Management Search, Inc. v. Kinard

• Decision Date: 06 September 1973
• Docket Number: No. 28059,28059
• Citation: 199 S.E.2d 899,231 Ga. 26
• Parties: MANAGEMENT SEARCH, INC. v. Susan KINARD.
• Court: Georgia Supreme Court

Page 899

199 S.E.2d 899

231 Ga. 26

MANAGEMENT SEARCH, INC. v. Susan KINARD.

No. 28059.

Supreme Court of Georgia.

Sept. 6, 1973.

Syllabus by the Court

Questions one, two and five are answered in the affirmative and questions three, four and six are answered in the negative.

The Court of Appeals has certified the following questions to this court:

'1. Is the license required of a private employment agency by Ga.L.1959, pp. 283, 284, 292, 293 (Code Ann. §§ 84-4102(a)(s) and 84-9967) a regulatory measure, in the public interest, or a mere revenue measure? (See, in this connection: Toole v. Wiregrass Development Co., 142 Ga. 57 (82 S.E. 514); McLamb v. Phillips, 34 Ga.App. 210(1) (129 S.E. 570); Bernstein v. Peters, 68 Ga.App. 218(1) (22 S.E.2d 614)).

'If the answer to the above question is that the requirement of the license is a regulatory measure, answer is desired to the following additional questions:

'2. In an action by a privat eemployment agency to recover for services rendered in obtaining employment for the defendant under a written contract, is the holding of a license as required by the statute a condition precedent to recovery?

'See in this connection: Taliaferro v. Moffett, 54 Ga. 150; Murray v. Williams, 121 Ga. 63 (48 S.E. 686); Padgett v. Silver Lake Park Corp., 168 Ga. 759 (149 S.E. 180); Bayne v. Sun Finance Co., 114 Ga.App. 27(3) ( 150 S.E.2d 311); Pratt v. Sloan, 41 Ga.App. 150, 153 (152 S.E. 275); Lee v. Moseley, 40 Ga.App. 371(2) (149 S.E. 808); Singleton v. State, 14 Ga.App. 527(2, 3) (81 S.E. 596); McLamb v. Phillips, 34 Ga.App. 210(1) ( 129 S.E. 570), supra; Colter v. Consolidated Credit Corp., 115 Ga.App. 408(4) (154 S.E.2d 713); Hardy v. R & S Finance Co., 116 Ga.App. 451(1) ( 157 S.E.2d 777); Camilla Loan Co. v. Sheffield, 116 Ga.App. 626 (158 S.E.2d 698).

'3. If the holding of a license at the time of the transaction is a condition precedent to recovery, is it necessary under the Civil Practice Act, particularly §§ 8(a)(1) and 9(c) (Code Ann. §§ 81A-108(a)(1) and 81A-109(c)), that the plaintiff plead that it was then duly licensed? (As to the necessity for pleading compliance with a condition precedent, see Porter-Lite Corp. v. Warren Scott Contracting Co., 126 Ga.App. 436, 439(4) (191 S.E.2d 95); 2A Moore's Federal Practice, p. 1945, § 9.04, 5 Wright & Miller, Federal Practice and Procedure, p. 429, § 1303;) Kooman, Federal Civil Practice, Georgia Treatment, p. 321, § 9.03; prior to CPA, Mayo v. Lynes, 80 Ga.App. 4 (55 S.E.2d 174); Nussbaum v. Shaffer, 105 Ga.App. 430 (124 S.E.2d 658); Robinson v. Colonial Discount Co., 106 Ga.App. 274(3) (126 S.E.2d 824); Hale v. Chatham, 91 Ga.App. 519 (86 S.E.2d 536).

'4. Is it necessary that the plaintiff both plead and prove that it was duly licensed at the time of the transaction?

'(See, in this connection: Meinhard v. Stillwell Realty Co., 47 Ga.App. 194 (169 S.E. 732); Service Loan & Finance Corp. v. McDaniel, 115 Ga.App. 548(1) (154 S.E.2d 823)).

'5. Or, is it enough to satisfy the requirement as to a showing of license to omit pleading the fact of license, and prove it as a part of the plaintiff's case?

'(See in this connection: Jobson v. Masters, 32 Ga.App. 60(2) (122 S.E. 724); Bayne v. Sun Finance Co., 114 Ga.App. 27(3) (150 S.E.2d 311); Maxwell v. Tucker, 118 Ga.App. 695, 698(4) (165 S.E.2d 459); Culverhouse v. Atlanta Assn. for Convalescent &c., 127 Ga.App. 574(2) (194 S.E.2d 299)).

'6. Or, is the matter of whether the plaintiff was licensed at the time of the transaction a matter of defense which the defendant must raise?

'(See in this connection: Taliaferro v. Moffett, 54 Ga. 150(2), supra; Suddath v. Blanchard & Calhoun, 39 Ga.App. 262(2) (146 S.E. 798); Knight Drug Co. v. Naismith, 73 Ga.App. 793 (38 S.E.2d 87)).

'7. Or, if a matter of defense, may the defendant prove the lack of a proper license where that issue is not made in the pleadings?

'See generally on this subject-matter: Jalonick v. Greene County Oil Co., 7 Ga.App. 309 (66 S.E. 815); Bartow Guano Co. v. Adair, 29 Ga.App. 644(3) (116 S.E. 342); Southern Flour & Grain Co. v. Smith, 31 Ga.App. 52, 53 (120 S.E. 36); Gilder v. Moore, 93 Ga.App. 448 (91 S.E.2d 834); Raines v. State, 96 Ga.App. 727, 729 (101 S.E.2d 589); Liberty Loan Corporation v. Crowder, 116 Ga.App. 280(1) (157 S.E.2d 52); Johnson v. Frazier, 121 Ga.App. 212(5) (173 S.E.2d 434); City of Atlanta v. Henry Grady Hotel Corp., 220 Ga. 249, 256 (138 S.E.2d 362); also Code Ann. §§ 25-9903; 84-721; 84-9901 through 84-9980.'

Thomas C. Jones, Jr., Atlanta, for appellant.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Hoke Smith, Atlanta, for appellee.

NICHOLS, Justice.

1. The Act regulating private employment agencies, supra, is a regulatory measure in the public interest and not a mere revenue measure. This Act requires more than the mere obtaining of a business license and a mere reading of the Act discloses without contradiction that it is an enactment for the protection of the public and a recognition that unless such employment agencies are solvent and operated by persons of integrity, the public is not protected. The first queston is answered in the affirmative.

2. In Bernstein v. Peters, 68 Ga.App. 218, 22 S.E.2d 614, supra, Judge Sutton, later Mr. Justice Sutton, explored the area of contracts by persons engaged in business regulated by government in the public interest and quoted extensively from prior decisions of both the Court of Appeals and this court, and under such decision and the numerous authorities there quoted and cited, contracts made in violation of such a statute are void and unenforceable. The second question is answered in the affirmative.

3. The remaining questions will be discussed together. Prior to the adoption of the Civil Practice Act, supra, when issue pleadings were required, it was necessary, where a cause of action was based upon a contract which required a regulatory license, to allege compliance in order to withstand general demurrer. Under notice pleadings, a motion to dismiss would not result in the dismissal of a complaint in such a case unless it affirmatively appeared that the plaintiff did not possess such license, but the meagerness of pleadings required to withstand a motion to dismiss under the Civil Practice Act does not change the substantive issues involved in litigation. What was a necessary element in order to authorize a recovery under issue pleadings is still a necessary element under notice pleadings. The difference is how it is shown.

In Morgan v. Reeves, 226 Ga. 697, 177 S.E.2d 68, a majority of this court held that under the Civil Practice Act it is no longer necessary to allege a city ordinance in order to permit its introduction into evidence. In Maxwell v. Tucker, 118 Ga.App. 695, 698, 165 S.E.2d 459, the Court of Appeals, in dealing with a real estate broker's license pointed out the change in the requirements of law relating to pleading real estate brokers' licenses, and held that it was not necessary to plead the existence of such a license in order to state a claim. In Culverhouse v. Atlanta Association for Convalescent Aged Persons, Inc., 127 Ga.App. 574, 578, 194 S.E.2d 299, 301, it was said: 'With the advent of...