79 So. 97 | Miss. | 1918
delivered the opinion of the court.
, Appellee, as plaintiff in the court below, instituted this action for damages against appellant, Gloster Lumber. Company, a1 corporation owning and operating a sawmill and logging ralroad, and against W. J. Allen, woods superintendent, J. S. Ball, team foreman, and Clyde Webb, the section foreman of the said corporation. It is charged in the declaration that the defendant corporation, acting through its said officers and agents, willfully and wantonly set fire to and burned over about fifty acres of woods land, the property of the plaintiff, and destroyed many of the small trees and much of the undergrowth and grasses, and injured the soil of the land, to the alleged damage of the plaintiff in (the sum of three hundred dollars. By a second count in the declaration the plaintiff claims the statutory penalty qf one hundred and fifty dollars. The defendants interposed- the plea of general issue, and gave notice of an alleged mutual agreement, by the terms of which it is averred that plaintiff consented that the woods should be burned off before the locomotive of the defendant corporation should begin to operate along the track, which the defendant had constructed across said lands and through said woods. On the trial' of the case there was proof tending to show that the parties discussed the advisability of burning off the woods some months prior to June, 1916-, the month in which the woods were actually burned, but the testimony for the .plaintiff tended to show that there was no agreement to burn the woods in June, and especially without notice to the plaintiff. The defendants did not deny the actual burning of the woods; the only issue was whether the plaintiff consented. It appears that the w.oods super
Two points are argued on appeal: First, that there should have been a peremptory instruction in favor of the- officers and agents of the corporation; and, second, that the verdict is excessive. At the conclusion of the testimony the court directed a verdict in favor of J. S. Ball, the team foreman, but overruled an application for a peremptory charge • in favor of Mr. Allen, the general woods superintendent, and Mr. Webb, the section foreman. It is contended that the act of the officers and agents of the corporation were, on the occasion complained of, the acts of the corporation itself, and that the defendants Allen and Webb are not personally liable. There is no merit whatever in this contention. This is an action against all of the defendants as joint tort-feasers. Upon the same principle that there is no agency in the commission of a misdemeanor, an agent of a corporation or of an individual cannot be authorized or licensed to commit a tort. As said by the supreme court of Tennessee in Nunnelly v. Southern Iron Co., 94 Tenn. 397, 29 S. W. 361, 28 L. R. A. 421:
“If the agent of a corporation or of an individual commits a tort, the agent is clearly liable for the same; and it matters not what liability may attach to the principal for the tort, the agent must respond in damages if called upon to do so. This principle is absolutely without exception, is founded upon the sound
The proof in the case at bar justifies the jury in finding that Allen and Webb were active participants. A corporation must, of course, act through its agents, and it must respond in damages for any injury inflicted by its officers and agents acting within the- scope of their duties. But the mere fact that the corporation itself is liable in no wise exempts its officers and agents from personal liability for positive wrongdoing. There is a vast difference between nonfeasance, or mere omission of duty by the agent of a corporation, and misfeasance, or positive acts of wrongdoing. This distinction was made clear by our court in Feltus v. Swan, 62 Miss. 415. The testimony justified the conclusion that the defendants violated our statute against setting out fire (section 4988, Code of 1906, section 3257, Hemingway’s Code), and they may well have congratulated themselves that the jury did not impose the statutory penalty. All must know that fire is a dangerous and destructive agency. For this reason the public policy of our state condemns the willful, reckless, or unlawful setting out of fire, and the statute declares that any person who shall set on fire any lands of another, or shall wantonly or negligently or carelessly allow any fire to get on the lands of another, shall be liable, not only for all actual damages, but
We cannot say that the verdict is excessive.
Affirmed.