# Campbell v. Carroll > Court of Appeals of Georgia · February 20, 1970 · 121 Ga. App. 497 URL: https://www.frixlaw.com/law-library/cases/9851041 ## Case - **Full name:** CAMPBELL v. CARROLL Et Al.; And Vice Versa - **Court:** Court of Appeals of Georgia - **Decided:** February 20, 1970 - **Citations:** 121 Ga. App. 497; 174 S.E.2d 375; 1970 Ga. App. LEXIS 1265 - **Precedential status:** Published - **Opinion:** Dissent by Evans - **Judges:** Quillian, Bell, Hall, Eberhardt, Pannell, Deen, Whitman, Jordan, Evans - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9851041 ## Opinion text Evans, Judge, dissenting in part. I dissent from the judgment of affirmance and Headnote 1 and the corresponding division of the opinion. I concur in the results as to the cross appeal, but I cannot agree to the ruling made as to Count 1 of the petition. The gist of the count is a complaint against certain individuals alleged to have conspired together to cause the discharge of plaintiff from his employment by a corporation of which said *503 defendants were directors. Paragraphs 8 through 12 of Count 1 allege the details respecting the conspiracy between the defendants. Of course, in a motion for-summary judgment by defendants, the question is whether defendants have carried the burden of piercing the allegations of plaintiff’s complaint. Plaintiff has no burden to submit any evidence until defendants have first carried the above burden of piercing such allegations. As to conspiracy, the appellate courts of Georgia have time and again held that it may be proven by circumstantial evidence. The conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirator, and other circumstances. It is not necessary to prove an express compact or agreement among the- parties thereto. It need not appear that the parties have ever met together, either formally or informally, and entered into any explicit formal agreement; it is not necessary that it appear either by words or writing that the defendants formulated their unlawful objects. It is sufficient that two or more persons in any manner, either positively or tacitly, come to a mutual understanding that they will accomplish the unlawful design. Cook v. Robinson, 216 Ga. 328, 329 ( 116 SE2d 742 ); Nottingham v. Wrigley, 221 Ga. 386, 388 , supra. A jury would be authorized to conclude that a conspiracy existed by proof of acts and conduct of the parties, and from the nature of the acts done, the relation of the parties and the interests of the alleged conspirators and other circumstances. Huckaby v. Griffin Hosiery Mills, 205 Ga. 88, 91 ( 52 SE2d 585 ). Where two or more persons are charged with conspiring to defraud another, the conspiracy may be shown by facts evincing a current knowledge and approbation of each other’s acts, and by proof of the separate acts of the several persons concentrating in the same purpose. Holbert v. Allred, 24 Ga. App. 727 (2) ( 102 SE 192 ). A conspiracy to do a fraudulent act is frequently not susceptible of direct proof, but may be inferred from acts, declarations and conduct of the co-conspirators. Archer v. Gwinnett County, 110 Ga. App. 442 (2) ( 138 SE2d 895 ). Under the foregoing authorities, as applied to the allegations of the complaint in Count 1, the allegations as to conspiracy *504 were ample and sufficient. Were these allegations pierced by evidence of the defendants? The record in this case compels an answer in the negative. Defendants attached an affidavit of C. R. May to its motion for summary judgment, who deposed that he was a director of the corporation, employer of plaintiff,, and voted for his discharge; and that “he has always acted as an individual person and made his own decisions based upon his own judgment . . . and that in voting to discharge plaintiff he “acted independently of T. H. Carroll and William M. Barnes; he was not even requested by T. H. Carroll or William M. Barnes to vote as a director for Mr. Campbell’s discharge.” This is not sufficient to pierce the allegations of the complaint. To swear that he acted as an individual and made his own decisions, and that he was not requested by the joint defendants to vote for plaintiff’s discharge is not enough. Persons usually act as individuals and make their own decisions, but what brings those decisions about? Simply because he was not requested by the defendants to vote for plaintiff’s discharge does not meet the issue, because the defendants could have persuaded him in various ways without making a request for his vote and support of the motion to discharge. A party opposing a motion for summary judgment must be given the benefit of all reasonable doubts in determining whether a genuine issue exists, and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence. The burden is on the moving party to establish the lack of a genuine issue of fact and the right to a summary judgment, and any doubt as to the existence of such issue must be resolved against the movant. See Holland v. Sanfax Corp., 106 Ga. App. 1, 4 ( 126 SE2d 442 ). Simply because an employer may have an absolute right to terminate the employment of its agent at will does not absolve defendants who conspire to cause the employer to make a decision to exercise that right of termination earlier than he would have done without such interference. See Salter v. Howard, 43 Ga. 601, 604 ; Ott v. Gandy, 66 Ga. App. 684, 688 ( 19 SE2d 180 ); Southern R. Co., v. Chambers, 126 Ga. 404 (1-3) ( 55 SE 37 , 7 LRA (NS) 926); Bromley v. Bromley, 106 Ga. App. *505 606, 613 ( 127 SE2d 836 ); King v. Schaeffer, 115 Ga. App. 344 (1), supra; Studdard v. Evans, 108 Ga. App. 819, 823 ( 135 SE2d 60 ). Many of the facets of the case at bar were also present in the case of Wrigley v. Nottingham, 111 Ga. App. 404 , supra, which involved an action against several defendants for maliciously procuring the breach of an oral contract inuring to the plaintiff. While it is true that the Wrigley case was reversed by the Supreme Court (Nottingham v. Wrigley, 221 Ga. 386 , supra), the reversal strengthened the plaintiff’s case in that the only thing decided by the Supreme Court was that the Court •of Appeals erred in holding that one of the joint defendants, •Cox, was entitled to judgment notwithstanding the verdict, and thus placing him back in the case with the other joint defendants, the Court of Appeals having previously held a good and proper cause of action was set forth against such other defendants. See Wrigley v. Nottingham, 112 Ga. App. 622 ( 145 SE2d 829 ). Thus the posture of the case when it left the Supreme Court of Georgia was that a good and proper cause of action was alleged against all joint defendants. Another case we cite in support of this dissent is Schaeffer v. King, 223 Ga. 468, supra, which affirmed with direction an earlier appearance of this case in the Court of Appeals (King v. Schaeffer, 115 Ga. App. 344 , supra). It is true that an employer who exercises an absolute right to ■discharge has often been held not liable for such exercise, but this immunity does not extend to others who cause him to reach his decision to terminate earlier than he would have terminated it otherwise, such as, joint defendants who are directors of a •corporation, which corporation effects the discharge. The petitioner should not be deprived of the opportunity to have a trial since there remain genuine issues as to material facts. The movant failed to carry the burden of showing that there was nothing to be tried and that he was entitled to judgment as a matter of law. I would reverse the judgment of the lower court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851041. Public record. Not legal advice.