Georgia Power Co. v. Busbin

• Decision Date: 10 March 1982
• Docket Number: No. 37979,37979
• Parties: GEORGIA POWER COMPANY, et al. v. A. D. BUSBIN.
• Court: Georgia Supreme Court

Page 514

289 S.E.2d 514

249 Ga. 180

GEORGIA POWER COMPANY, et al. v. A. D. BUSBIN.

No. 37979.

Supreme Court of Georgia.

March 10, 1982.

Rehearing Denied March 23, 1982.

Robert L. Pennington, Atlanta, Frederick E. Link, Gainesville, Wade H. Coleman, Valdosta, for Georgia Power Co. et al.

Conley Ingram, Franklin R. Nix, J. Scott Jacobson, Alston, Miller & Gaines, Atlanta, for amicus curiae.

Jack J. Helms, Homerville, for A. D. Busbin.

James E. Butler, Jr., Butler & Blackwood, Columbus, William S. Stone, Stone & Stone, P. C., Blakely, for amicus curiae.

WELTNER, Justice.

This case appears here for the second time. Busbin originally sued the Georgia Power Company (Georgia Power) and two supervisors, Moore and Cordova, seeking damages for wrongful discharge, conspiracy to procure the discharge, slander and libel. The jury returned a verdict against Georgia Power and one supervisor, and the Court of Appeals affirmed. Georgia Power Co. et al. v. Busbin, 145 Ga.App. 438, 244 S.E.2d 26 (1978). This court reversed (Georgia Power Co. et al. v. Busbin, 242 Ga. 612, 250 S.E.2d 442 (1978)) and the case was remanded for a new trial. See Georgia Power Co. et al. v. Busbin, 149 Ga.App. 274, 254 S.E.2d 146 (1979) (certiorari denied). On retrial Busbin obtained a jury verdict against all the defendants jointly for libel and against the two supervisors for slander and wrongful discharge. The Court of Appeals reversed that portion of the judgment concerning slander and wrongful discharge, and affirmed the judgment against all three defendants for libel. Georgia Power Co. et al. v. Busbin, 159 Ga.App. 416, 283 S.E.2d 647 (1981). We granted the application for a writ of certiorari filed by Georgia Power to consider (1) whether a paraphrased oral communication of a written defamatory statement constitutes the publication of a libel, and (2) whether the oral communication of the allegedly libelous statement was invited by the party claiming to have been libeled. As we answer the second question in the affirmative we need not address the first.

The facts are fully set out in Busbin, supra, 159 Ga.App. 416, 283 S.E.2d 647. Briefly, the libel charge is based on the following circumstances: Georgia Power conducted an audit at the Homerville office, of which Busbin was the local manager. On the basis of the audit, which revealed some discrepancies in the handling of funds at the Homerville office, Busbin was discharged from employment. The results of the audit were reduced to writing. Some weeks later, a Georgia Power staff meeting was held in Waycross, which was attended by another employee of Georgia Power, Hill. Sometime after this meeting, Hill went to Busbin's house, where Busbin was alone with his wife. According to Hill, on this occasion Busbin asked him "some questions about, you know, what [Hill] had heard about [Busbin's] situation." According to Busbin, Hill responded, in the presence of Busbin's wife, that the audit report had been discussed at the staff meeting and that it showed, among other things, "misappropriation of company funds...." There is no evidence to show that Hill actually ever read the audit report.

(1) Assuming, without deciding, that Hill's response was libelous, it is nonetheless not actionable, as there can be no recovery for an invited libel. King v. Masson, 148 Ga.App. 229(1), 251 S.E.2d 107 (1978); Beck v. Oden, 64 Ga.App. 407, 13 S.E.2d 468 (1941). It is not necessary to a finding of invitation that the one to whom the alleged libel is published act as the agent of or intercessor for the complainant. Jackson v. Douglas County Elec. Membership Corp., 150 Ga.App. 523(1), 258 S.E.2d 152 (1979). While Busbin may not have known the precise content of the audit report prior to Hill's visit, he knew that Georgia Power had conducted an audit at the Homerville office, which involved accounts for which he was responsible. He knew also that he had been discharged. When Busbin asked Hill about his "situation", the question could only relate to the audit and to the circumstances surrounding his discharge, which he must have known were drastically unfavorable. He knew also, of course, of his wife's presence. It is not necessary that the complainant know the exact nature of the libelous matter in order for there to be an invitation of the publication of a libel. Indeed, if the inquirer had foreknowledge of the response, there would be no need for inquiry. It is enough that the complainant requests or consents to the presence of a third party and solicits the publication of matter which he knows or has reasonable cause to suspect will be unfavorable to him. The only rational conclusion to be drawn from the evidence is that Busbin invited the publication to his wife of the allegedly libelous matter.

(2) Busbin contends that the law of the case was fixed by the prior holdings of the Court of Appeals and this court and that we are thus precluded from now holding that there can be no recovery for libel as a matter of law. See Code Ann. § 81A-160(h); Medlock v. Allison, 224 Ga. 648, 164 S.E.2d 112 (1968).

After the reversal by this court in Busbin, supra, 242 Ga. 612, 250 S.E.2d 442, the Court of Appeals held, on cross-appeal by Busbin, that "... it became a jury issue as to what was intended by the spoken word as well as what was understood by the various hearers with reference to the special audit." 149 Ga.App. at 275, 276, 254 S.E.2d 146. "Whether there was libel and slander involved in this case under the circumstances in which the special audit was discussed among employees (supervisory and otherwise) after plaintiff was discharged this was a question for determination by the jury." Id. at 277, 278, 254 S.E.2d 146. Georgia Power's petition for a writ of certiorari was denied. See 149 Ga.App. 898, 254 S.E.2d 146.

The case now comes to us after retrial, further review by the Court of Appeals, 159 Ga.App. 416, 283 S.E.2d 647 and our grant of Georgia Power's petition for a writ of certiorari. It should be noted that in its most recent opinion the Court of Appeals specifically addressed the issue of invitation, rather than holding that such consideration was precluded under the law of the case. 159 Ga.App. at 421, 283 S.E.2d 647.

Whether or not the holding of the Court of Appeals, 149 Ga.App. 274, 254 S.E.2d 146 is the law of the case, nothing precludes consideration of the issue of invitation upon the present appeal, as the record was expanded on retrial to include the circumstances upon which our holding in Division 1 is based. Walter v. Davidson, 214 Ga. 187(2), 104 S.E.2d 113 (1958); Fuller v. Fuller, 213 Ga. 103, 104, 97 S.E.2d 306 (1957); Christian v. Allstate Ins. Co., 152 Ga.App. 358(1), 262 S.E.2d 621 (1979). Only at the second trial of this case did all the circumstances surrounding Hill's conversation with Busbin in the presence of Busbin's wife come to light. Specifically, there is nothing in the record of the first trial to indicate that Busbin solicited any information from Hill.

Judgment reversed.

All the Justices concur, except HILL, P. J., and SMITH, J., who dissent in opinion by SMITH, J.

SMITH, Justice, dissenting.

Obviously something is very wrong with our judicial system when it takes us five years and four months (during which time there were two jury trials, denial of one certiorari application, three opinions by the Court of Appeals and two opinions by this court) to decide that as a matter of law Busbin has no cause of action for libel. ¹

1) This case was first decided by the Court of Appeals in March of 1978. Georgia Power Co. v. Busbin, 145 Ga.App 438, 244 S.E.2d 26 (1978). The trial court's judgment, following a jury verdict of $250,000, was affirmed. The Court of Appeals held, inter alia, that "it became a jury issue as to what was intended by the spoken word as well as what was understood by the various hearers [cits.]." Id. at 445, 244 S.E.2d 26. The Court of Appeals noted that Busbin's wife was one of those to whom the contents of the audit report had been reported.

This court granted certiorari. Georgia Power Co. v. Busbin, 242 Ga. 612, 250 S.E.2d 442 (1978). We reversed, but not on the ground that there was insufficient evidence of libel to support a jury verdict. Upon the return of the case, the Court of Appeals took up Busbin's cross-appeal. Georgia Power Co. v. Busbin, 149 Ga.App. 274, 254 S.E.2d 146 (1979). In division three of the opinion, the Court said: "As was stated in Ga. Power Co. v. Busbin, 145 Ga.App. 438, 444-445(10), 244 S.E.2d 26, it became a jury issue as to what was intended by the spoken word as well as what was understood by the various hearers with reference to the special audit.

"The charge of libel only remains against the defendant Georgia Power Company, and wrongful discharge or interference, slander and libel against the other defendants. Therefore, ... [cits.], the trial court erred in refusing to allow the jury to consider the special audit in evidence although its actual contents had already been allowed in evidence." Georgia Power Co. v. Busbin, supra, 149 Ga.App. at 275-276, 254 S.E.2d 146 (emphasis supplied).

The Court of Appeals went on to say, in division nine of the opinion, that "[w]hether there was libel and slander involved in this case under the circumstances in which the special audit was discussed among employees (supervisory and otherwise) after plaintiff was discharged ... was a question for determination by the jury [cits.]."

From the second opinion by the Court of Appeals, appellants applied for certiorari to this court. We denied certiorari. Thus, the rulings of the second opinion of the Court of Appeals were left undisturbed and became the law of the case. Code Ann. § 81A-160(h); Webster v. Star Distributing Co., 244 Ga. 844, 262 S.E.2d 80 (1979); Tingle v. Harvill, 230 Ga. 70, 195 S.E.2d 654 (1973). In its second opinion, the Court of Appeals returned this case to the trial court for a retrial in accordance...