123 Ga. App. 531 | Ga. Ct. App. | 1971
Lead Opinion
The evidence on the second trial was substantially the same as on the first. Both the Supreme Court and Court of Appeals have held that if the jury should find under the evidence in the case (including evidence of the rules and regulations of the employer which was introduced on both trials but not on the motion for summary judgment) that if Schaeffer’s right to discharge King was absolute he would not be liable in an action
Nor was it error to charge the jury that, should they decide that the plant manager Schaeffer had the right to terminate King’s employment by reason of the established practice of General Motors and the actual authority given him, it would be their duty to return a verdict in favor of the defendants. Such a verdict under that state of facts would of course be necessary as to Schaeffer and, disregarding other considerations, if Schaeffer, the only Fulton County defendant, prevailed, there could be no verdict against the co-defendant, Doran, a resident of DeKalb County. It is, therefore, not necessary to go into the question of whether malice and lack of authority on the part of Doran, if he persuaded Schaeffer to do something that Schaeffer could do with impunity in any event regardless of motive, would be actionable against Doran in a suit based on conspiracy between the two to effect such a result.
The remaining enumeration of error goes to the admission of evidence which is contended to be hearsay and inadmissible as an attempt to alter a written instrument. Even if error, the admission of the testimony was not harmful since other similar testimony was admitted without objection. Walthour v. State, 191 Ga. 613 (13 SE2d 659); Moore v. State, 193 Ga. 877 (9) (20 SE2d 403); American Family Life Ins. Co. v. Glenn, 109 Ga. App. 122 (2) (135 SE2d 442).
The trial court did not err in overruling the motion for new trial.
Judgment affirmed.
Dissenting Opinion
dissenting. I dissent from the judgment of affirmance and from Division 1 and the corresponding headnote. I cannot agree with the majority that the law of the case has been established on previous appeal of this litigation. Therefore a review of the facts and events of this case are necessary here.
King filed a suit against Schaeffer and Doran, alleging that they had conspired with each other to wrongfully cause him to be discharged as an employee of the Fisher Body plant in Atlanta, a division of General Motors Corporation. The petition was brought in four counts as follows:
Count 1 alleged a wrongful and fraudulent conspiracy between the two defendants to cause him to be discharged; Count 2 was based on slander; Count 3 was for libel; and Count 4 was quite similar to Count 1.
The case has been to the Court of Appeals twice and the Supreme Court of Georgia once. In King v. Schaeffer, 115 Ga. App. 344 (154 SE2d 819), this court reversed the trial court’s judgment in granting summary judgment for the defendants but affirmed the judgment of dismissal as to slander (Count 2). The appeal as to Count 3 was abandoned. On certiorari to the Supreme Court of Georgia (Schaeffer v. King, 223 Ga. 468 (155 SE2d 815)), the Court of Appeals was affirmed with direction to strike Division 4 of the Court of Appeals’ opinion. The case was reached again in the Superior Court of Fulton County where a verdict was directed in favor of the defendants, and this court reversed that judgment in King v. Schaeffer, 119 Ga. App. 735 (168 SE2d 911). On the return of the remittitur another trial was held resulting in a verdict and judgment for the defendants. A motion for new trial was duly filed, heard and overruled, and the appeal is from the final judgment and the judgment of the court overruling the plaintiff’s amended motion for new trial. It is my firm opinion that one of the errors enumerated is meritorious, that is, that the trial court erred in giving a written request to charge submitted by the defendants, to the effect that if the jury decided the plant manager, defendant Schaeffer, had the right to terminate Mr. King’s employment by reason of the established practice of General Motors, and because of the actual authority given him by two other officials, the jury would need to go no further in the consideration of
1. It is perhaps an understatement to say that none of the decisions by our appellate courts in this case can be construed to have established "the law of the case.” In fact, it is more than a little difficult to determine exactly what was decided other than what has been set out above.
One principle of law that runs throughout this entire case should be set forth at the outset to make for a better understanding of it. First of all, our Georgia appellate courts have held time and again that a person who conspires with an employer to wrongfully effect the discharge of an employee, even though the employer has absolute authority to terminate such employment, is not afforded immunity. As a corollary, it follows that the employer is not afforded immunity under such circumstances because his rights and liabilities are measured exactly as are the rights and liabilities of his co-conspirator.
Certain language was used in some of the opinions in the prior appearances of this case in the Court of Appeals and Supreme Court of Georgia which intimated that if the defendant Schaeffer, a superior officer of King, had an absolute right to discharge him, then he would incur no liability for such conduct, no matter if it was wrongful. But, a careful reading of the language in this respect will show that same is taken from American Jurisprudence, and a "general rule” only is quoted, thus implicitly showing there are exceptions. For instance, Presiding Justice Almand’s opinion in Schaeffer v. King, 223 Ga. 468, 470, supra, stated: "It is generally held that no liability for procuring a breach of contract exists where the breach is caused by the exercise of an absolute right. . .” (Emphasis supplied.)
One of the exceptions to this rule is found in the case sub judice where joint conspirators are sued as joint tortfeasors and where the act of each conspirator becomes the act of the other, with both being fully responsible and liable for the act of each. There was never a contention that Doran had an absolute right or any other right to discharge King, and Schaeffer’s rights as a co-conspirator with Doran can rise no higher than Doran’s rights— each is responsible and liable for the act of the other. In this
And under the authorities cited previously, where such inter-meddler is sued jointly as a tortfeasor with the employer, each is liable for all of the acts of the other, which result from the unlawful conspiracy.
In the case of Studdard v. Evans, 108 Ga. App. 819, 823 (135 SE2d 60) this court held: "However, formal defects affecting the enforceability of the contract between the parties, or the fact that employment is at the will of the employer, do not give immunity to a third person who without justification interferes with the relation between the parties to the contract. Salter v. Howard, 43 Ga.
2. But did Schaeffer actually have the absolute authority to discharge King? Excerpts from the written rules and regulations of the company were submitted in evidence which stated unequivo
For both of the above reasons, the lower court erred in charging the jury in such a way as to direct the verdict against the plaintiff. I therefore dissent.