either party to prove that the plaintiff requested retraction or omitted to request retraction. The defendant may allege and give proof that the matter alleged to have been published and to be libelous was published without malice, and that the defendant in a regular issue of the newspaper or other publication did, within three days after receiving written demand (or in the next regular issue of the newspaper or other publication if the next regular issue be not published within three days after receiving such demand), correct and retract the allegedly libelous statement in as conspicuous and public a manner as that in which the alleged libelous statement was published, and that if the plaintiff so requested, such retraction and correction was accompanied by an editorial appearing in the same issue as the retraction in which the allegedly libelous statement was specifically repudiated, or that no request for correction and retraction was made by the plaintiff. Upon proof of such facts, the plaintiff shall not be entitled to any punitive damages, and the defendant shall be liable only to pay actual damages. The defendant may plead the publication of the correction, retraction or explanation (including the editorial, if demanded) in mitigation of damages.” (Emphasis supplied.) Ga. Laws 1960, pp. 198-199, Section 1.

“It is fundamental that the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.” Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746, 749 (2) (171 SE2d 521) (1969). In fact, “where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. [Cit.]” City of Jesup v. Bennett, 226 Ga. 606, 609 (176 SE2d 81) (1970).

Giving the words “newspaper or other publication” their “ordinary signification,” OCGA § 1-3-1 (b), and observing their repeated, consistent, and exclusive use throughout the statute, it is clear that the legislature intended that the Act apply exclusively to newspapers and the printed media. While, according to Webster’s, the word “publication” can be used to indicate an oral proclamation; nevertheless, when used conjunctively with “newspaper,” we believe its meaning is restricted to a written publication. The use of the word “issue” is consistent with the exclusive reference to “newspaper or other publication.” “ ‘The current of authority in this country, at least at the present day, is in favor of reading Statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.’ Persons v. Hight, 4 Ga. 474, 485-6 (1848). This principle remains intact today.” Earth Management v. Heard County, 248 Ga. 442, 444 (283 SE2d 455) (1981).

Decided June 22, 1984 Rehearing denied July 19, 1984 J. Dunham McAllister, for appellants. Denmark Groover, Jr., for appellee.

There is another rule of statutory construction applicable here: “ ‘All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.’ ” Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700-701 (10 SE2d 375) (1940). In 1949, the General Assembly enacted a separate statute providing expressly for liability for defamatory statements “published or uttered in or as part of a visual or sound broadcast. . . .” Ga. Laws 1949, p. 1137, §§ 1-3 (now OCGA § 51-5-10 (a)). Nine years later, in 1958, the retraction statute (now OCGA § 51-5-11) was enacted; two years after enactment, the statute was amended to add a specific provision for the retraction of the statement within three days of written demand “(or in the next regular issue of the newspaper or other publication if the next regular issue be not published within three days after receiving such demand). . . .” (Emphasis supplied.) Ga. Laws 1960, pp. 198-199, Section 1. Also added by amendment was provision for “an editorial appearing in the same issue as the retraction. . . .” Id. In drafting or amending the retraction statute, the legislature could have provided for retraction of statements made as part of a visual or sound broadcast, but did not do so. “We must presume that its failure to do so was a matter of considered choice.” Hollowell v. Jove, 247 Ga. 678, 683 (279 SE2d 430) (1981).

While our holding is based upon our determination that the statute in question contains no ambiguity necessitating judicial interpretation, if the statute were ambiguous, we would then be constrained to resort to examination of its preamble (see Chambers Lumber Co. v. Martin, 112 Ga. App. 826 (146 SE2d 529) (1965)), which clearly states that the Act pertains to retraction of libelous statements made by newspapers. See Ga. Laws 1960, p. 198.

The trial court did not err in refusing to charge OCGA § 51-5-11 as the retraction statute is by its terms clearly inapplicable to defamatory statements made in a radio or television broadcast.

Judgment affirmed.

McMurray, C. J., Quillian, P. J., Banke, P. J., Birdsong, Carley, Pope, and Benham, JJ., concur. Deen, P. J., dissents.