Georgia Power Co. v. Busbin

• Decision Date: 22 February 1979
• Docket Number: Nos. 54764,54791,s. 54764
• Citation: 254 S.E.2d 146,149 Ga.App. 274
• Parties: GEORGIA POWER COMPANY et al. v. BUSBIN. BUSBIN v. GEORGIA POWER COMPANY et al.
• Court: Georgia Court of Appeals

Page 146

254 S.E.2d 146

149 Ga.App. 274

GEORGIA POWER COMPANY et al. v. BUSBIN.

BUSBIN v. GEORGIA POWER COMPANY et al.

Nos. 54764, 54791.

Court of Appeals of Georgia.

Feb. 22, 1979.

Certiorari Denied April 25, 1979.

Rehearing Denied in No. 54791 March 13, 1979.

Troutman, Sanders, Lockerman & Ashmore, Robert L. Pennington, Frederick E. Link, Atlanta, Tillman, Brice, McTier, Coleman & Talley, Wade H. Coleman, Valdosta, for appellants.

Jack J. Helms, Brooks E. Blitch, III, Berrien L. Sutton, Homerville, for appellee.

McMURRAY, Judge.

Following the decision in Ga. Power Co. v. Busbin, 242 Ga. 612, 250 S.E.2d 442 our judgment in Ga. Power Co. v. Busbin, 145 Ga.App. 438, 244 S.E.2d 26 was vacated, and the judgment of the trial court is now reversed by order of this court. The motion to further review that case (# 54764) is denied. See Ga. Power Co. v. Busbin, 242 Ga. 612, 250 S.E.2d 442, supra, and in particular, Division 8 thereof, which is controlling, wherein the judgment of this court is reversed.

We now deal with the cross appeal (# 54791) by reason of the reversal. Cross appellant (plaintiff) Busbin specifically abandons enumerations of error 2, 3, 4, 8, 9, 14, 19 and 23. These enumerations will not be considered hereafter. Held:

1. Whether or not the discharge of plaintiff and the resulting administrative decision of the Employment Security Agency acted as an estoppel and res judicata to relitigate these issues (see Epps Air Service, Inc. v. Lampkin, 229 Ga. 792, 795, 194 S.E.2d 437; Id. Epps Air Service, Inc. v. Lampkin, 125 Ga.App. 779, 189 S.E.2d 127, reversed), defendant "Moore's opposition to Busbin's (plaintiff) application (for unemployment compensation) was a 'communication' within the meaning of the statute," as so declared by the Supreme Court. See Division 7 of Ga. Power Co. v. Busbin,242 Ga. 612, 250 S.E.2d 442, supra.

But oral communications of defamatory statements to others is simply not allowed so as to allow "either employer or employee to broadcast and publish the letters, reports or communications of any other matters in regard to the Employment Security Agency with immunity." See Ga. Power Co. v. Busbin, 145 Ga.App. 438, 444(9), 244 S.E.2d 26, 31 and cits. The trial court did not err in striking the amendment to the complaint setting forth the results of the Employment Security Agency. Enumerations of error 1 and 5 are not meritorious.

2. The evidence here was conflicting as to whether or not the defendant Cordova could have discharged the plaintiff had he chosen to do so, without consulting with his supervisors. In which event he could not be liable to plaintiff for wrongful discharge regardless of his motives. See McElroy v. Wilson, 143 Ga.App. 893, 895, 240 S.E.2d 155; Rhodes v. Levitz Furniture Co., 136 Ga.App. 514, 518(3), 221 S.E.2d 687. However, as a third person tortfeasor he could be liable to plaintiff in an action for wrongfully procuring plaintiff's discharge. See Schaeffer v. King, 223 Ga. 468, 155 S.E.2d 815; Ga. Power Company v. Busbin, 242 Ga. 612(2), 250 S.E.2d 442, supra. See also Code §§ 4-302, 4-303, 4-312; 105-108, 105-109; Curry v. Durden, 103 Ga.App. 371(1), 118 S.E.2d 871; Isom v. Schettino, 129 Ga.App. 73, 74(1), 199 S.E.2d 89. The trial court erred in directing a verdict against the plaintiff in favor of the defendant Cordova as there was evidence in regard to his involvement in the discharge of the plaintiff here and it is not clear that he had the absolute right to discharge the plaintiff.

3. As was stated in Ga. Power Co. v. Busbin, 145 Ga.App. 438, 444-445(10), 244 S.E.2d 26, supra, 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, under the decisions in Garren v. Southland Corp., 235 Ga. 784, 785, 221 S.E.2d 571, and Garren v. Southland Corp., 237 Ga. 484, 228 S.E.2d 870, 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. This special audit involved the spoken word already in evidence and the jury was entitled to consider it to determine whether or not it had been libel and slander by the defendants.

4. All of the defendants contended plaintiff had ordered parts on warranty appliances for out of warranty appliances in violation of the company policy and had unlawfully ordered such a part on the warranty of Carolyn and Joe Campbell. Plaintiff, as a witness, was authorized to explain his conduct in that he had authorization to do so from a Maytag representative. See Code § 38-302; Stinespring v. Fields, 139 Ga.App. 715, 719(3), 229 S.E.2d 495; White v. State, 231 Ga. 290(2), 292-293, 201 S.E.2d 436. However, on review of the transcript we do not find where the court refused to allow both a thorough examination of plaintiff as a witness as well as a thorough and sifting cross examination of this witness in regard to this issue. We find no error in the court's handling of this issue as no definite exclusion was ever declared by the court. There is no merit in this complaint.

5. On cross examination of the defendant Moore with reference to whether or not he had made statements that there had been serious misappropriation of company funds he answered that he had never made such a statement. Whereupon an attempt was made to cross examine this defendant witness (Moore) as to his answer to questions in a deposition as to a special audit and a letter written to the Employment Security Agency. As ruled above in Division 1, no issue involved in the communication by letter or otherwise with the Employment Security Agency could be allowed in evidence. However, as to the special audit which should be allowed in evidence as held in Division 3 above, and based on testimony in regard to the contents which was already in evidence, the defendant Moore could have been subjected to a thorough and sifting cross examination as to the deposition in regard to his answers as to the special audit which should have been allowed in evidence. See Code § 38-1705; Dilliplane v. Henderson, 141 Ga.App. 684(1), 234 S.E.2d 357; Ludwig v. J. J. Newberry Co., 78 Ga.App. 871(1a), 52 S.E.2d 485; State Housecraft, Inc. v. Jones, 96 Ga.App. 182(2), 186-187, 99 S.E.2d 701.

6. The trial court erred in failing to charge the written request of the plaintiff as to his right of privacy as set forth in Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68; and Goodyear Tire & Rubber Co. v. Vandergriff, 52 Ga.App. 662, 665, 184 S.E. 452, which hold that the right of privacy is embraced within the absolute rights of personal security and personal liberty, "to be let alone," to live a life of seclusion or to be free of unwarranted interference by the public about matters which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual's private life which would outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Compare Hines v. Columbus Bank, etc., Co., 137 Ga.App. 268, 223 S.E.2d 468.

7. Plaintiff enumerates error to the court's charge (defendants' written request No. 5) as to plaintiff's employment. This issue is controlled by the Supreme Court ruling in Ga. Power Co. v. Busbin, 242 Ga. 612(1)(2)(3) and (8), 250 S.E.2d 442, supra. We do not consider this enumeration of error further. Also as to the written request No. 7 as to the wrongful discharge of the plaintiff by the defendant Georgia Power Company we are likewise controlled by that decision shown above.

8. However, the evidence shows clearly without dispute that the plaintiff was discharged or his resignation was forced by the defendants since his resignation (after being discharged) was in no way voluntary. The trial court therefore erred in charging as to a voluntary resignation on the part of the plaintiff.

9. 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. See Sheftall v. Central of Ga. R. Co., 123 Ga. 589, 590(10), 596-597, 51 S.E. 646. However, we do not believe the court erred in...