Reid v. Humber , 49 Ga. 207 ( 1873 )

Trippe, Judge.

It was conceded in the argument that, unless the rule be changed by the Code, an agent is not liable to a third person for damage resulting to him from the non-performance or neglect of a duty which the agent owes to his principal. To this point the authorities are numerous: Story on Ag., secs. 308, 309, 310; Sh. and R. on Negligence, sec. Ill; 1 Hilliard on Torts, 123. This was admitted by counsel in the argument, but it was claimed that, by sections 2213 and 2951, new Code, the law is changed. In the first of those sections it is declared, that an agent is responsible “ for his own tortious acts, whether acting by command of his principal or not.” The next section (2951) defines a tort to be “ a legal wrong committed upon the person or property, independent of contract.” It may be either, 1st. A direct invasion of some legal'right of the individual. 2d. The infraction of some public duty, by which special damage accrues to the individual. 3d. The violation of some private obligation, by which like damage accrues to the individual. In the former ease, no special damage is necessary to entitle the party to recover. In the two latter cases such damage is necessary. Section 2213 does not change or add to the old law, as to the liability of an agent. He was always responsible for his own tortious acts. Nor do we see wherein the other section makes any change, or imposes any liability on the agent in this case. It does not come within the rule as set out, either under the first or second heads of that section. There was no direct invasion of some legal right of the defendant in error, nor was there any infraction of a public duty. The third head is the violation of some private obligation by which damage ensues. Section 2953 aids in the construction of this. It says, “ private duties may arise either from statute, or flow from relations created by contract, express or implied.” Putting the two sections together, or rather the third division of sections 2951 and 2954, and there must be special relations existing between the parties, and those relations created by contract. It is true that section 2951 says a tort is a legal wrong committed on the person or property, 'independent of contract. That is true. There may be torts without the breach of any contract. A shoots the horse of B; he commits a tort, but there was no contract violated. Section 2954 shows that where the tort is for the violation of any private obligation, that obligation results from the relations of the parties, created by contract, express or implied. Now, what relations existed between the plaintiff and defendant in this case, created by contract, either express or implied? To constitute a legal contract, there must be a consideration. Was there any here ? A party shipped his cotton to his factor; he then told the agent of that factor, who was at another depot from where the cotton was shipped, that he did not wish the cotton sold until further orders. Was there a legal obligation on that agent towards the shipper to transmit his directions to the factor. From what did it spring ? The agent was bound to his principal, and would have been responsible to him for any damages recovered against the principal, on account of the agent’s failure. And the shipper may have been entitled to recover against the principal, either for the neglect of the agent in not forwarding the instructions, or for the violation of them by the principal, if they had been communicated. But we cannot see that there was any such relations between the agent and the shipper to render the agent liable to him for the neglect. Had the shipper made the agent his own agent in the matter for a consideration, the case would be different.

We find nothing in the Code changing the old rule, and as the charge of the Court was in conflict with what we think was the law of the case, a new trial should be granted. Judgment reversed.