Bell v. Josselyn , 69 Mass. 309 ( 1855 )

Metcalf, J.

Our opinion is, that the rule of law, on which the defendant attempts to sustain these exceptions, is not applicable to this case. Assuming that he was a mere agent, yet the injury for which this action is brought was not caused by his nonfeasance, but by his misfeasance. Nonfeasance is the omission of an act which a person ought to do ; misfeasance is the improper doing of an act which a person might lawfully do ; and malfeasance is the doing of an act which a person ought not to do at all. 2 Inst. Cler. 107. 2 Dane Ab. 482. 1 Chit. Pi. (6th Amer. ed.) 151. 1 Chit. Gen. Pract. 9. The defendant’s omission to examine the state of the pipes in the house, before causing the water to be let on, was a nonfeasance. But if he had not caused the 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 are; the nonfeasance caused the act done to be a misfeasance. But from which did the plaintiff suffer ? Clearly from the act done, which was no less a misfeasance by reason of its being preceded by a nonfeasance.

The instructions to the jury were sufficiently favorable to the defendant; and the jury, under those instructions, must have found all the facts necessary to the maintenance of the action.

Exceptions overruled.