Sigmon v. Womack

• Decision Date: 06 March 1981
• Docket Number: 60916,Nos. 60834,s. 60834
• Citation: 279 S.E.2d 254,158 Ga.App. 47
• Parties: SIGMON v. WOMACK et al. WOMACK et al. v. SIGMON.
• Court: Georgia Court of Appeals

Page 254

279 S.E.2d 254

158 Ga.App. 47

SIGMON v. WOMACK et al.

WOMACK et al. v. SIGMON.

Nos. 60834, 60916.

Court of Appeals of Georgia.

Decided March 6, 1981.

Rehearing Denied March 18, 1981.

Certiorari Denied April 10, 1981.

Archie L. Gleason, Augusta, for appellant.

Elizabeth C. Calhoun, William C. Calhoun, Augusta, for appellees.

CARLEY, Judge.

On December 28, 1978, appellant-Sigmon was discharged from her employment with the appellee-Harris Teeter Supermarkets, Inc. (Harris Teeter) by her supervisor, appellee-Womack. Apparently the main factor in the decision to terminate Sigmon was the administrative, accounting and bookkeeping problems which resulted from her failure to follow company policy regarding the disposition of certain company funds into the appropriate account and to submit the requisite paperwork concerning the disposition of those funds. A written memorandum of her termination was made by Womack, containing the following information: "REASON FOR SEPARATION: Failure to follow company policy in handling company funds ... WOULD YOU RECOMMEND FOR REHIRE? No. WHY? Mishandling of company funds." Subsequently Sigmon instituted the instant libel action, alleging that Harris Teeter had "expressly approved and authorized" the termination notice, that the information contained therein was "malicious and untrue," and that Womack had published the notice to others. The jury returned a verdict for Sigmon and awarded her actual and punitive damages. Harris Teeter and Womack moved alternatively for judgment n. o. v. or new trial. The trial court granted the motion for judgment n. o. v. but denied the motion for new trial. In the main appeal Sigmon seeks reversal of the order granting the motion for judgment n. o. v. In the cross appeal Harris Teeter and Womack urge that their motion for new trial was erroneously denied.

1. Analysis of the merits of the main appeal must begin with the precept that the motion for judgment n. o. v. should have been denied if, construing the evidence most favorably for Sigmon, there was even slight evidence to support the verdict in her favor. Womack v. St. Joseph's Hospital, 131 Ga.App. 63, 205 S.E.2d 72 (1974). Therefore, the issue presented for resolution is whether there was any evidence that Harris Teeter and Womack libeled Sigmon.

"A libel is a false and malicious defamation of another, expressed in print, or writing, or pictures, or signs, tending to injure the reputation of an individual, and exposing him to public hatred, contempt, or ridicule. The publication of the libelous matter is essential to recovery." Code Ann. § 105-701. Whether in the context of the notice in its entirety the statement that Sigmon would not be rehired because of "mishandling of company funds " was a libel was for the jury. Since Sigmon was terminated for failure to follow company policy with regard to the administrative disposition of certain company funds and the filing of paperwork relevant thereto but not for any criminality with reference to the funds themselves, the jury was authorized to find the notice libelous of Sigmon. Cf. Park & Iverson v. Piedmont & Arlington Life Ins. Co., 51 Ga. 510 (1874). However, our careful study of the transcript demonstrates that there was no evidence to authorize a finding that the notice was published and that Sigmon, therefore, failed to show any actionable libel. Jackson v. Douglas County Elec. Membership Corp., 150 Ga.App. 523 (1), 258 S.E.2d 152 (1979). See also Garrett v. Lockheed Aircraft Corp., 98 Ga.App. 443, 106 S.E.2d 333 (1958).

That Womack, the author of the termination notice, read it to Sigmon in the presence of the co-manager of the store who had general supervisory authority does not constitute publication. LuAllen v. Home Mission Board, 125 Ga.App. 456, 188 S.E.2d 138 (1972); Jackson v. Douglas County Elec. Membership Corp., 150 Ga.App. 523, 258 S.E.2d 152, supra. Nor does the fact that in filling out an application Sigmon herself informed a prospective employer that she was terminated by Harris Teeter for "misappropriation of company funds" constitute a publication of a libel by her former employer. In this regard Sigmon libeled herself by her own voluntary action. See Jackson, 150 Ga.App. 523, 524, 258 S.E.2d 152, supra. Compare Colonial Stores, Inc. v. Barrett, 73 Ga.App. 839, 38 S.E.2d 306 (1946). Nor does the evidence show that a libel was published when, in response to Sigmon's application, the prospective employer called the home office of Harris Teeter and was told she had been discharged for "misappropriation" of funds. There was absolutely no evidence that this information imparted to the prospective employer over the telephone was the oral publication of a written libel. Compare Garren v. Southland Corp., 235 Ga. 784, 221 S.E.2d 571 (1976). The phrase "misappropriation of company funds" appears nowhere on the termination notice and, on cross-examination, the prospective employer expressed a lack of certainty as to what was even said to him concerning Sigmon's discharge. At most then what was shown by this witness' rather equivocal testimony was a slander against Sigmon by some unidentified employee at Harris Teeter's home office. However, there was no evidence that Harris Teeter expressly directed or authorized the unidentified agent to make the allegedly slanderous statement to Sigmon's prospective employer. Garren v. Southland Corp., 237 Ga. 484, 228 S.E.2d 870 (1976). Therefore, a verdict against Harris Teeter cannot stand under this theory of defamation. Ga. Power Co. v. Busbin, 242 Ga. 612, 615 (4), 250 S.E.2d 442 (1978).

We thus come to the crux of the publication question whether evidence concerning actions taken by Womack with regard to the termination notice while it was in his control authorized the jury to find a libel had been published. That Womack merely left the notice unattended on his desk in his office does not, standing alone, constitute publication. "A libel is published as soon as it is communicated to any person other than the party libeled." (Emphasis supplied.) Code Ann. § 105-705. Rives v. Atlanta Newspapers, 220 Ga. 485, 139 S.E.2d 395 (1964), relied upon by Sigmon, is not authority to the contrary. The issue in Rives was venue in a suit for newspaper libel under Code Ann. § 105-703 and, in this context only, the court held that, for purposes of determining where the "tort originated," "... whether or not (the newspaper) is read is immaterial once it is shown that it was exposed to public view." Rives, 220 Ga. at 488, 139 S.E.2d 395. See Carroll City/County Hospital Auth. v. Cox Enterprises, 243 Ga. 760, 256 S.E.2d 443 (1979), on remand, 152 Ga.App. 584, 263 S.E.2d 551 (1979). The holding in Rives does not, however, dispense with the requirement that before there can be a recovery for libel under Code Ann. § 105-701 there must be communication "to any person other than the party libeled." Code Ann. § 105-705.

"In order to effect the publication of a libel there must be a reading of it. Not only that, there must be an understanding of its meaning by the person reading it ... Since the gravamen of civil libel is injury to reputation, where the evidence demands a finding that the libel was not read by those to whom it was alleged to have been communicated, and there is no evidence authorizing an inference that it was communicated to anyone else who read it, or will be presumed to have read it, the case must fall." (Emphasis supplied.) Allen v. American Indem. Co., 63 Ga.App. 894, 895-896, 12 S.E.2d 127 (1940). "It is not enough that the language used is reasonably capable of a defamatory interpretation if the recipient did not in fact so understand it." Restatement of the Law, Torts 2d, § 563,...