King v. Schaeffer

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; BELL; EVANS; WHITMAN; EVANS; Certain language was used in some of the opinions if the prior appearances of this case in the Court of Appeals and Supreme Court of Georgia which intimated that if the defendant Schaeffer, a superior officer of Kin
• Citation: King v. Schaeffer, 181 S.E.2d 700, 123 Ga.App. 531 (Ga. App. 1971)
• Decision Date: 04 March 1971
• Docket Number: 2,No. 45541,Nos. 1,3,45541,s. 1
• Parties: John B. KING v. E. H. SCHAEFFER et al

Page 700

181 S.E.2d 700

123 Ga.App. 531

John B. KING v. E. H. SCHAEFFER et al.

No. 45541.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 4, 1971.

Rehearing Denied March 31, 1971.

Syllabus by the Court

1. Under the law of the case established on previous appeals in this litigation, the evidence authorized a finding that the defendant Schaeffer had an unqualified right to discharge the plaintiff, which, under the circumstances of this case, authorized a verdict in favor of both defendants.

2. Any error in ruling on the admissibility of evidence is harmless where similar evidence is offered without objection.

King, an employee of General Motors, sued in the Superior Court of Fulton County seeking damages for alleged wrongful discharge, joining as defendants Schaeffer, the plant manager for the Fisher Body plant division and Doran, the day-shift plant superintendent. A division of the opinion in King v. Schaeffer, 115 Ga.App. 344, 154 S.E.2d 819, when the case was first here after grant of summary judgment to the defendants indicating that Schaeffer might not have the right to discharge King was stricken on certiorari (Schaeffer v. King, 223 Ga. 468, 155 S.E.2d 815), since generally 'no liability for procuring a breach of contract exists where the breach is caused by the exercise of an absolute right,' and the issue was held one for jury determination. The first jury trial resulted in a directed verdict for the defendants which was reversed in King v. Schaeffer, 119 Ga.App. 735, 168 S.E.2d 911 (cert. denied) in a holding that the issue should be decided by a jury, but the opinion of the Supreme Court was construed to mean that 'if (Schaeffer) had an absolute right to discahrge King he would not be liable in tort even though he did not exercise his absolute right but induced others to direct him to do the discharging.'

A second trial resulted in a jury verdict for the defendants, from which plaintiff appeals.

Neely, Freeman & Hawkins, William H. Duckworth, Jr., Atlanta, for appellant.

King & Spalding, Robert L. Steed, Charles H. Kirbo, Atlanta, for appellees.

DEEN, Judge.

1. The evidence on the second trial was substantially the same as on the first. Both the Supreme Court and Court of Appeals have held that if the jury should find under the evidence in the case (including evidence of the rules and regulations of the employer which was introduced on both trials but not on the motion for summary judgment) that if Schaeffer's right to discharge King was absolute he would not be liable in an action charging him and another superior with conspiracy to effect the discharge. 'Any ruling by the Supreme Court of the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.' Code Ann. § 81A-160(h). Further, the introduction of certain rules and regulations in evidence would not, even disregarding the prior opinion, demand a finding that Schaeffer could not discharge King because the document also states that it is recommended 'with such changes as are necessary and desirable' and that it 'does not constitute a contract between the corporation and the employee.'

Nor was it error to charge the jury that, should they decide that the plant manager Schaeffer had the right to terminate King's employment by reason of the established practice of General Motors and the actual authority given him it would be their duty to return a verdict in favor of the defendants. Such a verdict under that state of facts would of course be necessary as to Schaeffer and, disregarding other considerations, if Schaeffer, the only Fulton County defendant, prevailed, there could be no verdict against the co-defendant, Doran, a resident of DeKalb County. It is, therefore, not necessary to go into the question of whether malice and lack of althority on the part of Doran, if he persuaded Schaeffer to do something that Schaeffer could do with impunity in any event regardless of motive, would be actionable against Doran in a suit based on conspiracy between the two to effect such a result.

2. The remaining enumeration of error goes to the admission of evidence which is contended to be hearsay and inadmissible as an attempt to alter a written instrument. Even if error, the admission of the testimony was not harmful since other similar testimony was admitted without objection. Walthour v. State, 191 Ga. 613, 13 S.E.2d 659; Moore v. State, 193 Ga. 877(9), 20 S.E.2d 403; American Family Life Ins. Co. v. Glenn, 109 Ga.App. 122(2), 135 S.E.2d 442.

The trial court did not err in overruling the motion for new trial.

BELL, C.J., JORDAN and HALL, P. JJ., and EBERHARDT, PANNELL and QUILLIAN, JJ., concur.

EVANS, J., dissents.

WHITMAN, J., not participating.

EVANS, Judge (dissenting).

I dissent from the judgment of affirmance and from Division 1 and the correspoding headnote. I cannot agree with the majority that the law of the case has been established on previous appeal of this litigation. Therefore a review of the facts and events of this case are necessary here.

King filed a suit against Schaeffer and Doran, alleging that they had conspired with each other to wrongfully cause him to be discharged as an employee of Fisher Body Plant in Atlanta, a division of General Motors Corporation. The petition was brought in four counts as follows:

Count 1 alleged a wrongful and fraudulent conspiracy between the two defendants to cause him to be discharged; Count 2 was based on slander; Count 3 was for libel; and Count 4 was quite similar to Count 1.

The case has been to the Court of Appeals twice and the Supreme Court of Georgia once. In King v. Schaeffer, 115 Ga.App. 344, 154 S.E.2d 819, this court reversed the trial court's judgment in granting summary judgment for the defendants but affirmed the judgment of dismissal as to slander (Count 2). The appeal as to Count 3 was abandoned. On certiorari to the Supreme Court of Georgia, Schaeffer v. King, 223 Ga. 468, 155 S.E.2d 815, the Court of Appeals was affirmed with direction to strike Division 4 of the Court of Appeals' opinion. The case was reached again in Superior Court of Fulton County wher a verdict was directed in favor of the defendants, and this court reversed that judgment in King v. Schaeffer, 119 Ga.App. 735, 168 S.E.2d 911. On the return of the remittitur another trial was held resulting in a verdict and judgment for the defendants. A motion for new trial was duly filed, heard and overruled, and the appeal is from the final judgment and the judgment of the court overruling the plaintiff's amended motion for new trial. It is my firm opinion that one of the errors enumerated is meritorious, that is, that the trial court erred in giving a written request to charge submitted by the defendants, to the effect that if the jury decided the plant manager, defendant Schaeffer, had the right to terminate Mr. King's employment by reason of the established practice of General Motors, and because of the actual authority given him by two other officials, the jury would need to go no further in the consideration of the case, but it would be their duty to return a verdict in favor of the defendants.

1. It is perhaps an understatement to say that none of the decisions by our appellate courts in this case can be construed to have established 'the law of the case.' In fact, it is more than a little difficult to determine exactly what was decided other than what has been set out above.

One principle of law that runs throughout this entire case should be set forth at the outset to make for a better understanding of it. First of all, our Georgia appellate courts have held time and again that a person who conspires with an employer to wrongfully effect the discharge of an employee, even though the employer has absolute authority to terminate such employment, is not afforded immunity. As a corollary, it follows that the employer is not afforded immunity under such circumstances because his rights and liabilities are measured exactly as are the rights and liabilities of his co-conspirator.

Certain language was used in some of the opinions if the prior appearances of this case in the Court of Appeals and Supreme Court of Georgia which intimated that if the defendant Schaeffer, a superior officer of King, had an absolute right to discharge him, then he would incur no...