48 Ga. App. 53 | Ga. Ct. App. | 1933
Lead Opinion
(After stating the foregoing facts.) A decision of this case involves the determination of only one question. That question may be stated thus: Does the petition, which is brought against the Atlantic Coast Line Railroad Co. and B. C. Poppell, a section foreman of said company, state a cause of action against B. C. Poppell, the foreman, on which he can be held individually liable? If no cause of action is set out against B. C. Poppell, the resident defendant, the Atlantic Coast Line Railroad Company, the 'nonresident defendant, has the right to remove the case to the proper Federal court, as being a controversy solely between citizens of different states. “Where a nonresident corporation and -its resident employee are joined as defendants in a suit filed in a
Judge Story, in his work on Agency, founded the following statement on what he calls Lord Holt’s celebrated judgment in Lane v. Cotton, supra: “The agent is also personally liable to third persons for his own misfeasances and positive wrongs. But he is not, in general (for there are exceptions), liable to third persons for his own nonfeasánces or omissions of duty, in the course of his employment. His liability, in these latter cases, is solely to his principal, there being no privity between him and such third persons, but the privity exists only between him and his principal. ' And hence the general maxim as to all such negligences or omissions of duty is, in cases of private agency, ‘respondeat superior.’” “The distinction, thus propounded, between misfeasance and nonfeasance, between acts of direct, positive wrong, and mere neglects by agents as to their personal liability therefor, may seem nice and artificial,
However, this rule has been criticized and limited by many text-writers. In 1 Jaggard on Torts, 288, 289, it is said: “The thinness and uncertainty of the distinction between the misfeasance, malfeasance, and nonfeasance leaves an exceedingly unstable basis on which to rest an important principle of liability. It would, .indeed, seem to be a fair criticism on the subsequent reasoning that the courts have, in applying the distinction, engaged in a solemn game of logomacy. Thus, in Bell v. Josselyn (1855), 63 Am. Dec. 741 [3 Gray (Mass.), 309], it was said that failure of the defendant to examine the state of the pipes in a house before causing the water to be let on, would be a nonfeasance, but, if he had not caused water to be let on, that nonfeasance would not have injured the plaintiff. If he had examined the pipes, and left them in a proper condition, and then caused the letting on of the water, there would have been neither nonfeasance nor misfeasance. As the facts were, the nonfeasance caused the act done to be a misfeasance. The plaintiff suffered from the act done, which was no less a misfeasance by the reason of its being preceded by a nonfeasance. . . The futility of such reasoning on the word ‘nonfeasance’ appears fully from the lack of definiteness of the meaning to be given the term. This solemn legal jugglery with words will probably disappear ‘if the nature of the duty incumbent upon the servant be considered.’ If the servant owe a duty to third persons derived
Our courts have in later decisions adopted a rule limiting considerably the distinction between nonfeasance and misfeasance. Cobb, J., in delivering the opinion of the court in Southern Ry. Co. v. Grizzle, 124 Ga. 735 (53 S. E. 244, 110 Am. St. R. 191), used this language: "Nonfeasance is the total omission or failure of the agent to enter upon the performance of some distinct duty or undertaking which he has agreed with his principal to do. Misfeasance means the improper doing of an act which the agent might lawfully do; or, in other words, it is the performing of his duty to his principal in such a manner as to infringe upon the rights and privileges of third persons. Where an agent fails to use reasonable care or diligence in the performance of his duty, he will be personally responsible to a third person who is injured by such misfeasance. The agent’s liability in such cases ,is not based upon the ground of his agency, but upon the ground that he is a wrongdoer, and as such he is responsible for any injury he may cause. When once he enters upon' the performance of his contract with his principal, and in doing so omits, or fails to take reasonable care in the commission of, some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf. See 2 Clark & Skyles on Agency, § 1297, et seq. Misfeasance may involve also to some extent the idea of not doing; as where an agent engaged in the performance of his undertaking does not do something which it is his duty to do under the circumstances, or does not take that precaution or does not exercise that care which a due regard to the rights of others requires. All this is not doing, but it is not the not doing of that which is imposed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law as a responsible individual in common with all other members of society. It is the same not doing which constitutes actionable negligence in any relation.” In Southern Ry. Co. v. Rowe, 2 Ga. App. 557 (59 S. E. 462), it was said: "In Ellis v. McNaughton, 15 Am. St. R. 308, 76 Mich. 237, 242, and Lough v.
In the case of Carter v. Atlantic Coast Line R. Co., 84 S. C. 546 (66 S. E. 997), in which it was held, under similar facts to the case sub judice, that the servant or section boss Avas equally liable with the railroad for their failure to keep their right of way clean of dry grass and combustible matter, the folloAving language is found: '“The relation which the defendant sustained to the public, while discharging the duties of his employment, are thus stated in Mayer v. Thompson-Hutchison Building Co., 104 Ala. 611 (16 So. 620, 28 L. R. A. 433, 53 Am. St. R. 88) : ‘The liability of the principal or master to third persons does not depend upon a^ privity between him and such third persons. It is the privity between the master and servant that creates the liability of the master, for injuries sustained by third persons on account of misfeasance or nonfeasance of the servant or- agent. It is difficult to apply the same principles which govern in matters of contract, between an agent and third persons, to the torts of an agent which inflict injury on third persons, whether they be of misfeasance or nonfeasance, or to give a sound reason why a person, who, acting as principal, would be individually liable to third persons for an omission of duty, becomes exempt from liability for the same omission of duty because he was acting as servant or agent. The tort is none the less a tort to a third person, whether suffered from one acting as principal or agent, and his rights ought to be the same against the one whose neglect of duty has caused the injury.’ In a note to this case (28 L. R. A. 433-4), after the statement that there are many misleading dicta to the effect that nonfeasance of a servant causing injury to third persons is not generally a ground
We recognize that the broad statement that an agent or servant is liable for a misfeasance, but not fife a nonfeasance, has long been an accepted principle in this State and until comparatively recent times has been followed by our courts. As will be seen from the more recent Georgia cases heretofore cited, this principle has been criticized and limited.' The tendency, however, has been nominally to adhere to the letter of the principle, but to say that a nonfeasance in most instances amounts to a misfeasance. Judge Wade, in Southern Ry. Co. v. Sewell, supra, quotes approvingly this language : “If an agent never does anything towards carrying out his contract with his principal, but wholly omits or neglects to do so, the principal is the only person who can maintain an action against him for the nonfeasance, but if the agent once actually undertakes and enters upon the execution of a particular work, it. is his duty to exercise reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts [or failure to act], and he can not, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of having left them without proper safeguards.” The duty owed the master by the servant is generally one of contract. His nonfeasance may be a breach of this contract. The violation of a duty a servant owes a third person is a tort, whether it be a so-called misfeasance or nonfeasance. When the servant assumes to act for the master, his duty to third persons, so far as relates to the proper performance of the obligations assumed for and in behalf of the master, is, to the extent of such assumption of duty, the same as that, of the master, and his failure to perform makes him liable as the master, provided, of course, his failure to perform can be said to be the proximate cause of the injury. He can not justify himself as Cain did of old by asking, “Am I my
.Taking the present petition under consideration, it is a joint action against both the employer and the employee for concurrent acts of negligence. It alleges that it was the duty of the defendant railroad company at all times to keep its right of way reasonably clear and free of dry grass and weeds and other easily ignitable substances; that, recognizing this duty to the public, it was one of the duties of the section foreman, B. C. Poppell, to keep the said right of way clear; that the defendants partly performed this duty by,“ just preceding the time in question, burning over and freeing from easily ignitable material the greater portion of the right of way in the area in question,” but did not complete this duty by clearing off the small strip where the fire caught, which strip was not more than a quarter of a mile in width; that the defendants actually cleared this portion of the right of way of trees and high bushes, “by reason of which dry grass could and did grow in large quantities thereon and had grown and had accumulated in said area, and said portion of said right of way was so covered at the time of and preceding said fire;” that there was nothing to prevent the defendants from clearing said portion of the right of way. The defendant Poppell had control of a dangerous situation which he might have contemplated would be dangerous in the normal course of human events. It was his positive duty to the plaintiff not to injure his property. His failure to act may be considered the sole juridic cause of the injury. See, in this connection, Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775 (70 S. E. 203). A servant is personally liable 'to third persons when his wrongful, act in the course of his employment is the direct and proximate cause of their injury, whether the wrongful act be one of misfeasance or nonfeasance. We think, therefore, that the court below did not err in overruling the railroad company’s petition for removal to the Federal court. Judgment affirmed.
Dissenting Opinion
dissenting. The question of the removal of a case to the Federal court is determined by the facts set forth in the plaintiff’s petition and not by the- conclusions alleged therein; and it is for the court to determine from the facts alleged whether a cause of action is set out against the resident defendant. See, in this connection, Brown v. Massachusetts Mills, 7 Ga. App. 642 (67