McElroy v. Wilson

• Decision Date: 25 October 1977
• Docket Number: No. 3,No. 54380,54380,3
• Citation: 143 Ga.App. 893,240 S.E.2d 155
• Parties: Lillian McELROY v. C. H. WILSON, Jr., et al
• Court: Georgia Court of Appeals

Page 155

240 S.E.2d 155

143 Ga.App. 893

Lillian McELROY v. C. H. WILSON, Jr., et al.

No. 54380.

Court of Appeals of Georgia, Division No. 3.

Oct. 25, 1977.

Rehearing Denied Nov. 16, 1977.

G. Seals Aiken, John L. Respess, Jr., Atlanta, for appellant.

Jones, Bird & Howell, David A. Rammelkamp, Earle B. May, Jr., Atlanta, for appellees.

BIRDSONG, Judge.

Appellant filed a complaint for damages in the Superior Court of Fulton County, alleging that she was tortiously discharged from her employment as supervisor-housekeeper at Grady Memorial Hospital. From the grant of summary judgment in favor of appellees (appellant's superiors at Grady Hospital), this appeal was brought. Seventeen enumerations of error were set forth, all of which relate to the propriety of the grant of summary judgment in favor of appellees. Held :

1. Analysis of appellant's prolix and repetitive enumerations of error reveals that all but two attack the grant of summary judgment in favor of the appellees on the ground that the evidence demanded the grant of summary judgment in favor of appellant. By implication, appellant presumably contends that genuine issues of fact were presented.

An examination of appellant's complaint, as well as the amendment thereto, reveals neither a "short and plain statement of the claim showing the pleader is entitled to relief" nor "simple, concise, and direct" averments in support of appellant's pleadings, as required by Code Ann. § 81A-108(a) and (e). Nevertheless, we have attempted to discern the legal ground upon which appellant's claim was based in an effort to determine whether the trial court erred in granting summary judgment in favor of the appellees. The gravamen of the action appears to be that appellees conspired and unlawfully caused the termination of appellant's employment at Grady Memorial Hospital.

"In the consideration of the wilful and malicious procurement of a breach of an employment contract (see Code §§ 105-1401 and 105-1207), there are two categories of cases: (1) where there is a definite term of employment and the corporation or employer by discharging an employee would be liable for the breach of the employment contract as exemplified in Wrigley v. Nottingham, 111 Ga.App. 404, 407, 141 S.E.2d 859, reversed in part in Nottingham v. Wrigley, 221 Ga. 386, 144 S.E.2d 749; (2) where, even though the contract is terminable at will, a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage him, maliciously and unlawfully persuades the employer to breach the contract with the employee. Ott v. Gandy, 66 Ga.App. 684, 687, 19 S.E.2d 180. See Bromley v. Bromley, 106 Ga.App. 606, 613, 127 S.E.2d 836; and King v. Schaeffer, 115 Ga.App. 344 (1), 154 S.E.2d 819." Campbell v. Carroll, 121 Ga.App. 497, 498-99, 174 S.E.2d 375, 377, aff'd, 226 Ga. 700, 177 S.E.2d 83.

The evidence is uncontroverted, and appellant herself stated, in an affidavit in support of her motion for summary judgment, that she was "never furnished any written contract of employment and none was required by said Hospital when (she) was employed." "In the absence of a controlling contract between the parties, employment for an indefinite period a 'permanent job' is terminable at the will of either party, and a discharge in such circumstances affords no cause of action for breach of contract." Land v. Delta Air Lines, 130 Ga.App. 231, 203 S.E.2d 316 and cases cited therein. "Where a plaintiff's employment is terminable at will, the employer 'with or without cause and regardless of its motives, may discharge the employee without liability. Elliott v. Delta Air Lines, Inc., 116 Ga.App. 36, 156 S.E.2d 656 and cit., (Cit.)' Wilkinson v. Trust Co. of Ga. Assoc., 128 Ga.App. 473, 474, 197 S.E.2d 146, 148." Clark v. Prentice-Hall, 141 Ga.App. 419, 420, 233 S.E.2d 496, 497. As appellant's employment was terminable at will and the evidence clearly shows that appellant was discharged by one who had the authority to do so, her lengthy allegations as to improper motive for firing and improper method of processing her grievance of same are legally irrelevant and present no genuine issues of material fact. See Rhodes v. Levitz Furniture, 136 Ga.App. 514(3), 221 S.E.2d 687.

2. The only remaining legal theory upon which appellant could premise an action against appellees is that described in category (2) of Division 1 above. As stated in Lambert v. Ga. Power Co., 181 Ga. 624, 628, 183 S.E. 814, 817: " 'The averment of a conspiracy in the declaration does not ordinarily change the nature of the action nor add to its legal force or effect. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done wrongfully. Where damage results from an act which, if done by one alone, would not afford ground of action, the like act would not be rendered actionable because done by several in pursuance of a conspiracy.' " Accord, Clark v. Prentice-Hall, supra; Campbell v. Carroll, supra. Thus, a "conspiracy" to effect what one has a legal right to accomplish is not actionable. Campbell v. Carroll, supra; Elliott v. Delta Air Lines, 116 Ga.App. 36, 156 S.E.2d 656, supra.

"On motion for summary judgment, the party opposing the motion may not rely on mere allegations or denials in his pleadings, but must set forth specific facts showing...