Kenney v. Lane

• Decision Date: 12 December 1894
• Citation: 36 S.W. 1063
• Parties: KENNEY v. LANE.
• Court: Texas Court of Appeals

36 S.W. 1063

KENNEY v. LANE.

Court of Civil Appeals of Texas.

December 12, 1894.

Appeal from district court, Tarrant county; P. S. Greene, Judge.

Action by C. W. Kenney against C. R. Lane for personal injuries. From a judgment for defendant, plaintiff appeals. Reversed.

R. J. Boykin and W. Erskine Williams, for appellant. W. B. Ford, for appellee.

HEAD, J.

The Lane Bridge Company had a contract to repair a bridge for the city of Ft. Worth, and appellee was its agent, having full charge of the work. Appellant was an employé engaged upon the work under appellee. The bridge where the work was being done had crossbeams about two feet apart, but no floor; and the iron pillars were being rolled upon wooden rollers along two pieces of timber laid across these beams, when one of the rollers slipped out, and fell upon appellant, who was working immediately beneath, and inflicted upon him serious personal injuries, for which he sues appellee. It was dangerous to undertake to do the work without a floor upon the bridge, and, on the day before the accident, appellee's attention was called to this by one of the hands, but he refused to allow the defect to be remedied, and required the work to proceed as before. The court below concluded that the above facts did not render appellee liable for the injuries to appellant.

It is very generally held that an agent is not liable to third persons for his mere nonfeasance or omissions of duty in the course of his employment, but is liable for his misfeasance or acts of commission. Labadie v. Hawley, 61 Tex. 177; Mechem, Ag. §§ 569, 571; Wood, Mast. & Serv. §§ 324, 325a. It is, however, frequently quite difficult to determine whether the facts of a given case place it in the one or the other of these classes. Upon this subject, Mr. Mechem, in his work on Agency (section 572), says: "Some confusion has crept into certain cases from a failure to observe clearly the distinction between nonfeasance and misfeasance. As has been seen, the agent is not liable to strangers for 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 nonfeasance. Misfeasance may involve also, to some extent, the idea of not doing; as where the agent, while not 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 the agent merely by virtue of his relation, 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 actionable negligence in any relation. Upon this distinction the language of Chief Justice Gray may be noticed to advantage: `It is often said in the books that an agent is...