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Libel. Savannah City Court. Before Judge Alexander. January 13, 1960.
FELTON, Chief Judge.
NICHOLS, Judge, concurring specially.
In this action for newspaper libel there are questions for the jury to determine whether the language in three editorials written of and concerning the plaintiff tended to injure his reputation and subject him to public hatred, contempt or ridicule. This court cannot say as a matter of law that the statements made could not have been understood by the average reader to charge the plaintiff with immoral and reprehensible conduct. The court did not err in overruling the general demurrer to the petition.
Spence M. Grayson sued the Savannah News-Press, Inc., to recover damages for three allegedly libelous editorial publications by the defendant. The first of these publications is alleged to have been made by the Savannah Morning News on September 9, 1958, entitled "Only Promises". This editorial is as follows: "Like another well-known thoroughfare, the road to Tybee has been paved time and again with good intentions. But that's about all. The latest delay--and we've been specializing in delays so far as our highway needs are concerned--involves the proposed new $100,000 bridge over Gray's Creek. This is the bridge that Spence Grayson went to Atlanta and got to prove how easy it was for him to get the State to look after Chatham County. Gov. Griffin said there was nothing to it at all, the bridge was needed, and he would transfer the funds necessary and have one built forthwith. Mr. Grayson announced these glad tidings to the people of Chatham county, everyone said good, fine, it's about time, or something to that effect--and set back to wait for the new bridge to materialize. The last word from Atlanta, however, is that there will be a slight, er--you guessed it--delay. It seems that the Highway Department engineers put a speed-up tag on the work order in order to have the bridge completed by next April 1, allowing only 120 working days construction time. Thus, only one bid was received--so the project was knocked out. Contractors were afraid to bid because they would have to work too fast to get through, the engineers said. Now the project will have to be advertised again, this time with a more generous time allowance, which will run the construction completely through next summer and into September. There seems to be no middle ground between April and September. At the same time, it was announced that a smaller bridge over Betz Creek on the Wilmington-Tybee road would also be delayed. Why? The bond market, said Highway Chairman Roy Chalker, isn't right for the project at this time. Meanwhile, where was our expeditor, who is supposed to anticipate the causes of delay and sidestep them? The pattern is familiar--it follows the helter-skelter system of everyman-for-himself when it comes to presenting Chatham County's needs to the State, and it leaves our people wondering whether the bridge was intended to get motorists over Gray's Creek or Mr. Grayson over his campaign for the legislature." The petition alleged with reference to this editorial that the purpose and intent of it was to maliciously and wilfully charge petitioner with fraudulently inducing the Governor of Georgia to make him
a false public promise for the purpose of assisting petitioner's campaign for nomination as a representative from Chatham County to the General Assembly of Georgia. The second editorial alleged to have been published October 16, 1958, entitled "Gray's Creek Bridge" is as follows: "At long last the State has entered into a contract for the replacement of the dangerous and dilapidated bridge across Gray's Creek on Tybee Road. The Highway Department Wednesday signed a contract for construction of a new span to cost $142,579. We are all happy that this highway improvement is being provided. We must confess, however, to being somewhat puzzled by the manner in which the announcement was released by Highway Board Chairman Roy F. Chalker. In telegrams to local news media, Mr. Chalker said: 'At the request of Spence Grayson, Gov. Griffin has just signed a budget amendment giving $157,000 to Chatham County for immediate construction of Gray's Creek Bridge. The contract has been awarded to the Scott Company and work should begin within 30 days.' The question that arises is: What would have happened if Mr. Grayson had not requested the Governor to build the bridge? Of course, we appreciate Mr. Grayson's interest in the matter, but the need for a new bridge at Gray's Creek is sufficient within itself to warrant the State's action. In fact the State should have replaced this bridge long ago--the new bridge should have been the result of a crying necessity in the interest of highway safety and convenience for tens of thousands of Georgia taxpayers, not a 'personal favor' by the Governor to a friend as implied in Mr. Chalker's announcement. Certainly Chatham County contributes far more money into the coffers of the State Highway Department and the State Treasury than has come back to provide adequate road and highways for this area. We are years behind in meeting our needs and we are far behind most other counties in this matter. Bridges and highway improvements for Chatham County should be considered a neglected obligation by the State to be provided as rapidly as possible, not as political favors to an individual, a political party, or a group. We are aware that the Gray's Creek bridge will cost more than the Governor's original estimate, but this error in arriving at the projected cost did not automatically negate the need for the bridge. The money was available from the Governor's surplus funds, the estimate should have been revised and the bridge built on the basis of the needs without further ado. Georgia's road and highway requirements cannot be met adequately and fairly if vitally needed projects are to be dependent on the vagaries of political cronyism." With reference to the second editorial the petition alleged that it sought to subject the Governor and petitioner to public disfavor and contempt as being guilty of improper conduct and that the editorial was designed and intended to expose petitioner to public prejudice and disrespect and to deprive him of public confidence and respect. The third editorial, alleged to have been published July 28, 1959, entitled "Spence Grayson Bridge? By All Means", is as follows: "Ever alert to the needs of Chatham County, the county commission has now come forward with one idea that should win immediate and widespread popular approval. It would be a fine thing, the commissioners say in a resolution adopted at their last meeting, for the State to name the Gray's Creek bridge for one of their longtime pals, Mr. Spence Grayson. This is indeed a jolly suggestion, and even though it might be successfully argued that there are one or two more urgent matters needing the attention of the county and State governments, the Morning News is hopeful that they will pursue this one at full throttle. The Spence Grayson Bridge. We can see it now, with the name emblazoned in foot-high letters, standing as a lasting monument to the pork barrel politics that has kept Chatham's road program 20 years behind the times--and behind the rest of the State. Sitting there astride Gray's Creek in all its splendid majesty, the Spence Grayson Bridge would serve as a constant reminder of the kind of backdoor, back-scratching politics which:--Got us a bridge costing more than $150,000 when a $30,000 culvert would have met the need. -- Got us a bridge that wasn't on any agreed priority list given to the State Highway Department -- after the city and county had agreed to get together on priorities and had submitted a list of needs. -- Undercut the work of an expediter who had been hired by the city and county to present a unified picture. -- Used the State road program to try to insure
Code 105-703 provides: "Any false and malicious defamation of another in any newspaper, magazine, or periodical, tending to injure the reputation of any individual and expose him to public hatred, contempt, or ridicule, shall constitute a newspaper libel, the publication of such libelous matter being essential to recovery." The publishing company contends that the editorials are not libelous per se in that they are fair comments on the works of a political candidate and that they cannot be construed to charge immoral or reprehensible conduct on their face and that since no innuendo is alleged no case is alleged since no special damages are alleged. While this case is a temptation to expatiate on the subject of libel, it is to us a comparatively simple one. It seems to us that the simple question is: could each editorial have been understood by the average reader to charge the plaintiff with such conduct as to tend to injure the reputation of the plaintiff and expose him to public hatred, contempt or ridicule? Cases from other jurisdictions are interesting, but we need search no further than our own precedents to find the answers to problems posed in this case. To sustain the contention of the defendant, this court would have to hold as a matter of law that the words used are not actionable per se, that is, that they did not tend to injure the plaintiff's reputation. Mell v. Edge, 68 Ga. App. 314 (22 S. E. 2d 738). This court cannot say as a matter of law that the editorials do not tend to injure the plaintiff's reputation in the minds of the average reader of the editorials. What the reader understood the editorials to mean, in this case, is a jury question. Augusta Evening News v. Radford, 91 Ga. 494 (17 S. E. 612, 20 L. R. A. 533, 44 Am. St. Rep. 53); Horton v. Georgia Co., 175 Ga. 261, 274 (165 S. E. 443); Atlanta Journal Co. v. Doyal, 82 Ga. App. 321 (60 S. E. 2d 802); Yelle v. Cowles Publishing Co., 53 A. L. R. 2d 1 and annotation following; Davis v. Macon Telegraph Publishing Co., 93 Ga. App. 633 (92 S. E. 2d 619). As to the first editorial, this court cannot say as a matter of law that it did not accuse Mr. Grayson as well as the Governor of making a false promise to the people of Chatham county to obtain the bridge for the sole purpose of promoting Mr. Grayson's campaign for the legislature. As to the second editorial it is doubtful whether it in and of itself could be understood to materially tend to injure Mr. Grayson's reputation but in connection with the first editorial we think it is a jury question whether the charge that the obtaining of the bridge was due to political cronyism tends to be injurious to plaintiff's reputation by a repetition of the first charge, if the first was. in fact such a charge as alleged. As to the third editorial there is a question for the jury whether it charged Mr. Grayson with participating in the flagrant waste of more than $120,000 of public money. The additional contention of the defendant that the editorials are solely fair comment on the works and political conduct on the part of a candidate for office and that they cannot be said by a jury to injure the reputation of the plaintiff as an individual are not well taken. The Supreme Court of this State has held in effect that the fact that one is in politics does not remove his humanity. Often comment upon one's political actions imputes immorality or lack of integrity to the individual. It is a false philosophy to frame one code of morals, character and integrity for the person who seeks public office and another for those outside of politics. Decent and self-respecting citizens should be encouraged to seek public office rather than be deterred by such a false philosophy.
The court did not err in overruling the general demurrer to the petition.
While I agree with everything that is said in the majority opinion of my colleagues with reference to the first two editorials as published by the defendant in this case, I cannot agree with the conclusion and holding in the majority opinion with reference to the third editorial under consideration in this case. Code 26-4201 provides: "Any two or more persons who shall conspire or agree to defraud, cheat, or illegally obtain from the State, or any county thereof, or from any public officer of this State, or any county thereof, or any person exercising the duties of any such office, any property belonging to the State or county, or under the control or possession of said officers as such, shall be punished by imprisonment and labor in the penitentiary for not less than two nor more than 10 years." The third editorial, exhibit "C", not only imputes to the plaintiff a lack of proper conduct on his part in that he was actuated by corrupt, selfish, personal political motives, but more than that, the language used charging him with inducing and participating with State officials in a "flagrant waste of $120,000" of public funds, constituted and amounted under section 26-4201, supra, to charging him with the commission of a crime.
Although it might be argued that the acts and doings the editorial charges the plaintiff with having committed, and which form the basis for this law suit might not be sufficient to support an indictment, by a grand jury under 26-4201, supra, nevertheless the law of libel does not contemplate nor require the same technical ingredients that are necessary for an indictment, by a grand jury, to be present in a newspaper article in order for same to be libelous per se, where, as in this case, the language employed in the editorial charges the plaintiff with having violated a criminal statute. It is libel per se to charge a person with a crime. Atlanta Journal Co. v, Doyal, 82 Ga. App. 321 (60 S. E. 2d 802); Davis v. Macon Telegraph Publishing Co., 93 Ga. App. 633 (92 S. E. 2d 619); Yelle v. Cowles, 46 Wash. 2d 105 (278 P. 2d 671, 53 A. L. R.2d 1).
Accordingly, I am of the opinion that the third editorial published by the defendant was libelous per se.
Lewis, Wylly & Javetz, Emanuel Lewis, contra.
Stephens & Gignilliat, Thomas H. Gignilliat, for plaintiff in error.
Saturday May 23 00:21 EDT

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