Goodyear Tire & Rubber Co. v. Vandergriff

• Decision Date: 25 February 1936
• Docket Number: 24729.
• Parties: GOODYEAR TIRE & RUBBER CO. et al. v. VANDERGRIFF.
• Court: Georgia Court of Appeals

184 S.E. 452

52 Ga.App. 662

GOODYEAR TIRE & RUBBER CO. et al. v. VANDERGRIFF.

No. 24729.

Court of Appeals of Georgia, First Division

February 25, 1936

Syllabus by the Court.

The petition set out a cause of action, and the court did not err in overruling the general demurrers.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Petition by Hoke Vandergriff against the Goodyear Tire & Rubber Company and others. To review a judgment overruling general demurrers to the petition, defendants bring error.

Affirmed.

Hoke Vandergriff brought an action for damages against Goodyear Tire & Rubber Company and Gus Reynolds, Claude Mason, and William Starnes, alleged to be agents and servants of the Goodyear Company, alleging in substance that he is in the trucking business in Atlanta; that defendant Gus Reynolds telephoned five named tire dealers in the city of Atlanta and competitors of the Goodyear Company, represented himself to be the plaintiff Vandergriff, and indicated to the dealers that he was in the market for a quantity of tires; that as a result of these misrepresentations Reynolds secured from each of these dealers secret and confidential sales prices on automobile tires; that as a further result of these misrepresentations, representatives of these tire dealers called on the plaintiff, annoyed him, consumed his time, and disturbed his employees; that Reynolds, in so doing, acted under the direction of his superior officer, defendant Mason that "William G. Starnes, manager of the Goodyear Tire & Rubber Company, did telephone J. R. Cheshire, manager of the McClaren Tire Company [one of the dealers from whom confidential prices were fraudulently procured by Reynolds] and inquired of him how he, Cheshire, could sell tires at such low figures; whereupon Cheshire asked who had informed Goodyear Tire Company of his, Cheshire's prices, and Starnes replied that Hoke Vandergriff had given him Cheshire's prices"; that "when Reynolds impersonated petitioner, Vandergriff was in Montgomery Alabama"; that petitioner at no time telephoned the named dealers to inquire about the prices of tires, nor did he authorize Reynolds or any agent of the Goodyear Company to use his name; "that this fraudulent impersonation by Reynolds was done for the express purpose of advancing the interest of the Goodyear Tire Company with wanton disregard of the feelings and reputation of the petitioner; that petitioner is entitled to the uninterrupted enjoyment of his name and reputation, but that the defendants, through its agents, have trespassed on the petitioner's rights of privacy and petitioner is therefore entitled to damages;" that "petitioner has suffered an injury to his personality Petitioner is entitled to the sole and exclusive use of his name, and defendant through its agents have violated this right; this direct invasion of petitioner's legal rights has subjected the petitioner to embarrassment and chagrin"; that "petitioner's reputation as a business man has been injured in that this illegal impersonation causes petitioner to be held in contempt and ridicule with his business associates, and particularly with" the five named dealers, "who, at expense to themselves, sent representatives to call on petitioner because of the statement of Reynolds that petitioner was in the market for 32-6 tires."

Each of the defendants demurred to the petition as a whole on the ground that it failed to set out a cause of action, and specially to various paragraphs. The general demurrers and some of the special demurrers were overruled. The defendants assign error on the overruling of the general demurrers.

Harold Hirsch & Marion Smith and A. S. Clay, 3d, all of Atlanta, for plaintiffs in error.

Craighead & Craighead, Dwyer & Dwyer, of Atlanta, for defendant in error.

BROYLES Chief Judge (after stating the foregoing facts).

Assuming that the allegations of the petition are true, as we must do in testing it as against a general demurrer, the defendants have not only injured the plaintiff, but they have committed a crime or been a party thereto; and it is not unusual in this state for one to institute civil proceedings to recover for damage or injury resulting from a crime.

Section 38-9901 of the Code of 1933, entitled "Personating another as witness or otherwise," is as follows: "Any person who shall falsely represent or personate another, and in such assumed character answer as a witness to interrogatories, or do any other act in the course of any suit, proceeding, or prosecution, or in any other way, or matter, or thing, whereby the person so personated or represented, or any other, might suffer damage loss or injury, shall be punished by confinement and labor in the penitentiary for not less than one year nor more than five years." (Italics ours.) And section 26-7406 is as follows: "Falsely personating another.-Any person who shall falsely personate another, and thereby fraudulently obtain any money or other thing of value, or with the intention of thereby fraudulently obtaining any money or other valuable thing, shall be deemed a cheat and swindler, and shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than five years." (Italics ours) The "secret and confidential prices" obtained by "fraudulent impersonation," as alleged in the petition, constituted a "thing of value" as used in the statute. In Board of Trade of Chicago v. Tucker (C.C.A.) 221 F 305, stock market quotations were...