AINSWORTH, Circuit Judge:
In this diversity libel action, defendant Dun & Bradstreet appeals from an adverse money judgment of $25,000 ($10,000 general damages and $15,000 punitive damages) entered on a jury verdict for plaintiff. We reverse on the ground that it was error for the District Court to deny defendant's motions for a directed verdict and for judgment notwithstanding the verdict.
Appellee John A. Miller is engaged as a sales agent and manufacturers' agent in the business of buying, selling, and
Miller inferred the following innuendos from the report and alleged in his complaint that:
The report was sent by Dun & Bradstreet to Plattsburg Foundry at the latter's request, which request had been prompted by Miller's solicitation to represent Plattsburg in the wear parts field. After receiving the report Plattsburg Foundry wrote a letter on April 21, 1965 to Miller, stating that it would like Miller to see the report because it raised some questions about Miller & Company and Miller's personal background from a credit standpoint.
To constitute a libel under Georgia statutory law, there must be a published statement which is both false and defamatory, "tending to injure the reputation of an individual, and exposing him to public hatred, contempt or ridicule."
The District Court, in trial conference while discussing the jury charges requested
Although the charge correctly reflects the law of Georgia where in fact a statement contains ambiguous language, the Court erred in sending the case to the jury. Although Georgia law clearly contemplates allowing a jury in a libel case to determine the effect of ambiguous language, it does not contemplate submission of the question of liability where no ambiguity appears and the statements are not libelous per se. The law of Georgia is consistent in requiring the factor of ambiguous language as a prerequisite for the employment of innuendo.
A motion for judgment notwithstanding the verdict is actually a
In determining, therefore, whether the Trial Judge should have granted appellant's motions we consider the evidence of record and the inferences which appellee urges may reasonably be drawn therefrom.
Appellee started the General Machinery Company in 1950, 1951 or 1952. (The report states that the corporation was started in 1953.) The corporation was incorporated on February 18, 1955. (The report shows the date to be April 18, 1955. Appellee contends that these two false statements taken together with the statement, "That corporation was qualified to do business in Georgia on April 15, 1955," imply that he was a criminal by virtue of operating an unlicensed business prior to its incorporation in violation of the law.) Appellee states that he was available to furnish information sought by Dun & Bradstreet which appellant could have obtained by a visit to his home or by letter. (The report states that "Repeated and continued efforts to verify information submitted concerning subject's background have been largely unsuccessful." Appellee contends that the connotation here is that he is running from the law and his creditors; that he is a "bastard" and of a "sordid nature.") The testimony of defendant's representative (Mr. Fluehr) was that he telephoned plaintiff at his business address — actually an answering service address — and was not able to reach him, being told he was out of town. Appellee, who, despite lack of a college degree, is a professional engineer, completed courses at Tulane University in "Statics and Strength of Materials," "Machine Design," and "Theoretical Naval Architecture and Marine Engineering." (The report states that "Miller has stated that he attended high school at Tulane University, New Orleans for one quarter, taking courses in naval architecture and marine engineering." This statement, appellee contends, was a "deliberate fabrication" made to "downgrade" him and cause him to "appear stupid, senile, and uneducated.") When appellee was approximately 22 years old, Helis Oil Company, by whom his sister was then employed as a petroleum engineer, subcontracted work to him and two associates through his sister. (The report states that "During early manhood [Miller] worked at New Orleans for his sister." Appellee contends that this was a deliberate, malicious attempt by appellant to malign and hurt him.) Appellee states that he was in charge of the Naval and Marine Section of the War Production Board at New Orleans. (The report shows that he was employed by the War Production Board.) Appellee enlisted in the Army in 1936. (The report shows the date to be 1942.)
Considering all of the evidence and reasonable inferences favorable to appellee, we can find no evidentiary basis for the jury's verdict, for the report itself contains no defamatory language or ambiguities.
We reiterate what we said in Stewart v. Gilmore, 5 Cir., 1963, 323 F.2d 389, 391:
The exercise of sound judicial discretion demands that the verdict be set aside. For the reasons stated it is unnecessary to discuss additional errors urged by appellant.
Reversed and remanded with directions to enter judgment in favor of appellant, dismissing appellee's suit at his cost.
"John A. Miller, born in New Orleans, Louisiana, 1911, married. Repeated and continued efforts to verify information submitted concerning subject's background have been largely unsuccessful. Miller has stated that he attended high school at Tulane University, New Orleans for one quarter, taking courses in naval architecture and marine engineering. During early manhood worked at New Orleans for his sister, Mrs. Alberta Young, owner of A. M. Young Engineering Company. Later, 1942, according to City Directories there he was employed for a short time by the U. S. War Production Board, prior to entering the Army in 1942. Is reportedly to have left the service in 1945 and, in so far as is known, has apparently spent most of the years since that time in the sales field, locating in Atlanta about 1949. He represented one or two companies in this capacity covering the Southeastern territory. Then traveled this area for a number of business in the machinery field, although these associations have been reported to have been of short duration. John A. Miller started General Machinery Corporation, Atlanta, Georgia in 1953. Original source and amount of starting capital has not been made available. That business was incorporated under Delaware laws April 18, 1955 as General Machinery Corporation of Wilmington, Delaware (Inc). According to a signed communication received from Grady E. Rozar, Attorney for John A. Miller the corporation was activated February 18, 1955 and assumed all legal obligations and took over the place of business of that proprietorship, General Machinery Company. That corporation was qualified to do business in Georgia on April 15, 1955 and it is reported to have used the trade style General Machinery Company. John A. Miller is reported to continue as President of General Machinery Corporation of Wilmington, Delaware (Inc), however, on November 18, 1959, Miller stated that the corporation had ceased operations. During its operating period, that corporation had a number of suits filed against it. During 1959 Miller began operating as above as was engaged as a manufacturer's agent selling new and used machinery. He formerly operated at 555 Northside Drive, N. W. During 1960 operations were terminated at that location and the company was reported to have owed past due rent of approximately $2,000.
"Recent efforts to contact John A. Miller have been unsuccessful due to his being reported out of town. The above captioned business address is a secretarial service where subject receives his mail.
"Complete details concerning Miller's current activities are not known at this time.
2-1 (8 58)"
Plaintiffs also admitted in answers to interrogatories that rent for the North Avenue property for the months March-July 1960, at the rate of $400 per month, a total of $2,000, had not been paid. He made the transparent contention, however, that defendant's report was untrue, by averring that under the terms of the special stipulation in the written lease of the premises, since there was a building worth $10,000 erected on the vacant property which was to serve as additional security for the lease, no rent was due. The record is without factual contradiction that the rent was actually due which defendant's report said was owed by the corporation.