Wiley v. Georgia Power Co.

• Decision Date: 06 March 1975
• Docket Number: 2,3,No. 49907,Nos. 1,49907,s. 1
• Citation: 213 S.E.2d 550,134 Ga.App. 187
• Parties: , 115 L.R.R.M. (BNA) 5024 Thelma WILEY v. GEORGIA POWER COMPANY
• Court: Georgia Court of Appeals

Page 550

213 S.E.2d 550

134 Ga.App. 187, 115 L.R.R.M. (BNA) 5024

Thelma WILEY v. GEORGIA POWER COMPANY.

No. 49907.

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

March 6, 1975.

Rehearing Denied April 2, 1975.

John N. Crudup, Gainesville, for appellant.

Smith, Smith & Frost, R. Wilson Smith, Jr., Gainesville, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Mrs. Thelma Wiley sued Georgia Power Company, and its supervisor, James A. Smith, for damages because of having been subjected to humiliation, embarrassment, degradation, etc. brought on by said supervisor's having committed assault and battery upon her, in that, on October 17, 1972, he laid his hands upon her in a grossly improper manner, without her permission, and caused her to suffer extreme physical and mental anguish and damage. She alleges that she reported the incident to Georgia Power Company's manager for the Gainesville district; and thereafter defendants threatened and intimidated her, cursed and used abusive language towards her, and threatened her with loss of her job; and then did actually take her job away from her and replaced her with a black employee.

Georgia Power Company moved for summary judgment, which was granted, and plaintiff appeals. Held:

1. There was an issue for the jury as to liability, not on one theory alone, but on three separate theories, to wit: (a) The evidence was sufficient to create a jury issue as to whether James A. Smith, as supervisor for Georgia Power Company was a vice-principal, and not a mere fellow-employee, of plaintiff. If he was a vice-principal, Georgia Power Company is liable for his wrongful acts towards plaintiff. (b) The evidence is sufficient to create an issue as to whether Georgia Power Company and its supervisor conspired to force plaintiff to resign her employment, and upon her refusal so to do, wrongfully discharged her. (c) The evidence is sufficient to create an issue as to whether Georgia Power Company became liable for the wrongful conduct of its supervisor, by retifying such acts, through his retention in employment, and otherwise.

2. First, there was an issue of fact as to whether Georgia Power Company had knowledge on October 17, 1972, of facts or circumstances sufficient to put it on notice that its supervisor had committed immoral acts; or that the relationship of supervisor-employee between him and Mrs. Wiley would likely result in some such act as actually thereafter happened. Further, the movant conceded that Mrs. Wiley offered the affidavit of Dwight J. Eavenson, District Sales Supervisor for Georgia Power Company, who testified that prior to October 17, 1972, three female employees had told him of molestations by the supervisor and asked for protection from him; and to be sure they were not left alone in the office with him; and that Mrs. Wiley had come to him personally three or four months before October 17, 1972, and requested that she not be left alone in the office with said supervisor.

But then, the trial court agreed with defendant's contentions that because Mrs. Wiley knew of the amoral and amorous propensities of the supervisor towards female workers, she should not have continued to work with him; and that the master is not liable here because plaintiff could have protected herself by refusing to work with him (presumably by quitting her job). Defendant and the trial judge cited many authorities on the 'fellow-servant' rule in support of this proposition, which rule in effect requires one servant to assume the risk of injury by a fellow servant.

But this theory overlooks the allegations in paragraph 3 of the complaint that the damages accrued to plaintiff. 'While in the employment of Georgia Power Company and under the supervision of James A. Smith, a supervisor for Georgia Power Company . . .' Under the Civil Practice Act all pleadings must be construed most favorably toward the plaintiff. Harper v. DeFrietas, 117 Ga.App. 236(1), 160 S.E.2d 260; Hunter v. A-1 Bonding Service, Inc., 118 Ga.App. 498, 164 S.E.2d 246. And in motions for summary judgment 'the party opposing the motion must be given the benefit of all favorable inferences.' McCarty v. National Life, 107 Ga.App. 178, 179, 129 S.E.2d 408, 410. A jury question is raised as to whether Smith was a vice-principal or merely a fellow servant, and if he was a vice-principal, the fellow servant rule relied on by the appellee is inapplicable. In Maxwell v. Harrell, 115 Ga.App. 97, 98, 153 S.E.2d 653, 655, this court held: 'While the master is not ordinarily liable for the negligence of a fellow servant (Code § 66-304), he is liable for his own negligence or that of his vice principal acting for him.' (Emphasis supplied.) In Moore v. Dublin Cotton Mills, 127 Ga. 609, 610(9), 56 S.E. 839, and also Headnotes 2, 3, 4, 5, 6, 7, 8, 10, the trial court was reversed in its grant of a nonsuit to defendant employer, and it was held that a jury question was presented as to whether the company's agent was a vice-principal or not. It was relevant to show that he was called 'foreman,' 'overseer,' etc. in connection with the type of order he gave and the character of work that was performed. Also see Atlanta Cotton Factory v. Speer, 69 Ga. 137(1); Whiters v. Mallory Steamship Co., 23 Ga.App. 47, 48(3), 97 S.E. 453; Woodson v. Johnston, 109 Ga. 454(1),34 S.E. 587.

Therefore, in this case, a jury should have been called upon to decide whether the supervisor of Georgia Power Company was a vice-principal or mere fellow employee; and if a vice-principal, the Georgia Power Company could have been held liable for his wrongful conduct towards plaintiff.

3. Next, a jury question is created as to whether Georgia Power Company can escape liability for its conduct, in conjunction with that of its supervisor, as is set forth in paragraphs 4, 5 and 6 of the complaint as follows: 'The Plaintiff reported the incident to the proper authority for the Georgia Power Company, Mr. Miller Watkins, the manager for the Gainesville District, and Mr. Watkins acknowledged that he was aware of the circumstances.

'Plaintiff shows that thereafter, the defendants pursued a course of threats and intimidation against the Plaintiff because of this incident including cursing and abusive language, and threatening the Plaintiff that she might lose her job, all of the time the district manager was assuring her to the contrary.

' The Plaintiff was then notified by the defendants that she would be replaced by a black employee, and thereafter the defendant, Georgia Power Company, did then replace the Plaintiff with a black employee.'

It is significant that both defendants are charged with the aforementioned conduct against plaintiff; and this is sufficient to presume they conspired together, as both did the same thing, to the same person, about the same matter, and at the same time. One was the employer and the other was its supervisor. In order to find conspiracy alleged or proven it is not necessary that the word 'conspiracy' be used, nor is it necessary to allege that the co-conspirators ever met together, or tacitly agreed to the course of conduct which was the fruit of the conspiracy. Grainger v. Jackson, 122 Ga.App. 123, 128, 176 S.E.2d 279; Walden v. State, 121 Ga.App. 142, 144, 173 S.E.2d 110; Nottingham v. Wrigley, 221 Ga. 386, 388, 144 S.E.2d 749.

Our courts have spoken loud and clear as to the right of one to earn a livelihood, and to seek redress against anyone who wrongfully causes him to be discharged from employment. In Luke v. DuPree, 158 Ga. 590, 597, 598, 124 S.E. 13, it is made very clear that if A contracts with B, and C induces A to break that contract, then B may sue both A and C; that he has a property right in the contract; that he may sue one or both; and at p. 597, 124 S.E. at p. 17, 'Whoever wilfully assists in the doing of an unlawful act becomes answerable for all the consequences of such act (citing Chattahoochee Brick Co. v. Goings, 135 Ga. 529, 535, 69 S.E. 865). On the theory that the parties to a contract have a property right therein, any 'act of another which unlawfully interfers with such enjoyment is a cause of action. " Again in Studdard et al. v. Evans, 108 Ga.App. 819, 825, 135 S.E.2d 60, an attorney sued the defendant railroad and its trainmaster for conspiring to have his client repudiate his contract of employment; and it was held that both the employer and its trainmaster were liable, and the discussion at pages 822-823, 135 S.E.2d 60 is quite applicable to the facts in the case sub judice. On this subject, it has been held that although an employer may have the right to terminate the employment of his employee at any time, if a third person and the employer conspire to bring about the eventuality of discharge, an action will lie against both of them. Ott v. Gandy, 66 Ga.App. 684, 688, 689(1), 19 S.E.2d 180. The right of enjoyment of private property (and employment is private property) being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie. (See Code § 105-1401.) Where parties conspire the act of one is the act of all. See Wall v. Wall, 176 Ga. 757(4), 168 S.E. 893.

Here it was shown that defendant Georgia Power Company knew plaintiff was being harassed; knew that the very wrong might occur which actually did occur; and instead of taking corrective action against its supervisor, who committed the wrongful and indecent acts, ratified his conduct, retained him in employment, and both Georgia Power Company and its supervisor cursed, abused, threatened and intimidated plaintiff; threatened that she might lose her job and did then discharge her and replaced her with a black employee.

What wrong had plaintiff done? Why was she cursed, abused, and threatened with loss of her job? She had reported the indecent conduct of the supervisor, and instead of discharging the supervisor, Georgia Power...