Cohen v. Hartlage, 71958

• Decision Date: 09 July 1986
• Docket Number: No. 71958,71958
• Citation: 348 S.E.2d 331,179 Ga.App. 847
• Parties: COHEN v. HARTLAGE.
• Court: Georgia Court of Appeals

Page 331

348 S.E.2d 331

179 Ga.App. 847

COHEN v. HARTLAGE.

No. 71958.

Court of Appeals of Georgia.

July 9, 1986.

Rehearing Denied July 24, 1986.

Certiorari Denied Sept. 2, 1986.

James W. Ellison, James B. Wall, Augusta, for appellant.

Stanley G. Jackson, Augusta, for appellee.

BEASLEY, Judge.

Plaintiff Cohen appeals from the grant of defendant Hartlage's motion for summary judgment in an action for libel alleging that a report Hartlage made to the Georgia Board of Examiners of Psychologists (Board) contained false and defamatory statements. Hartlage defended and moved for summary judgment on the basis that the report was privileged under OCGA § 51-5-7.

Cohen was a psychology intern at the Medical College of Georgia. Hartlage was the supervisor under whom Cohen was required to spend a certain minimum number of hours in order to secure his license. Early intern evaluation checklists by Hartlage were favorable. In December 1982 Hartlage wrote a letter of recommendation for Cohen in which he stated that Cohen "has demonstrated the highest standards of professionalism. He possesses excellent interpersonal skills, works well independently and is highly motivated. I feel he would be an excellent addition to your staff." The following April, Hartlage signed a direct supervisor form and personal reference form which were forwarded to the Board. The answer "yes" followed the question: "If the proper vacancy arose, would you be willing to employ the applicant in your organization?" The form also confirmed that Cohen had completed over 2,000 hours under supervision.

Subsequently, Hartlage requested that the Board return the forms to him, and in July he submitted revised forms which set out that he would not hire Cohen but would consider him for "supervised psychometrist type of work, as he does have skills in this area and could function adequately with professional psychological supervision to prevent ethical problems." Hartlage gave as reason for his qualified negative answer regarding Cohen's employment: "Poor translation of ethical standards of psychologists into professional practice, as reflected in incidents brought to my attention by faculty, residents, staff, and trainees in recent weeks, requiring my meeting with him 6/30 to remind him of principles 1f, 3c, 5d, 7a,b." Hartlage also disputed Cohen's claim of 2,000 hours supervised work, contending his own documentation showed only 852 hours.

During this time a controversy arose in the Department of Neurology, to which Hartlage belonged, regarding who would have control over Cohen. The chairman of the department gave administrative supervision to another psychologist while Hartlage retained clinical supervision. This prompted Hartlage to place a sign on the chairman's office which implied the chairman was subordinate to the other psychologist.

There was a sharp dispute in the proof as to what transpired when the first forms, of April, were signed. According to Cohen they were gone over in great detail, line by line, before Hartlage signed them. He pointed out the presence of a handwritten addition to one document as evidencing the fact that the forms were fully considered before they were signed. On the other hand, Hartlage related he signed the forms along with several others as he was hurrying to catch a plane, and because of the rush it was tacitly understood that he would review the forms later and that he intended to make any necessary changes. After learning the forms had been sent he called the Board and was told a formal letter was necessary to recall them. He recalled and revised the forms and sent them back. This resulted in Cohen's application being delayed although he eventually received his license.

The alleged ethical violations attributed to Cohen by Hartlage involved Cohen's seeing one or more of Hartlage's patients without authorization. This was contradicted by Cohen. Hartlage testified by deposition and affidavit that he was not motivated by malice in executing the second document, and that he was not influenced by interdepartment conflict. Instead, Hartlage said, he filed the second forms because he believed that Cohen had not completed the necessary hours and also had acted in such a way as to possibly infringe upon ethical standards.

Foremost in our consideration is Hartlage's contention that the statements contained in the report to the Board were privileged under OCGA § 51-5-7. This privilege is a qualified or conditional one which may be lost if "used merely as a cloak for venting private malice." OCGA § 51-5-9. The cases speak of the privilege's forfeiture when one acts "wilfully, corruptly or maliciously." McKinnon v. Trivett, 136 Ga.App. 59, 62(3), 220 S.E.2d 63 (1975); King v. Masson, 148 Ga.App. 229, 231(1), 251 S.E.2d 107 (1978). Stated another way, good faith and good intentions are necessary and essential ingredients of a conditionally privileged communication. Lamb v. Fedderwitz, 71 Ga.App. 249, 252(1), 30 S.E.2d 436 (1944).

Generally both the question of whether the communication was privileged and whether it was uttered maliciously are jury questions. Lamb, supra; Nicholson v. Dillard, 137 Ga. 225, 231, 73 S.E. 382 (1911). "[T]o make the defense of privilege complete ... good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear." Sherwood v. Boshears, 157 Ga.App. 542, 543, 278 S.E.2d 124 (1981) quoting from Sheftall v. Central of Ga. R. Co., 123 Ga. 589(5), 51 S.E. 646 (1905).

On summary judgment the issue is simply whether defendant established as a matter of law that he made privileged statements. Cohen concedes that the matter contained on the forms is a privileged communication, see Land v. Delta Airlines, 147 Ga.App. 738(2), 250 S.E.2d 188 (1978), but contends that a jury question exists as to whether they were uttered with malice.

Hartlage has supported his motion by his own direct testimony as to good faith and lack of malice. In such posture Cohen cannot rest upon his allegations or denials but is cast with the burden showing there was a genuine issue for trial. Morton v. Gardner, 155 Ga.App. 600, 604(5), 271 S.E.2d 733 (1980).

In an effort to meet this burden Cohen relied upon his deposition and an affidavit by the chairman of the neurology department that in the opinion of each, based on certain circumstances, Hartlage was motivated by malice and acted with evil intent because of the internecine strife in the department. The trial court struck the opinion testimony relating to Hartlage's motives or intent.

While opinion evidence of state of mind or mental condition may be admissible, see Leonard v. State, 157 Ga.App. 37, 38(1), 276 S.E.2d 94 (1981), usually opinion evidence as to one's motives or intent is not. Gardner v. State, 90 Ga. 310(4), 17 S.E. 86 (1892); Isley v. Little, 219 Ga. 23, 27(5), 131 S.E.2d 623 (1963). "Intent is something which exists in the human mind and can be manifested only by external acts from which an inference of intent will arise." Gaynor v. Travelers Ins. Co., 12 Ga.App. 601, 605, 77 S.E. 1072 (1913). Thus, upon the question of malice one may show the state of mind of the defendant by testimony as to extraneous hostile acts. Van Gundy v. Wilson, 84 Ga.App. 429(1), 66 S.E.2d 93 (1951); Savannah Bank & Trust Co. v. Sumner, 174 Ga.App. 229, 232(2), 329 S.E.2d 910 (1985). Since, in any case, the opinion testimony would be no stronger or more persuasive than the facts on which the opinions were based we need only consider them.

Cohen presents the facts regarding the departmental conflicts and the interaction between the parties involved and asks the court to infer the presence of evil intent or malice towards him on Hartlage's part. In brief, this is a classic example of the situation exemplified in Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979). Thus, where there is uncontradicted testimony by a party as to a certain fact (here, that Hartlage acted without malice) then the opposing party must produce "some other fact" to the contrary (here, that Hartlage acted maliciously). If the "other fact" is shown directly, that is sufficient for the case to go to a jury, but if it is circumstantial then it must be evidence sufficient to support a verdict. The circumstantial evidence must...