Story Case

Joseph Madison was the general superintendent of the Waterbury Steel Company. John Winters, an employee of another company, while at the mill on business, was seriously injured, because of the act of an ignorant and careless workman, whom Madison had employed without determining his fitness for the position he occupied. Madison was negligent in employing this man. Now, it occurred, that at the time "Winters was injured, the Waterbury Steel Company became a bankrupt concern, and a judgment against it was of little value. Winters, thereupon, brought suit against Madison, alleging that the injury was caused by the act of the latter in carelessly employing the workman. Madison defended on the ground that he was merely an agent. Is this a good defense?

Ruling Court Case. Mayers Vs. Thompson-Hutchinson Co., Volume 104 Alabama, Page 611; Also Volume 28 Lawyers' Reports, Annotated, Page 433

The Hutchinson company had contracted to erect a brick school building on public property in Birmingham. A frame structure, which formerly occupied the site, was moved back, so that the space between the old one and one to be erected was a little over seven feet. A fence was erected between them, and the entrance to the wooden building was on the side nearest to the brick one.

Plaintiff was a twelve-year-old boy, and attended school, which was still held in the old building. While the pupils were standing in line one morning, preparatory to going home, a cry of: "Look out!" came from the new building; this was followed by a shower of bricks, one of which struck the plaintiff on the head, causing serious injury, and for which this action is brought against Thompson, as agent of the company.

The main question was as to the liability of Thompson, who was only an agent of the construction company. The plaintiff claimed that Thompson was liable because of his failure to erect a scaffold and guards, to prevent bricks from falling upon passers-by. In reply to this, Thompson contended that an agent, or servant, is not liable for mere omissions.

Justice Coleman delivered the opinion.

An agent is personally liable for his failure to act and do his duty, to the same extent that he would have been liable had he been acting independently.

The Court said in part: "We think the better rule, declared in Baird vs. Shipman, Volume 22 American State Reports, Page 504; Volume 132 Illinois, Page 16; Volume 7 Lawyers' Reports, Annotated, Page 128, in which it was held that 'an agent of the owner of property, who has the complete control and management of the premises, and who is bound to keep them in repair, is liable to third persons for injuries resulting to the latter while using the premises in the ordinary and appropriate manner. The agent cannot excuse himself on the plea that his principal is liable. It is not his contract that exposes him to liability to third persons, but his common law obligation to use that which he controls so as not to injure another.' "

Ruling Law. Story Case Answer

When an agent undertakes to perform an act and does it negligently, he is answerable to third persons for all damages which result from his negligence. The mere fact that he was acting as agent is no defense. Neither is the fact that his principal may be held for the same damages. Of course, each cannot be held. If collection is made against one, judgment cannot be secured against the other.

The defense put up by Madison, in the Story Case, would not be good. He would be personally liable for his negligence.