American Southern Ins. Group v. Goldstein
| Decision Date | 26 March 2008 |
| Docket Number | No. A07A1942.,No. A07A1943.,A07A1942.,A07A1943. |
| Citation | 291 Ga. App. 1,660 S.E.2d 810 |
| Parties | AMERICAN SOUTHERN INSURANCE GROUP, INC. et al. v. GOLDSTEIN et al. Goldstein v. American Southern Insurance Group, Inc. et al. |
| Court | Georgia Court of Appeals |
Kennedy, Kennedy, Kennedy & Kennedy, Harold L. Kennedy III, Harvey L. Kennedy, for appellants.
Dietrick, Evans, Scholz & Williams, Scott E. Tinnon, Atlanta, for appellee.
American Southern Insurance Group, Inc. and one of its former sales agents, Judy Wilson, sued Combined Insurance Company of America, Inc. and one of its former sales agents, Howard Goldstein. American Southern brought a tortious interference with business relations claim against Combined, alleging that Combined's agents and employees had impermissibly induced individuals not to enter into or continue contractual or business relationships with American Southern. Wilson brought slander per se claims against Combined and Goldstein.
At trial, the court made various evidentiary rulings outside the jury's presence; directed a verdict against American Southern on its tortious interference claim; directed a verdict against Wilson on certain of her slander per se claims against Combined and Goldstein; and ruled that remarks Goldstein made at Wilson's home could not serve as a separate basis of recovery. Wilson's remaining claims of slander per se against Combined and Goldstein proceeded to the jury. The jury found Goldstein liable, but not Combined. Final judgment was entered upon the jury's verdict.
In Case No. A07A1942, American Southern and Wilson appeal. They challenge various evidentiary rulings. In addition, Wilson contends that the trial court erroneously barred her several slander per se claims from jury presentment. In Case No. A07A1943, Goldstein cross-appeals. He argues he was entitled to a directed verdict on Wilson's slander per se claim upon which the jury found him liable. Because no party has shown reversible error in either case, we affirm in both cases.
The evidence at the 2005 trial showed that two Combined employees left that company and founded American Southern in 1986. According to one such individual, Larry Buckley, who later became American Southern's President and CEO, the new company began operating in Mississippi with about seven employees, before branching into other southern states. Initially, American Southern sold insurance policies underwritten by Dixie National Life Insurance Company. Later, American Southern expanded into other states and also sold policies underwritten by Occidental Life Insurance Company. Buckley testified that the company grossed $3,500,000 during its first year; during its second year, it grossed $14,000,000; and within two years of start up, the company was operating in 23 states and employed 248 agents.
In June 1988, however, Buckley noted that many of the company's customers were canceling their policies. After talking with customers and sales managers and investigating the cancellations in numerous states including Alabama, Georgia, Louisiana, Tennessee, and Mississippi, Buckley concluded that Combined was interfering with American Southern's contractual relations with its policyholders.
Wilson, a former Combined sales agent, began working for American Southern as a sales agent in March 1987. She was paid on commission and built a clientele by "knocking on doors" primarily in northern Georgia counties. Wilson testified that starting around June 1988, many of her policyholders were canceling policies she had written. Based upon discussions with various of her customers and remarks by Goldstein to her and to one of her customers, Wilson concluded that a slanderous campaign had been launched against her. She testified that before June 1988, she was well-liked in the areas where she sold insurance and had an excellent professional reputation; afterward, however, her reputation "went down the tubes"; her income essentially stopped; and she was forced out of business.
Theada Tolbert, another former Combined employee who began working for American Southern as a "door to door" insurance agent in northern Georgia counties, testified to an incident that occurred in the summer of 1988. Tolbert had arrived at a residence, where she had planned "to explain Dixie National insurance policies." She testified, While Tolbert was standing outside the residence, a Combined insurance agent shoved past her to talk to the residents first. When the Combined agent came out of the house, the residents declined to meet with Tolbert. As Tolbert walked to her car, the Combined agent yelled to her that she was a liar and her company was a fraud. Tolbert testified that around that time, selling insurance policies had become increasingly difficult.
Buckley testified that American Southern fought what it perceived as wrongful interference by Combined's agents and employees. As part of that combat, the company, along with Wilson, filed the instant lawsuit in 1989. Nevertheless, the company went out of business the following year.
Combined defended the lawsuit by asserting that it had employed competitive, but fair, legal, and ethical tactics to regain customers lost to American Southern. It adduced evidence that around June 1988, its sales agents were systematically canvassing homes and businesses, door-to-door, in northern Georgia areas. They discovered that Combined's policies were being replaced by ones underwritten by Dixie National. Combined presented evidence that, while it was concerned about preserving its accounts and policyholders in the northern Georgia area, it had employed no strategy to put American Southern or Wilson out of business. Rather, it had focused on enthusiastically selling its own insurance products.
1. American Southern and Wilson contend that the trial court erred in excluding their evidence that American Southern customers had canceled their American Southern policies because of misrepresentations by Combined's agents.
At trial, American Southern and Wilson's counsel told the court that, from early June 1988 through 1989, when American Southern's policies were being cancelled throughout 23 states, American Southern's agents interviewed policyholders who stated they were cancelling because of representations made by Combined's agents. Rather than present any such policyholder as a witness, American Southern sought to have the policyholders' purported statements presented to the jury through the testimony of Buckley and Wilson under the res gestae exception to the hearsay rule.1 The trial court ruled that the hearsay statements did not fall within the res gestae.
OCGA § 24-3-3 provides, "Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae."
To fall within the res gestae, a statement must be contemporaneous with the main fact, but need not be precisely concurrent in point of time; it is sufficient if such declarations spring out of the transaction, if they elucidate it, if voluntary and if made at such time as reasonably to exclude the idea of design.2
"Whether a statement made after the event qualifies for admission under the res gestae rule is a matter within the discretion of the trial court, and, on appeal, that ruling will not be overturned unless it is clearly erroneous."3
We find no error. American Southern and Wilson have failed to show, inter alia, that any purported statement by one of many policyholders located in 23 states over such an extended period of time was "contemporaneous with [a] main fact," which in this case, would be any alleged tortious statement by a Combined agent.4
2. Wilson contends that the trial court erred by directing a verdict against her and in favor of Combined and Goldstein on her claims of slander per se under OCGA § 51-5-4(a)(1). Pursuant to this Code provision, "[s]lander ... consists in ... [i]mputing to another a crime punishable by law."5
To support this claim, Wilson showed that Goldstein went to the home of one of her customers, Mavis Arrowood, where the following exchanged occurred:
Arrowood: Well, why did you tell me yesterday that Judy left Combined?
Goldstein: If what I have been told Judy was terminated from Combined at one point in time and reinstated in another state. But I've been told that she was terminated from Georgia.
Arrowood: For what?
Goldstein: Misappropriation of funds.
...
Goldstein: Well, you know, again I've spoken with Judy and Judy is, you know, upset and swearing we're doing her wrong and telling lies and stuff like that, which is why I immediately called Atlanta to verify it through the home office. And the home office is ready to stand a lawsuit. You know, what has been said is a fact and they can prove it in a court of law.
Wilson denied ever misappropriating funds. She testified further that her employment with Combined had been terminated because she had been unable to return to work within six months of suffering severe injuries caused by an automobile accident. Directing a verdict against Wilson, the court explained that it was "not aware of any crime charging theft by misappropriation of funds."
Wilson contends on appeal that the trial court erred by rejecting her argument that Goldstein's "misappropriation" remarks imputed to her the crime of theft by taking. Pursuant to OCGA § 16-8-2,
A person commits the offense of theft by taking when [s]he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving [her] of the property, regardless of the manner in which the property is taken or appropriated.
Pretermitting whether the trial court...
To continue reading
Request your trial
-
Turnage v. Kasper.
...47. Ga. Ne. R. Co. v. Lusk, 277 Ga. 245, 246(1), 587 S.E.2d 643 (2003) (citations omitted); see also Am. S. Ins. Group v. Goldstein, 291 Ga.App. 1, 6(2)(a), 660 S.E.2d 810 (2008) (same). 48. Lusk, 277 Ga. at 246(1), 587 S.E.2d 643 (citations omitted); see also Goldstein, 291 Ga.App. at 6(2)......
-
Trilink Saw Chain, LLC v. Blount, Inc., Civil Action No. 1:07-CV-0409-CAP.
...evidence that the relationships were likely to develop absent the interference. See, e.g., American Southern Insurance Group, Inc. v. Goldstein, 291 Ga.App. 1, 660 S.E.2d 810, 820 (2008) (concluding that the plaintiff failed to prove its tortious interference claim because none of the poten......
-
Corey v. Clear Channel Outdoor, Inc.
...directly or indirectly. Irrelevant matter should be excluded." (Citation and punctuation omitted.) American Southern Ins. Group v. Goldstein, 291 Ga.App. 1, 9(4), 660 S.E.2d 810 (2008). In this case, a close reading of Clear Channel's initial complaint confirms that it alleges no "facts" su......
-
Agsouth Genetics, LLC v. Ga. Farm Servs., LLC
...by Plaintiffs' actions. Without such evidence, Plaintiffs are entitled to judgment as a matter of law. See Am. S. Ins. Group, Inc. v. Goldstein, 291 Ga. App. 1, 12 (2008). To the extent the exercise of a right could ever possibly be the basis of an action for tortious interference, Defendan......