Greenberg v. Whitcomb Lumber Co.

28 L.R.A. 439, 63 N.W. 93, 90 Wis. 225, 1895 Wisc. LEXIS 263

• Court: Wisconsin Supreme Court
• Decided: April 23, 1895
• Status: Published

Opinion

NewmaN, J.

The complaint states, in substance, that the defendant The Whitcomb Lumber Company is a corporation; that the defendant Pandan Semple was one of its officers and its general managing agent; that its business was the manufacturing of timber into firewood; that it operated, in this work, a machine 'which was defective and dangerous; that it knew' the machine to be defective and dangerous; that the defect which rendered it dangerous was that the saw was defectively and insecurely fastened to its shaft; that the plaintiff was employed to work upon or with this machine; that he was inexperienced in such work and as to such machine, and did not know of the defect of the machine; that the defendants knew that he wras so inexperienced and ignorant ; that plaintiff received no instructions; that he was injured, without his fault, by reason of the defect of the machine. Fairly construed, this is the substance of the complaint. It was the duty of the defendant The Whitcomb Lumber Company to furnish, the plaintiff a safe machine to work with, and, knowing the defect of the machine and that he was inexperienced, to instruct him of the dangers of the employment. Rot to do this was negligence. The complaint states a cause of action against the defendant The Whitcomb Lumber Company.

Whether the complaint states a cause of action against the defendant Parlan Semple is more complex. Tie was the agent or servant of The Whitcomb Lumber Company, charged with the oversight and management of its operations, and with the duty of providing a safe machine for the work in which the plaintiff was engaged. The principle is well settled that the agent or servant is responsible to third persons only for injuries which are occasioned by his misfeasance, and not for those occasioned by his mere nonfeasance. Some confusion has arisen in the cases, from a failure to observe clearly the distinction between nonfeasance and misfeasance. These terms are very accurately defined, and their application to questions of negligence pointed out, by Judge Metcalf in Bell v. Josselyn, 3 Gray, 309. “Nonfeasance,” says the learned judge, “ 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; malfeasance is the doing of an act which a person ought not to do at all.” The application of these definitions to the case at bar is not difficult. It was Semple's duty to have had this machine safe. His neglect to do so was nonfeasance. But that alone would not have harmed the plaintiff, if he had not set him to work upon it. To set him to work upon this defective and dangerous machine, knowing it to be dangerous, was doing improperly an act which one might lawfully do in a proper manner. It was misfeasance. Both elements, nonfeasance and misfeasance, entered into the act or fact which caused the plaintiff’s damages. But the nonfeasance alone could not have produced it. The misfeasance was the efficient cause. Eor this the defendant Semple is responsible to the plaintiff. Mechem, Agency, § 569 et seq.; 14 Am. & Eng. Ency. of Law, 873, and cases cited in note 4; Wood, Mast. & Serv. (2d ed.), 667; Osborne v. Morgan, 130 Mass. 102.

The complaint states but a single cause of action. It is the same cause of action against both defendants, arising from the same acts of negligence,— the master for the negligence of its servant; the servant for his own misfeasance. Both master and servant, being liable for the same acts of negligence, may be joined as defendants. Wood, Mast. & Serv. supra; Wright v. Wilcox, 19 Wend. 343; Phelps v. Wait, 30 N. Y. 78.

By the Gowrt.— The order appealed from by The Whitcomb Lumber Compa/iy is affirmed, and the order appealed from by the plaintiff is reversed.