Willis v. United Family Life Insurance

Beasley, Judge,

concurring in part and dissenting in part.

I respectfully dissent. Defendant United Family Life has not shown as a matter of law that Willis’ complaint, which incorporates the two letters as exhibits, fails to state a claim upon which relief can *667be granted on the claim of libel pursuant to OCGA § 51-5-1. On United Family Life’s motion, Willis’ pleadings “must be construed most favorably for [him] and all doubt resolved in [his] favor. [Cit.]” Quetgles v. City of Columbus, 264 Ga. 708 (450 SE2d 677) (1994).

Because the complaint is not sworn, the letters are not evidence and thus the motion brought under OCGA § 9-11-12 (b) (6) was not converted into one for summary judgment. SunAmerica Financial v. 260 Peachtree St., Inc., 202 Ga. App. 790, 797 (3) (b) (415 SE2d 677) (1992). Willis has not had an opportunity to submit any evidence at this stage. The question is whether a jury is precluded from finding the letters or either of them libelous. This should not be decided only on a consideration of the letters taken out of context. “A publisher of matter is responsible, not only for the actual words published, but for the innuendo that may arise from such words. Words apparently innocent may convey a libelous charge when considered in connection with the innuendo and circumstances surrounding the publication.” Montgomery v. Pacific & Southern Co., 131 Ga. App. 712, 715 (5) (206 SE2d 631) (1974), overruled on other grounds, Diamond v. American Family Corp., 186 Ga. App. 681, 684 (1) (368 SE2d 350) (1988). “ ‘Words harmless in themselves may become libelous when the circumstances under which they are published are such as to convey a covert meaning to the reader reflecting injuriously upon the reputation of the person to whom they refer.’ ” Brandon v. Arkansas Fuel-Oil Co., 64 Ga. App. 139, 144 (12 SE2d 414) (1940). The office of innuendo is explained in Reece v. Grissom, 154 Ga. App. 194, 195 (1) (267 SE2d 839) (1980).

When a writing is capable of two meanings, one libelous and one not, “it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read.” (Citations and punctuation omitted.) Southern Co. v. Hamburg, 220 Ga. App. 834, 838 (1) (470 SE2d 467) (1996).

Willis claims the evidence would show that the policyholders learned that their policies lapsed because Freida White had misappropriated their premiums, and that United Family Life had terminated her as an agent for this reason. Willis further alleges that White initially worked out of the funeral home, of which he was the second-generation owner and operator, and from which he also sold United Family Life insurance as a licensed salesman. Many of White’s clients were referrals and were introduced to her by Willis, which was another connection between the two. The letters, written to rectify the misappropriation known to the recipients, did not dissociate the funeral home or its owner from the theft but instead treated them together with the thief. It would have been a simple matter to *668isolate White as the wrongdoer and her independent activity as the sole reason for the changes in procedure.

Willis also alleges that shortly after the thefts were discovered by the policyholders and United Family Life, the latter wrote a general letter to the policyholders. It stated that based on the company’s records, the policyholders may have been paying premiums to Freida White or “to” a local funeral home. In capital letters, the company warned that the policyholders “SHOULD NOT PAY ANY PREMIUMS TO A LOCAL FUNERAL HOME, MS. WHITE OR ANYONE ELSE.” Instead, they were to be mailed directly to the home office. Two days later, it is alleged, a second letter told the policyholders that their records were being relocated from the “Willis Peoples Funeral Home” to the home office and that all future premium payments should be mailed there “[effective immediately.” It also assured policyholders that the relocation of records would not affect the “excellent service” of the insurance company. In fact the records had been moved in 1989 as a result of the company’s opening an office in Fort Valley.

A policyholder receiving these letters, knowing the other facts alleged, could infer that Willis refused to relinquish records in 1989 and had retained some which by company action were finally being moved to the home office. Such a policyholder could also infer that Willis had continued to collect premiums at the funeral home since 1989, just as White had, despite the company’s change of practice in 1989. What was allegedly written, in the context of what had transpired previously, could be found libelous by innuendo. “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) (1933). “The pivotal questions are whether [the] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.” Eidson v. Berry, 202 Ga. App. 587, 588 (415 SE2d 16) (1992). United Family Life does not contest the fact that Willis had nothing to do with its agent White’s misdeeds.

Considering the circumstances alleged, I cannot conclude that “the published words are incapable of any other construction other than that they are not defamatory of the plaintiff” when read from the viewpoint of a policyholder. (Citations and punctuation omitted.) Southern Co., supra at 838 (1). The meaning of the two letters, particularly taken together in light of what preceded them, is not “so unambiguous as to reasonably bear but one interpretation” insofar as Willis and his funeral home are concerned. (Citations and punctuation omitted.) Id. A jury could reasonably find, if what Willis alleges *669is proved by competent evidence, that the letters snare him into the misappropriation problem with White, imply that he has been accepting premiums at the funeral home even though the practice was to stop in 1989, and further imply that he has covered up misappropriation by keeping the company’s records in the intervening years.

Decided May 13, 1997 Reconsideration denied June 4, 1997 Before Judge Goger. Adams & Jordan, Virgil L. Adams, for appellant. Alston & Bird, Jay D. Bennett, Cynthia L. Counts, for appellee.

“Though a defamatory charge may be made in indirect terms or by insinuation, the publication must be construed as a whole, and the words charged as being defamatory are to be taken in their plain, natural, and ordinary meaning, to be understood by the court as other people would understand them, according to the sense in which they appear to have been published and the idea they were meant to convey.” Garland v. State, 211 Ga. 44, 46 (84 SE2d 9) (1954), a criminal case but citing civil cases for these principles. The real meaning of ambiguous expressions can be “explained by reference to the circumstances.” Central of Ga. R. Co. v. Sheftall, 118 Ga. 865, 867 (1) (45 SE 687) (1903). The question of “the meaning and import of the language contained in the publication[s]” is within the province of the jury. Park & Iverson v. Piedmont &c. Life Ins. Co., 51 Ga. 510, 514 (1874).

I concur in affirmance of dismissal of the remaining claims.

I am authorized to state that Presiding Judge McMurray and Judge Eldridge join in this opinion.