White v. Cudahy Co., Inc., 48345

• Decision Date: 24 October 1973
• Docket Number: 3,No. 48345,2,Nos. 1,48345,s. 1
• Citation: 202 S.E.2d 233,130 Ga.App. 64
• Parties: Barbara WHITE v. CUDAHY COMPANY, INC
• Court: Georgia Court of Appeals

Page 233

202 S.E.2d 233

130 Ga.App. 64

Barbara WHITE v. CUDAHY COMPANY, INC.

No. 48345.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 24, 1973.

Ray Gary, Robert E. Bach, Mary Brock Kerr, Mableton, for appellant.

Heyman & Sizemore, William H. Major, Gerald M. Edenfield, Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Barbara White filed her complaint for slander against her former employer, Cudahy Company, Inc., alleging that authorized agents and servants of the defendant corporation falsely and maliciously stated that she had stolen money from it. The defendant corporation, subsequent to the taking of plaintiff's deposition, filed its motion for summary judgment, attaching the affidavit of Ralph Smedley, plant controller and plaintiff's former supervisor, in which he seated that he had discussed with plaintiff her failure to follow established office procedure in handling funds in her custody, that he did not accuse her of stealing money from the corporation, that he was never authorized nor directed by the corporation to accuse her of stealing the money, that he did not authorize anyone to accuse her of stealing the money, and that he had made no statements derogatory of her to anyone. Also attached was the affidavit of Charles Muehlbauer, who stated that he was the assistant corporate controller of the corporation and Smedley's immediate supervisor, that he did not authorize, direct or suggest that Smedley accuse plaintiff of stealing money or make derogatory statements about her, that the corporation did not authorize, direct or suggest that Smedley accuse her of stealing or make derogatory statements about her, and if any such statement or statements of like tenor were made, they were purely on Smedley's own initiative and without any direction or authorization of the corporation.

Plaintiff responded to the motion by adding another count to the complaint, alleging, inter alia, that 'the corporation failed to exercise due care to protect its employees from the tortious misconduct of its follow employees and management acting within the scope of and about their master's business.'

The trial court granted defendant's motion for summary judgment, and plaintiff appeals. Held:

1. 'A corporation is not liable for damages resulting from the speaking of false, malicious, or defamatory words by one of its agents, even where in uttering such words the speaker was acting for the benefit of the corporation and within the scope of the duties of his agency, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question.' Behre v. National Cash Register Co., 100 Ga. 213(1), 27 S.E. 986. Accord: Headley v. Maxwell Motor Sales Corp., 25 Ga.App. 26, 102 S.E. 374; Russell v. Dailey's, Inc.,58 Ga.App. 641, 199 S.E. 665; Sinclair Refining Co. v. Meek, 62 Ga.App. 850, 10 S.E.2d 76; Woolf v. Colonial Stores, Inc., 76 Ga.App. 565, 46 S.E.2d 620; McKown v. Great Atlantic & Pacific Tea Co., 99 Ga.App. 120, 107 S.E.2d 883; Herring v. Pepsi Cola Bottling Co., 113 Ga.App. 680, 149 S.E.2d 370; Bell v. Thiokol Chemical Corp., 126 Ga.App. 167, 190 S.E.2d 150; Molton v. Commercial Credit Corp., 127 Ga.App. 390, 193 S.E.2d 629.

Plaintiff here produced no evidence or affidavit to rebut the facts stated in Smedley's and Muehlbauer's affidavits to the effect that the corporation did not authorize or direct anyone to make the alleged slanderous statements, and no question of fact is presented as to this issue. Accordingly the trial court did not err in granting summary judgment as to the slander count of the complaint. Bell v. Thiokol Chemical Corp., 126 Ga.App. 167, 190 S.E.2d 150, supra. The fact that plaintiff was discharged from her employment because of the alleged slander and that the corporation failed to repudiate it or to reinstate plaintiff in her employment does not create an issue of fact as to ratification by the corporation of the slander. Ivins v. Louisville & Nashville R.R. Co., 37 Ga.App. 684(4), 141 S.E. 423.

While plaintiff testified by deposition concerning rumors which had come to her from other employees at the plant relative to her termination from service, indicating that she had been terminated for taking funds, this furnished no sufficient basis for charging the defendant with slander or the publication of the slander. '(T)he allegation that the reports were generally circulated in the county (were not) sufficient to charge the defendant with publishing them.' Beck v. Oden, 64 Ga.App. 407, 412, 13 S.E.2d 468, 471. '(A)n allegation: that A said that B said . . . is an allegation of what A said but is not an allegation of what B said.' McKown v. Great Atlantic & Pacific Tea Co., 99 Ga.App. 120, 107 S.E.2d 883, supra. It is pure hearsay.

2. Plaintiff, by the 'tortious misconduct' amendment to the complaint, seeks to bring herself within Cole v. Atlanta & West Point R.R. Co., 102 Ga. 474, 31 S.E. 107; Southern Ry. Co. v. Chambers, 126 Ga. 404, 55 S.E. 37, and the line of authority stemming therefrom, the so-called 'tortious misconduct' cases, exemplified by Lemaster v. Millers, 33 Ga.App. 451, 126 S.E. 875; Hazelrigs v. High Co., 49 Ga.App. 866, 176 S.E. 814; Sims v. Miller's, Inc., 50 Ga.App. 640, 179 S.E. 423; Southern Grocery Stores v. Keys, 70 Ga.App. 473, 28 S.E.2d 581; Colonial Stores v. Coker, 74 Ga.App. 264, 39 S.E.2d 429; Simpson v. Jacobs Pharmacy Co., 76 Ga.App. 232, 45 S.E.2d 678; Woolf v. Colonial Stores, 76 Ga.App. 565, 568, 46 S.E.2d 620, supra (concurring opinion); Colonial Stores v. Coker, 77 Ga.App. 227, 48 S.E.2d 150; Colonial Stores v. Sasser, 79 Ga.App. 604, 54 S.E.2d 719 and Zayre of Atlanta v. Sharpton, 110 Ga.App. 587, 139 S.E.2d 339.

The difficulty of reconciling this line of cases from that stemming from Behre, supra, has previously been noted. See the concurring opinions in Brown v. Colonial Stores, 110 Ga.App. 154, 160, 138 S.E.2d 62; Zayre of Atlanta v. Sharpton, 110 Ga.App. 587, 591, 139 S.E.2d 339, supra, and Abner v. W. T. Grant Co., 110 Ga.App. 592, 595, 139 S.E.2d 408. See also Dossett v. New York Mining & Mfg. Co., 451 S.W.2d 843 (Ct.App.Ky.); 50 Am.Jur.2d, Libel and Slander § 328.

Be that as it may, plaintiff contends that there is no less of a duty owed to an employee than the duty owned to an invitee as expounded in the 'tortious misconduct' cases, supra. There are, of course, statements analogizing the duty owed a servant to the duty owed an invitee. See Holman v. American Auto. Ins. Co., 201 Ga. 454, 459-460, 39 S.E.2d 850; Seaboard Air Line R. v. Chapman, 4 Ga.App. 706(2), 62 S.E. 488; Brown v. Rome Machine & Foundry Co., 5 Ga.App. 142(2d), 62 S.E. 720; Western & A.R. v. Hetzel, 38 Ga.App. 556, 564, 144 S.E. 506; Nashville, Chattanooga & St. Louis R. v. Hilderbrand, 48 Ga.App. 140(2), 172 S.E. 87; Powell v. Shurling, 51 Ga.App. 67(1), 179 S.E. 653; Williamson v. Kidd, 65 Ga.App. 285, 15 S.E.2d 801.

However, the Behre rule, rather than the 'tortious misconduct' rule, has been applied in master-servant cases where the employee sues the corporate employer for oral defamation. Jackson v. Atlantic Coast Line R.R. Co., 8 Ga.App. 495, 69 S.E. 919; Ivins v. Louisville & N.R. Co., 37 Ga.App. 684, 141 S.E. 423, supra; Cochran v. Sears, Roebuck & Co., 72 Ga.App. 458, 34 S.E.2d 296; Braden v. Baugham, 74 Ga.App. 805, 41 S.E.2d 581; World Ins. Co. v. Peavy, 110 Ga.App. 527, 139 S.E.2d 155. The result may be different where the corporate employer libels the employee. The Howe Machine Co. v. Souder, 58 Ga. 64. There thus seems to be no doubt that an action against a corporation for oral defamation will lie only where the plaintiff is a business invitee of the defendant corporation which owes a 'public duty' to its invitees. Southern Ry. Co. v. Chambers, 126 Ga. 404, 55 S.E. 37, supra; Sinclair Refining Co. v. Meek, 62 Ga.App. 850, 10 S.E.2d 76, supra; Zayre of Altanta, Inc. v. Sharpton, 110 Ga.App. 587, 139 S.E.2d 339, supra; Herring v. Pepsi Cola Bottling Co., 113 Ga.App. 680, 149 S.E.2d 370, supra.

To hold otherwise would render the employer both helpless and defenseless in making an investigation of shortages of funds in the employee's account if the matter is discussed with him and the discussion can be interpreted as an accusation that he has taken funds. How could banks, which must check the windows of every teller daily, or merchants who must check the cash registers of their cashiers, or salesmen who collect from customers on their routes, etc. operate and continue in business if they are to be cut off from the privileged interrogation relative to such matters?

The trial court did not err in granting summary judgment.

Judgment affirmed.

BELL, C.J., HALL, P.J., and QUILLIAN, CLARK and STOLZ, JJ., concur.

PANNELL, DEEN and EVANS, JJ., dissent.

PANNELL, Judge (dissenting).

The plaintiff's petition alleged she had been injured and damaged by the defendant and that 'the said damages arose by authorized agents and servants of defendants falsely and maliciously saying that plaintiff stole money from Cudahy Company, Inc., on February 16, 1971, and subsequent.' Assuming for the sake of argument, that the statement of law pronounced in Division 1 of the majority opinion is correct, this allegation was sufficient to set forth a claim for slander against the defendant corporation. And upon the trial of the case the plaintiff would have to show that some agent or servant of the defendant was authorized by the corporation to make such defamatory statements. But we are not here upon a trial, but determining an appeal from the grant of a motion for summary judgment in behalf of the defendant. The...