Palmer Manufacturing Co. v. Drewry & Lavender , 113 Ga. 366 ( 1901 )

Little, J.

1. There was much conflict in the evidence. Indeed it must be said that the witnesses for the plaintiff and those for the defendant scarcely agreed on any single fact. The original record is voluminous. We have gone over it as an entirety, with the result of having no fixed opinion as to which party should prevail as to the facts. We are not prepared to say from this record that the verdict is contrary to the evidence in the case. As the jury is the tribunal established by law to ascertain, under the evidence, what the truth was, and there was evidence which supported their finding, it must stand. The pressure of the case, so far as the facts are concerned, rested on the question whether Moore was the agent of the Palmer Manufacturing Company in the purchase of the staves which Drewry & Lavender contended that they sold and furnished to the Manufacturing Co. A careful examination of the brief of evidence on this point induces us to believe that the verdict of the jury, determining as a fact that he was such agent, is authorized by the evidence, as a whole, relating to this subject. It may be that a preponderance of the evidence would indicate that he was not; but in passing on the question whether the court erred in overruling the motion for a new trial on the ground that the verdict was contrary to the evidence, this court can not be governed by a consideration as to the preponderance of the evidence; but if the record contains evidence which supports the verdict of the jury, and as the jury is not bound to return a verdict according to the evidence of the greatest number of witnesses, it follows, where they have hi effect determined that the preponderance lies in a given direction, that this court would be usurping their function were we to declare that the jury should have taken the evidence of certain witnesses as a basis for their verdict. Under the evidence in this case we can not say that, the court erred in overruling the motion for a new trial as being without evidence to support the verdict. But it is contended that there is no evidence upon which the jury could have based their verdict for the amount which they found in favor of the plaintiffs. The amount for which the plaintiffs, sued was $716.91, besides interest. The jury returned a verdict for $509.91. A number of the items for the value of which suit was instituted were disputed. Take, for instance, that for the salary of a man for sawing staves, which was charged in the account at $75, and the item for loading staves, charged at $18, and another item, that of overplus on staves, $9 5.15. The jury, under the conflict in the evidence, might have determined that one or all of these items were not proper charges against the defendant. We can not so do. But, in the conflict as to the facts regarding these and other items in the bill of particulars, it is probable that the jury determined that some of them were not proved. How this is we can not say, but there was certainly evidence which, if the jury believed it, would have afforded a margin for the reduction of the amount for which the action was instituted.

2. Another of the grounds on which a new trial is sought is, that counsel for plaintiffs prejudiced the minds of the jury against the defendant, by alluding to defendant in his speech before the jury as “Yankee thieves banded together and coming down here for the purpose of swindling our people,” when there was no evidence of the truth of the statement. Conceding, as we do, the impropriety of the remarks as stated in the motion (see Towner v. Thompson, 82 Ga. 744), it does not appear that counsel for the defendant, at the time they were made or afterward during the trial, made any motion in relation thereto or invoked any ruling of the court thereon.

It was said by Chief Justice Simmons in the case of Metropolitan R. Co. v. Johnson, 90 Ga. 500: “It is as much his [counsel’s] duty to object to improper argument as it is to object to improper evidence, and, in the former case as well as in the latter, if he permits it without objection, he can not demand a new trial on the ground that the jury may have been affected by it. In that case the court ruled: “ The proper method of taking advantage of any misconduct of counsel, amounting to cause for a new trial, is by prompt objection and a request to withdraw the case from the jury.” In the case of Augusta Ry. Co. v. Glover, 92 Ga. 132, this court ruled that improper statements made by counsel in the argument, to which the attention of the presiding judge was not called in some way, would not require or justify the grant of a new trial. It was ruled by this court in Robinson v. State, 109 Ga. 506, that when any exception was taken to objectionable remarks made by the solicitor-general in his argument to the jury and no ruling of the court was invoked thereon, such remarks afforded no ground for a new trial. For a similar ruling see Bridges v. State, 110 Ga. 246. It must, therefore, be ruled that, in the absence of any motion by counsel for the defendant which invoked a ruling of the judge during the trial in reference to the remarks now complained of, there was no error in overruling the motion for a new trial on this ground.

3. The first, third, fourth, fifth, and sixth grounds of the amendment to the motion for a new trial allege that the verdict of the jury was contrary to specified portions of thé charge given to the jury. In effect these are complaints that the verdict was contrary to law. Athens Mfg. Co. v. Rucker, 80 Ga. 291; Ruskin v. Tharp, 88 Ga. 783. They do not allege error in any of the several portions of the charges recited. The extracts state the law applicable to the theory of the case which the defendant entertains. We are not prepared to say that the verdict in this caséis contrary to law.

4. It is further complained that the court erred in charging the jury on the law of agency. In one part of Ms charge the judge instructed the jury that “ if Mr. Moore was the agent of the Palmer Manufacturmg Co. in conducting this negotiation and business, why, the Palmer Co. is bound by whatever their agent agrees to-do,” etc. In another part of the charge he instructed the jury as follows: “ Now, gentlemen, as before stated to you, the principal is always bound by the act of his agent. Whatever was done by the authorized agent of the defendant in this case is binding on him.” The assignments of error made to these portions of the charge are general, and no specific exception (that is to say, alleging in what particulars the charges were error) is made; and while these instructions may be open to the criticism that they might have been more clear and explicit, no vice of this kind is pointed out in the exception taken to them. This being so, and the charges complained of being in substance good, as we shall undertake to show, the broad and general assignments of error are not well taken. It is insisted on the part of the plaintiff in error that the court should have given the law of special agency in charge, and should have added to these charges the qualification, that, to bind the principal, the act of the agent must have been within the scope of his authority. The able and learned judge who presided at the trial of this case undoubtedly had this principle of law in his mind in using the words contained in the charges excepted to. In the one case he charged that if Moore was agent in conducting this negotiation and business, the Palmer Manufacturing Co. would be bound; and in the other, that the principal is always bound by the act of the agent, qualifying it by the further statement that whatever was done by the authorized agent of the defendant in this case is binding on him. Now, if Moore was the agent of the Palmer Company in conducting the negotiations and business of purchasing these staves, then it necessarily follows that Moore was acting in such negotiations and business within the scope of his authority. So, if a thing be done by an authorized agent, it necessarily follows, because he was authorized, that the agent was acting in the scope of his authority. So that, while the charge on this subject might have been fuller and more explicit, we are not prepared to say that it was needful that it should be so. It is a sound principle of law that an act which is done by an authorized agent is binding upon the principal; and that if one was agent in conducting a particular business, his act was the act of the principal. While these instructions on the subject of agency might well have been amplified, they contain, as we understand them, sound principles of law without any additions. Had the defendant desired more specific instructions in relation thereto, he should have prepared and submitted a request for the same. Not having done so, the instructions as they were given were legally sufficient, and the failure to add any other correct principle of law affords no ground for a new trial.

Judgment affirmed.

All the Justices concurring.