[Cits.]" Fletcher Emerson Mgt. Co. v. Davis, 134 Ga. App. 699, 701 (2) ( 215 S.E.2d 725) (1975). While appellants could have attempted to show at trial that the nurses negligently failed to recognize alleged symptoms of the patient, the testimony objected to was properly admitted as circumstantial evidence of fixed and uniform habits rather than of conduct in other transactions, which is neither relevant nor admissible.
Similarly, in Crolley v. Haygood Contracting, Inc., 411 S.E.2d 907, 909 (Ga.App. 1991), the court stated that [w]hile the fact that a trade name was used is a factor to be considered on the issue of disclosure of the agency, [Fletcher Emerson, etc., Co. v. Davis, 134 Ga. App. 699, 700-701(1), 215 S.E.2d 725 (1975)] id. at 701(1), "`[t]he disclosure of an agency is not complete for the purpose of relieving the agent from personal liability unless it embraces the name of the principal [, and] the use of a trade name is not necessarily a sufficient disclosure of the identity of the principal and the fact of agency so as to protect the agent against personal liability. Brown-Wright [v. Bagen, 112 Ga. App. 300, 302, 145 S.E.2d 294 (1965)], supra.
In short, he provides no indication that his conduct at guilty plea hearings was so fixed and customary as to be habitual. See Thomas v. Newnan Hosp., 185 Ga. App. 764, 768 ( 365 SE2d 859) (1988), quoting Fletcher Emerson Mgmt. Co. v. Davis, 134 Ga. App. 699, 701 ( 215 SE2d 725) (1975) ("Although a witness may have no distinct or independent recollection of the details of a fact occurring in the course of the routine of his business, he may testify as to his fixed and uniform habit in such cases and state that he knows that he did not vary from that habit."). A plea of guilty is more than a mere confession of certain acts, "it is itself a conviction; nothing remains but to give judgment and determine punishment."
See Redi–Floors, supra, 254 Ga.App. at 616(1), 563 S.E.2d 505. Carroll also points to evidence that its Regional Manager told Ahn, in reference to another property, that Carroll was merely the property manager and had no financial responsibility to vendors. There is no indication, however, that the Regional Manager's conversation with Ahn occurred prior to December 20, or that the Regional Manager ever specifically discussed the ownership of the Highland Village complex with Ahn. Compare Fletcher Emerson Mgmt. Co. v. Davis, 134 Ga.App. 699, 701(2), 215 S.E.2d 725 (1975) (agent's testimony that it was his practice to explain his agency status to new vendors constituted circumstantial evidence of disclosure that was sufficient to survive summary judgment). Under these circumstances, the trial court did not err by granting partial summary judgment and holding Carroll liable for expenses that accrued prior to December 20.Although Carroll argues that we should overrule our prior precedent imposing a duty of disclosure on the agent, and hold, instead, that a party must exercise reasonable diligence and investigate the possibility of an agency relationship when entering a contract, we decline to do so. “It is well established under the common law that, where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it[.]” (Citation and punctuation omitted.)
Evidence that Ms. South did not have a practice of making telephone transactions is also circumstantial evidence. See Fletcher Emerson Mgmt. Co. v. Davis, 134 Ga. App. 699, 701(2) ( 215 S.E.2d 725) (1975). Finally, South has not presented any evidence that his sister was involved in the telephone call.
On the other hand, the deputy admitted he had no personal memory of handing the papers to or speaking to Chris Coats. The deputy's testimony that his usual practice would have been to confirm that Chris Coats resided with Robert Coats before serving papers in reliance on § 9-11-4 (d) (7) was circumstantial evidence the probative value of which was for the trial court to determine. Fletcher Emerson Management Co. v. Davis, 134 Ga. App. 699, 701 ( 215 S.E.2d 725) (1975). Coats had the burden of proving improper service, and in order to set aside the return of service showing proper service, the evidence must not only be clear and convincing but the strongest of which the nature of the case will admit.
Although Strott could not remember the details of handling Rabenstein's claim, she identified business records showing that the claim was settled for $9,145 (OCGA § 24-3-14), and testified that she acted in accordance with fixed procedures habitually followed on settled claims by sending Rabenstein a check in the settlement amount containing the final settlement provision. Fletcher Emerson Management Co. v. Davis, 134 Ga. App. 699, 701 ( 215 S.E.2d 725) (1975). Strott also identified the cashed settlement check bearing her signature, the final settlement language, and Rabenstein's endorsement, and remembered handling a claim by Rabenstein and that the claim had settled.
[Cit.]" Fletcher Emerson c. Co. v. Davis, 134 Ga. App. 699, 700-701 (1) ( 215 S.E.2d 725) (1975). On motion for summary judgment, appellee, the movant, had the burden of proving its "lack of knowledge that [Crolley] was acting as an agent [for CFI]."
The test is whether the circumstantial evidence is "perfectly consistent" or "inconsistent" with the direct evidence. Fletcher Emerson c. Co. v. Davis, 134 Ga. App. 699, 702 (4) ( 215 S.E.2d 725) (1975); Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 781 ( 257 S.E.2d 186) (1979). Further, "the facts shown must not only reasonably support [the projected] conclusion, but also render less probable all inconsistent conclusions."
When a movant for summary judgment produces, to establish a fact, the positive, uncontradicted testimony of an unimpeached witness, the opposing party's production of circumstantial evidence which is not inconsistent with the movant's positive evidence is not sufficient to create a question of fact and prevent the grant of summary judgment. Fletcher Emerson c. Co. v. Davis, 134 Ga. App. 699 (4) ( 215 S.E.2d 725) (1975); Helms v. Young, 130 Ga. App. 344 (2) ( 203 S.E.2d 253) (1973). See also Myers v. Phillips, 197 Ga. 536 (4) ( 29 S.E.2d 700) (1944).