Funk v. Baldwin, 32578.

• Citation: 55 S.E.2d 733,80 Ga.App. 177
• Decision Date: 18 October 1949
• Docket Number: No. 32578.,32578.
• Court: United States Court of Appeals (Georgia)
• Parties: FUNK. v. BALDWIN.

55 S.E.2d 733

80 Ga.App. 177

FUNK.

v.BALDWIN.

No. 32578.

Court of Appeals of Georgia,

Division No. 2.

Oct. 18, 1949.

Irene Funk sued John Baldwin for malicious procurement of a breach of contract of employment and for slander.

The Civil Court of Fulton County, Paul S. Etheridge, J, sustained a demurrer to the petition and plaintiff brought error.

The Court of Appeals, Gardner, J, affirmed the judgment and held that the petition failed to allege a cause of action for malicious procurement of a breach of contract and that the trial court did not have jurisdiction to try the cause of action in slander.

Syllabus by the Court.

1. Where, as here, the petition fails to allege that the manager in charge of a place of business of another had no authority to discharge an employee under such manager, and the manager discharged such employee the discharged employee has no cause of action against the manager.

2. The Civil Court of Fulton County is without jurisdiction to try a case involving slander.

Mrs. Irene Funk, whom we shall call the plaintiff, filed her petition against John W. Baldwin, whom we shall call the defendant, for the recovery of damages. The petition was filed in the Civil Court of Fulton County. In her petition the plaintiff substantially alleged that she was employed by B. F. Goodrich Rubber Company as bookkeeper; that the store at which she was employed was a small store and from the time she entered into her contract of employment she devoted her full time and energy toward building up the store business; that she worked overtime and performed many services outside her direct line of duty in order to help the store; that the company was pleased with her efforts and assured her that she would soon be promoted.

She further alleged that her immediate supervisor, John W. Baldwin, became jealous of her favorable recognition by the company and also realized that his own work had drawn adverse comment; that actuated by envy and jealousy, he engaged upon a scheme to discredit the plaintiff with the company and cause the company to breach its contract of employment; that in furtherance of this scheme, during the plaintiff's absence from the store he seized a cash box with which she had been entrusted by the company, which cash box contained the sum of $450.00 in cash and vouchers, and for which money the plaintiff was responsible to the company; that plaintiff had the only key to the box, but the defendant in her absence prized it open with a sharp instrument and thereafter reported to the company that the box was short in the amount of $136.03. The plaintiff further alleged that at the time she locked the box, the evening before, it was not short in any amount; that the defendant, on plaintiff's return to the store, informed her that she was no longer working for the company; that all these acts were unauthorized and malicious and for the pur-pose of breaching the plaintiff's contract of employment; that the B. F. Goodrich Rubber Company did breach its contract as a result of the defendant's actions.

The defendant filed a general demurrer which the court sustained and dismissed the petition on the ground that the Civil Court of Fulton County had no jurisdiction to entertain the petition. Error was assigned by the plaintiff upon the judgment sustaining the demurrer.

Marvin O'Neal, Jr., Atlanta, for plaintiff in error.

Hugh Dorsey, Jr., Atlanta, Jones, Williams & Dorsey, Atlanta, for defendant in error.

GARDNER, Judge.

1. The court sustained the demurrer on the principle of law that the allegations of the petition were grounded on slander and that the Civil Court of Fulton County was without jurisdiction to sustain such a cause of action. The Act of the General Assembly, Ga.Laws of 1925, p. 387, § 26, expressly provides that the Civil Court of Fulton County "shall have jurisdiction to try and dispose of all civil cases of whatever nature, except injuries to the person or reputation." For the purpose of passing upon a demurrer, the court must construe the petition most strongly against the pleader. Mayor, etc, of Forsyth, v. Hooks, 182 Ga. 78, 81, 184 S.E. 724. There are numerous decisions of the Supreme Court and this court to the same effect. In this view let us then inquire what the germaine allegations of the petition are. In addition to the allegations of the petition which we have set forth, the failure to charge certain allegations no doubt motivated the court in sustaining the demurrer. The petition alleged a contract of employment between the plaintiff and the B. F. Goodrich Rubber Company. It failed to allege that it was for a definite term. The petition alleged that the defendant was the manager of the store where the plaintiff was employed, but there is no allegation that the defendant as such manager did not have a right to discharge the plaintiff and there is no allegation that the plaintiff was illegally discharged. There is an allegation that the store manager discharged her. There is no allegation that the store manager did not have a right to discharge her. The plaintiff's contention is that her suit is based on the provisions of the Code, § 105-1207, as follows: "In all cases he who maliciously procures an injury to be done to another, whether it is an actionable wrong or a breach of contract, is a joint wrongdoer, and may be sued either alone or jointly with the actor." And counsel further cites and relies on Fortune v. Braswell, 139 Ga. 609, 77 S.E. 818, to the effect that the petition alleged a cause of action for interfering with the property right, that is, the right of the plaintiff to work. Counsel for the plaintiff call our attention to the case of Ott v. Gandy, 66 Ga.App. 684, 19 S.E.2d 180, and contends that by virtue of the opinion in that case the judgment of the trial court in sustaining the demurrer and dismissing the petition should be reversed. The headnotes of that opinion read:

"1. The fact that an employment is at the will of the employer and employee does not make it one at the will of others, and a malicious and wrongful interference with such employment by another is actionable although the employment be at will.

"2. The petition set forth a cause of action for an unjustified interference by the defendant with the contractual relations of the plaintiff with his employer, and the court erred...