Wrigley v. Nottingham, 40914

• Court: Georgia Court of Appeals
• Writing for the Court: BELL
• Citation: Wrigley v. Nottingham, 141 S.E.2d 859, 111 Ga.App. 404 (Ga. App. 1965)
• Decision Date: 16 March 1965
• Docket Number: No. 3,No. 40914,40914,3
• Parties: Norman J. WRIGLEY, Jr., et al. v. W. M. NOTTINGHAM

Page 859

141 S.E.2d 859

111 Ga.App. 404

Norman J. WRIGLEY, Jr., et al. v. W. M. NOTTINGHAM.

No. 40914.

Court of Appeals of Georgia, Division No. 3.

March 16, 1965.

Rehearing Denied March 25, 1965.

Syllabus by the Court

1. One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action.

2. Where several defendants are sued as joint tortfeasors, and the evidence demands a finding that there was no cause of action proved against one of the defendants, the trial judge should grant the latter's motion for judgment notwithstanding the verdict.

3. The evidence supported the verdict against one of the defendants.

4. The special ground of the motion for new trial considered in this division of the opinion has no merit.

Plaintiff sued the defendants in tort seeking recovery for damages allegedly incurred through the defendants' maliciously procuring a breach of an oral contract to which plaintiff was a party and in which he had a valuable interest.

The defendants bring exceptions to the judgments overruling their general and special demurrers to the plaintiff's petition, to the denial of their motions for judgment notwithstanding the verdict, and to the denial of their motion for new trial.

Claude Hambrick, Atlanta, for plaintiffs in error.

Grant, Spears & Duckworth, William H. Duckworth, Jr., Atlanta, for defendant in error.

BELL, Presiding Judge.

1. The defendants contend that their general demurrers to the petition should have been sustained for the reason that the allegations show that the acts on which the suit was brought were those of the corporation alone and not their personal deeds. The corporation was not joined as a party defendant. The defendants, all officers of the company, were sued in their individual capacities.

The petition alleges injury and damages through the defendants' conduct in maliciously procuring a breach of the plaintiff's contract by the corporation. Allegedly, the agreement had been negotiated and concluded on behalf of the company by Norman J Wrigley, Jr., as its president and agent. The terms of the contract were pleaded in detail. It is asserted that the contract was subsequently ratified by the corporation and had been partially performed by the parties. It is alleged that Wrigley, Jr., owned all of the voting stock of the corporation although actual control of its affairs rested in the majority of the board of directors. However, it is charged that Wrigley, Jr., could control the corporate acts by reason of his ownership of all the voting stock coupled with his family relationship with members of the board. It is alleged that the conspiracy to effect the breach occurred between the defendants prior to a called meeting of the board of directors although the formal breach was voted by the defendants at the called meeting. As to all defendants, the petition asserts in effect that the breach was procured maliciously and without justifiable cause.

'In all cases he who maliciously procures an injury to be done to another, whether it is an actionable wrong or a breach of contract, is a joint wrongdoer, and may be sued either alone or jointly with the actor.' Code Ann. § 105-1207.

'The term 'malicious,' used in this connection, is to be given a liberal meaning. The act is malicious when the thing done is with the knowledge of the plaintiff's rights, and with the intent to interfere therewith. It is a wanton interference with another's contractual rights. Ineffective persuasion to induce another to violate his contract would not, of itself, be actionable, but, if the persuasion be used for the purpose of injuring the plaintiff, or benefiting the defendant at the expense of the plaintiff, with a knowledge of the subsistence of the contract, it becomes a malicious act, and, if injury ensues from it a cause of action accrues to the injured party.' Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509, 519, 50 S.E. 353, 356, 69 A.L.R. 90, 106.

A corporation is nothing more than a robot, created by the law, possessing only that sensibility which its management and agents bring to it. Most corporate liabilities do not attach personally to its stockholders, officers or agents. The corporation, however, is not so fortunate, as it is often subjected to liability through the tortious misconduct of its management and agents when the wrongs are done in the scope of the agency relationship. This imposition of corporate liability for the acts of its agents does not ipso facto in the eyes of the law relieve the agents from personal accountability for their torts. In actions based on torts committed by corporate agents, the choice of naming the defendant against a possible imposition of ultimate liability frequently rests with the one wronged. The plaintiff may name in his action as a party the corporation alone, or he may name the corporation and the agents, or the agent alone. The choice is usually made on the basis of financial responsibility (usually the corporation alone), or on a combination of fiscal ability and venue or jurisdiction, (the corporation and its agent). This does not mean, however, that the plaintiff may not sue the agent alone in his personal capacity. 'Joint tortfeasors may be sued jointly or severally.' H. W. Brown Transp. Co. v. Morrison, 89 Ga.App. 107, 112, 78 S.E.2d 856, 860; Wall v. Wall, 176 Ga. 757, 168 S.E. 893. One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action. Burns v. Horkan, 126 Ga. 161, 167(6), 54 S.E. 946; Carpenter v. Williams, 41 Ga.App. 685, 689(2), 154 S.E. 298.

The case of Kenimer v. Ward Wight Realty Co., 109 Ga.App. 130, 135 S.E.2d 501, decided by the same three judges concurring in this opinion, is cited and relied upon by the defendants in support of their contention that the acts sued upon were solely those of the corporation. It is contended that this insulated the defendants in their individual capacities from liability.

Based on the facts peculiar to that case, the holding in Kenimer was founded on the premise that there was alleged no breach of contract in which the plaintiff had an enforceable interest. There the plaintiff was not a party to the contract under which he sued and had no assigned interest in it. Thus with respect to the contract there could not have been as to him either an actionable wrong or a breach of contract. The mere fact that an existing agreement by mutual consent of the parties was canceled and a new one executed could not constitute an actionable wrong to the plaintiff who had no enforceable interest in the former. We undoubtedly went too far in Kenimer, p. 134, 135 S.E.2d 501, by citing and quoting from the Rhine case but that quotation was neither applicable to the decision nor pertinent to the issue before us. Furthermore, the quotation used does not mean that corporate agents are in all cases insulated from personal liability for their tortious conduct simply because their actions might have been taken within the scope of the agency relationship. A referral to the Rhine case reveals that its holding was predicated on the court's construction of the petition as showing that the only damage alleged was that arising out of the breach of purely contractual duties by the corporation and the conspiracy charged against the individuals amounted to nothing more than a mere conclusion. Rhine v. Sanders, 100 Ga.App. 68, 73, 110 S.E.2d 128. Necessarily, the holding there and the binding authority of its discussion must be restricted to matters properly within the ambit of that construction of the petition. Rhine's treatment of any other matter is merely academic.

In the case before us, the plaintiff could have sued the company for breach of contract h...