Dickey Construction Co. v. Georgia Southeastern Corp.

Court of Appeals of Georgia

Dickey Construction Co. v. Georgia Southeastern Corp.

159 S.E.2d 180, 116 Ga. App. 791, 1967 Ga. App. LEXIS 964

CourtCourt of Appeals of Georgia

DecidedDecember 5, 1967

Docket43202

StatusPublished

This text of 159 S.E.2d 180 (Dickey Construction Co. v. Georgia Southeastern Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dickey Construction Co. v. Georgia Southeastern Corp., 159 S.E.2d 180, 116 Ga. App. 791, 1967 Ga. App. LEXIS 964 (Ga. Ct. App. 1967).

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Opinion

Deen, Judge.

While the so-called Jack Jones forms of pleading were, at the time this petition was filed, sufficient, and while one of the forms, denominated an action for words, requires only that plaintiff allege that the defendant injured and damaged him by “falsely and maliciously saying of and concerning your petitioner the following false and malicious words,” stating them, it is also true that the Jack Jones forms can be used only where, construing the petition against the pleader, it appears that a cause of action is set out. “When . . . other evidentiary matter is incorporated in the petition, from which inferences may legitimately arise adverse to the plaintiff’s right to recover, the sufficiency of the petition to withstand general demurrer does not rest solely upon the statutory form, but must be tested, as petitions generally, by the requirements of Code § 81-101 that the plaintiff set forth his cause of action fully, plainly, and distinctly.” Hurt & Quinn v. Keen, 89 Ga. App. 4 (2) (78 SE2d 345).

The only words alleged in this petition to have been said are: “Concerning the allegation that we took Robert Davis from your work to install sidewalks, we used his services because he was threatening to leave the job for your failure to furnish materials and to pay him. We were authorized by you to pay your subcontractor directly. This was because you lacked the credit necessary to satisfy him.” Obviously, these words, [792]*792couched in the second person, were spoken or written by some person to some other person. Since both parties here are corporations, if we do not assume that they were spoken or written by an agent of the defendant corporation no cause of action is set out. If we do assume they were said by an agent of the defendant, we must also assume they were spoken to an agent of the plaintiff. In such a case there is no publication, and consequently no defamation. Code § 105-705; Walter v. Davidson, 214 Ga. 187 (2) (104 SE2d 113). Nothing in the petition suggests that the words were heard or read by another person. It follows that no cause of action is set out.

Argued November 9, 1967 Decided December 5, 1967. Poole, Pearce & Cooper, William F. Lozier, Robert R. Smith, for appellant. Long, Weinberg & Ansley, Ben L. Weinberg, Jr., John K. Dunlap, for appellees.

Judgment affirmed.

Jordan, P. J., and Quillian, J., concur.

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Deen, Judge.

While the so-called Jack Jones forms of pleading were, at the time this petition was filed, sufficient, and while one of the forms, denominated an action for words, requires only that plaintiff allege that the defendant injured and damaged him by “falsely and maliciously saying of and concerning your petitioner the following false and malicious words,” stating them, it is also true that the Jack Jones forms can be used only where, construing the petition against the pleader, it appears that a cause of action is set out. “When . . . other evidentiary matter is incorporated in the petition, from which inferences may legitimately arise adverse to the plaintiff’s right to recover, the sufficiency of the petition to withstand general demurrer does not rest solely upon the statutory form, but must be tested, as petitions generally, by the requirements of Code § 81-101 that the plaintiff set forth his cause of action fully, plainly, and distinctly.” Hurt & Quinn v. Keen, 89 Ga. App. 4 (2) (78 SE2d 345).

The only words alleged in this petition to have been said are: “Concerning the allegation that we took Robert Davis from your work to install sidewalks, we used his services because he was threatening to leave the job for your failure to furnish materials and to pay him. We were authorized by you to pay your subcontractor directly. This was because you lacked the credit necessary to satisfy him.” Obviously, these words, [792]*792couched in the second person, were spoken or written by some person to some other person. Since both parties here are corporations, if we do not assume that they were spoken or written by an agent of the defendant corporation no cause of action is set out. If we do assume they were said by an agent of the defendant, we must also assume they were spoken to an agent of the plaintiff. In such a case there is no publication, and consequently no defamation. Code § 105-705; Walter v. Davidson, 214 Ga. 187 (2) (104 SE2d 113). Nothing in the petition suggests that the words were heard or read by another person. It follows that no cause of action is set out.

Argued November 9, 1967 Decided December 5, 1967. Poole, Pearce & Cooper, William F. Lozier, Robert R. Smith, for appellant. Long, Weinberg & Ansley, Ben L. Weinberg, Jr., John K. Dunlap, for appellees.

Judgment affirmed.

Jordan, P. J., and Quillian, J., concur.

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159 S.E.2d 180, 116 Ga. App. 791, 1967 Ga. App. LEXIS 964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickey-construction-co-v-georgia-southeastern-corp-gactapp-1967.

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