Morton v. Gardner

Decision Date08 September 1980
Docket NumberNo. 60038,60038
Citation155 Ga.App. 600,271 S.E.2d 733
PartiesMORTON v. GARDNER et al.
CourtGeorgia Court of Appeals

Harry Jay Altman, II, Thomasville, Robert N. Meals, Atlanta, Edwin A. Carlisle, Cairo, for appellant.

Del Percilla, Albany, William U. Norwood, Thomasville, Albert G. Norman, Jr., Atlanta, Bruce W. Kirbo, Bainbridge, John E. Zamer, Atlanta, for appellees.

QUILLIAN, Presiding Judge.

This is an action sounding in libel, arising from allegations of improper medical practice against Dr. Morton-the plaintiff, by members of the Grady County Medical Society-Doctors Gardner, Palen, and Bihl. Plaintiff appeals from the grant of summary judgment to Doctors Gardner and Palen. Bihl was dismissed as a defendant in this action.

This is the fifth appeal arising from this incident. See Morton v. Skrine and Stewart v. Morton, 242 Ga. 844, 252 S.E.2d 408; Morton v. Gardner, 242 Ga. 852, 252 S.E.2d 413; Morton v. Stewart, 153 Ga.App. 636, 266 S.E.2d 230.

Dr. Morton was a member of the Georgia Composite State Board of Medical Examiners (Board). Prior to his appointment to the Board he practiced medicine in Grady County. After his appointment several members of the Grady County Medical Society (Medical Society) were investigated by the Board. The Grady County doctors were of the opinion that Dr. Morton had been the instigator of those investigations. The Medical Society was originally formed in 1975 by Doctors Bihl, Gardner, Palen, Lonkani, Singleton and Bailey. On or about June 3, 1976, with only Bihl, Gardner and Palen in attendance, the President, Vice-President and Secretary respectively, the Medical Society composed a letter to the Board requesting an investigation of "complaints pertaining to the medical practice of" Dr. Morton. The letter carried the "stamp" signature of Dr. Bihl in his capacity as "President, Grady County Medical Society." Although defendants have included exhibits in their appellate brief explaining why the letter had a stamped signature, subsequent events involving the Board and the Medical Society, and submission of a second letter, this Court can not consider evidence contained in the brief. We will rely only upon the evidence of record. Coweta Bonding Co. v. Carter, 230 Ga. 585(1) 198 S.E.2d 281; Stone v. Ridgeway, 136 Ga.App. 264(2) 220 S.E.2d 722.

We have deduced from the evidence of record that Doctors Bihl, Gardner and Palen composed the letter from the Medical Society. When Gardner was ready to mail the letter, Bihl-the President of the Medical Society, was unavailable and his "stamp" signature was placed on the letter and it was forwarded to the Board. Bihl thereafter contacted the Board and withdrew his name from the letter. A "meeting" of the Medical Society was held with only Doctors Gardner and Palen in attendance and the letter was resubmitted to the Board- over the signature of Doctors Gardner and Palen-as "Vice-President" and "Secretary" of the Medical Society. The first letter from the Medical Board, dated June 3, 1976, is the only letter from the defendants referred to in the complaint. Dr. Bihl subsequently moved from the state and he has been stricken as a party defendant in this action.

Even though Bihl withdrew his name from the first letter sent to the Board from the Medical Society, thereafter he read the letter to a newspaper reporter over the phone and then provided him with a copy of the letter bearing his stamped signature-without the knowledge of either Dr. Gardner or Palen. The reporter spoke to Dr. Palen about the letter but did not go into the contents of the allegations attached to the letter. The evidence shows that only Dr. Bihl read the letter to the newspaper reporter, discussed the contents, and provided a copy of the original letter to the reporter.

Following extensive discovery, defendants moved for and were granted summary judgment. Plaintiff brings this appeal. Held :

1. The plaintiff's action was based upon: (1) libel: predicated upon the publication of the letter from the Medical Society to the Board, dated June 3, 1976, and further publication of that letter to a newspaper reporter; (2) conspiracy to commit libel: Count IV-based upon publication of the letter above; Count V-based upon publication of a letter to the board from Ms. Rhea McCullough, an employee of Dr. Morton; Count VI-publication of a newspaper article and an editorial in the Atlanta Constitution and (3) malicious use of privilege: by using a privileged communication-the letter of June 3, 1976, "as a cloak for venting private malice ..."

2. We will address first the enumerations dealing with the counts alleging conspiracy to commit libel-Counts IV, V, and VI. Although the question of conspiracy has been held to be a question for the jury (Hodges v. Youmans, 129 Ga.App. 481(2) 200 S.E.2d 157), "(a)s in other types of actions, issues predicated upon a claim or defense of conspiracy may be summarily adjudicated where there is no genuine issue of material fact." 6 Moore's Federal Practice (Part 2) 56-770 P 56.17(9); First National Bank v. Cities Service Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569. Enough facts or circumstances must be in evidence to necessitate submission of the issue to the jury. See Clayton McLendon, Inc. v. Judge & Co., 142 Ga.App. 659, 661(2) 236 S.E.2d 683.

3. Count VI alleged conspiracy to commit libel by publication of a newspaper article and an editorial in the Atlanta Constitution. Morton v. Stewart, 153 Ga.App. 636, 266 S.E.2d 230, supra, is dispositive of this portion of the enumerated errors. In that case we found-based on the same record-there was no malice, libel, conspiracy to libel, nor malicious use of privilege involved in the publication of the newspaper article or editorial.

4. We turn next to Count V-based upon a letter from Ms. Rhea McCullough-an employee of Dr. Morton, to the Board. Ms. McCullough stated that she alone was responsible for the letter and its contents and she never discussed it with either of the defendant doctors. The record is totally devoid of any evidence of conspiracy or concert of action between Ms. McCullough and either of the defendant doctors. Summary judgment was also proper as to this count.

5. Plaintiff's Count IV was based on publication of a letter dated June 3, 1976 from Doctors Bihl, Gardner and Palen to the Board. It is contended there were two libels-one when the doctors published the defamatory matter to the Board, and two-when the doctors republished the same defamatory matter to a newspaper reporter.

(a) It is admitted that Doctors Bihl, Gardner and Palen published the letter to the Board-under the claim of a conditional privilege. Defendant's allege that the plaintiff abandoned this portion of his action in the trial court. We agree.

The trial court found as a fact, and stated in its order, that plaintiff abandoned such allegation "in oral argument." The Supreme Court held that no part of the purloined Board file would be admissible in evidence. Morton v. Gardner, 242 Ga. 852, 856, 252 S.E.2d 413, supra. The plaintiff indicated in his brief to the trial court that he had abandoned his contention of libel based on the June 3, 1976 letter to the Board "since the letter to the Board has been ruled inadmissible and cannot be considered ..." Such findings of fact of a trial judge will not be disturbed by an appellate court unless found to be clearly erroneous. Code Ann. § 81A-152 (CPA § 52; Ga.L.1969, pp. 645, 646; 1970, pp. 170, 171). The trial court's finding of abandonment is supported by some evidence in the record, and we do not have a transcript of the "oral argument" in which the trial court concluded that plaintiff abandoned this ground. Lacking such transcript we must assume the trial court's finding was supported by the evidence. Cf. Yalanzon v. Sharon Const. Co., 141 Ga.App. 294(2) 233 S.E.2d 220; Interstate Financial Corp. v. Appel, 233 Ga. 649, 212 S.E.2d 821. Glass v. Glass, 242 Ga. 736, 251 S.E.2d 298.

Thus, as the conspiracy to commit libel count was based upon publication of the letter from Doctors Bihl, Gardner and Palen to the Board and to the newspaper reporter and the publication to the Board has been found to be abandoned, we need only address the issue of conspiracy as it relates to publication of the letter to the reporter.

(b) Doctors Gardner and Palen claimed the conditional privilege relating to the letters forwarded to the Board (Code Ann. § 84-916(h) (Ga.L.1913, pp. 101, 107; as amended through 1974, pp. 1156, 1162)) and established a prima facie right to such privilege. Melton v. Bow, 145 Ga.App. 272(1) 243 S.E.2d 590. It was also established that neither Doctor Gardner nor Doctor Palen was aware of the publication of the letter to the newspaper reporter. Also, after the evidence pierced this allegation of the plaintiff, plaintiff failed to show any evidence of conspiracy to defame plaintiff by such publication, or any concert of action by Dr. Bihl with either of the other defendant doctors in such publication.

As we held in Morton v. Stewart, 153 Ga.App. 636, 643, 266 S.E.2d 230, supra, " '(u)ltimate or conclusory facts and conclusions of law ... cannot be utilized on a summary judgment motion. Similarly, the mere reargument of a party's case or the denial of an opponent's allegations will be disregarded.' (Cits.) Conclusory allegations by the plaintiff of conspiracy, malice, and defamation, are insufficient in the absence of substantiating fact or circumstances, to raise a material issue for trial."

We have reviewed the voluminous evidence of record and found it devoid of any fact or circumstance tending to establish a conspiracy between Dr. Bihl and Doctors Gardner or Palen to publish the letter of the Medical Society to the newspaper reporter. Accordingly, the court did not err in granting summary judgment as to Count IV for the defendants. Summer-Minter & Assoc. v. Giordano, 228 Ga. 86, 90, ...

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