Opinion
35357.
DECIDED OCTOBER 13, 1954.
Attachment. Before Judge Atkinson. Bibb Superior Court. June 30, 1954.
Edward F. Taylor, for plaintiff in error.
Carl E. Westmoreland, Richard B. Thornton, contra.
1. The evidence as to the general grounds demands a verdict in favor of the plaintiff for some amount.
2. The court erred in its charge to the jury as complained of in the special ground, for the reasons given in the body of the opinion.
DECIDED OCTOBER 13, 1954.
Mrs. Lois Carmichael (hereinafter called the plaintiff), brought her claim, by attachment, against Jack Silvers, also known as John Silvers, doing business as American Veneering Company (hereinafter called the defendant). The plaintiff is a resident of Bibb County, Georgia, and the defendant is a resident of Pittsburgh, Pennsylvania.
The attachment was returnable to the Superior Court of Bibb County, Georgia. It was duly levied and returned to and filed with the Clerk of the Superior Court of Bibb County. The plaintiff filed her declaration in attachment. The defendant filed his plea and answer. In her declaration the plaintiff contended that the business of the defendant in Bibb County was in charge of one Levie, the general agent and general manager of the business, which was owned and operated by the defendant. The business carried on was improvement of real estate, primarily by attaching some siding material to houses already constructed and occupied. The plaintiff contended that two agents of the defendant, Miller and Bernard, came to her home one night and contracted with her husband to improve the home of the plaintiff and her husband; that the next morning the materials, as needed to fulfill the contract were delivered at her home by a truck of the defendant, at which time she advised the truck driver that she and her husband had decided not to make such improvements at that time, whereupon the truck driver asked permission to use the telephone at her home so that he might call Levie, and report to him her desire to cancel the contract; that the truck driver then asked the plaintiff to come to the phone to speak to Levie, and Levie told her the two salesmen had made an error in calculating her contract and he was going to send the salesman, Bernard, back to her home to renegotiate a contract with her for improvements of her home. at a reduced price to be performed by the defendant; that in a short while Bernard came to the home and endeavored to have her reconsider and make a new contract for the improvements and, when she refused to do so, he became angry and assaulted and injured her in her home.
In his plea and answer the defendant denied all the material allegations of the declaration of the plaintiff.
The case came on for trial before a jury, which resulted in a verdict for the defendant. The plaintiff filed a motion for new trial on the statutory grounds, and later added several special grounds. The court denied the motion. To this judgment the plaintiff filed a bill of exceptions.
As to the evidence, there were four witnesses who testified. The plaintiff testified on her own behalf and her husband, Joe F. Carmichael, testified for her. For the defendant Mrs. Beulah Fisher and the defendant himself testified. The defendant testified by deposition only.
The testimony of the plaintiff herself was substantially as follows: She and her husband live in their home, 556 Charles Street, Macon; had been living there 10 years. On November 27, 1952, G. L. Bernard came to their home, wanting to make some improvements on the home. He signed his name on a contract as G. L. Bernard; it was written on a form of American Veneering Company. He first came in the morning, and came back that night with Jack Miller, and Mr. Carmichael signed a contract with them whereby American Veneering Company would make certain improvements on the Carmichael home, furnishing the labor and materials therefor, the contract being signed by Carmichael, and American Veneering Company by Jack Miller, representative. Bernard also made out on the forms of American Veneering Company another contract between Carmichael and American Veneering Company at the same time, and signed it G. L. Bernard, representative, but it was not signed by Carmichael; this latter contract being one the Carmichaels could use in trying to sell contracts to their friends should they desire to do so, being in the nature of a sample contract to show others, but they never used it as such.
Early the next morning, November 28, 1952, a truck driver for the defendant knocked on the door of the Carmichael home and announced that he had brought the materials to perform the contract the defendant made with Carmichael. The plaintiff advised the truck driver that she and her husband had decided not to have the improvements made on the home, and the truck driver asked permission to use the phone at the Carmichael home, which permission was granted. The driver phoned the general manager of the defendant's office in Macon and advised the manager that the contract had been canceled.
The exact statement of the plaintiff in this connection is this: "Q. I am not talking about what you and he said, what about the company, who was the next one you heard from? A. Well, the next morning sometime during early morning, I don't recall just what time it was, but someone knocked at my door, and I went to the door and it was the truck driver with a load of material. Q. Was that the truck from the American Veneering Company? A. The American Veneering Company, yes, sir. Q. Was it material for your home? A. Yes, sir. Q. All right, what happened then? A. And so when I went to the door he told me that he had the material for the men to start working on my home, so I told him that Mr. Carmichael and I had decided that we couldn't take it right then, and he says, `Well I have the material out here, can I use your telephone?' And I said, `Yes', so he came on in and he used the telephone and in a few minutes he told me: `Mr. Levie, the man from the plant, would like to speak with you.' So I went to the phone and Mr. Levie asked me what the trouble was and I told him that we just decided we couldn't take it, and he told me that they had discovered that they had made a hundred dollar mistake in my contract. And he told me to just tell the driver of the truck to bring the material on back to the plant and that he would send Mr. Bernard, one of the salesmen, back to make a new contract and get it all straightened out for him. Q. Now in that connection have you since that time talked to Mr. Phillip Levie face to face and met him and talked to him? A. Yes, I have. Q. You've heard his voice when you talked to him? A. Yes, sir. Tell us whether that was the same voice you heard talking on the phone when you talked to him before? A. Yes, it was. Q. What kind of voice does he have? A. He talked kinda low and long and kinda drawn-out voice. Q. When you did talk to him subsequently did you recognize that as being the same man you talked to over the telephone? A. Yes, I did. Q. He told you he was going to send Mr. Bernard back out to straighten it out, now did the truck driver leave with the material, go back away from your place? A. Yes, he did. Q. About how long after that was it before Mr. Bernard came back? A. I don't know just what the length of time was between that but Mr. Bernard did come back to the house and — Q. That's the same Mr. Bernard who was there the night before who helped sell the contract? A. That's right; the same man. Q. Tell the jury what happened from the time he got to the door. A. He knocked at the door and I went to the front door and he didn't give me time to say anything, my screen was unhooked and when I opened the wooden door he just started to talking just as fast as he could talk about that he found that they had made a mistake in the contract and he had come to get it straightened out and he didn't wait for me to ask him in or anything, just brushed right on in just like something on fire and taken a seat over in a chair, and I said, `Mr. Bernard, Mr. Carmichael and I have talked it over and I don't think we are able to take this right now. In other words I said, I am in a hurry with my lunch and don't have time to discuss this thing with you any further and I said, will you come back when my husband is here.' The front door was still cracked and I was kinda leaning back against the arm of my couch and he had taken his seat over in a big chair. I said, `Will you leave and come back later when Mr. Carmichael is at home?' I just turned around and started on back to my dining room, thinking that he would go ahead and leave. I didn't hear my front door close and just as I got in my dining room I felt someone was following me or something. Just as I went to glance around his big old hand grabbed me up here on my shoulder, snatched me completely around. He said, `I'm going to make this new contract', and I said, `You take your hands off of me and I mean it.' He stomped his foot then, and said: `I'm a fixing to give you a hundred dollars cash money in your hands and you are just messing me up plenty and don't want to accept it.' I said, `Listen fellow, I don't want any of your money or anybody else's, I work for what I have. Will you leave?' He said, `That I will not,' and he just brushed aside of me and walked over to my dining room table and snatched out a chair and took out his papers. He said, `I am making a new contract and you will sign it before I leave from here.' I said, `Listen fellow the only way that contract will be signed will be over my dead body. If you know what's good for you, you had better leave. It's time for my husband.' He got up and left. At that time I was just so hysterical I couldn't say anything. Q. When you say you were hysterical were you weeping and crying at that time? A. I just couldn't hardly talk, I was choking and everything else, and I was blind, I couldn't even see my way, I was just scared to death. Q. Prior to that time, Mrs. Carmichael, had your health been good? A. It had been fine. Q. Had you had any nervous trouble, nervous breakdown, trouble before that? A. Never had, no, I hadn't. Q. Did Mr. Levie, the manager, call you another time, he called you one time and said he was going to send Mr. Bernard out there, did he call you another time about some visit out to his place from the courthouse? A. Yes, he did. Q. What was that, what did he say at that time? A. He wanted to speak to Mr. Carmichael and I of course, recognized his voice then. I answered the phone and I told him that Mr. Carmichael was in the bathroom and I told him that this was Mrs. Carmichael, could I take the message and he said, `Yes, someone from the courthouse has been out here looking for Mr. Bernard. I want to know just what happened at your house,' and I tried to explain to him and he told me that he was sorry that it had happened."
Joe F. Carmichael's testimony for the plaintiff corroborated her as to the signing of the contract and its cancellation. He said that he was not present at the time Bernard had the difficulty with his wife, but he came into the back of the house and found his wife in a nervous condition to the extent that she could not tell him what happened. The witness saw someone on the porch, and upon approaching the front door observed Bernard, who wanted to discuss the contract with the witness, whereupon the witness ordered Bernard to leave. The other testimony of the witness was concerning the physical condition of his wife at the time of the trial, at the time of the difficulty with Bernard, and prior thereto.
Mrs. Fisher testified for the defendant as follows: "Q. What did your work consist of at that time? A. I was bookkeeper and assistant office manager. Q. Did you later become office manager of the Macon branch? A. I did. Q. In your capacity as assistant manager was it your business to make out checks and deduct social security and keep the payrolls of the company? A. It was. Q. Did you ever pay G. L. Bernard for American Veneering Company? A. No. Q. Was he ever on the payroll of your Macon office after you were employed there? A. No, he was not. Q. Do you know G. L. Bernard? A. I do not. Q. I believe you testified that Mr. Bernard was never on the payroll or did you? A. He was not. Q. You never made a check for him? A. No, I did not. Q. Did you know Bernard? A. No."
She further testified on cross-examination as follows: "Q. Do you mean to tell this jury that as soon as one of these salesmen brought a contract like that pink sheet in your office or three copies of it into your office then you as manager would get a drayman and get a load of that stuff and carry it out yonder and dump it on the ground? A. Not necessarily, sometimes a salesman would ask us not to deliver the material. Q. In this case, why was it sent out in this case if it had not been accepted? A. I do not know about the Carmichael transaction. At that time I was not familiar enough with the office to have been in direct contact with their transaction. It was handled by the manager because I was not familiar with it. Q. That was Mr. Phillip Levie? A. That's right. Q. Mr. Levie was the general manager in Macon, Georgia, wasn't he? A. That's right. Q. He had charge of all the business, he could do anything he wanted to in connection with that business? A. I wouldn't go so far as to say that. Q. He could make contracts for them couldn't he? A. Yes, he could make a contract. Q. Mr. Levie was as far as American Veneering Company was the company itself in Macon wasn't he, he just ran the whole business? A. With the say so of the owner. Q. That's Mr. Jack Silvers in Pittsburgh? A. That's right. Q. Was Mr. Silvers down here in November of 1952? A. I don't know; Mr. Silvers made a check-up of his offices quite regularly but as far as November is concerned, I couldn't say. Q. Was he down here in December, 1952? A. I don't know that. Q. Well, if he didn't come down here in November or December of 1952, Mr. Levie was the — he was the general manager while Mr. Silvers wasn't here wasn't he? A. That's right. Q. And Mr. Levie did hire people didn't he, to work at the place? A. He hired a truck driver, a bookkeeper, a warehouseman and I believe that is the extent of his hiring people. Q. He did hire that many people didn't he? A. That's right. Q. And the company paid them? Did he hire you? A. Yes, he hired me. Q. He hired you as a bookkeeper? A. That's right. Q. You never had any complaint with Mr. Silvers, he didn't have the right to hire you, did he? A. No. Q. They paid you? A. Mr. Levie paid me. Q. Mr. Silvers didn't hire you? A. No. Q. But Mr. Levie hired you? A. That's right, but Mr. Silvers could have fired me. Q. Mr. Levie could have fired you too, couldn't he? A. Mr. Silvers could have fired me over Mr. Levie's say so. Q. Yes, but unless Mr. Silvers complained about your being hired, when Mr. Levie hired you had a job, didn't you? A. That's right. Q. And you had this job just as long as Mr. Levie wanted you to work there unless Mr. Silvers told him to fire you? A. That's right. Q. And you never had any complaint from Mr. Silvers that he shouldn't have hired you? A. That's right. Q. Do you remember the day on November 28, 1952, when Mr. Levie phoned Mrs. Carmichael about that material out there? A. No, I don't. Q. You have no knowledge of what happened that day? A. No, I do not. Q. Did you see Mr. Bernard in the office that morning? A. No, I don't know Mr. Bernard. Q. Did you hear Mr. Levie tell Mr. Bernard to go out to Mrs. Carmichael's and see about the contract? A. No. Q. In other words, your testimony is that you know nothing about what happened on November 28, 1952, between Mr. Levie and Mrs. Carmichael about the Carmichael job? A. That's right. Q. You know nothing whatever about that? A. As far as that, I know nothing whatsoever about that? Q. As far as you know then, Mr. Levie might have told Mr. Bernard to go out and see about that contract? A. As far as I know he could have because I don't know. Q. You wouldn't say it didn't happen? A. I Wouldn't say it didn't happen, and I wouldn't say it did either. Q. Well, I know that. And Mr. Levie was in charge of the business? A. That's right."
She further testified on cross-examination as follows: "Q. Now then, when did Mr. Levie leave the company? A. April, 1953. Q. And he was the general manager in Macon? A. That's right. Q. Did you pay your salesmen a commission, did you pay him a salary or how did you divide the profits with the salesmen? A. They were paid a commission."
The defendant testified on his own behalf by deposition as follows: "Q. What is your full name? A. Jack Silvers, doing business as American Veneering Company. Q. Are you a resident of the City of Pittsburgh, Allegheny County, Pennsylvania? A. Yes. Q. Were you ever known as John Silvers? A. No. Q. On or about November 27, 1952, were you in business? A. Yes. Q. What was the nature of your business? A. We accepted contracts for home improvements and performed them. Q. Did you have an office in Macon, Bibb County, Georgia? A. Yes, we did. Q. Who was in charge of that office? A. Phillip Levie. Q. Did either you or your manager, Mr. Levie, employ any salesmen or solicitors to obtain any contracting business for your Macon, Georgia, office? A. No, we did not. Q. How did you obtain the contracts which you performed? A. We purchased the contracts from independent contractors and free agents. Q. And you then proceeded to perform the work? A. That is right. Q. You say you purchased the contracts from these independent contractors? A. That is correct. Q. What was the basis of your payment to them? A. The price paid for each contract was the result of negotiation on each transaction. Payment to the independent contractor was made only after the contract was completed. Q. Did you at any time employ these persons? A. No. Q. Did you pay them any salaries or other compensations? A. No, I did not. Q. Did you deduct any social security? A. I did not deduct social security. Q. Did you deduct any unemployment compensation? A. I did not deduct any unemployment compensation. Q. Did you deduct any withholding tax? A. No, I did not. Q. Did either the State or Federal government request you to make any returns for these items on any of these individuals? A. No. Q. Were you at any time required to carry workmen's compensation insurance on any of these contractors? A. No. Q. Do you know one G. L. Bernard? A. I never met the person in my life. The first time I heard the name was when this suit was filed. Q. Have you ever met him? A. No. Q. Was G. L. Bernard ever your employee? A. No. Q. Do you know Jack Miller? A. Yes. Q. Who is he? A. Jack Miller was an independent contractor with whom we had done business. Q. Was Jack Miller employed by you? A. No. Q. Was he employed by your manager, Mr. Levie, in your behalf? A. No. Q. If Bernard and Miller had in their possession a contract on which your name was printed will you explain how this could have happened? A. These independent contractors often came to the offices and picked up forms of contracts but they can only be used by them as independent contractors, as I have stated heretofore. Even if they used forms on which our name appeared to solicit business we still have the right to refuse to purchase any contracts they may obtain because they were not in our employ and acted independently only. Q. Do you know Mrs. Lois Carmichael? A. No. Q. Had you ever heard her name before the filing of this suit? A. No. Q. Did your company ever have a contract with Mrs. Carmichael? A. Since the filing of this suit I have learned that a contract was submitted to the Macon, Georgia, office. The manager ordered material delivered for the job. Q. Did you at any time engage G. L. Bernard to solicit a contract of Mrs. Lois Carmichael? A. No. Q. Did you at any time know that Bernard intended to solicit a contract from Mrs. Lois Carmichael? A. No. Q. Have you ever met Bernard since the filing of this law suit? A. No. Q. Do you know where he is now? A. No. Q. Did you ever instruct Bernard to do the things or any of them to Mrs. Lois Carmichael which she claims in her complaint Bernard did do to her? A. No. Q. Would you have approved of these alleged acts had you known about them? A. Certainly not. They weren't authorized and I wouldn't think of permitting anyone to do them in my behalf. Q. When did you first learn about these alleged improper acts on the part of Bernard? A. I didn't know anything about them until I was served with notice of suit."
1. (a) We have set out the evidence somewhat in particularity in order to determine better the issue presented. It will be noted that the evidence for the plaintiff is undisputed that Levie was the general agent, in charge of the business of the defendant. It is also undisputed that Levie sent Bernard to the home of the plaintiff on the morning of the difficulty of which complaint is made. It is undisputed that Bernard at the direction of Levie took a revised contract to the plaintiff's home for the plaintiff to sign, and that, when she refused to sign it, he manhandled her and committed upon the plaintiff an assault and battery. It must be kept in mind that the only witness testifying to the unlawful conduct of Bernard was the plaintiff herself. Levie and Bernard did not testify. The defendant contends that, since Bernard was not on the payroll of the defendant and had not been dealt with as an agent, he was not, under the circumstances of this case, a general agent of the defendant; but that the evidence showed that the connection of Bernard with the transaction was that of an individual and independent contractor. We do not think that the evidence in this case bears out the contention of the defendant. Bernard was employed in this particular instance by the general manager Levie, who had the right to employ him. The testimony of the bookkeeper, Mrs. Fisher, bears out this view. Code § 4-101 reads: "The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf."
This court in Arthur v. Georgia Cotton Co., 22 Ga. App. 431 (1) ( 96 S.E. 232) said: "Where the owner of property engages another to find a purchaser for it and to negotiate terms of sale at a named minimum price or better, and such person, with or without compensation, assumes such duty, and, by virtue of his delegated authority, procures a purchaser for the owner, and the owner consummates a contract of sale with the buyer upon terms which have been arrived at solely by virtue of the previous negotiations thus had, the relation which subsists between the seller and the one acting for him in such previous negotiation of terms, is that of principal and agent." It will thus be seen that the payment of compensation is not a necessary ingredient of principal and agent. In Baldwin v. Garrett Sons, 111 Ga. 876 (2) ( 36 S.E. 966), the Supreme Court said: "An agent to conduct a given business for his principal necessarily has authority to do everything which is essential to the performance of his duties as agent." This court in Bacon v. Dannenberg Co., 24 Ga. App. 540 (1) ( 101 S.E. 699) said: "A general agency exists where there is a delegation of authority to do all acts in connection with a particular trade or business, and in such a case the principal is bound by the acts of his agent within the apparent scope of his authority. Foster v. Jones, 78 Ga. App. 150 (1) ( 1 S.E. 275)." See, in this connection, Mason v. Rice, 47 Ga. App. 502 (1) ( 170 S.E. 829). See also Code § 4-307. Code § 105-108 reads: "Every person shall be liable for torts committed by . . . his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary." See Seaboard Air Line Ry. Co. v. Arrant, 17 Ga. App. 489 (2) ( 87 S.E. 714). American Security Co. v. Cook, 49 Ga. App. 723 (1) ( 176 S.E. 798) states that the courts of this State have settled that the master is liable for the tort of his servant committed in the performance of his master's business, even though the tort be a wilful one. In Coleman v. Nail, 49 Ga. App. 51 (1) ( 174 S.E. 178) this court said: "A master is liable for the torts of his servants . . . although the torts may amount to a crime."
(b) The defendant contends that the plaintiff did not carry the burden of proof as required under Code § 38-103. In this connection counsel call our attention to Kimsey v. Rogers, 166 Ga. 176 (8) ( 142 S.E. 667); Hill v. Harris, 11 Ga. App. 358 (4) ( 75 S.E. 518); Little v. Dolvin, 25 Ga. App. 264 (1) ( 103 S.E. 35); Windham v. Taylor, 42 Ga. App. 521 (1) ( 156 S.E. 744); Courson v. Pearson, 132 Ga. 698 ( 64 S.E. 997). These cases hold in effect that the burden of proof is on the plaintiff to establish the case. The defendant contends that proof must be a preponderance of the evidence, and calls our attention to Grimsley v. Morgan, 178 Ga. 40 ( 172 S.E. 49) wherein the Supreme Court said: "If the plaintiff alleges a right to recover, and the defendant denies his allegation without more the plaintiff, upon the case as a whole, carries the burden of showing, by a preponderance of the evidence, that he is entitled to recover." The defendant further contends that it is for the jury to decide whether or not the defendant has carried the burden by a preponderance of the evidence; and the jury having found against the plaintiff, it was thereby determined that the plaintiff did not establish proof by a preponderance of evidence. In this connection, the defendant calls our attention to Code § 38-107, which states: "In determining where the preponderance of evidences lies, the jury may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, and the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear from the trial. The jury may also consider the number of the witnesses, though the preponderance is not necessarily with the greater number." In this connection counsel also call our attention to Anderson v. Savannah Press Publishing Co., 100 Ga. 454 ( 28 S.E. 216). Our attention is called further by counsel for the defendant that the only witnesses used by the plaintiff in an effort to establish the case were the plaintiff herself and her husband, and that those two witnesses were interested in the case, since they would receive the fruits of a judgment in their favor. The defendant contends that "Testimony of a party should be construed more strongly against him." Then counsel cite Thompson v. Metropolitan Life Ins. Co., 45 Ga. App. 90 ( 163 S.E. 527); Farrell v. Barrett, 45 Ga. App. 104 ( 163 S.E. 217); Stevens v. Green, 42 Ga. App. 512 ( 156 S.E. 626); Pelotte v. Simmons, 41 Ga. App. 198 ( 152 S.E. 310); Butler v. Morgan, 40 Ga. App. 304 ( 149 S.E. 388); Gardner v. Smith, 39 Ga. App. 224 ( 146 S.E. 648); and Louisville Nashville R. Co. v. Lusk, 37 Ga. App. 99 ( 139 S.E. 89). The defendant further contends that the plaintiff's testimony, construed in its worst light, would warrant a verdict against her, as she had no evidence other than her own testimony which would show her right to recover. Her age and physical condition as testified to by her would be sufficient to warrant the jury to find against her, as they could have easily believed that her nervous condition, if any, was caused by her age and physical condition and not by the alleged acts of Bernard. Counsel quote from American National Insurance Co. v. Gantt, 46 Ga. App. 744 ( 169 S.E. 133), as follows: "The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague and equivocal. And unless there be other evidence tending to establish his right to recover, he is not entitled to a finding in his favor if the version of his testimony, most unfavorable to him, shows that the verdict should be against him." Counsel also cite the following cases to support this contention: Clark v. Western A. R., 41 Ga. App. 317 ( 152 S.E. 847); Louisville Nashville R. Co. v. Lusk, supra; Hogan v. Gilbert, 27 Ga. App. 444 ( 108 S.E. 625); and City of Thomasville v. Crowell, 22 Ga. App. 383 ( 96 S.E. 335).
It is the defendant's contention further that the testimony of the plaintiff was contradicted as to agency by the testimony of Mrs. Fisher and the defendant; and that, taking the plaintiff's contention to be true and that her testimony was uncontradicted, there were circumstances inconsistent with the truth of her testimony. The first such circumstances would be her age, which placed her in the age group in which women normally go through "change of life"; and further her testimony that she was actually going through this "change of life"; that these are circumstances inconsistent with her testimony that her nervous condition was caused by the acts of Bernard, and that therefore the jury were not obligated to believe her testimony. In this connection counsel call our attention to Detwiler v. Cox, 120 Ga. 638 ( 48 S.E. 142), wherein it is stated: "The interest of a witness in the result of the suit may always be considered in passing upon his credibility, and where there are circumstances inconsistent with the truth of his testimony, the jury are not obliged to believe him, even though he is not contradicted by any other witness." Counsel also call our attention to Armstrong v. Ballew, 118 Ga. 168 ( 44 S.E. 996); Amis v. Cameron, 55 Ga. 449; Penny v. Vincent, 49 Ga. 473; Laramore v. Minish, 43 Ga. 282; Fincher v. Harlow, 56 Ga. App. 578 ( 193 S.E. 452); McRae v. Wilby, 59 Ga. App. 401 ( 1 S.E.2d 77); and Horton v. Johnson, 192 Ga. 338 ( 15 S.E.2d 605). Counsel also call our attention to Eberhardt v. Bennett, 163 Ga. 796 ( 137 S.E. 64), wherein the Supreme Court said: "While a juror may not be authorized to captiously disregard the testimony of a witness who is not impeached in any of the modes prescribed by law, still a juror is at liberty, dependent upon the circumstances of the case, to disbelieve any testimony of any or all of the witnesses in a case."
We will discuss these contentions briefly. The last decision quoted immediately hereinabove states that a juror is not authorized to captiously disregard the testimony of a witness who is not impeached in the modes prescribed by law, but the jury may depend upon the circumstances of the case and disbelieve any testimony of any or all the witnesses in the case. According to our way of thinking, the evidence overwhelmingly establishes the fact that Levie was the general agent in charge of the defendant's business in Georgia while the defendant was in Pennsylvania. Certainly the evidence for the defendant in no wise contradicted this proposition. It might be interesting in this connection to inquire why no effort was made, insofar as the record reveals, to determine the whereabouts of Bernard and Levie at the time of the trial. In the interest of truth and justice, it occurs to us that the defendant should have made an effort to procure them to rebut the testimony of the plaintiff. Certainly it was not the duty of the plaintiff to make an effort to procure them.
The defendant contends that the jury were authorized to find that the testimony of the plaintiff should be wholly disregarded, although she was not impeached, because of her period in life where women normally go through what is generally known as "change of life." There was no evidence to this effect except by cross-examination of the plaintiff by counsel for the defendant. We have read that evidence carefully several times, and by reference to her testimony on cross-examination it appears from the record that counsel for the defendant rely on questions propounded as evidence of such fact. It will be noted that to practically all of the questions propounded on cross-examination, seeking to discredit the plaintiff, she answered in the negative. We know of no rule of law which would permit such questions to be considered as evidence by the jury. The plaintiff positively testified that she had no nervous trouble until after the manhandling and assault and battery committed upon her by Bernard, who was sent there by the general agent of the defendant, Levie. We fail to find, in all the evidence, any circumstances that would authorize the jury to captiously disregard the unimpeached testimony of the plaintiff. In this connection we call attention to Myers v. Brown, 74 Ga. App. 534 (1) ( 40 S.E.2d 391) and Dowdle v. West Lumber Co., 79 Ga. App. 663 (1) ( 54 S.E.2d 682). Regarding the circumstantial evidence and the positive and unimpeached testimony of a witness, this court held in Neill v. Hill, 32 Ga. App. 381 ( 123 S.E. 30): "(a) The testimony of witnesses who swear positively, and are not otherwise impeached or discredited, should not be discarded merely because they are related to the party in whose behalf they testify, although it is proper for the jury to consider such relationship when there is other matter by reason of which they may legitimately question the credibility of the testimony. 28 R. C. L. 660, § 245; Central of Ga. Ry. Co. v. Bernstein, 113 Ga. 175 (6) ( 38 S.E. 394); Armstrong v. Ballew, 118 Ga. 168 (2) ( 44 S.E. 996); Macon Birmingham R. Co. v. Revis, 119 Ga. 332 ( 46 S.E. 418); Detwiler v. Cox, 120 Ga. 638 ( 48 S.E. 142); Civil Code (1910) § 5878.
"(b) A fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist. Frazier v. Ga. Ry. c. Co., 108 Ga. 807 (1); Hendon v. State, 10 Ga. App. 78 ( 72 S.E. 522); Georgia Ry. Elec. Co. v. Harris, 1 Ga. App. 714, 717 ( 57 S.E. 1076).
"(c) Whether the evidence, introduced by the defendant, that the intestate or alleged maker was able to write her own name and was in the habit of doing so, might be relevant and furnish a `collateral prop' to other evidence, it could not have been within itself sufficient to support a verdict in favor of the plea, as against the character of evidence introduced by the plaintiff in opposition thereto. This case is distinguishable from Dillard v. Holtzendorf, 140 Ga. 17 (1) ( 78 S.E. 414), and Stewart v. White, 143 Ga. 22 (1) ( 84 S.E. 63). In each of those cases there was other evidence in support of the plea."
See also Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 ( 168 S.E. 112), wherein this court said: "A fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist."
To the principle of law that a jury may not arbitrarily disregard the testimony of a witness by reason of interest in the result, see Brunswick Western R. Co. v. Wiggins, 113 Ga. 842 (1) ( 39 S.E. 551, 61 L.R.A. 513) and Central of Ga. Ry. Co. v. Mote, 131 Ga. 166, 176 ( 62 S.E. 164).
We might again revert to the principle of agency. The declarations of a mere agent, standing alone, are not sufficient to prove agency. The declarations of a general agent made while in the employ of the defendant are admissible to prove agency. See, in this connection, Citizens' Bank of Tifton v. Timmons, 15 Ga. App. 815 (2) ( 84 S.E. 232); Mason v. Rice, 47 Ga. App. 502, 504 ( 170 S.E. 829); Camilla Cotton Oil c. Co. v. Walker, 21 Ga. App. 603 (6) ( 94 S.E. 855); Krogg v. Atlanta W. P. R. Co., 77 Ga. 202 (1, 1a) (4 Am. St. R. 77); Louisville Nashville R. Co. v. Tift, 100 Ga. 86 (3) ( 27 S.E. 765); Farmers' Ginnery Mfg. Co. v. Thrasher, 144 Ga. 598 (4) ( 87 S.E. 804); and Baker v. H. E. Lowe Electric Co., 47 Ga. App. 259 (6) ( 170 S.E. 337). The evidence in this case demanded a verdict for the plaintiff in some amount.
2. Special ground 1 contends that the court erred in charging the jury to the effect that the jury should determine whether Bernard was an agent of the defendant or was an independent contractor. The evidence shows that Bernard was the agent of the defendant when he was sent to the home of the plaintiff with instructions to try to enter into a contract with her. It is contended by the plaintiff that the charge of the court confused the jury, since the jury had heard the testimony of the witnesses and knew or should have known that Bernard was the agent of the defendant; and further contended that, so far as the undisputed evidence was concerned, the charge that the jury should determine whether Bernard was an agent was such as to cast doubt upon the evidence in the minds of the jurors and require them to think that as a matter of law Bernard was not the agent of the defendant, notwithstanding undisputed evidence to the contrary, the court having charged that the jury would settle this question, which had already been settled by undisputed evidence. It is true that the defendant in his plea set up that Bernard was not the agent and that Bernard was an independent contractor, if he was anything; still the evidence for both the plaintiff and the defendant shows beyond dispute that Bernard was an agent of the defendant when he assaulted the plaintiff. In our opinion the criticism lodged against the excerpt from the charge of the court as set out in this special ground is meritorious, and the court erred in connection with giving this charge. See Nation v. Jones, 3 Ga. App. 83 (3) ( 59 S.E. 330), and Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (2) ( 76 S.E. 387, Ann. Cas. 1914A 880), to the effect that a charge which is a correct abstract principle of law, but is not applicable to the evidence and tends to mislead or confuse the jury, is error.
See Americus Gas c. Co. v. Coleman, 16 Ga. App. 17 (2) ( 84 S.E. 493) to the effect that it is error to read to the jury contentions in the pleadings which are not supported by the evidence.
The court erred in denying the amended motion for a new trial.
Judgment reversed. Townsend and Carlisle, JJ., concur.