Scott v. Kelly-Springfield Tire Co.
| Decision Date | 17 December 1924 |
| Docket Number | 15715. |
| Citation | 125 S.E. 773,33 Ga.App. 297 |
| Parties | SCOTT v. KELLY-SPRINGFIELD TIRE CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
"Generally proof of an explicit voluntary admission by a person of a fact adverse to his own interest is, in any civil proceeding against him, prima facie evidence of the existence of that fact, and, unless explained or denied, * * * such admission may, of itself, authorize a jury to find accordingly." William Hester Marble Co. v. Walton, 22 Ga.App. 433 (4), 96 S.E. 269.
Where in the trial of an action upon an open account, the evidence warrants the inference that, on a demand for payment, the defendant had given to the plaintiff a check for the amount of the indebtedness claimed, but that the check was thereafter protested and never paid, if these circumstances are unexplained the jury would be authorized to conclude that the giving of the check was an admission of the justness and correctness of the account, and to render a verdict accordingly. White v. Crane, 62 Ga. 399; Burch v. Harrell, 93 Ga. 719, 20 S.E. 212; Bunn v Atlantic Coast Line R. Co., 18 Ga.App. 66 (2), 88 S.E 798; Hill v. Armour Fertilizer Works, 21 Ga.App. 45 (5), 93 S.E. 511.
Under the rulings in the two preceding paragraphs, the verdict found for the plaintiff in this case was authorized, irrespective of the probative value of any other evidence, and the court did not err in overruling the general grounds of the motion for a new trial.
"The declarations of an alleged agent, though made dum fervet opus, are not admissible to prove his agency." Franklin County Lumber Co. v. Grady County, 133 Ga. 557 (1), 66 S.E. 264. "Before one can be bound by the acts of another who assumes to represent him, due proof of the agency must be made; and before one will be estopped by the act of an agent, it must be affirmatively shown that the agent was acting within the scope of his authority." Decatur County v. Curry, 154 Ga. 378 (5), 114 S.E. 341.
"The fact of agency may be established by the direct testimony of the one who has assumed to act as agent (Friese v. Simpson, 15 Ga.App. 786 [4], 84 S.E. 219); and while the previous declarations of an alleged agent are not by themselves admissible to prove agency (Harris Loan Co. v Elliott Typewriter Co., 110 Ga. 302 [1], 34 S.E. 1003; Americus Oil Co. v. Gurr, 114 Ga. 624 [[1], 40 S.E. 780), after any such direct testimony has been admitted, or the fact of agency has been clearly indicated by proof of circumstances, apparent relations, and the conduct of the parties (Cable Co. v. Walker, 127 Ga. 65 [[1], 56 S.E. 108), the declarations of the alleged agent, though inadmissible if standing alone, become admissible as a part of the res gestæ of the transaction, and as such may be considered in establishing the fact of agency." Render v. Hill Bros., 30 Ga.App. 239 (1), 117 S.E. 258.
Agency is a fact, and the testimony of a witness that a certain person was the defendant's "duly authorized representative" was not subject to the objection that it was a statement of a mere conclusion. Whether the statement was well founded was a matter for cross-examination or for determination by other facts in evidence, either from the witness or other testimony. Sankey v. Columbus Iron Works, 44 Ga. 228 (3); Shaw v. Jones, 133 Ga. 446 (3), 66 S.E. 240. Where, however, such testimony has been given, and it thereafter appears that the witness has answered without any personal knowledge of the fact about which he has testified, his testimony should be disregarded. Reaves v. Columbus Electric & Power Co., 32 Ga.App. 140 (5), 122 S.E. 824; Bull v. Carpenter, 32 Ga.App. 637 (4, 5), 124 S.E. 381.
Where in order to prove liability of the defendant for a part of the goods charged to him, the plaintiff sought to show a delivery thereof by a receipt purporting to have been signed by one as the defendant's agent, and, on cross-examination, the witness, who had testified as indicated in the preceding paragraph, further testified that he "could not swear" that such alleged agent, to whom he had referred in his previous testimony, "was representing" the defendant, and did not mean to say that he knew that such person "had any authority to sign the delivery receipts"; that he did not know what became of the merchandise after the plaintiff's truck left with it, "except that we got our signatures"; that he was not present when the goods "were signed for," but that he knew the signatures to be...
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