3. Liability to third persons.

В§ 290. Liable for misfeasance, but not for non-feasance.

In dealing with the liability of the servant for his torts we

are met at the outset with the distinction between non-

feasance and misfeasance. The statement is that a servant

Is liable to third persons (including fellow-servants) for his

misfeasance resulting in injury, but not for his non-feasance;

that as to the first he cannot shield himself behind the plea

that he was acting in behalf of, or under the command of, a

master, since every man is liable for his own positive wrongs,^

but that as to the second, he is liable only to the master,

since no one but the master can complain that a servant has

not done what he undertook to do.^ It becomes necessary,

therefore, to examine these two concepts of the law as bearing

upon the liability of an agent for his torts.

В§ 291. Meaning of non-feasance.

" Non-feasance 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; and malfeasance is the

doing of an act which a person ought not to do at all."*

1 Burns v. Pethcal, 75 IIuii (X. Y.),437; Murray v. Usher, 117 N. Y.

542.

2 Perkins v. Smith, 1 Wils. 328; Weber v. Weber, 47 Mich. 569;

Phelps r. Wait, 30 N. Y. 78 ; Johnson v. Barber, 10 111. 425 ; Mitchell v.

Harmony, 13 How. (U. S.) 115 ; Estes v. Worthington, 30 Fed. Rep. 465.

8 Lane v. Cotton, 12 Mod. 472, 488; Whitfield v. Lord Le Despencer,

2 Cowp. 754; Denny v. Manhattan R., 2 Deaio, 115, affirmed 5 Ibid. 639 ;

cases cited in succeeding section.

* Bell V. Josselyu, 3 Gray (Mass.), 311.

FOR TORTS TO THIRD PERSONS. 363

Strictly, as applied to this subject, non-feasance means the

not doing at all by a servant of the thing which by his under-

taking with the master he has agreed to do. Strictly, it does

not extend to a case where a servant has once entered

upon the performance of the contractual obligation and then

neglected to do something which by his contract or promise

he has undertaken to do. This is the view taken of the dis-

tinction between non-feasance and misfeasance in cases of

gratuitous agencies where the question arises between princi-

pal and agent,! and it is the view taken by the best considered

authorities in cases of negligence arising between an agent or

servant and third persons. "It is often said in the books

that an agent is responsible to third persons for misfeasance

only, and not for non-feasance. And it is doubtless true that

If an agent never does anything toward carrrying out his con-

tract with his principal, but wholly omits or neglects to do so,

the principal is the only person who can maintain any action

against him for the non-feasance. But if the agent once

actually undertakes and enters upon the execution of a par-

ticular 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 consequence 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 non-feasance,

or doing nothing ; but it is misfeasance, doing improperly." ^

Suppose that a representative undertakes the general man-

agement of real estate, agreeing to lease it, collect the rents,

pay the taxes, keep it insured, repair it when necessary and

so on, and that he enters upon the performance of his duties,

all of which he faithfully performs except as to the repairs, and

that, as to those, he allows the premises to be so dangerously