Ott v. Gandy , 66 Ga. App. 684 ( 1942 )

1. The fact that an employment is at the will of the employer and employee does not make it one at the will of others, and a malicious and wrongful interference with such employment by another is actionable although the employment be at will.

2. The petition set forth a cause of action for an unjustified interference by the defendant with the contractual relations of the plaintiff with his employer, and the court erred in sustaining the defendant's general demurrer.

DECIDED FEBRUARY 28, 1942. STATEMENT OF FACTS BY SUTTON, J. J. D. Ott brought suit against A. J. Gandy, the petition alleging as follows: On December 4, 1937, the plaintiff and the All States Life Insurance Company, a corporation of the State of Alabama, entered into a written contract, by the terms of which the plaintiff, for certain considerations named, became the soliciting agent in Augusta for the said company in procuring applications for insurance and for collecting the premiums on policies issued by the company on such applications procured by the plaintiff. The territory assigned to the plaintiff by the company in which to procure applicants for insurance was a new territory, in which the company had but little, if any, insurance in force therein. The plaintiff's contract with the company was strictly on a commission basis, that is, he was to receive as compensation for his work in procuring applicants and for collecting premiums on policies issued thereon by the company a commission upon the premiums collected by the plaintiff. After entering into the contract with the company the plaintiff gave and devoted all of his time in an earnest effort to build up an insurance debit in the territory assigned to him, and, although he industriously and diligently worked hard and put in long hours daily, his income was very meager for the first year or so. The plaintiff realizing, however, that his business was gradually increasing and that some day he would receive a good income, forged ahead industriously and patiently at his work until finally he had built up a substantial insurance debit in the territory, from which he was receiving a certain weekly income in excess of the sum of $20 per week at the time hereinafter mentioned, and this income was gradually increasing. The insurance company appeared to be highly pleased with the plaintiff's diligent and industrious efforts and sacrifices aforesaid in building up for it the said insurance debit where it had no business before, and so expressed itself and spoke of appointing the plaintiff one of its managers if his business continued to improve, all of which appears in letters addressed to the plaintiff by the company, the last being dated January 29, 1941. The defendant, A. J. Gandy, was, during the month of January, 1941, appointed manager of the company's Augusta office. He, learning of the plaintiff's efforts to build up and increase the company's business and of his desire to become a manager and of the plaintiff's growing popularity with the company, as aforesaid, and actuated by envy, jealousy or other despicable motive, engaged upon a plan and scheme to bring about a breach of the plaintiff's contract with the company, and thereby to take over control of the plaintiff's insurance debit which the plaintiff had spent three years in building up as aforesaid. Actuated by said motives and in furtherance of said scheme to cause and bring about a breach of the said contract with the company, the defendant, after becoming manager of the said office and agency, soon began to slight the plaintiff and show a lack of interest in him and his work, refused to discuss with him any business matters pertaining to the advancement of the company's interests, and on several occasions suggested to the plaintiff that if he did not like the defendant's manner and conduct he could quit. The defendant's conduct and acts towards the plaintiff gradually grew worse and finally became insulting, and his attitude towards the plaintiff became hostile. While the defendant had no authority to discharge the plaintiff or rescind his contract with the company, he did, on the morning of February 26, 1941, approach the plaintiff while the latter was in the offices of the company on business, and in an abrupt, boisterous, and insulting manner said to the plaintiff "You are fired." The defendant did thereupon and by the use of force and violence, unlawfully seize and rob the plaintiff of his debit or collection book and records which contained the plaintiff's only record of his policy holders, their addresses, amounts due on premiums, amounts paid on premiums, and other important records and data made by the plaintiff and without which he was wholly unable to carry on his work, and he was thereby deprived of essential information and records which were necessary to the performance of his duties under his contract with the company. The defendant, having placed the plaintiff in a position where it was impossible for him to carry on his work under the said contract, and in furtherance of his unlawful and malicious scheme and purpose to force and bring about a breach of the contract between the plaintiff and the company, and taking advantage of his position and influence with the company as manager as aforesaid, did thereupon persuade and induce the company to cancel the plaintiff's contract, which it did on the next day thereafter, on February 27, 1941, thereby effectually, unlawfully, and maliciously procuring and bringing about the breach of the plaintiff's contract with the company and depriving him of the fruits of his labor and toil over a period of years in building up the said insurance debit and income. In all of his acts and conduct aforesaid the defendant was motivated by an unjust desire, scheme, and purpose to injure and damage the plaintiff by procuring a breach of the said contract. The defendant had no authority, express or implied, to discharge the plaintiff or to cancel the said contract, and he resorted to the said unlawful, wanton, and malicious acts and conduct to procure a breach of the contract, all to the great damage and injury of the plaintiff. Prior to said acts and conduct of the defendant the plaintiff was held in high esteem and good graces of the company and the policy holders procured by him, and the plaintiff had a steady and certain weekly income in excess of $20 per week, which was gradually increasing in amount from time to time. The plaintiff has been deprived of said steady, certain, weekly income under said contract by the aforesaid unlawful, wanton, and malicious acts and conduct of the defendant, which brought about and procured the breach of the plaintiff's contract with the said company, and by reason thereof the defendant has injured and damaged the plaintiff in the sum of $3000. Judgment was prayed accordingly.

The court sustained the defendant's general demurrer to the petition, and the exception here is to that judgment. The petition alleges that the defendant, who was the local manager of an office of an insurance company by which the plaintiff was employed, and who had no authority to discharge him, did, being actuated by an unjust desire, scheme, and purpose to injure and damage him, maliciously and unlawfully persuade the company to breach its contract with the plaintiff. No terms of the contract are set out and the petition must be construed as alleging that the plaintiff was working under a contract which was terminable at the will of the employer. While the petition several times refers to a breach of contract by the employer, the gist of the complaint is an alleged unlawful and malicious interference with his contractual relations with the employer, resulting in the termination of his services which were highly acceptable to the company and which were ended only by reason of the unjustified act of the defendant.

No case seems to have been before the appellate courts of this State in which was involved the question whether recovery could be had for an unlawful interference with one's employment under a contract terminable at the will of the employer, although there have been several cases dealing with wrongful acts which brought about a breach of contract for a definite period. It is settled by the weight of authority in other jurisdictions, however, that the fact that the employment is at the will of the employer does not relieve from liability for damages one who, without justification, causes the discharge of the employee. As stated in 30 Am. Jur. 66, § 12: "The fact that employment is at will and that the employer is free from liability for discharging an employee does not carry with it immunity to a third person who, without justification, causes the discharge of the employee. Thus, the rule has been stated that where a third person induces an employer to discharge an employee, under a contract terminable at will, but under which the employment would continue indefinitely, in accordance with the desire of the employer, except for such interference, and where the only motive actuating the third person is a desire to injure the employee . . a cause of action arises in favor of the employee against such third person. It has been judicially suggested, however, that while one's contractual rights to labor, although terminable at will, are entitled to protection against wanton interference, yet since they are not so assured or valuable in their nature as are valid contracts for continued service for a definite period, it may well be that a stronger reason may be needed to justify interference with such contracts than with those for a definite [an indefinite] term. Moreover, the fact that the plaintiff's contract is terminable at will, instead of ending at a stated time, affects the amount that he is to receive as damages." It is stated in 39 C. J. 1375, § 1613: "One who maliciously or without just cause or excuse procures the discharge of a servant from his employment is liable to him for the resulting damages, and while there is some authority to the contrary, it has very generally been held that this principle is applicable, although the service was for no definite or fixed period." See 4 Restatement of the Law of Torts, 49-53, § 766; Annotations in 84 A.L.R. 61; 29 A.L.R. 535. In all of the above, except Restatement of the Law, many cases are cited under the text. "The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will." Truax v. Raich, 239 U.S. 33, 38 (36 Sup. Ct. 7, 50 L. ed. 131).

We think that the principles above enunciated are sound, and we adopt them as applicable to the facts alleged in the plaintiff's petition. Accordingly, we hold that the petition set out a cause of action, and that the court erred in sustaining the defendant's general demurrer.

Judgment reversed. Stephens, P. J., and Felton, J., concur.