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SHELEY v. SOUTHEASTERN NEWSPAPERS INCORPORATED et al.
34286.
Libel; from Richmond Superior Court-- Judge Anderson. August 12, 1952.
FELTON, J.
The portion of the article sued on as being libel was capable of being understood in a double sense, the one criminal and the other innocent, and the plaintiff alleged by innuendo that it was published as being the former; therefore the petition alleged a good cause of action as against a general demurrer.
C. D. Sheley sued Southeastern Newspapers Inc. and Newspaper Printing Corporation for damages for an alleged libel. The petition alleged substantially: that the defendants published, printed, and circulated an issue of The Augusta Chronicle under the date of Saturday morning, February 9, 1952, which issue carried an article, a copy of which is attached as Exhibit A; that a portion of such article read as follows: "Homes of Rupert Langford, former superintendent of schools and now deceased, a Mr. McNabb, Mr. Templeton and C. D. Sheley, now principal of John Milledge School, were alleged to have been painted by the board's paint crew at taxpayers' expense"; that the plaintiff is the C. D. Sheley referred to, and that he is now principal of John Milledge School in Augusta and has been for a period of four years; that prior thereto the plaintiff was principal of the Houghton Grammar School in Augusta for a period of two years; that the plaintiff has spent his entire life in an effort to live honestly and obtain the respect of the community where he and his family reside and where he serves as a superintendent of a public school; that the statement to the effect that his house had been painted by the Board of Education with Board of Education paint at the taxpayers' expense was untrue, false, and malicious; that the plaintiff did obtain the services of W. R. Nickles to paint his home, and Nickles did paint his house during his spare hours which he was not employed by the Board of Education, the work being performed on Saturdays, and during his off-hours when he was not working for or supposed to be working for the Board of Education and that prior to said painting he entered into a contract with the said Nickles to paint the house and furnish the paint for $225; that the work was performed in September 1951, and the plaintiff paid Nickles $225 in accordance with the contract; that the statement to the effect that the plaintiff's house was painted by the board's crew at the taxpayers' expense was absolutely untrue, false, unfounded, and malicious, and was made with complete disregard of the true facts, and that no effort was made by the defendants to obtain the true facts from the plaintiff or any other reliable source; that the false statement was not a portion of any report from the so-called "Watchdog Committee" of the grand jury or the grand jury itself, but was simply a statement falsely and maliciously made by the defendants; that the statement charged the plaintiff with being a thief and charged him with violating Code 26-2602; that the statement charged the plaintiff with being a common cheat and swindler and held him out to the public generally as being a common cheat and swindler and as violating Code 26-7410; that the intention was to charge that the plaintiff had had his personal home and dwelling painted by a paint crew of the Richmond County Board of Education, and that the paint was furnished by said board at the taxpayers' expense, and that thus the plaintiff had obtained said services and paint for his personal gain from the treasury of the Board of Education; that the plaintiff was humiliated, embarrassed, and insulted, and his reputation was practically destroyed by the false and malicious charges, and that the charges accused the plaintiff of violating the criminal statutes of this State involving moral turpitude of the most serious nature, all to the humiliation, embarrassment, and damage of the plaintiff, that, if the defendants had exercised the slightest interest in printing the truth, or in sparing the plaintiff's feelings, they could easily have contacted the plaintiff before making, uttering, and issuing such false publication, and any effort on the part of the defendants would have resulted in their being informed that the charges they were preparing to publish were entirely unfounded and untrue.
"This committee was appointed by a Richmond grand jury early this year to continue a probe of the Richmond Board of Education. A report of the committee's activities was given the jury Tuesday and a recommendation was made by the jury that information in the report be made public.
" 'Our examination of the various records . . . brought to our attention what appears to us to be an extravagant amount of paint bought and allegedly used by the paint crew employed by the board', the report states on page 23.
"Foreman of the paint crew is named as W. R. Nickles, brother of T. M. Nickles, president of the school board for approximately 10 years, who went out of office this year. J. C. Norrell, brother-in-law of T. M. Nickles, is named as another member of the paint crew along with J. E. Nickles, nephew of T. M. Nickles.
"The 'watchdog' committee drew attention to testimony from W. R. Nickles that 'there has been no accounting whatever of the quantity of paint and allied materials bought by the Board of Education.'
"In other words, the report brings out that vast quantities of paint have been purchased with money from the pockets of the taxpayers, but where the paint went does not seem to be a matter of record.
" 'Mr. W. R. Nickles admitted that it was his custom to sell paint, although Mr. Nickles claimed that this paint was obtained by him at a discount from local concerns, and that he did not make any money off such transactions,' said the report.
"Members of the paint crew told the committee they bought paint from their foreman, for private jobs and this paint was the same brand as used by the board. Testimony brought out that the paint was even delivered in Board of Education trucks, according to the report.
"Homes of Rupert Langford, former superintendent of schools and now deceased, a Mr. McNabb, Mr. Templeton and C. D. Sheley, now principal of John Milledge School, were alleged to have been painted by the board's paint crew at taxpayers' expense.
"Also the Methodist and Baptist churches in Blythe were reported to have been painted by the same crew.
" 'The evidence before us is that on all of these jobs, no brand of paint whatever was used except the same as used by the Board of Education on any of this private work,' the report states.
"The report quotes foreman Nickles and members of the paint crew as admitting that school board equipment and materials have been used on private jobs and that the crew members were permitted to take paint brushes and other equipment home with them to be used on private jobs.
"The 'watchdog' group reported what appeared to be an attempt by the foreman to cover the brand . . ." Here the article was continued to another page which was not made a part of the exhibit.
Inserted in the body of the article was the following: "As a means of clarifying the 'Watchdog Committee' report, presenting it in a more understandable form to its readers, The Chronicle today begins a series of news and interpretive stories based on the report, rather than presenting it in installment form as was started. Shortly the entire report will be published in a single edition as a legal advertisement."
A general demurrer to the petition was sustained, the action was dismissed, and the plaintiff excepts.
The defendant in error contends that neither the article nor any portion thereof could in any way be so construed as to libel the plaintiff. We do not agree. The article could be interpreted as meaning that the plaintiff's house was painted knowingly without expense to the plaintiff and at the expense of the taxpayers, or it could have been interpreted to mean that, unknown to the plaintiff and due to no fault on his part, the painting was ultimately paid for by the taxpayers. The plaintiff alleges by innuendo that the article meant the former. He alleges that the article charged him with being a common cheat and swindler and so held him out to the public and thus charged him with violating 26-7410 of the Code. "Where, however, the words are ambiguous and capable of being understood in a double sense, the one criminal and the other innocent, the plaintiff may by proper allegation aver the meaning with which he claims that they were published and the jury may find whether they were published with that meaning or not. Rubenstein v. Lee, 56 Ga. App. 49 (192 S. E. 85); Park & Iverson v. Piedmont & Arlington Life Ins. Co., 51 Ga. App. 510; Colvard v. Black, 110 Ga. 642 (36 S. E. 80); Beazley v. Reid, 68 Ga. 380; Michael v. Bacon, 5 Ga. App. 332 (63 S. E. 228); Holmes v. Clisby, 121 Ga. 241 (48 S. E. 934, 104 Am. St. R. 103)." Southeastern Newspapers v. Walker, 76 Ga. App. 57, 60 (44 S. E. 2d, 697).
Contrary to the defendant in error's contention, it was not necessary for the plaintiff to set out in his petition the report of the "Watchdog Committee." He alleges that "said false statement was not a portion of any report from the so-called 'Watchdog Committee' of the grand jury or the grand jury itself, but was simply a statement of the defendants' falsely and maliciously made." This is not a conclusion but an allegation of fact, which, of course, the plaintiff must prove in order to prevail, but he is not required to allege in support of that alleged fact the evidence which he is to use to prove such allegation. If the defendants desire to show that the statement was a fair and honest report of a portion of the committee report, such would be a matter of defense.
The petition alleged libel per se and alleged an injury to the plaintiff's reputation; therefore, all allegation of special damages was unnecessary. Brandon v. Arkansas Fuel-Oil Co., 64 Ga. App. 139, 146 (12 S. E. 2d, 414); Weatherholt v. Howard, 143 Ga. 41 (4) (84 S. E. 119).
In the instant case and in like cases, malice on the part of the defendants is presumed. Horton v. Georgian Co., 175 Ga. 261 (1) (165 S. E. 443); Code, 105-706.
The petition alleged a good cause of action for libel, and the court erred in sustaining the general demurrer and in dismissing the action.
Hull, Willingham, Towill & Norman, Curry & Curry, contra.
Harris, Chance & McCracken, for plaintiff in error.
DECIDED NOVEMBER 8, 1952.
Saturday May 23 05:01 EDT


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