author: Banke, Presiding Judge. Birdsong, Judge,

text:
    77557.
    CITIZENS BANK OF BALL GROUND v. JOHNSON.
    (381 SE2d 121)
   Banke, Presiding Judge.

This case began as an action by the appellee, Nicky Johnson, to collect from Edward. Fullerton the principal and accrued interest due on an unsecured promissory note in the face amount of $70,000. Fullerton had executed the note in connection with his purchase of a Ford automobile dealership from Johnson. During discovery, Johnson uncovered evidence of what he alleged was a fraudulent conspiracy between Fullerton and the appellant bank to misrepresent the extent of Fullerton’s assets. Johnson subsequently joined the appellant bank as a defendant in the action and ultimately obtained a jury verdict against it for actual and punitive damages based on the alleged fraud. The bank appeals.

Johnson began looking for a purchaser for the dealership after he was forced to close it in April of 1980 due to losses caused by high interest rates. On October 1, 1980, he gave Fullerton an option to purchase the assets of the business for $650,000. The option was originally to expire on October 16, 1980, but was extended several times. The deal finally closed on January 3, 1981.

To secure financing for the purchase, Fullerton applied for and obtained a loan guarantee from the federal Small Business Administration (SBA). He then sought funding for the loan from the appellant bank through dealings with its then vice-president, Hollis Lathem. The transfer of the dealership was contingent upon the approval of Ford Motor Credit Company (hereafter referred to as Ford), which held a security interest in its assets. By late October of 1980, Ford was prepared to give its approval, provided Fullerton could produce satisfactory evidence of his “financial qualifications.” Fullerton testified that on October 29, 1980, acting with Lathem’s knowledge and approval, he deposited a worthless check in the amount of $242,000 into his account with the appellant bank and exhibited the deposit slip to Ford. However, Ford requested a letter from the appellant bank confirming the existence of the deposit. On October 30, 1980, Mr. Lathem wrote such a letter, addressed “To Whom It May Concern” and stating as follows: “Edward H. Fullerton currently has on deposit $242,500 which is in the account for Buford Ford. This money was received with no pay-back restrictions and is a part of his future inheritance.” Fullerton then hand delivered this letter to his contact at Ford, who, without telling Fullerton, subsequently telephoned Johnson and informed him of its contents. Subsequently, the $242,000 check was dishonored by the drawee bank and returned to the appellant bank unpaid. However, on the basis of the “To Whom It May Concern” letter, Ford had by then approved the proposed transfer of the dealership to Fullerton, enabling Fullerton to proceed with his loan application. The bank never notified Ford that the check had been dishonored.

Although Fullerton and Johnson had been led by Lathem to believe that the loan would be approved promptly, no action was taken on the application until mid-December, when the bank finally turned it down. Johnson testified that, during the interim, he contacted Lathem to ask him what the holdup was and mentioned to him that he understood Fullerton had made a “substantial deposit in [the] bank in order to induce you to make the loan.” He stated that Lathem did not disclose to him at this time that the $242,000 check had been dishonored but assured him that the only problem was in “getting the board of directors all together at one time [to] approve the loan.” Upon being informed later that the loan application had been denied, Johnson spoke with Lathem again and “asked him why the loan was turned down when Mr. Fullerton had the size deposit that he had in the bank.” He stated that Lathem continued to conceal from him the fact that the check had been dishonored, assuring him that the loan was “bankable” and that the only reason it had been turned down was because Ford had declined to provide an expected guarantee of the obligation.

During the two weeks after the appellant bank turned down the loan, Fullerton, accompanied by Johnson, visited at least five other banks in an effort to secure financing for the transaction, before finally finding one which was willing to loan Fullerton the money. It is undisputed that while this search for financing was in progress, Johnson asked Fullerton to make a $5,000 earnest money deposit on the deal and that Fullerton refused the request on the ground that he did not have the funds. When asked on cross-examination why he had not confronted Fullerton about the apparent inconsistency between this response and the information contained in the “To Whom It May Concern” letter, Johnson indicated that he had not wished to reveal to Fullerton that he knew about the letter. Johnson conceded that he neither asked Fullerton for a financial statement prior to the closing nor asked to see any of the financial statements which Fullerton had submitted to the SB A and to the various banks to which he had applied for financing.

Fullerton did not deny owing Johnson the balance due on the note, which, with accrued interest, was shown to be $162,303.03. At the close of the evidence, the trial court accordingly directed a verdict against him on that claim. In response to a written verdict form prepared by Johnson’s counsel and submitted to them by the trial court, the jury subsequently made the following determinations: (1) That Fullerton was liable to Johnson for fraud as well as for breach of contract, (2) that the appellant bank was also liable to Johnson for fraud, (3) that Johnson had suffered actual damages in the amount of $162,303.03, (4) that Fullerton was liable to Johnson for punitive damages in the amount of $25,000, and (5) that the bank was liable to Johnson for punitive damages in the amount of $335,000. Unbeknownst to the jury, however, Johnson had entered into a settlement agreement with Fullerton prior to trial whereby, in return for Fullerton’s promise not to seek bankruptcy relief, Johnson had agreed not to require him to pay more than $10,000 in satisfaction of any judgment which might ultimately be entered against him in the case. Held:

1. The appellant bank contends that, given the events which had ensued during the two-month period between the issuance of the “To Whom It May Concern” letter and the closing, Johnson was not reasonably justified in relying on that letter as his sole gauge of Fullerton’s financial resources. We agree. By the time the deal between Johnson and Fullerton was closed, Johnson had ample reason to question Fullerton’s financial strength, inasmuch as several banks, including the appellant, had turned down his loan request, notwithstanding the evident willingness of the SBA to guarantee at least a portion of the obligation. In addition, Fullerton had responded to Johnson’s request for a $5,000 earnest money deposit by telling him that he did not have sufficient funds to make such a deposit. Clearly, these circumstances should have alerted any reasonable businessman of the need either to verify the continued existence of the $242,000 cash deposit or to make some other form of inquiry into Fullerton’s financial condition, yet Johnson never even asked Fullerton for a financial statement, preferring instead to place complete faith in the contents of a two-month-old letter which he did not want to admit to having seen and which provided no indication whatever of Fullerton’s liabilities or net worth.

“While questions of due diligence often must be resolved by the trier of fact, that is not always the case. One may fail to exercise due diligence as a matter of law.” Hill v. Century 21 &c. Realty, 187 Ga. App. 754, 756 (371 SE2d 217) (1988). Under the undisputed circumstances of this case, we hold that Johnson’s failure to take any steps whatever to investigate Fullerton’s creditworthiness constituted a lack of due diligence on his part, rendering his alleged reliance on the “To Whom It May Concern” letter unreasonable as a matter of law. Accord Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989); B & W Pipeline v. Newton County Bank, 181 Ga. App. 684 (353 SE2d 829) (1987); Foremost Ins. Co. v. Southeast Recovery, 175 Ga. App. 794 (3) (334 SE2d 375) (1985). Accordingly, we hold that the trial court erred in denying the bank’s motion for directed verdict.

2. The appellant was also entitled to a directed verdict based on Johnson’s failure to present any evidence from which the jury could have calculated the amount of damages Johnson had suffered as a result of the alleged fraud. The measure of recovery in an action for fraud is the actual loss proximately caused by the misrepresentation. See generally Windsor Forest v. Rocker, 115 Ga. App. 317, 322 (2) (154 SE2d 627) (1967); Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (3) (16 SE2d 176) (1941). The actual damages which the jury assessed against the bank on the fraud claim consisted of the full amount of the principal and interest owed by Fullerton on the promissory note. However, it is evident that Johnson was damaged by the alleged fraud only to the extent that Johnson could not collect this indebtedness from Fullerton himself by levying against his remaining assets. The jury was offered no evidence whatever on this issue, nor was it otherwise offered any evidence from which it could have determined the assignment or market value of the note. Consequently, the jury was not presented with evidence from which it could have ascertained the monetary damages actually sustained by Johnson as a result of Lathem’s misconduct.

3. In light of the foregoing, we find it unnecessary to address the appellant’s remaining enumerations of error.

Judgment reversed.

Carley, C. J., McMurray, P. J., Sognier and Benham, JJ., concur. Deen, P. J., Birdsong and Beasley, JJ., dis sent. Pope, J., disqualified.

Birdsong, Judge,

dissenting.

The holding of the majority, albeit inadvertent, gives financial institutions virtually a “blank check” to conspire to defraud innocent third parties who are engaged in business transactions with the bank’s friends and favored customers. I cannot join in this result.

I find the precedent relied upon in Division 1 of the majority’s opinion to be clearly distinguishable factually from the case sub judice. Therefore, while the legal principles espoused in those cases are not in question, the applicability of that body of law to the issues at hand is in great dispute.

It is well-established that “[questions of fraud, the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” Brown v. Techdata Corp., 238 Ga. 622, 625 (234 SE2d 787) and the seven cases therein cited. Moreover, “ ‘[w]hile a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations. Ordinarily the question whether the complaining party could ascertain the falsity of the representations by proper diligence is for determination by the jury.’ ” Braselton Bros. v. Better Maid &c., 222 Ga. 472, 474 (150 SE2d 620). While under very limited circumstances the question of lack of due diligence may be decided as a matter of law, this decision is appropriate only when “the facts of [the case sub judice] demonstrate a complete lack of any effort” by the concerned party to protect himself from the fraud. Crawford v. Williams, 258 Ga. 806, 807 (375 SE2d 223). Any lesser standard results in appellate courts deciding issues of lack of due diligence by weighing the evidence or judging witness credibility. This we cannot do. Davis v. Carter, 100 Ga. App. 831 (2) (112 SE2d 319); see Parr v. Pinson, 182 Ga. App. 707 (356 SE2d 740). While Johnson may not have taken the steps which the majority believes he should have taken to protect himself against fraud, the evidence clearly shows that he took some steps. Here the jury, after having received proper instructions, rendered its verdict. On appeal, we must construe the evidence most strongly to support the jury’s verdict and the judgment. Williams v. Perry, 187 Ga. App. 586 (1) (370 SE2d 836); McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777). Further, every presumption and inference must be in favor of the verdict. Worn v. Sea-Cold Svcs., 135 Ga. App. 256 (3) (217 SE2d 425). Not only does the majority not follow these time-honored principles of appellate review, they have weighed the evidence under the cloak of adjudicating the sufficiency thereof. This marked invasion of the province of the jury should not be allowed to stand.

I further disagree with the majority’s conclusion that the appellant is entitled to a directed verdict based on Johnson’s failure to present any evidence from which the jury could have calculated the amount of damages he had suffered as a result of the fraud. OCGA § 9-12-4 provides that “[v]erdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” No such necessity exists in this case. Verdicts will be construed in favor of legality. See Gough v. Gough, 238 Ga. 695 (235 SE2d 9); Herman v. Boyer, 154 Ga. App. 617 (269 SE2d 107). It may be presumed that, although the amount of the defaulted note plus interest was the amount the jury found to be the only “actual” damages incurred by Johnson, this damage was found by them to be caused directly or in part by the defendants’ fraud in misleading Johnson into giving the note. Therefore, the sum may be collected on either account: on account of Fullerton’s contract (note) default, or on account of the bank’s and Fullerton’s fraud. What cannot be collected upon one account may be collected upon the other, until the actual damages of $162,303.03 are satisfied. Moreover, such a verdict would be completely consistent, even though rendered in one amount upon two counts or causes of action. See Paulk v. South Ga. Bldg. &c. Co., 152 Ga. 646 (111 SE 26); Rowland v. Gardner, 79 Ga. App. 153 (53 SE2d 198). I believe no other reasonable conclusion can be reached in this instance. It would have been difficult for the jury to find the bank (or Fullerton) liable in connection with this note unless there had been an actual default or breach thereof, together with the consistent damages. It may be presumed, Worn v. Sea-Cold, supra, that the jury’s obvious intendment was to assess the actual damages at the amount of the note plus interest, and to ascribe the cause of these damages to fraud as well as breach of contract. Accordingly, the actual damages may be entirely collected jointly and severally from the bank and Fullerton for fraud, or from Fullerton for breach of contract (default). This is not only reasonable, but it results in a non-contradictory construction to be made, during the appellate process, of this single award upon two causes; most importantly, consistent with the appellate principles above cited, it allows this verdict and judgment to stand. See Jackson v. Houston, 200 Ga. 399 (37 SE2d 399).

The majority asserts that “Johnson was damaged by the . . . fraud only to the extent that Johnson could not collect this indebtedness from Fullerton himself by levying against his remaining assets,” and that “[t]he jury was offered no evidence whatever on this issue, nor was it otherwise offered any evidence from which it could have determined the assignment or market value of the note.” Assuming arguendo that Johnson was damaged only to the extent asserted above, I believe that the jury could infer from the evidence before it, that Johnson could not collect anything either from Fullerton or his assets. For example, the jury could infer that a man who deposited a worthless check in the amount of $242,000 into his account, who conspired with a bank official concerning the transaction, who did not have the funds to make a $5,000 earnest money deposit, and who ultimately could not get a loan, was a man from whom Johnson could collect nothing. Thus, unlike my esteemed colleagues of the majority, I would apply the sound legal principles of appellate review and affirm this judgment.

Decided March 17, 1989

Rehearing denied March 30, 1989

Stewart, Melvin & House, J. Douglas Stewart, Frank W. Armstrong III, for appellant.

Fletcher W. Griffin III, for appellee.

I respectfully dissent.

I am authorized to state that Presiding Judge Deen and Judge Beasley join in this dissent.


source: Caselaw Access Project

author: Carley, Chief Judge. Deen, Presiding Judge,

license: Public Domain

text:
    77858.
    STATE OF GEORGIA v. GOOLSBY.
    (381 SE2d 299)
   Carley, Chief Judge.

In February of 1987, the Grand Jury of Columbia County began the investigation of possible criminal activity on the part of the local sheriff. In anticipation of his own disqualification to participate therein, the District Attorney of the Augusta Judicial Circuit inquired whether appellee-claimant Kenneth Goolsby, a former district attorney who is now engaged in private practice, would accept an appointment as special counsel. After receiving assurances that he would be afforded full independence in the conduct of the investigation, appellee accepted the appointment. Accordingly, on February 11, 1987, the district attorney formally appointed appellee special counsel “with all rights, duties and obligations appurtenant to that office, said appointment to continue at the pleasure of the District Attorney.”

Thereafter, appellee continued his private legal practice but devoted most of his time to the criminal investigation. Appellee was compensated at an hourly rate by Columbia County, and at no time did he receive compensation from the State of Georgia. On February 26,1987, while engaged in his employment as special counsel, appellee was involved in an automobile collision. As the result of the injuries that he received, appellee filed a claim for workers’ compensation.

The Administrative Law Judge found that appellee was not an independent contractor and was entitled to receive workers’ compensation benefits from Columbia County. The Full Board, after a de novo review, found that appellee was not an independent contractor and was entitled to receive workers’ compensation benefits from the state. On appeal to the superior court, the award to appellee of workers’ compensation benefits from the state was affirmed. The present appeal results from this court’s grant of the state’s application for a discretionary appeal from the superior court’s affirmance of the Full Board’s award.

1. If, as a matter of law, appellee was an independent contractor, then any question of whether he would be entitled to workers’ compensation from Columbia County or from the state becomes moot. Accordingly, the issue of appellee’s status as an independent contractor will be addressed first.

“The district attorney in each judicial circuit may employ such additional assistant district attorneys, deputy district attorneys, or other attorneys, investigators, paraprofessionals, clerical assistants, and other employees or independent contractors as may be provided for by local law or as may be authorized by the governing authority of the county or counties comprising the judicial circuit. The district attorney shall define the duties and fix the title of any attorney or other employee of the district attorney’s office.” (Emphasis supplied.) OCGA § 15-18-20 (a). Appellee was not appointed to serve as a full-time general employee of the district attorney. Notwithstanding his appointment, appellee maintained his private law practice and the district attorney defined appellee’s duties as relating exclusively to the conduct of the criminal investigation of the local sheriff and the district attorney fixed appellee’s title as special counsel for that particular investigation. It is undisputed that the control of that investigation was intended to be in the hands of appellee rather than of the district attorney. This is affirmatively shown by testimony that appellee’s independence was a condition of his acceptance of the appointment. It is also inferentially shown by the ostensible disqualification of the district attorney from participation in the investigation. If, notwithstanding his purported disqualification, the district attorney nevertheless intended to exercise control over appellee’s conduct of the investigation, then his appointment of appellee as a special counsel was a sham. There is evidence that, subsequent to his appointment, appellee did receive guidance and help from the district attorney. There is, however, no evidence that the district attorney undertook the control of the investigation. In fact, the evidence shows that the district attorney placed one of his own assistants under appellee’s supervision and control and that this assistant considered that it was appellee and not the district attorney who was in control of the investigation. The only evidence of any “control” over appellee is that his service as special counsel was “at the pleasure” of the district attorney. However, the district attorney’s retention of this right of “control” is not necessarily inconsistent with appellee’s status as an independent contractor. If the appointment to serve “at the pleasure” of the district attorney is interpreted as meaning that, although the district attorney would not retain the general right to control the time, manner and method of the investigation, he would retain the limited right to insure that an otherwise independent investigation of the local sheriff was conscientiously pursued by appellee, this is consistent with the right of an employer of an independent contractor to insist that the job that was contracted for is done according to specifications.

“ ‘The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. [Cits.]’ [Cit.]. . . . [T]he continuous check of ‘the work of an independent contractor to see that the work is being done according to the specifications of the job is thoroughly consistent with the relationship of employer and independent contractor and with the mere right of the employer to insist on a certain specific result.’ . . . ‘[T]he right to change the work and the right to dispense with the independent contractor’s services if, during the performance of the job, it appeared that he either was incapable or unwilling to do the job according to the plans and specifications’ [is] consistent with the independent contractor relationship. ‘The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow’ . . . .” Simpkins v. Unigard Mut. Ins. Co., 130 Ga. App. 535, 538 (1) (203 SE2d 742) (1974).

“[NJothing else appearing, . . . evidence as to the power to terminate the employment alone is sufficient evidence to authorize a finding that the [employer] had the right to control the time, manner and method of doing the work.” (Emphasis supplied.) Golosh v. Cherokee Cab Co., 226 Ga. 636, 638 (176 SE2d 925) (1970). However, there is considerably more in the present case than the evidence that appellee’s appointment as special counsel was “at the pleasure” of the district attorney. Appellee maintained his status as a private attorney and was appointed special counsel for the limited purpose of conducting a particular investigation on behalf of Columbia County. He insisted on independence in the conduct of the investigation and the district attorney granted that independence. Appellee is a professional engaged in the private practice of law and, as an experienced former district attorney himself, he needed no supervision in conducting the investigation he was hired to handle. There is no evidence that the district attorney did in fact control and direct appellee in the conduct of the criminal investigation of the local sheriff. See generally Moss v. Central of Ga. R. Co., 135 Ga. App. 904, 906 (219 SE2d 593) (1975). Considering all of the other circumstances, that appellee’s appointment was “at the pleasure” of the district attorney is not inconsistent with his status as an independent contractor. See Simpkins v. Unigard Mut. Ins. Co., supra. On this undisputed evidence, appellee was, as a matter of law, an independent contractor who accepted Columbia County as one of his clients. “Of course, a lawyer or firm in general practice does not become the employee of a client merely by accepting an annual or monthly retainer fee.” Larson, Law of Workers’ Compensation, 1c, § 45.32 (d), p. 8-241 (1986). He was no less an independent contractor than any other attorney who agrees to exercise his own professional judgment in representing a client in a specific legal matter for a fee. Although appellee was devoting the majority of his time to the criminal investigation, there is no evidence that this was the consequence of anything other than appellee’s own independent determination that, of all his clients, Columbia County merited current priority. Compare Industrial Comm. v. Moynihan, 32 P2d 802, 803 (Colo. 1934), wherein the evidence showed the attorney was employed “regularly, and by the terms of the employment his time and services were subject to the call of his employer.” As an independent contractor, appellee is ineligible to recover workers’ compensation benefits from either Columbia County or from the state. See generally Coastal Timberlands v. Brown, 141 Ga. App. 800 (234 SE2d 373) (1977); Employers Mut. &c. Ins. Co. of Wausau v. Johnson, 104 Ga. App. 617 (122 SE2d 308) (1961). It follows that the superior court erred in affirming rather than reversing the award.

2. Remaining enumerations of error need not be addressed.

Judgment reversed.

Birdsong, Sognier, Benham and Beasley, JJ., concur. Deen, P. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent. It is well-established that when an appeal is taken from an award of the State Board of Workers’ Compensation granting compensation the evidence must be construed by this court in a light most favorable to the prevailing party and cannot be reweighed on appeal. Any finding of fact by either an administrative law judge or the full board, when supported by any evidence, is conclusive and binding upon the court to which such an appeal is taken. Home Indem. Co. v. Swindle, 146 Ga. App. 520 (246 SE2d 507) (1978). An appellate court must accept that evidence most favorable to sustain the award. Continental Cas. Co. v. Bennett, 69 Ga. App. 683 (26 SE2d 682) (1943). The issue on appeal is whether there is “any evidence” to authorize a finding in accordance with the contentions of the party who prevailed before the full board. Cobb Gen. Hosp. v. Burrell, 174 Ga. App. 631 (331 SE2d 23) (1985). OCGA § 34-9-105 (c) sets forth the grounds for setting aside a board decision, and any application of Division (3), “[t]he facts found by the members do not support the decision,” requires application of the “any evidence” rule to board decisions. A review of the record indicates that there is ample evidence to support the claim for compensation under the above-stated rule, and the decisions of the full board and the superior court should be affirmed.

Further, our decision in this case is consistent with this court’s general policy of construing the provisions of the Workers’ Compensation Act liberally in order to afford the injured , claimant a remedy. “The case, though it has many sprangles in the record, has a solid nucleus which controls it.” Kirkland v. Wade, 61 Ga. 478, 481 (1878).

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

On Motion for Rehearing.

“We are fully aware of the well-established rule in respect to the finality and binding effect of the findings and award of the State Board of [Workers’] Compensation, when supported by any competent evidence; but as was said in [Aetna Cas. & Sur. Co. v. Honea, 71 Ga. App. 569, 571-572 (31 SE2d 421) (1944)]: ‘While it has been ruled in numerous decisions of the Supreme Court and this court, that findings of fact by the State Board of [Workers’] Compensation, if supported by any competent evidence, are conclusive, in the absence of fraud, and can not be set aside by the courts; still, where there is no conflict in the evidence and but one legal conclusion can be reached therefrom . . ., then a finding by the board granting compensation can, and under the law, should be set aside by the court.’ ” Gay v. Aetna Cas. &c. Co., 72 Ga. App. 122, 125 (33 SE2d 109) (1945), overruled on other grounds Federal Ins. Co. v. Coram, 95 Ga. App. 622 (98 SE2d 214) (1957). There is no conflict in the evidence in this case. Compare Reliance Ins. Co. v. Ham, 130 Ga. App. 382 (203 SE2d 315) (1973). .Although appellee was to serve “at the pleasure” of the district attorney, the remaining undisputed evidence as to the district attorney’s lack of a right to control appellee in his capacity as special counsel cannot be eliminated from consideration. “[D]irect and positive testimony cannot arbitrarily be rejected by a jury or other trier of facts. . . .” Maddox v. Buice Transfer &c. Co., 81 Ga. App. 503, 506 (59 SE2d 329) (1950). Here, as in Coastal Timberlands v. Brown, 141 Ga. App. 800 (234 SE2d 373) (1977) and Employers Mut. &c. Ins. Co. of Wausau v. Johnson, 104 Ga. App. 617 (122 SE2d 308) (1961), the undisputed evidence of record demanded a finding that appellee was an independent contractor notwithstanding the Full Board’s finding that he was an employee of the district attorney. In holding that the Full Board’s finding is erroneous, we are adhering to, not deviating from, the “any evidence” rule. Considering all of the undisputed evidence, there is none which would authorize a finding that appellee was an employee.

Decided March 8, 1989

Rehearing denied March 30, 1989

Nixon, Yow, Waller & Capers, Paul H. Dunbar III, E. Freddie Sanders, for appellant.

Burnside, Wall & Daniel, Thomas R. Burnside, Jr., Harry D. Revell, for appellee.

Motion for rehearing denied.

Carley, C. J., Birdsong, Sognier and Benham, JJ., concur. Beasley, J., concurs in judgment only. Deen, P. J., Banke, P. J., McMurray, P. J., and Pope, J., dissent.


author: Beasley, Judge.

text:
    77913, 77914. 77915.
    COLEMAN v. HOUSING AUTHORITY OF AMERICUS et al.; and vice versa. ROBINSON v. COLEMAN.
    (381 SE2d 303)
   Beasley, Judge.

This main appeal arid the two cross-appeals arise from an action brought by Lodenia Coleman alleging on-the-job sexual harassment. Coleman was employed by the Housing Authority of the City of Americus, first from 1972 until 1978 as a clerk-typist and subsequently from 1981 to 1987. In 1984 she became an occupancy supervisor. Defendant James Robinson was the Executive Director of the Housing Authority, hired in March 1984. As director he was Coleman’s superior and supervisor. The other two defendants are the Housing Authority and Arthur Cheokas, Chairman of its Board of Commissioners.

In 1987 Coleman filed a letter with the Board complaining that Robinson mishandled personnel management functions and engaged in sexual harassment. During the course of an ongoing investigation and on the day Robinson was to appear before the Board, he resigned as of March 31, 1987. Shortly thereafter, on May 13, Coleman also resigned because of the prolonged effect of the trauma she suffered and because when she tried to talk with Cheokas about the prior problems he “embarrassed me by laughing in my face.”

This lawsuit followed. It alleged that Robinson sexually harassed Coleman over the course of three years, that his conduct amounted to the intentional infliction of mental, physical, and emotional distress, and that the defendants Cheokas and Housing Authority negligently hired Robinson and negligently retained him after they knew or should have known of his propensities.

After discovery, defendants moved for summary judgment. The trial court granted the motion as to defendants Cheokas and the Housing Authority on Coleman’s allegations of negligent hiring. This is the subject of the main appeal 77913. The trial court denied Cheokas and the Housing Authority’s motion on the theory of negligent retention from which they cross-appeal (77914). The trial court also denied Robinson’s motion on the basis that there remained genuine issues of fact concerning whether he intentionally inflicted harm on Coleman through the use of language, citing Tuggle v. Wilson, 248 Ga. 335 (282 SE2d 110) (1981).

1. The first issue is whether there is sufficient evidence to support an action for intentional infliction of emotional distress by Robinson upon Coleman (cross-appeal 77915). If not, then the causes of action against the other defendants, which are essentially derivative, must fall.

Title VII of the Civil Rights Act of 1964 is not implicated and our analysis proceeds along traditional common law lines. Favors v. Alco Mfg. Co., 186 Ga. App. 480, 482 (1) (367 SE2d 328) (1988). Compare the Title VII case of Meritor Savings Bank v. Vinson, 477 U. S. 57 (106 SC 2399, 91 LE2d 49) (1986), where for the purpose of that Act the Court analyzes instances of workplace sexual harassment as constituting two basic types: conditioning favorable treatment upon the granting of sexual favors, and creating a hostile work environment. In that context, the activity here would involve the second category. See 45 AmJur2d 725, Job Discrimination, § 801.

Of course, the common-law principles in Georgia to which we refer are not narrowly limited to the common law and statutes of England as they existed prior to May 14, 1776. See Hannah v. State, 212 Ga. 313, 322 (92 SE2d 89) (1956). They include the progression of law that has developed by construction of the statutes and legal maxims since that time. See Davis v. Atlanta Gas Light Co., 82 Ga. App. 460, 463 (61 SE2d 510) (1950). See particularly Moses v. Prudential Ins. Co., 187 Ga. App. 222, 224 (369 SE2d 541) (1988). The common law is a living, growing body, cautiously flexible enough to meet new conditions but firmly tied to the precepts of the past. See 15A AmJur2d 594-599, Common Law, § 1-3, and cases cited.

Thus the Georgia Supreme Court, in Tuggle v. Wilson, supra at 337, recognized that already in Georgia a plaintiff could recover in tort “where the defendant has wilfully and wantonly caused emotional upset to the plaintiff through the use of abusive or obscene language.” See also the cases and principles for which they are cited in Moses, supra.

Ms. Coleman, it is noted, presented evidence of physical manifestations (headaches, crying, chest pains) as well as mental and emotional symptoms (upset, despondency, depression). She also testified that in addition to language, Robinson used other means of communication such as stares, laughter, and the showing of written and pictorial material to cause distress. The type of wilful and wanton injury-causing behavior which she claims was a breach of duty is sexual harassment. What is more, she alleges it was intentional.

Even applying the stringent test enunciated in the holding in Moses, Coleman’s evidence is not deficient as a matter of law.

In deposition, Coleman testified that although she was promoted shortly after Robinson became her superior, he began at the same time a pattern of sexual communication with her that lasted during most of the time he worked there. She freely conceded that he never touched or made physical contact with her. However, she related a number of examples which she contended amounted to sexual harassment through conversation, innuendo and body language.

According to her, Robinson would call her into his office on business and then inexplicably veer off into personal matters involving sex. He showed her cartoons of a sexual nature, inquired of her as to how she and her husband had sex and if they had tried an act depicted in one of the cartoons. He often sought to engage her in conversation about masturbation and the sexual practices of black women. He proffered her a video about black women engaging in sex together and offered to exchange movies having pornographic content. He told her sexual and racist jokes. The compliments he paid her were of a sexual nature. Once he told her the way she wore a dress “made him crawl all over,” and on other occasions he inquired if she knew what her walk did to him. He gave her “funny looks” and often seemed to stare “straight through” her, “looking up and down and just smiling evil.” He also spread rumors that she, a married woman, had a “crush” on a co-worker. When they were to have a business conference at a motel, he remarked to her that “you can meet me there a little bit earlier if you want to,” with what Mrs. Coleman believed to be an implication of an assignation. He discussed the sexual practices of the former director.

Throughout, she constantly remonstrated with him to stop, protested, left his office and told him to leave her desk. She talked of bringing these matters to the attention of others, but Robinson warned her of the consequences if she accused him of something she could not prove. Some practices stopped, but only temporarily, after she was particularly vehement in rebuffing him.

During this time, in 1985 and 1987, she was hospitalized for pain in her back and neck and recurring headaches. She also endured spells of crying and depression. Her doctor testified that, in retrospect and at that time, he believed that job-related tension or stress was primarily the cause of her headaches and certainly could have been a factor in all the medical problems she suffered.

Standing alone, some of the incidents she related would not amount to actionable infliction of emotional distress by way of sexual harassment. But the repetition, over her protests, could be found to have had a cumulative effect. This can be particularly acute in an employment setting. The court has recognized that “the existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that otherwise might not exist.” Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1). (335 SE2d 445) (1985). See also Tuggle, supra at 337. The argument that such remarks were insignificant and not sufficient to cause harm belittle but do not defeat the claim.

The workplace is not a free zone in which the duty not to engage in wilfully and wantonly causing emotional distress through the use of abusive or obscene language does not exist. Actually, by its very nature, it provides an environment more prone to such occurrences because it provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships which cannot easily be avoided. The opportunity for commission of the tort is more frequently presented in the workplace than in casual circumstances involving temporary relationships. This court acknowledged by its decision in Bridges, supra, that the tort could occur in the employment setting, although the complained-of actions there did not rise to the level of being tortious. The legislature in Georgia has recognized a need to guard against sex discrimination in employment, by adopting the Fair Employment Practices Act of 1978. OCGA Title 45, Ch. 19, Art. 2 covers public employment in state agencies.

Analogous is the public policy expressed by the legislature’s having made obscene phone calls a criminal offense. OCGA § 46-5-21 (1). Direct communications of the same kind of personally obnoxious messages are not protected as a matter of law in the workplace.

On motion for summary judgment, the burden of showing the absence of any genuine issue of material fact rests upon movant, and the party opposing the motion is given the benefit of all reasonable doubts and favorable inferences that may be drawn from the proof offered. Anderson v. Redwal Music Co., 122 Ga. App. 247, 249 (176 SE2d 645) (1970). A reading of the case law in Georgia, particularly the cases cited above and the cases relied on in those decisions, reveals that to recover for the cause of action here asserted by Coleman against Robinson, the plaintiff must show 1) that defendant’s behavior was wilful and wanton or intentionally directed to harming plaintiff; 2) that the actions of defendant were such as would naturally humiliate, embarrass, frighten, or outrage the plaintiff; 3) that conduct caused mental suffering or wounded feelings or emotional upset or distress to plaintiff.

In order to prevail at this stage, Robinson as movant for summary judgment must establish the absence of one element as a matter of law. First of Ga. Ins. Co. v. Josey, 129 Ga. App. 14, 15 (3) (198 SE2d 381) (1973). This he has failed to do.

That part of the judgment which is the subject of cross-appeal in 77915 must be affirmed.

2. Cross-appeal 77914 is brought by Cheokas and the Housing Authority from the denial of their motion for summary judgment on the issue of whether they retained Robinson after they knew or should have known of his alleged activity with female employees.

Although Coleman attempted to bring the matter to the attention of Cheokas, it is urged that she never mentioned that Robinson was sexually harassing her. While this is true, it does not absolve the employer. Knowledge could be actual or constructive. “A cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment.” Cox v. Brazo, 165 Ga. App. 888, 889 (1) (303 SE2d 71) (1983), aff’d 251 Ga. 491 (307 SE2d 474) (1983).

Therefore, if an ordinarily careful employer acting upon the information furnished could have reasonably discovered that its supervisor was inflicting emotional distress upon its employee, the employer could be found to have negligently retained the supervisor. “An employer may know, or in the exercise of due care have reason to know, of an employee’s reputation for sexual harassment in the absence of complaints.” Favors, supra at 483 (3).

A grievance procedure is mentioned in the testimony of various individuals, but nothing is shown about it other than the fact it was apparently seldom if ever used. Cheokas admitted that he was not familiar with it. In assessing an employer’s responsibility and potential liability, federal courts have considered factors such as: whether the employer had an express policy discouraging unlawful discrimination, provided a mechanism by which employees could complain, and promptly responded to the complaints. 45A AmJur2d 705, Job Discrimination, § 782. Similar principles should be applied in actions brought in this State.

When Coleman did attempt to air her problem with Cheokas he told her to see Robinson. He repeated this instruction even after sh^ informed him that the problem involved Robinson. He reiterated that he treated all employee complaints in this manner and expected Robinson to handle personnel matters. The Housing Authority and Cheokas may not now successfully contend that Coleman did not inform them of the circumstances. Nor may they prevail by asserting lack of knowledge when the slightest investigation or merely permitting the employee to explain would have provided them with the knowledge they deny.

The dissent in Meritor, supra, argued that sexual harassment by the superior of an employee under his supervision should be imputed to the employer. See Miller v. Honea, 163 Ga. App. 421, 422 (294 SE2d 629) (1982). It is not necessary to go that far to hold in this instance that a jury could find that knowledge of facts which a cursory inquiry might have revealed should be imputed to the employer. Denial of summary judgment was not error.

3. The main appeal (77913) raises the issue of whether a jury question was presented regarding defendants Housing Authority and Cheokas hiring Robinson when they knew or should have known of his proclivity to sexually harass female employees.

The members of the Board, and thus the Housing Authority, stated with unanimity that they had no actual knowledge about any factors which would have disqualified Robinson prior to his hiring. However, there is evidence that at best they performed only a perfunctory investigation into Robinson’s background before employing him. We thus must ascertain what a reasonable investigation would have revealed and whether there was any proof by Coleman which disputed the lack of knowledge.

Coleman testified that two of the commissioners told her that they knew about Robinson’s background but were pressed for time to make a decision about a new director. One commissioner stated, so she testified, “they knew he had problems with women ... he had problems on the job . . . that he loved women, and that ever [sic] place he’d ever worked, he’d had problems with women employees.” This was knowledge acquired before Robinson was hired. The two commissioners, as well as Cheokas, denied this and stated they had no inkling of any adverse information about Robinson. They had been informed that Robinson had been charged with assault in an altercation with a maintenance man at his former place of employment, but this had been explained to them to their satisfaction.

Decided March 9, 1989

Rehearing denied March 30, 1989

Bensonetta Tipton Lane, for Coleman.

Mary Mendel Katz, for Housing Authority.

Thomas S. Chambless, Dawn G. Benson, for Robinson.

Although somewhat vague and not entirely satisfactory, this showing by Coleman was sufficient to counter the effort to establish as a matter of law that neither Cheokas nor the Housing Authority had any knowledge prior to employing Robinson.

Because it was never shown that Cheokas had any authority other than as chairman of a commission which collectively decided to hire and retain Robinson, Cheokas contends the lack of his individual liability was established as a matter of law. This argument was not offered before the trial court and was not a basis for its order. Although a judgment right for any reason will be affirmed, Glynn County v. Palmatary, 247 Ga. 570, 574 (277 SE2d 665) (1981), it is premature to decide whether any action by Cheokas in his individual capacity should be dismissed, because summary judgment was not sought on that limited ground and a jury question remains as to whether his official actions can form the basis for recovery.

That portion of the judgment granting summary judgment to Cheokas and the Housing Authority on the issue of negligent hiring must be reversed.

Judgment reversed on main appeal 77913. Judgment affirmed on cross-appeals 77914 and 77915.

Banke, P. J., and Birdsong, J., concur.


author: Banke, Presiding Judge.

text:
    A89A0139. A89A0266.
    McGEE v. THE STATE. CLYDE v. THE STATE.
    (381 SE2d 80)
   Banke, Presiding Judge.

Based on events which occurred during the early morning hours of October 4, 1987, the appellants were jointly indicted, tried, and convicted of selling cocaine in violation of the Controlled Substances Act. They were also found guilty on charges of unlawful possession of cocaine on the basis of these same events, but those convictions were merged with the sale convictions during sentencing. Appellant McGee was additionally tried and convicted on a separate cocaine possession charge arising from an incident which took place on December 29, 1987. Also, each appellant was charged, in connection with the October 4 incident, with possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, and criminal use of an article with an altered identification mark; however, the charges of possession of a firearm by a convicted felon were nolle prossed, and the appellants were found not guilty on the remaining charges. They appeal separately. Held:

1. Appellant Clyde contends that there was no evidence to support a finding that he, as opposed to appellant McGee, was involved in selling the cocaine. We disagree. It was shown that Clyde was serving as an armed doorman at McGee’s residence while cocaine was being openly sold there. A rational trier of fact could reasonably have concluded beyond a reasonable doubt from this evidence that Clyde was intentionally aiding and abetting in the sale of the cocaine and was thus a party to the offense within the contemplation of OCGA § 16-2-20.

2. Appellant McGee contends that evidence seized during the execution of a warrant for the search of the residence should have been suppressed because the warrant “bore an incorrect and otherwise insufficient description of the property” and because, although the house was leased in his name, the warrant did not identify him by name but instead named only co-defendant Clyde. This enumeration of error is without merit. The residence was correctly identified by its address, and any discrepancies which may have existed between its actual appearance and its physical description as set forth in the warrant were minor. “The total description could refer only to one residence and permitted a prudent officer to locate the place definitely and with reasonable certainty. [Cits.]” Martin v. State, 165 Ga. App. 802 (1), 803 (302 SE2d 717) (1983). The fact that the warrant named Clyde but not McGee was wholly immaterial under the circumstances. See Bing v. State, 178 Ga. App. 288 (1), 289 (342 SE2d 762) (1986).

3. The trial court did not err in denying appellant McGee’s motion to sever the charges against him arising from the events which took place on October 4, 1987, from the charge arising from the events which occurred on December 29, 1987. The arrests occurred in the same neighborhood within three months of each other, the appellant was charged in both instances with possessing and/or distributing cocaine, and the cocaine which was seized was on each occasion packaged in the same distinctive manner. Thus, there was sufficient similarity between the offenses that, even had the appellant been tried for them separately, proof of the one would have been admissible in the trial of the other to establish identity, motive, plan, scheme, bent of mind, or course of conduct. See State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). Under such circumstances, the trial court does not abuse its discretion in refusing to grant a severance. See Davis v. State, 158 Ga. App. 549 (1) (281 SE2d 305) (1981).

Decided March 9, 1989

Rehearing dismissed March 30, 1989.

P. Dewey Gill, for appellant (case no. A89A0139).

J. Kevin Davis, Carl J. Wilson, for appellant (case no. A89A0266).

Willis B. Sparks, District Attorney, Vernon R. Beinke, Thomas J. Matthews, Assistant District Attorneys, for appellee.

4. Appellant McGee further enumerates as error the trial court’s refusal to sever his trial from co-defendant Clyde’s, contending that a joint trial prevented him from securing testimony from Clyde which would have been favorable to him. This enumeration of error is also without merit. Clyde’s testimony would no more have been compellable at a separate trial than at a joint trial. Moreover, even had he chosen to submit himself to questioning at a separate trial, there is nothing to suggest that his testimony would have been favorable to McGee. Indeed, given the nature of Clyde’s sole enumeration of error on appeal (see Division 1, supra), it is reasonable to assume that if he had testified, his testimony would have been unfavorable to McGee.

“The grant or denial of a motion for severance lies within the sound discretion of the trial court and its ruling will not be reversed absent clear abuse of such discretion. To warrant a severance, the defendants must show the probability of prejudice and may not present just argument that there is a better probability a separate trial would give them a better chance of acquittal. To obtain a new trial at the appellate level they must show actual prejudice and denial of due process.” Stevens v. State, 165 Ga. App. 814, 816 (302 SE2d 724) (1983). No such showing has been made in this case.

5. Finally, appellant McGee contends that he should be granted a new trial on the ground that “one of his trial attorney’s (sic) was ineffective in his defense. . . This enumeration of error is deemed abandoned pursuant to Rule 15 (c) (2) of this court, due to the appellant’s failure to provide any argument or citation of authority in support of it.

Judgments affirmed.

Sognier and Pope, JJ., concur.


author: Beasley, Judge. Deen, Presiding Judge, Banke, Presiding Judge,

text:
    77181.
    McDONNELL v. EPISCOPAL DIOCESE OF GEORGIA.
    (381 SE2d 126)
   Beasley, Judge.

Appellant, Father Richard McDonnell, was selected by the Episcopal Diocese of Georgia to serve as minister for two of its mission churches. After he had served for about one-and-a-half years, he was terminated from that capacity by the diocese against his wishes. He sued to recover damages for breach of an alleged employment contract. The trial court granted summary judgment to the diocese and denied partial summary judgment to appellant on the issue of the existence of such a contract.

When Father McDonnell accepted the call, the diocese furnished him with a copy of a manual of directives entitled “Diocesan Policies and Practices and Liturgical Customary.” He asserts that a binding 3-year contract was created by the following language contained in this document: “DIOCESAN MISSION CLERGY. When a clergyman accepts the Diocesan’s call to fill a mission cure in the Diocese, such acceptance constitutes an implied agreement that his tenure will be for a minimum of three years. Resignation prior to three years, unless such termination is by mutual agreement by the Bishop and the clergyman, constitutes a breach of contract.”

A provision of the manual dealt with involuntary termination: “INVOLUNTARY TERMINATION. It is recognized that, from time to time, a pastoral situation may occur which might necessitate a priest’s removal from his cure. The Diocesan Council has urged the Diocesan to offer such a clergyman a reasonable period of transition, during which he may be relieved of all pastoral responsibilities.”

Father McDonnell asserts that, pursuant to the manual, his termination from this position prior to the expiration of three years was effected without “such cause as would necessitate a priest’s removal from his cure under the policies, practices and, or customs of [the Diocese].”

We hold that summary judgment was mandated, but for a very different reason than stated in the appealed judgment. The trial court was prohibited by the First Amendment, applicable to the courts of Georgia by the Fourteenth Amendment, from exercising judicial authority in this dispute. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 (96 SC 2372, 49 LE2d 151) (1976); Crowder v. Southern Baptist Convention, 828 F2d 718 (11th Cir. 1987); Monahan v. Sims, 163 Ga. App. 354, 359 (2) (294 SE2d 548) (1982).

Neither the defendant nor the court raised this issue below, and it did not arise until oral argument in this court, after which the parties filed supplemental briefs to discuss it. Even though it was not raised in defendant’s motion for summary judgment, the trial court must sua sponte ascertain whether it has jurisdiction, when it appears that it may not. OCGA § 9-12-16; Southeastern Underwriters Assn. v. Cravey, 216 Ga. 599, 600 (118 SE2d 471) (1961); Baggett Transp. Co. v. Barnes, 108 Ga. App. 68 (132 SE2d 229) (1963). The same threshold inquiry must be made by ours. Barland Co. v. Bartow County Bd. of Tax Assessors, 172 Ga. App. 61, 62 (322 SE2d 316) (1984). The civil court cannot take jurisdiction of an ecclesiastical issue even if the parties present it for resolution, because the First Amendment prohibits such action by the civil judicial system.

The entanglement of civil authority into ecclesiastical affairs which is prohibited by our fundamental law and which was one of the promptings of the creation of this nation is evident in this lawsuit. A priest sues his church, bringing to a civil court a dispute over his termination as vicar of one mission church and priest-in-charge of another. He seeks monetary damages representing lost wages, consequential damages, interest and costs, claiming breach of an alleged civilly enforceable contract governing his call.

Father McDonnell submits that the contract was formed by his acceptance of the call, which acceptance was based on a provision in a manual. He urges that his termination before the expiration of three years was not in conformity with the manual’s provision for involuntary termination. He contends that, in the words of the manual, his circumstances could not be described as “a pastoral situation . . . which might necessitate a priest’s removal from his cure.”

Thus Father McDonnell places before the civil court, and seeks to place before a jury, the question of whether the bishop, as head of the church in Georgia, was legally justified in removing him from this cure.

The trial court, and this court, have become embroiled in a controversy over whether the words of the manual constitute a legally enforceable contract. Resolution is sought by the application of principles fashioned for nonecclesiastical employer-employee relationships and for the construction of contracts generally. To do this it is necessary to enter the fray even deeper by determining whether in the church’s polity the manual’s language conflicts with the provisions of the canons and, if so, whether the canons govern.

As shown by the foreword to the manual, it was written by the bishop and the diocesan administrator and is described as a collection of “diocesan directives” and as “policies.” The administrator rather than the bishop prepared the sections heretofore quoted. Canon 6 Section 2 provides that: “The Missions of the Diocese shall be under the supervision and control of the Bishop. He shall appoint all Mission clergy and may, at his discretion, suspend or remove them.” The bishop is elected by the church’s Convention, which according to the church’s constitution, is to be convened annually. He is the ordinary of the diocese (Canon 0) and serves as president of the Council, which is directed to “carry out the policies, programs and directives of Convention; . . . .” (Canon 15 Section 1.)

The case of Serbian Eastern Orthodox Diocese v. Milivojevich, supra, involved the church’s removal of the bishop, as well as his ultimate defrocking, and the reorganization of the diocese into three dioceses. The Supreme Court held that the Illinois state courts contravened the First and Fourteenth Amendments by engaging in improper inquiries into ecclesiastical matters, a prohibited zone even though some property questions were involved. That decision, and those upon which it is built, constitute the firm foundation upon which the unavoidable conclusion must be reached in this case, which is that it involves a religious dispute the resolution of which does not belong in the civil tribunal.

For the court to decide whether a binding civil contract was intended; for the court to construe the meaning of that contract if there is one, or leave to a jury its construction if ambiguity raises questions of fact; for the court or jury to determine whether canons or manual directives control; and most clearly, for a jury to decide whether “a pastoral situation” occurred which warranted removal of the missions’ spiritual leader; all of these incursions into religious controversy constitute a large leap beyond the constitutional boundary. Inextricably entangled is whether the priest’s performance of his duties as a priest met the requirements of his church as measured by ecclesiastical concerns.

The Supreme Court in Serbian Orthodox Diocese crystallized the constitutional mandate “that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” 426 U. S. 713. What is involved here falls within that territory, which must remain foreign to civil tribunals.

The application of the Supreme Court’s established principles by the lower federal court in Crowder v. Southern Baptist Convention, supra, and by this court in Monahan v. Sims, supra, show the way which must be trod by this court in reversing the trial court in this case. As quoted by this court in Monahan from Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, 116 (73 SC 143, 97 LE 120) (1952): “Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.” As demonstrated by.Serbian Eastern Orthodox Diocese, the removal of the clergy is also an ecclesiastical matter even when property is involved.

The trial court was correct in granting summary judgment to the defendant church and denying summary judgment to the plaintiff priest, but for the reason that it did not have jurisdiction. A judgment right for any reason is to be affirmed. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (307 SE2d 914) (1983).

Judgment affirmed.

Carley, C. J., Birdsong and Benham, JJ., . concur. McMurray, P. J., concurs in the judgment only. Deen, P. J., Banke, P. J., Sognier and Pope, JJ., dissent.

Deen, Presiding Judge,

dissenting.

I concur fully with the dissent of Presiding Judge Banke. However, the points made by the majority opinion provoke additional comments.

1. The United States Supreme Court has devised a tripartite test in considering establishment clause questions. Under Lemon v. Kurtzman, 403 U. S. 602 (91 SC 2105, 29 LE2d 745) (1971), (a) any governmental action affecting religion must have a secular purpose; (b) the principal or primary effect of that governmental action must be one that neither advances one religion nor inhibits another religion; and (c) the governmental action must not constitute an excessive entanglement of government with religion. A minimal intrusion by the government into the affairs of religion, if it passes all three prongs of the Lemon test, is constitutionally permissible.

In the instant case, the trial court’s and this appellate court’s consideration and enforcement of the employment relationship between the appellant and the appellee had a purely secular purpose of resolving an employment contract dispute that just so happened to involve a church and a minister. In no way can it be said that enforcement of the employment contract here either advances or inhibits religion. Likewise, resolution of contract disputes of this nature hardly constitutes an excessive entanglement of government and religion. It is important to note that no religious dogma, doctrine, creed, tenet, or theological issue is involved in resolving this contract law dispute. See Jones v. Wolf, 443 U. S. 595 (99 SC 3020, 61 LE2d 775) (1979).

2. In cases of this nature, it should also be remembered that the establishment clause discussed above calls for the separation of state and religion, not church and state; separation of church and state is misnamed, misunderstood, and mistaken nomenclature. The establishment clause’s prohibition and restriction actually is addressed to the state, and concerns forbidding the government’s favoring or inhibiting or singling out any one religion for special treatment over another; the original idea was that the government should be substantially neutral as to religion. The restriction and prohibition is against state action, not any religious action. “[T]he Constitution . . . affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Lynch v. Donnelly, 465 U. S. 668, 673 (104 SC 1355, 79 LE2d 604) (1984). The concept of religion has expanded from its original theistic definition to its present theistic and sometimes nontheistic definitions, particularly as far as the free-exercise clause is concerned. See Roberts v. Ravenwood Church of WICCA, 249 Ga. 348 (292 SE2d 657) (1982). Historically, up until recent years, in matters involving the establishment and free exercise clauses, a uniform definition of religion was used (“In God We Trust”; “Creator Endowed Rights”; a notion of theism). Today a narrower definition of religion is employed in establishment clause considerations, as compared to use of a broad definition when the free exercise clause is invoked. When the latter clause is used, nontheism is also considered a religion. Torcaso v. Watkins, 367 U. S. 488 (81 SC 1680, 6 LE2d 982) (1961). With the expansion of the definition of religion, the sphere of possible governmental intrusion likewise is bound to increase. It thus becomes imperative and increasingly important to remember that the determinative emphasis is whether the governmental action is substantially neutral while being accommodating, rather than becoming hostile, to religion. In this case, the bottom line is that the courts are concerned merely with a secular employment contract dispute, which is neither plus nor minus to any religion, and certainly no excessive entanglement of government and religion.

Several examples of cases (a) denoting permissible intervention and intrusion and (b) impermissible intervention and intrusion, with religious implications and into religious controversies, are set forth below, so that a difference and distinction may be clearly seen:

A. (1) Reynolds v. United States, 98 U. S. 145 (25 LE 244) (1878). (Government permission to intrude, in criminal convictions of polygamy over religious claim that more than one spouse was a religious practice, was approved. Religious beliefs may not be regulated by government, but religious actions may be reviewed.) (2) Walz v. Tax Comm., 397 U. S. 664 (90 SC 1409, 25 LE2d 697) (1970). (Government’s intervention in approving tax exemptions for religious property was permissible, and did not constitute an excessive, entanglement with religion.) (3) McGowan v. Maryland, 366 U. S. 420 (81 SC 1101, 6 LE2d 393) (1961). (Sunday legislative government closing laws did have a secular purpose as a uniform day of rest. While it was consistent with religious practice, it was a minimal permissible intrusion into religion.) (4) Marsh v. Chambers, 463 U. S. 783 (103 SC 3330, 77 LE2d 1019) (1983). (A state legislature had paid a chaplain who began sessions with a prayer. This minimal intrusion into religion was permissible under the sometimes-used historical test, rather than the most-time used tripartite test — the same as “In God We Trust” — used on government coins.)
B. (1) Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 (96 SC 2372, 49 LE2d 151) (1976). (Here, the government or court was prohibited from intruding into who controlled the “Diocese’s Assets,” and reorganization of the diocese into three dioceses. Decisions regarding church doctrine, tenets and assets was an impermissible intervention.) (2) Presbyterian Church v. Hull Mem. Presbyterian Church, 393 U. S. 440 (89 SC 601, 21 LE2d 658) (1969). (Governmental or court determinations of ecclesiastical questions are impermissible intrusions.) (3) National Labor &c. Bd. v. Catholic Bishop, 440 U. S. 490 (99 SC 1313, 59 LE2d 533) (1979). (Use of compulsory bargaining under the National Labor Relations Act to parochial schools poses as a hostility or threat to religion and is impermissible entanglement.) (4) Stone v. Graham, 449 U. S. 39 (101 SC 192, 66 LE2d 199) (1980). (Posting the “Ten Commandments” on schoolroom walls had an impermissible religious, rather than a secular, purpose.) (5) Engel v. Vitale, 370 U. S. 421 (82 SC 1261, 8 LE2d 601) (1962). (A prayer worded by the Board of Education and required to be recited daily had a religious, rather than a secular, purpose and would be an impermissible entanglement between government and religion.)

It is clear the facts of the instant case fit like a glove the former examples under (a) rather than (b).

3. In Lyons v. Planters’ Loan &c. Bank, 86 Ga. 485 (12 SE 882) (1890), one issue was whether church property could be applied to satisfy a debt a church owed its former pastor for services as a clergyman. Chief Justice Bleckley was at his most eloquent in analyzing the case:

“Here then is a debtor having some property, perhaps sufficient property, to discharge the debt. Why should it not be so applied? If any debt ought to be paid, it is one contracted for the health of souls — for pious ministrations and holy services. If any class of debtors ought to pay as matter of moral as well as legal duty, the good people of a Christian church are that class. No church can have any higher obligation resting upon it than that of being just. The study of justice for more than forty years has impressed me with the supreme importance of this grand and noble virtue. Some of the virtues are in the nature of moral luxuries, but this is an absolute necessary of social life. It is the hog and hominy, the bacon and beans of morality, public and private. It is the exact virtue, being mathematical in its nature. Mercy, pity, charity, gratitude, generosity, magnanimity, etc., are the liberal virtues. They flourish partly on voluntary concessions made by the exact virtue, but they have no right to extort from it any unwilling concession. They can only supplicate or persuade ... On the credit side of justice we can make any sacrifice of it that we will, but on the debit side we can make none whatever. I may burn as an offering my own bull or lamb, but not that which rightfully belongs to another owner. There is nothing more exalted than a strict duty and its performance. What we freely give cannot be better bestowed than what we pay in discharge of a perfect obligation. The law grants exemptions of property to families, but none to private corporations or collective bodies, lay or ecclesiastical. These must pay their debts if they can. All their property legal and equitable is subject. Atlanta v. Grant &c. Co., 57 Ga. 340. We think a court may well constrain this church to do justice. In contemplation of law, justice is not only one of the cardinal virtues, it is the pontifical virtue.” Id. at 490-491. (Emphasis supplied.) Bleckley received nationwide recognition for the latter expression of acknowledging and confirming justice as the pontifical virtue.

A similar analysis is appropriate in the instant case to reach the conclusion that the church can be constrained to do justice in this simple and secular employment contract dispute. The majority opinion fails to meet the requirement of accommodating religion even though we deal here only with a secular purpose. Not even a minimum of entanglement with religion, much less an excessive entanglement, is here involved. This results in hostility and discrimination toward religion inasmuch as our courts usually monitor all employment contracts of others, but here the majority turns its back on aiding resolution of contracts of religious groups. With this unfair, hostile, and discriminatory treatment by government toward religion I cannot agree.

I am authorized to state that Presiding Judge Banke joins in this dissent.

Banke, Presiding Judge,

dissenting.

This case does not involve a dispute over ecclesiastical doctrine or church leadership but merely a dispute over whether the parties contracted for a definite term of employment and whether, if so, the appellee breached that contract by discharging the appellant without cause prior to the end of the term. No one is arguing that the bishop did not have the power to relieve the appellant of his pastoral duties. The question is simply whether the appellant was entitled to continue to receive his salary, a fact which undoutedly explains why the appellee never raised the First Amendment issue until questioned by this court during oral argument of the case.

“[T]he [United States Supreme] Court has . . . rejected an absolute rule that civil courts are powerless to resolve any church property dispute. Bouldin v. Alexander, 82 U. S. (15 Wall.) 131 (21 LE 69) (1872); Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440 (89 SC 601, 21 LE2d 658) (1969); Jones v. Wolf, 443 U. S. 595 (99 SC 3020, 61 LE2d 775) (1979). Thus, Supreme Court decisions have attempted to strike an appropriate balance between the establishment and free exercise concerns implicated when a court is asked to resolve an ecclesiastical dispute, and the interests of the state and the aggrieved party in resolution of the controversy by a court of law.” Crowder v. Southern Baptist Convention, 828 F2d 718, 721 (11th Cir. 1987).

Decided March 17, 1989

Rehearing denied March 31, 1989

Elizabeth F. Bunce, Michael K. Mixson, for appellant.

Brent J. Savage, Dorothy W. Courington, Christopher E. Klein, for appellee.

The decision of the majority in the present case does not attempt to strike such a balance but appears to create an absolute prohibition against the adjudication of any employment dispute between a cleric and his or her church, regardless of whether it is based on the alleged breach of a contractual obligation. I am greatly troubled by the very broad implications of this decision. Will it allow, for example, that a church may defeat an action for back pay for services rendered by a priest merely by asserting that its doctrine prohibits it from acknowledging such debts? As I believe that the present controversy involves property rights only and does not call for a resolution of any ecclesiastical or theological dispute, I would hold that the trial court does have jurisdiction to entertain the action. Accord Gervin v. Reddick, 246 Ga. 56 (2) (268 SE2d 657) (1980); Hickman v. Booker, 231 Ga. 129 (1) (200 SE2d 279) (1973). Compare Monahan v. Sims, 163 Ga. App. 354 (294 SE2d 548) (1982); Serbian Orthodox Diocese v. Milivojevich, 426 U. S. 696 (96 SC 2372, 49 LE2d 151) (1976).

2. By the language of the manual of directives furnished to the appellant at the inception of his employment, the diocese clearly manifested its belief that the appellant was contractually bound to a minimum three-year term of employment. Compare Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876 (2) (354 SE2d 204) (1987); Burgess v. Decatur Fed. Savings &c. Assn., 178 Ga. App. 787 (345 SE2d 45) (1986); Miles v. Bibb Co., 177 Ga. App. 364 (339 SE2d 316) (1985). I would accordingly hold that the trial court erred in denying the appellant’s motion for partial summary judgment on the issue of whether such a contract existed; and I would reverse the grant of summary judgment to the appellee, leaving for adjudication in the trial court the issue of whether a breach of contract occurred or whether the appellant’s employment was properly terminated for cause.

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

       “Spiritual charge; care of souls; the office of a parish priest or of a curate; hence, that which is committed to the charge of a parish priest or of a curate; a curacy.” Webster’s New Intl. Dictionary, 2nd ed., Unabridged.


author: Pope, Judge. Deen, Presiding Judge, McMurray, Presiding Judge,

text:
    77524. 77525.
    BECK v. PAIDEIA SCHOOL, INC. CARMICHAEL v. PAIDEIA SCHOOL, INC.
    (381 SE2d 132)
   Pope, Judge.

Appellants were injured when their cars collided on the street outside appellee Paideia School, Inc. In their actions against appellee, appellants allege that the collision was caused by the negligence of Officer C. L. Scott, an off-duty Atlanta policeman hired by appellee to provide traffic control for a school festival. Appellants contend that appellee is liable to them upon the theory of respondeat superior because Officer Scott was acting as a servánt of the appellee school. In addition, appellants allege that appellee was directly negligent in failing to hire sufficient officers to handle traffic, in failing to notify authorities of a malfunctioning traffic light and in failing to properly formulate a proper plan of traffic control. The trial court held that Officer Scott was an independent contractor, and that the school had no duty to appellants regarding the alleged direct acts of negligence and granted summary judgment to the appellee.

1. Appellee, through Roberta Brecher, a parent volunteer, contacted the Atlanta police department to request off-duty police to help direct traffic for the festival from 9:30 a.m. until the festival closed. Officer Scott and two others were sent by their sergeant. The officers wore their Atlanta police uniforms and drove police motorcycles. The officers were paid $15 an hour by the school. Officer Scott arrived first. Brecher told him the three areas the school wanted covered. When the others arrived, Scott told them where they needed to be. During the course of the day, the officers changed positions as they saw fit. In the afternoon, Brecher asked Scott to have someone cover traffic at the Fairview-South Ponce de Leon intersection because many people were leaving the festival that way. Officer Scott elected to go there himself. It was while Scott was directing traffic there that appellant Carmichael, believing he had been instructed to do so by Officer Scott, drove onto Ponce de Leon and was hit by the car driven by appellant Beck.

“ ‘[W]hether the relationship of the parties under the contract for performance is that of master and servant or that of employer and independent contractor lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract. (Cits.)’ [Cit.]” Spell v. Port City Adhesives, 183 Ga. App. 816, 817 (360 SE2d 63) (1987). In cases involving police officers working for private interests, yet another element must be considered. If at the time the alleged tort was committed the police officer was performing public duties, not at the direction of the private master, the master is not liable. Pounds v. Central of Ga. R., 142 Ga. 415 (83 SE 96) (1914).

We find that the trial court correctly held that Officer Scott was acting here as an independent contractor. The case of Glenmar Cinestate, Inc. v. Farrell, 223 Va. 728 (292 SE2d 366) (1982), cited by appellee, involved a situation similar to that presented here. In Glenmar, a drive-in theatre had a standing arrangement with the sheriff’s department to provide two officers each night to patrol the drive-in and direct traffic. For this, each officer received $25. While one of the officers was standing in the public highway directing traffic out of the drive-in, one of the cars he directed onto the road was hit broadside by an oncoming car. The Supreme Court of Virginia held that the officer was an independent contractor for two reasons. First, the drive-in did not have the right to control the method the officer used to direct traffic. Second, the officer was in the performance of a public duty, the enforcement of the general laws by directing traffic.

We find the court’s reasoning in Glenmar, supra, persuasive. Georgia, like Virginia, has long had the policy that an employer of a special policeman incurs no vicarious liability as a result of acts performed by the policeman in furtherance of his public duties. Pounds, supra; see also Exposition Cotton Mills v. Sanders, 143 Ga. 593, 595 (85 SE 747) (1915). As the court was in Glenmar, we also are persuaded that directing traffic upon a public thoroughfare is a police function. The acts of a policeman thus directing traffic are not imputable to his private employer.

The dissent distinguishes Glenmar on the basis that the employer there did not know when the officers arrived and did not instruct them. This ignores the evidence in Glenmar that no directions were given because the drive-in had used the sheriff’s deputies for several years and a routine had developed. The officers were not given instructions because, through frequent repetition, they knew what was expected of them. Glenmar at 368. There is no evidence that the drive-in had more than one exit onto the highway; therefore, to say that the officer in Glenmar also selected the proper location for traffic control is to say no more than he went to the only spot he could go to do the job.

Appellants argue vigorously and well that a jury issue remains because Officer Scott in his deposition stated that he considered himself an employee of appellee. They point to the line of cases, illustrated by Augusta Roofing &c. Works v. Clemmons, 97 Ga. App. 576 (103 SE2d 583) (1958), that stands for the proposition that agency may be proved by the agent’s sworn testimony. We find no jury issue because the record is clear that there is no evidence that appellee controlled Scott in his traffic direction other than indicating where it wanted officers to be, and there is nothing in Officer Scott’s deposition to the contrary. The dissent states that the record shows evidence that appellee told Scott “What to do, how to do it and where to go.” The only evidence of record is that Brecher, the volunteer parent who contacted the police department initially, indicated to the department that she needed help with traffic from 9:30 a.m. until the festival closed. When Scott arrived, Brecher showed him the areas to cover. During the day, without direction from appellee or its agents, the officers moved as they felt the traffic flow permitted. In the afternoon, Brecher requested an officer for the Fairview location. This is hardly the encompassing direction or control the dissent seems to envision. This is no different from the situation in which one points out to the craftsman the areas one wishes to have repaired. Cf. Mason v. Gracey, 189 Ga. App. 150 (375 SE2d 283) (1988).

2. Likewise, there are no jury issues presented on appellants’ direct theories of negligence. All of the theories alleged are based upon appellee having some control over traffic upon a public street. We agree with the trial court that appellee had no such duty.

Judgments affirmed.

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

Deen, Presiding Judge,

dissenting.

I agree completely with Presiding Judge McMurray’s opinion that under the present state of the facts, Paideia is not entitled to escape this problem and possibility of liability. The majority opinion correctly states the general rule for determining whether a master/ servant or an employer/independent contractor relationship exists, but it fails to apply that rule to the facts of this case. As noted by that other dissent, there was evidence that when the moonlighting police officer arrived at the school, Paideia’s agent told him “what to do, how to do it, and where to do it.” That is sufficient evidence of the employer’s assumption of control as to create an issue of fact precluding the grant of summary judgment for Paideia.

I am unpersuaded by the majority opinion’s emphasis that the officer’s duties in this case constituted a police function that prevented imputing the officer’s acts to his private employer. In certain situations, even where the officer’s duties are those of a police nature, the private employer may be responsible. See Massachusetts Cotton Mills v. Hawkins, 164 Ga. 594 (1) (139 SE 52) (1927); Pounds v. Central of Ga. R. Co., 142 Ga. 415 (83 SE 96) (1914). The majority opinion overlooks the reality that, notwithstanding the police nature of the duties assigned to the officer by the private employer, the private employer’s primary purpose is to obtain a private benefit. The price of that private benefit ought to be responsibility for the acts of those officers, at least in situations where the employer assumes some degree of control over the exercise of those duties.

“It has been generally held to be a question of fact for determination by a jury, whether, when a special officer performed the acts for which the master is sought to be held liable, he was acting in his capacity as servant, or in his capacity as a public officer.” Massachusetts Cotton Mills, supra at 596. This is just such a case.

“Preparation for the duties of citizenship is one of the three objectives of any sound system of public schooling in our society. Preparation for earning a living is another, and the third is preparation for discharging everyone’s moral obligation to lead a good life and make as much of one’s self as possible. Our present system of compulsory basic schooling, kindergarten through the twelfth grade, does not serve any of these objectives well. The reasons why this is so and what must be done to remedy these grave deficiencies have been set forth in a series of books that have initiated much-needed reforms in our school system. The books are: The Paideia Proposal, Paideia Problems and Possibilities, and The Paideia Program.” Adler, We Hold These Truths (New York: Macmillan Pub. Co. 1987), p. 20 (separate paragraphs and footnote combined).

Some may consider it to be ironic that the school system specifically designed to prepare students for the duties of citizenship and discharging moral obligation seeks, in Adler’s words, to “do whatever is really good for us and nothing else” and to deny any responsibility for the consequences of its acts. (Adler, Ten Philosophical Mistakes, New York: Macmillan Pub. Co. 1985, p. 125.) However, this is not a completely fair projection. Paideia’s present position points to its non-control over the officer’s duties, in advocating the latter’s designation as an independent agent. It is a close subjective call; therefore, this is the reason I would submit the question to a jury.

McMurray, Presiding Judge,

dissenting.

“Every person is liable for torts committed by his servant, by his command, or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary. [OCGA § 51-2-2.] It matters not that the employee is a public officer, and is employed because he is such officer. If the officer is employed by the master to perform certain acts for the master, and if in the prosecution and within the scope of the master’s business such officer commits a tort, the master is liable. . . .” Massachusetts Cotton Mills v. Hawkins, 164 Ga. 594, 596 (1), 597 (139 SE 52).

To determine the capacity in which the police officer was acting in the case sub judice, the following test, also quoted in the majority opinion, must be applied: “ ‘[W]hether the relationship of the parties under the contract for performance is that of master and servant or that of employer and independent contractor lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity with the contract. (Cits.)’ [Cit.]” Spell v. Port City Adhesives, 183 Ga. App. 816, 817 (1) (360 SE2d 63). In the case sub judice, there is ample evidence that appellee assumed control over the time, manner and method of executing the work done by the police officer. The officer testified that he arrived at the school at the time required by appellee and that he remained there until told by appellee’s agent that he could go. Appellee’s agent told the officer “what to do, how to do it, and where to do it.” No clearer testimony could be given in support of the proposition that the officer was a servant of appellee. The evidence was sufficient to preclude summary judgment in favor of appellee. Therefore, I respectfully dissent.

In Glenmar Cinestate v. Farrell, 223 Va. 728 (292 SE2d 366), the officer was given no directions by the purported employer and, indeed, the officer testified he would have ignored any attempt by the purported employer to give him instructions regarding his method of directing traffic. The office also determined the proper location for traffic control. The purported employer did not set the hours of employment or even know the time the officer was to arrive. The facts in that case, could not have authorized a finding that a master-servant relationship existed under any state of the law.

The majority has been misguided by the Virginia case of Glenmar Cinestate v. Farrell, supra. This case should be distinguished on both the facts and the law.

The decision in Glenmar Cinestate v. Farrell, supra, is predicated upon a Virginia test which makes “the right to control,” the sole determinate of whether a relationship is that of master and servant or of employer and independent contractor. The fact of actual control is not a factor in the Virginia test. See Glenmar Cinestate v. Farrell, supra at 292 SE2d 366, 369. Under Virginia law the private sector employer’s lack of the right to control the method used by the officer in directing traffic compels a conclusion that the officer is an independent contractor and thus results in Virginia cases such as that relied upon by the majority.

I agree with the majority that directing traffic upon a public thoroughfare is a police function and that a private sector employer of an officer has no right to control the method the officer uses to accomplish this task. However, under the above-quoted Georgia test a question remains as to whether the private sector employer has actually assumed control of the time, manner or method by which the officer directs traffic. As there is evidence in the case sub judice that appellee actually assumed such control of the officer’s work, there is evidence, under Georgia law, of a master and servant relationship between appellee and the officer.

Decided March 17, 1989

Rehearing denied March 31, 1989

Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellant (case no. 77524).

Norton, Pennington, Goetz, Cronkrite & Prior, Charles M. Goetz, Benning M. Grice, Jr., Warren C. Grice, for appellant (case no. 77525).

Saveli & Williams, William E. Turnipseed, for appellee.

I must acknowledge that there is authority under Georgia law for utilizing the same test applied by the Virginia court. See Atlanta Braves v. Leslie, 190 Ga. App. 49 (2) (378 SE2d 133). Other cases have utilized the test quoted both by the majority and this dissent. See for example White Repair &c. Co. v. Oviedo, 188 Ga. App. 672, 673 (1) (373 SE2d 784). In my view, the better rule of law is stated in those cases which recognize that an employer often exercises actual control over an employee which exceeds any contractual or legal “right” to control and that when he does so a master-servant relationship exists. Therefore, I would utilize the broader test most recently stated in White Repair &c. Co. v. Oviedo, supra.

Additionally, I should note that in my view the Georgia cases including those cited by the majority, such as Pounds v. Central of Ga. R. Co., 142 Ga. 415 (83 SE 96), and Exposition Cotton Mills v. Sanders, 143 Ga. 593, 595 (85 SE 747), provide no support for the grant of summary judgment to appellee. Pounds is distinguishable on the facts since the officer accused of a wrongful killing was not performing any service for, or by direction of the defendant, at the time of the homicide. Exposition Cotton Mills v. Sanders, supra, if relevant to the case sub judice, supports this dissent rather than the majority opinion.

In my view, the superior court erred in granting summary judgment in favor of appellee and against appellants. I would reverse.

I am authorized to state that Presiding Judge Deen joins in this dissent.