Signal Oil & Gas Co. v. Conway

191 S.E.2d 624, 126 Ga. App. 711, 1972 Ga. App. LEXIS 1256

• Court: Court of Appeals of Georgia
• Decided: June 19, 1972
• Docket: 47018
• Status: Published

Opinions

Eberhardt, Judge.

1. Plaintiff does not designate the letter as libel in the first count, but she does assert that by it defendant has defamed her character and reputation and has subjected her to public ridicule, hatred and contempt. This language comes from Code § 105-701, defining libel, and thus we must examine the letter and the circumstances to determine whether it is libelous.

We conclude that it is not. Certainly there is nothing in the letter that makes it libel per se. It does not charge that the plaintiff has committed a crime (Estes v. Sterchi Bros. Stores, 50 Ga. App. 619 (1) (179 SE 222)), that she has committed any debasing act which may exclude her from society (Tench v. Ivie, 121 Ga. App. 114 (173 SE2d 237)), or make any derogatory and defamatory statement against her in reference to her trade or profession. Van Epps v. Jones, 50 Ga. 238, 241.

The question, then, is whether the letter may be libelous per quod, that is to say, whether the extrinsic facts developed by the pleadings and the deposition are such that it can be held as a matter of law that plaintiff’s reputation and character were or were not damaged thereby. "To maintain an action for libel, the matter published must either be libelous per se, or it must be so stated that it may reasonably be construed, by innuendo at least, to be libelous.” McCravy v. Schneer’s, 47 Ga. App. 703 (171 SE 391).

A creditor has the right to ask his debtor to pay what he owes, without being subject to an action for libel. McCravy v. Schneer’s, 47 Ga. App. 703, 704, supra. He may direct a letter to the debtor’s employer, seeking assistance in getting the debtor to pay without being subjected to an action for libel. Haggard v. Shaw, 100 Ga. App. 813 (112 SE2d 286). Cf. Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682 (100 SE2d 881).

Does the fact that the credit card was in the name of plaintiff’s husband, and that he may have made all purchases represented by the account, require a different result here? We think not. By plaintiff’s own admission in her deposition, she had been making payment on the account to Signal Oil & Gas from the checking account through which she handled the family finances, and when she decided to cease doing so she told her husband that she would not make further payments to it—but she did not notify Signal Oil & Gas. The reasonable inference to be drawn from these factors was that plaintiff, who was handling the family finances, had either purchased gasoline on her husband’s credit card, or that she had assumed the payment of the account. Having received prior payments from her, the company might reasonably expect to receive further payments from her. It had received no notice from her or otherwise that the practice had been discontinued, other than the failure to receive payment. In this circumstance it was wholly reasonable that the company make inquiry to the employer of the party from whom it had been receiving payment and thus either get the arrearages paid up or get information as to why the account was not being paid.

The letter contains no imputation of insolvency. It did not seek to alter her credit status; indeed, she was not then seeking any extension of credit and the information in the letter was neither used nor intended to be used to impair her credit standing.

This situation is easily distinguishable from that in Southeast Bankcard Assn. v. Woodruff, 124 Ga. App. 478 (184 SE2d 191), where the information concerning the debtor was sent out to many hundreds of merchants who were using the Master Charge credit card system in extending credit to holders of the cards, and consisted of a listing of his name under a column headed "Most Wanted.” We held this sufficiently to implicate that the debtor had wrongfully used the card or his credit in such a manner that it could not be held as a matter of law to be free of libel. Likewise, the situation is distinguishable from that in White v. Parks, 93 Ga. 633 (20 SE 78), which is more like unto that in Southeast Bankcard Assn. v. Woodruff.

We can see no difference between situations where the debtor contended the charge that a debt was owing was false because it had been paid, or because the merchandise had been faulty, and the present situation where it is contended that the charge was false because the merchandise had been purchased by her husband and not by her. In either event there is simply a contention by the debtor that the debt was not owed by him. Particularly is this true under the facts here.

The most that plaintiff claims under this count is that she has been annoyed, has been nervous and upset and subject to headaches. That is not enough to make libel of the letter. Mere annoyance or loss of peace of mind, or even physical illness caused by the alleged defamation is not enough to make it so. Odgers on Libel and Slander (5th Ed.) 378; Mell v. Edge, 68 Ga. App. 314 (3) (22 SE2d 738). In Mell the charge that a letter concerning an indebtedness written to a Congressman, who was in position to cause plaintiff to lose his civil service employment, had caused him to become "worried, ill, and temporarily crazy and [that he] lost twenty-six days from service” was held to give rise to no action for libel.

As to Count 1 defendant was entitled to the grant of a summary judgment.

2. The second count, in our view, is a charge of a wrongful invasion of plaintiff’s right of privacy in the area of her employment relationship with Dupont, and it is controlled by the ruling in Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682, supra. See also Davis v. General Finance &c. Corp., 80 Ga. App. 708 (4) (57 SE2d 225); American Credit Corp. v. U. S. Casualty Co., 49 F. R. D. 314 (N. D. Ga.).

3. For the reasons stated in our discussion of Count 1, no actionable libel is alleged in Count 3 of the complaint, and since it does not, the charge that the feelings, peace and happiness of the plaintiff have been disturbed adds nothing to it. Haggard v. Shaw, 100 Ga. App. 813, 818, supra.

Moreover, no special damages are pleaded. It is necessary to do so where the matter in question is not libelous per se (Mell v. Edge, 68 Ga. App 314, supra), and the Civil Practice Act, though demanding little of the pleader, does require that the petition contain "a short and plain statement of the claim showing that the pleader is entitled to relief,” (emphasis supplied), Code Ann. §81A-108 (a), and "When special items of special damage are claimed, they shall be specifically stated.” Code Ann. §81A-109 (g). This means that they shall be pleaded with particularity.

The cases of Tench v. Ivie, 121 Ga. App. 114, supra, and Peacock Constr. Co. v. Erickson’s, Inc., 121 Ga. App. 544 (174 SE2d 276) were either written in oversight of these statutory requirements, or they are distinguishable because the matters involved in them were libelous per se and needed no pleading of special damages to support the actions. They are not controlling here. Since the statute requires that special damages, if claimed, must be pleaded, without the pleading of them they cannot be proved. No recovery is authorized here. Cf. Hamby v. Edmunds Motor Co., 80 Ga. App. 209 (55 SE2d 743); Barry v. Baugh, 111 Ga. App. 813, 815 (143 SE2d 489, 23 ALR2d 645); Herring v. Pepsi Cola Bottling Co., 113 Ga. App. 680 (149 SE2d 370); Jordan v. J. C. Penney Co., 114 Ga. App. 822 (152 SE2d 786); City Stores Co. v. Henderson, 116 Ga. App. 114 (156 SE2d 818).

Plaintiff urges that the lateral demotion which she received in her employment amounts to a special damage that she is entitled to recover, but we disagree. The facts—her own testimony—reveal that the demotion was attributed, not to the letter which Signal Oil & Gas wrote to Dupont, but to the fact that she was unwilling to take a transfer to Charlotte, N. C., when the office where she was employed was being transferred to that point. She was offered the opportunity to transfer and keep her same job. She preferred to stay in Atlanta and take the job which Dupont had available in the billing department, which remained in Atlanta. The work was not greatly different, nor was the salary.

Defendant was entitled to a summary judgment as to all counts.

Judgment reversed.

Bell, C. J., Hall, P. J., Quillian and Clark, JJ., concur. Pannell, Deen and Evans, JJ., dissent. Stolz, J., not participating.