Kimbrough v. Boswell , 119 Ga. 201 ( 1903 )

Lamar, J.

While an agent is personally liable to those injured by his misfeasance, he is not ordinarily liable for mere nonfeasance. Reid v. Humber, 49 Ga. 208; Civil Code, §§ 3041, 3029. And if, in the present case, the husband was the agent of the wife and authorized to take up cattle trespassing upon her land, she would be responsible for any injury resulting from a failure to give them the proper care and attention demanded by the Civil Code, § 1775, if they were in her possession and control after they were taken up on December 15th. The charge of the court properly submitted to the jury the question as to whether the husband or the wife was in possession and control. But the verdict was not demanded, the evidence on this point being uncertain, as well as conflicting on the issue whether the cows had been damaged as a result of a failure to milk, or from being driven too fast on being carried back to the plaintiff. The record is silent as to whether the property in which they had been impounded belonged to the husband or the wife; and the question as to who had them in control being material, we can not say that the judge abused his discretion in granting a second new trial.

Judgment affirmed.

All the Justices concur.