Gerald v. Ameron Automotive Centers

• Decision Date: 14 February 1978
• Docket Number: No. 54888,No. 1,54888,1
• Citation: 243 S.E.2d 565,145 Ga.App. 200
• Parties: Marvin GERALD v. AMERON AUTOMOTIVE CENTERS et al
• Court: Georgia Court of Appeals

Page 565

243 S.E.2d 565

145 Ga.App. 200

Marvin GERALD v. AMERON AUTOMOTIVE CENTERS et al.

No. 54888.

Court of Appeals of Georgia,Division No. 1.

Feb. 14, 1978.

Rehearing Denied March 8, 1978.

Gignilliat, Manchel, Johnson & Wiggins, Howard J. Manchel, Irwin M. Ellerin, Atlanta, for appellant.

Alston, Miller & Gaines, Gregory L. Fullerton, James S. Stokes, IV, Atlanta, for appellees.

SMITH, Judge.

Marvin Gerald brought this action against Ameron, a corporation, and its agent, Harper, seeking damages for Harper's alleged slanderous accusations about Gerald. Ameron moved for summary judgment on the ground that undisputed facts showed that it had not authorized or directed its agent to utter any slanderous remarks about Gerald. Gerald appeals, but we are bound by the current Georgia law of slander to affirm, and we are unable to consider his alternative theory, that theory not having been raised below.

Gerald's complaint alleged that he had been an employee of Ameron at one of its automotive service centers in Atlanta. On his day off, he visited that center as a customer and, while there, chose and purchased a set of hub caps. He charges that Harper, an Ameron regional supervisor, accused him of stealing the hub caps and thereafter discharged him. For this alleged slanderous accusation, Gerald seeks actual and punitive damages from both Harper and Ameron. Ameron moved for summary judgment on the basis of affidavits showing without contradiction that the corporation had not authorized or directed anyone to utter any slanderous comments about Gerald. On appeal, Gerald contends that this court should change the Georgia law relative to a corporation's vicarious liability for its agent's slander, but we are powerless to do so. Further, Gerald's alternative theory was not presented to the trial court, so we must decline to consider it on appeal.

1. In the seminal case of Behre v. National Cash Register Co., 100 Ga. 213, 27 S.E. 986 (1896), Justice Cobb writing for the Supreme Court announced the rule that a corporation will have no liability for the slanderous utterances of its agents or servants absent prior approval by the corporation. The Behre decision was adherent to the then prevalent rule which generally refused to hold a master liable for its servant's intentional torts, and which particularly balked at holding a corporation liable under those circumstances. This reluctance sprang from the fiction that imputed liability was based on an implied command from the master, and courts would not infer that a master impliedly authorized wilful misconduct, nor, especially, would courts infer that a corporation, having no mind or soul of its own, impliedly authorized malicious conduct. See, generally, Prosser, Torts (4th Ed. 1971), 464; 2 Harper and James, Law of Torts, 1389-1392. While modern tort theory has largely abandoned the fiction of implied command in favor of the practicality of risk allocation, Georgia's law has stubbornly clung to the notion that a corporation must expressly authorize its agent's slander, or it will have no liability. The "modern" view, yet to reach our state, was summarized 37 years ago as follows:

" 'There was a tendency, at one time, to ignore the realities of what corporations actually do and, in working out the law of corporate liability, to predicate results upon what it "could" and "could not" do, as a logical incident of its metaphysical reality. Although faced with the fact that corporations were actually committing torts and crimes in the same way and by the same agencies employed in making contracts, courts could not escape the argument that a creature with no mind or soul could not commit wrongs requiring a specific intent or a definite guilty mind.

" 'But the argument based upon the "nature" of the corporation, "more quaint, than substantial," has been universally repudiated. Corporations commit torts by the same people who effect and consummate their legitimate activities. For the most part, a corporation is liable, as an individual, for torts committed by its servants or agents acting within the scope of their service or agency quite as it is liable on its contracts properly executed and entered into by agents. Thus, corporations have been held liable for assault and battery, false imprisonment, slander and libel, wrongful death, conversion, negligence, deceit, and various types of harm resulting from its extra-hazardous activities . . . under the same circumstances that would entail liability on the part of an individual principal. And it may be liable for malicious pro...