Ellis v. Railway , 72 S.C. 465 ( 1905 )

October 18, 1905. The opinion of the Court was delivered by This is an appeal from an order overruling a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The complaint, together with the exceptions which state the grounds of demurrer, will be set out in the report of the case.

The first question which will be considered is whether an agent is personally liable to a third person for an act of nonfeasance causing injury. In vol. 1, pages 288 and 289 of Jaggard on Torts, it is said: "The thinness and uncertainty of the distinction between the misfeasance, malfeasance and non-feasance, leave 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 logomachy. Thus in Bell v. Josselyn, it was said that failure of defendant to examine the state of the pipes in a house before causing the water to be let on, would be a non-feasance; but if he had not caused water to be let on, that non-feasance 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 water, there would have been neither non-feasance nor misfeasance. As the facts were, the non-feasance 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 non-feasance." Continuing, on page 289, the author uses this language: "The futility of such reasoning on the word `non-feasance' appears fully from the lack of definitiveness 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 from instrumentality likely to do harm or otherwise. and he violates that duty, he is responsible. His responsibility rests on his wrongdoing, not on the positive or negative character of his conduct. A wrongful omission is as actionable as a wrongful commission."

The rule is thus stated in Mecham on Agency, sec. 572: "Some confusion has crept into certain cases from a failure to observe clearly the distinction between non-feasance and misfeasance. As has been seen, the agent is not liable to strangers for the injuries sustained by them, because he did not undertake the performance of some duty which he owed to his principal, and imposed upon him, by his relation, which is non-feasance. Misfeasance may involve, also, to some extent, the idea of not doing — as where the agent, while engaged in the performance of his undertaking, does not do something which it was his duty to do, under the circumstances, does not take that precaution, does not exercise that care, which a due regard for the rights of others requires. All this is not doing; but it is not the not doing 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 Mayer v. Thompson-Hutchinson Bldg. Co., 38 L.R.A., (Ala.), 433, 436, the Court states the principle as follows: "The liability of the principal or master to third persons does not depend upon any 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 non-feasance 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 non-feasance, 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 the 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 on pages 433 and 434, after the statement that there are many misleading dicta to the effect that non-feasance of a servant causing injury to third persons is not generally a ground of action in their favor against the servant, and that these dicta can all be traced to a dictum in a dissenting opinion in Lane v. Cotton, 12 Mod., 488, 1 Ld. Raym., 646, we find the following language: "These dicta and text-book statements based upon them have had the pernicious effect of confusing the subject, because they do not distinguish between the direct liability of an agent or servant to third persons for breach of his own duty toward them, and an indirect liability to them for breach of duty to his own employer, and fail to recognize or indicate the fact that an agent or servant may owe duties to third persons at the same time he owes service to his employer, and that the common duty to regard the rights of our fellow-men is none the less binding upon a person because he happens to be at the time an agent or servant. An analysis of all the cases on the subject shows that in almost every instance negligence of an agent or servant has been held to make him liable to a third person injured thereby, provided he would have been liable if acting on his own behalf under circumstances otherwise unchanged. The difficulty seems to vanish almost if not entirely when the test of the liability of an agent or servant to a third person on account of his non-feasance or negligence is taken to be his non-performance of a duty toward them. Where such duty and neglect thereof appear, it seems utterly unreasonable to say that the negligent person shall not be liable merely because he was the agent or servant of some other person to whom he might also be liable. To say that liability for failure to perform a duty toward a person who is injured in consequence shall not exist because the guilty person is in the same transaction also guilty of a breach of another and distinct duty to a different person, is to state a proposition condemned by the analogies of the law as well as by reason."

The Court, in Ellis v. McNaughton, 76 Mich., 237, uses this language: "Misfeasance may involve to some extent the idea of not doing; as where an agent, while engaged in the performance of his undertaking, does not do something which it was his duty to do under the circumstances: as, for instance, when he does not exercise that care which a due regard for the rights of others would require. This is not doing, but it is the not doing of that which is not imposed upon the agent merely by his relation to his principal; 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 negligence in any relation, and is actionable."

The true rule deducible from the authorities is that the servant is personally liable to third persons when his wrongful act is the direct and proximate cause of the injury, whether such wrongful act be one of non-feasance or mis-feasance.

The next question that will be considered is whether the complaint contains allegations sufficient to show that the injury was sustained as the direct and proximate result of a wrongful act on the part of the defendant, Welles. Our construction of the complaint is that it seeks to make the defendant, Welles, respond in damages solely on the ground that he was the agent of the Southern Railway Co., and as such was in exclusive charge of the operation and management of said company at the time of the injury. The persons in charge of the train of cars that caused the injury were not the agents of the defendant, Welles, even if employed by him, but of his principal — the Southern Railway Co. While the Southern Railway Co. may have been responsible for the conduct of the servants in charge of said train of cars, their acts did not render the defendant, Welles, liable for the injury, as they were not his agents.

There are not allegations in the complaint to the effect that the injury was a direct and proximate result of a wrongful act on the part of the defendant, Welles. Therefore, it fails to state a cause of action against him, and the demurrer should have been sustained.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.

The CHIEF JUSTICE did not participate in this opinionbecause of illness.