Kimbrough v. Boswell

• Decision Date: 10 December 1903
• Citation: 119 Ga. 201,45 S.E. 977
• Parties: KIMBROUGH. v. BOSWELL.
• Court: Georgia Supreme Court

45 S.E. 977

119 Ga. 201

KIMBROUGH.

v.BOSWELL.

Supreme Court of Georgia.

Dec. 10, 1903.

AGENT — PERSONAL LIABILITY — NEGLIGENCE OF PRINCIPAL—NEW TRIAL.

1. An agent is personally liable to those injured by his misfeasance or act of negligence, but he is not ordinarily liable for mere nonfeasance.

v 1. See Principal and Agent, vol. 40, Cent. Dig. 606, 607.

2. If the agent of the owner of land takes up stock trespassing on his principal's property, and if, while impounded, they are in the possession and under the control of the principal, and are damaged by the failure of the principal to give them the proper care and attention, the agent is not responsible for the injury thus caused.

3. In the present case the evidence left it uncertain as to whether the principal or the agent was in possession and control of the cattle after they were impounded, and this court will not interfere with the discretion of the trial judge in granting a second new trial.

(Syllabus by the Court.)

Error from Superior Court, Greene County; H. M. Holden, Judge.

Action by P. B. Kimbrough, executor, against E. T. Boswell. Judgment for plaintiff. From an order granting a new trial, he brings error. Affirmed.

A. L. Kimbrough was engaged in selling milk to a creamery in Greene county. He owned a number of cows, which trespassed upon the land of Mrs. Boswell, while in charge of her husband, the defendant. On December 15th Boswell took up the cattle, and they were carried from the plantation on which they were trespassing to Siloam, about three miles and a half distant. The plaintiff was dead at the time of this, the second, trial, but his son testified: "I heard of it on Sunday night, the night of the 16th. I came to town the next day and saw him; and inquired as to the damages they had done. He told me that they had been in his cotton * * * [and] had damaged him by eating the cotton bolls and trampling his land, and I couldn't get them except by paying him $10 'faith money, ' and, if they didn't get back on his place any more by May 1st, he would refund the money. I told him I wouldn't do that; I would pay damages. * * * The next morning I sent him $3.50 to pay for what the cows had eaten, and he sent them to me. When the cows got home —that was on Tuesday—they came up with their bags very much distended. I saw they were in bad shape, and had them milked right away, and found the milk spoilt. It was bloody." There was other evidence for the plaintiff tending to show damage as a result of a failure to milk. The testimony of the defendant tended to show that the cows had been properly cared for and milked. The defendant testified: "These cows were taken up December 15, 1900. They were on my wife's land, and we carried them to Siloam and put them in the horse lot. We got there about dark Saturday evening. During the time the cows were at our house they were properly cared for. I took the cows up and kept them from damaging my...