de la Gonzalez v. Krystal Co.
| Decision Date | 27 February 1985 |
| Docket Number | No. 69476,69476 |
| Parties | de la GONZALEZ v. KRYSTAL COMPANY. |
| Court | Georgia Court of Appeals |
Jon A. Green, Atlanta, for appellant.
John E. Wallace, Jr., Robert A. Sneed, Jr., William S. Sutton, M. David Merritt, Atlanta, for appellee.
Appellant Jose de la Gonzalez brought suit against appellees The Krystal Company d/b/a Krystal, Alert Guard Security Services, Inc. (Alert), R. Laney and R.J. Collins alleging false imprisonment and intentional infliction of emotional distress. Before trial Gonzalez dismissed the count in his complaint alleging intentional infliction of emotional distress.
On April 7, 1983 Gonzalez had stopped at Krystal for a hamburger. While there, he witnessed a confrontation between Laney and Collins, two security guards, and Michael Sowell. Sowell was taken out of the restaurant and put under arrest outside. Witnesses differ on Sowell's resistance to his arrest and the officers' conduct in arresting him. Gonzalez was arrested after he approached the guards, identified himself as a nurse, offered aid, and urged the officers to use restraint in subduing Sowell. The officers asked Gonzalez to step aside and to not interfere with the arrest; if he persisted, he would be arrested. Shortly thereafter, both Sowell and Gonzalez were arrested by Atlanta police.
The case was tried to a jury; at the conclusion of Gonzalez' case, the trial court directed verdicts in favor of Krystal, Alert and Collins. Trial continued in regard to Laney and the jury returned a verdict of $17,250 damages, $20,000 punitive damages, and $750 in attorney fees.
1. Appellee Krystal has moved to dismiss the appeal because appellant's notice of appeal was from the order granting a directed verdict and not from the final judgment of the court. We must deny the motion as this case is clearly controlled by the holding in Steele v. Cincinnati Ins. Co., 252 Ga. 58, 311 S.E.2d 470 (1984).
2. Gonzalez argues that the trial court erred in not allowing him to use the transcribed testimony of a deceased witness taken in a previous hearing. He relies upon OCGA § 24-3-10 which reads: "The testimony of a witness since deceased, disqualified, or inaccessible for any cause which was given under oath on a former trial upon substantially the same issue and between substantially the same parties may be proved by anyone who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies."
The testimony sought to be introduced was taken at a preliminary hearing for Michael Sowell on criminal charges arising from the April 7 incident. The testimony was offered to support Sowell's version of the events and Gonzalez was mentioned. Neither Gonzalez nor Krystal nor Alert were parties to this hearing. We have examined the transcript of the preliminary hearing in the record. It was conducted informally and there was no cross-examination of any witness, although the court did ask some questions. Laney and Collins appeared as witnesses for the State. The issue to be determined was whether there was probable cause to hold Sowell on charges of disorderly conduct. We do not find there to be substantially the same issue or substantially the same parties involved in the earlier action. The trial court did not err in excluding the testimony.
3. Gonzalez next argues that it was error for the trial court to grant directed verdicts to Krystal, Alert and Collins. The basis of the motion in regard to Krystal and Alert is that Gonzalez produced no evidence to show that Laney and Collins were agents of either company. Gonzalez sought to hold Krystal and Alert liable on the theory of respondeat superior. Therefore, Gonzalez had the burden to prove that Laney and Collins were agents of Krystal and Alert. See Carter v. Kim, 157 Ga.App. 418, 277 S.E.2d 776 (1981). Gonzalez adduced evidence that Laney and Collins were security guards. There is nothing in the record to establish by whom they were employed or why they were in the Krystal restaurant at the time of the incident. The evidence established only that the two security guards were seated in the public area of the restaurant, became aware of the disturbance, investigated, and took Sowell out of the restaurant after the store manager stated that she did not want them in the store anymore. There is evidence that Laney, while he was subduing Sowell, said in response to a question that he was the authority on Krystal's property. During his testimony, Gonzalez consistently confused Laney and Collins, referring to Collins when he meant Laney and Laney when he meant Collins. The evidence nevertheless...
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...his employment and are not part of the res gestae, they are not admissible against Single Source. See de la Gonzalez v. Krystal Co., 173 Ga.App. 574, 576(3), 327 S.E.2d 546 (1985); OCGA §§ 10-6-64, 24-3-33. Fisher was driving Single Source's truck; therefore, a presumption arose that he was......
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