Hodges v. Youmans

• Court: Georgia Court of Appeals
• Writing for the Court: EVANS; DEEN
• Citation: Hodges v. Youmans, 200 S.E.2d 157, 129 Ga.App. 481 (Ga. App. 1973)
• Decision Date: 05 July 1973
• Docket Number: No. 48122,No. 2,48122,2
• Parties: R. Bernard HODGES v. Louise YOUMANS et al

Page 157

200 S.E.2d 157

129 Ga.App. 481

R. Bernard HODGES v. Louise YOUMANS et al.

No. 48122.

Court of Appeals of Georgia, Division No. 2.

July 5, 1973.

Rehearing Denied July 26, 1973.

David H. Fritts, Savannah, for appellant.

George H. Chamlee, Miller, Beckmann & Simpson, A. Martin Kent, Bouhan, Williams & Levy, Frank Seiler, Brannen & Wessels, Perry Brannen, Rogers, Terry & Coolidge, Edgar R. Terry, James W. Head, Anton F. Solms, Jr., Joseph B. Bergen, Savannah, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

This is the third time this case has appeared in this court. First, the lower court sustained defendant's motion to dismiss plaintiff's complaint, and this court reversed. Hodges v. Youmans, 120 Ga.App. 805, 172 S.E.2d 431. Then two of the defendants filed motions for summary judgment, which were sustained by the lower court and this court reversed, and held that the question of conspiracy and whether defendant's actions were in furthernance of said conspiracy with the other defendants, were questions of fact and 'all of these issues should properly be determined by a jury.' Hodges v. Youmans, 122 Ga.App. 487, 493, 177 S.E.2d 577, 581.

When the remittitur was returned, all defendants filed motions for summary judgment or the equivalent of motions for summary judgment, that is, some filed motions to dismiss, which actually were motions for judgment on the pleadings, with evidence considered in connection with said motions. Under Code Ann. § 81A-112(c) (§ 12, CPA; Ga.L.1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693) such a motion is treated as a motion for summary judgment. See also Kell v. Ga. Power Co., 124 Ga.App. 237, 183 S.E.2d 511. The lower court sustained motions of the defendants and plaintiff appeals for the third time. Held:

1. The law of this case was fixed and established when this case was before this court at its last appearance here, and same is binding on the lower court and on this court. Myers v. Johnson, 116 Ga.App. 232, 156 S.E.2d 663. Although only two judges of this court concurred in the opinion as to Division 2 in Hodges v. Youmans, 122 Ga.App. 487, 177 S.E.2d 577, supra, still that decision is the law of this case, although not binding as a precedent in other cases. See Freeman v. Martin, 116 Ga.App. 237, 241, 156 S.E.2d 511.

Among other things, the law of this case, as established in its last appearance, includes the following: '. . . the facts alleged against (Wessels, defendant) him, including those admitted to have been committed by him, were such that a jury could have determined that he acted in furtherance of a conspiracy with the other defendants, and that his conduct was not in good faith. All of these issues should properly be determined by a jury.' Hodges v. Youmans, 122 Ga.App. 487, 177 S.E.2d 577, supra. Wessels, defendant, is again before this court in the same posture. He has not-could not-change the 'facts alleged against him,' and although by law he might try to change, or weaken, or soften, the force of some of the admissions he previously made, such changes or withdrawn admissions would still mreain as admissions. Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138(1), 33 S.E. 945; Alabama Mid. Ry. Co. v. Guilford, 114 Ga. 627(1), 40 S.E. 794; Brittain v. Reid, 220 Ga. 794, 797, 141 S.E.2d 903. Thus, as was held before, and is now the 'law of this case,'-'all of these issues should properly be determined by a jury.'

2. The position of the other defendants is practically the same as is the position of Wessels. The question of conspiracy, as has been held time and again by the apppellate courts of Georgia, is 'solely a question for the jury.' See Tanner v. State, 161 Ga. 193(11), 130 S.E. 64; Weeks v. State, 66 Ga.App. 553, 556, 18 S.E.2d 503; Johnson v. State, 83 Ga.App. 710(2c), 64 S.E.2d 634. And how is a conspiracy proven? The case of Harris v. State, 184 Ga. 382, 392, 191 S.E. 439, 444, spells it out with simplicity and specificity thus: 'Conspiracy may be shown by acts and conduct as well as by direct proof or express agreement. It may be shown by circumstantial evidence. It may be established by inference, as a deduction from conduct which discloses a common design.' (Emphasis supplied) See also Walden v. State, 121 Ga.App. 142(1), 173 S.E.2d 110, and cits. When a conspiracy is alleged, even in criminal cases, the defendant-conspirator cannot remove the defendant-conspirator conspiracy from the jury simply by swearing that he did not conspire. If so, all criminal-defendants would receive a directed verdict of not guilty. The plaintiff (or state) never has a witness who was present with the conspirators when the conspiracy was formulated. Plaintiff simply alleges facts and circumstances which suggest a conspiracy, or which 'establish an inference, as a deduction from conduct which discloses a common design' as was held in the Harris case, supra. Plaintiff alleged the facts and circumstances in the case sub judice, and defendants admit the truth of those facts and circumstances, but simply because they swear they did not conspire, and that they acted in good faith, ergo, they would be allowed to go 'home-free.' That is not the law of Georgia, and is certainly not 'the law of this case.'

3. Defendants contend they were acting in good faith and that their testimony to such effect removes any issue for determination by the jury. Not so! Good faith, like conspiracy, is always a question for the jury. Even though the party may swear he acted in good faith, the jury may decide he acted in bad faith from consideration of facts and circumstances in the case. In Thompson v. Glover, 120 Ga. 440(2), 47 S.E. 935(2), it is held: 'While on an issue involving 'good faith' a party may testify as to his mental state, the jury are not concluded by what he says in reference thereto, but may test its truthfulness by comparing such claim with all the circumstances attending the transaction.' (Emphasis supplied)

In Hasty v. Wilson, 223 Ga. 739(7), 158 S.E.2d 915(7), it is held: 'A witness may properly testify as to what his intention was and although such evidence is not conclusive on the trior of facts, it is to be considered with all the facts and circumstances of the case in determining her real intention of the witness.' To the same effect see Childers v. Ackerman Construction Co., 211 Ga. 350, 354, 86 S.E.2d 227, and Bowen v. Consolidated Mort. etc. Co., 115 Ga.App. 874, 876, 156 S.E.2d 168.

4. As to the defendant McNeal, the other county commissioner, while the record shows that he was not actually named as a party to the litigation brought against plaintiff Hodges in which it was sought to stop Hodges from building the trailer-park, the record also shows that he was in sympathy with the objectors; that neither he nor they wanted the park built; that he inquired of Hodges if he would stop the project if paid his costs, and otherwise interceded for the other defendants. The record shows also that his attitude towards Hodges was arrogant; he voted to revoke Hodges' building permit and voted to deny him a building license. All of this shows sufficient facts of conspiracy and making common cause with the alleged coconspirators towards furthering their objectives to create a jury question. The jury question is as to whether or not his actions were in good faith in the performance of his official duties, and whether or not his other actions were the result of and in furtherance of the alleged conspiracy. As to his official acts, if they were performed in good faith he would not be liable. But this court in the previous appearance of this case established the law of this case as to Wessels' acts as commissioner. We held that an official is not immune from liability if he is not acting in good faith, or beyond the scope of his duties, or commits acts not authorized by law; or acts maliciously or wantonly with intent to injure the property of another; or where the power of the officer is being manifestly abused to the oppression of the citizen. The rule applies with equal force to Commissioner McNeal, and it is for a jury to determine whether he is liable. He did not negate the essential averments against him in Hodges' tort action. Saunders v. Vikers, 116 Ga.App. 733(2, 3), 158 S.E.2d 324; Sou. Bell Tel. & Tel. Co. v. Beaver, 120 Ga.App. 420(3), 170 S.E.2d 737; Werbin & Tenenbaum, Inc. v. Heard, 121 Ga.App. 147(2), 173 S.E.2d 114.

5. Two of the defendants herein attempt to absolve themselves from liability by contending that attorney Joseph B. Bergen, who appears as attorney of record for the objectors, had no right to represent them in this litigation or to use their names in the pleadings. This is not an available defense in this court. From a reading of the entire record, including the briefs of counsel, it appears that Attorney Bergen was authorized to represent these two defendants. Under the provisions of Code § 9-604 we must presume, prima facie, that all attorneys are authorized to properly represent any cause in which they appear. Further, as the record does not show that these two defendants raised this point in the lower court, they are in the position of having acquiesced in such representation there and it would appear that they are estopped to raise the point in this court. See Code § 38-114. There has been no finding by the lower court that he did not have the authority to represent these two defendants. Attorney Joe Bergen is a reputable and respected attorney. and has been a member of the Bar of this court for more than 20 years. We hold against these two defendants in their contention that he was not authorized to represent them.

6. From the allegations in plaintiff's complaint, and from the admissions in the various answers of defendants, there was a community or concert of action among the various defendants to prevent and obstruct plaintiff from building and operating a trailer-park....