Marcoux v. Northside Realty Associates, Inc., A92A1799

• Decision Date: 14 January 1993
• Docket Number: No. A92A1799,A92A1799
• Citation: 427 S.E.2d 72,207 Ga.App. 99
• Parties: MARCOUX v. NORTHSIDE REALTY ASSOCIATES, INC., et al.
• Court: Georgia Court of Appeals

Page 72

427 S.E.2d 72

207 Ga.App. 99

MARCOUX v. NORTHSIDE REALTY ASSOCIATES, INC., et al.

No. A92A1799.

Court of Appeals of Georgia.

Jan. 14, 1993.

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Myles E. Eastwood, Linda R. Greer, Atlanta, for appellant.

Frederick G. Boynton, Atlanta, for appellee.

JOHNSON, Judge.

This is the second appearance of this case in this court. For a statement of the facts see Marcoux v. Fields, 195 Ga.App. 573, 394 S.E.2d 361 (1990). In the former appeal, this court reversed the grant of defendants' motion to dismiss based on res judicata. Upon trial of the case, the trial judge directed a verdict in favor of Northside Realty Associates, Inc., which forms the basis of this appeal. The jury returned a verdict against the co-defendant, Eddie Fields, in excess of $46,000.

1. In a recent case, Ross v. Ninety-Two West, Ltd., 201 Ga.App. 887, 412 S.E.2d 876 (1991), we clarified the nature of the relationship between real estate agents and realty companies, holding that the firm will not be held liable for the tortious acts of its agents, who are independent contractors. Perhaps in light of this decision, Marcoux has asserted that a jury question existed on the liability of Northside under a theory of apparent authority. In support of this theory, Marcoux has analogized the role of the agent to that of a doctor in an emergency room, citing Brown v. Coastal Emergency Svcs., 181 Ga.App. 893, 354 S.E.2d 632 (1987), aff'd sub nom. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 361 S.E.2d 164 (1987). As we recently held in Holmes v. Univ. Health Svc., 205 Ga.App. 602, 423 S.E.2d 281 (1992): "In order to recover under [an apparent or ostensible agency] theory, however, a plaintiff must present evidence that: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury. Further, it is not enough that plaintiff simply believe there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent. Then, too, justifiable reliance must lead to the injury." (Citations and punctuation omitted.) Id. at 603, 423 S.E.2d 281. The facts in this case have not demonstrated that Northside, or Fields, made any representations regarding the nature of their relationship. There is no testimony in the record which indicates that Fields or anyone from Northside represented to Marcoux that he was employed by Northside, nor is there evidence that any reliance on the part of Marcoux led to her injury.

Marcoux's analogy to the emergency room situation is attenuated. In most instances, a patient entering an emergency room is in a state of crisis, having sustained serious physical injury or trauma. He has neither the capacity nor the...