Barry v. Baugh

Russell, Judge. Where special damages are not averred, an action for slander must fall within one of the categories enumerated in Code § 105-702, and the plaintiff here cannot recover for slander unless the words constitute “charges made against another in reference to his trade, office, or profession, calculated to injure him therein." The defendant doctor in the course of a telephone conversation with the county ordinary relative to having the plaintiff’s husband committed to a mental institution, stated that the plaintiff, a nurse, was also crazy, which fact caused the plaintiff to become nervous and upset “knowing that if word got out that Dr. Baugh said she was crazy that her job, reputation, and livelihood would be in jeopardy.” The plaintiff failed, however, to allege that the words did in fact injure her professional reputation or that they were spoken in reference to it, and the facts stated show they were not spoken in that context. Defamatory language may injure one’s business reputation though not intended to do so, and it becomes actionable, or it may be spoken in reference to one’s professional reputation and be actionable although no actual damage results. But neither situation obtains here. In Van Epps v. Jones, 50 Ga. 238, the court held that it was not slanderous to say falsely of an attorney that he would not pay his bills, stating: “The defect in the declaration is, that it does not charge that the words were used in reference to plaintiff’s profession. . . The authorities indicate that the charge must be of something that affects his character generally in his trade. A particular act may or may not do this, and the matter would depend on the colloquium. But the authorities are uniform that the words must be charged to have been used in reference to one’s trade or profession. The speaker must have had the trade or profession of the plaintiff in view, and utter the words in reference to it, as if he should say of a grocery merchant, he keeps false weights, or of a lawyer, that he won’t pay his clients the money he collects for them: Starkie on Slander, 109, 126. It would be entirely a new ground of action to hold that it was actionable to utter of a lawyer that he refused to pay a particular debt, there being nothing in the words or in the colloquium to indicate that the speaker was alluding to him as a lawyer.” See also Mell v. Edge, 68 Ga. App. 314 (5) (22 SE2d 738); Rogers v. Adams, [815] 98 Ga. App. 155 (2) (105 SE2d 354). Nothing in the words spoken or the colloquium indicates that the defendant was alluding to the plaintiff in her capacity as a nurse; on the contrary, the conversation dealt with the plaintiff’s concern over the mental incompetence of her husband. The petition failed to allege a cause of action for slander. This case squarely presents the question of whether oral abuse, nothing more appearing, is actionable in Georgia, the petition including allegations that the abuse is false, wilful, wanton, malicious and intentional (but not an allegation that it was said for the purpose of injuring the plaintiff) and also that the plaintiff’s emotional response was so great that she suffered insomnia and nausea in consequence. In Atkinson v. Bibb Mfg. Co., 50 Ga. App. 434 (178 SE 537) it was said that “the mere cursing of another (not amounting to slander) is not a violation of a legal right.” The annotation in 15 ALR2d 108 shows that such a cause of action exists in some States. In Alabama, Minnesota, Mississippi and Virginia it exists by statute, probably because at common law, as Lord Mansfield stated, “for mere general abuse spoken, no action lies.” Thorley v. Kerry, 4 Taunt 355, 128 Eng. Reprint 367. Recovery has been allowed in Georgia cases for spoken abuse in connection with other factors. Frequently there is a violation of the right of privacy or other trespass, as where a bill collector bursts into a home, and especially where physical consequences such as a miscarriage result from the act. Into this category fall Interstate Life &c. Co. v. Brewer, 56 Ga. App. 599 (193 SE 458); s.c., p. 720 (193 SE 909); Gardner v. New-nan Hospital, 58 Ga. App. 104 (198 SE 122); Atlanta Hub Co. v. Jones, 47 Ga. App. 778 (171 SE 470); Anderson v. Buice, 69 Ga. App. 265 (25 SE2d 96). Where the defendant is a railroad, street car, telegraph company or the like, abusive words, often coupled with a wrongful ejection of a passenger, are held actionable as a breach of the public service corporation’s duty to protect its customers. Wolfe v. Georgia R. &c. Co., 2 Ga. App. 499 (58 SE 899); Southern R. Co. v. Huckaba, 14 Ga. App. 311 (80 SE 697); Southeastern Greyhound Corp. v. Graham, 69 Ga. App. 621 (26 SE2d 371); Young v. Western & A. R. Co., 39 Ga. App. 761 (148 SE 414). In the leading case, Cole v. Atlanta & W. P. R. Co., 102 Ga. 474 (31 SE 107) it was held that the [816] conduct on the part of the employees, itself wilful and wanton, supports an action for negligence against the railroad as the breach of a duty the corporate defendant assumed under its contract to provide service, and under any other circumstances, fright should be regarded as mere emotion, and not sufficiently substantive to be the basis of a recovery of damages. The problem arises from a confusion between what constitutes a violation of a legal right and what damages may be recovered. See Judge Sutton’s dissenting opinion in Anderson v. Buice, 69 Ga. App. 265, supra. If a tort is wilfully committed, then under Code § 105-2003 damages may be recovered for wounded feelings alone. If no tort is committed, the fact that there are wounded feelings, humiliation, and fright, will not give rise to a cause of action. It is indeed disturbing to the tranquillity of the average person to be misjudged either as to his character, his intelligence, his ability, or his sanity, and to be falsely accused of being lacking in any of these qualities is generally upsetting, especially where the speaker is a person whose position is such that he is in a position to harm the person attacked by causing loss of esteem or employment. This is a moral wrong which may be and often is punished by society through adverse public opinion and avoidance of a person known to have such a character. Has society in Georgia also undertaken to punish such behavior through legal means; that is, has it guaranteed to the citizen as a private right immunity from the harsh judgments of others expressed in abusive or defamatory words? The answer is generally “yes” where the opinion is made known to a third person, where it is false, and where it otherwise constitutes slander. Otherwise, in the absence of special damages, mere billingsgate, insult, and contemptuous language are not sufficient alone to state a cause of action. As pointed out in the ALR Annotation, supra, “life would be intolerable if one must be on one’s guard to do nothing which might be expected to offend the sensibility of another.” The petition failed to set out a cause of action, and the trial court did not err in sustaining the general demurrer. Judgment affirmed. Bell, P. J., Frankum, Jordan, Hall, Eberhardt and Parnell, JJ., concur. Felton, C. J., and Nichols, P. J., dissent.