Southern Ry. Co. v. Grizzle

• Decision Date: 13 January 1906
• Citation: 53 S.E. 244,124 Ga. 735
• Parties: SOUTHERN RY. CO. v. GRIZZLE. O'NEAL v. SAME.
• Court: Georgia Supreme Court

53 S.E. 244

124 Ga. 735

SOUTHERN RY. CO. v. GRIZZLE.

O'NEAL v. SAME.

Supreme Court of Georgia

January 13, 1906

Syllabus by the Court.

The act of a railroad engineer in running a train over a public road crossing, in violation of the requirements of the blowpost law, is not a mere nonfeasance of the agent, but is a misfeasance, which renders him individually liable to persons injured as a result of such conduct.

A railway company and its engineer may be jointly sued for a negligent homicide, where the negligence of the company results solely from the act and conduct of the engineer.

A foreign railroad company operating in this state and an engineer in its employment may be jointly sued in the county in which the cause of action originated, even though the residence of the engineer be in another county in this state.

The petition, when considered in its entirety, sought a recovery solely upon the ground that the engineer had failed to comply with the requirements of the blowpost law. The averments in reference to the location of the warehouses near the crossing were made as a matter of inducement, and not as a ground of recovery, and these allegations did not make a separable controversy between the railway company and the plaintiff. As the engineer was a resident of the state of Georgia, the refusal of the judge to pass an order removing the case to the Circuit Court of the United States was not erroneous.

Error from Superior Court, Gwinnett County; R. B. Russell, Judge.

Action by America H. Grizzle against T. A. O'Neal and the Southern Railway Company. From an order overruling a demurrer to the complaint, O'Neal brings error. From an order refusing to remove the case to the Circuit Court of the United States, the railway company brings error. Affirmed.

Jno. J Strickland and J. J. Winn, for plaintiffs in error.

Atkinson & Born, for defendant in error.

COBB P.J.

1. An agent is not ordinarily liable to third persons for mere nonfeasance. Kimbrough v. Boswell, 119 Ga. 201, 45 S.E. 977. An agent is, however, liable to third persons for misfeasance. Nonfeasance 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. Misfeasance means the improper doing of an act which the agent might lawfully do; or, in other words, it is the performing of his duty to his principal in such a manner as to infringe upon the rights and privileges of third persons. Where an agent fails to use reasonable care and diligence in the performance of his duty, he will be personally responsible to a third person who is injured by such misfeasance. The agent's liability in such cases is not based upon the ground of his agency, but upon the ground that he is a wrongdoer, and as such he is responsible for any injury he may cause. When once he enters upon the performance of his contract with his principal, and in doing so omits, or fails to take reasonable care in the commission of, some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf. See 2 Clark & Skyles on Agency. 1297 et seq.

Misfeasance may involve also to some extent the idea of not doing, as where an agent engaged in the performance of his 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. 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. Mechem on Agency, § 572. As was said by Gray, C.J., in Osborne v Morgan, 130 Mass. 102, 39 Am.Rep. 439: "If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequences of his acts; and he cannot, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance or doing nothing, but it is misfeasance, doing improperly." In that case the agent was held liable by the fall of a tackle block and chains from an iron rail suspended from the ceiling of a room, which fell, for the reason that the agent had suffered them to remain in such a manner and so unprotected that they fell upon and injured the plaintiff. In Bell v. Josselyn, 3 Gray, 309, 63 Am.Dec. 742, Metcalf, J., said: "Assuming that he was a mere agent, yet the injury for which this action was brought was not caused by his nonfeasance, but by his misfeasance. Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do. The defendant's omission to examine the state of the pipes *** before causing the water to be let on was a nonfeasance. But if he had not caused the water to be let on, that nonfeasance would not have injured the plaintiff."

In the present case the failure of the engineer to comply with the requirements of the blowpost law was not doing, but the running of the train over the crossing at a high rate of speed without giving the signals required by law was a positive act, and the violation of a duty which both the engineer and the railroad company owed to travelers upon the highway. The engineer having once undertaken in behalf of the principal to run the train, it was incumbent upon him to run it in the manner prescribed by law; and a failure to comply with the law, although it involved an act of omission, was not an act of mere nonfeasance, but was an act of misfeasance. This view is strengthened by the fact that the blowpost law renders the engineer indictable for failure to comply with its provisions. The...