Owens v. Nichols
| Decision Date | 14 February 1913 |
| Citation | 77 S.E. 635,139 Ga. 475 |
| Parties | OWENS v. NICHOLS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In an action for damages founded on tort, it is no defense that the injury was caused while the defendant was acting in performance of a duty as agent of a firm of which the plaintiff was a member, if negligence of the defendant amounting to misfeasance produced the injury. One phase of the evidence presented such a case; and it was erroneous to instruct the jury to the effect that the plaintiff could not recover if the contract for service was not with the defendant but with the firm, and that the plaintiff was a member of that firm.
In such an action it was erroneous to admit in evidence a newspaper advertisement of the business of the firm, and the contract between the parties, over the objection that the evidence was irrelevant.
There was evidence to authorize a charge on the subject of accident.
It is proper to so charge the jury as to restrict the recovery to the grounds of negligence alleged in the petition.
A ground of a motion for new trial must be complete within itself. Where complaint is made of refusal of the judge to admit in evidence the opinion of a nonexpert witness, the facts upon which the opinion is based should be set out in the ground of the motion.
Testimony that the defendant had had a great deal of experience with horses was not wholly irrelevant.
Under the particular facts of the case, the remark of the judge "Sustain the facts of this case," addressed to counsel while they were engaged in a colloquy in regard to the admissibility of evidence, was not calculated to injure the plaintiff.
(Additional Syllabus by Editorial Staff.)
Under Civ. Code 1895, § 3807, declaring a tort to be a "legal wrong committed upon the person or property independent of contract." and that such legal wrong may be "the violation of some private obligation by which such damage accrues to the individual," the term "private obligation" means a private duty arising either from law or from a relation created by contract, express or implied.
Nonfeasance is the total omission or failure of the agent to enter upon the performance of some distinct duty or undertaking which he had agreed with his principal to do, while misfeasance is the performing of his duty in such a manner as to infringe upon the rights and privileges of third persons.
Error from Superior Court, Cobb County; D. W. Blair, Judge.
Action by James Owens against J. L. Nichols. Judgment for defendant and plaintiff brings error. Reversed.
Gober & Griffin, of Marietta, for plaintiff in error.
J. J Northcutt, of Acworth, and J. E. Mozley, of Marietta, for defendant in error.
In an action for damages flowing from an injury to the plaintiff's property, the petition alleged that the defendant held himself out to the public as skilled in a particular business in which he was engaged. In the course of such business, he received the plaintiff's property and undertook to deal with it in a manner beneficial to the plaintiff, but not injurious to the property. After receiving the property, the defendant undertook to perform the duty, but it was in a negligent and unskillful manner, and thereby caused the injury. The defendant denied the material allegations of the petition, and set up that the business in which he was engaged was that of a copartnership, of which the plaintiff was a member, and that the defendant's relation thereto was merely in a representative capacity; and thereupon he denied individual liability, if any liability existed. On the trial, the evidence was conflicting concerning the manner of the performance of the duty. While on the stand as a witness in his own favor, the plaintiff admitted that he was a member of the firm which conducted the business, and that he participated in the selection of the defendant to manage it, and that each of the owners was to pay him a stated monthly sum as wages. The jury returned a verdict in favor of the defendant. The plaintiff moved for new trial, and excepted to the judgment overruling it.
1. One ground of the motion for new trial complained of the charge: "I charge you further, gentlemen, that if, as contended by the defendant, the contract for services was not with the defendant but with this partnership, and also that the plaintiff was a member of that partnership, the plaintiff would not be entitled to recover in this case." One criticism of this charge was to the effect that, inasmuch as the suit was against the defendant as for a tort committed by himself, it would be immaterial whether the contract was made with the defendant or with the partnership. The charge complained of proceeded on the theory that the fact that the defendant acted in a representative capacity for a firm of which plaintiff was a member would relieve him from personal liability. Whether such relation would bring about such result would depend on the nature of plaintiff's cause of action.
In Wolff v. Southern R. Co., 130 Ga. 256, 60 S.E. 571 it was said: ...
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... ... Merritt & Pruitt, Glyndon C. Pruitt, Buford, for defendant in error ... NICHOLS, Presiding Judge ... 1. The grant or refusal of a continuance or postponement of a case is ordinarily within the discretion of ... Owens v. Nichols, 139 Ga. 475(4), 77 S.E. 635. But where acts are alleged as ordinary negligence the jury has the duty of deciding not only whether the ... ...
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