Thomason v. Times-Journal, Inc.

379 S.E.2d 551, 190 Ga. App. 601, 16 Media L. Rep. (BNA) 2200, 1989 Ga. App. LEXIS 381
CourtCourt of Appeals of Georgia
DecidedFebruary 15, 1989
Docket77790
StatusPublished
Cited by31 cases

This text of 379 S.E.2d 551 (Thomason v. Times-Journal, Inc.) 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.

Bluebook
Thomason v. Times-Journal, Inc., 379 S.E.2d 551, 190 Ga. App. 601, 16 Media L. Rep. (BNA) 2200, 1989 Ga. App. LEXIS 381 (Ga. Ct. App. 1989).

Opinions

Birdsong, Judge.

This is an appeal to the order of the superior court granting appellee’s motion for summary judgment.

On October 23, 1983, appellee published an obituary regarding appellant. Appellant, a Caucasian female, in fact was alive at the time the notice was published and circulated. The obituary read in pertinent part as follows: “Paulette Thomason, 38, of Vinings died Monday. Services will be at 1 p.m. Thursday at Cascade Hill Funeral Home in Atlanta. . . . Survivors include his father, S. Paul Thomason . . . two sisters . . . one brother . . . three sons . . . several nieces and nephews. . . . Cascade Hill Funeral Home of Atlanta is in charge of arrangements.” That night a reporter for appellee discovered that the obituary was false. The next day, appellee published the following retraction: “A funeral notice was run in error Wednesday for a Vinings woman named Paulette Thomason. The Journal learned after deadline that the obituary notice was false.”

Appellant commenced suit alleging in Count 1 that publication of the false obituary constituted “a libel and a slander”; alleging in Count 2 that the reckless publication of the obituary made with total indifference “was negligent and a malpractice on the part of [appellee] newspaper”; and, in Count 3 alleging that this publication “was an invasion” of appellant’s “right to privacy.” Held:

1. Appellant enumerates as her first error that the trial court erred in granting appellee’s motion for summary judgment as to Count 1.

An essential element of libel is that some type of defamatory statement must have been published. See generally OCGA § 51-5-1. As a general rule, the question whether a particular publication is libelous, that is, whether the published statement was defamatory, is a question for the jury. Morrison v. Hayes, 176 Ga. App. 128 (1) (335 SE2d 596). However, if the statement is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge. The trial judge should read and construe the publication as a whole, and thereafter “ ‘ “may find that it is not defamatory, that it is [602]*602defamatory, or that it is ambiguous and the question is one for a jury.” ’ ” Id. In the case sub judice, the trial court concluded as a matter of law that the publication of the false obituary was not libelous. We agree.

In Georgia, a false and malicious defamatory statement to constitute a libel also must tend “to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1. It is generally recognized that “[i]n the absence of special circumstances which add another meaning to the words, it is not defamatory to say that a person is dead.” Prosser & Keeton on Torts (5th ed.), Defamation § 111, p. 774; see 50 AmJur2d, Libel & Slander, § 85. Thus, absent special circumstances, the publication of a false report of death, such as a false obituary, is not libelous per se, and it is not defamatory to say therein that a person is dead. O’Neil v. Edmonds, 157 FSupp. 649 (E.D. Va. 1958); Cardiff v. Brooklyn Eagle, 190 Misc. 730 (75 NYS2d 222); see also Street v. Nat. Broadcasting Co., 512 FSupp. 398, 406, n. 4 (E.D. Tenn. 1977).

However, as a defamatory statement may be made in indirect terms or by insinuation, the publication thereof must be construed as a whole. See Garland v. State, 211 Ga. 44, 46 (84 SE2d 9). In doing so, the courts “will not hunt for a strained construction in order to hold the words used as being defamatory.” Id. In considering whether a writing is defamatory as a matter of law, any relevant extrinsic circumstances will be considered, because “[a] statement may . . . carry a defamatory meaning only by reason of extrinsic fact or circumstances by use of innuendo, inducement and colloquium.” Walters v. Linhof, 559 FSupp. 1231, 1236 (12) (D. Colo. 1983). Moreover, “we will not look at the evidence of what the extrinsic circumstances were at the time indicated in the writing, but at what construction would be placed upon it by the average reader.” Macon Tel. Pub. Co. v. Elliott, 165 Ga. App. 719 (1) (302 SE2d 692), U. S. cert. den. 466 U. S. 971.

Appellant asserts that the published obituary was defamatory, because, in addition to falsely proclaiming her dead, it also falsely stated her sex and age, it omitted any reference to the existence of her surviving mother, thereby broadcasting certain negative connotations as to family relationships, and it implied that she was “to have funeral customs of a black funeral home.” We disagree.

The approximate one year discrepancy in appellant’s age and the erroneous use, on one occasion, of the pronoun “his” in the published obituary are in the totality of the circumstances minor in nature. In this regard, the law has historically declined to take notice of very small or trifling matters. Accordingly, we find that such discrepancies do not give rise to any “special circumstances” warranting departure from the general rule that it is not defamatory to publish a false [603]*603death notice.

The mere failure of appellee to list appellant’s mother in the obituary as a survivor, likewise, does not warrant a departure from the general rule, as this failure to list does not provide any basis for a libel action. Usually, “ ‘an omission of information from a statement admittedly published will not support an action for libel.’ ” Jim Walter Homes v. Strickland, 185 Ga. App. 306, 309 (1) (363 SE2d 834); Comer v. Nat. Bank of Ga., 184 Ga. App. 867 (2) (363 SE2d 153).

Further, like the trial judge, we are not persuaded by appellant’s assertions and argument that “special circumstances” exist in this case, because the funeral home listed in the obituary “has primarily black clientel [sic],” her family “is white,” and she has been “ridiculed and held in contempt” because the funeral home “serves primarily black people whose customs at death are different than whites.” Appellee responds to this indecorous argument, in part, by quoting a passage from Palmore v. Sidoti, 466 U. S. 429 (104 SC 1879, 80 LE2d 421) (child custody case), the tenor of which is: “It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. . . . The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Id. at 433. Suffice it to say that any conduct attributed to appellant or her next of kin regarding the selection of a funeral home was lawful conduct. “It is not libelous to charge a person with the doing of a thing which he may legally and properly do,” Garland v. State, 211 Ga., supra at 48, and in any event mere “[peculiarities of taste found in eccentric groups cannot form basis for finding of libelous inferences.” Fairley v. Peekskill Star Corp., 83 AD2d 294 (445 NYS2d 156 (2)) (1981). Also, the record in this case is entirely silent as to what so-called “customs at death” would be practiced by one racial group that would not be observed by the other.

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Bluebook (online)
379 S.E.2d 551, 190 Ga. App. 601, 16 Media L. Rep. (BNA) 2200, 1989 Ga. App. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomason-v-times-journal-inc-gactapp-1989.