*1 drove the intoxicated in home, of two the statements witness, that a third those versions and conflict between and a properly on sum- determined all issues can be mary judgment, summary grant judg- the trial court to after refusal of credibility evidence, of the conflicts ment. resolution foreseeability, discharge negligence, aof witnesses, the issues employees’ employer’s care, of whether the and determination questions standard, for resolu- are man met the reasonable conduct tion by jury. majority opinion. respectfully I therefore, am I, from the dissent McMurray, Judge Pope Presiding Judge to state that Judge Beasley join in this dissent. 19, 1987
Rehearings July denied Anthony, Phillip III, for Harris R. R. Ronald C. Shinall Harrison, Gibbs, Richardson, for E. Patrick J. Robert RENALDO, INC. 73627. GINN Pope, brought against Renaldo,
Plaintiff Ginn this action defendant injuries received at Inc. defendant’s Baker to recover Street d/b/a appeal This arises from directed verdict plaintiffs favor of defendant at the close of case. plaintiff, strongly record, construed most evening question plaintiff
showed that on became drunk” at defendant’s was asked several initially upon manager premises. declined, He to leave the arrival police voluntarily premises, by manager left escorted patron. talking and an unidentified male nightclub’s jacket parking lot, left his realized that premises attempt inside. reenter and retrieve the jacket, manager was met at the door (Plaintiff patron. recall if this male same one who had earlier to was unable to out.) repeatedly attempted escorted
persuade manager him so he could retrieve his to admit steadfastly warning, jacket, Suddenly but she refused. and without patron pushed plaintiff, fell backward. who lost balance and my put my testified, I hand the door “[T]o Plaintiff frame break fall my pushed I it back he slammed the hand and door open I my right get my right hand and before hand out of the door obviously he slammed it and held it shut and was pushing very with all his because it hurt I much and started door, screaming my at him open hand in the door out, and to let I open get my the door and would hand and he held it might. several minutes . . . with all his ...” *2 1. In linchpin our view the issue this case is the agency. is, That did sufficient prove evidence to principal/agent relationship between defendant and the unidentified patron allegedly committed the tort? See OCGA 51-2-1 § Kim, (a); Carter v. (277 see generally 157 App. Ga. 418 SE2d principal “The relation of agent per- arises wherever one son, expressly by implication, or authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA 10-6- § 1. There is no agency by express assertion of agreement, so we will confine our discussion here to agency implication agency by ratification.
“Proof agency and of the nature agency may be made showing circumstances, apparent relations, and the conduct of the . . .” Martin & parties. Bridges Co., Hicks v. & Jelks App. 18 Ga. 24 (2) (88 747) (1916). SE only “where the evidence per- that a son is an agent of party another assumption is the mere that such agency existed, or an inference drawn from the person actions of that agent was an of another party, such evidence has no value and is insufficient finding authorize a agency that such an Shivers v. exists. Ludwig, Barton & App. 490, 164 Ga. [Cits.]” 491 (296 749) (1982). SE2d A review of the record in persuades this case us that the person plaintiff’s to have caused inju- ries was merely an patron individual of defendant’s nightclub. Al- though person this was at the door of the nightclub with the manager, there is no evidence that he requested had been to assist the manager in dealing or that in any way he was concerned with or responsible for the security of The testimony of de- — fendant’s president that on patrons, occasion “without asking them to do anything from me any my employees,” or intercede altercations or when other become unruly and assist — in escorting the troublemakers out of the nightclub provides no and, evidence of agency event, in any is irrelevant to the alleged agency 24-2-2; Conyers relationship v. case at bar. See OCGA § Ford, (2) (36 111 947) (1900). Ga. 754 SE We accordingly pro- find no bative evidence of agency by implication. Likewise, we find no agency by record evidence of ratification.
“ ‘Ratification is the affirmance of a act which did not bind him but professedly account, which was done or done on his whereby act, as to some or persons, given all is if origi- effect as 620 (1) 494 Golucke, 202 Ga. v.
nally Greene [Cits.]” him.’ 497) (1947). (43 is of ratification However, “[t]he doctrine SE2d person who did principal of a third applicable the act as to authority princi- or under the in the name to act not assume (33 App. 444, Morgan Son, 446 Ga. pal. 72 C. Johnson v. S. [Cits.]” supra 915) (1945); evidence Golucke, at v. Greene SE2d in an individual acted the unidentified case shows this acting holding name of capacity himself out not as one e.g., Mtn. authority v. Stone Accord, Davis of defendant. under the 317) (1986); (347 (2) App. la Gon- de SE2d Assn., Mem. 546) (1985); (327 (3) see Krystal SE2d Co., 173 Ga. zalez (163 (1) MacDougald Ogletree Co., 45 Ga. Constr. also 320) (1932). plain- dispositive holding in Division
2. Since Also, remaining considered. need not be of error enumerations tiffs grounds other than its decision court based the trial “ will not of a trial court above, decision ‘[a] correct those discussed Tony given regardless [Cit.]” therefor.’ reversed, the reasons 557) (1981); Repair &c. Co. White Pollard, 164) (1979). Roofing v. Ga. Judgment J., J., Deen, P. concur. C. affirmed. specially. J., also concurs P. *3 concurring specially. Judge, Presiding opinion, fully majority concurring which decides agency, comments should additional of the case on the regard of the de- verdict favor of the to the direction made with fendant. young nightclub Many 18,19, were the of the customers of strong years age the of live bands and of attracted and 20 young, “punk-rock” drinks; catered to a to some extent the Levangie Compare type Dunn, clientele. 88) porn photos, (1987), drugs, music, drink, and head where banging part case, In instant the attraction. the were nightclub, got already the five or six drinks before dispensed.” species Harrell v. ‘firewater’ are and other of “where beer State, (Fla. bar, at the 241, his arrival S2d drunk,” drunk,” “skunk another beer and became consumed on “two B-52 shooters.” as well as bombed spoke Benjamin Judge Hill, court, H. first Chief of our many years ago related-type that case and observed this three-fourths of all crime use of intoxicants. Chief indirectly directly the excessive is due eloquently Judge “The Hill observed: showing occurring daily present instances another of of this case hy- intoxicating liquors. This evil of measureless the monstrous and monster, ceaseless en- dra-headed and remorseless and tireless poor, ergy, wastes manufactures burdensome the substance public, monopolizes courts, time fills taxes for the the valuable penitentiaries, asylums, destroys jails, homes, manhood, ruins helpless children, church, and innocent baffles the terrorizes women answering law, and, demands, new and mocks the morn new in its inexorable ‘each orphans cry, wrongs mourn, new new strike Heaven widows ” 532) Langston State, the face.’ Unfortunately, may verity passage of time borne out have Judge attitude, as those seem even more Hill’s observations plicable society. in our state arduously argues
Articulate
advocate
that
one
where
noticeably
rough, rude,
becomes
riot-
intoxicated
inebriated
perhaps higher
result,
ous and
as a
he is entitled to
standard
patrons.
(359
other,
of care than
more
Southern Bell Tel.
sober
See
(1987),
where
another,
had several
take
co-workers
inebriated
following
employer-sponsored banquet. In
case,
home
em-
em-
ployer
employee,
satisfied its
intoxicated
ployee subsequently
left home and was killed
colli-
automobile
In
case,
sion.
we
instant
are concerned with the
standard
care
Appellant argues
of a commercial owner.
that one who is
is no
drunk
protection
relying
sober,
less entitled to
than one who is
on a vener-
able California
Robinson v.
trespasser. may have a cause of action as in Robinson *4 supra, Co.,& be it would the unidenti- fied who slammed the door on hand. The its bar satisfied him, to in Bell did the Southern Tel. &c. supra, directing and, therefore, the trial court did not err in appellee. in a verdict Calabro, M.
Michael Carlock, Kingma, appellee. S. Johannes S. Thomas et al. STRAWSMA.
74417. RAY Ray Anthony and Brendá contracted appellants The (d/b/a Company) to Construction pellee Ron Strawsma Strawsma appellants built house. The moved appellee house. build a pay to appellants refused house and lived house. into the found jury jury tried and the This matter was before against them. in suit that Company contended its
Strawsma Construction $7,371.53; $119,600; total price totalled contract was additions original $126,971.53. Appellants paid Straw- price thus to contract amounted $95,000 him, owed of disengaging leaving balance sma before $5,148.00, the “al- $31,971.53, completion leaving but their cost of $26,823.53. Appellants counter- balance” due Strawsma leged security system allegedly damaged repairs claimed for alarm to not or dis- agents, Strawsma or his and for latent defects discovered expert Appellants’ date contract. coverable termination re- flaws which could not be Clapp testified there were and defects floors; paired tes- out-of-plumb such as walls and unlevel this witness $30,450 quality to raise the tified that for be able witness, poor Dumas, attempted to average. house from Another testify resulting as to diminution value from those defects opin- repaired. not be The trial court refused to admit Dumas’ ion for the reason that diminution in value from defects resulting reasonably repaired be is not of value be- which could cause the measure of is “the difference the value value of the house as delivered contractor con- ought as it have been finished under the terms of the house Michel, Rose Homes v. tract.” See Mill Held: Appellants complain alleged of this other errors.
1. The trial to allow the witness Dumas to refusing court erred give which opinion resulting of diminution value from defects dam- remedied. is true that the measure of reasonably could not It ages is the differ- these cases of breach contractor completed in the value of house as the contractor ence the terms of the house to have been finished under ought value as it Homes, measure supra. Rose Mill this is the the contract.