Morton v. Gardner

• Decision Date: 23 January 1979
• Docket Number: No. 33994,33994
• Citation: 252 S.E.2d 413,242 Ga. 852
• Parties: MORTON v. GARDNER et al.
• Court: Georgia Supreme Court

Page 413

252 S.E.2d 413

242 Ga. 852

MORTON v. GARDNER et al.

No. 33994.

Supreme Court of Georgia.

Argued Sept. 18, 1978.

Decided Jan. 5, 1979.

Rehearing Denied Jan. 23, 1979.

Nicholson & Meals, Robert N. Meals, A. Lee Parks, Jr., Atlanta, Altman & McGraw, Sol Altman, Thomasville, Carlisle, Chason & McRae, Edwin A. Carlisle, Cairo, for appellant.

Hansell, Post, Brandon & Dorsey, Albert G. Norman, Jr., Kirbo & Kirbo, Bruce W. Kirbo, Bainbridge, Alexander, Vann & Lilly, William U. Norwood, III, Thomasville, Porter & Lehman, J. Richard Porter, III, Cairo, Malone & Percilla, Del Percilla, Jr., Albany, for appellees.

HALL, Justice.

This appeal arises out of a libel action filed by Dr. William J. Morton against numerous parties who allegedly defamed his professional character. The defendants were four persons who allegedly had written the Composite State Board of Medical Examiners (of which Dr. Morton is himself a member) either complaining or communicating complaints about Dr. Morton, as well as two reporters, Atlanta Newspapers, Inc., and Cox Enterprises, Inc. The four who wrote the State Board were three other doctors and a former medical assistant of Dr. Morton. ¹

Dr. Morton sought damages for the alleged tort of defaming him to the board, and for the alleged defamation occurring in newspaper articles concerning the investigation of his medical practice. A history of the litigation is presented in a related appeal decided today, Morton v. Skrine, 242 Ga. 844, 252 S.E.2d 408.

The defendant doctors filed a counterclaim seeking to enjoin the libel action because Dr. Morton, a member of the State Board, had obtained the complaints and a complete copy of the investigative file regarding his practice from a secretary employed by the board and had furnished the material to his attorney who had used it to prepare the libel action. ² The defendant doctors alleged that Dr. Morton had obtained the copy of his file in violation of Code Ann. § 84-916(d) which makes such files confidential; Code Ann. § 84-9914, which provides criminal penalties for violation of Chapter 84-9; and Code Ann. § 89-953, which sets forth a Code of Ethics for persons serving on boards such as the Composite State Board of Medical Examiners. They alleged that Dr. Morton and his lawyer had the file for eight months. They further alleged that subsequent to the discovery that Dr. Morton had procured a copy of his file, the State Law Department requested that he return all copies in his or his attorney's possession. Arguing that, in view of the fact that they were unable to secure the file because of its confidentiality, Dr. Morton had obtained an unfair, inequitable and irreversible advantage, the defendant doctors sought to enjoin the libel action against them.

In an effort which would have mooted the counterclaim, Dr. Morton filed a mandamus action in Fulton County seeking to obtain from the board a copy of his file. The reporters and the publishing company intervened, seeking the same rights of access as Dr. Morton. In Morton v. Skrine, supra, this court has ruled that Code Ann. § 84-916(d) forbade Dr. Morton and the intervenors access to the file. That decision affirms the trial judge's conclusion in this case to that effect and moots several of Dr. Morton's enumerations of error raised here.

Thus we have the situation that a public official, a member of the Board of Medical Examiners, obtained a copy of the board's investigation file concerning the official contrary to law, and based at least in part thereon filed a libel suit against the people who complained about him to the board. ³

The trial court in the libel action held the Board's file to be confidential and entered a permanent injunction restraining Dr. Morton from proceeding in the libel action against the counterclaimants. No injunction has been entered concerning the two reporters and their publishers. In entering the injunction in favor of the two doctors the trial judge found, among other things, that "Plaintiff and his attorneys have used the copies of the Composite State Board of Medical Examiners' investigative file in the preparation of the above captioned case and especially in the discovery procedures undertaken"; ⁴ that "On December 2, 1977, the Plaintiff and his attorney purportedly returned copies of said file to the Composite State Board of Medical Examiners"; that "Despite the purported return of the file, or parts thereof, the information contained in said file and the leads possibly obtainable therefrom cannot be erased from the minds of Plaintiff and his attorneys"; that "Plaintiff has taken unfair, inequitable and unconscionable advantage of these Defendants, and if he is permitted to continue prosecution of his suit for defamation of character, the Defendants will be deprived of the right of due process of law"; and that "Defendants Gardner and Palen (the counterclaimants), without fault on their part, cannot avail themselves of any remedy at law, and thus because of the intervening equity, the process of this and other courts should be restrained."

The trial judge, in his order, stated further: "Let us make general observation as to the conduct of the plaintiff in this case. He was a member of the Composite State Board of Medical Examiners and was under both a sworn and ethical duty to protect the integrity of any investigative reports, and the like. His duty was to protect the privacy of such records, not prostitute it, and particularly for his personal interests. The law not only forbids any part of such records being released for any purpose other than a hearing before the Board, but makes such records immune from court subpoena, which places an impenetrable wall around them both from 'without' and 'within,' except and solely for hearing purposes of the Board.

"We frequently have had experiences when very serious felony cases were dismissed because the evidence, though unequivocably (sic) establishing guilt, was obtained by unwarranted methods, so-called 'fruit of the poison tree'. By the same token, we feel this whole action is 'tainted' by evidence obtained in an unconscionable manner and in violation of both the statutes of Georgia and the obligation of public trust a member of a given governmental board has not to use confidential information obtained by reason of his official position for his own personal benefit.

"This case involves the circumstance of one taking advantage of his position of public trust for his personal advantage which would not have been available to any non-Board medical practitioner, giving him an 'inside' advantage which is abhorrent to anyone's sense of fair play or ethics.

"In this situation, a court of equity, which is a court of good conscience, should intervene to protect defendants against unconscionable acts for which there is otherwise no redress."

We cannot agree with the trial court that equity requires that Dr. Morton's libel suit be enjoined. Even assuming that Dr. Morton's conduct relative to the investigative file was felonious, unethical, reprehensible and without good conscience, such acts standing alone do not deprive him of his right (Code Ann. Ch. 105-7) to bring an action for libel. One's rights to seek his legal remedies are not contingent upon his conducting himself like a gentleman. In fact, the right to press one's suit continues to exist even where a malfeasant is seeking equitable relief, if his misconduct "does not form part of the transaction in controversy." McClintock on Equity, § 26, p. 63 (1936). See also 2 Pomeroy's Equity Jurisprudence, § 399 (1941). The so-called misconduct, bad conscience or unclean fault "must relate directly to the transaction concerning which complaint is made." Atlanta Assn. of Fire Ins. Agents v. McDonald, 181 Ga. 105(2), 181 S.E. 822 (1935). To hold...