Atlantic Coast Line R. Co. v. Knight

• Decision Date: 27 November 1933
• Docket Number: 23077.
• Parties: ATLANTIC COAST LINE R. CO. v. KNIGHT.
• Court: Georgia Court of Appeals

171 S.E. 919

48 Ga.App. 53

ATLANTIC COAST LINE R. CO.
v.
KNIGHT.

No. 23077.

Court of Appeals of Georgia, First Division

November 27, 1933

Syllabus by the Court.

Servant failing to take reasonable care in performance of act required by contract with master is responsible to third person consequently injured to same extent as if he had performed act in his own behalf.

Servant is personally liable to third person when his wrongful act in course of employment is direct and proximate cause of injury to third person, whether wrongful act is one of misfeasance or nonfeasance.

Servant's liability to third person for wrongful act committed in course of employment is based upon his common-law obligation to use that which he controls so as not to injure another, not upon contract with master.

Petition alleging resident railroad section foreman's negligence in clearing only part of ignitable growth from right of way, causing damages from fire set out by locomotive sparks, stated cause of action against foreman, precluding removal by nonresident codefendant railroad to federal court as involving controversy with nonresident railroad solely.

1. When a servant enters upon the performance of his contract with his principal and in so doing fails to take reasonable care in the commission of some act which he should do in the performance of his duty under the contract, and thereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf. His liability in such a case is not based on the ground of his agency, but on the ground that he is a wrongdoer and, as such, is responsible for any injury he may cause.

2. A servant is personally liable to third persons when his wrongful act in the course of his employment is the direct and proximate cause of injury to them, whether the wrongful act be one of misfeasance or nonfeasance.

3. It is not his contract with the principal which exposes him to, or protects him from, liability to third persons, but his common-law obligation so to use that which he controls as not to injure another. The fact that the principal might be held liable does not excuse him under such circumstances.

4. The petition here alleging concurrent acts of negligence, for which both the resident and nonresident defendants are liable, the court did not err in overruling the nonresident defendant's petition for removal to the federal court.

Error from City Court of Jesup; D. M. Clark, Judge.

Suit by A. E. Knight against the Atlantic Coast Line Railroad Company and another. Named defendant's petition for removal to the federal court was overruled, and named defendant brings error.

Affirmed.

BROYLES, C.J., dissenting. [171 S.E. 920]

W. B. Gibbs, of Jesup, and Wilson, Bennett & Pedrick, of Waycross, for plaintiff in error.

Highsmith & Highsmith, of Baxley, and W. G. Thomas, of Jesup, for defendant in error.

GUERRY, Judge (after stating the foregoing facts).

A decision of this case involves the determination of only one question. That question may be stated thus: Does the petition, which is brought against the Atlantic Coast Line Railroad Company and B. C. Poppell, a section foreman of said company, state a cause of action against B. C. Poppell, the foreman, on which he can be held individually liable? If no cause of action is set out against B. C. Poppell, the resident defendant, the Atlantic Coast Line Railroad Company, the nonresident defendant, has the right to [171 S.E. 921] remove the case to the proper federal court, as being a controversy solely between citizens of different states. "Where a nonresident corporation and its resident employee are joined as defendants in a suit filed in a state court, the corporation may remove the case to the proper federal court if the petition states no cause of action against the individual resident employee." Pan-American Petroleum Corporation v. Williams, 45 Ga.App. 490, 165 S.E. 473, 474; Plunkett v. Gulf Refining Co. (D. C.) 259 F. 968 (2); Clark v. Chicago, R.I. & P. R. R. Co. (D. C.) 194 F. 505; Marach v. Columbia Box Co. (C. C.) 179 F. 412; Chicago, R.I. & P. Ry. Co. v. Stepp (C. C.) 151 F. 908; Floyt v. Shenango Furnace Co. (C. C.) 186 F. 539. In the case of Lane v. Cotton (1701) 12 Mod. 488, 88 Eng. Reprint, 1466, in which the Postmaster General was held liable for loss of exchequer bills from a letter after it had been deposited in the receiving office, Lord Holt, in a dissenting opinion, said: "It was objected at the bar that they have this remedy against Breese (who was apparently the clerk from whose possession the loss occurred). I agree, if they could prove that he took out the bills, they might sue him for it; so they might anybody else on whom they could fix that fact; but for a neglect in him they can have no remedy against him; for they must consider him only as a servant; and then his neglect is only chargeable on his master, or principal; for a servant or deputy, quatenus such, cannot be charged for neglect, but the principal only shall be chargeable for it; but for a misfeasance an action will lie against a servant or deputy, but not quatenus as deputy or servant, but as a wrongdoer." Upon this decision text-writers and the majority, if not all, of the state courts, founded the rule that a servant is liable for misfeasance but is not ordinarily liable for nonfeasance.

Judge Story, in his work on Agency, founded the following statement on what he calls L. Holt's celebrated judgment in...