Hornsby v. Phillips , 190 Ga. App. 335 ( 1989 )

Deen, Presiding Judge,

concurring in part and dissenting in part.

1. The asserted basis for Hornsby’s liability resulting from his corporate office was an alleged violation of the Georgia Sale of Business Opportunities Act, OCGA § 10-1-410 et seq., which in pertinent part regulates the sale of vending machines, racks, display cases or other similar devices, or currency-operated amusement machines or devices. That Act, however, is inapplicable in this case, because coin-operated telephones are not vending machines or any other of the devices listed in the statute, and I believe that the trial court erred in refusing to direct a verdict for Hornsby on this basis.

As acknowledged by the majority opinion, at the time the Act was passed, private ownership of coin-operated telephones was not even possible. It logically follows that the legislative intent behind the Act did not extend to such products. The Act, being in derogation of the common law, “must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.” Ford Motor Co. v. Carter, 239 Ga. 657, 658 (238 SE2d 361) (1977). Since the legislature obviously could not have intended application of the Act to coin-operated telephones and since the plain and explicit terms of the Act do not include such devices, application of the Act presently in this case works an ill-advised and implicitly impermissible judicial encroachment and usurpation of the legislative prerogative, purpose, and process. Accordingly, I must dissent from the majority opinion’s contrary conclusion.

2. I concur fully with the dismissal of Nation’s appeal. I am authorized to state that Presiding Judge McMurray joins in this opinion.

Decided January 26, 1989 Rehearing denied February 16, 1989 Hansell & Post, R. Matthew Martin, for appellant (case no. 77563). John C. Nation, Sr., pro se (case no. 77564). Mullins, Whalen & Shepherd, Newton M. Galloway, for appellee.