dissenting.
Obviously something is very wrong with our judicial system when it takes us five years and four months (during which time there were two jury trials, denial of one certiorari application, three opinions by the Court of Appeals and two opinions by this court) to decide that as a matter of law Busbin has no cause of action for libel.1
1) This case was first decided by the Court of Appeals in March of 1978. Ga. Power Co. v. Busbin, 145 Ga. App. 438 (244 SE2d 26) (1978). The trial court’s judgment, following a jury verdict of $250,000, was affirmed. The Court of Appeals held, inter alia, that “it became a jury issue as to what was intended by the spoken word as well as what was understood by the various hearers. [Cits.] ” Id. at 445. The Court of Appeals noted that Busbin’s wife was one of those to whom the contents of the audit report had been reported.
This court gtanted certiorari. Ga. Power Co. v. Busbin, 242 Ga. 612 (250 SE2d 442) (1978). We reversed, but not on the ground that there was-insufficient evidence of libel to support a jury verdict. Upon the return of the case, the Court of Appeals took up Busbin’s cross-appeal. Ga. Power Co. v. Busbin, 149 Ga. App. 274 (254 SE2d 146) (1979). In Division 3 of the opinion, the Court said: “As was stated in Ga. Power Co. v. Busbin, 145 Ga. App. 438, 444-445 (10), it became a jury issue as to what was intended by the spoken word as well as what was understood by the various hearers with reference to the special audit.
*184“The charge of libel only remains against the defendant Georgia Power Company, and wrongful discharge or interference, slander and libel against the other defendants. Therefore,... [cits.], the trial court erred in refusing to allow the jury to consider the special audit in evidence although its actual contents had already been allowed in evidence.” Ga. Power Co. v. Busbin, supra, 149 Ga. App. at 275-276. (Emphasis supplied.)
The Court of Appeals went on to say in division nine of the opinion that “[w]hether there was libel and slander involved in this case under the circumstances in which the special audit was discussed among employees (supervisory and otherwise) after plaintiff was discharged ... was a question for determination by the jury. [Cits.]”
From the second opinion by the Court of Appeals, appellants applied for certiorari to this court. We denied certiorari. Thus, the rulings of the second opinion of the Court of Appeals were left undisturbed and became the law of the case. Code Ann. § 81A-160 (h); Webster v. Star Distributing Co., 244 Ga. 844 (262 SE2d 80) (1979); Tingle v. Harvill, 230 Ga. 70 (195 SE2d 654) (1973). In its second opinion, the Court of Appeals returned this case to the trial court for a retrial in accordance with the directions contained in its opinion. The trial court did so. Now, for the first time, after having had the opportunity on two previous occasions to disagree with the Court of Appeals on whether or not a jury issue existed as to libel, we hold that as a matter of law there can be no recovery for libel.
If this case were here for the first time, I could not agree that no jury issue exists in this case; I am amazed that this court would allow Busbin to run the gauntlet of two trials, three opinions by the Court of Appeals, and two by this Court, before finally telling him that as a matter of law he has no claim.
The majority says “the record was expanded on retrial.” My examination of the record shows the testimony in both trials to have been virtually identical, insofar as it related to libel. The only “expansion” was one answer in Hill’s testimony that, “Well, as I recall, he was asking some questions about, you know, what I heard about his situation.” This answer does not show that Busbin specifically requested the results of the audit, at what point Busbin asked about his situation, or that he was asking for any information except as to his general situation (i.e., was he going to be rehired? Was he going to be demoted? Was he going to be transferred?).
I do not think this is such an “expansion” of the record that we should ignore the previously established law of the case on the basis of the “expansion.” If libel had not been in the case, it should have been remanded previously with direction to enter a directed verdict in Georgia Power’s favor. Instead, the trial court was expressly *185authorized to submit the libel issue to a jury in a second trial. I do not believe the Court of Appeals was incorrect in finding a jury issue on the question of libel and would not now hold to the contrary.
2) Was the libel in this case “invited” as a matter of law? I contend it was not. Hill, characterized by Georgia Power as a “general supervisory employee” when he attended the discussion of the audit report and as a “low level employee” when he visited Busbin, called on Busbin to see how he was doing. According to Hill, Busbin (who was completely in the dark as to what was going on) asked what his situation was. The majority decides that “[w]hen Busbin asked Hill about his ‘situation,’ the question could only relate to the audit and to the circumstances surrounding his discharge, which he must have known were drastically unfavorable.” I submit that this is an unwarranted conclusion on the part of the majority.
Three witnesses testified about Hill’s visit to the Busbin home. Only Hill testified that Busbin had asked Hill about his “situation.” Obviously, the jury would have been entitled to disbelieve Hill’s testimony and could have concluded that Busbin never asked Hill about his “situation. ” Moreover, the jury would have been authorized to conclude that the question, if asked, did not relate to the audit and therefore, that the libel was not invited. Finally, the issue of invitation was not raised during the trial, nor was it charged to the jury. If appellants wished to rely on a theory of “invited libel” in the appellate courts, I think they should at least have made an issue of it in the trial court. See Code Ann. §§ 38-103 and 38-104.
The cases cited by the majority do not support its contention that invited libel existed as a matter of law in this case. In King v. Masson, 148 Ga. App. 229 (251 SE2d 107) (1978), the plaintiff’s husband had requested a conference with the defendant for the sole and expressed purpose of discussing alleged accusations made by the defendant. Plaintiff brought her husband to the conference. Plaintiff’s husband, the court found, was acting as her agent. In Beck v. Oden, 64 Ga. App. 407 (13 SE2d 468) (1941), the plaintiff had sent a friend, acting as his agent, to defendant for the express purpose of determining why plaintiff had not been re-employed. Jackson v. Douglas County Elec. Membership Corp., 150 Ga. App. 523 (1) (258 SE2d 152) (1979), has nothing to do with invited libel. In Jackson, the defendant mailed a certified letter to the plaintiff which allegedly contained defamatory remarks. Plaintiff failed to show publication to anyone other than himself.
In this case, Hill visited Busbin at his home. Hill did not come at Busbin’s invitation and Busbin had no foreknowledge of Hill’s visit. The purpose of the visit was not to discuss any specific charges against Busbin. Busbin’s wife was not acting as his agent, and no *186question was asked which unequivocally requested the information received.
The majority says invited libel existed as a matter of law. I contend that if the issue was properly raised, a jury question existed and the jury’s verdict should not be overturned.
3) Even if the publication at Bushin’s residence was invited, a jury issue was presented as to whether or not the libel had been previously published. The evidence was conflicting as to whether Bushin was a “low level employee” or a “general supervisory employee.” It was therefore the jury’s duty to determine his status and thus whether or not Bushin was libeled at the meeting in Waycross at which the special audit was discussed in Hill’s presence.
Where libel is published on two different occasions, that one publication was invited is no bar to recovery for the other. See King v. Masson, supra. Therefore, even if I agreed with the majority on invited libel, I would not conclude that Bushin is barred altogether from asserting a libel claim against appellants.
The previous opinions of this court and the Court of Appeals instructed the trial court and the parties how to try this case. These instructions were followed. However, after having five years to “think it over” we now conclude no case exists. I think we were right before and wrong now. I therefore dissent.
I am authorized to state that Presiding Justice Hill joins in this dissent.Busbin’s complaint was served on appellants September 9,1975. The case was first tried November 9 and 10, 1976.