South Carolina Insurance Company seeks indemnity from its agents, James C. Greene and Company and Blane H. Lawson, for alleged negligence which caused it to pay a default judgment against its insured, Patricia Manning, in excess of policy limits. Greene and Lawson each raise the defense of imputed contributory negligence as a bar to the Insurance Company’s recovery against them. The circuit court granted the Insurance Company’s motion to strike the defense of imputed contributory negligence. Greene and Lawson appeal. We affirm.
Lawson, doing business as Jim Robertson Insurance Agency, was the initiating agency for an automobile liability insurance policy issued by the Insurance Company to one Karen Bruce. The policy provided third party liability coverage, of up to $15,000 for bodily injury for any one person. It also provided that the Insurance Company had the right and the duty to defend the insured against third party claims and the right to negotiate and settle any claim.
The covered automobile, while being operated with Bruce’s permission by her mother, Patricia Manning, was involved in an accident in which one Edward Coker received personal injuries. Greene undertook on behalf of the Insurance Company to investigate the accident and to adjust Coker’s claim. According to the allegations of the complaint, Coker’s attorney offered in writing to settle the claim for $15,000. The offer allegedly specified it would be withdrawn if not accepted within ten days. Greene allegedly failed to
Thereafter, Coker commenced suit against Patricia Manning. Manning caused the suit papers to be delivered to Lawson in a timely manner as required by the insurance policy. Lawson allegedly forwarded them to Greene. However, no answer was filed. Coker thereupon obtained a default judgment against Manning for $150,000. The complaint alleges the suit went into default as a result of the negligence of Lawson and Greene in failing to forward the suit papers to the Insurance Company. After it failed in an attempt to have the default set aside, the Insurance Company settled the judgment for $130,000, which it paid to Coker. The Insurance Company then instituted this action against Greene and Lawson seeking to be indemnified for the $130,000.
Both Greenе and Lawson answered the complaint raising, among other defenses, contributory negligence. Each alleged that the other was the agent of the Insurance Company and that the other’s alleged negligent conduct would therefore be imputed to the Insurance Company, as principal, so as to bar its action.
The Insurance Company moved to strike the defenses of imputed contributory negligence from both answers. The circuit court granted the motion, holding that under South Carolina law an agent who is sued by his principal for negligence may not impute the negligence of anоther agent to the principal in order to raise a defense of contributory negligence.
I.
Whether an innocent principal is barred from recovering damages caused by the negligence of one agent because another agent has also been negligent is a question of first impression in South Carolina. Common sense and fairness suggest that when two agents of the same principal have both injured him by their negligence, each should be liable rather than neither. Our consideration of the authorities convinces us the law holds both agents liable in such circumstances.
A cause of action for negligence arises from the concurrence of three essential elements: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by a negligent act of omission, i.e., failure to exercise the care of a reasonable man in the circumstances; and (3) damage proximately resulting from the breach of duty.
Brown v. South Carolina Insurance Company,
284 S. C. 47,
B.
Where several causes combine to produce injury, a person is not relieved from liability for negligence because he is responsible for only one of them. It is sufficient that his negligence is an efficient cause without which the injury would not have resulted to as great an extent and that any other efficient cause is not attributable to the person injured.
Gray v. Barnes,
244 S. C. 454,
C.
The law reaches a different result if an actionable injury is caused by the combined lack of care of more than one
Contributory negligence is a lack of ordinary care on the part of a person injured by the negligence of another which combines and concurs with that other’s negligence and contributes to the injury as a proximate cause without which the injury would not have occurred.
Taylor v. Bryant,
274 S. C. 509,
Negligence and contributory negligence rest on different legal principles. Stated another way, negligence and contributory negligence are not symmetrical rules of law. A defendant guilty of negligence is liable because he breached a duty of care owed to the plaintiff. However, a plaintiff guilty of contributory negligence is not barred from recovery because he breached a duty of care owed to the defendant.
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Rather, the doctrine of contributory negligence embodies-, jthe. principle that аn injured person should not, as a matter of natural justice, be permitted to ask from others greater care than he himself exercises for his own welfare. If the plaintiff is contributorily negligent, recovery is barred on the principle that the law should not attempt to apportion damages among parties who are both
This distinction between negligence and contributory negligence was stated with admirable clarity by Viscount Simon in Nance v. British Columbia Electric Ry. Co., Ltd. [1951] A. C. 601, 611:
[W]hen negligence is alleged as the basis of an actionаble wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care____But when contributory negligence is set up as a defense, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defense is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
Accord, Staveley Iron & Chemical Co. Ltd. [1956] A. C. 627, 648 (per Lord Tucker) (contributory negligence is not founded on breach of duty); Lewis v. Denye [1939] 1 K. B. 540, 554-555 (per du Parcq, L. J.) (the doctrine of contributory negligence cannot be based upon a breach of duty to the negligent defendant).
D.
For purposes of this appeal, Greene and Lawson argue not that the Insurance Company itself was guilty of contributory negligence, but that the lack of due care by the other agent should be imputed to the Insurance Company under the doctrine of respondeat superior.
As a general rule, the law holds a person liable only for his own acts and omissions.
See McCalla v. Wood,
The modern doctrine of
respondeat superior
makes a master liable to a third party for injuries сaused by the tort of his servant committed within the scope of the servant’s employment.
See Gathers v. Harris Teeter Supermarket, Inc.,
282 S. C. 220,
Thus, as originally conceived
respondeat superior
was based on a “master’s tort” theory which regarded the master himself as breaching his duty to the plaintiff by commanding the servant to commit a tort.
See McCalla v. Wood,
2 N.J.L. (1 Penn.) 86 (1806) (“It is true, that if one command or authorize his servant to commit a trespass, he is answerable himself; but then it is the trespass of the master, accоrding to the well known maxim of the law,
quifacit per alium facit per
se.”) This is in distinct contrast to the
This shift in the theory of respondeat superior was introduced into the law by Lord Chief Justice Holt in the late seventeenth century. Holt appears to have seen the servant’s tort cases as situations where one of two innocent persons — the master and the person injured by the servant — must suffer through the wrongdoing of a third. As a matter of policy, Holt decided the loss must be borne by the master, who, by employing the servant, enabled the tort to be committed. He, therefore, chose to impose liability on the innocent master, because “seeing somebody must be a loser..., it is more reason that he that employs and puts a trust and confidence in the [wrongdoer] should be a loser, than a stranger.” Hern v. Nichols (1709) 1 Salk. 289, 91 Eng. Rep. 256.
Holt disguised the new rule by using the legal fiction of implied command: “And tho’ I am not bound by the aсt of a stranger in any case, yet if my servant doth anything prejudicial to another, it shall bind me, where it may be presumed that he acts by my authority, being about my business.” Turbeville v. Stamp (1698) Comb. 459, 90 Eng. Rep. 590. Although the master’s liability had nothing to do with an actual command to the servant, the implied command theory made it plausible to use the familiar maxim quifacitper alium facit per se to explain the result.
Once the implied command theory gained currency, the courts extended the fiction to cover other relationships such as principal-agent and husband-wife.
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The fiction became so
As for those things which a servant may do on behalf of his master, they seem to proceed upon this principle, that the master is answerable for the act of his servant, if done by this command, either expressly given, or implied: nam quifacit per alium, facit per se. Therefore, if the servant commit a trespass by the command ... of his master, the master shall be quilty of it. * * * * In the same manner, whatever a servant is permitted to do in the ususal course of his business, is equivalent to a general command____A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his servants; and the principal must answer for their conduct: for the law implies, thаt they act under a general command; and without such a doctrine as this no mutual intercourse between man and man could exist with any tolerable convenience____
1 Bl. Comm. 429, 430 (Tucker ed. 1803). Blackstone’s discussion suggests he was not entirely persuaded by the implied command theory, since he found it necessary to justify the rule by an additional consideration of policy, viz., commercial convenience.
■By the turn of the century, it had become increasingly evident the implied command theory was not a satisfactory rationale on which to ground imputed liability.
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Under the
It is well known that there is virtually no remedy against the driver of an omnibus, and therefore it is necessary that, for injury resulting from an act done by him in the course of his master’s service, the master should be responsible; for there ought to be a remedy against some person capable of paying damages to those injured by improper driving.
Id., at 539.
Traces of the implied command theory may be found in the cases in modern times,
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but
respondeat superior
is now generally considered to rest on a concept of enterprise liability. Modern theory allocates the risk of the
E.
The doctrine of respondeat superior is often confused with the power of an agent to bind his principal to a third party. Although the terms “principal” and “agent” are modern, the power of one person (the agent) to bind another (the principal) in legal transactions has its origins in the ancient common law; respondeat superior is a relatively modern doctrine. See Ferson, Bases for Master’s Liability and for Principal’s Liability to Third Persons, 4 Vand. L. Rev. 260, 262-264 (1951). The agency concept is based on principles of contract law; respondeat superior belongs to the law of torts.
In a true agency situation, the principal is liable vice the agent by reason of his consent to be bound. An agent contracting with the authority of his principal binds him to the same extent as if the principal personally made the contract. The principal’s liability to the third party is contractual and direct. See J. Story, Commentaries on the Law of Agency §442 (1839).
In contrast, under the doctrine of
respondeat superior,
the principal is liable in addition to the agent, not by reason of his consent to be liable, but by operation of law.
See Reynolds v. Witte,
13 S. C. 5 (1879). This is most plainly illustrated in those cases where the agent acts against the express instructions of his principal, but within the scope of his employment: the principal is still liable.
See e.g., Williams v. Commercial Casualty Insurance Co.,
159 S. C. 301,
In this case, Greene and Lawson argue that when a principal sues an agent for negligent performance of his duties, the agent can impute to the principal the contributory negligence of another agent. There are no South Carolina cases directly on point. The authorities in other jurisdictions are divided on the question.
In the leading case of
Zulkee v. Wing,
If the injury be done by a servant in the course of his employment, it is, in contemplation of law, so far the act of the master, that the latter is civilly responsible therefor. Qui facit per alium facit per se. But this maxim is applicable only as between the master or principal and third persons. It presupposes that the parties stand to each other in the relation of strangers, between whom there is no privity; and has no application as between the master and his negligent servant, or the principal and his agent, who has so unskillfully or carelessly conducted his business as to cause him damage. As between the master and a stranger, the servant represents the master, and the master is responsible; but as between the master and the servant who has committed the wrong or violated his duty no less to the master than to the stranger, no such rule prevails. A servant is directly liable to his master for any damage occasioned by his negligence or misconduct, whether such damage be direct to the property of themaster, or arise from the compensation which the master has been obliged to make to third persons for injuries sustained by them.
* * * *
Between the master and his servant, as to the wrongs committed by the servant ..., the servant does not stand in the place of his master, and if two or more servants, though acting independently of each other, are each at the same time guilty of a wrong which contributes to the injury of the master, all or either of them are liable to the master to the full extent of the injury, the same as other wrongdoers.
Id., at 409-410, 411.
The rule in
Zulkee v. Wing
was rejected in the more recent case of
Capitola v. Minneapolis, St. Paul & Sault Ste. Marie R. R. Co.,
The general rule is that an agent against whom a principal brings an action of tort for negligence has the defense of contributory negligence. The great majority of employed persons today are employed by corporate employers which act only through agents and co-employees. To hold that contributory negligence must be personal or that the negligence of a coemployee is not attributable to the employer in his situation would be tantamount to exempting corporate employers from the general rule. Neither logic nor considerations of policy or justice indicate this result.
Id.,
258 Minn, at 208,
We believe the better reasoned rule is found in
Zulkee v. Wing.
Negligence and contributory negligence are not sym
The reasoning in the Capitola case confuses contributory negligence with the principles of imputed liability. Contrary to the reasoning of the Capitola decision, to permit recovery by the principal against the agent does not create an “employеr’s exception” to the rule of contributory negligence, because the master did not fail to exercise ordinary care on his own behalf; he is innocent of any negligence. On the other hand, the Capitola rule does create an exception to the general rule that if a defendant’s negligence is the proximate cause of the plaintiff’s injury, the fact that another person’s negligence concurred to produce the harm does not relieve him of liability. We perceive no reason, as a matter of justice or logic, for creating an “employee’s exception” to this rule when an innocent master has been injured by his servants.
The purpose of imputed liability is to provide an effective remedy for the person injured by the servant’s negligence. As between two innocent parties, the law places the risk of the servant’s negligence on the master, not because he is at fault, but in order to provide a remedy. Its purpose is not to let a negligent party evade responsibility for his wrongdoing; the negligent servant remains liable both to the third party and to his master.
See Bell v. Clinton Oil Mill,
129 S. C. 242,
If
respondeat superior
were applied to the case of a master injured by his servants, the reason for the rule would bе subverted, since it would deny the injured party any recovery and let those guilty of negligence go free. This result stands the doctrine on its head: imputed liability is designed to provide a remedy where none exists, not to cut off a
Greene and Lawson assert this case is controlled by the decisions in
Riddle-Duckworth, Inc. v. Sullivan,
253 S. C. 411,
The decisions in
McJunkin v. Waldrep,
225 S. C. 73,
The concept of fault lies at the core of common law tort liability. Only the strongest of reasons should compel the law to depart from the fault principle. While there may be exceptional cases in which “no fault” liability is justified by the need to provide a remedy for legal injury, it is difficult to conceive of any case in which “no fault” principles should be used to cut off well recognized remedies for a proven legal wrong.
G.
We reach our decision on one additional ground. The problem presented here can only arise in a jurisdiction which adheres to the doctrine of contributory negligence. If agents of the same principal are permitted to impute each other’s negligence to defeat the principal’s recovery, the doctrine of contributory negligence is brought to bear in its full rigor upon a party innocent of any negligence himself. For the reasons stated in
Langley v. Boyter,
284 S. C. 162,
II.
As an alternative ground for reversal, Greene and Lawson assert the trial judge erred in striking the defense of imputed contributory negligence because one of them is a stranger to the Insurance Company, while the other is its agent. In an argument reminiscent of Tweedledum and Tweedledee, each claims he is the stranger and the other is the agent. As a putative third party, each wishes to impute the negligence of the other to the Insurance Company.
Obviously Greene and Lawson cannot both prevail on this theory. However, each contends the question of who is the agent and who is the stranger should be decided by the jury. Until the jury decides, Greene and Lawson argue, a motion to strike the defense of contributory negligence is pre
The complaints allege that Greene investigated and adjusted insurance claims for the Insurance Company at the time complained of. Both answers admit this fact. The agreed statement of the case also admits that Greene undertook to adjust the Coker claim on behalf of the Insurance Company. These admissions are sufficient to establish privity between Greene and the Insurance Company. Greene is not a stranger.
The agreed statement of the case also admits that Lawson was the initiating agency for the insurance policy issued by the Insurance Company to Karen Bruce. Lawson’s answer admits he had duties to the Insurance Company in connection with the Coker lawsuit and affirmatively alleges he performed them with due care according to the Insurance Company’s directions. These admissions are sufficient to establish privity between Lawson and the Insurance Company. Lawson is not a stranger either.
We find no significance in the fact that both answers contain a conclusory denial that the defendant is the plaintiff’s agent. A defendant cannot both admit and deny a fact; and once it is admitted, the admission stands.
See Atlantic Coast Line R. R. Co. v. Little,
195 S. C. 455,
For the reasons stated, we hold the trial judge committed no error when he granted the motion to strike the defenses of contributory negligence from the answers. Accordingly, his ruling is
Affirmed.
Notes
This is not to say, of course, that a plaintiff guilty of contributory negligence never owes a duty to the defendant to exercise ordinary care. A plaintiff may be guilty of both negligence and contributory negligence on the same set of facts.
See Douglass v. Southern Ry. Co.,
82 S. C. 71,
See, e.g., Hern v. Nichols, supra; Head v. Briscoe, Bart, and Wife
(1833) 5 Car. & P. 484, 172 Eng. Rep. 1064;
Attorney-General v. Riddle
(1832) 2 C. & J. 493, 149 Eng. Rep. 209. The highwаter mark of imputed negligence was the case of
Thorogood v. Bryan
(1849) 8 C. B. 115, 137 Eng. Rep. 452, which held
The bluntest, but by no means the only, criticism of the doctrine was voiced by Mr. Bumble in Oliver Twist. When confronted with his misdeeds, Bumble, in the manner of his first ancestor, Adam, blamed his wife:
“That is no excuse,” replied Mr. Bownlow. “You ... are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”
“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot.”
C. Dickens, The Adventures of Oliver Twist, 333 (London 1914).
See, e.g., Broom v. Morgan
[1952] 2 Q. B. 1007;
Doran v. Thomsen,