Questions of diligence and negligence are peculiarly for determination by a jury, and a nonsuit should not be granted where there is any evidence tending to sustain the plaintiff's claim, or where a jury can fairly and reasonably infer from the evidence a state of facts favorable to the plaintiff.

DECIDED NOVEMBER 12, 1957 — REHEARING DENIED DECEMBER 17, 1957.

J. T. Warnock brought a suit against M. F. Elliott, d/b/a M. F. Elliott Lumber Company, and H. E. Dunaway. M. F. Elliott, the owner of the defendant lumber company, is alleged to be a resident of Upson County, Georgia. The defendant lumber company allegedly did business in the same county. The petition alleges that H. E. Dunaway is a resident of Treutlen County, the county in which suit was brought.

The petition alleges in paragraph 2 that M. F. Elliott "owns and operates, under the supervision of H. E. Dunaway, as his agent and employee, a lumber business in Treutlen County, Georgia, consisting of sawmills, planer mills, trimmers, and other sawmill machinery and a lumber yard known as the M. F. Elliott Lumber Company." By amendment the following was added: "By amending paragraph 2 so as to allege that the sawmill planer mill, trimmer and other sawmill machinery on the lumber yard of M. F. Elliott Lumber Company and owned by M. F. Elliott was under the complete charge and control of his agent and servant, H. E. Dunaway, and that the said H. E. Dunaway, acting as general foreman, had authority to control the work and workers of M. F. Elliott and to direct their work and acts and where they were to work and with the authority to hire and fire workers and especially did he so have this authority in the absence of M. F. Elliott; at the time of the fire and the damages to the plaintiff as hereinafter alleged. The said M. F. Elliott was not present at the site of the M. F. Elliott Lumber Company but had left said site to return to his home in Upson County, Georgia."

Paragraph 3 alleges "that on the 15th day of October, 1954, the sawmill located at the M. F. Elliott Lumber Company was in operation under the control and supervision of the said defendants M. F. Elliott and H. E. Dunaway, and the defendant H. E. Dunaway, as agent and employee of the said M. F. Elliott, was acting within the scope of his employment and authority in the operation of the mill." By amendment the following was added to this paragraph: "That on the 15th day of October, 1954, the defendant, H. E. Dunaway, had entered upon the duties he was hired and employed by M. F. Elliott to perform, viz. general foreman, in charge of the operation of the defendant's (M. F. Elliott's) sawmill and planer mill located in Treutlen County, Georgia, and that acting within this capacity the defendant started or caused to be started a fire at the sawmill owned by the defendant M. F. Elliott and that said fire, due to the negligence of the defendants, spread to the lands of the plaintiff in the manner alleged in the plaintiff's petition and thereby causing the damages as set out herein, all to the injury and damages to the plaintiff."

Paragraph 4 of the petition alleges that on October 15, 1954, at about 2 o'clock p. m. a fire was started from one of the sawmills owned by the said M. F. Elliott and "operated for him by the said H. E. Dunaway" about 100 yards from the lands and timber of the plaintiff; that the fire spread from the mill onto the lands of the plaintiff severely burning and destroying certain timber and items named.

Paragraph 5 alleges that the defendants operated the sawmills, and burned slabs from the sawmills in open pits, without any precaution or protection to the plaintiff's property; that the defendants were negligent in operating the mill in such manner in total disregard of the plaintiff's property; that such negligence has caused damages to the plaintiff. By amendment the following was added: The allegation that the defendants in addition to burning the slabs and other waste also burned sawdust on top of the ground without any pit or without any enclosure or protection to the property of the plaintiff; that said acts of the defendants were in total disregard of the plaintiff's property, which resulted to the plaintiff's damages.

Paragraph 6 alleges that a high wind was blowing at the time the fire was started on the defendants' property; that the earth was very dry, and that because of this and the velocity of the wind, it was exceedingly dangerous and negligent for the defendants to have any fire burning that day.

Paragraph 7 alleges that when the fire was called to the attention of the defendant Dunaway, he did not use the precaution and did not exercise the care of a prudent or reasonable person in that he did not immediately attempt to extinguish the fire or bring it under control, and that he did not use all of his employees to try to control the fire. By amendment it is alleged that the fire was called to the attention of the defendant in his capacity as general foreman of the mill at a time when the fire had broken out where the sawdust and slab pile was burning at a time when it was within the yards and grounds of the defendant lumber company and prior to the time it had spread to the property of the plaintiff.

Paragraph 8 alleges that the defendants were further negligent in permitting the ground around the mill and slab pile to become cluttered with litter and trash, thus creating a great fire hazard. By amendment the plaintiff added that the defendants were further negligent in that they permitted and allowed litter and trash to become cluttered upon the land between the sawdust pit, the slab pit and the lands of the plaintiff and further that they also permitted grass to grow in that location, thus creating a great fire hazard.

Paragraph 9 alleges that the defendants, by their own acts, started the fire on the property of the defendant Elliott which was adjacent to the plaintiff's property at a time when it was very dangerous to have such fire started, and thereafter failed to exercise any care to prevent the fire from spreading.

Paragraph 10 alleges that the defendants were further negligent in having a fire burning on a windy day on the premises of the sawmill which was located dangerously close to the forest lands of the plaintiff.

Paragraph 11 alleges that the negligent acts of the defendants were the direct and proximate cause of the fire spreading to the plaintiff's land, and the resulting damages thereto.

Paragraph 12 alleges that, by reason of the aforesaid fire and negligence of the defendants, the plaintiff sustained damages to timber on 235 acres of land in the sum of $20,810; approximately 30 barrels of turpentine gum reasonably worth $750; future loss of turpentine gum in the sum of $25,000; approximately 10,000 cups and aprons installed reasonably worth $2,500; one tenant house reasonably worth $350 and one barn reasonably worth $150; one mile of fencing and posts worth $546. One of the amendments to the petition alleges that the defendant Dunaway, in addition to his duties as general manager and overseer of the defendant lumber company, had specific and personal charge of the sawmill and was foreman of the said sawmill operation as agent and employee of the defendant Elliott, and that he had entered on such specific and personal duties and was acting as such agent in the carrying on of such sawmill operation on the day of the fire; that he operated the sawmill in a negligent manner, resulting in injury to the plaintiff's property; that the defendant Dunaway was further negligent in burning sawdust in an unprotected unenclosed and open pit; that he was especially negligent in the use of a blower type sawdust pit unprotected and unenclosed; that the defendants were especially negligent in the carrying on of the sawmill operation in such a manner on a day when the wind was blowing at a very high velocity, and in failing to use proper, reasonable, and ordinary care to prevent the spread of fire from the defendants' property to the property of the plaintiff.

Judgment was prayed in the amount of $50,106.

At the conclusion of the evidence the trial court granted a nonsuit at the instance of counsel for the defendants. It is to the granting of the nonsuit that the case is here for review.

The evidence shows substantially as follows: The plaintiff, J. T. Warnock, testified that his property had been damaged and destroyed by a fire which spread from the sawmill of M. F. Elliott Lumber Company. He further testified and proved the damages sustained by him as alleged in his petition; that he had had 50 or 60 years experience with timber or sawmilling and that he knew the duties of a sawmiller, which duties required him to prevent the accumulation of litter and trash to prevent the spread of fire from a sawmill, and to burn waste from a sawmill in such a manner as to control and prevent the spreading of fire to adjacent lands. He further testified that on such a windy and dangerous day nobody ought to have been trying to operate a sawmill. The plaintiff further testified that when he arrived at the scene of the fire, the fire had spread from the lands of the defendant M. F. Elliott from the sawmill onto the lands of the plaintiff; that the sawmill was 50 to 100 yards from the lands of the plaintiff; that two fires had broken out at that point or location shortly before the date of the fire in question and at that time the wind wasn't blowing much and they were put out. On the occasion of the first two fires the defendant Dunaway came to the scene of the fires and the plaintiff showed him that the fires went out from their trash pile; that the defendant Dunaway was the man to whom he talked about the fires and that the defendant Dunaway "was the boss of it down there," and that he appeared generally to be in charge.

W. W. Warnock testified on behalf of the plaintiff that on October 15, 1954, he went to the fire which spread from the sawmill of M. F. Elliott Lumber Company to the lands of the plaintiff and assisted in trying to control that fire; that there were "knots or limbs or sawdust or something smoking all the way down from the sawmill down through the fence" to the lands of the plaintiff; that the tracks of the fire were from the sawmill to the lands of the plaintiff; that when he arrived at the scene of the fire an area of about one quarter of an acre was burned on the lands of the plaintiff; that the wind was blowing at a very high velocity, for which reason they were unable to control the fire; that a sawdust pile and slab pile was burning between the sawmill and the lands of the plaintiff at the time of the fire; that the sawmill was located about 300 feet from the lands of the plaintiff; that over 200 acres of land of the plaintiff were burned over; that the waste from the sawmill was being burned in open pits and that it was a dangerous day to burn waste in such a manner; that before the date of this fire he had gone to M. F. Elliott Lumber Company to have some lumber dressed and that the defendant Dunaway was the man he went to ask about getting the work done; that Dunaway did it for him and that Dunaway is the man who told him when to bring it for dressing and so forth.

J. Mon Warnock was called as a witness for the plaintiff and testified that on October 15, 1954, a fire occurred on the property of J. T. Warnock; that witness went to the fire soon after it had originated; that he could tell that it originated on the M. F. Elliott Lumber Company lands and had burned through the fence onto the Warnock lands; that they were burning sawdust and slabs at the sawmill located on the lands of M. F. Elliott in open pits; that he could tell that the fire had originated at the sawmill and burned onto the lands of J. T. Warnock; that on the day of the fire the weather was very windy and was blowing at a very high velocity and that the fire had spread onto the lands of the plaintiff from the direction from which the wind was blowing; that there had been a previous fire on the lands of J. T. Warnock which originated from the M. F. Elliott Lumber Company and on that occasion he saw the defendant Dunaway at the fire; that Dunaway had brought some of his employees to help put out the previous fire; that he directed his employees what to do at the fire and was apparently in charge; that witness has also seen the defendant Dunaway on the grounds of the M. F. Elliott Lumber Co. practically every time he has been there, and from his action he was apparently in charge; that witness has a farm, or farms the lands adjoining the M. F. Elliott Lumber Company and has seen the defendant Dunaway on many occasions at the M. F. Elliott Lumber Company; that witness worked the turpentine on the lands of J. T. Warnock which were burned over by the fire and that there were approximately 30 barrels of turpentine gum in the cups on the trees at the time of the fire which was also consumed by the fire and that the turpentine was valued at $25.32 per barrel; that the timber, the cups, aprons and fence destroyed by the fire was of the value alleged in the petition. On cross-examination this same witness testified that it was general talk that Mr. Dunaway was the foreman and manager of the M. F. Elliott Lumber Company; that he had heard him direct employees and that witness has known of the defendant Dunaway going to Tarrytown to try to find employees for the M. F. Elliott Lumber Company; and that everybody in the community recognized the defendant Dunaway as being the manager of the M. F. Elliott Lumber Company and sawmill operation; that he knew the defendant Dunaway was employed by the Elliott Lumber Company and that he had purchased some lumber from him while he was working at the said lumber company; that Dunaway attended a previous fire which escaped from the lands of M. F. Elliott Lumber Company; that he brought some of the employees with him and directed them in the fighting of the fire; that he has a farm next to the sawmill and that he has seen the defendant Dunaway at the mill on several occasions and that he has seen him all over the yard at the planer mill, sawmill and office; that witness knows the general reputation by everyone who knew him was that Dunaway was the boss; that witness has heard several employees speak of Dunaway as being the boss, and that he has also heard several people in the community speak of Dunaway as boss, and they generally recognized him as such.

Samuel D. Lane, Jr., testified that on October 15, 1954, he was employed by the Treutlen County Forestry Unit and that he attended the fire on the lands of J. T. Warnock on said date, and that October 15, 1954, was a very "high class fire" day; that there were high winds and it was dry and had been dry for some time; that that particular day was a class five day which was the highest classification given by the forestry department as to dangerous fire days; that the fire traveled in an easterly or south-easterly direction and in relation from the sawmill to the fire it would put the mill in the middle; that is, it would put the mill between the wind and where the fire started; that from the way the wind was blowing the fire could not back; that there was a small fire on the lands of J. T. Warnock on October 9, 1954, and that it was assumed that that fire also came from the mill, and that it was determined that it could have started in no other place.

Edward Richardson testified that he was employed as assistant ranger of the Montgomery County Forestry Department, and that on October 15, 1954, he was called to the fire in question which was burning on the lands of the plaintiff J. T. Warnock near a sawmill; that when he first got there the fire was burning out from a little hill out from the sawmill; that it was a very "high class fire" day and the wind was about 20 miles an hour; that the wind was very high and it was dry; that the day was dangerous for fire; that it was a bad day on which to have a sawdust pit burning; that he used a large tractor in attempting to control the fire but that he never did get to fire any lanes; that the fire was popping up all around him and that he had to keep going in one direction and had to run to stay out of the way of the fire.

Lee Willis Love testified that on October 15, 1954, he was working at that sawmill, and that on that day a fire was going in the sawdust pit at the sawmill; that the fire which spread to the lands of the plaintiff started from some old brushes and some old tops between the fence line and the sawmill; that the fire got out from that sawdust pit and burned over onto the lands of the plaintiff Warnock; that he saw the fire start; that it started on said lands of the defendant Elliott; that Dunaway was working at the sawmill at the same time as witness, and that he worked for Dunaway; that Dunaway gave witness orders to work and where not to work; that Dunaway had control of his work; that Dunaway gave him his payroll and that he thought Dunaway was his boss; that it was a windy day; that he heard the sawer at the sawmill tell Dunaway that morning that it was too windy to saw, and that Mr. Dunaway told him to keep sawing and he kept on sawing; that Dunaway went and got three or four pairs of goggles and gave them to the boy who was sawing, to the boy who was turning logs, and to the boy who was measuring, and told them to keep on working; that they did keep on working; that Dunaway ran the sawmill; that Dunaway was not employed as a machine man and planer mill man but that he came there and worked at the sawmill, and that Dunaway gave orders around there to the boy who was sawing lumber, the sawer, "and to all of us."

John Henry Love, Jr., testified that on October 15, 1954, he was working at the M. F. Elliott Lumber Company and that his job was rolling down logs to the sawmill; that he was working there when the fire started and that he saw the fire start in a trash pile; that it started on the Elliott Lumber Company lands; that it had a chance to start from the pits; that they were burning sawdust and slabs in pits and that one of the pits was enclosed a little bit on the side next to the mill but the other sides were not enclosed; that the sawdust was burning in a blower type pit and that you could see sparks being blown in the air on the day of the fire; that he tried to help put out the fire and that Mr. Dunaway was the man who told him to help; that when he was employed by the M. F. Elliott Lumber Company he asked Dunaway for a job and Dunaway told him to wait at the sawmill and later Mr. Beckworth told him to go to work. Mr. Dunaway was the boss; he was the foreman of the mill and gave him orders where to work and when to work.

Ralph Haggard, J. H. Mason, and J. E. Hall and others testified to the same general effect.

GARDNER, P. J.

1. Counsel for the defendants contend that where a principal and his agent are sued as joint tortfeasors in the county of the residence of the agent and it develops that the agent is not a joint tortfeasor, and that the principal is not a resident in the county in which suit is brought, the suit can not be maintained in that jurisdiction. This is a true principle of law. See Crosby v. Calaway, 65 Ga. App. 266 ( 16 S.E.2d 155), and Shelton v. Atlantic Coast Line R. Co., 88 Ga. App. 834 ( 78 S.E.2d 99).

We now move to decide the matter of whether or not the defendant H. E. Dunaway was the agent and employee of the defendant M. F. Elliott, d/b/a M. F. Elliott Lumber Company. Code § 4-101 provides that 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 Code section clearly sets out the relation of principal and agent. See Martin Hicks v. Bridges Jelks Co., 18 Ga. App. 24, 25 ( 88 S.E. 747).

Proof of agency may be made by showing circumstances, apparent relations, and conduct of the parties. See Cable Co. v. Walker, 127 Ga. 65 ( 56 S.E. 108); Larkins v. Boyd, 205 Ga. 69, 72 ( 52 S.E.2d 307); Nichols v. Lindsey, 45 Ga. App. 648, 657 ( 165 S.E. 868); Equitable Credit Corp. v. Johnson, 86 Ga. App. 844, 847 ( 72 S.E.2d 816). Counsel for the defendants cite Render v. Hill Bros., 30 Ga. App. 239 (3) ( 117 S.E. 258). That case holds that an overseer does not have legal authority to act as a purchasing agent, but in headnote 3 Judge Jenkins, speaking for the court said: "In the absence of the employer, the overseer stands in his place." The fact that the agent in that case did not have specific authority to make purchases does not make that case authority for the defendants' contentions in the instant case. Collins Toole v. Crews, 3 Ga. App. 238 ( 59 S.E. 727) holds substantially that proof of agency, in regard to specific acts, depends upon the relationship of the parties and extends no further than to the authority necessary to do acts relative thereto. Counsel for the defendants cite Wikle v. Louisville Nashville R. Co., 116 Ga. 309 (1) ( 42 S.E. 525), which holds that agency is shown by proof of the relative situation of the parties. Counsel for the defendants argue that before the agent Dunaway could be held liable personally for nonfeasance, the duty to perform such acts must appear; that it would not be his duty to perform any of them unless he had agreed or assumed to perform such acts, and cites in support thereof Crosby v. Calaway, 65 Ga. App. 266, supra. This is a correct principle of law but is not applicable, because the evidence in the instant case does not show that the principal retained any control over the physical aspects of operating the business when the owner was away. There is sufficient evidence from many people, as disclosed hereinabove, to show that the agent Dunaway was in complete charge of the business in the absence of the owner. Any acts of misfeasance such as maintaining the fire on a windy day and nonfeasance such as not enclosing the fire, not keeping the premises free of litter and trash, not maintaining fire equipment on the premises, not trying to contain the fire and not using all available employees to try to control the fire when it began to spread, were acts entirely under the control of the agent Dunaway. The record shows that the owner was absent at the time of the fire. See also Kimbrough v. Boswell, 119 Ga. 201 (2) ( 45 S.E. 977). The act of misfeasance, i.e. maintaining a fire on a windy day, is so intermingled with the alleged acts of nonfeasance that we feel that the alleged acts of nonfeasance are positive factors involved in the act of misfeasance. In Owens v. Nichols, 139 Ga. 475, 477 ( 77 S.E. 635), cited by counsel for the defendants, it is said: "An agent is not ordinarily liable to third persons for nonfeasance. . . Where an agent fails to use reasonable care or diligence in the performance of his duty, he will be personally responsible to a third person who is injured. . . When once he enters upon the performance of his contract with his principal, and in doing so omits, or fails to take reasonable care in the commission of, some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf. . . Misfeasance may involve also to some extent the idea of not doing; as where an agent engaged in the performance of his undertaking does not do something which it is his duty to do under the circumstances, or does not take that precaution or does not exercise that care which a due regard to the rights of others requires. All this is not doing, but it is not the not doing of that which is imposed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law as a responsible individual in common with all other members of society." Counsel for the defendants cite Coffer v. Bradshaw, 46 Ga. App. 143 ( 167 S.E. 119). That case goes extensively into the difference between misfeasance and nonfeasance. Headnote 3 reads: "Misfeasance is a positive wrong and means the improper doing of an act which the agent might lawfully do. It may also involve to some extent the idea of not doing, as where an agent engaged in the performance of an undertaking does not do something which it is his duty to do under the circumstances, or does not take that precaution or does not exercise that care which a due regard to the rights of others requires." Counsel also cites the following cases: Southern Ry. Co. v. Grizzle, 124 Ga. 735 ( 53 S.E. 244, 110 Am. St. R. 191), Chambers v. Self, 53 Ga. App. 437 ( 186 S.E. 203), and Ramey v. Pritchett, 90 Ga. App. 745, 751 ( 84 S.E.2d 305). In Ramey v. Pritchett, Judge Carlisle, speaking for the court said: "An agent who undertakes the sole and complete control and management of the principal's premises is liable to third persons, to whom a duty is owing on the part of the owner, for injuries resulting from his negligence in failing to make or keep the premises in a safe condition." All of the cases cited by counsel for the defendants show that in certain instances nonperformance entails liability as do specific acts of negligence. Therefore those cases are not authority for the contentions of counsel for the defendants.

We have studied the evidence carefully in regard to the testimony of all witnesses. We do not agree with counsel for the defendants that the plaintiff's witnesses disproved the plaintiff's case. Had this been true it follows that a nonsuit would have been proper. It is true that agency can not be proved by a witness stating that a person acted as an agent. See Neal v. Patten, 40 Ga. 363, 364, and Rawleigh Co. v. Royal, 30 Ga. App. 706 ( 119 S.E. 339). However those cases are not applicable under the pleadings and evidence in the instant case.

If there is any evidence tending to establish the agency, the questions should be submitted to a jury. A nonsuit may be granted when and only when the question of agency is one of law for the court. See East West Ry. Co. of Alabama v. Sims, 80 Ga. 807 ( 6 S.E. 595). In Wright v. Roseman, 209 Ga. 176, 182 ( 71 S.E.2d 426), the Supreme Court said: "The trial judge always awards a nonsuit at his peril; for if the facts proved would, by any reasonable inference, support a finding in favor of the plaintiff, it is error to deprive him of his right to have the jury, instead of the court, sum up the facts of the case and mould their conclusion into a verdict. . . A nonsuit is a matter of strict law, and when a motion to nonsuit is made, there is no discretion on the part of the court, and if there be any evidence whatever to sustain the action, it must go to the jury." See also Vickers v. Atlanta West Point R. Co., 64 Ga. 306, Gresham v. Stewart, 31 Ga. App. 25 ( 119 S.E. 445), and McCurry v. Moffett, 80 Ga. App. 761, 764 ( 57 S.E.2d 451). The question of the scope and extent of an agency's apparent authority is to be decided from all the facts and circumstances in evidence. It is fundamental that all questions of law must be decided by the court and all questions of fact must be decided by the jury. The agent's authority as well as his negligence in regard to the fire in the instant case are jury questions, under this record.

It is our opinion that there was sufficient evidence to show that the defendants failed to operate the business according to the usual custom of a sawmill business regarding the prevention of the spread of fire; that the defendant Dunaway was negligently maintaining a fire on a windy day; that certain acts of negligence which are stated as nonperformance could as well be stated in the converse and thus become acts of performance involving misfeasance because of nonperformance of duty under the circumstances. In Barrett v. Southern Ry. Co., 41 Ga. App. 70 (5) ( 151 S.E. 690), the court said: "A person who by his own act creates a fire on his premises is under a duty to owners of adjacent property to exercise ordinary care to prevent the spread of the fire to the adjacent property, and where he negligently fails to exercise this duty, and his negligence is the proximate cause of damage to the adjacent property, he is liable to the owner in damages therefor."

There was evidence from which the jury could reasonably infer that the defendant Dunaway was the agent of the defendant M. F. Elliott Lumber Company and that the defendants were negligent in causing damage to the plaintiff. The court erred in granting a nonsuit.

Judgment reversed. Townsend and Carlisle, JJ., concur.

ON MOTION FOR REHEARING.

After studying the authorities cited by counsel for the defendants on motion for rehearing, we wish to state:

(1) Agency can not be established by declarations of the agent alone. See Griffith v. Federal Land Bank of Columbia, 190 Ga. 578, 580 ( 10 S.E.2d 71).

(2) Agency can not be established by general reputation in the community as to such agency, but the conduct of the principal and agent may be used to rebut the denial of the existence of agency for the purpose of impeaching the testimony and contentions of the principal and agent as to the existence of the agency or the scope of the powers of the agent. The court, in the trial of the case, should instruct the jury to this effect.