Hoppendietzel v. Wade

Per Curiam. The question of the sufficiency of the petition against the general demurrer must be determined apart from any consideration of whether or not the landlord would be liable under the facts alleged. An agent is personally liable to one injured by his misfeasance or act of negligence, but ordinarily is not liable for mere nonfeasance. Reid v. Humber, 49 Ga. 207; Kimbrough v. Boswell, 119 Ga. 201 (45 S. E. 977). He may, however, become liable where, though originally not bound to act at all, he enters upon the execution of a particular work and so negligently performs it as to cause injury to another. In Southern Railway Co. v. *135 Grizzle, 124 Ga. 735, 737 (53 S. E. 244, 110 Am. St. R. 191), Justice Cobb, speaking for the court, said: “An agent is not ordinarily liable to third persons for mere nonfeasance. . . 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 or 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 eases 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 3 Clark & Skyles on Agency, 1397 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.” In Risby v. Sharp-Boylston Co., 62 Ga. App. 101 (7 S. E. 2d, 917), it was ruled: “Before an agent becomes liable for an act of omission alleged to have constituted negligence with resultant injury, it must appear that such agent had agreed to perform such act for his principal, or had assumed to perform it.” The petition alleges that the landlord sent the agent “to inspect and repair the back porch of the premises leased to the plaintiff and the stairway leading thereto.” This is a sufficient allegation *136 that the agent was sent for that purpose, and that he actually went for that purpose. If this allegation is true, it was the agent’s duty to inspect the porch and the whole stairway. It is alleged that the agent negligently inspected and repaired the steps. It is immaterial that it is not alleged whether he actually inspected the defective part or failed to inspect it in connection with the other parts which were actually inspected and repaired. If he could have discovered the defect by an inspection, he would be liable whether he negligently failed to discover it by actual inspection or negligently failed to inspect it so as to discover it when he had assumed the duty to inspect and repair the whole stairway. The court erred in sustaining the agent’s general demurrer and in dismissing the action as to him. Judgment reversed. Stephens, P. J., and Felton, J., concur.