Coffer v. Bradshaw
| Decision Date | 08 December 1932 |
| Docket Number | 22347. |
| Citation | 167 S.E. 119,46 Ga.App. 143 |
| Parties | COFFER et al. v. BRADSHAW et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Ordinarily agent is not liable to third persons for mere nonfeasance.
"Nonfeasance of agent" is total omission to enter upon performance of distinct duty or undertaking required by agent's agreement with principal.
"Misfeasance of agent" means improper doing of act which agent might lawfully do, and may also involve idea of not doing.
Agent is liable to third persons injured by his misfeasance in conducting principal's business.
Tortious agent and corporate principal can be sued jointly in same action.
One entering premises for purposes connected with owner's business conducted thereon is "invitee" to whom owner is liable for failure to exercise ordinary care in keeping premises safe (Civ. Code 1910, § 4420).
Duty to keep premises safe for invitee extends to all portions thereof invitee must use in course of business for which invitation is extended and to which he is allowed to go (Civ Code 1910, § 4420).
Duty to keep premises safe for invitees applies to hidden dangers and traps (Civ. Code 1910, § 4420).
Person responsible for such dangerous place or instrumentality must guard, cover, or protect it for safety of persons rightfully at or near it, and timely warning thereof should be given to such persons.
Petition stated cause of action for injuries sustained by oil mill customer in stepping into concealed opening in hullhouse where assistant manager sent him to get hulls, against mill superintendent, foreman, manager, and assistant manager, who were properly joined as defendants with corporate millowner (Civ. Code 1910, § 4420).
1. Ordinarily, an agent is not liable to third persons for acts of nonfeasance.
2. "Nonfeasance" on the part of an agent is the total omission or failure of the agent to enter upon the performance of some distinct duty or undertaking which he has agreed with his principal to do.
3. "Misfeasance" is a positive wrong, and means the improper doing of an act which the agent might lawfully do. It may also involve to some extent the idea of not doing; as where an agent engaged in the performance of an undertaking does not do something which it is his duty to do under the circumstances, or does not take that precaution or does not exercise that care which a due regard to the rights of others requires.
4. An agent is liable to third persons who suffer injury by his acts of misfeasance in the conduct of his principal's business.
5. The tortious agent and the corporation for whom he is acting when the tort is committed may be sued jointly in the same action.
6. Where one enters the premises of another for purposes connected with the business of the owner being conducted on the premises, he is an invitee, and the owner of the premises is liable in damages to such person for a failure to exercise ordinary care in keeping the premises safe.
7. The duty to keep the premises safe for invitees extends to all portions of the premises which it is necessary for the invitee to use in the course of the business for which the invitation is extended, and at which his presence should therefore be reasonably anticipated, or to which he is allowed to go.
8. The duty to keep premises safe for invitees applies to hidden dangers, traps, and the like. A person responsible for such a dangerous place or instrumentality must guard, cover, or protect it, for the safety of persons rightfully at or near it, and timely warning thereof should be given to such persons.
Error from City Court of Atlanta; Hugh M. Dorsey, Judge.
Suit by John Bradshaw, by next friend, and others, against R. H Coffer and others. To review the judgment, some of defendants bring error.
Affirmed.
Petition stated cause of action for injuries sustained by oil mill customer in stepping into concealed opening in hull-house, where assistant manager sent him to get hulls, against mill superintendent, foreman, manager, and assistant manager, who were properly joined as defendants with corporate millowner. Civ.Code 1910, § 4420.
John Bradshaw, by his father as next friend, filed suit against Swift & Co., a corporation, R. H. Coffer, Robert F. Bethea, S.E. Stephenson, and W. H. Byars, for damages, and in his petition made substantially this case:
On December 3, 1930, petitioner went to the oil mill of Swift & Co. to buy some cottonseed hulls for his grandfather. Stephenson was the superintendent of this oil mill and Byars was its foreman. Coffer was manager and Bethea was assistant manager thereof. Petitioner went to the office of the oil mill, and was there told by Bethea to go to the hullhouse and get the hulls, and, in accordance with these instructions, petitioner went to the hullhouse. At the hullhouse there is a room in which are stored the hulls and from which the hulls are conveyed by means of a conveyor in the form of a screw which runs under the floor and is covered by planks except at one point, where there is an opening into which the hulls fall and are carried off by the conveyor. At the time in question this opening was covered by hulls and concealed from view. The conveyor is operated by means of machinery and was in operation at that time, and this moving conveyor, so covered, makes a dangerous and concealed trap. Just outside of this room is the end of a large pipe through which hulls are conveyed to this point to be there delivered.
Petitioner went to the point just outside of the room to get the hulls, and, not finding sufficient hulls there to fill his sack, and there being no one at the place to get the hulls for him, he went into the room where this concealed conveyor was, to get the hulls. No one was in the room, and, not knowing of the presence of this concealed conveyor, petitioner proceeded to get the hulls, and in doing so stepped into the concealed opening covered with hulls, and his right foot and leg went into the opening and came in contact with the turning or moving screw, by which it was drawn under the plank covering and was injured to such an extent that the leg had to be amputated. Petitioner did not know of the conveyor and did not know of the opening into the same, on account of its being covered with hulls, and could not have known thereof by the exercise of ordinary care. No warning was given to him of the presence of the moving conveyor and the concealed trap. The door to the room was not fastened and no warning sign was posted to warn petitioner or others of the presence of the concealed opening to the conveyor. It was the duty of Stephenson and of Byars, as plant superintendent and foreman, to see that some employee was at the hullhouse to deliver hulls to the public and to see that the room wherein the conveyor was located was locked, and to see that the hullhouse was not left open, and particularly to see that the room wherein the concealed conveyor was was not left open, and to post a warning sign or signs at the hullhouse to give warning of the dangerous trap therein, and to put barriers or guards around the concealed trap to protect any one going into the hullhouse from falling into the trap, and especially to see that no one was sent into this room of the hullhouse to get hulls, and especially not to send a minor, such as petitioner, unaccompanied by an employee, into the hullhouse to get hulls, and it was their duty to give warning of the presence of the dangerous and concealed trap to any one who might go into the hullhouse for the purpose of getting hulls. These employees of Swift & Co. failed to take these precautions, and thus failed in the performance of their duties. Coffer and Bethea, as manager and assistant manager of this mill, had general charge, control, and supervision thereof, and of the superintendent and foreman mentioned above, and it was their duty to see that these precautions were taken and carried out by the superintendent and foreman, and it was their duty to see that no one, especially a minor like petitioner, was sent into the hullhouse to get hulls unless accompanied by an employee. These employees of Swift & Co. failed to take these precautions, and also failed to see that these precautions were taken and carried out by the superintendent and foreman, and they thus failed in the performance of their duties.
The defendants were jointly and concurrently negligent: (a) In sending petitioner to the hullhouse where the dangerous and concealed trap was located; (b) in sending him to this hullhouse to get the hulls without warning him of the presence of the dangerous and concealed trap; (c) in sending him to this hullhouse to get the hulls without having some one to accompany him to warn him and to see that he did not get into this dangerous and concealed trap; (d) in failing to provide some one at the hullhouse to get and deliver the hulls to petitioner; (e) in failing to lock the room at the hullhouse wherein this trap was located so that no one except employees could go into this room; (f) in failing to post a warning sign or signs at or in the hullhouse to give warning of the dangerous and concealed trap; (g) in failing to surround or guard the dangerous and concealed trap by barriers or guards to protect any one going into the hullhouse from falling into the trap; and (h) in leaving the hullhouse open, and particularly in leaving the room where the dangerous and concealed trap was located open. This negligence of the defendants contributed to and was the proximate cause of the injuries to petitioner and he was without fault or negligence in the premises. Petitioner then set up that the injuries had caused him pain and suffering, and impaired his earning capacity.
All the defendants, with the exception...
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