Georgia Power Co. v. Busbin, s. 54764

• Decision Date: 07 March 1978
• Docket Number: No. 1,54791,Nos. 54764,s. 54764,1
• Citation: 244 S.E.2d 26,145 Ga.App. 438
• Parties: GEORGIA POWER COMPANY et al. v. A. D. BUSBIN. A. D. BUSBIN v. GEORGIA POWER COMPANY et al
• Court: Georgia Court of Appeals

Page 26

244 S.E.2d 26

145 Ga.App. 438

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

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

Nos. 54764, 54791.

Court of Appeals of Georgia,Division No. 1.

March 7, 1978.

Rehearing Denied March 30, 1978.

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, Berrien L. Sutton, Homerville, for appellee.

McMURRAY, Judge.

In 1962 A. D. Busbin was employed by Georgia Power Company. He thereafter received several promotions and became a local manager in Pearson, Georgia. In 1970 he moved to Homerville, Georgia, as the local manager. He had no written employment agreement when he began his employment, but he became entitled to certain retirement benefits upon reaching age 65, as long as his work was satisfactory, and his retirement date was set as June 1, 2008. As a local office manager he worked under the supervision of Rodney Moore, the district manager, and J. J. Cordova, the division manager of Georgia Power Company.

A regular audit of the Homerville office was conducted in October of 1974, and same was shown to be an average audit with no discrepancies. Approximately six months later a special audit was conducted at the Homerville office which showed three discrepancies from March 6, 1975, to April 23, 1975. These claimed discrepancies were listed in the audit under "Appliance Service Operation" as: (1) In warranty service "for the purpose of securing parts for personal use, to cover shortages in local stock, and to repair customer's appliances in some instances which were out of warranty"; (2) the release dates shown on the log book were "falsified," that is, "the release date . . . differed on eleven . . . dates (ranging) . . . from 12-18-74 to 4-18-75"; and (3) there had been 31 parts sales in which "no labor was charged," and "(n)o labor was charged on several employees, neighbors, and friends appliances." Under Merchandise Sales a down payment "of $1.70 was delayed in being reported by 1 month," the customer contending this was paid at delivery, and the local manager immediately collected same supposedly from the customer. Under "Reconnection Fees," a shortage of $5.03 was shown by two failures to report "a $5.00 reconnection" and a $17 payment on a customer's service account which was "credited for $16.97." The audit accused the local manager of "poor judgment" but did not list any other "facts that were considered." It also states that management considered it necessary "to have someone from the Security Department interview the local manager and serviceman, to assure that no other activities were being performed by the local manager or serviceman to defraud the company," and "(t)hese interviews revealed nothing more than what had previously been determined." The audit then summarized in general terms the above deficiencies and steps that should be taken to prevent the recurrence of same. It concluded with the statement, "the local manager was given the choice of resigning or being discharged" and the serviceman was "suspended for two weeks." Busbin was then fired when he refused to resign, although he was later allowed to resign.

Whereupon, Busbin sued Georgia Power Company, and Moore and Cordova, acting within the scope of their employment, for damages in wrongfully discharging him after 12 years of loyal and faithful service and for maliciously, falsely and publicly charging him with misusing company monies and falsifying company records. Plaintiff contended the defendants Cordova and Moore procured and maliciously conspired to procure his discharge by falsely accusing him of fraud, theft and dishonesty knowing there were no grounds for such accusations and by reason of which he was wrongfully discharged by Georgia Power Company. He sought judgment in the amount of $500,000 as actual and punitive damages by reason of his wrongful discharge, the conspiracy to procure his discharge, and the slander and libel resulting therefrom. A verdict was directed as to Cordova, and he is no longer a party, having been dismissed from the case. The case proceeded to trial, and the jury returned a verdict in favor of the plaintiff in the amount of $250,000. The judgment followed the verdict, and the defendants moved for judgment notwithstanding the verdict or in the alternative for a new trial. Motion was denied, and defendants appeal in Case No. 54764. Plaintiff cross appeals in Case No. 54791. Held :

1. The evidence here shows that plaintiff was employed and would remain employed until he reached retirement age as long as his "work was satisfactory." Thus, in any event, whether or not the employment of plaintiff was definite or indefinite as to time, this question was for jury determination. National Manufacture, etc., Corporation v. Dekle, 48 Ga.App. 515, 521(3), 173 S.E. 408; McClure v. Leasco Computer, Inc., 134 Ga.App. 871, 216 S.E.2d 689; Magarahan v. Wright & Lamkin, 83 Ga. 773, 777, 10 S.E. 584. A jury issue is presented when there is conflict as to what the specific terms of an oral contract are. Venable v. Block, 138 Ga.App. 215, 217, 225 S.E.2d 755; Loughman v. Shine, 129 Ga.App. 600(3), 200 S.E.2d 326. An employee, generally, has a property right in his contract of employment (written or verbal, even if at the will of the employer) which may not be unlawfully interfered with by another. See Ott v. Gandy, 66 Ga.App. 684(1), 688, 19 S.E.2d 180; Luke v. DuPree, 158 Ga. 590, 597, 124 S.E. 13; Charles v. Simmons, 215 Ga. 794, 797, 113 S.E.2d 604; Salter v. Howard, 43 Ga. 601, 604; Southern Railway Company v. Chambers, 126 Ga. 404, 406, 55 S.E. 37; Bromley v. Bromley, 106 Ga.App. 606, 613, 127 S.E.2d 836; King v. Schaeffer, 115 Ga.App. 344(1), 154 S.E.2d 819; affirmed in Schaeffer v. King, 223 Ga. 468, 155 S.E.2d 815.

2. Mr. Cordova, Mr. Moore, Mr. Wansley and other employees, while individuals, were also agents acting within the authority of the corporate defendant, Georgia Power Company, inasmuch as corporations do nothing except through their agents. Loudon v. Coleman, 59 Ga. 653; Tallman v. Southern Motor Exchange, Inc., 97 Ga.App. 565, 567, 103 S.E.2d 640.

3. The testimony disclosed that plaintiff had been employed by defendant Georgia Power Company for some 12 years, had received "several notes of commendation." Defendant Moore testified he had commended plaintiff for his work, although he testified plaintiff had good and bad performances and "had a long record of poor management." He also testified he fired him without a hearing, although he was aware of the various commendations he had received over the years. Defendant Moore then testified he discussed his decision with his superior, J. J. Cordova, Division Manager, although he had the right to hire and fire, but "in this case . . . with the concurrence of Divisions supervision." Meetings were held with department heads, including finally a Georgia Power Company division vice-president, a Mr. Wansley, and all concurred in the decision to discharge the plaintiff. Therefore, it was a jury issue as to whether Georgia Power Company became liable for the wrongful conduct of Moore and others, even if the verdict was directed as to Cordova. All of these agents could have conspired in, and did ratify the firing of plaintiff, although Wansley is not a defendant, and Cordova was no longer a party defendant. See Code §§ 105-1207; 105-1401; Piedmont Cotton Mills, Inc. v. H. W. Ivey Construction Company, Inc., 109 Ga.App. 876(1a), 879, 137 S.E.2d 528; Archer v. Gwinnett County, 110 Ga.App. 442(2), 138 S.E.2d 895; Wrigley v. Nottingham, 111 Ga.App. 404, 407, 141 S.E.2d 859; Nottingham v. Wrigley, 221 Ga. 386, 387, 144 S.E.2d 749; Cook v. Robinson,216 Ga. 328, 329, 116 S.E.2d 742; Huckaby v. Griffin Hosiery Mills, 205 Ga. 88, 91, 52 S.E.2d 585; National Association for Advancement of Colored People v. Overstreet, 221 Ga. 16(1), 20-22, 142 S.E.2d 816; Wiley v. Georgia Power Company, 134 Ga.App. 187, 191, 213 S.E.2d 550.

There was evidence that the acts were malicious in firing plaintiff, that he was slandered and libeled by officials telling others the reasons for his firing, and if there was any question, under all the circumstances, as to these acts, it was for jury determination. See Montgomery v. Pacific & Southern Company, Inc., 131 Ga.App. 712, 716(10), 206 S.E.2d 631. For even if the evidence shows plaintiff could have been fired, it was a jury issue under all the facts and circumstances as to the firing whether it was the result of a conspiracy due to wrongful conduct of Moore and others as employees of Georgia Power Company, as well as the evidence of slander and libel of plaintiff which may or may not have been true. The conspiracy may be shown by circumstantial as well as by direct evidence. Nobles v. Webb, 197 Ga. 242, 245, 29 S.E.2d 158. And, proof of the conspiracy renders the act of one in defrauding the injured party the acts of all. Wall v. Wall, 176 Ga. 757(1), 761, 168 S.E. 893. In order to direct the verdict, the trial court must in construing the evidence most favorably toward the plaintiff, from the evidence determine there was no evidence of any kind supporting plaintiff's position. Curry v. Roberson, 87 Ga.App. 785, 786, 75 S.E.2d 282; Misfeldt v. Hospital Authority of City of Marietta, 101 Ga.App. 579, 115 S.E.2d 244; Johnson v. Mann, 132 Ga.App. 169, 207 S.E.2d 663. The court did not err in denying the motions for directed verdict and for judgment notwithstanding the verdict made by the defendants.

4. As stated in Division 1 and based on the evidence submitted, the trial court did not err in charging that the plaintiff's employment contract with Georgia Power Company "was not required to be in writing in order to be valid," and for the jury to decide what the terms were as to his employment contract, and that if under the terms of...