ON MOTION FOR REHEARING.
Stephens, J.It was and is the opinion of the court that the charge of the judge as set forth in the second division of the syllabus contravenes the principle of law set forth in the first division. We recognize it as a well-settled principle of law that actual agency may be proved from the habits, course of dealing and apparent relations; that is to say, that where the course of dealing has been prolonged with the knowledge and consent of the principal, actual *400agency can be inferred from such course of dealing. However, the charge as given in the instant case does not, as we conceive its meaning, comport with this principal of law, but on the contrary sets forth that “the principal is bound to the extent of the apparent authority that he has knowingly conferred upon his agent.” As we understand the law, this doctrine has no application in cases of tort. While it is true that, under the evidence submitted in this case, it was a question for the jury to determine as to whether or not the course of dealing constituted the bell-boy not only the apparent but the actual agent of the defendant, we do not think, • upon consideration of the motion for a rehearing, that the charge of the court can be upheld, since it in effect instructed the jury as a matter of law that the course of dealing proved would establish such agency.
The excerpt from the charge quoted in the second division of the syllabus was necessarily confusing on account of the statement that in a suit for a tort the principal is bound to the extent of the apparent authority that he has knowingly conferred upon his agent, irrespective of any qualification subsequently embodied in the charge. But even if not otherwise subject to criticism, it still had the effect of instructing the jury that from certain stated facts actual agency would arise as a matter of law; whereas it is the opinion of this court that such facts would only have constituted an issue for determination by the jury as to whether such agency did or did not exist. See in this connection Mathis v. Western & Atlantic Railroad, 35 Ga. App. 672 (134 S. E. 793). The charge dealt with the most vital issue in the case, and we think it amounted to reversible error.
Rehearing denied.
Jenlcins, P. J., and Bell, J., concur.