Opinion
30717.
DECIDED APRIL 12, 1945.
Complaint; from Fulton civil court — Judge Carpenter. September 27, 1944.
James L. Flemister, Noah J. Stone, for plaintiff in error.
Houston White, Margaret Hills, contra.
1. The evidence sustains the verdict under the general grounds. Under the evidence the court did not err in failing to charge on the question of agency.
2. Where, as here, the trial court, in his charge, elaborately defined the contentions of the parties, it was not error to refer the pleadings to the jury, stating substantially that the court would not read the pleadings to the jury in detail but that such would be out with them and that they might "refer to them" as often as they deemed necessary to determine the contentions of the parties.
3. ( a) Where an issue is formed by the pleadings as to an ambiguous term in a contract, it is not error for the court to admit parol evidence on this issue and inform the jury that the meaning of the ambiguous term is a question of fact for the jury to determine.
( b) The submission to the jury of such issue concerning the meaning of the term did not insure unlawfully to the plaintiff's benefit against that of the defendant, and did not place upon the defendant a burden greater than that imposed by the law.
( c) To determine whether or not an excerpt from the judge's charge to the jury amounts to an expression of opinion, this court will look to the setting of the expression in its connection with the whole charge and determine from the whole charge whether such expression transgressed the provision that the trial court is unauthorized to express an opinion as to what has or has not been proved.
4. Though to some extent contingent, damages are not too remote to be recovered where they were within the contemplation of the parties at the time the contract was made. Under the facts of this case it was not error to charge the principles of the Code, §§ 20-1407 and 105-2009.
5. For the reasons stated in the opinion, the portion of the charge assigned as error in special ground 7 of the motion for new trial, when viewed in the light of the whole charge, is not prejudicial.
6. Where the measure of damages is the difference between the market value of the goods before and after the damage, the amount of repairs to the damaged property made by the owner may be taken into consideration by the jury in determining the amount of the damages.
7. Under the facts of this case there is no substantial variation between the allegations and the proof, and the charge complained of in special ground 9 of the motion is adjusted to the case as made by the pleadings and the evidence. Particularly is this true when viewed in the light of the entire charge.
8. The refusal of the court to permit the plaintiff to answer a question, as set out in special ground 10, if error, was harmless.
9. Special ground 11 contains no merit, for the reasons given in the opinion.
10. A witness, although not an expert, may give the conclusion of his opinion, where he also states the facts on which such conclusion is based, and where the question presented to the jury is one of opinion. The value of such conclusion then becomes a jury question as to the credit to be given the testimony, when considered in the light of all the evidence in the case.
11. Special ground 13 is without merit, for the reasons given in the opinion.
12. Where there is an issue of fact under the evidence regarding the extent of an agent's authority, such becomes a question for the jury to decide; but where the evidence demands a conclusion as to the extent of the agent's authority, it then becomes a question of law for the court to determine.
13. There is no merit in special ground 16, for the reasons given in the opinion.
DECIDED APRIL 12, 1945.
H. T. Jarrell brought suit against Weathers Brothers Transfer Company Inc. and recovered a judgment for $1787.25. The defendant filed a motion for a new trial, which contained the usual general grounds and fourteen special grounds. The motion was overruled and the defendant assigns error. The record embraces 145 pages. The briefs of counsel are quite lengthy. They show much research and diligence. While we have read the record with much interest, it will be impossible to give it in much detail.
The plaintiff, a lieutenant commander in the United States Navy, was stationed in Atlanta at the time of the execution of the contract here under consideration. He was residing here with his wife in a home located in a residential section of Atlanta. He was ordered to report for duty as commander of a ship, to a port unknown to him. For a long number of years he had made the navy his career. During his career he had obtained wide experience in directing the transportation of his household effects to various locations to which the government assigned him in this and foreign countries. As is customary, the government agencies attended to, and under navy bill of lading handled the transportation of the plaintiff's household effects, after they were crated and packed at the instance and expense of the plaintiff. When the plaintiff received his orders to leave Atlanta he did not know to what post he would be assigned, but he was eligible as a lieutenant commander in the United States Navy to be stationed in any part of the world in which the naval forces of the United States might enter. He made contact with the defendant, who was engaged in the business of packing, crating, storing, and transporting household effects such as the plaintiff possessed, and who had previously transported the plaintiff's household effects. An agent and representative of the defendant went to the home of the plaintiff for the purpose of negotiating a contract concerning the transportation of his household effects from his home to the warehouse of the defendant and there to pack, crate, and store such effects until such time as the defendant would be authorized to deliver the same under a bill of lading of the Navy Department to be transported to the plaintiff at such place as the naval authorities located the plaintiff. The plaintiff and the defendant met for the purpose of effectuating such arrangement.
The petition alleges that the plaintiff and the defendant, after discussing the matter of the plaintiff's situation and his uncertainty as to his future location, agreed that for the sum of $142.50 the defendant would securely pack and crate the plaintiff's household effects "in substantial wooden containers, adequately padded and braced so as to be safe for shipment by any means of conveyance to any part of the world." It is further alleged that in pursuance of the agreement and understanding between the plaintiff and the defendant, they executed, on September 25, 1941, the following instrument: "Weathers Bros. Transfer Company Inc., 505 West Peachtree Street, Atlanta, Georgia. Sir: You are invited to submit a bid to pack, crate, and haul the household effects of Lieut. H. T. Jarrell, USN, located at his residence, 77 Peachtree Memorial Drive, Apt. No. 4, for shipment by freight. Very truly yours, H. T. Jarrell, Lieut. U.S. N. I will pack, crate, and haul the household effects of the above-named officer for shipment by freight for the sum of $142.50. Packing and crating will be done in a manner conforming to usual commercial practice. Weathers Bros. Transfer Co., by James M. Estes, Mgr."
In pursuance of the agreement, the plaintiff delivered his household effects to the defendant at the plaintiff's home, with the agreement that the defendant was to pack and crate such household effects and store them until the plaintiff gave forwarding instructions, at which time the defendant was to deliver the effects to a common carrier for transportation, properly packed and crated in accordance with the understanding and agreement between the parties. It is further alleged that the defendant did go to the home of the plaintiff and did transport the effects of the plaintiff to the defendant's warehouse for the purpose of packing, crating, and storing the same subject to the order of the plaintiff. An itemized statement is attached to the petition showing an inventory of the property. It is further alleged that the defendant did not pack or crate the property in wooden containers, but packed some of the same in cardboard cartons, and that the property was not properly braced, or even braced at all, in accordance with the terms of the agreement; that it was not properly packed and crated for the purpose of transportation; that as a result of the failure to so pack and crate, the property was damaged; and that the market value of the same was greatly diminished in an amount itemized and alleged. The damage claimed was the difference between the market value of the items immediately before and immediately after the alleged damage caused by the failure of the defendant to perform its contract. It is alleged, by amendment, that the writing hereinabove set forth represented only a part of the agreement; that at the time of the execution of said writing the defendant through its manager Estes explained to the plaintiff that the term "packing and crating will be done in a manner conforming to the usual commercial practice" meant and was understood to mean that the packing and crating of the plaintiff's effects would be done in wooden containers, and would be braced by screws and wooden braces and other braces, and packed in cloth or other padding, and padded so as to prevent movement and damage. The defendant, without having complied with its contract as to packing and crating the plaintiff's effects, on April 10, 1942, delivered the effects (by order of the plaintiff who was at the time in San Francisco, California), to Universal Carloading Distributing Company for the purpose of freighting the same to the plaintiff through the Naval Supply Office in San Francisco. The said common carrier placed upon the shipments no conditions except that the shipments appeared to be in good order and condition. The defendant did not require the common carrier to inspect the inside of the packages or to test their stability to house the contents for a trip by a common carrier, and the common carrier was not required to do so. The plaintiff gave the instructions for shipment to the defendant by letter bearing date of March 26, 1942.
The petition as originally filed sought a recovery of only $700.25 and included an item of $90 for the expense which the plaintiff was occasioned by having to rent an unfurnished apartment. This item of $90 was stricken by amendment. Also, by amendment the damage was increased from $700.25 to $1787.25. The plaintiff filed three separate amendments to his original petition, part of the allegations of which were in response to the defendant's demurrers, and other allegations which were but an addition to and clarification of the original allegations of the petition. We have endeavored to set forth the substance of the allegations of the petition as amended. While there were three amendments to the original petition, there were many sub-additions and some eliminations as to subject-matter of the suit which involved the usual and numerous articles of household effects from the kitchen to the living room, inclusive. While these deletions and additions are numerous, we do not think that said allegations concerning them would in any wise confuse or mislead an ordinary juror. The only purpose in mentioning this phase of the case here is that these amendments are the subject-matter of much discussion of the case.
The defendant filed his answer denying the allegations of the petition except as to the jurisdiction of the court and that it entered into the agreement as shown by the plaintiff's petition.
The evidence for the plaintiff is substantially as follows: The plaintiff made the agreement with the defendant; Mr. Estes, agent of the defendant, explained to him the meaning of the phrase "usual commercial practice," and explained to him in detail the manner in which his various household effects would be packed and crated for shipment. He further testified that the written agreement was not the entire agreement, but that there was an additional agreement to haul the household equipment to the carrier and ship it, upon request from the plaintiff, properly crated and packed for the trip. He testified in detail as to how the articles were to be packed and how the household effects arrived in California in the original packages. He explained that each piece of merchandise listed separately in the petition was taken up by him, and he testified how it was to be packed, and wherein it was not packed as agreed upon. He then testified as to his experience in packing household effects for shipment and gave his opinion that the cause of the damage and injury to the household equipment was the failure of the defendant to pack, brace, and secure the same in containers, according to the agreement. After testifying that he was the owner of the merchandise, and that he had had considerable experience which enabled him to judge the market value for cash of this merchandise, he then testified in detail and specifically as to the fair market value for cash, both before and after, of each article of merchandise allegedly damaged or missing. He testified that he had been in the navy since 1923 and was stationed at Georgia Tech as an instructor at the time the transaction in question took place; that during the time of his residence here, the defendant had moved his household effects locally and had done so in a satisfactory manner, and that this was the reason for calling the defendant regarding the handling of the household effects at the time under consideration; he testified that he asked Estes, the defendant's agent, to make and estimate and that Estes came to his home; that he had orders that he had been transferred at the time Estes came to his home; that he did not know where he was to be stationed; that he had orders to report as commanding officer aboard a destroyer at whatever port it would be; that he did not know where his wife would go or where their home would be; that he explained to Estes that many of the articles of his household effects were of unusual value, having been acquired during a long period of time in all parts of the world; that the navy would pay for the packing, crating, and shipping expense if the packing and crating were done in accordance with the usual commercial practice, but that if the packing and crating were required by the individual to be done beyond the usual commercial practice, the individual must pay the additional amount himself. The plaintiff testified as to what he considered the usual commercial practice to be and about his request of Estes to explain what Estes understood was meant by the phrase "usual commercial practice" in order that he might be assured that Estes's understanding of the phrase was the same as his; that the household effects were not packed at all, but were placed some in wooden crates and some in paper cartons; that the original petition was not based on the correct measure of damages, but was based on estimates from cabinet makers and others to put the articles back in their former condition, and that these estimates were only for certain repairs and not to repair all the furniture; that the furniture which was repaired was just stuck back together so it could be used and that a part of the goods, such as chinaware, glassware, etc., could not be repaired, and that there were two lost items; that he first notified the defendant about the damage on June 13, 1942; that his ship was in San Francisco at that time; that he was present when the articles were received and taken out of the containers; that he had seen the furniture on June 3, but did not know at that time to what extent it was damaged.
He further testified that the defendant through its agent Estes, had agreed, at the time the contract was made, to give him an itemized list of the contents of every container, box, barrel, and crate, by number — a list similar to one given to him when the furniture was last shipped from Manila, whereby the contents of each container could be determined by reference to the number on the outside — but that he never received a list; that before he left Atlanta, he signed a blank-form request for shipment under government bill of lading and left the same with Yeoman Sims, who understood that when he determined where the household effects were to be shipped, he would write Sims and Sims would have the proper figures of weights and descriptions of the effects set up in the bill of lading from the list furnished by the defendant, and have the shipment authorized by the naval supply officer stationed in Atlanta; that the check for $142.50 was to cover packing, crating, and transportation to the carrier, and that he paid $18.00 and some odd cents additional for storage for less than a month and did not know what else that amount covered; that he never received any reply whatever from the defendant to the communications; that on Sunday, July 11, 1943, at 7 p. m. e. w. t., he had a telephone conversation with Estes, the defendant's agent; that Estes twice told him he didn't see any of the furniture after he (Estes) left the plaintiff's apartment until the packing had been completed at the warehouse.
Mrs. Martha W. Jarrell, wife of the plaintiff, testified that she saw this merchandise when it arrived in San Francisco and before it was taken to the storage company there; that it was at the storage company almost a month before it was removed to their apartment and was still in the same packages when it was uncrated in front of the house as it was when it arrived, and was in the same condition when it was uncrated as it was when she first saw it at the freight depot in San Francisco. She testified in detail as to the damaged condition of the furniture when it was received in San Francisco and unpacked, and after testifying as to her training and her familiarity with the market value of similar articles, she testified as to the fair market value for cash of each article at the time it was turned over to the defendant in Atlanta, and at the time it arrived in San Francisco, and as to the value of the two lost articles. She testified that she was present when Estes came to the house and made the contract with them and that, in response to the plaintiff's inquiry as to what Estes understood the phrase "usual commercial practice" to mean, Estes told them in detail its meaning.
The defendant's evidence substantially shows: That James M. Estes, a witness for the defendant, testified that he was employed by the defendant and went to the home of the plaintiff on or about the day the contract was made for the purpose of submitting a bid; that the contract was made in the presence of the plaintiff and the plaintiff's wife; that he had been in the crating, hauling, and packing business for six years; that he explained to the plaintiff his idea of "usual commercial practice," and that the usual commercial practice for furniture is to wrap it with heavy brown paper and protect the polished surfaces with cardboard; that the defendant had been in business for a number of years and the defendant's crater was an experienced man, and the railroad would not accept a shipment unless it was properly crated according to the usual commercial practice, and that it was the railroad's responsibility from the time it was delivered to them; that he understood that it was to be shipped by rail, and that nothing was mentioned about a shipment by water; that the contract was based on the term "usual commercial practice," and that was the basis of the acceptance; that he did not go into every item with the plaintiff as to exactly how it would be wrapped and crated; but that the plaintiff talked to him to some extent on what the usual commercial practice was; that some of the goods were packed at the house and the witness supervised their packing, which was done at the instance of, and in the presence of the plaintiff and the plaintiff's wife; that after the household effects were picked up, they were taken to the warehouse and crated immediately; that he examined the goods after they were crated, and they looked as if the packages were suitable for transportation. He then testified as to the manner in which several of the articles were packed; that he left the employment of the defendant on May 6, 1942, but went back on December 13, 1943, and was at the time of the trial, manager of their office in Washington, D.C.; that the goods were crated immediately on being taken to the defendant's place of business; that he said something to the plaintiff about inspecting the crating and packing — that it was his (the plaintiff's) privilege to come by and inspect it after it was crated if he liked — or he could have appointed an agent if he wanted to to inspect it, but that, of course the plaintiff had to leave town immediately and did not come by and inspect the packing at the time the goods were crated; that shortly before the goods were shipped Chief Yeoman Sims from the Naval ROTC at Tech came over and told the witness that the furniture was to be shipped on a naval bill of lading and necessarily would be inspected; that Sims inspected the furniture; that he saw Sims twice; that Sims checked the articles from the defendant's ware-house receipt and took an inventory of how many articles there were; that the goods were delivered to Sims from the defendant's warehouse; that the witness was present, off and on, when the delivery was made; that he did not know what trucking company took it; that the defendant did not send the goods to Universal Carloading Distributing Company, and their truck didn't carry it; that he told the plaintiff and the plaintiff's wife that the barrels which were packed at their home would be topped according to the usual commercial practice, by placing burlap sacks over the tops, so the tops of the barrels could be distinguished from the bottom, and thus be kept top side up; that the piano and mirror were to be screwed to the crate; that he had a telephone conversation with the plaintiff when the plaintiff called him in Philadelphia on July 11, 1943, while he was working for the United Van Lines, but that he did not tell the plaintiff that he did not see the furniture after it left his house or when it was crated, nor did he tell him that you could hardly look at a box and tell how a thing is crated inside.
D. E. Peppers, a witness for the defendant, testified that he was the crating man in charge of the defendant's warehouse at the time the plaintiff's furniture was crated, and took part in crating same; that he did not remember when it was done; that it was the usual job. He testified at length as to the packing of particular items of furniture; he testified that he could not remember or describe any of their furniture; that in testifying how this shipment was wrapped and packed, he was testifying in accordance with the manner in which he usually wrapped all shipments; that he did not know anything definite as to how he actually packed this shipment; that he was present when the shipment was taken out of the warehouse; that he talked with Sims, and turned the merchandise over to Sims; that Sims checked the warehouse list; that Sims checked the list item by item and signed for them in the presence of the witness; that the witness did not know where the goods were sent after they left the warehouse; that Sims had some company haul them away; that they were checked outside the building, and the witness closed the back door and left Sims out there with them; that he did not know what went with them; that he did not talk to the plaintiff; that, as far as he knew, Sims didn't load the stuff on the truck at all, because the witness carried his men down to the end and locked the door; that he did not remember the kind of truck that the goods were hauled in; that he didn't see the truck.
J. T. McBrayer, a witness for the defendant, testified that he was the defendant's manager at the time of the trial and had been with the defendant since May 1, 1942, with the exception of from January to September, 1943; that he wrote a letter to some automobile association in this connection concerning the plaintiff; that he saw the plaintiff at his attorneys' office when a conference was held there and the damages were outlined to him at that time; that the warehouse receipt was the whole record that he had seen about the transaction; that he did not have any record as to how the shipment was delivered to Universal Carloading Distributing Company; that the whole transaction happened before he went with the defendant; that he did not know what the plaintiff's check was for, nor did he know the rate of storage per month; that he knew nothing about the transaction except the correspondence with the automobile association and the discussion with the plaintiff in his attorneys' office.
W. J. Weathers, a witness for the defendant, testified that he was president of the defendant corporation; that Peppers handled their inspection and crating and packing, and that Estes was manager at the time this shipment was received; that he (the witness) did not remember talking to anyone concerning this matter when the plaintiff's household effects were packed; that he did not remember the storage rate for this job, and testified as to their usual rates; that he did not know what the $18.50 was for; that he did not know whether the $142.50 covered any hauling, but that shipment by freight could mean that it would be hauled to where it would be shipped by freight; that he did not know whether or not the defendant hauled it to the railroad.
The charge of the court reads as follows: "The case you have been trying is the case of H. T. Jarrell against Weathers Brothers Transfer Company Inc., in which the plaintiff alleges in detail the manner and particularities in which he entered into a certain contract, and alleges his dealing with the defendant in the case, and says that he has been damaged to the extent of $1787.25. To that petition, the defendant comes into court and files a general denial to all of the material allegations, with the exception of admitting the jurisdiction of this court. Gentlemen, I am not going to read these papers in detail; they will be out with you, and you may refer to them as often as you find it necessary, to see what the contentions of the parties are. These pleadings are not evidence; they are merely the contentions of the parties, and you may refer to them, to see what their contentions are. Gentlemen, the effect of the petition and the answer is to put the burden of proof on the plaintiff in the case to establish what is known in law as the legal preponderance of evidence that the allegations that he makes in the case are true. And, gentlemen, the legal preponderance of evidence simply means the greater weight of the evidence upon the issues involved which, while it might not be enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and an impartial juror's mind to one side of the issue rather than to the other. In passing upon where the greater weight or preponderance of evidence rests, you have a right to take into consideration the manner and deportment of the witnesses as they were examined on the witness stand, their interest or lack of interest in the outcome of the case, the probability or improbability of their testimony in your opinion, the intelligence of the witnesses — anything touching the credibility of the witnesses that might lead to where the greater weight or preponderance of the evidence rests in this case. You also have a right to take into consideration the personal credibility of the witnesses, only so far as it appears to you from the trial of the case. It is your duty to reconcile all conflicting testimony in the case and impute perjury to none of the witnesses. If, however, you find evidence that is in irreconcilable conflict, it then becomes your duty to believe that evidence which seems to be most likely to point to the truth of the matter, and let this help you arrive at where the greater weight or preponderance of evidence is.
"Now, gentlemen, this case is based upon an alleged breach of contract, the language of which is as follows: `I will pack, crate and haul the household effects of the above named officer for shipment by freight for the sum of $142.50. Packing and crating will be done in a manner conforming to usual commercial practice.' And, gentlemen, if, in this case, you find that to be the agreement between the parties to this contract, it is up to you to determine what the explanation of that phrase `usual commercial practice' is. The plaintiff in the case contends that, as he testified in the case, it was to be carried out in certain particulars and in a certain manner. The defendant contends that it was to be carried out in another way. Whatever that should be would be strictly a question of fact for you to determine — what interpretation was placed on that clause, at the time they entered into this contract.
"With reference to damages in a case of this kind — if you find that the contract in this case was breached, damages are given as compensation for the injury sustained; remote or consequential damages are not allowed whenever they can not be traced solely to the breach of the contract, or unless they are capable of exact computation. Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach. Direct damages are such as follow immediately upon the act done. Consequential damages are such as are the necessary and connected effect of the tortious act, though to some extent depending upon other circumstances. Gentlemen, that last paragraph does not apply; I will read that again: `Direct damages are such as follow immediately upon the act done. Consequential damages are such as are the necessary and connected effect of the tortious act.' Gentlemen, that does not apply, but the following would apply: Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered; but damages traceable to the act, but not its legal or natural consequence, are too remote and contingent.
"Gentlemen, it resolves itself down simply to a question of fact for the jury to pass upon. If, as contended by the plaintiff in this case, he entered into a contract with the defendant in the case, and if the defendant failed to carry out the contract as has been outlined by the plaintiff, and as a direct result of such breach of the contract, if you find the contract was breached, that that was the cause of the property being damaged, and as contended in the plaintiff's petition, then, gentlemen, the plaintiff in this case would be entitled to recover. But if, on the other hand, as contended by the defendant in the case, the defendant carried out its contract, and there was no breach of the contract of the defendant, then that would terminate this case; for unless there was a breach of the contract as contended by the plaintiff, the plaintiff could not recover at all. The plaintiff's property would have to be damaged, and damaged as a result of a breach, if he is to recover.
"I say to you that the court is not interested in the outcome of this case. The court is simply here to give you the law applicable to the case, and does not express an opinion for or against either of the parties; but leaves it entirely as a matter for you, in your wise discretion, to determine what the facts are in the case, and you will apply these rules of law as I have outlined to you.
"Gentlemen, the phrase, as contended by the defendant in this case, `usual commercial practice,' if, as contended by the defendant, it complied with that phrase in packing the furniture in the usual commercial practice as he would ordinarily pack furniture for such shipment, and as contemplated by the parties in this case; if the defendant did pack the furniture as in usual commercial practice, and if there was no breach of that contract, then, gentlemen, the plaintiff can not recover. But if, as contended by the plaintiff, the defendant has breached the contract, as contended in the plaintiff's petition, and as a result of the breach the plaintiff in the case has been damaged, then the plaintiff would be entitled to recover, under the previous instruction I have given you. It is up to you gentlemen, from the evidence in the case, to say what the contract between these parties was. The ambiguous term in the contract, `usual commercial practice,' is subject to interpretation; and the parties have the right to put their interpretation and explanation on it as they agreed to it, when they entered into it, and the discussion at the time the contract was entered into. So, gentlemen, I say to you in this case, that the parties differ as to what the contract was and they differ as to whether or not there was any damage, and differ as to whether or not there was a breach of the contract; and further, the defendant contends that a breach did not cause any damage complained of. I instruct you that if the plaintiff's property in question was damaged while in transit, and that it was damaged by reason of the fact that it was not properly packed, set, or braced, as contended by the plaintiff, the defendant in the case would be liable. But, gentlemen, if, as contended by the defendant, it did not breach the contract, then, regardless of whether or not it was damaged, the plaintiff would not be entitled to a verdict. Unless the contract was breached, there can be no recovery.
"Gentlemen, if I have not made myself clear in this case, as to my instructions, this has been a long and tedious case. With reference to the measure of damages in a case of this kind, involving personal property, the measure of damages is the difference between the market value of the property immediately before the injury and the reasonable market value of the property immediately after the injury. You have the right to take into consideration the amount of repairs made necessary in determining the amount of damages. So, gentlemen, after you have reached the point, if you find that there was a breach of the contract as contemplated by the parties that this merchandise would be shipped in the manner that it was shipped, and that it was not properly packed as contended by the plaintiff in the case, then you would determine the amount of damages. On the other hand, if you find that there was no breach of the contract, then, gentlemen, that would terminate your investigation, and you would, at that point, bring in a verdict for the defendant. So, gentlemen, whatever your verdict is, I suggest that you use the inside of the petition, there where there is a partial form of verdict already written out. If you find for the plaintiff, the form of your verdict would be, `We, the jury, find in favor of the plaintiff,' so many dollars, and insert the number of dollars you find. If you find for the defendant, the form of your verdict would be simply: `We, the jury, find for the defendant.' — Mr. Flemister: `Your honor, I would like to have an opportunity to put in a written request to charge.' The court: `I will be glad to consider that.' Counsel has called my attention to the fact that I have not defined contract: A contract can be either oral or written, being an agreement between two or more parties for a thing to be done. Does counsel want to write the request out? Mr. Flemister: `I can do so.' I will give it to the jury, if in my opinion it is all right."
We will deal with the general grounds and the special grounds in their order.
1. We have set out substantially, though briefly, the pleadings and the evidence submitted. We have also copied the charge in full, because there are a number of attacks made on it from different angles. In doing so we feel we can more clearly present our view concerning the various assignments of error. We will first deal with the general grounds and special ground 15, which latter ground deals with the question of agency, and which question of agency is also dealt with in the general grounds as well as in special ground 15. In analyzing the contentions of the defendant as to the general grounds these contentions may well be considered under a number of subheads, following the order of their arrangement in the brief of the plaintiff in error. We will endeavor to follow this order of arrangement in our discussion.
(a) At the outset it may be well to state that both parties agree that there was a contract between them whereby the defendant was to receive, pack, and crate the household effects of the plaintiff for shipment, and to store the same until such time as the plaintiff should furnish a shipping address, and that the effects were packed and held by the defendant until they were delivered for shipping. In this connection it is contended by the plaintiff that the articles were not packed, crated, and braced in accordance with the terms of the contract. While on the other hand the defendant contends that they were packed, padded, and crated according to the terms of the contract. It is contended by the plaintiff that the failure of the defendant to pack, crate, and brace the articles in accordance with the terms of the contract caused the damage alleged; that the articles were not sufficiently padded or braced or enclosed in wooden containers to keep them from moving inside the containers and wracking and breaking from such movement, and from being crushed and jolted and broken from external pressure and force while being transported by freight as was within the contemplation of the parties at the time the contract was made. On the other hand, the defendant contends that the articles were packed as agreed, and that if any damage occurred in transit, such was not the result of the defendant's breach of its contract, but was caused and occasioned by some other agency after the shipment was released to the plaintiff under his order. In this connection it is contended that the defendant delivered the shipment to Yeoman Sims, the agent of the plaintiff, who inspected the shipment and received the same for the plaintiff as his agent; that in so doing the plaintiff by and through his agent is bound to the proposition that the defendant fulfilled its contract; that in thus receiving the goods in the condition the defendant packed them, the plaintiff can not now go behind this act and contend that the shipment was not packed, braced, and crated in accordance with the terms of the contract. This brings us then to inquire as to the authority of the agent Sims. It follows from the verdict that the jury necessarily concluded that the articles were not crated and packed in accordance with the terms of the agreement. Therefore this finding necessarily must stand unless Sims, as the plaintiff's agent, had authority to waive the terms of the contract. The difference between able counsel for both sides is not so much a disagreement as to the law of agency, but their differences consist in whether the evidence constitutes Sims a general or a special agent of the plaintiff in this particular transaction. This is to be determined from the record, by what Sims did and by what he was authorized to do, and by such inferences as a jury would be authorized to infer from the evidence that he was authorized to do and did do or could have done. The 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." Section 4-103 reads: "Whatever one may do himself may be done by an agent, except such personal trusts in which special confidence is placed on the skill, discretion, or judgment of the person called in to act; so an agent may not delegate his authority to another, unless specially empowered to do so." Section 4-301 reads: "The agent's authority shall be construed to include all necessary and usual means for effectually executing it. Private instructions or limitations not known to persons dealing with a general agent shall not affect them. In special agencies for a particular purpose, persons dealing with the agent should examine his authority." Section 4-303 reads: "A ratification by the principal shall relate back to the act ratified, and shall take effect as if originally authorized. A ratification may be express, or implied from the acts or silence of the principal. A ratification once made may not be revoked."
The above-quoted Code sections cover the necessary principles of law to be kept in mind in a discussion of this phase of the case. It nowhere appears from the evidence that Sims knew anything concerning the terms of the contract between the parties. It does appear that the household effects were packed by the defendant into sixty-eight containers, shortly after they were taken to the defendant's warehouse and before Sims had ever seen them. There is no evidence that these containers were opened and examined by Sims at the time he receipted for them and had them shipped under a navy bill of lading. The testimony shows that the only authority given Sims by the plaintiff was to receive the household effects from the defendant after they had been packed by the defendant, and Sims was to procure a navy bill of lading for the effects to be shipped to the plaintiff. It does not appear from the evidence that Sims was authorized to do more than this. This he did. Under the evidence, he was a special agent for this purpose and this purpose only. At the time that Sims did these acts the plaintiff was thousands of miles away. Hence there is no evidence at all that the plaintiff knew at this time that the defendant had not packed the household effects according to the terms of the contract. Therefore it can not be successfully contended that the plaintiff ratified anything that Sims did or might have done in the way of changing the terms of the contract. It is elementary that before a principal can be bound by a ratification of the act of an agent he must at the time of ratification have full knowledge of all the material facts by which he is to be bound. Since it nowhere appears from the record that the plaintiff knew at the time Sims received the shipment from the defendant that the goods had not been packed in accordance with the contract, the principle of ratification does not apply. It follows from the evidence and what we have said that the jury were authorized to find from the evidence that the defendant did not comply with its contract in packing the articles for shipment. We deem it unnecessary to call attention here to the many decisions cited by able counsel for both sides on this question, for the facts of the cases cited differentiate those cases from the instant case, and since the evidence and no inferences which could be drawn therefrom could substantiate the conclusion that Sims was authorized to waive the terms of the contract between the parties, and since the evidence is insufficient as a matter of law to raise an issue as to ratification, the court did not err in failing to charge on this principle.
(b) This brings us to consider the question, did the failure of the defendant to pack the shipment in accordance with the terms of the contract cause the alleged damage, and was such damage within the contemplation of the parties at the time the contract was made? The Code, § 20-1406, reads as follows: "Remote or consequential damages are not allowed whenever they can not be traced solely to the breach of the contract, or unless they are capable of exact computation, such as the profits which are the immediate fruit of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract." Section 20-1407 reads: "Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach." It is contended by the defendant that the damages to the property, if any, under the evidence, did not "arise naturally and according to the usual course of things from such breach," and were not such as were contemplated by the parties when the contract was made as a probable result of its breach, and that they were too remote and could not be traced solely to the breach. In support of the defendant's contention counsel cite Georgia Railroad v. Hayden, 71 Ga. 518 (51 Am. R. 274); Andrews v. Kinsel, 114 Ga. 390 (2) ( 40 S.E. 300, 88 Am. St. R. 25); and Reynolds v. Speer, 38 Ga. App. 570 (4) ( 144 S.E. 358). In our opinion the facts in the first two cases cited are so different from the facts in the instant case that we deem it of no use to refer to them further. In the last case, the fourth headnote reads: "Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach. Civil Code (1910), § 4395. Damages which are the legal and natural result of the breach are not necessarily too remote merely because they may be to some extent contingent. Civil Code (1910), § 4394; Walker v. Jenkins, 32 Ga. App. 238 (5), ( 123 S.E. 161)." Let us refer briefly to the evidence in the instant case on this point. It is alleged and proved that the articles which were damaged were not packed, braced, and padded according to the terms of the contract, and that when the shipment reached its destination a number of the articles were damaged, although the outside of the containers was not broken. In this connection it was further alleged and proved that the articles were packed in such a manner that they were moved about and broken and wracked from being loosely thrown in the containers, in many instances without being padded or braced at all. From the evidence it is not difficult to conclude that the shipment would naturally be subjected to jars, to movement, and to external contacts with other articles. To illustrate, let us assume that the household effects, which are the subject-matter of this controversy, had been loosely thrown into boxes and cartons without any padding or packing or bracing, to be shipped across the continent by freight, could it for a moment be contended that they would not have, in the regular course of transit, been wracked and jolted and broken? We do not think so. Of course it is not for us to say whether or not they were properly packed in accordance with the terms of the contract. This was a jury question. Under the evidence in this case the jury was authorized to and did resolve it against the defendant. In doing so, no principle of law was transgressed.
(c) The next question raised by the defendant in its argument on the general grounds concerns a barrel in which chinaware was packed. The contents of this barrel were damaged. It was alleged and proved by the plaintiff that the defendant agreed to have a wooden head in this barrel, and to pad and pack the contents securely; that instead of a wooden head a "burlap sack" was fastened over the top, and in transit the staves of the barrel were "stove in" at the top from external pressure, and the contents damaged because there was no wooden head on the barrel. The defendant contends that it was not customary to put a wooden head on a barrel containing such articles, but by putting a burlap sack over the top the barrel would be kept upright and would be less subjected to damage; and that this barrel and its contents were packed according to the terms of the contract. Again, this was a jury question. The jury was authorized to find that the barrel was not packed according to the contract and that the failure to do so caused the damage. In connection with this, alleged damage to a desk and a chest of drawers is also mentioned. It is contended that the desk "had gouges in the top something similar as if a claw hammer had been used; that there were round gouges out of the surface like a sharp instrument had been dug into the top," and that an antique chest of drawers "had craters like a bombed airfield." It is contended by the defendant that this evidence is sufficient to show that this damage could not have been such as the parties contemplated, and that it was caused by no failure of the defendant properly to pad, pack, and brace the contents of the containers. From the record we think it is evident that reference to "craters like a bombed airfield" was understood by the jury to mean "figuratively speaking." The testimony for the plaintiff does show, however, that if these articles had been padded in accordance with the terms of the contract, this damage could not have occurred. We think the jury was authorized to find, under all the facts and circumstances revealed by this record, that the damage to these items was the subject-matter of a legitimate recovery.
(d) The next items discussed under the general grounds are (1) a chinese screen. The plaintiff alleges and the evidence shows that this was a very large screen of four sections, made to order in China. On these four sections a continuous story had been inscribed. The sixty-eight packages receipted for by Sims arrived in California. One panel of the chinese screen was missing. The evidence showed that this last panel could not be replaced and the whole screen was worthless. (2) The other article mentioned was a wall mirror, not received in the shipment when it arrived in California. The defendant contends that since this mirror was not proved to have been damaged in any way, and since only one panel of the screen was proved to have been missing, the value of the mirror and the value of the entire screen were not chargeable to the defendant. We do not think this position is tenable. The jury was authorized to find that one panel of the screen was never packed and delivered to the plaintiff and his agent according to the terms of the contract, and that this rendered the entire screen of no value. They were also authorized to find that the defendant received the mirror and failed to pack it and deliver it to the order of the plaintiff, according to the terms of the contract.
(e) It is contended that the verdict is excessive and that the amount of the verdict is greater than the items of damage proved. We have checked each item of the property alleged to have been damaged, and as against it each item of damage proved. The damage to each article alleged and proved is the difference between the market-value of such item immediately before and immediately after the alleged damage. We think that the proved damages to these items, when added, total the same as the amount of the verdict rendered, and that there is evidence to support the finding of the jury.
(f) It is contended that the evidence of the plaintiff is self-contradictory, equivocal, opinionated, and circumstantial, and for these reasons insufficient as a matter of law to sustain the verdict. We can not agree with this contention either as to the premises or the conclusion, under the facts of the instant case. Of course we recognize the principle that "if the facts are consistent with either of two opposing theories, they prove neither." Woodruff v. American Mutual Liability Ins. Co., 67 Ga. App. 554, 557 ( 21 S.E.2d 298); Overstreet v. Metropolitan Life Ins. Co., 69 Ga. App. 459 ( 26 S.E.2d 115); Southern Railway Company v. Newman, 187 Ga. 132 ( 199 S.E. 753). The principle announced in the cited cases is not controlling under the facts of the instant case. In so far as the contentions under the general grounds and special ground 15 are concerned, the court did not err in overruling the motion for a new trial.
2. Special ground 4 complains of the following charge of the court: "I am not going to read these papers in detail; they will be out with you and you may refer to them as often as you find necessary to see what the contentions of the parties are. These pleadings are not evidence; they are merely the contentions of the parties, and you may refer to them to see what their contentions are." By reference to the entire charge hereinabove set out, it will be noted that the charge informed the jury sufficiently as to the issues between the parties. In view of such coverage, this assignment does not require a reversal of the judgment. It is contended that under the particular record of this case wherein the petition was amended in various particulars, the jury could not, from the pleadings, determine the issues, and that the court should have instructed the jury more specifically without a request. See in this connection, Hutcheson v. Browning, 34 Ga. App. 276 (4) ( 129 S.E. 125); Tharpe v. Cudahy Packing Company, 60 Ga. App. 449 (4) ( 4 S.E.2d 49). As we have stated, the issues in this case were not so complicated, and the charge of the court so lacking in fullness as to be ground for reversible error.
3. Special ground 5 complains of the following excerpt from the charge: "Now, gentlemen, this case is based upon an alleged breach of contract, the language of which is as follows: `I will pack, crate and haul the household effects of the above named officer for shipment by freight for the sum of $142.50. Packing and crating will be done in a manner conforming to usual commercial practice,' and, gentlemen, if in this case you find that to be the agreement between the parties to this contract, it is up to you to determine what the explanation of that phrase `usual commercial practice' is. The plaintiff in the case contends, as he testified in the case, it was to be carried out in certain particulars, and in a certain manner. The defendant contends that it was to be carried out in another way. Whatever that should be would be strictly a question of fact for you to determine; — what interpretation was placed on that clause, at the time they entered into this agreement." It is contended that this charge is error: (1) that it is incorrect as an abstract principle of law; (2) that it gave the plaintiff a benefit which he did not claim, and placed a greater burden on the defendant than was placed on it by the law; (3) that the court intimated and expressed an opinion as to what had been proved; (4) that it was unauthorized by the pleadings, contrary to law, and harmful and prejudicial to the movant. We will discuss these questions in the order named.
(1) The clause in the contract "usual commercial practice" was ambiguous and subject to explanation by parol evidence, the plaintiff contending that it meant one thing under the contract, and the defendant contending that it meant another thing. Under the facts of this case we are of the opinion that the charge as to this phase was not error. Ford v. Lawson, 133 Ga. 237 ( 65 S.E. 444).
(2) It is alleged in the petition that it was within the agreement between the parties that the term "usual commercial practice" was agreed to mean one thing, and the defendant in its answer denied this. Under the pleadings and the evidence, this became a jury question, and the court did not err in submitting it.
(3) The defendant takes exception to this phrase from the charge quoted in this ground: "As the defendant has testified." This phrase in its particular setting in the charge, viewed in the light of the entire charge, is not error. It is our duty to look to the whole charge to determine whether this phrase infringed upon the provisions of the Code, § 81-1104. In our view, it was merely thrown in inadvertently in outlining the contentions of the parties, and when viewed in the light of the whole charge does not amount to reversible error. This court held in Washington v. State, 24 Ga. App. 65 (4) ( 100 S.E. 31), as follows: "To determine whether an expression in an excerpt from the charge of the court is an expression or intimation of opinion on the part of the trial judge as to what has or has not been proved, it is proper, in a doubtful case, to construe the expression in connection with the entire charge, and where the trial judge elsewhere in his charge, in ample and unmistakable language, tells the jury that the particular matter about which it is claimed he has expressed an opinion as to its having been proved is an issue in the case, such expression will not be construed as an expression or intimation of opinion on the facts. Hanvey v. State, 68 Ga. 615; Moon v. State, 68 Ga. 697."
(4) This assignment of error, when considered in the light of the entire record, has no merit.
4. Special ground 6 assigns error on the following excerpts from the charge of the court: "Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach. Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered; but damages traceable to the act, but not its legal or natural consequence, are too remote and contingent." Error is assigned on the grounds: (a) that the charge was argumentative and confusing to the jury, in that, in the first paragraph thereof the court charged the jury that the damages which were recoverable were those which arose naturally and according to the usual course of things from such breach and such as the parties contemplated, whereas the plaintiff sought to recover for loss of articles caused by a physical outside agency such as gouging holes in furniture, etc., and that such damages were not recoverable in a suit arising ex contractu; that the charge authorized the recovery of any damages that might arise naturally and according to the usual course of things as a separate and indispensable item which was not contemplated at the time the contract was executed; (b) that the charge in the second paragraph authorized the jury to return damages that were legal and a natural result of the act done regardless of whether such damages were in the contemplation of the parties at the time the contract was executed (it is contended that these two paragraphs are in direct conflict); (c) that the court nowhere explained the difference between the rules expressed in each of these paragraphs. The defendant contended that the rule applicable to a case sounding ex contractu for breach of a contract is only such damages as are within the contemplation of the parties at the time the contract was made; that measured by the pleadings on this phase of the case the plaintiff had no right to recover for loss of articles which was not traceable to failure to pack and crate the articles as alleged in the pleadings, and which was not a direct result of such failure, and that the court's charge is broader than the allegations of the pleadings and placed a higher degree of liability on the defendant than the law placed on it.
The Code, § 20-1407, provides: "Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach." Section 105-2009 provides: "Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered; but damages traceable to the act, but not its legal or natural consequence, are too remote and contingent." Thus it will be seen that the principles of the two Code sections were charged, whereas the defendant contends that only the principle in the former was applicable. Under the pleadings and the evidence in this case, we do not think the charge was error. The Supreme Court, in Parker v. Forehand, 99 Ga. 743 ( 28 S.E. 400); said: "His position before this court that, the action being merely for a breach of contract, the plaintiff could recover only special damages, and none of a more remote or consequential character, does not seem tenable, tested even by the ordinary rules governing the recovery in actions ex contractu. Our Code (§ 3073) expressly declares that, `Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. But damages traceable to the act, but not its legal or material consequence, are too remote and contingent.' This rule is not confined to actions arising ex delicto, nor is it without qualification, as is shown by the succeeding section, which provides: `If, however, the tort is committed, or the contract broken, or the duty omitted, with a knowledge and for the purpose of depriving the party injured of such benefits as are specified in the last paragraph, then the remote damages are made, by such knowledge and intent, a proper subject for consideration by the jury.'. . Such a rule is surely not to be held applicable to a case where it appears that the contract is of such a nature that it must, of necessity, be known to the party deliberately and wrongfully violating his obligations that a breach of the same will inevitably result in the very kind of damages to the other party of which the declaration complains. In such a case, the inference is warranted that the damages in question, though to some extent remote and difficult of exact computation, must have been within the contemplation of both parties when entering into the contract; and where these damages are substantial in the essential ingredient of actual injury, they justly call for compensation." See in this connection, Martin v. Hight, 30 Ga. App. 603 ( 118 S.E. 595); Walker v. Jenkins, 32 Ga. App. 238 (5) ( 123 S.E. 161); Reynolds v. Speer, supra; 5 Williston on Contracts, § 1344 et seq. Under the facts of the instant case, as revealed by the record, the court did not err in charging the principles of the above-quoted Code sections. There is no cause for reversal in this ground.
5. Special ground 7 complains of the following excerpt from the charge: "If, as contended by the plaintiff in this case, he entered into a contract with the defendant in the case, and if the defendant failed to carry out the contract as has been outlined by the plaintiff; and as a result of such breach of the contract, `If you find that the contract was breached, that that was the cause of the property being damaged, and as contended in plaintiff's petition, then, gentlemen, the plaintiff in this case would be entitled to recover.'" It is contended that the words in this excerpt "contended by the plaintiff" followed with the statement "that the defendant failed to carry out the contract as has been outlined," etc., was an expression of opinion by the court to the effect that the plaintiff had proved his case as contended. Counsel cite in support of this contention Southern Railway Company v. Williams, 139 Ga. 357 (6) ( 77 S.E. 153). We do not think this case is controlling in the instant case to the extent that it requires a reversal, when we view the charge as a whole. We deem it unnecessary to go into detail in an analysis of the numerous decisions on this question. The charge as a whole speaks for itself. Hence it is that we have set it out in full. This ground does not require a reversal.
6. Special ground 8 complains of the following excerpt from the charge: "You have the right to take into consideration the amount of repairs made necessary, in determining the amount of the damages." It is contended that these instructions authorized the jury to add as damages the amount of the repairs. We do not think the excerpt, in view of the whole charge, is susceptible of this construction. It is our opinion that the jury understood that the amount of repairs was an item or circumstance which they might consider in determining the amount of the damages. We here again make reference to the entire charge. Olliff v. Howard, 33 Ga. App. 778 ( 127 S.E. 821).
7. Special ground 9 complains of the following excerpt from the charge: "I instruct you that if the plaintiff's property in question was damaged while in transit, and that it was damaged by reason of the fact that it was not properly packed, set or braced, as contended by the plaintiff, the defendant in the case would be liable." It is urged that this charge was not adjusted to the pleadings; that it placed upon the defendant a burden greater than that placed upon it by the law and that it was confusing to the jury. By reference to the pleadings and the evidence as given in the statement of facts, and in view of the whole charge, this ground is not error for any of the reasons assigned.
8. Special ground 10 complains of the refusal of the court to permit the plaintiff while under cross-examination to answer the following question, which was propounded to him by counsel for the defendant: "Q. The importance with which the language is written [meaning the language of the alleged contract] — would you say that it would require that this warehouse prepare and pack the goods and crate them to go anywhere in the world?" Counsel for the plaintiff objected to this question. The court sustained the objection. While we think that perhaps under the pleadings the question was permissible, yet since the pleadings alleged and the evidence showed that the goods were shipped from Atlanta to San Francisco, it could not harm the defendant's case for the court to refuse to permit the witness to answer. We think the real issues before the jury were whether the defendant had packed the articles in accordance with the agreement, and if not, did the failure to do so result in damage to the goods? And if damaged, did the damage form a basis for a recovery?
9. Special ground 11 complains of the following incident during the trial: The plaintiff was on the stand testifying when he was asked, "I hand you this list that Mr. Flemister asked you about but didn't identify; I will let it be identified as plaintiff's Exhibit 3; what sort of list did Mr. Estes agree to give you? Did he give you a list?" The witness answered in substance that the defendant agreed to give him a list, numbering each container and specifying the articles within each container, in order that the plaintiff might know what articles were in each container without opening the container; that the same household effects had been shipped from Manila to San Francisco and from San Francisco to Atlanta without any damage or breakage at all; and that the witness had seen the goods packed in Manila and such a list was furnished him there, and Estes agreed to furnish him a similar list. This question and answer were objected to on the ground that what was done in Manila was immaterial, irrelevant, and prejudicial as evidence in the instant case. The court ruled that "he [meaning the witness] can explain what he [meaning the defendant] gave him [meaning the plaintiff]." Under the record in this case and the issues involved, this assignment of error is without merit. This is true even though the ruling of the court might be considered to mean what the defendant interprets it to mean. We doubt that special ground 11 assigns any error at all. If it should be so construed, the same is without merit.
10. Special ground 12 complains of error because the witness, Mr. Estes, while on the stand testifying for the plaintiff, was asked whether or not the defendant packed and crated the articles in conformity with the understanding between the plaintiff and the defendant, to which question the witness answered "yes." This question and answer were objected to by the plaintiff on the ground that such was a conclusion or opinion of the witness. The court sustained the objection. In our opinion, abstractly, this was error. We understand the law to be that the witness should be permitted to state his conclusion provided he gives the facts upon which it is based, under the provisions of the Code, § 38-1708, and Mills v. State, 71 Ga. App. 353 ( 30 S.E.2d 824). In such a situation the jury may take into consideration such conclusion with respect to the ultimate fact to be determined by them. The conclusion which the witness in the instant case gave did not involve expert testimony as dealt with in the Code, § 38-1710. See Mills v. State, supra. We think a fair interpretation of the record to be that the defendant had testified that the way the goods were packed and crated was in accordance with the understanding of the parties. But we also think from an overall view of the case, that this question was so clearly presented by the pleadings and the evidence for the defendant that this technical error was not harmful and prejudicial as contended, and does not require a reversal of this case.
11. Special ground 13 assigns error because the court illegally refused to let counsel for the defendant complete the record to the extent that the ruling was harmful and prejudicial and requires the grant of a new trial. The plaintiff's petition alleged that no conditions were placed upon such shipment by the common carrier except that the packages in which the articles were shipped appeared to be in good order and condition. When Mr. Estes, a witness for the defendant, was on the stand, the following question was propounded to him: "Do you know from experience whether or not carriers or railroads will accept shipments unless they have been inspected?" Counsel for the plaintiff objected to an answer to this question on the ground that "it would be hearsay." The court sustained the objection. Counsel for the defendant responded: "As to anything he knows about what they will accept, it certainly is not hearsay." Whereupon counsel for the plaintiff further objected because "it is immaterial and irrelevant and calls for a conclusion." The court ruled, "Unless he connects it up with this furniture;" whereupon counsel for the defendant stated, "Of course, your honor, what we are endeavoring to do here, we have no way in the world." Then the court stated, "I have ruled on that. Go ahead." We think the only fair interpretation of this ruling is that the court meant for counsel for the defendant to proceed to connect it up with this furniture. We have given verbatim the words of the colloquy as shown in this ground. Counsel for the defendant did not, so far as the record in this ground is concerned, pursue the matter further. It is not clear from the record just what the ruling meant, neither is it clear just what counsel for the defendant was denied the privilege of completing. No further request was made to complete the record. It appears from the meager assignments of error in this ground that the ruling of the court was to the effect that if counsel for the defendant connected the incidents with the shipment of furniture, the court would permit the evidence to go to the jury. This assignment is without merit.
12. Special ground 14 assigns error because of a remark of the court. When Peppers, a witness for the defendant, was on the stand he was asked whether he turned the merchandise in question over to Sims. The witness answered that he did. The witness was then asked whether Sims accounted for all the items on the warehouse list. The witness replied that he checked the warehouse list item by item first, and then signed for them. Counsel for the plaintiff objected to this testimony "as being a statement as to the act of an agent, supposed to be an agent," whereupon the court remarked, "I will leave it in. It does not show anything except Sims's individual acts." Where there is an issue of fact under the evidence regarding the extent of an agent's authority, this becomes a question for the jury to decide; but where the evidence demands a conclusion as to the extent of the agent's authority, it then becomes a question of law for the court's determination. As we have held in division 1 (b) of this opinion, the evidence in this case shows as a matter of law that, in receiving the shipment from the defendant, Sims was not authorized to waive the terms of the contract which the plaintiff and the defendant agreed upon. This assignment is without error. We have heretofore observed that Sims signed a warehouse receipt which was introduced by the defendant, and which so far as the evidence goes was never forwarded to the plaintiff by Sims or anyone else, and that this receipt shows that sixty-eight packages were receipted for by Sims from the defendant, and that these sixty-eight packages were received in San Francisco with some of the containers crushed but none broken externally. It is clear, from the record, that Sims did nothing more than sign for these articles in their original containers as they were delivered to him by the defendant. In view of these things, in our view of the law as applied to the facts in this case, the remark of the court herein complained of, while perhaps inadvertent, does not form a basis for reversal for any of the reasons assigned.
13. Special ground 16 is somewhat in the nature of the general grounds, in that it contends that the verdict is unsupported by the evidence — that the amount of the verdict exceeds the amount of damages shown by the evidence. It is further contended that the amount of the verdict was considerably and unjustly increased due to the fact that the plaintiff, a commander in the United States Navy in active service in the present war, appeared on the witness stand in his uniform with a manual of rules and regulations of the Navy in his hand while testifying, and that he thus unduly influenced the jury to the bias and prejudice of the defendant. The evidence sustains the verdict and this ground is without merit.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles. C. J., and MacIntyre, J., concur.