Kitchen Hardware, Ltd. v. Kuehne &Amp; Nagel, Inc., 205 Ga. App. 94, 421 S.E.2d 550 (1992)
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Judgment affirmed. Sognier, C. J., and Cooper, J., concur.
Summary
Judgment affirmed. Sognier, C. J., and Cooper, J., concur.
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Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Carroll G. Jester, Jr., for appellant.
Randy Kaas and Dana Kaas incorporated appellant Kitchen Hardware, Ltd. (hereinafter "Kitchen"), a kitchen utensil wholesaler, in the summer of 1989 and commenced operations in September. Shortly afterward, the appellee Kuehne & Nagel, Inc. (hereinafter "K & N"), an international freight forwarding business located in Europe and New York with a branch office in Atlanta, agreed to supply Kitchen with a line of credit and perform freight forwarding services.
In November, Kitchen received invoices from K & N which it disputed as containing charges that were excessive or not agreed upon. Kitchen's treasurer Dana Kaas claimed that when she questioned him, K & N's sales manager Hans Mixdorf informed her K & N would "teach [Kitchen] a lesson" for challenging the invoices. Although Mixdorf denied such a threat, on the same date he was accused of making the statement he transmitted a telefax message to K & N's Portuguese shipping affiliate Nakutranslis Transitarios (hereinafter "N. T."), reciting in pertinent part: "[Kitchen] has money problems and doesn't want to pay our transportation charges for the former shipments. Pls hold all their freight air and ocean until further advise (sic). . . ." The transmission of this message was within the scope of Mixdorf's responsibilities with K & N in regard to credit/ invoice problems.
N. T. handled the shipments of goods to Kitchen originating in Portugal from the A Metalurgica corporation (hereinafter "A. M."), a Portuguese manufacturer and supplier to Kitchen. When N. T. informed A. M. that it would no longer complete shipments for Kitchen, A. M. inquired and N. T. transmitted the fax message from K & N to it in response. The fax transmittal was in turn communIcated by A. M. to Kitchen's creditor and purchasing agent in Europe, Julemi. As a result, A. M. ceased the manufacture of goods for Kitchen and K & N froze all shipments, including some that had been packaged and were ready to be transported. As a further result, Julemi altered the terms of its contract with Kitchen to require prepayments, and arrangements with some mail order catalogs were adversely affected.
Kitchen filed the instant suit against K & N and N. T. in four counts (alleging service upon the latter through the Hague Convention): Count One against K & N for communicating a defamatory statement to N. T.; Count Two against N. T. for communicating the defamatory statement to Kitchen's suppliers; Count Three against K & N through its agent N. T. for publication of false material; and Count Four against both defendants for tortious interference with the contracts between Kitchen and its suppliers and with its business opportunities. Kitchen sought damages for lost sales and destruction of its reputation with its manufacturers and financial agents in Europe and with the business community. It appears that N. T. filed no answer or other responsive pleadings. K & N moved for summary judgment as to Counts One, Three and Four, which was granted and from which Kitchen appeals. K & N has filed a motion in this court to dismiss the appeal, contending that because the case remains pending as to N. T., Kitchen has not followed the appropriate appellate procedure. Held:
1. The motion to dismiss the appeal is denied. "An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. An order denying summary judgment shall be subject to review by direct appeal in accordance with [OCGA
2. The trial court found that only one message was sent by K & N to N. T., its "sister" company, and that K & N had no communIcation with any of Kitchen's other suppliers; that statements made with good faith intent on the part of the speaker to protect its interest in a matter in which it is concerned are privileged; that K & N had proved the message it intended to relay was that it did not want to be liable for payments on further shipments of goods if Kitchen had not yet paid for previous shipments; that Kitchen had not substantiated or quantified any damages flowing from the one message sent to N. T.; and that thus there was no genuine issue of material fact to try by a jury. Kitchen contends that this ruling addresses only the privilege defense raised by K & N, without reaching the issues of libel per se and tortious interference with contracts presented by its complaint. It asserts that K & N's argument, that it did not intend to injure Kitchen, ignores the deposition testimony of Dana Kaas that Hans Mixdorf told her he intended to teach Kitchen a lesson; and that "[s]tatements which tend to injure one in his trade, occupation or business are libelous per se. [Cit.]" John D. Robinson Corp. v. Southern Marine &c. Co.,
"The publication of the libelous matter is essential to recovery. OCGA
"The defense of privilege in a libel action is one of confession and avoidance, that is, admission of the publication but on a privileged occasion and bona fide in promotion of the object for which the privilege was granted." Auer v. Black,
Nor, is Kitchen entitled to reversal of the summary judgment on the complaint insofar as the subsequent publications to A. M. and Julemi are concerned. " 'Every publication of matter which is shown to be libelous is a separate cause of action; and where the plaintiff brings suit for publication at designated places, he cannot show publication to other persons at a different time and place, since it would tend to prove a cause of action separate from the one alleged in the petition.' [Cit.] Even if the alleged defamation . . . was the same . . . , a republication is still a separate cause of action. 'Each publication of (a) libel by different persons constitutes a separate and distinct wrong to the aggrieved party.' [Cits.]" Deal v. Builders Transport,
3. We also reject Kitchen's contention that a jury issue exists on the question of tortious interference with the contracts between Kitchen and Julemi and A. M. Only " '[t]he intentional and non-privileged interference by a third party with existing contractual rights and relations constitutes a tort for which an action will lie.' " Forehand v. Perlis Realty Co.,
Macey, Wilensky, Cohen, Wittner & Kessler, Mark L. Golder, for appellee.
1992
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