1. A judgment "dismissing" a suit on the ground that the evidence fails to support the petition is to be construed as a judgment of nonsuit and not as a judgment on the merits of the plaintiff's right to recover as a matter of law under the allegations of his petition.
2. Where, in an action for libel, the evidence fails to establish one of the essential elements charged in the petition, the trial court does not err in granting a nonsuit.
Parker Edmonds, Jr., brought an action for libel against Atlanta Newspapers, Inc., Riley Powell, a newspaper reporter, and L. D. Nelms, a newspaper carrier for Atlanta Newspapers, Inc., in the Superior Court of Gwinnett County. The material allegations of the petition, after certain rulings on special demurrers and certain amendments by the plaintiff, are substantially these: Atlanta Newspapers, Inc., is a resident corporation with its principal office and place of business in Fulton County, Georgia, but has an agent resident of Gwinnett County. Riley Powell is a resident of Gwinnett county and is an agent for Atlanta Newspapers, Inc., and transacts business for the corporation in that county. L. D. Nelms is a resident of Gwinnett County and transacts business for the corporation in that county. The defendants have injured the plaintiff in the amount of $50,000 by reason of the following facts. Atlanta Newspapers, Inc., is a news publishing organization engaged in the publication and dissemination of newspapers and magazines, and one of the newspapers published by that defendant is known as the Atlanta Constitution and is published daily, and a number of different issues are published each day. This newspaper has a very large circulation, both by mail and local delivery by carriers, all over the State of Georgia as well as over the surrounding States, and many thousands of copies are delivered to and placed in the hands of citizens of these territories and are read by them and their families so that this newspaper is read each day by literally millions of people. Riley Powell is a local news reporter, and as such he reports items to the newspaper from time to time, and these items are published by the newspaper and are disseminated as news to its many readers. L. D. Nelms is a local newspaper carrier for the defendant corporation and as such receives from the corporation by motor carrier each day issues of the Atlanta Constitution and delivers them to such persons as subscribe for them. He collects for the newspaper either weekly or monthly from the subscribers, and after deducting a certain percentage as pay for such work, he remits the net proceeds to the defendant corporation. He solicits and obtains subscribers to the paper and he sells the papers locally. In one of its issues of Thursday, April 29, 1954, the defendant corporation published in the Atlanta Constitution, in large box-size headlines, the following false and malicious defamation concerning the plaintiff:
"4 BOOKED IN GWINNETT IN CROSS BURNING:
"Constitution State News Service.
"Lawrenceville, April 28--Police records Wednesday show disorderly conduct charges have been made against four young men following a cross burning episode in Lawrenceville's negro community shortly before midnight Monday . [Italics by the court.]
"Police said aroused Negro residents rushed out and put out the blazing cross and then armed themselves with firearms, baseball bats and axes to await a possible return of the two automobiles. The cars, however, did not go back into the Negro section.
"Police records show disorderly conduct charges booked against Greeson, Parker Edmonds, Jr., Lawrenceville; Robert Bramblett, Lawrenceville, and C. D. Forrester, Loganville.
"Officers said seven others, some of whom are believed to be juveniles will be questioned. Police said the four now booked have admitted their part in the disturbance but said they were just trying to 'have a little fun.' They will be heard in Recorder's court, probably Monday night.
"The cross was a crude wooden structure about four feet high wrapped in paper and soaked in gasoline. It was placed in a pasture near the Hooper Renwick Negro School and ignited."
The defendant, Riley Powell wrote the news item and delivered it to the defendant corporation for publication, either by telegram, telephone, letter, or other method unknown to the plaintiff.
The defendant corporation also published in other editions of the Atlanta Constitution of the same date the following additional statement:
"Disorderly conduct charges were booked Wednesday against four men at Lawrenceville in connection with a cross burning in Lawrenceville's negro community shortly before midnight Monday. Those booked were identified by police as W. T. Greeson, Dacula, Parker Edmonds, Jr., and Robert Bramblett both of Lawrenceville; C. D. Forrester, Loganville."
The items published were false and were maliciously published as a continuation, and a part, of the false and malicious libel herein complained of, and were untrue and were known to be untrue at the time they were published. The news story is false, it is false and malicious defamation of the plaintiff, and it has injured and tends to injure the reputation of the plaintiff and to expose him to public hatred, contempt, or ridicule. The item was knowingly false to the writer when he wrote it and it was done maliciously. Not only was the news story untrue, false, and malicious, but it was intended by the writer to charge, and it did charge, the plaintiff with the violation of a criminal statute, to wit, the violation of the law against rioting. The plaintiff was born and reared in Lawrenceville, as was the defendant, Riley Powell; they came up together, attended public schools together, and later graduated from the same high school, and that defendant knew the plaintiff and his family well. He knew the plaintiff's father, and he knew that his name was H. P. Edmonds, and during all of this time he knew that the plaintiff was named for his father and was and has always been known as Parker Edmonds, Jr. After graduation from Lawrenceville High School, the plaintiff attended the University of Georgia and then attended the Atlanta Southern Dental College, where he graduated in dentistry in 1934. He then practised dentistry in Decatur and Atlanta until 1941, when he entered the services of the United States as an officer in the dental corps. He remained in the services for more than four years, during which time he was transferred to a number of camps until his discharge in 1945. As a college student, dental student, and as an officer in the dental corps, the plaintiff made many friends and came in contact with good and useful people all over the United States, and he has today many good friends all over the country and is known to them as Parker Edmonds, Jr. The news item published by the defendant corporation in the Atlanta Constitution has been given wide publicity and has been published in 490,000 or more issues of the Atlanta Constitution, and as a result of this wide publicity he has been held up to shame and disgrace, and on account of the false and malicious libel he has suffered great shame, humiliation, and disgrace. After the plaintiff was discharged from the services, he returned to Lawrenceville and opened an office for the practice of dentistry, and has maintained an office with a lucrative business up to the time of the publishing of the news story. He is known as Parker Edmonds, Jr., and he has constantly asked his friends to call him by that name, and his patients know him as such. The plaintiff has suffered special damages as a result of the publication of the news story. At the time of the publication of the story, the plaintiff was a dental surgeon with an office and place of business located in Lawrenceville and was engaged in the general practice of dentistry, which included all types of dental work. As compensation
for his work, the plaintiff earned $14,000 a year, or an average monthly income of $1,166. Immediately after the publication of the news story, his income from his work decreased one-half and the decrease was brought about by the publication of the news story by the defendants, as there was no other cause for the decrease except the publication of the news story. The plaintiff was at all times after the publication of the news story ready and willing to perform his services, but his patients did not come for such services. The defendants Riley Powell and L. D. Nelms are agents of Atlanta Newspapers, Inc., who may be served as such, and they are also made joint defendants with said Atlanta Newspapers, Inc., and are made defendants in this suit in their individual capacity as joint tortfeasors.
The defendants filed their individual answers, and upon the trial of the case the trial court, at the conclusion of the plaintiff's evidence, upon motion of counsel for the defendants, entered the following judgment:
"After plaintiff has completed the introduction of evidence in the trial [of] the within stated case and announced that he had closed and on motion of the defendants that the plaintiff's case be dismissed. The case is dismissed on the ground the evidence fails to support the petition."
The plaintiff, by direct bill of exceptions, has brought the case to this court to have that judgment reviewed.
1. A judgment "dismissing" a suit "on the ground [that] the evidence fails to support the petition," is to be construed as a judgment of nonsuit and not as a judgment on the merits of the plaintiff's right to recover as a matter of law under the allegations of his petition. Alabama Great Southern R. Co. v. Blivens, 92 Ga. 522 (17 S. E. 836); Zachry v. Mayor &c. of Madison, 18 Ga. App. 490, 491 (2) (89 S. E. 594); Carter v. Spiegel, May Stern Co., 45 Ga. App. 754 (166 S. E. 34); Phipps v. Alford, 95 Ga. 215 (22 S. E. 152); Kelly v. Strouse & Bros., 116 Ga. 872 (4b) (43 S. E. 280). Under an application of that rule of construction of judgments, the sole question for determination by this court, under the assignment of error contained in the bill of exceptions, is whether the judgment complained of, construed as one of nonsuit, was proper.
2. "An essential ingredient of an action for libel is malice, express or implied (. . . [Code 105-701]); State Mutual Life Assn. v. Baldwin, 116 Ga. 855 (1), 43 S. E. 262) . . . ; but where the language used is actionable per se, malice is implied, except where the occasion of the utterance renders it privileged, in which case, while the occasion does not excuse if the accusation is maliciously made (. . . [Code 105-710]), the burden is put upon the plaintiff to establish malice. Lester v. Thurmond, 51 Ga. 118; Hendrix v. Daughtry, 3 Ga. App. 481, 482 (60 S. E. 206)." Ivester v. Coe, 33 Ga. App. 620 (2) (127 S. E. 790). Therefore, if the news story concerning Parker Edmonds, Jr., was uttered on a privileged occasion, it would be incumbent upon the plaintiff in this case to establish express malice. If the occasion of the utterance was not privileged and was of such nature as to charge the plaintiff with a crime, malice would, of course, be implied.
"The privilege extended newspapers under Code, 105-704 and 105-709 to fairly and honestly report judicial proceedings is a conditional and not an absolute privilege . . . Such conditional privilege is not a right to publish but is rather the right to be free from legal liability for libel when such publication is done fairly and honestly and bona fide in the process of news dissemination." Atlanta Journal Co. v. Doyal, 82 Ga. App. 321
(60 S. E. 2d 802).
The gist of the plaintiff's cause of action is that the defendant reporter in reporting the record in the court proceeding against Parker Edmonds, Jr., and the information received from the police authorities concerning the charge of disorderly conduct lodged against Parker Edmonds, Jr., knew that the charge had not been made against the plaintiff, but maliciously made it to appear so in his news story which was published in the Atlanta Constitution.
From the plaintiff's evidence--the defendants produced evidence on the trial--it appears that the record of the charge (disorderly conduct--disturbing the peace) on file in the office of the police department of the City of Lawrenceville shows the charge to have been made against one Parker Edmonds, Jr., a white male, 17 years of age. It appears further that the reporter obtained the information, that the disorderly conduct and disturbance of the peace consisted of burning a cross in a Negro section of the City of Lawrenceville, from the chief of police and another officer who were on duty at the time of the reporter's investigation; and, that, although those officers were not the first ones to begin the investigation of the disturbance of the peace, the matter was turned over to them when the officers who had begun the investigation went off duty. Consequently, it appears from the plaintiff's own evidence that the reporter's communication to the defendant corporation, which was published by the defendant corporation in the Atlanta Constitution was a fair and honest report of information obtained from police records and police authorities and privileged. See, in this connection, Atlanta News Co. v. Medlock, 123 Ga. 714, 721 (51 S. E. 756), and citations.
As the reporter's news story is shown by the plaintiff's own evidence to have been privileged, malice will not be implied in its utterance although it charges the commission of a crime. In such circumstances, as we have said, it is incumbent upon the plaintiff to show actual or express malice. Ivester v. Coe, supra; Lamb v. Fedderwitz, 68 Ga. App. 233 (22 S. E. 2d 657); Fedderwitz v. Lamb, 195 Ga. 691 (25 S. E. 2d 414). This, we think, the evidence failed entirely to establish. While it is shown that the reporter, who was 44 years of age at the time, and the plaintiff, who was 43 years of age, had grown up together in Lawrenceville, and it is shown that the reporter knew the plaintiff's father and the plaintiff's son, and that they all bore the same name, differing only in that one was the senior, one the junior, and the other the third, there is evidence that the reporter never thought of them in those terms, and there is no evidence whatsoever that the reporter bore any of them any malice, as there is no showing of any hostility or animosity existing between them at any time. While the second publication of the incident of the cross-burning did not refer to those accused as young men, the first expressly referred to them as such, and this, we think, rather tends to show the reporter's good faith than any malice. Few people refer to a man of 43 with a son of 17 as a "young man." As the plaintiff failed to establish the essential ingredient of express or actual malice, which he had charged in his petition, the trial court committed no error in granting a nonsuit, although the nonsuit was improperly designated a dismissal.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.