author: Birdsong, Judge. Beasley, Judge, Benham, Judge,

text:
    A89A0310.
    CREWS et al. v. McQUEEN et al.
    (385 SE2d 712)
   Birdsong, Judge.

This case involves a school spanking of an eight-year-old boy because he failed to do his homework or failed to bring it to school. Summary judgment was granted to the defendant school principal, McQueen.

According to appellant Crews, the two versions of what occurred in the principal’s office that day differ significantly. The appellant, in brief, urges as fact that “[t]he minor Appellant was fidgity and did not want to position himself in front of the Appellee’s desk and at one point was placed across the Appellee’s knees but continued to be uncooperative throughout. Due to the lack of cooperation on the part of the minor Appellant, the Appellee again had the minor stand in front of the desk with his hands on the edge of the desk. When the minor would not remove his hands from his buttocks area, the Appellee positioned himself as described above and after administering the first lick, due to the pain he was experiencing, the minor Appellant began to cry and dropped to his knees. The Appellee then ‘jerked’ the child up by his right arm (which was behind his back) into an almost standing position, and then realizing that the arm was broken, let the child drop back to the floor. . . . Due to the actions of the Appellee . . ., the minor Appellant suffered a severe spiral fracture of the upper right arm.”

The appellee contends he is entitled to sovereign immunity. The trial court, applying general principles of governmental immunity, found the principal’s actions were “ ‘ “within the scope of the officer’s authority, and without wilfulness, malice, or corruption.” ’ ” Hen nessy v. Webb, 245 Ga. 329, 331 (264 SE2d 878). Held:

1. We as judges of this appellate court cannot shrug off our judicial robes and sit in the jury’s box to decide any fact in this case. The parent has asserted a cause of action because the child’s arm was broken while the child was being administered corporal punishment. The staunchest proponent of corporal punishment cannot as a matter of law resolve all factual disputes in favor of a judicial finding of immunizing “good faith,” without doing fatal damage to his or her own cause. That approach does nothing to advance the right of school administrators to employ corporal punishment in this state.

The right of school administrators is in fact not in question in this state, and leaving this case to the jury does not put it in question. But a blind championing of that right to administer physical punishment, to the point of removing from the jury the ultimate statutory question of good faith in a highly disputed case, is more liable than anything to destroy it. It will water down the statutory restrictions on corporal punishment to nothing except the judgment of the administrator and increase the dangers of abuse proportionately and inevitably give the objectors more power to intervene. This is not what the legislature intended.

There are significant issues of fact in this case, the first being the question of what actually occurred in the principal’s office, and whose version is correct. Then there are the vital questions whether within the exercise of sound discretion, the corporal punishment was “in good faith” and whether the corporal punishment was “excessive or unduly severe.” OCGA § 20-2-731. If so, the administrator is immune from civil or criminal liability under the express terms of OCGA § 20-2-732. But before this issue is determined, the question of what actually happened is one only the jury can decide.

The court below was not authorized to determine which version was more credible, as it seems to have done. On appeal of a summary judgment ruling, there can be no presumption in favor of a trial court’s express or implied finding of fact. The trial court’s sole function on a motion for summary judgment is to determine whether there is a genuine issue of material fact, it is not its function to determine what the facts are, for that is the jury’s right and role.

If certain facts are undisputed, there is not anything to be “found”; and if one of the parties, even the respondent, has contradicted himself, the trial court may adjudge the testimony against that party, and its determination that such contradiction has not been reasonably explained is an issue of law for the trial court to decide (Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30-31 (343 SE2d 680); Thacker v. Matthews Tuxedo, 183 Ga. App. 474 (359 SE2d 231)). The trial court’s determination on the legal issue whether a contradiction has been reasonably explained, carries a peculiar weight on appeal, only because a party has no right to make “deliberate,” contradictory statements, and if he does so, the determination whether such contradiction is reasonably explained is not one for the jury in the first instance. Prophecy Corp., supra.

However, except as to that singular determination of reasonable explanation where one party has contradicted himself, no presumption of correctness attaches to a trial judge’s finding or conclusion of fact by resolving material ambiguities or conflicts in evidence, for he is not supposed to do it. His role is not to determine issues of fact, but to determine if there is an issue of fact. The dissent in this case has remarked that “[s]ince this matter was decided on summary judgment, all evidence and ambiguities created thereby must be construed most favorably towards the respondent and against the movant,” and cites two cases; but the difficulty of this statement is that it implies that “since this matter was decided on summary judgment, [on appeal] all evidence and ambiguities created thereby must be construed most favorably towards the respondent and against the movant.”

This has never been the law of summary judgment. At the trial level, the construction of all evidence and ambiguities and inferences created thereby in favor of the respondent, is merely the procedural mechanism by which the trial court preserves for the jury any issue of fact, if there is one or if one can be made. Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736, 739 (123 SE2d 179). “The cardinal rule of the summary judgment procedure is that the court can neither resolve the facts nor reconcile the issues, but can only look to ascertain if there is an issue. [Cits.]” (Emphasis supplied.) Id.

Even as to the determination that an issue of fact exists, there is no presumption that the trial court is correct (see Bagley, p. 740), and no such presumption was suggested in the two cases cited by the dissent, North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346); Blount v. Seckinger Realty Co., 167 Ga. App. 778, 779 (307 SE2d 683).

Thus, where as here, there are materially varying versions as to what occurred in a case, the trial court on motion for summary judgment is not empowered to construe these versions in favor of anybody so as to resolve any issue but may do so only to determine if there is one. Therefore, where the trial court has attempted to resolve any material issue of fact, either by construing the evidence in a certair fashion or otherwise, the trial court has exceeded its power with the grant or denial of summary judgment. Since it was not empowered tc do so in the first place, no presumption can arise on appeal that ii was correct in such resolution; and certainly we do not construe “al evidence and ambiguities created thereby” to sustain it.

To say otherwise would be to convert the summary judgmen procedure from one designed to preserve issues of fact to one whicl disposes of them. This would act not only to destroy summary judgment procedure, but to eviscerate the entire jury system as well, for by construing evidence to resolve issues, the trial court would become the factfinder. Further, if on appeal we then construed all evidence and ambiguities and inferences created thereby to uphold the trial court’s determination, we would be sitting in review of a finding of fact, and not in review of a finding that there is an issue of fact.

The trial court’s order applies general rules of sovereign immunity, and suggests that neither version of the events shows absence of good faith because it seems clear beyond issue that the appellee did not act with wilfulness, malice, or corruption. As shown in Division 2 of this opinion, a determination as to “wilfulness, malice or corruption” does not control this case; rather the question is one of good faith. The varying versions of the parties make this the ultimate question for the jury.

Even if the principal did act in good faith, under the specific provisions of Title 20, which controls this case (see Division 2), there is still the factual question whether the corporal punishment “is . . . excessive or unduly severe” (OCGA § 20-2-732; and see OCGA § 20-2-731 (1) and (2)). The plaintiff here raised plain factual issues whether the intended punishment in this case was appropriate for the boy’s misdeed, whatever that misdeed is found to have been; for if the jury finds it was not, then it may have been “excessive or unduly severe,” even though it was administered in good faith.

2. The legislature has made express provision for immunity in corporal punishment cases at OCGA § 20-2-732. While general rules of sovereign immunity (see, e.g., Hennessy) may not be strictly inapplicable to all corporal punishment cases, the express immunity provisions at OCGA § 20-2-732 will always control.

For the most part, the provisions of OCGA § 20-2-732 are compatible with general rules of sovereign immunity. However, we strongly question the summary application of a general principle “scope of authority” determination, in view of the “sound discretion” vested in the administrator by the statute authorizing corporal punishment in certain circumstances. OCGA § 20-2-731 (1) through (5) carefully defined the situations which are within the scope of the authority to administer corporal punishment, but that statute also places the determination of these situations and of the punishment within “the exercise of [the principal or teacher’s] sound discretion.” (Emphasis supplied.)

Thus, even though certain punishment was within the “scope of authority” (OCGA § 20-2-731 (l)-(5)), it still may have been outside the administrator’s sound discretion. It does not necessarily follow that because it was technically authorized, it was administered in sound discretion; nor that the conclusion the situation fit within sub-paragraphs (l)-(5) was made in sound discretion. The question of “discretion” in these case is subject to so many variables that except in egregious circumstances, it generally cannot be determined as a matter of law.

We therefore decline to apply the general principles of sovereign immunity to this case, for the legislature, in expressly creating specific “authorized” situations but subjecting them to “sound discretion,” has made a distinct and controlling rule. Application of general immunity is not only unnecessary, but may well lead to results contrary to the mandates and authorizations in Title 20.

In Maddox v. Boutwell, 176 Ga. App. 492 (336 SE2d 599) we indicated that if the punishment in that case were outside the guidelines of OCGA § 20-2-731 (1) in particular, it would (employing general rules of immunity) necessarily be outside the scope of authority. Obviously this is true, but the opposite proposition is not: a situation that may be within the factual limits of § 20-2-731 (1) through (5), still may be outside the exercise of the administrator’s “sound discretion.”

We conclude that in some cases the admixture of both lines of analysis may, perhaps coincidentally, lead to consistent results, but not so in this case. Since the underlying facts are in genuine issue, the trial court could hardly determine whether they fit within the authorizing paragraphs (1) through (5) of OCGA § 20-2-731, and within the principal’s “sound discretion.” In fact, the latter determination may be so subtle as to defy resolution as a matter of law, even where facts are undisputed.

Inasmuch as the facts are directly disputed in this case, the determination of these issues under the law stated is one for the jury.

Judgment reversed.

Carley, C. J., Deen, P. J., and McMurray, P. J., concur. Beasley, J., concurs specially. Banke, P. J., Sognier, Pope and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur in the judgment based on the following.

The incident involved in this case has been before the Court before. In Pennsylvania Millers Mut. Ins. Co. v. Crews, 184 Ga. App. 492 (361 SE2d 657) (1987), summary judgment for the parent was upheld in the declaratory judgment action brought by the school board’s liability insurer. The basis for the holding was that the policy exclusion for bodily injury expected or intended by insured did not apply and consequently there was coverage. The factual premise was that, as the Court stated, “[The child] was injured while being paddled . . . when he twisted to avoid a second ‘lick’ of the paddle.”

Thus it appeared that the broken arm resulted from what the child did and not from what the principal was authorized to do, inflict a paddling. Paddling was of course intended, and paddling of course inflicts injury, albeit minimal factually and acceptable legally, but paddling was not the injury complained of. The broken arm occurred when the child acted to get out of the hold of the principal, whose arm-holding activity carried with it no intention to harm.

Now we move to the tort action brought by the parent in his individual and next friend capacities. Without comparing the records in the two cases, it appears that the present record contains conflicting evidence with regard to how the arm became broken. The principal says the child twisted and dropped while he was holding the child’s wrist to prevent him from protecting his buttocks, which sudden twisting and dropping resulted in the break. The child says that after the first swat he dropped to his knees and the principal “jerked” him up off the floor by the arm, breaking it at that time.

The law provides that the principal is not liable in a “civil action based upon the administering of corporal punishment where the corporal punishment is administered in good faith and is not excessive or unduly severe.” OCGA § 20-2-732. Plaintiff does not contend that the paddling itself was excessive or unduly severe. One swat of a two-swat punishment had been administered for repeated homework deficiencies. The principal showed as a matter of law that the punishment was administered in good faith, that is, there was a valid reason for it and the established procedures for corporal punishment were followed; no contrary evidence was offered.

Before the principal could be liable, a jury would have to first find that the arm broke because the principal jerked him up after he dropped to avoid or delay the second swat. If he jerked him more roughly than necessary, and the jerking or yanking or snatching up was done in such a way as to be part of the punishment, a jury could find that it was “excessive or unduly severe” in the contemplation of the statute. Without hearing or seeing the conflicting witnesses, lack of excessiveness or undue severity cannot be established as a matter of law in this case, given the evidence.

There was a genuine dispute over what action by whom resulted in the break, which was a material fact as related to the issue of the principal’s civil liability. He was therefore not entitled to summary judgment. OCGA § 9-11-56 (c).

Benham, Judge,

dissenting.

Since a fair reading of the majority opinion leaves me with some undispelled qualms, I find it necessary to dissent. The issue here is whether the actions of the principal in administering corporal punishment were within the scope of his authority and without wilfulness, malice, or corruption. The majority, in deciding to reverse the trial court’s grant of summary judgment to the principal, rules that issues of fact remain for determination as to these matters.

1. The majority opinion decides that issues of fact remain as to whether the actions of the principal were in the scope of his authority. There are two versions of how the injury occurred. The student contends that the injury occurred when he was jerked up from the floor where he had fallen trying to avoid the second lick. The principal contends that the injury occurred while the student was making a twisting motion in avoiding the second lick. In deciding on the summary judgment issue, the trial court was required to view all evidence and ambiguities created thereby favorably towards the respondent and against the movant. North v. Toco Hills, Inc., 160 Ga. App. 116, 119 (286 SE2d 346) (1981); Blount v. Seckinger Realty Co., 167 Ga. App. 778, 779 (307 SE2d 683) (1983).

In support of its determination that material issues of fact remain as to this issue, the majority opinion cites Maddox v. Boutwell, 176 Ga. App. 492 (336 SE2d 599) (1985). In that case, the issue was whether the punishment administered was in bad faith and excessive. “If so, the punishment would be outside the established guidelines and, therefore, outside the scope of [the principal’s] authority, rendering him liable. If not, [the principal] would be protected by both types of immunity.” Id. at 492.

“Corporal punishment in Georgia schools is provided for by OCGA § 20:2-730 et seq. In § 20-2-731, it is provided that school boards may authorize the administration of corporal punishment by the adoption of written policies and that such authority is subject to certain limitations, the first of which is ‘(t)he corporal punishment shall not be excessive or unduly severe.’ ” Id. at 492.

This approach is in conformity with the approach taken in Hennessy v. Webb, 245 Ga. 329, 330 (264 SE2d 878) (1980): “ ‘[SJchool boards, and other agencies or authorities in charge of public schools enjoy immunity from tort liability for personal injuries or death sustained by pupils or other persons in connection therewith, in the absence of a legislative enactment to the contrary, at least where only negligence was involved.’ . . . “ ‘[I]t is . . . well established that “where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.” ’ ”

There is no question that the school adopted a written policy for administering punishment and that appellee followed that policy in administering punishment. Therefore, the principal will not be considered as having acted outside the scope of his authority unless there is evidence that his actions in administering punishment were wilful or wanton. Hence, no decision can be made on the scope of authority issue until we consider the wilful or wanton issue.

2. As to the wilful or wanton issue, the majority opinion decides that a material issue of fact remains as to whether the punishment was unduly severe or excessive. A review of the legislative enactments concerning corporal punishment makes it abundantly clear that the legislature chose to vest considerable discretion in the school administrators, realizing that people differ considerably as to when corporal punishment is justified and the extent to which punishment should be administered. It necessarily follows that if considerable discretion is given to school officials, then considerable allowances must be made to protect them in the exercise of that discretion. This is especially true where, as in the case sub judice, it does not appear that anger or malice is involved.

Realizing the need to protect school officials from unwarranted accusations and the need to protect students from unduly severe punishment, some states have created a rebuttable presumption in favor of reasonableness. 6 AmJur2d 42, Assault & Battery, § 46. Since our legislature exempted school administrators from liability except where the punishment is excessive or unduly severe (OCGA § 20-2-732; see also Webb v. Hennessy, supra), it appears that for all practical purposes, the legislature intended to provide a presumption in favor of reasonableness.

The majority decision appears to rely mainly on the fact that the student’s arm was broken rather than on the circumstances which led to the injury. It must be kept in mind that the injury occurred not from the punishment itself, but from the student’s attempt to avoid punishment. There is no dispute that the punishment itself was not disproportionate to the gravity of the offense and that the injury occurred while the teacher was engaged in moderate restraint or correction. Therefore, to avoid summary judgment, appellants must show that the method or manner of punishment was in some way excessive. Punishment is not necessarily excessive simply because it results in an injury.

Where there is no showing of excessiveness, we must look to whether the instrument used or the manner in which it is used gives rise to an implication of malice. There is nothing about this case to indicate such. There being no malice, wantonness, or wilfulness, the trial court was eminently correct in granting summary judgment to the school officials.

Decided July 14, 1989

Rehearing denied July 31, 1989

Hutto, Palmatary, Magda & Krider, B. Michael Magda, for appellants.

Alva J. Hopkins III, John B. Adams, Bryant H. Bower, Jr., Terry A. Dillard, Robert B. Sumner, for appellees.

I am authorized to state that Presiding Judge Banke, Judge Sognier and Judge Pope join in this dissent.

       Deposition of the child was taken after the appellate decision in the declaratory judgment action. Although there is some indication a second deposition of the principal was taken at about the same time, only his earlier 1985 deposition is in the record.


source: Caselaw Access Project

author: Birdsong, Judge. Benham, Judge,

license: Public Domain

text:
    A89A0430.
    WEAVER v. ROSS et al.
    (386 SE2d 43)
   Birdsong, Judge.

Appellees, the administratrix of the decedent’s estate and the surviving children of the decedent, filed a wrongful death action against appellant doctor, another doctor, and a hospital authority. The latter two defendants reached a settlement with appellees and were dismissed from the lawsuit. The case proceeded to trial against appellant Weaver, and the jury returned a verdict of $722,847.13, which the trial court reduced by $50,000, the amount appellees received in settlement of their claims against the other two defendants. This appeal followed.

1. In their complaint, appellees alleged that appellant was negligent in failing to diagnose and treat their mother’s malady as Rocky Mountain spotted fever, the disease which caused her death. Much testimony was elicited about the records appellant kept of the decedent’s office visit.

During his cross-examination of appellant, appellees’ counsel asked if appellant had ever written on a patient’s chart that she had performed something for the patient when, in fact, she had not. Appellant’s response was, “Not that I can remember.” She was then handed a former patient’s chart, not that of the decedent, to refresh her recollection and was asked if she had written a history and physical examination in a chart for a patient when she had not performed the history and physical examination. She replied that she had never done that and, when asked, affirmed that she had performed the physical exam and conducted the patient history of the patient whose chart appellees’ counsel had given her. In a side bar, appellees’ counsel expressed a desire to review the medical record with appellant, and appellant’s counsel asserted to the trial court that appellees were bringing in a completely different case. Appellant made a motion in limine to exclude further cross-examination of appellant regarding that or other alleged similar incidents, as well as the testimony of other witnesses called with regard to other alleged similar incidents. Appellant based her motion on the principle that a witness may not be impeached because of a discrepancy as to a wholly immaterial matter and that an unrelated act of alleged malpractice was immaterial to the issue being tried. The motion was denied on the ground that it was proper impeachment material. On rebuttal, appellees called the widow of the former patient who testified that appellant had not performed the physical exams and history on her late husband, contrary to appellant’s written entry on the chart that she had.

Appellees maintain that the rebuttal evidence was admissible in response to appellant’s introduction of evidence of her good character. “The general character of the parties . . . [is] irrelevant matter unless the nature of the action involves such character. ...” OCGA § 24-2-2. “ ‘As a rule, the character of a party to a civil action is not an issue, and evidence thereof is not relevant.’ ” Stanley v. Hudson, 78 Ga. App. 834, 836 (52 SE2d 567). See also Housing Auth. of Atlanta v. Green, 169 Ga. App. 211 (3) (312 SE2d 196).

However, OCGA § 24-9-82 provides that the parties at trial may impeach a witness by disproving the facts testified to by him. In this instance, the physician testified on cross-examination that she had never written a history and physical examination in a chart for a patient when she had not performed the history and physical examination, and that she had examined and conducted the history relating to the particular former patient in question. On rebuttal, appellees called the widow of the former patient who testified that appellant had not performed the physical examinations and history on her late husband contrary to appellant’s written entry on the medical chart. This evidence would rebut both of the above factual statements testified to by appellant. “The object of all legal investigation is the discovery of truth,” OCGA § 24-1-2; it does not support this “prominent end” to construe the rules of evidence to provide a safe haven for witnesses to voluntarily give false or misleading testimony in court. The issue before us is controlled by the legal principles found in Richards v. Harpe, 42 Ga. App. 123 (1) (155 SE 85). Although the testimony to be directly rebutted initially was given during appellant’s cross-examination as opposed to direct examination, these self-serving testimonial responses, if left unrebutted, would be clearly corroborative of factual contentions voluntarily advanced during her direct testimony specifically that she had not fabricated or reconstructed any of the entries made on the decedent’s chart.

Control of the nature and scope of the cross-examination of a witness is a matter inherently within the discretion of the trial court and will not be controlled by an appellate court unless abused. Sagon v. Awtrey, 173 Ga. App. 377, 378 (326 SE2d 566). If evidence can be duly admitted under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories; that is, evidence should be admitted if it is admissible for any purpose. Orr v. Dawson Tel. Co., 35 Ga. App. 560 (2) (133 SE 924); see Wyatt v. State, 206 Ga. 613, 616-617 (57 SE2d 914); Fidelity &c. Co. v. Nisbet, 119 Ga. 316 (4) (46 SE 444); see also 1 Wigmore on Evidence § 13, p. 694. And, a correct decision of the trial court normally will not be reversed regardless of the reasons given therefor. Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557).

Applying the above legal principles to this case, we are convinced that the trial judge did not clearly abuse his discretion in this matter.

2. The day before trial, appellees released two other defendants in consideration of a payment of $50,000. The release stated that it was not for all the damages claimed by appellees and specifically exempted from its coverage the claims asserted against appellant. The two defendants were dismissed from the lawsuit, and appellant amended her answer to plead full satisfaction. A copy of the release and settlement, with the monetary amount concealed, was admitted into evidence, and the trial court gave the jury a charge almost identical to that discussed in Ford Motor Co. v. Lee, 237 Ga. 554 (2) (229 SE2d 379). The trial court concluded the Lee charge with the instruction that the jury was to find the total amount of damage and that the trial court would reduce the verdict by the unannounced amount appellees had received in settlement. Appellant contends the trial court erred in failing to submit the issue of full satisfaction to the jury.

In light of the Supreme Court’s decision in Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417), we must view a release given by a plaintiff to a co-defendant/joint tortfeasor differently than we did prior to Posey, In Posey, the Supreme Court abandoned the principle that a general release given to one joint tortfeasor releases all joint tortfeasors. That principle, previous to Posey, had been a distinguishing factor between a release (releases all joint tortfeasors) and a covenant not to sue (covers only the defendant who is a party to the covenant). See, e.g., American Chain &c. Co. v. Brunson, 157 Ga. App. 833 (278 SE2d 719); City Express Svc. v. Rich’s, 148 Ga. App. 123 (4) (250 SE2d 867); Ford Motor Co. v. Lee, 137 Ga. App. 486 (224 SE2d 168), rev’d on other grounds, 237 Ga. 554, supra; Pennsylvania Threshermen &c. Ins. Co. v. Hill, 113 Ga. App. 283, 288-289 (148 SE2d 83); Trice v. Wilson, 113 Ga. App. 715 (2) (149 SE2d 530); Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 56-57 (60 SE2d 770). Since Posey, a valid release of one tortfeasor by the plaintiff does not discharge other tortfeasors unless it is agreed that it will discharge them.

Nevertheless, we do not believe that there was any error as herein alleged. As previously noted, the charge given to the trial court was almost identical to that at issue in Ford Motor Co. v. Lee, supra. The Supreme Court in Lee held that “[u]nder the instructions given, the jury was to determine the amount of damages to which the plaintiff would be entitled without consideration of any amount previously paid. This is tantamount to an instruction to find the total amount of damages. . . . The trial court properly reduced the verdict by the amount previously received by the injured plaintiff from the joint tortfeasor. . . .” Ford Motor Co. v. Lee, supra at 556. While the Supreme Court’s decision in Posey v. Med. Center-West, supra, vitiated the distinction between the effect of a release and a covenant not to sue with regard to the discharge of other tortfeasors, nothing in Posey renders nonviable the procedure approved in Ford Co. v. Lee, supra. See also King Cotton v. Powers, 190 Ga. App. 845 (380 SE2d 481). We conclude that the trial court properly handled the issue of the release of the other tortfeasors.

Moreover assuming arguendo error had occurred, we are satisfied it would be harmless. OCGA § 9-11-61.

3. In spite of appellant’s assertions to the contrary, we are not persuaded that appellees’ closing argument, addressing the jury as “the regulators of this community” and stating that the jury verdict “will go a long way in determining how doctors will treat their patients,” was tantamount to an argument that the verdict should be used to punish the defendant. Compare Gielow v. Strickland, 185 Ga. App. 85 (1) (363 SE2d 278).

Moreover, assuming arguendo error had occurred, we are satisfied that based on the nature of the argument and the charges as a whole given to the jury before deliberation, any such error would be harmless. OCGA § 9-11-61.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Sognier, Pope and Beasley, JJ., concur. Benham, J., dissents.

Benham, Judge,

dissenting.

I must dissent because I disagree with the majority’s analysis and result in Division 1 regarding the admissibility of the evidence of appellant’s fabrication of an entry on a patient’s chart. Appellees offered the evidence in an attempt to disprove appellant’s testimony that she had never written a history and physical examination in a patient’s chart when she had not actually performed those tasks. While I agree that “[a] witness may be impeached by disproving the facts testified to by him,” (OCGA § 24-9-82), “[a] witness is not to be discredited because of a discrepancy as to a wholly immaterial matter. [Cit.]” Daniels v. Luton, 40 Ga. App. 741 (1) (151 SE 659) (1930). “It is a general rule that in a suit for negligence, evidence of similar acts or omissions on other and different occasions is not admissible. [Cits.]” Thompson v. Moore, 174 Ga. App. 331 (1) (329 SE2d 914) (1985). “ ““[E]ach transaction must be ascertained by its own circumstances, and not by the reputation or character of the parties.’ ” ’ ” Williams v. Naidu, 168 Ga. App. 539, 540 (309 SE2d 686) (1983). “A witness’ possible lack of credibility concerning matters otherwise irrelevant to any issue in dispute does not thereby become material to the case as an issue of impeachment. [Cits.]” E. H. Siler Realty &c. Broker v. Sanderlin, 158 Ga. App. 796 (1) (282 SE2d 381) (1981).

The issue at trial was whether appellant misdiagnosed the decedent’s symptoms. Appellant’s office chart on the decedent was the document from which the parties ascertained appellant’s treatment of the decedent. When asked on direct examination whether she had fabricated or reconstructed any of the entries made on the decedent’s chart, appellant responded that she had not. Appellees were then entitled to impeach appellant as to that statement by presenting evidence that appellánt had fabricated an entry on the decedent’s chart, but they did not do so. Instead, appellees impeached appellant’s statement by presenting evidence that appellant had fabricated an entry on another patient’s chart. Whether appellant fabricated an entry on the chart of another patient was wholly immaterial to the question of whether appellant misdiagnosed the decedent’s symptoms and accurately entered her treatment of the decedent on the decedent’s office chart. As such, it had no place as impeachment material in this trial. See Daniels v. Luton, supra; OCGA §§ 24-9-82; 24-9-83; 24-9-84. See also E. H. Siler Realty &c. Broker v. Sanderlin, supra.

The majority’s reliance on Richards v. Harpe, 42 Ga. App. 123 (1) (155 SE 85) (1930) is misplaced, inasmuch as Richards permits cross-examination on the statements made on direct examination by the defendant physician. Also see Johnson v. Myers, 118 Ga. App. 773 (1) (165 SE2d 739) (1968). That is not what occurred in the instant case. Here, the information was not volunteered or otherwise brought out on direct examination, but the defendant was challenged on cross-examination for the first time on the issue of falsification of other patient’s records. I believe that the judgment must be reversed due to the admission of inadmissible material, and so I respectfully dissent.

I also disagree with the majority’s position in Division 2 that there was no error in the trial court’s failure to submit the issue of full satisfaction to the jury. I find that error was committed, but that it was harmless. It is my opinion that with the change in the law created by Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987), we are faced with a new issue: How will the release of a joint tortfeasor be treated in the trial against the unreleased defendants?

We begin with “the just principle that there should be but one satisfaction of a single injury. Stated otherwise, in a tort action, compensation, and not enrichment, is the basis for the award of damages.” Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 58 (60 SE2d 770) (1950). Since Posey, supra, the co-defendant of a released defendant is in a situation identical to the co-defendant of a defendant who is a party to a covenant not to sue: the plaintiff has dismissed a defendant from the suit in exchange for an amount of money. Because the plaintiff is entitled to but one satisfaction, “if the manner of releasing one involves satisfaction in whole or in part of the claim, it will enure to the discharge, pro tanto, of all who are liable. ...” Id. at 58. Thus, the remaining defendant, in an effort to reduce or avoid the plaintiff’s right of recovery, may plead and prove the payment made. Trice v. Wilson, 113 Ga. App. 715 (2) (149 SE2d 530) (1966). See also Ford Motor Co. v. Lee, 237 Ga. 554 (2) (229 SE2d 379) (1976); City Express Svc. v. Rich’s, 148 Ga. App. 123 (4) (250 SE2d 867) (1978); Pennsylvania Threshermen &c. Ins. Co. v. Hill, 113 Ga. App. 283, 289 (148 SE2d 83) (1966); Malone v. City of Rossville, 107 Ga. App. 271 (1) (129 SE2d 563) (1963); Atlantic Coast Line R. Co. v. Ouzts, supra at 59. In a post-Posey case, this court recently held that the failure of the remaining defendant to prove the fact of and the amount of the releases entered into by the plaintiffs and the other defendants precluded those settlement amounts from being used to offset the jury verdict rendered against the remaining defendant. See Payne v. Jones & Kolb, 190 Ga. App. 62 (378 SE2d 467) (1989). Therefore, while the jury in the case at bar was apprised of the fact of settlement, it should have been made aware of the amount appellees had already received from the former defendants. The question remains whether the failure to give the jury the required information constituted reversible error.

It was for the jury to determine, if it found for the appellees, whether appellees were entitled to additional remuneration from appellant in order to be fully compensated for the wrongful death of their mother. Trice v. Wilson, supra; Pennsylvania Threshermen &c. Ins. Co. v. Hill, supra at 290. This could have been accomplished by informing the jury of the amount appellees had already received as a result of the release and settlement, and by instructing the jury to reduce the total amount of damages, if any, by the amount already received. See, e.g., Saint v. Ryan, 114 Ga. App. 489 (151 SE2d 826) (1966). See also King Cotton v. Powers, 190 Ga. App. 845 (380 SE2d 481) (1989). The trial court’s instructions to the jury that it disregard any dismissals from the action; that it determine the total amount of damages; and that the amount so found would be reduced by the amount of settlement effected the same result as would the procedure used in Saint v. Ryan, supra. Cf. King Cotton v. Powers, supra. I cannot and will not indulge in speculation as to how the jury’s verdict might have been affected by knowing the amount of settlement. Inasmuch as appellees were compensated and not enriched by the jury’s verdict and the subtraction therefrom of the settlement amount, we perceive no harm. Therefore, I concur in the majority’s result with regard to this issue, but not its analysis.

Decided July 14, 1989

Rehearing denied July 31, 1989

Weymon H. Forrester, Lambert & Roffman, E. R. Lambert, for appellant.

Carter & Butt, James E. Carter, Eugene D. Butt, for appellees.


author: Sognier, Judge. McMurray, Presiding Judge, Carley, Chief Judge,

text:
    A89A0444.
    SOUTH ATLANTA ASSOCIATES, LTD. v. STRELZIK et al.
    (385 SE2d 439)
   Sognier, Judge.

South Atlanta Associates, Ltd. (SAA) brought suit against Steven Strelzik pursuant to an agreement in which Strelzik guaranteed payment of sums due SAA under a lease agreement between it and Housecall, Inc., the company in which Strelzik was president. Strelzik brought a third party suit against Daniel Shefte, a cosigner of the guaranty, and the trial court allowed SAA to add Shefte as a party defendant. The trial court then granted summary judgment solely to Strelzik and denied SAA’s motion for summary judgment. This appeal ensued.

Appellant contends the trial court erred by granting summary judgment in favor of appellee Strelzik and denying its motion for summary judgment as to both Strelzik and Shefte because as a matter of law the guaranty agreement executed by appellees entitled appellant to recover from them the sums due it from Housecall. The record reveals that appellant tendered a contract to Housecall consisting of a lease agreement and, as referenced in paragraph 38 of the lease, a guaranty agreement which required the sole signature of Housecall’s president, appellee Strelzik. While the lease agreement in its original form was accepted and executed by the parties, appellant’s guaranty agreement was rejected and a modified guaranty agreement was presented to appellant, which plainly and unambiguously required the signature as guarantor not only of Strelzik, but also of appellee Shefte and Richard Midlick. However, when the guaranty agreement was proffered to appellant, only Strelzik and Shefte had signed the document. The evidence is uncontroverted that appellant accepted the modified guaranty agreement in satisfaction of paragraph 38 of the lease agreement and Housecall was allowed to enter into the leased space. Upon Housecall initiating bankruptcy proceedings, appellant then sought to enforce the guaranty agreement as to both Strelzik and Shefte.

1. We find no error in the trial court’s denial of appellant’s motion for summary judgment because contrary to appellant’s argument, we do not agree that the contract agreed upon by the parties required only the one signature of Strelzik to bind the parties. Appellant tendered a lease agreement which, in paragraph 38, provided that the lease would be effective only upon execution both of the lease “and upon the execution of the Guaranty Agreement annexed hereto by Steven J. Strelzik.” (Emphasis supplied.) It is uncontroverted that the annexed guaranty agreement tendered by appellant was not accepted, but instead the contract (which by the express terms of the lease consisted of both the lease agreement and the guaranty agreement) was “accepted” with terms varying from the original offer, namely, with a three signature guaranty agreement rather than the one signature guaranty presented by appellant. This “acceptance” operated as a matter of law as a rejection of appellant’s original offer and constituted a counteroffer, see Duval & Co. v. Malcom, 233 Ga. 784, 787 (214 SE2d 356) (1975), which appellant thereafter uncon-trovertedly accepted. Thus, whatever the original intention of the parties when entering into the initial negotiations, the. contract between the parties did not consist of the lease agreement with a one signature guaranty, as asserted by appellant and the dissent to this division, because that offer was uncontrovertedly rejected when the counteroffer with different terms was made. Rather, the contract consists of the lease agreement with a three signature guaranty which appellant undisputedly accepted. Accordingly, the terms of the original offer never became the basis of any contract between the parties and its terms cannot now be reinstated by this court and imposed upon the parties since the terms of the original offer have been superseded and are controlled by the terms of the contract actually executed by the parties.

Where the language employed by parties to a contract is plain, unambiguous, and capable of only one reasonable interpretation, no construction of the contract is required to ascertain the intention of the parties. See generally Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 421 (364 SE2d 65) (1987). Therefore, because the record here uncontrovertedly establishes that the contract accepted by appellant required three signatures on the guaranty agreement, appellant is bound by those terms, not by the rejected terms of the original offer, and the trial court did not err by denying appellant’s motion for summary judgment.,

2. The trial court did err by granting Strelzik’s motion for summary judgment because a question of fact exists whether a valid contract was created between the parties. At the time of the drafting of that guaranty agreement which became part of the contract between the parties here, see Division 1, it is clear the drawers intended there be three signatures on the guaranty. The record contains no affidavits, depositions, or other sworn evidence by Strelzik or Shefte to indicate whether their intent in executing the guaranty was anything other than the expressed intent set forth in the document, that there be three guarantors of the lease agreement. However, the absence of the third required signature on the guaranty agreement did not necessarily render that document incomplete and thus unenforceable, as asserted by the dissent to this division. Although the record fails to disclose when Strelzik or Shefte signed the document, the record does contain uncontroverted affidavits by Melissa Barre (the employee charged with monitoring tenant compliance with the terms of appellant’s lease agreements) that she received the guaranty agreement from Strelzik. This evidence raises the inference that Strelzik, at least, knew or should have known when he tendered the document to appellant that Midlick’s signature thereon was missing. A conflict thus exists between the plain and unambiguous language of the guaranty agreement and Strelzik’s subsequent action in forwarding to appellant in satisfaction of paragraph 38 of the lease agreement a guaranty document containing only two of the three required signatures.

While aware that “[t]he contract of suretyship is one of strict law; and the surety’s liability will not be extended by implication or interpretation,” OCGA § 10-7-3, the law also acknowledges that alteration of a surety’s liability does not extinguish that liability where it is done with the surety’s knowledge and consent. See OCGA § 10-7-21; see generally Washington Loan &c. Co. v. Holliday, 26 Ga. App. 792 (a) (107 SE 370) (1921); Bank of Terrell v. Webb, 177 Ga. App. 715-716 (341 SE2d 258) (1986). In view of the evidence that Strelzik forwarded the guaranty agreement with its two signatures to appellant, evidence which conflicts both with the language of the guaranty agreement and the fact found by the trial court that Strelzik and Shefte thought that there would be three guarantors to the agreement, a question exists for the trier of fact to determine whether Strelzik consented to, if not initiated, the alteration of the terms of the guaranty agreement, or whether the parties mutually departed from or waived the contractual provision requiring three signatures. See generally Union &c. Leasing Corp. v. Beef ‘N Burgundy, 155 Ga. App. 257, 261 (270 SE2d 696) (1980); Mauldin v. Lowe’s of Macon, 146 Ga. App. 539, 542 (246 SE2d 726) (1978); California Fed. Savings &c. Assn. v. Hudson, 185 Ga. App. 384, 388 (4) (364 SE2d 582) (1987).

In summary, we hold in Division 2 that the trial court erred by > granting summary judgment in favor of Strelzik, but hold in Division 1 that the trial court did not err by denying appellant’s motion for summary judgment as to Strelzik and Shefte. Therefore, the judgment is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Deen, P. J., Birdsong and Pope, JJ., concur. Parley, C. J., McMurray, P. J., Banke, P. J., Benham and Beasley, JJ., concur in part and dissent in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

Plaintiff South Atlanta Associates, Ltd., entered into a contract whereby it leased certain premises to Housecall, Inc. Plaintiff’s action is predicated upon a contemporaneously dated guaranty agreement wherein the guarantors agreed to be jointly, severally and primarily obligated to plaintiff for all amounts owed by Housecall, Inc., under the lease.

Plaintiff’s complaint, as amended, seeks a judgment against two of the three guarantors named in the agreement, defendant Strelzik and defendant Shefte. Both of the defendants executed the guaranty agreement. A third guarantor, Midlick, also named in the body of the guaranty agreement, did not sign the guaranty agreement and the signature line subscribed with his name remains blank.

Upon consideration of plaintiff’s motion for summary judgment the state court granted a summary judgment in favor of defendant Strelzik. The state court found, “that a right of contribution existed between the guarantors as a result of the guarantors entering into the to the lease agreement. OCGA § 51-12-32. The fact that the two guarantors that ultimately signed the guaranty (Strelzik and Shefte) thought that there would be three guarantors to this agreement has convinced this Court that their exposure to risk was increased as a result of the Plaintiff’s inability to get the guaranty of Mr. Midlick. This increased risk, therefore, acts as a ground for discharge of the other guarantors. OCGA § 10-7-22.” Plaintiff appeals from the grant of summary judgment in favor of defendant Strelzik and the denial of its motion for summary judgment.

Both plaintiff’s enumerations of error and argument are couched in language responsive to the state court’s reliance on OCGA § 10-7-22. That statute relates to release of a guarantor whose risks are increased by the creditor. I do not view OCGA § 10-7-22 as controlling in the case sub judice since there was never a binding guaranty agreement.

While the state court’s citations of authority were not apropos, the underlying reasoning was sound, and the state court’s conclusion correct. Although I concur in the judgment as to Division 1,1 respectfully dissent as to Division 2 of the majority opinion since I would hold that Strelzik is entitled to summary judgment because the ab- , sence of the third required signature on the guaranty agreement rendered that document incomplete and thus not a valid and binding contract. I cannot agree with the conclusion of the majority that the delivery by Strelzik of the incomplete and thus unenforceable guaranty agreement somehow breathed life into that document. Thus, there can be no question of fact remaining as to whether Strelzik consented to an alteration of the guaranty agreement since that document was never a binding contract.

“When the intent is manifest that the contract is to be executed by others than those who actually sign it, it is inchoate and incomplete, and does not take effect as a valid and binding contract. [Cits.]” Peacock v. Horne, 159 Ga. 707, 722 (2), 723 (126 SE 813). In the case sub judice, the intent that the guaranty be executed by all three of the guarantors named therein is manifested by the form of the document and by each guarantor’s loss of remedy by way of contribution where the third named guarantor failed to execute the document. Peacock v. Horne, 159 Ga. 707, 722 (2), 723, supra. See also OCGA §§ 10-7-50 and 13-3-2. “ ‘ “In order that there may be an 1 agreement, the parties must have a distinct intention common to both . and without doubt or difference. Until all understand alike, there can 1 be no assent, and therefore, no contract. Both parties must assent to . the same thing in the same sense, and their minds must meet as to all! the terms. If any portion of the proposed terms is not settled, or no > mode is agreed on by which it may be settled, there is no agreement.” ■ (Cit.)’ Aero Constr. Co. v. Grizzard, 76 Ga. App. 649, 652 (2) (46 SE2d 767) (1948).” Christensen v. Roberds of Atlanta, 189 Ga. App. 289, 291 (2) (375 SE2d 267).

In the case sub judice, specific individuals are identified as parties to the guaranty contract and the form of the guaranty contract anticipates the signatures of all of the identified guarantors. Where less than all the anticipated guarantors have signed the document there is no contract since there has been no meeting of the minds. In other words, each signatory anticipates that all guarantors will sign and agree to bear a level of risk predicated on this assumption. Of course, as a given number of guarantors is reduced the level of risk to each remaining guarantor is increased. Therefore, if less than all anticipated guarantors sign, the level of risk to which each signatory would be exposed is greater than that which they have agreed to bear. Therefore, due to the absence of Midlick’s signature, there was no meeting of the minds concerning the terms of the guaranty agreement. See generally OCGA § 10-7-50.

“This case does not come within that class of cases wherein it is held that a party who signs and delivers an instrument is bound by , the obligations it contains, although it is not executed by all the parties for whose signatures it was prepared, where there is nothing to indicate an intention on the part of him who signs not to be bound thereby until it is signed by others, which intention is brought home to the obligee therein, and where there is no express agreement or manifest intent to such effect, and where there is no loss of remedy by way of indemnity or contribution, by failure of other parties to execute the instrument.” (Emphasis supplied.) Peacock v. Horne, 159 Ga. 707, 722 (2), 723, supra.

Cosby v. A. M. Smyre Mfg. Co., 158 Ga. App. 587, 591 (6), 592 (281 SE2d 332), and Residential Indus. Loan Co. v. Brown, 559 F2d 438 (5th Cir.), cited by plaintiff, may be distinguished on the facts. Cosby v. A. M. Smyre Mfg. Co., supra, involves an unsuccessful defense of fraud predicated upon an oral promise as to a future event. Residential Indus. Loan Co. v. Brown, supra, turned on the conclusion that the failure of a party to insure the genuineness of a coguar-antor’s signature did not constitute a release under OCGA § 11-3-606 (1) (Uniform Commercial Code).

Defendant Strelzik’s preparation of the revised guaranty and the existence of defendant Strelzik’s obligation under the lease agreement to execute an individual guaranty of the lease may supply, authority for a construction of the guaranty agreement in favor of plaintiff. See generally OCGA § 13-2-2 (5). However, there is no authority to rewrite the agreement contained in the guaranty contract under the guise of construction of that document. The guaranty agreement as revised by Strelzik anticipates clearly upon its face the signatures of all three named guarantors. No reasonable construction can obliterate this fact. Therefore, in the absence of the signatures of all of the guarantors named in the revised guaranty agreement the document remains incomplete. This does not suggest that plaintiff was under any duty to obtain Midlick’s signature, only that plaintiff failed to recognize the incomplete nature of the document it received from defendant Strelzik so as to prompt remedial measures.

I am authorized to state that Presiding Judge Banke and Judge Benham join in this opinion.

Carley, Chief Judge,

concurring in part and dissenting in part.

Insofar as the majority holds in Division 2 that summary judgment was erroneously granted in favor of appellee-defendant Strelzik, I concur in the judgment. However, insofar as the majority holds in Division 1 that appellant-plaintiff’s motion for summary judgment was correctly denied, I must respectfully dissent.

The following undisputed facts are, in my opinion, material to the disposition of this appeal: Appellee Strelzik is the president of Housecall, Inc. After negotiations, Housecall, Inc., agreed to lease premises from appellant. Appellant sent a copy of a lease agreement and a copy of a guaranty agreement for execution by appellee Strelzik. The lease agreement specified that it would become effective only upon appellee Strelzik’s execution of the guaranty agreement. The copy of the lease agreement which had been submitted by appellant was executed and returned to it. However, the guaranty agreement which was returned with the executed lease agreement was not that copy which had been submitted to appellee Strelzik by appellant. Instead, appellee Strelzik returned to appellant a guaranty agreement which he himself had drafted. This agreement named three guarantors: appellee Strelzik; appellee-defendant Shefte; and Richard S. Midlick. Only the signatures of the two appellees appeared on the guaranty agreement, however.

Under these circumstances, the majority holds that a genuine issue of material fact remains as to whether appellees have incurred any liability on the guaranty agreement because Midlick was named in the agreement but his signature does not appear thereon. The majority concludes that three signatures were required but an issue of fact remains as to whether there was a mutual departure or waiver of that requirement. However, simply because an agreement is drawn for the execution of multiple parties, it does not necessarily follow that, as a matter of law, the agreement requires the signature of all and is otherwise unenforceable against the actual signatories thereto absent a showing of mutual departure or waiver. In the construction of contracts, it is the parties’ intent which controls, and the form of the agreement is but one of the factors which must be considered. “[T]he first and fundamental rule is to ascertain the intention of the parties, and to this end the whole instrument, together with its circumstances, must be considered.''' (Emphasis supplied.) A. C. Alexander Lumber Co. v. Bagley, 184 Ga. 352, 362 (1) (191 SE 446) (1937). Accordingly, the fact the agreement named three guarantors is certainly one factor to be considered in determining whether there was a requirement that Midlick sign, which requirement serves to release ap-pellees from liability absent a showing of mutual departure or waiver. However, the mere absence of Midlick’s signature does not obviate a consideration of all of the relevant attendant circumstances in determining whether the agreement nevertheless evidences no requirement that Midlick sign but, rather, the intent that it otherwise be complete and enforceable against appellees without regard to mutual departure or waiver. See generally Butler Naval Stores Co. v. Glass, 187 Ga. 317, 323-324 (200 SE 286) (1938).

Considering all of the relevant circumstances and applying the applicable rules of construction, I believe that the guaranty agreement is complete and enforceable as against appellees and that there was no requirement of Midlick’s signature for appellees to waive or from which they could depart. Among the circumstances which must be considered is that the guaranty agreement was executed and submitted by appellees in connection with the lease of appellant’s premises. Accordingly, the guaranty agreement executed by appellees must be construed in conjunction with that contemporaneous lease agreement. See generally Employers Commercial Union Ins. Co. v. Wrenn, 132 Ga. App., 287, 288 (2) (208 SE2d 124) (1974). The parties clearly contemplated the creation of a viable and enforceable lease and, by its terms, the lease agreement conditioned its very effectiveness upon appellee Strelzik’s execution of a guaranty agreement. Thus, a construction of the guaranty agreement which will uphold its enforceability and the consequent enforceability of the lease is clearly the preferred construction. “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part. . . .” OCGA § 13-2-2 (4).

The guaranty agreement must itself be construed mosbstrongly against appellees, as the makers thereof. See Leavitt v. Carr, Abney & Tabb, 171 Ga. App. 412 (1) (319 SE2d 882) (1984). The executed guaranty was submitted to appellant in ostensible satisfaction of the condition precedent to the creation of an enforceable lease. It was not submitted as a counteroffer to appellant’s requirement of a guaranty of the lease. Nothing in the executed guaranty agreement indicated that appellees were proposing it as a counteroffer or that appellees’ obligations were expressly conditioned on the signatures of all three of the named guarantors. Moreover, no such proposal as a counteroffer or imposition of a requirement of Midlick’s signature was ever verbally communicated to appellant. Since appellant allowed Housecall, Inc., to go into possession of the leased premises, it should have been abundantly clear to appellees that appellant apparently understood the submitted guaranty agreement, not as a conditional counteroffer but, as evincing more than full satisfaction of the condition precedent to the enforceability of the lease. Insofar as appellant was concerned, the unqualified agreement signified that appellee Strelzik had not only given his own required personal guaranty of the lease, he had also made an independent effort to secure co-guarantors and had been successful in convincing one of two others to share the obligation to guaranty Housecall, Inc.’s lease. If appellant’s understanding of ap-pellees’ execution and submission of the guaranty agreement was mistaken, and it was not appellees’ intent that their guaranty would signify satisfaction of the condition precedent, then appellees should not have allowed Housecall, Inc., to accept possession of the leased premises without first notifying appellant that they had made only a conditional counteroffer and that the signature of Midlick was necessary to the creation of a viable lease. “Where a written contract has an apparent meaning at variance with its real meaning, it may bind the author of the ambiguity contrary to its real meaning, if this meaning was so obscurely expressed that the other party was likely to be misled and was misled, and if the circumstances entitled him to timely notice of his mistake, and notice was not given. This is simply the expression in another form of the rule of the code, that where the parties understand the contract differently between themselves, and one knows that the other understands it in a particular sense, that sense is the one in which it shall be interpreted and administered. [OCGA § 13-2-4].” Hill v. John P. King Mfg. Co., 79 Ga. 105, 109-110 (5) (3 SE 445) (1887).

Peacock v. Horne, 159 Ga. 707, 722 (2) (126 SE 813) (1925) does not authorize a contrary result. In Peacock, the purported purchaser of timber drafted an instrument to convey the interests of the three owners. The instrument, as drafted, contained lines for the signatures of each of the three owners. The purported purchaser then transmitted the draft to the three owners and requested that each sign. Construing the instrument most strongly against the purported purchaser, as the drafter, “the manifest intention of the parties to this contract [was] that it was to be signed by all of the [owners] before it became binding on [those] who signed it; and on the failure and refusal of one of the [owners] to sign it, it was not binding on those who did execute it.” Peacock v. Horne, supra at 723 (2). The circumstances of the instant case are totally different. It was appellee Strelzik who drafted the instrument and it was appellees who executed and submitted it to appellant. The executed agreement was not delivered as a conditional counteroffer for appellant’s acceptance or rejection, but in apparent full satisfaction of the condition precedent to the creation of a valid lease. Appellees did not request that appellant secure the signature of Midlick and did not object when appellant, in reliance on the unqualified guaranty, allowed Housecall, Inc., to enter into possession of the leased premises. Under these circumstances, unlike those of Peacock v. Horne, supra, “the principle of law ([OCGA § 13-2-4]) that where the parties to a contract differ among themselves as to its meaning, that meaning placed upon the contract by one of the parties and known to be thus understood by the other at the time shall be held as the true meaning, was applicable. . . .” Cason v. Duke, 28 Ga. App. 170, 171 (2) (110 SE 684) (1922).

As the movant for summary judgment, appellant met its burden of producing evidence showing that, notwithstanding the absence of Midlick’s signature, it was the recipient of appellees’ unqualified guaranty. In opposition, appellees proffered no evidence to show that a genuine issue of material fact remained as to the existence of a requirement for Midlick’s signature or as to their liability on the unqualified guaranty which they executed and submitted to appellee. There being no issue of fact, the interpretation of the contract was for the court and notj for a jury. See Tidwell v. Carroll Bldrs., 251 Ga. 415, 417 (2) (306 SE2d 279) (1983). However, for the reasons previously discussed, it is my opinion that the interpretation which was made by the trial court is erroneous and that it was error to grant summary judgment in favor of appellee Strelzik and to fail to grant summary judgment in favor of appellant. Therefore, I respectfully dissent to the majority opinion insofar as it fails to reverse the denial of appellant’s motion for summary judgment.

Decided July 14, 1989

Rehearings denied July 31, 1989

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, Craig A. Nance, for appellant.

Hishon & Ranney, Robert H. Hishon, Dan R. Musick, for appel-lees.

I am authorized to state that Judge Beasley joins in this opinion.


author: Birdsong, Judge.

text:
    A89A0544.
    SOPHIANOPOULOS v. McCORMICK.
    (385 SE2d 719)
   Birdsong, Judge.

Appellant Sophianopoulos appeals from the grant of summary judgment to appellee McCormick on a complaint for libel. Appellant alleged that McCormick published defamatory statements challenging his professional competence in a letter to the Associate Secretary of the American Association of University Professors (“AAUP”), Mr. Knight. At the time of the alleged libel, the appellant was an associate professor in the Biochemistry Department of the Emory University School of Medicine and the appellee was the Chairman of the Department.

The record shows that the appellant made complaints to officials at Emory University alleging that he was unfairly and improperly being denied the opportunity to teach. He made similar complaints to and sought the assistance of the local and national organizations of the AAUP. In response to a letter from Knight about the dispute, McCormick forwarded letters and memoranda which the appellant contends were libelous. The appellant also contends that sending the letters and memoranda to Knight constituted publication of the libel.

After conducting discovery, McCormick moved for summary judgment contending that there was no publication because appellant invited the sending of the materials. Further, McCormick contended that the materials were not libelous because the materials of which the appellant complains were statements of opinion. The trial court agreed and granted summary judgment to McCormick.

Appellant asserts that the publication to Knight was not invited because the AAUP’s assistance was sought only on procedural matters; and because the alleged libelous materials concerned the appellant’s professional competence, he asserts they were libel regardless whether they were matters of opinion. Held:

1. Appellant’s contentions concerning the nature of the assistance requested of the AAUP is not supported by the record. Indeed, the record, including appellant’s deposition, shows that he sought the assistance of the AAUP without limitation on the type of assistance requested. Further, there is no limitation in the law such as appellant alleges. “It is not necessary to a finding of invitation that the one to whom the alleged libel is published acts as the agent of or intercessor for the complainant. [Cit.]” Ga. Power Co. v. Busbin, 249 Ga. 180, 181 (289 SE2d 514).

“The decision of the case turns on the question whether or not there was a publication as contemplated by the law, and which is an essential ingredient in an action for [libel]. [Cits.]” Beck v. Oden, 64 Ga. App. 407, 411 (13 SE2d 468). To constitute an invited libel “ ‘[i]t is enough that the complainant requests or consents to the presence of a third party and solicits the publication of matter which he knows or has reasonable cause to suspect will be unfavorable to him.’ Ga. Power Co. v. Busbin, 249 Ga. at 182.” Stone v. Brooks, 253 Ga. 565-566 (322 SE2d 728). Complainant need not “know the exact nature of the libelous matter in order for there to be an invitation of the publication of a libel.” Ga. Power Co. v. Busbin, supra at 182.

In this case, appellant sought the assistance of the AAUP in resolving his complaint. From the AAUP’s earlier actions on his behalf, he had reasonable cause to suspect the assistance of the AAUP would result in requests for information to Emory officials because he knew that the AAUP earlier had requested information from Emory about his performance. He also knew that the officials in the Biochemistry Department had opinions about his work which were not favorable to him, and, thus, that it was inevitable when the AAUP requested information from McCormick about appellant’s teaching status McCormick would respond with information that would be unfavorable to appellant. Thus, under the circumstances of this case, appellant’s actions were sufficient to constitute an invited libel because he requested Knight’s participation in the proceedings. Accordingly, there was no publication within the meaning of OCGA § 51-5-3. Stone v. Brooks, supra; Ga. Power Co. v. Busbin, supra; Jackson v. Douglas County &c. Corp., 150 Ga. App. 523, 524 (258 SE2d 152); King v. Masson, 148 Ga. App. 229, 230-231 (251 SE2d 107). The trial court properly granted summary judgment to appellee on this basis since there was no publication of the libel as required by OCGA § 51-5-1 (b). Thus, the first enumeration of error is without merit.

Decided July 5, 1989

Rehearing denied July 31, 1989.

Alkis Sophianopoulos, pro se.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, J. M. Hudgins IV, T. Jeffery Lehman, for appellee.

2. As our disposition of the first enumeration of error in Division 1 is sufficient to warrant affirming the grant of summary judgment to appellee, we need not consider the error asserted in the second enumeration.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Birdsong, Judge. Deen, Presiding Judge,

text:
    A89A0574.
    QUINONES et al. v. MAIER & BERKELE, INC. et al.
    (385 SE2d 719)
   Birdsong, Judge.

Appellants, Edwin Quinones (a/k/a Edwin Quinones Rivera) and Melquíades Gavillan, appeal the judgment entered in favor of appel-lee, Maier & Berkele, Inc. (hereinafter Maier & Berkele) and JoAnn Aeree Jansen pursuant to the trial court’s grant of appellee’s motion for directed verdict.

Appellants entered Maier & Berkele so that appellant Quinones could get some gold bracelets repaired. Appellant Quinones was holding about 20 credit cards, making a stack of cards about 1 to I-V2 inches high, in one hand and several gold bracelets tied together by string in the other. Appellee Jansen, who was employed part-time as a security officer for Maier & Berkele, noticed the cards and initiated a conversation with the two men.

Appellee Jansen was regularly employed as a lieutenant for the City of Morrow Police Department. At the time of the incident, she was dressed in her police uniform and was wearing her city-issued revolver, badge, and walkie-talkie radio. As a city police officer, appel-lee Jansen was on duty at all times, even when not working normal shifts. In these latter circumstances, it was policy to request an on-duty police officer to come to the scene and handle the situation, except in emergency circumstances.

Appellee Jansen asked if she could see appellant Quinones’ credit cards. The two appellants conversed in Spanish as to whether Qui-nones should allow Jansen to see his cards. When the cards were voluntarily shown to her, Jansen noticed that among the cards appellant had two cards from the same bank issued in two different last names. Jansen could not recall the names on the card, but appellant Qui-nones testified, without contradiction, that the cards were issued to Edwin R. Quinones and Edwin Q. Rivera, respectively. Appellant Qui-nones testified that he explained to Lt. Jansen that in his home country, Puerto Rico, people used their first and their mother’s and father’s last name, but that banks make mistakes in issuing cards. Jansen asked appellant Quinones for his driver’s license; Quinones responded that he had several but none on him as Gavillan was driving. The evidence is in conflict as to the exact number of driver’s licenses that Quinones said he had. (Moreover, according to the posture of the evidence, at no time did Quinones expressly indicate to Jansen, or did Jansen inquire of Quinones, whether any of these licenses were currently valid or as to when and why they had been obtained.) Lt. Jansen then asked appellant Quinones where he worked. Quinones responded that he worked for the Department of Justice, but declined to reveal what his job was with that agency. The evidence is in conflict as to whether appellant Quinones flashed some type of badge and his work identification card (ID) during this part of the conversation. Conflict also exists as to when appellant Gavillan informed Jansen that he worked for the Department of Justice, and whether he flashed a badge at any time during the conversation between Jansen and Qui-nones.

At some point, appellants attempted to leave the store. As they were leaving, appellee Jansen demanded that they show some work identification to verify their status as law enforcement officers. The evidence is in conflict as to the manner in which this demand was made, whether the demand included an order for appellants not to leave the premises, and whether appellants were free to go at this point. Likewise, there is an evidentiary conflict as to whether appellants voluntarily agreed to remain near the first phone area in the store or were merely acquiescing to Lt. Jansen’s directions. Appellants produced their work ID cards and Jansen took them. At some point, Jansen called for a back-up officer on her police radio, and an on-duty uniformed police officer arrived several minutes later. Appellant Gavillan testified that Jansen told the officer to “keep an eye on [appellants]”; and appellant Quinones testified that Jansen told the officer to “watch these individuals, not to leave.” This testimony is not expressly contradicted in the record. Jansen then contacted the police station to make a “personal check,” and called the federal prison where appellants worked. But the evidence is conflicting as to how many calls were made to the prison by Jansen.

The evidence is further contradictory as to when Jansen took possession of appellant Quinones’ two credit cards and as to when exactly she called the “credit card company.” When the “credit car company,” Citibank, was contacted, appellee Jansen was informe that they would handle the credit card matter. Appellant Quinones testified that subsequently Jansen returned with the cards and told him that he needed to call the bank about the cards, returned the cards, and then grabbed the cards again to make some notation from them. At some point after demanding work identification, Jansen took or was given both appellants’ ID cards. Both appellants testified that they could not leave after Jansen had their official work ID cards in her possession. After expiration of a period of time, appellants’ ID cards were returned and they were allowed to leave the premises. The evidence is in conflict whether appellee Jansen ordered appellants not to re-enter the premises.

This case was tried on appellants’ averments of causes of action sounding in false imprisonment, violation of 42 USC § 1983 (violation of appellants’ Fourth Amendment rights of privacy and freedom from unlawful seizure), libel, slander, and intentional infliction of emotional distress. Held:

1. Appellants assert that the trial court erred in directing a verdict for appellees at the close of appellants’ case. “A directed verdict ... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” Union Camp Corp. v. Daley, 188 Ga. App. 756 (1) (374 SE2d 329); OCGA § 9-11-50 (a).

a. The trial court did not err in granting a directed verdict to appellees as to appellants’ cause of action for intentional infliction of emotional distress. A directed verdict is proper whenever a plaintiff simply fails to prove his case. Collins v. Ralston &c., 186 Ga. App. 583, 585 (367 SE2d 861). Appellants have failed to prove that appel-lees’ conduct rose to the requisite level of outrageousness and egregiousness required by Moses v. Prudential Ins. Co., 187 Ga. App. 222, 225 (369 SE2d 541). Compare Kornegay v. Mundy, 190 Ga. App. 433, 434-435 (379 SE2d 14). Further, the severity of the emotional distress allegedly produced by the defendants’ conduct is also a factor in determining liability for mental distress. Moses, supra at 226. The law will intervene only where the distress inflicted is so severe that no reasonable man could be expected to endure it. Id. It is for the court to determine whether on the strength of the evidence severe emotional distress can be found. Id. We find as a matter of law that appellants’ alleged emotional distress does not meet the above severity requirement.

b. We find that any cause of action grounded on the torts of invasion of privacy has been waived by appellants’ failure to argue this principle in their brief or to provide citations of authority pertaining thereto. Court of Appeals Rule 15 (c). Moreover, in Georgia the tort of invasion of privacy is actually comprised of four separate torts protecting different privacy interests. Cabaniss v. Hipsley, 114 Ga. App. 367, 370 (151 SE2d 496). The posture of the evidence in this case would demand a verdict for appellees as to any cause of action grounded on any one of these four torts. See generally Cabaniss, supra at 371-380; Thomason v. Times-Journal, 190 Ga. App. 601, 604 (379 SE2d 551).

c. The trial court did not err in granting a directed verdict for appellees in regard to causes of action sounding in libel and slander. Assuming arguendo the letter in question here was mailed and read by appellants’ supervisor, Lt. Howington, to whom it was addressed, this is not enough to present a jury question on this issue. “ ‘In order to effect the publication of a libel there must be a reading of it. Not only that, there must be an understanding of its meaning by the person reading it. . . .’” (Emphasis deleted.) Sigmon v. Womack, 158 Ga. App. 47, 50 (279 SE2d 254). The record, especially when viewed in support of the trial court’s verdict, contains no probative evidence that this letter when read was understood as to its significance. “Thus, even assuming the evidence authorized a finding that the [letter] was read by someone, there was no evidence that it was ‘communicated’ to [Lt. Howington] this [apparent] sole reader in a sense libelous to [plaintiffs]. ‘The plaintiff has the burden of proof on the question of the publication of the defamatory matter. To satisfy this burden, it is necessary that he show not only that the defendant spoke or wrote or otherwise prepared the defamatory matter or made it available to a third person, but also that the third person understood its significance.’ ” (Emphasis supplied.) Sigmon, supra at 50. Accordingly, appellants have failed to establish that any publication of the allegedly libelous letter occurred.

Regarding the dissent’s express assertion that “there was no real dispute at trial” regarding the issue of the receipt, reading and understanding of the letter, we disagree. However, assuming arguendo, no such dispute existed, we by our analysis have shown that this issue should, as the trial judge did, be resolved in favor of all appellees. It is a well-settled rule of law in Georgia that “ ‘[a] correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ ” Tony v. Pollard, 248 Ga. 86 (1) (281 SE2d 557); National Consultants v. Burt, 186 Ga. App. 27, 33 (366 SE2d 344), writ vacated, 258 Ga. 645 (374 SE2d 532). The dissent has, in part, relied upon certain hearsay testimony, regarding what one of the appellants testified his supervisor had advised him concerning receipt of the letter and its referral to the captain. Suffice it to say that “[o]rdinarily hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it an weight or force whatever in establishing a fact.” Higgins v. Trentham 186 Ga. 264 (1) (197 SE 862); Acme Fast Freight v. Southern R. Co., 67 Ga. App. 885, 887 (21 SE2d 493).

Moreover, regarding causes of action grounded in both libel and slander, we find that no publication occurred. “A communication made by a public officer in discharge of his [or her] official duties to another or to a body of officers having a duty to perform with respect to the subject matter of the communication does not amount to a publication within the meaning of the law of defamation.” 53 CJS 98, Libel & Slander, § 50A; cf., Kurtz v. Williams, 188 Ga. App. 14 (3) (371 SE2d 878) (communications between group members).

The letter was addressed to appellants’ principal supervisor; and, the evidence is uncontradicted that the letter was written at the federal supervisor’s request by Jansen on official stationery of the Chief of Police of the Morrow Police Department and signed with Jansen’s official title as “Lt. Jo Ann Aeree Jansen, Morrow Police Department.” Regarding the telephone call or calls to the penitentiary, the evidence shows that Jansen identified herself as a police officer and, before uttering the statements in question, specifically requested to speak to the officer in charge of appellants and expressed her intention to submit a “verbal report” concerning appellants’ conduct. The record contains no evidence to refute that Jansen was then acting as a public officer in discharge of her official duties on the particular occasions when she made the phone call or calls and wrote and mailed the letter. “ ‘[A] 11 law enforcement officers have the general duty to enforce the law and maintain the peace. They carry this duty twenty-four hours a day, on and off duty.’ ” (Emphasis supplied.) Carr v. State, 176 Ga. App. 113 (1) (335 SE2d 622). A law enforcement officer’s duties inherently include the duty to report duly the perceived improper acts or omissions of other law enforcement officers. The timely performance of this duty clearly is in the public interest.

d. Regarding the causes of action sounding in false imprisonment and for unlawful seizure of appellants under the Fourth Amendment in violation of 42 USC § 1983, we are satisfied that the posture of the evidence, together with any inferences that reasonably might be drawn therefrom, does not demand a certain verdict in favor of either appellants or appellee Jansen. See generally Union Camp, supra. Thus, we find it is for the jury to resolve whether appellee Jansen is liable to either or both of the appellants as averred in the charges pertaining to either of these causes of action.

2. As to appellee Maier & Berkele, however, a different result obtains. In Welton v. Ga. Power Co., 189 Ga. App. 17 (1) (375 SE2d 108), we adopted the following legal principles: “ ‘ “(a) servant may also be a special officer of the law, and the latter fact does not relieve the master from liability for his acts within the scope of his authority as servant. If he commits a tort in the discharge of duties owing to the master, the latter will be liable for his servant’s tort. If the servant commits a tort as a police officer, the master will not be liable, unless it was done at his direction.” (Cit.) However, even if a police officer was on duty with the city when the alleged tort occurred, it will not preclude a recovery if at the time he could have been acting as agent for and in behalf of his off-duty employer who is sought to be held liable. [Cit.]’ ” (Emphasis supplied.) Thus, the question of Maier & Berkele’s liability for false imprisonment via Jansen’s conduct “ ‘comes down to one of looking into the capacity in which [Jansen] was acting when the alleged tort occurred.’ ” Welton, supra at 19. We need not resolve at this time whether Jansen detained or arrested appellants, if either (compare State v. Hughes, 189 Ga. App. 671 (377 SE2d 192) with DiSanti v. State, 190 Ga. App. 331 (1) (378 SE2d 729)). Suffice it to say, there exists absolutely no evidence whatsoever that such conduct was accomplished in any manner at the direction of or according to the policies and operating procedures of Maier & Berkele or otherwise accomplished within the scope of authority Jansen had as a part-time security officer. Accordingly, the trial judge did not err in granting directed verdict against appellants and in favor of Maier & Berkele as to false imprisonment.

In view of the position asserted by the dissent, the following facts warrant discussion. Officer Jansen did not testify regarding her instructions and duties as a part-time Maier & Berkele security officer; neither did any managing official or employee of Maier & Berkele testify. Further, no records or reports of Maier & Berkele were introduced in evidence; thus, the procedures and policies, if any, of Maier & Berkele in regard to the scope of duties and authorized conduct of its security guards were not in evidence. In fact, the only testimony relevant to this issue given by Jansen, regarding her part-time employment in 1985 with Maier & Berkele, occurred when she testified: “I was working there as a police security officer for Maier & Berkele” and affirmatively responded to the question: “You were there to provide security for Maier & Berkele, is that correct?” (Emphasis supplied.) Jansen also testified that she was a police lieutenant, on-duty 24 hours a day, pursuant to a policy of the City of Morrow. Pursuant to this policy, Morrow police officers are required to enforce the law during times that they are not working normal shifts; “but where possible [off-duty officers are] to request an on-duty officer to come to the scene to handle” the violation, except in emergency conditions, when they are to act in their law enforcement capacity. The facts in this case reflect that the actions Jansen took were compatible with this asserted city policy. However, the issue requiring resolution in this instance is, does a jury question exist whether Jansen was acting within the scope of her employment with Maier & Berkele in regard to the false imprisonment claim. We believe not. Assuming arguendo that Jansen was hired by Maier & Berkele as a security officer, exactly what type of duties was she required and authorized to perforin in such capacity? The record does not create any jury issue in regard to Maier & Berkele. As previously stated, a directed verdict is proper whenever a plaintiff simply fails to prove his case. Collins, supra at 186 Ga. App. 585.

The evidence in this case fails to show that the action Jansen took against appellants was effected pursuant to either “a direct order from [Maier & Berkele] or a custom or policy instituted by [it]. Since there is no showing of direct involvement by [Maier & Berkele, it] cannot be liable under § 1983.” Howell v. Tanner, 650 F2d 610 (5) (5th Cir.); Shepard v. Byrd, 581 FSupp. 1374 (23) (USDC, N.D. Ga.) “Under section 1983 it is clear that [Maier & Berkele], as a corporation, cannot be held liable based on the employer-employee relationship between it and [Jansen], for section 1983 will not support a claim based on a respondeat superior theory of liability.” Shepard, supra at 1390 (21); see generally 15 AmJur2d, Civil Rights, § 20.5.

Judgment affirmed in part and reversed in part.

Carley, C. J., McMurray, P. J., Banke, P. J., Sognier and Beasley, JJ., concur. Been, P. J., Pope and Benham, JJ., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

I concur fully with Divisions 1(a), 1(b), and 1(d) of the majority opinion. With regard to the remainder, however, I must respectfully dissent.

1. With regard to the appellants’ claim for libel and slander, the record does not support either of the majority opinion’s conclusions as a matter of law that no publication occurred and that Jansen was acting as a public officer in discharge of her official duties at the time she telephoned the appellants’ supervisor and wrote the supervisor in confirmation of that telephone conversation.

Concerning the publication of the alleged libel, there was no real dispute at trial that Jansen’s letter was received and read by the appellants’ supervisor. Jansen herself testified about her phone call to the appellants’ supervisor, and that she mailed the letter to that supervisor at his request. The contents of the telephone conversation and the letter were the same. One of the appellants testified that the supervisor advised him that the matter would have to be referred to the captain in view of the receipt of Jansen’s letter. The fact that the supervisor felt compelled to refer the matter to the captain would support a finding that he understood the letter to cast aspersions upon the conduct of the appellants.

The majority opinion disregards this evidence by erroneously categorizing it as hearsay. As emphasized by the majority opinion, in order to effect the publication of a libel, “there must be an understanding of its meaning by the person reading it. . .” Sigmon v. Womack, 158 Ga. App. 47, 50 (279 SE2d 254) (1981). In the instant case, the supervisor’s act of referring the matter to the captain most certainly reflected his personal understanding of the letter; in other words, the supervisor’s conduct, so indicative of his understanding or state of mind, was necessarily a matter concerning which the truth must be found. Under this circumstance, the appellant’s testimony recounting his conversation with the supervisor, which explained the supervisor’s conduct, was admissible not as hearsay but as original evidence. OCGA _§ 24-3-2; Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984).

Neither Jansen nor Maier & Berkele really questioned the supervisor’s receipt and reading of Jansen’s letter; in moving for directed verdict on the slander and libel claim, Maier & Berkele merely contended that any communication by Jansen had been unauthorized, and Jansen asserted solely that the letter was not defamatory. There is evidence of the publication of the alleged slander and libel, and no real dispute over that fact, and the majority opinion mistakenly concludes otherwise.

In the letter, Jansen complained to the supervisor that the appellants had been uncooperative and belligerent, and that they had flashed badges during their encounter. She concluded the letter by expressing her disapproval of such conduct which she considered to be unbecoming of employees of the Atlanta Federal Penitentiary. Statements which tend to injure one in his trade or occupation may be libelous. Walker v. Sheehan, 80 Ga. App. 606 (2) (56 SE2d 628) (1949). In writing the letter in the instant case, Jansen served no general duty to enforce the law, and specifically did not further any inherent duty of a law enforcement officer to report improper acts, to the extent that a directed verdict was proper, because the evidence of the alleged improper act, i.e., flashing of the badges, was conflicting. In short, the evidence and circumstances in this case would authorize a finding that Jansen’s communication with the appellants’ supervisor served no law enforcement purpose, but rather was intended to cause the appellants some degree of trouble.

2. I can accept the holding of the majority opinion, and the persuasive authority relied upon by it, that the appellants’ § 1983 claim against Maier & Berkele must fail because Section 1983 will not support a respondeat superior theory of liability. However, I cannot agree with the majority opinion’s finding that Jansen’s detention of the appellants was undertaken solely in her capacity as a police officer, and that Maier & Berkele was thus entitled to directed verdict on the claim for false imprisonment.

In Welton v. Ga. Power Co., 189 Ga. App. 17, 20 (1) (375 SE2d 108) (1988), relied upon by the majority opinion, the police officer moon-lighting as a security guard was hired, not to investigate offenses against the company or assist in apprehending suspected criminals, “but rather to afford security to company employees, primarily going to and from parking areas to the company offices . . .” In the instant case, by comparison, Jansen was hired as a deterrent to criminal activity within the store. As she testified at trial, Jansen’s job was “of being seen, of hopefully being a deterrent to anyone that might have other than straight motives when they came in.” The evidence would authorize a finding that Jansen detained the appellants ostensibly, in the process of doing exactly what Maier & Berkele employed her to do, and the trial court erred in directing verdict for Maier & Berkele on the false imprisonment claim.

Decided July 14, 1989

Rehearings denied July 31, 1989

Robert M. Goldberg, Michael E. Bergin, for appellants.

Lamar, Archer & Cofrin, David W. Davenport, Norton, Pennington & Goetz, Charles M. Goetz, Jr., for appellees.

I am authorized to state that Judge Pope and Judge Benham join in this opinion.