King v. Schaeffer

Felton, Chief Judge.

This is the second appearance of this

case in this court. On the first appeal, this court held that the trial court erred in granting a summary judgment for the defendants as to Count 1 of the petition which was based on the allegations that the two defendants conspired to and did cause him to be discharged from his position with his employer. King v. Schaeffer, 115 Ga. App. 344 (154 SE2d 819). The Supreme Court, on certiorari, affirmed the judgment of this court as to its ruling as to Count 1, but adjudged that Division 4 of this court’s opinion be stricken. Schaeffer v. King, 223 Ga. 468 (155 SE2d 815).

1. It is difficult to determine what the Supreme Court meant when it stated: “On the hearing of the petition for a summary judgment, the evidence did not demand a finding that Schaeffer did not have the right to discharge King. This issue is one for determination by the jury.” The motion for summary judgment was not made by the appellant, but was made by the appellees. At any rate, construing the opinion of the Supreme Court as a whole, it must mean that the question as to whether Schaeffer, had an absolute right to discharge King was a question of fact under the record before it and that if he had the absolute right to discharge King he could not be liable in tort even though he did not exercise his absolute right but induced others to direct him to do the discharging. Under this construction there was still a question of fact whether Schaeffer had the absolute authority to discharge King. The only material difference between the evidence on the motion for a summary judgment and on the trial is that there was additional testimony on the trial that a particular official had the right to authorize one of his subordinate officers to discharge the appellant without qualification or approval of higher authority. This testimony did not go far enough for the reason that it was not proved that such a departure from the prevailing practice of having Schaeffer’s discharge powers reviewed before becoming final had the approval of the board of directors of the employer company as did the prevailing practice rules. In such a situation the mere act of an officer is not the corporate act.

2. By implication both this court and the Supreme Court ruled that as to the issue of conspiracy there were questions of fact from which a jury could find in the appellant’s favor. The facts on this question, on the trial, were not substantially different from those on the hearing on the motion for a summary judgment. Under any other ruling where the facts on motion for summary judgment cover more than one issue a decision against the grant of a summary judgment precludes a re-adjudication of those not expressly ruled on where the evidence is substantially the same. Otherwise, rehearings of motions for summary judgments would be endless. If the evidence on the motion for a summary judgment had required a summary judgment for the appellees here, this court or the Supreme Court would have so ruled. One in All Corp. v. Fulton Nat. Bank, 108 Ga. App. 142 (132 SE2d 116).

This case is palpably distinguishable from that of Suggs v. Brotherhood of Locomotive Firemen &c., 106 Ga. App. 563 (2) (127 SE2d 827). The same is true as to Stein Steel &c. Co. v. Briggs Mfg. Co., 110 Ga. App. 489 (3) (138 SE2d 910); Walker v. Small Equipment Co., 114 Ga. App. 603, 606 (152 SE2d 629) and Venable v. Grage, 116 Ga. App. 340 (157 SE2d 519). See also Myers v. Johnson, 116 Ga. App. 232 (156 SE2d 663).

The court erred in directing a verdict for the appellees.

Judgment reversed.

Quillian, J., concurs. Pannell, J., concurs specially.