Peeples v. Citizens & Southern Commercial Corp., s. A93A0325

• Decision Date: 08 June 1993
• Docket Number: Nos. A93A0325,A93A0326,s. A93A0325
• Citation: 209 Ga.App. 157,433 S.E.2d 319
• Court: Georgia Court of Appeals
• Parties: PEEPLES v. CITIZENS & SOUTHERN COMMERCIAL CORPORATION. NATIONSBANC COMMERCIAL CORPORATION v. PEEPLES.

Page 319

433 S.E.2d 319

209 Ga.App. 157

PEEPLES v. CITIZENS & SOUTHERN COMMERCIAL CORPORATION.

NATIONSBANC COMMERCIAL CORPORATION v. PEEPLES.

Nos. A93A0325, A93A0326.

Court of Appeals of Georgia.

June 8, 1993.

Reconsideration Denied June 24, 1993.

Certiorari Denied Oct. 5, 1993.

Hine, Carroll & Niedrach, Edward Hine, Jr. and John F. McClellan, Jr., Rome, for Peeples.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins and Kathryn S. Whitlock, Atlanta, for C & S Southern and NationsBanc.

BIRDSONG, Presiding Judge.

Shelby Peeples, Jr. appeals the verdict and judgment in favor of defendant NationsBanc Commercial Corporation (NBCC) F/K/A Citizens & Southern Commercial Corporation in his suit for libel and slander. NBCC cross-appeals.

Peeples is president and major stockholder of Textile Coating, Ltd. in Dalton, Georgia. NBCC is a factor and purchased accounts receivables from Mydrin, Inc., which supplied latex to Textile Coatings. The evidence was disputed as to whether NBCC granted a $300,000 credit line to Textile Coating, or whether NBCC granted a credit line to Mydrin for shipments to Textile Coating. Peeples is a stockholder at Fidelity Savings Bank and has accounts there, but is neither an officer nor a director of the bank. He has never been arrested or convicted of a crime. However, rumors arose in Dalton in January 1991, that certain persons, including Peeples, had been or were to be indicted for improprieties at that bank. NBCC does not contend these rumors were true or had any substance.

An NBCC employee in Dalton, whose business it was to pass on rumors to the main office in Atlanta, heard the rumors on January 4, 1991, and called Gregory Farr, a credit officer with NBCC's factoring accounts in the carpet industry. On the same day, Farr allegedly called credit managers of other businesses in the Dalton carpet industry and related that Peeples was going to be arrested or indicted; allegedly, Farr embellished the rumors. Farr also allegedly notified Mydrin by telephone that NBCC was rescinding its credit line from Mydrin for shipments to Peeples' business. From January 4, news articles were published in local papers which apparently confirmed that the rumors were false. The NBCC employee who relayed the rumors to Farr learned the rumors were false but did not inform Farr. By letter of January 8, postmarked January 11, Farr wrote to Mydrin that the credit line on Textile Coating had been rescinded as of that date, and that the customer's line had been pulled until NBCC could find out the fate of the company with regards to Shelby Peeples' recent problems.

NBCC contends its employee's actions and communications were privileged communications under OCGA § 51-5-7(1)-(3), particularly (3): "The following communications are deemed privileged ... Statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which it is concerned." NBCC further contends the letter's contents were true and therefore not libelous. NBCC disputed whether Farr imputed a crime to Peeples; who heard or passed any rumors; who believed or had heard them before; whether the rumors harmed Peeples; and whether Farr investigated the rumors before he relayed them in writing to Mydrin and verbally to others. Held:

1. In his appeal Peeples contends the trial court erred in charging the jury that to find libel in the letter to Mydrin, it must find that Farr acted with actual malice.

The trial court did not err in this charge. The conditional privilege under § 51-5-7 concerns itself with whether Farr acted with a "good faith intention" to protect his employer's interest. Our cases have said, in accord with the statute, that the jury need consider only the speaker's good faith intention (see Kennedy v. Johnson, 205 Ga.App. 220, 223, 421 S.E.2d 746; Elder v. Cardosa, 205 Ga.App. 144, 146-147, 421 S.E.2d 753; Layfield v. Turner Advertising Co., 181 Ga.App. 824, 826, 354 S.E.2d 14), which necessarily requires an inquiry into the presence of malice. In Land v. Delta Airlines, 147 Ga.App. 738, 739, 250 S.E.2d 188, we held the communication was conditionally privileged, as "there [was] no slightest indication either that [the speaker] was motivated by malice or that there was publication beyond that approved by [LuAllen v. Home Mission Board etc., 125 Ga.App. 456, 188 S.E.2d 138, i.e., communication only to parties concerned in the matter]." In Melton v. Bow, 145 Ga.App. 272, 243 S.E.2d 590, aff'd 241 Ga. 629, 247 S.E.2d 100, a...