Campbell v. Carroll

• Citation: 174 S.E.2d 375,121 Ga.App. 497
• Decision Date: 20 February 1970
• Docket Number: Nos. 44684,2,44685,3,Nos. 1,s. 44684,s. 1
• Parties: M. O. CAMPBELL v. T. H. CARROLL et al. T. H. CARROLL et al. v. M. O. CAMPBELL
• Court: United States Court of Appeals (Georgia)

Page 375

174 S.E.2d 375

121 Ga.App. 497

M. O. CAMPBELL v. T. H. CARROLL et al.

T. H. CARROLL et al. v. M. O. CAMPBELL.

Nos. 44684, 44685.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 20, 1970.

Rehearing Denied March 27, 1970.

Certiorari Granted May 21, 1970.

Syllabus by the Court

1. The allegations of count 1 were effectively pierced and the trial judge did not

err in granting the defendant's motion for summary judgment as to that count.

2. Absent a certificate of review under Section 56 of the Civil Practice Act, the denial of a summary judgment is not subject to review by direct appeal or otherwise, as by cross appeal.

M. O. Campbell brought this complaint, consisting of three counts, in the Meriwether Superior Court. Briefly, the counts were as follows:

Count 1 alleged in substance that the defendants, T. H. Carroll and William M. Barnes, conspired and did unlawfully cause the termination of the plaintiff's contract of employment with Woodbury Banking Company, a banking institution in which Carroll was the major stockholder. The recovery of general and punitive damages was sought.

In Count 2, Carroll and Barnes were charged with conspiring and acting so as to deprive the plaintiff of his interest in Woodbury Insurance Agency, a partnership of which the plaintiff was a member. The plaintiff sought an accounting and the recovery of punitive damages and attorney's fees.

In Count 3, the plaintiff sought specific performance by Carroll of a contract whereby it was alleged that Carroll agreed to purchase for book value the plaintiff's stock in Woodbury Banking Company whenever the plaintiff left the employ of the bank, either voluntarily or involuntarily. It was alleged that Carroll had offered the plaintiff a sum less than the alleged book value of the stock.

After filing an answer, the defendants moved for summary judgment on the ground that there was no genuine issue of fact for the jury to determine. This matter came on for hearing and after oral argument, the trial judge sustained the defendants' motion for summary judgment as to Count 1, and to Count 2 insofar as punitive damages and attorney's fees were sought; otherwise, he overruled the motion as to Counts 2 and 3. The plaintiff appeals in Case 44684 from the judgment granting the defendants' motion for summary judgment as to Count 1 of the petition.

In Case 44685 the defendants cross appeal from that portion of the judgment overruling their motion for summary judgment as to Counts 2 and 3. The trial judge entered a certificate of immediate review insofar as the granting of the summary judgment as to Count 1; however, no certificate was entered with regard to the overruling of the motion on Counts 2 and 3.

Neely, Freeman & Hawkins, Paul M. Hawkins, Albert H. Parnell, Atlanta, for appellant.

Bloch, Hall, Hawkins & Owens, Wilbur D. Owens, Jr., Ellsworth Hall, Jr., Macon, for appellee.

QUILLIAN, Judge.

1. A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Groover v. Brandon, 200 Ga. 153, 164, 36 S.E.2d 84; Foster v. Sikes, 202 Ga. 122, 125, 42 S.E.2d 441. With this in mind, on motion for summary judgment, we determine whether the proof offered negates both of these proscribed courses of conduct.

In the consideration of the wilful and malicious procurement of a breach of an employment contract (see Code §§ 105-1401 [121 Ga.App. 499] and 105-1207), there are two categories of cases: (1) where there is a definite term of employment and the corporation or employer by discharging an employee would be liable for the breach of the employment contract-as exemplified in Wrigley v. Nottingham, 111 Ga.App. 404, 407, 141 S.E.2d 859, reversed in part in Nottingham v. Wrigley, 221 Ga. 386, 144 S.E.2d 749; (2) where, even though the contract is terminable at will, a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage him, maliciously and unlawfully persuades the employer to breach the contract with the employee. Ott v. Gandy, 66 Ga.App. 684, 687, 19 S.E.2d 180. See Bromley v. Bromley, 106 Ga.App. 606, 613, 127 S.E.2d 836; and King v. Schaeffer, 115 Ga.App. 344(1), 154 S.E.2d 819.

Contradistinguished from the above classifications, the following unique combination of facts is present in the instant case, to wit: an employment contract which was terminable at will and alleged conspiratory tortious acts by the corporate employer's directors, who in such capacity constituted the sole management of the corporation and without whom it could take no effective action. 'The exercise of an absolute right or privilege is recognized as being closely akin to the question of justification, but it is inherently different therefrom in that such a right can be exercised without incurring liability regardless of the motive for so doing. 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-that is, an act which a man has a definite legal right to do without any qualification. 30 Am.Jur. 79, Interference, § 33.' Schaeffer v. King, 223 Ga. 468, 470, 155 S.E.2d 815, 816. See Code § 66-101. Here there is no question that the directors, the alter egos of the corporation, had an absolute right to discharge the plaintiff, an employee.

The Supreme Court pointed out in Lambert v. Georgia Power Co., 181 Ga. 624, 628, 183 S.E. 814, 817: "The averment of a conspiracy in the declaration does not ordinarily change the nature of the action nor add to its legal force or effect. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done wrongfully. Where damage results from an act which, if done by one alone, would not afford ground of action, the like act would not be rendered actionable because done by several in pursuance of a conspiracy." Since under this authority a conspiracy to effect what one has a legal right to accomplish is not actionable, there are no grounds to complain of defendants' actions, as directors, in voting for the plaintiff's discharge. Elliott v. Delta Air Lines, Inc., 116 Ga.App. 36, 156 S.E.2d 656.

The only conceivable theory for finding a tortious interference would be that they unlawfully acted to influence the third director, C. R. May, to vote for the plaintiff's discharge. The proof offered in this regard may be summarized as follows.

By affidavit May expressly denied that he was importuned, influenced or even approached with regard to the matter. He swore that his vote was predicated solely on his own independent judgment.

In an affidavit the plaintiff stated that: at one meeting of the bank directors the defendant Carroll instructed C. R. May to move to cut the plaintiff's salary, which motion passed with the two defendants and May voting in favor thereof; May related to him that he undertook to make the motion only as a matter of formality. However, there was no statement contained therein as to May being instructed how to vote at the meeting when the plaintiff was discharged.

By deposition the plaintiff answered in response to the question whether at the meeting either of the defendants said anything to May about discharging him: 'Not in my presence.'

Thus the proof adduced by the two defendants established that they did not unlawfully conspire to obtain May's vote to discharge the plaintiff and no countershowing was made. In such circumstances, the allegations of the complaint were effectively pierced, the movant having affirmatively shown that the plaintiff could not recover for alleged tortious interference with his employment at the bank. That being so, the trial judge did not err in granting the defendant's motion for summary judgment as to Count 1 of the complaint.

2. Case 44685 is a cross appeal taken from the denial of defendants' motion for summary judgment as to Counts 2 and 3 of the plaintiff's complaint. There was no certificate by the trial judge under the provisions of Code Ann. § 81A-156(h) (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238).

The defendants contend that Section 5 of the Appellate Practice Act of 1965, as amended, Code Ann. § 6-803 (Ga.L.1965, pp. 18, 21; 1966, pp. 493, 496; 1968, pp. 1072, 1077), is controlling with respect to cross appeals. It contains a provision that: 'the appellee may present for adjudication on the cross-appeal all errors or rulings adversely affecting him, and in no case shall the appellee be required to institute an independent appeal on his own right, although the appellee may at his option file an independent appeal.'

Thus, it is urged that a cross appeal may be brought on the denial of a motion for summary judgment, citing Algernon Blair, Inc. v. National Surety Corp., 222 Ga. 672, 151 S.E.2d 724. Further, appellee requests that any language in Hood v. General Shoe Corp., 119 Ga.App. 649(2), 168 S.E.2d 326(2), to the contrary be overruled.

The Hood case recited: 'Should we treat the appeal as a cross appeal we would be unable to pass upon the sole enumeration of error as the overruling of a motion for summary judgment may be reviewed only upon a direct appeal from that judgment. Section 25 of the Act of 1967 (Ga.L.1967, pp. 226, 238; Code Ann. § 81A-156(h) amending Section 56(h) of the Civil Practice Act of 1966, pp. 609, 660; and Section 1, Paragraph 4 of the Act of 1968 (Ga.L.1968, pp. 1072, 1073; Code Ann. § 6-701).'

The Algernon Blair case, 222 Ga. 672, 151 S.E.2d 724, supra, was decided prior to both the 1967 and 1968 Acts above cited. The 1968 Act amending Section 1 of the Appellate Practice Act, by adding subparagraph (4), provides: 'Review of orders and judgments with respect to motions for summary judgment shall be governed by Section 56(h), as amended, of the Georgia Civil Practice Act, approved March 18, 1966 (Ga.L.1966, p. 609), as amended.' Ga.L.1968, ...