Kelly v. Hall

1. The decision by the Court of Appeals (61 Ga. App. 694) is the law of this case, unless the statute on which it was based (Ga. L. 1939, p. 343) be unconstitutional.

2. Until judgment a plaintiff has no vested right to recover punitive damages.

3. The act of 1939 is not unconstitutional as denying due process of law to a plaintiff in an action to recover punitive damages for publication of articles alleged to be libelous which were published before the enactment of the statute.

No. 13555. JANUARY 15, 1941. This was an action for damages on account of an alleged libel punished by the defendants in newspaper articles with regard to the plaintiff's business transactions with the board of county commissioners. One ground of demurrer to the petition was that the action was prematurely brought, because it was not alleged that the plaintiff had given any written notice to the defendants, "specifying the article and the statements therein which he claims to be false and defamatory, and further stating in said notice what the complaining party claims to be the true state of facts," as required by the act of March 20, 1939 (Ga. L. 1939, p. 343) to be given at least five days before instituting an action of libel. The act further provides: that if it appears upon the trial of any case in which such notice has been given that the article was true or privileged, it shall be governed by existing laws relating to such actions; that truth shall be a complete defense, and a privileged communication, without malice, as now provided, shall be a complete defense; but in all other cases, if it appears on the trial that the article was published in good faith, that its publication was due to an honest mistake of the facts, that there were reasonable grounds for believing that the statements in the article were true, and that within ten days after the service of said notice a full and fair correction or retraction was published in the same editions or corresponding issues of the newspaper, magazine, or periodical in which such article appeared and in as conspicuous a place and type as was said original article, then the plaintiff in such case shall recover only special or actual damages as shown to have been sustained; and that the act shall not apply to any pending action for libel. All but one of the articles was published before the act, but the suit was filed thereafter.

The Court of Appeals, in reversing the decision of the trial court overruling the demurrer to the petition, held that the ground as to the prematurity of the suit should have been sustained; that the act applied to the alleged cause of action, and must be taken as constitutional, where no question as to its constitutionality had been raised in the trial court, but the question was first raised in the Court of Appeals. Before the remittitur from this decision was made the judgment of the trial court, the plaintiff amended his petition by attacking the constitutionality of the act, on the grounds that it violated the 14th amendment of the United States constitution (Code, § 1-815) as to deprivation of property without due process of law, and the similar provision, art. 1, sec. 1, par. 3, of the State constitution (§ 2-103), in that the act took from the plaintiff his right to recover punitive damages for the alleged libel, and that this was a property right already vested in him when the act was passed. The judge dismissed the action on a renewal of the original grounds of demurrer, and on grounds attacking the effect and sufficiency of the amendment making the constitutional attack. 1. The decision of the Court of Appeals in Hall v. Kelly, 61 Ga. App. 694 (7 S.E.2d 290), between the same parties, is the law of this case, that the original petition for damages, on account of an alleged newspaper libel, instituted after the passage of the act approved March 20, 1939 (Ga. L. 1939, p. 343), was subject to demurrer as prematurely brought, since it failed to allege that the plaintiff had given to the defendants written notice with an opportunity to correct or retract the publication in the newspaper where it appeared, as provided for by that act. Accordingly, the judgment of the trial court dismissing the action must be affirmed, unless this act be unconstitutional under the plaintiff's attack, first made in his amendment filed when the remittitur from the Court of Appeals was made the judgment of the trial court; this amendment constituting the sole change in the original petition.

2. It is the general rule that until a judgment is rendered there is no vested right in a claim for damages for a tort which is not connected with or does not grow out of a contractual relation. 16 C. J. 676 (§ 254), and cit. As to a libel, see Abbott v. Tacoma Bank, 175 U.S. 409 (20 Sup. Ct. 153,44 L.ed. 217). Nor is there any rule of law that would preclude the legislature from abolishing a penalty before a judgment has been rendered thereon. Woodburn v. Western Union Telegraph Co.,95 Ga. 808, 809 (23 S.E. 116); Bank of St. Mary's v. State,12 Ga. 475; 16 C. J. S. 677 (§ 255). With apparently no adjudicated exceptions, it is the rule that until judgment is rendered a plaintiff has no vested right to punitive damages, and accordingly the right to such damages may be taken away by a statute taking effect even after a verdict but before judgment has been rendered thereon. 16 C. J. S. 677 (§ 254), and cit.; 12 C. J. 973 (§ 555), and cit.

3. Under the preceding rules, the fact that the alleged libelous articles were published before the adoption of the act referred to, limiting the plaintiff's previously-existing right to recover punitive damages, did not render the law unconstitutional as violating Federal and State provisions against the deprivation of property without due process of law (14th Federal amendment, Code, § 1-815; art. 1, sec. 1, par. 3, State constitution, § 2-103), with respect to an action which was instituted after the approval of the act. The court did not err in dismissing the action.

Judgment affirmed. All the Justices concur.