Rhodes v. Levitz Furniture Co., 51038

• Decision Date: 12 November 1975
• Docket Number: No. 1,No. 51038,51038,1
• Citation: 136 Ga.App. 514,221 S.E.2d 687
• Parties: Copelan RHODES v. LEVITZ FURNITURE COMPANY et al
• Court: Georgia Court of Appeals

Page 687

221 S.E.2d 687

136 Ga.App. 514

Copelan RHODES v. LEVITZ FURNITURE COMPANY et al.

No. 51038.

Court of Appeals of Georgia, Division No. 1.

Nov. 12, 1975.

Paul S. Liston, Atlanta, for appellant.

Powell, Goldstein, Frazer & Murphy, Stuart E. Eizenstat, Atlanta, for appellees.

MARSHALL, Judge.

This is an appeal by the plaintiff from the granting of a summary judgment in favor of the corporate defendant, Levitz Furniture Company, and invididual defendants Ray Betka, Freeman Kellam and Ed Pyne.

Appellant Rhodes filed a complaint for damages in Fulton Superior Court arising from his discharge from employment at the South Atlanta store of Levitz. Rhodes was employed by Levitz as a floor salesman in 1971 on an oral contract providing for a $94.00 weekly minimum and sales commissions up to any amount. He worked for approximately eighteen months in the North Atlanta store and about eighteen additional months in the South Atlanta store. Following several disputes with the sales manager, defendant Freeman Kellam, he became embroiled in an argument with Kellam, assistant sales manager Ray Betka and store manager, Ed Pyne, concerning the splitting of a sales commission with another salesman. The dispute arose after Rhodes showed a certain customer articles of furniture, and the customer informed Rhodes that he did not have sufficient money at the time to make the desired purchases but that he would return the next day to complete the purchase. The next day, a Monday, the customer telephoned Rhodes at home, Rhodes having the day off, and the customer informed Rhodes that he had the necessary money and would meet Rhodes in the store to complete the purchase. The customer arrived before Rhodes, waited a short period, and then agreed to be waited upon by another salesman provided the two salesmen would split the commission. Before the completion of the transaction, Rhodes arrived and took over the sales transaction. Levitz' policy provided that when a customer returned and is waited on by a second salesman, the first salesman and the second salesman are to split the sales commission. On this occasion, when Kellam, the sales manager, informed Rhodes that the commission would be split, Rhodes became angry and upset and protested the splitting of the commission to Pyne, the store manager. Pyne told Rhodes to return home and come back the next day after he had cooled off. Rhodes came back the same evening and examined the sales records and noted that there was a split commission indicated for the transaction in question. On seeing the split commission designated, Rhodes became angry and allegedly called Ray Betka, assistant sales manager, a liar and allegedly used profane and demeaning language towards Kellam, the sales manager, in the presence of other employees and customers. The following day store manager Pyne fired Rhodes. Three weeks after his discharge, Rhodes was reinstated to work at the North Atlanta store by Mr. Bulkan, the area manager, who stated that 'I will overrule' the other supervisors. Rhodes returned to work at the North Atlanta store but was later discharged for poor sales performance. All defendants made motions for summary judgment, and after a hearing, the trial court granted defendants' motions and dismissed plaintiff's complaint as to all defendants. Appellant Rhodes appeals the granting of the motion for summary judgment.

Appellant enumerates as error the granting of defendants' motions for summary judgment. He asserts the following grounds as error in the granting of the summary judgment: first, defendant Levitz has not pierced the allegation of the complaint that it was negligent in hiring the three individual defendants; second, appellant has alleged that defendants Kellam, Betka and Pyne, maliciously and without cause wrongfully procured his discharge from his employment and this theory was not negated by the evidence produced; third, there are factual issues concerning appellant's discharge which should have been submitted to a jury. Held:

1. Appellant contends that defendant Levitz has not pierced the allegation in the complaint, that Levitz was negligent in hiring the three individual defendants. This contention is unsupported for several reasons. First, the record is devoid of proof to support the contention of negligent hiring of the three individual defendants. Discounting the fact that the record reveals that all three of these individual defendants were employees of long standing with Levitz, appellant relies solely on his unsupported opinion to the effect that 'they just weren't qualified . . . they did not know how to handle men, . . .' "Affidavits containing mere legal conclusions and allegations which would not be admitted into evidence present no issues of fact on a motion for summary judgment". Cooper v. Brock, 117 Ga.App. 501, 503, 161 S.E.2d 75, 77.

Second, it is elementary that before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon. Lewis v. Drake, 116 Ga.App. 581, 158 S.E.2d 266; Davis v. Aiken, 111 Ga.App. 505, 142 S.E.2d 112; Crankshaw v. Piedmont Driving Club, Inc., 115 Ga.App. 820, 156 S.E.2d 208.

As stated in Code § 105-2008: 'If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too...