1. Where in an action for libel the publication sued on is ambiguous and capable of being understood in a double sense, the one criminal and the other innocent, it is a question for the jury to determine whether or not the publication is susceptible to the criminal or the innocent interpretation under all the facts and attendant circumstances of the publication.
2. The intention of the defendant in publishing the alleged libel is immaterial unless the publication be privileged or unless the words, which are otherwise entirely innocent and unambiguous, are alleged to contain a covert meaning.
3. The communication from the person who was allegedly libeled calling attention to the inaccuracies of the publication was a sufficient compliance with the act of 1939 (Ga. L. 1939, p. 343, Code, Ann. Supp., § 105-712); and it does not appear from the petition that the retraction as contemplated by said act was made, and in the manner required, and therefore the allegation of special damages is not required.
2. Counsel for the defendant insist that the plaintiff must have alleged that the defendant intended the publication to be understood in the guilty sense attributed to it by the plaintiff. We do not apprehend this to be the law. "The sense in which the publisher meant the language cannot be material. The dicta which apparently sanction such a rule will, on comparison with their context, be found in reality to be, not what did the defendant mean but what properly he may be taken to have meant. How might the language be understood by those to whom it was published? It cannot, therefore, be correct to say that the language is to be construed in the sense in which the publisher intended it to be understood. `When a party has made a charge that clearly imputes a crime, he cannot afterwards be permitted to say, I did not intend what my words legally imply.'" Townshend on Slander and Libel (2d ed.), p. 176, § 139. "In an action for defamation it is immaterial what meaning the speaker intended to convey. He may have spoken without any intention of injuring another's reputation, but if he has done so he must *Page 62 compensate the party. He may have meant one thing and said another; if so he is answerable for so inadequately expressing his meaning. If a man in jest conveys a serious imputation he jests at his peril. Or he may have used ambiguous language which to his mind was harmless, but to which the bystanders attributed a most injurious meaning; if so he is liable for the injudicious phrase he selected. What was passing in his own mind is immaterial save in so far as his hearers could perceive at the time. Words cannot be construed according to the secret intent of the speaker. `The slander and the damage consist in the apprehension of the hearers.'" Newell, Slander and Libel (4th ed.), p. 301, § 264. "Intent, except as a part of express malice, is immaterial in libel. When the press issues a story, it accepts full responsibility for any error or mistake which results in injury to reputation. According to the opinion stated in Hatfieldv. Gazette Printing Co. [103 Kan. 513 (175 P. 382)] `the law looks to the tendency and consequences of a publication, rather than to the intention of the publisher.'" Thayer, Legal Control of the Press (1944), p. 201, § 35. "The rule is, that, unless the communication be a privileged one, the bona fides of the motive, purpose and intent of the person publishing the libel is not involved." Estes v. Thomas, 23 Ga. App. 301 (98 S.E. 101). In Western Union Telegraph Co. v. Pritchett, 108 Ga. 411 (34 S.E. 216), the court had this to say: "As a matter of defense, counsel for the defendant company offered to prove that, in making use of the term `delinquent' it intended to convey a meaning somewhat less prejudicial to the plaintiff's character than that term, if given its ordinary import, would seem to suggest. . . In the absence of proof going to show that the person to whom the libelous communication was addressed understood this word in the restricted sense intended by the writer thereof, we are wholly at a loss to perceive what relevancy the evidence [the writer's intention] thus offered had upon the issue in the case." See also, in this connection,White v. Parks Co., 93 Ga. 633 (20 S.E. 78).
In Behre v. National Cash Register Co., 100 Ga. 213 (27 S.E. 986, 62 Am. St. R. 320), the court was dealing with a privileged communication, and under the rule applicable to such cases the intention of the author of the allegedly libelous matter does become a material and essential ingredient and it is necessary that *Page 63 the plaintiff aver that the defendant exceeded his privilege in that the publication was not merely for the purpose of protecting the defendant's interest, but that the defendant made the publication with the intention of injuring the plaintiff by either imputing to him a crime, subjecting him to public hatred, contempt or ridicule, or with the intention of injuring him in his business, trade, or profession. What is here said is in accord with the rule quoted above from the case of Estes v.Thomas, supra.
Where words are clear and unambiguous, they will be construed in their ordinary and natural sense, and the court will hold as a matter of law that they are not libelous. However, it would seem that the courts have extended the rule, with regard to the necessity of alleging the intention of the author of the allegedly libelous matter, to include those situations where though the words are clear and unambiguous they are used with a covert meaning and the author intended them in such covert sense, for as said in Giddens v. Mirk, 4 Ga. 364, "it is impossible for a man to slander in one sense and defend in another; to cover vituperation under irony, untechnical hints, covert insinuations, or any form of words, which skillfully avoiding a legal definition of crime yet communicates the poison of slander." Under such circumstances it becomes necessary to allege and prove that the defendant intended the apparently harmless words in the covert sense. Anderson v. Kennedy,47 Ga. App. 380 (170 S.E. 555); Mell v. Edge, 68 Ga. App. 314 (22 S.E.2d 738); Spence v. Johnson, 142 Ga. 267 (82 S.E. 646, Ann. Cas. 1916 A, 1195). The instant case, however, does not come within that class of cases. In this case there is more than mere unambiguous, innocent words. There is the portrait, and the portrait with the words result in an ambiguous imputation, and where there is ambiguity it is for the jury to say whether or not the persons reading the publication understood it in its criminal or innocent sense.
Anything said in Park v. Piedmont c. Insurance Co.,51 Ga. 510 (supra), with regard to the necessity of alleging the intention of the author in making the allegedly libelous publication is obiter by reason of the fact that in that case the defendant entered a plea of justification and the only issue involved was the truth of the alleged libel. *Page 64
In Rubenstein v. Lee, 56 Ga. App. 49 (supra), the allegedly slanderous words were capable of being understood either in an innocent sense or in a criminal one, and although the court there said: "The jury was authorized to find that it was the intention of the defendant to impute a crime to the plaintiff. . ." If this be taken as a rule contrary to what is said here, that case must yield to the older decisions of this court and of the Supreme Court.
For an excellent study on the question of intention in actions for defamation of character see 60 Penn. L. Rev. pp. 365-387, 461-481.
3. The Code (Ann. Supp.), § 105-712, provides: "Before any civil action shall be brought because of any publication of a libel in any newspaper, magazine or periodical, the plaintiff shall, within the period of the statute of limitations for such actions and at least five days before instituting such action, give notice in writing to the defendant 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." Six days after the publication of the alleged libel the plaintiff wrote the Augusta Chronicle: "On Sunday, January 12, 1947, you published on the front page of your mail edition the announcement of my engagement to Mr. B. C. Walker. As part of the announcement you published a picture purportedly mine with a baby sitting on the lap of the person that was purportedly my picture and in the picture there is also some man. The picture is not of me and the persons in the picture are unknown to me. You can immediately understand the impression created by a picture of this type. The wording in the picture designates me as Miss Kathryn Ann Beckworth, which is correct, but the picture as to me or my fiance is entirely false." The petition alleged that on Wednesday, January 15, 1947, the newspaper published a correct picture of the plaintiff together with her announcement on the inside pages of the paper without reference to or retraction of the earlier libelous publication. Code (Ann. Supp.) § 105-713 provides: "If it appears upon the trial of any case in which such notice has been given that the article published was true or that the same was privileged, the same shall be governed by all the laws *Page 65 of Georgia now in force in reference to such actions, and the truth shall be a complete defense and the privileged communication, if there be no malice, as is now provided, shall be a complete defense, but in all other cases if it appears upon the trial that said 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 said article were true, and that within 10 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 said article appeared and in as conspicuous a place and type as was said original article, then the plaintiff in such case shall recover only such special or actual damages as the plaintiff shows he has sustained." The plaintiff clearly complied with the requirement of notice to the newspaper, while the newspaper did not retract as contemplated by the statute, and therefore the allegation of special damage is not required.
For the foregoing reasons the court did not err in overruling the general demurrer.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the whole court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., Gardner and Townsend, JJ.,concur. MacIntyre, P. J. and Parker, J., dissent.