In all cases, a person who maliciously procures an injury to be done to another, whether an actionable wrong or a breach of contract, is a joint wrongdoer and may be subject to an action either alone or jointly with the person who actually committed the injury.
(Orig. Code 1863, § 2954; Code 1868, § 2961; Code 1873, § 3012; Code 1882, § 3012; Civil Code 1895, § 3873; Civil Code 1910, § 4469; Code 1933, § 105-1207.)
Cross references.- Cause of action for interference with enjoyment of property, § 51-9-1.
Law reviews.- For article, "The Business Tort - Interference with Contractual Relationships or Business Expectations," see 19 Ga. St. B. J. 66 (1982). For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003). For comment discussing remedy in tort for malicious breach of contract in furtherance of conspiracy, in light of Cannister Can Co. v. National Can Corp., 96 F. Supp. 273 (D.C. Del. 1951), see 14 Ga. B. J. 269 (1951).
JUDICIAL DECISIONSANALYSIS
General Consideration
Basis of joint liability.
- To render one person liable in trespass for the acts of others, it must appear either that they acted in concert, or that the act of the party sought to be charged ordinarily and naturally produced the acts of the others. Brooks v. Ashburn, 9 Ga. 297 (1851); Burns v. Horkan, 126 Ga. 161, 54 S.E. 946 (1906); Burch v. King, 14 Ga. App. 153, 80 S.E. 664 (1914); Ketchum v. Price, 31 Ga. App. 49, 119 S.E. 442 (1923).
Joint action may be maintained against party who did act and one who directed or assisted in its commission. Belt v. Western Union Tel. Co., 63 Ga. App. 469, 11 S.E.2d 509 (1940).
LLC formed by individuals alleged to have breached employment covenants.
- An interlocutory injunction was properly entered against a limited liability company (LLC) formed by two individuals who left a beauty salon with which they had signed covenants not to compete and not to solicit customers and employees; the LLC was a proper party to the suit given the evidence that it had maliciously helped to bring about the two individuals' alleged breach of the covenants. Bijou Salon & Spa, LLC v. Kensington Enters., 283 Ga. App. 857, 643 S.E.2d 531 (2007).
One who procures or assists in commission of trespass is liable with actual perpetrator for damages which the owner of the property sustains thereby. Belt v. Western Union Tel. Co., 63 Ga. App. 469, 11 S.E.2d 509 (1940); Melton v. Helms, 83 Ga. App. 71, 62 S.E.2d 663 (1950); Kitchens v. Jefferson County, 85 Ga. App. 902, 70 S.E.2d 527 (1952); Irvin v. Oliver, 223 Ga. 193, 154 S.E.2d 217 (1967).
Term "malicious," used in this connection, is to be given liberal meaning. The act is malicious when the thing done is with the knowledge of the plaintiff's rights, and with the intent to interfere therewith. It is a wanton interference with another's contractual rights. Wrigley v. Nottingham, 111 Ga. App. 404, 141 S.E.2d 859, rev'd on other grounds, 221 Ga. 386, 144 S.E.2d 749 (1965); Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245, 166 S.E.2d 744 (1969).
Term "maliciously" means any unauthorized interference without legal justification or excuse. Personal ill will or animosity is not essential. Luke v. DuPree, 158 Ga. 590, 124 S.E. 13 (1924); Rood v. Newman, 74 Ga. App. 686, 41 S.E.2d 183, later appeal, 75 Ga. App. 621, 44 S.E.2d 171 (1947); Baker v. AMOCO, 90 Ga. App. 662, 83 S.E.2d 826 (1954); Nager v. Lad'n Dad Slacks, 148 Ga. App. 401, 251 S.E.2d 330 (1978).
Word "procure" as here used does not require lending of assistance in actual perpetration of wrong "done by another"; but if one, acting only through advice, counsel, persuasion, or command, succeeds in procuring any person to commit an actionable wrong, the procurer becomes liable for the injury, either singly or jointly with the actual perpetrator and this is true, irrespective of whether there exists between the two joint wrongdoers any such relation as master and servant, or other relation giving to the one authority over the other. Lambert v. Cook, 25 Ga. App. 712, 104 S.E. 509 (1920); Goddard v. Selman, 56 Ga. App. 116, 192 S.E. 257 (1937), aff'd, 186 Ga. 103, 197 S.E. 250 (1938); Melton v. Helms, 83 Ga. App. 71, 62 S.E.2d 663 (1950).
Procurer of actionable wrong liable.
- One who procures or assists in the commission of an actionable wrong is equally liable with the actual perpetrator for the damages. The word procure, as used in O.C.G.A. § 51-12-30, does not require the lending of assistance in the actual perpetration of the wrong done by another; but if one, acting only through advice, counsel, persuasion, or command, succeeds in procuring any person to commit an actionable wrong, the procurer becomes liable for the injury, either singly or jointly, with the actual perpetrator. White v. Shamrock Bldg. Sys., 294 Ga. App. 340, 669 S.E.2d 168 (2008).
Procurement and ratification distinguished.
- It is one thing, to maliciously procure an injury to another, and an entirely different thing to indicate approval of what has already happened. Brigman v. Brenner, 206 Ga. 222, 56 S.E.2d 471 (1949).
Attorney liable for attachment of wrong property.
- The wrongful attachment of property belonging to one person, as that of another's, caused by an attorney, will render both the attorney and the client liable as trespassers. Williams v. Inman, 1 Ga. App. 321, 57 S.E. 1009 (1907).
Apportionment statute does not apply to tortfeasors acting in concert.
- O.C.G.A. § 51-12-33, Georgia's apportionment statute, applied to tort claims for damage to tangible and intangible property and, therefore, applied to purely pecuniary losses. However, § 51-12-33 did not abrogate Georgia's common-law rule imposing joint and several liability on tortfeasors who acted in concert; in such cases, fault was not divisible and could not be apportioned. FDIC v. Loudermilk, 305 Ga. 558, 826 S.E.2d 116 (2019).
Interference with economic relationships.
- The statute does not establish a cause of action for interference with economic relationships. Project Control Servs., Inc. v. Reynolds, 247 Ga. App. 889, 545 S.E.2d 593 (2001).
Cited in Funk v. Baldwin, 80 Ga. App. 177, 55 S.E.2d 733 (1949); Berger & Co. v. Gray, 97 Ga. App. 230, 102 S.E.2d 925 (1958); Rhine v. Sanders, 100 Ga. App. 68, 110 S.E.2d 128 (1959); Bromley v. Bromley, 106 Ga. App. 606, 127 S.E.2d 836 (1962); Studdard v. Evans, 108 Ga. App. 819, 135 S.E.2d 60 (1964); Nottingham v. Wrigley, 221 Ga. 386, 144 S.E.2d 749 (1965); Wilkinson v. Trust Co. of Ga. Assocs., 128 Ga. App. 473, 197 S.E.2d 146 (1973); City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 200 S.E.2d 262 (1973); Lowe v. Royal Crown Cola Co., 132 Ga. App. 37, 207 S.E.2d 620 (1974); Brinkley & West, Inc. v. Foremost Ins. Co., 499 F.2d 928 (5th Cir. 1974); Fratelli Gardino v. Caribbean Lumber Co., 447 F. Supp. 1337 (S.D. Ga. 1978); Vest v. Waring, 565 F. Supp. 674 (N.D. Ga. 1983); Bendiburg v. Dempsey, 707 F. Supp. 1318 (N.D. Ga. 1989); Hays v. Paul, Hastings, Janofsky & Walker LLP, F. Supp. 2d (N.D. Ga. Sept. 14, 2006).
Corporate Environment
Parties to contract have property right therein and third parties have no right maliciously to interfere with this right; "maliciously" meaning "any unauthorized interference or any interference without legal justification or excuse." Wometco Theatres, Inc. v. United Artists Corp., 53 Ga. App. 509, 186 S.E. 572 (1935).
Parties to a contract have a property right therein, which a third person has no more right maliciously to deprive them of, or injure them in, than one would have to injure their property. Such an injury amounts to a tort for which the injured party may seek compensation by an action in tort for damages. Baker v. AMOCO, 90 Ga. App. 662, 83 S.E.2d 826 (1954); Nager v. Lad'n Dad Slacks, 148 Ga. App. 401, 251 S.E.2d 330 (1978).
It is actionable to maliciously or without justifiable cause induce one to break one's contract with another to the damage of the latter. Wometco Theatres, Inc. v. United Artists Corp., 53 Ga. App. 509, 186 S.E. 572 (1935); Baker v. AMOCO, 90 Ga. App. 662, 83 S.E.2d 826 (1954); Nager v. Lad'n Dad Slacks, 148 Ga. App. 401, 251 S.E.2d 330 (1978).
Tort liability for contract breach.
- When a person not a party to a contract procures, without justification, its breach, one may be liable thereof in tort. Wometco Theatres, Inc. v. United Artists Corp., 53 Ga. App. 509, 186 S.E. 572 (1935).
The breach of a contract is unlawful. It is unlawful for others, without lawful excuse, to induce the maker of a contract to break it, or to aid one in its breach; and for the maker and others to combine to break it is a conspiracy, which entitles the other party to the contract to an action against the conspirators for any damage which one may sustain. Baker v. AMOCO, 90 Ga. App. 662, 83 S.E.2d 826 (1954).
If persuasion to break a contract is used for indirect purpose of injuring plaintiff, or of benefitting the defendant, it is a malicious act, and a wrongful act, and an actionable act if injury ensures from it. Wrigley v. Nottingham, 111 Ga. App. 404, 141 S.E.2d 859, rev'd on other grounds, 221 Ga. 386, 144 S.E.2d 749 (1965); Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245, 166 S.E.2d 744 (1969).
Mere failure of party to contract to carry out its terms will not give rise to cause of action against it by third party who has contracted with the opposite party to such a contract, although in breaching the contract such person may be charged with notice that the opposite party will not be able to perform its contract with such third party. Wometco Theatres, Inc. v. United Artists Corp., 53 Ga. App. 509, 186 S.E. 572 (1935).
This section is not confined to contracts of employment alone, but extends to all contracts. Baker v. AMOCO, 90 Ga. App. 662, 83 S.E.2d 826 (1954).
Tortious interference with contract.
- In an action by a real estate agent against a building owner for tortious interference with the agent's employment contract with a real estate broker, summary judgment in favor of the owner was proper because the owner was not a third-party stranger to the contract at issue and the business relationship giving rise to and underpinning the contract. Atlanta Mkt. Ctr. Mgt. Co. v. McLane, 269 Ga. 604, 503 S.E.2d 278 (1998), reversing McLane v. Atlanta Mkt. Ctr. Mgt. Co., 225 Ga. App. 818, 486 S.E.2d 30 (1997).
Under this section one who wrongfully procures discharge even of employee at will may be liable for damages if one acts maliciously and without cause. Elliott v. Delta Air Lines, 116 Ga. App. 36, 156 S.E.2d 656 (1967).
Malicious and intentional interference by a third party with employment relationships between others is tortious, even if the employment is terminable at will. Nager v. Lad'n Dad Slacks, 148 Ga. App. 401, 251 S.E.2d 330 (1978).
In consideration of willful and malicious procurement of breach of employment contract, there are two categories of cases: (1) when there is a definite term of employment and the corporation or employer by discharging an employee would be liable for the breach of the employment contract; (2) when, even though the contract is terminable at will, a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage one, maliciously and unlawfully persuades the employer to breach the contract with the employee. McElroy v. Wilson, 143 Ga. App. 893, 240 S.E.2d 155 (1977), cert. denied, 435 U.S. 931, 98 S. Ct. 1506, 55 L. Ed. 2d 528 (1978).
Attracting large percentage of personnel away from plaintiff may be actionable.
- Destruction or substantial injury by means of attracting away all or a large percentage of personnel upon whom the plaintiff must depend to function, especially if other circumstances such as the use of confidential information or misrepresentations as to the plaintiff's financial solvency are involved, is compensable, under this section, with lack of actual malice going merely to mitigation of damages. Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245, 166 S.E.2d 744 (1969).
When an at-will relationship is not technically one of master and servant but of a manufacturer or distributor and sales representatives who are in fact independent contractors, interference with the employment is wrongful and malicious, if, by persuasion, practically the entire sales force of the plaintiff, upon which it depends for its livelihood, leaves the plaintiff en masse and joins a competing firm, a cause of action may exist under this section. Architectural Mfg. Co. v. Airotec, Inc., 119 Ga. App. 245, 166 S.E.2d 744 (1969).
Tort of interference with contractual relations does not lie when privilege exists, which exempts such competition for employees from that claim. Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 242 S.E.2d 135 (1978).
This section has no application in instances in which persons who allegedly procured employee's discharge had authority to discharge the employee. Rhodes v. Levitz Furn. Co., 136 Ga. App. 514, 221 S.E.2d 687 (1975).
Liability for discharge of employee.
- An employment contract which is terminable at will gives the directors as alter egos of the corporation an absolute right to discharge the employee and no liability exists under this section for the procurement of the breach regardless of the motive. Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970).
Interference with fiduciary relationship between corporation and officer.
- A claim against a third party for tortious interference with the fiduciary relationship between a corporation and its officer is one for tortious interference with contractual rights, and states a claim under Georgia law sufficient to withstand summary judgment. Rome Indus., Inc. v. Jonsson, 202 Ga. App. 682, 415 S.E.2d 651, cert. denied, 202 Ga. App. 903, 415 S.E.2d 651 (1992).
Corporate officers may also be personally liable.
- When the petition of a plaintiff against a nonresident corporation and a resident officer thereof, sets out a cause of action against both defendants, they are properly joined, and the action is not separable, since the fact that the individual resident defendant is an officer of the corporation does not exclude the individual from personal liability. Georgia-Carolina Brick & Tile Co. v. Merry Bros. Brick & Tile Co., 75 Ga. App. 637, 44 S.E.2d 63 (1947).
Corporate liability for violations by employed notaries public.
- In response to certified questions from a federal action, and under the plain and unambiguous language of Georgia's notary statute, a corporation employing notaries public was not subject directly to O.C.G.A. § 45-17-11, and the corporation was not subject to vicarious liability for a violation thereof, although the corporation could still be held liable if the corporation procured or otherwise qualified as a party to or participant in such a violation by a notary pursuant to O.C.G.A. § 51-12-30; the question arose with respect to a mortgagee's charges that included substantial notary fees with respect to a refinancing transaction. Anthony v. Am. Gen. Fin. Servs., 287 Ga. 448, 697 S.E.2d 166 (2010).
Liability of lessee of convict detained after expiration of sentence.
- A lessee of a convict who is detained after the expiration of one's sentence is a joint wrongdoer, if one knows these facts. Chattahoochee Brick Co. v. Goings, 135 Ga. 529, 69 S.E. 865, 1912A Ann. Cas. 263 (1910).
One who is sued in one's personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for one's tortious misconduct in damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action. Wrigley v. Nottingham, 111 Ga. App. 404, 141 S.E.2d 859, rev'd on other grounds, 221 Ga. 386, 144 S.E.2d 749 (1965).
Conspiracy
Conspiracy defined.
- A conspiracy, upon which a civil action may be based is a combination between two or more persons, either to commit a tortious act, or do some lawful act by methods constituting a tort. Rood v. Newman, 75 Ga. App. 621, 44 S.E.2d 171 (1947).
Damage is gist of action in suit for conspiracy.
- When civil liability for conspiracy is sought to be imposed, the conspiracy itself furnishes no cause of action; the gist of the action is the damage and not the conspiracy. Rood v. Newman, 74 Ga. App. 686, 41 S.E.2d 183, later appeal, 75 Ga. App. 621, 44 S.E.2d 171 (1947).
The gist of the action for malicious procurement of a breach of contract is not the conspiracy alleged, but the tort committed against the plaintiff and the damage thereby done wrongfully. McElroy v. Wilson, 143 Ga. App. 893, 240 S.E.2d 155 (1977), cert. denied, 435 U.S. 931, 98 S. Ct. 1506, 55 L. Ed. 2d 528 (1978).
Allegation of conspiracy to effect what one has legal right to accomplish is not actionable and there are no grounds to complain of the defendants' actions, as directors, in voting for the plaintiff's discharge employed on a contract which is terminated at will. Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970).
Evidence sufficient to establish civil conspiracy.
- Evidence that an appellant, with the support of the parties' lessor, began operating a business out of the lessor's store that competed with a business jointly owned by the appellant and the appellee, which also operated out of the store, was sufficient to establish that the appellant and lessor committed a civil conspiracy against the appellee in violation of O.C.G.A. § 51-12-30. Asgharneya v. Hadavi, 298 Ga. App. 693, 680 S.E.2d 866 (2009), overruled on other grounds, Jordan v. Moses, 291 Ga. 39, 727 S.E.2d 460 (2012).
Mere fact that conspiracy has been alleged does not require submission of question to jury. McCulley v. Dunson, 149 Ga. App. 551, 254 S.E.2d 877 (1979).
Not necessary to join all parties to conspiracy as defendants.
- In action in tort against two defendants for maliciously conspiring to induce another to break a contract with the plaintiff to the plaintiff's damage, it is unnecessary to join with the named defendants other parties who may have participated in the conspiracy. Rood v. Newman, 74 Ga. App. 686, 41 S.E.2d 183, later appeal, 75 Ga. App. 621, 44 S.E.2d 171 (1947).
Pleadings and Practice
Joint tort-feasors may be sued separately, each being severally liable. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941).
In action for malicious prosecution injured party may recover severally or jointly against any or all tort-feasors conspiring to prosecute one maliciously and without probable cause. Price v. Cobb, 63 Ga. App. 694, 11 S.E.2d 822 (1940).
Joint tortfeasors on notice.
- Because a corporation's complaint put the defendants on sufficient notice that the defendants were joint tortfeasors who acted in concert with the corporation's president in a breach of fiduciary duty, the corporation stated a viable claim under O.C.G.A. § 51-12-30; thus, summary judgment against the corporation was reversed. Insight Tech., Inc. v. FreightCheck, LLC, 280 Ga. App. 19, 633 S.E.2d 373 (2006).
Absent allegations that the defendant hospital officials acted maliciously or with such recklessness as denoted a corrupt or malevolent disposition, or that the officials hired a substance abuse counselor with the intent to injure the plaintiff patients, the officials were not joint tortfeasors under O.C.G.A. § 51-12-30 along with the counselor with regard to the counselor's alleged sexual harassment of the patients. Doe v. Fulton-DeKalb Hosp. Auth., 628 F.3d 1325 (11th Cir. 2010).
Procurement must be clearly pled and proved.
- A clear case must be shown that a wife procured her husband to commit an assault and battery on the person of another before she will be held liable for such tort of her husband. Brigman v. Brenner, 206 Ga. 222, 56 S.E.2d 471 (1949).
Petition, the allegations of which failed to show that defendant "maliciously" procured an assault upon the plaintiff by her husband, nor that she counseled or commanded the assault to be made, or aided or abetted her husband in the actual assault, was devoid of essential allegations to establish any civil liability on the part of the defendant under the law. Brigman v. Brenner, 206 Ga. 222, 56 S.E.2d 471 (1949).
Aiding and abetting fraud not recognized, but one who assists may be liable for fraud.
- While the court refused to recognize a tort of aiding and abetting fraud, a complaint by investors against a fraudster's attorney adequately set forth the elements of a fraud claim in alleging that the attorney drafted many of the transaction documents that evidenced the many phony deals that the fraudster pretended to undertake, which conveyed the false impression to the investors that their purported investments were legitimate, causing damage to the investors. Siavage v. Gandy, 350 Ga. App. 562, 829 S.E.2d 787 (2019).
RESEARCH REFERENCES
Am. Jur. 2d.
- 74 Am. Jur. 2d, Torts, § 64 et seq.
C.J.S.- 86 C.J.S., Torts, § 39 et seq.
ALR.
- Liability for procuring breach of contract, 84 A.L.R. 43; 26 A.L.R.2d 1227.
Liability for procuring breach of contract, 26 A.L.R.2d 1227.
Civil liability of one instigating or inciting an assault or assault and battery notwithstanding primary or active participant therein has been absolved of liability, 72 A.L.R.2d 1229.
Right of tortfeasor guilty of only ordinary negligence to be indemnified by one guilty of intentional wrongdoing, wanton misconduct, or gross negligence, 88 A.L.R.2d 1355.
Liability of participant in unauthorized highway race for injury to third person directly caused by other racer, 13 A.L.R.3d 431.
Liability of purchaser of real estate for interference with contract between vendor and other purchaser, 27 A.L.R.3d 1227.
Liability of purchaser of real estate for interference with contract between vendor and real estate broker, 29 A.L.R.3d 1229.
Liability of real-estate broker for interference with contract between vendor and other real-estate broker, 34 A.L.R.3d 720.
Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.
Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.