1 Thorne V. Deas, 4 Johns. (n. Y.) 84 ; ante, в§в§ 97, 286.

2 Osborne V. Morgan, 130 Mass. 102. And see Bell V. Josselyn, 3

Gray (Mass.), 309, where a servant was held liable for negligently failing

to examine the state of water-pipes before letting the water into them,

whereby a lower tenant's rooms were flooded and damaged.

364 Liability of servant

out of repair that X is injured in consequence of their defec-

tive condition ; can X recover for his injuries against the

representative ? The question has been answered in the nega-

tive on this state of facts by the Federal courts and the courts

of the state of Louisiana,^ and these cases are now regarded

as the leading American authorities.^ Another court has

reached the same conclusion where it was alleged that the

omission uf the representative was malicious and with the

intent to injure the plaintiff.^ Other courts, however, have

taken the opposite view, holding that the representative

Is liable for his own negligent omissions in the management

of his principal's premises, where he has once entered upon

the discharge of his duties.*

The latter view seems more consonant with sound princi-

ples, for it distinguishes between negligence and non-feasance.

Had the representative entered upon the repair of the premises

and done his work ill, he would undoubtedly have been liable,"

Why not also when he enters upon the care of the premises

by taking " possession " of them for his employer and doing all

that a possessor should except repair? If non-feasance were

confined to cases where the representative simply fails to enter

upon the performance of his duties at all, much confusion

would be avoided and a fundamental principle of personal

obligation for one's own acts and omissions would be

vindicated.^

Yet under the latter view it must be observed that the

representative cannot be held to a continuing liability for

the negligent condition of premises or for negligent and dan-

gerous structures. He might be liable so long as he remains

* Delaupy v. Rochereau, 34 La. An. 1123; Carey v. Rochereau, 16

Fed. Rep. 87.

* See also Murray v. Usher, 117 N. Y. 542; Van Antwerp v. Linton,

89 Ilun (n. Y.), 417; Dean V. Brock, 11 Ind. App. 507.

* Feltus V. Swan, 62 Miss. 415.

В« Baird v. Shipinan, 1-32 111. 10; Campbell r. Portland Sugar Co., 62

Me. 5.52, 566; Mayer r. Hutchinson Building Co., 104 Ala. 611.

^ Harriman v. Stowe, 57 Mo. 93.

В« See Kelly v. Metropolitan Ry., 1895, 1 Q. B. 944.

FOR TORTS TO THIRD TERSONS. 365

In control, but not after he has surrendered control to his

employer or departed the service.^

В§ 292. Misfeasance.

Differences of opinion exist as to whether particular omis-

sions of duty constitute non-feasance or misfeasance, but

there is general agreement that for all of his acts or omissions

constituting misfeasance the agent or servant is personally

liable.2 For all wilful torts he is clearly liable.^ For all negli-

gent torts amounting to misfeasance he is as clearly liable.*

The obligation imposed by the law upon all persons cannot

be disturbed by the creation of new relations by contract or

other undertaking to which the injured person is not a party.

But it must appear that the servant was in fact negligent ; the

mere fact that some act of his was a remote cause of damage

is not enough.^

Whether the master and servant may be joined in one

action as joint tort-feasors, has already been considered.^

В§ 293. Liability for torts of fellow-servants.

A servant is not liable for the torts of his fellow-servants

in wliich he did not participate even though he is their supe-

rior officer." To this there is an exception in the case of a

ship-master who is liable for the negligence of all on ship-

board to the same extent as if he were acting for himself

alone and the employees were his own servants.^ So also the

managing editor of a paper is liable for a libel published in it

1 Baird v. Shipman, supra. Cf. Curtin v. Somerset, UO Pa. St. 70;

Daugherty v. Herzog, 145 Ind. 255.

2 Ante, §§ 211-214.

3 Ihid.

4 Phelps V. Wait, 30 N. Y. 78; Bell v. Josselyn, 3 Gray (Mass.), 309 ;

Mayer v. Hutchinson Building Co., 104 Ala. 611 ; Wright v. Comptou, 53

liid. 337 ; Johnson v. Barber, 10 111. 425; Harriman v. Stowe,57 Mo. 93.

5 Hill V. Caverly. 7 N. H. 215.

6 Anfe, В§ 214; Warax v. Cincinnati, &c. R., 72 Fed. Rep. 637, and

cases there cited.

' Stone V. Cartwright, 6 T. R. 411 ; Brown v. Lent, 20 Vt. 529.

8 Kennedy v. Ryall, 67 N. Y. 379.

366 LIABILITY OF SERVANT FOR TORTS TO THIRD PERSONS.

to the same extent as if he were the proprietor, and this is so

whether he knows of the publication or not.^

В§ 294. Public servants ; acta of state.

The rule of personal liability for torts extends to public as

well as to jn-ivate servants. A public principal is not ordi-

narily liable for the torts of his subordinates,^ but each sub-

ordinate is liable for his own torts, and cannot shield himself

behind the command of his su{)erior."^

To tliis rule there is one exception. A public agent is not

liable to the subject of a foreign state for an act done under

authority of the agent's state or duly ratified by the state,'*