third persons does not depend upon any privity between him and such third persons. It is the privity between the master and servant that creates the liability of the master for injuries sustained by third persons on account of misfeasance or nonfeasance of the servant or agent. It is difficult to apply the same principles which govern in matters of contract between an agent and third persons, to the torts of an agent which inflict injury on third persons, whether they be of misfeasance, or nonfeasance, or to give a sound reason why a person, who, acting as principal, would be individually liable to third persons for an omission of duty, becomes exempt from liability for the same omission of duty because he was acting as servant or agent. The tort is none the less a tort to the third person, whether suffered from one acting as principal or agent, and his rights ought to be the same against the one whose neglect of duty has caused the injury." In a note to this case on pages 433 and 434, 28 L. R. A., after the statement that there are many misleading dicta to the effect that nonfeasance of a servant causing injury to third persons is not generally a ground of action in their favor against the servant, and that these dicta can all be traced to a dictum in a dissenting opinion in Lane v. Cotton, 12 Mod. 488, 1 Ld. Raym. 646, we find the following language: "These dicta and text-book statements based upon them have had the pernicious effect of confusing the subject, because they do not distinguish between the direct liability of an agent or servant to third persons for breach of his own duty toward them, and an indirect liability to them for breach of duty to his own employer, and fail to recognize or indicate the fact that an agent or servant may owe duties to third persons at the same time he owes service to his employer, and that the common duty to regard the rights of our fellow-men is none. the less binding upon a person because he happens to be at the time an agent or servant. An analysis of all the cases on the subject shows that in almost every instance negligence of an agent or servant has been held to make him liable to a third person injured thereby, provided he would have been liable if acting on his own behalf under circumstances otherwise unchanged. The difficulty seems to vanish almost if not entirely when the test of the liability of an agent or servant to a third person on account of his nonfeasance or negligence is taken to be his nonperformance of a duty toward them. Where such duty and neglect thereof appear, it seems utterly unreasonable to say that the negligent person shall not be liable merely because he was the agent or servant of some other person to whom he might also be liable. To say that liability for

failure to perform a duty toward a person who is injured in consequence shall not exist, because the guilty person is in the same transaction also guilty of a breach of another and a distinct duty to a different person, is to state a proposition condemned by the analogies of the law as well as by reason."

The court, in Ellis v. McNaughton, 76 Mich. 237, 42 N. W. Rep. 1113, 15 Am. St. Rep. 308, uses this language: "Misfeasance may involve to some extent the idea of not doing as where an agent, while engaged in the performance of his undertaking, does not do something which it was his duty to do under the circumstances, as, for instance, when he does not exercise that care which a due regard for the rights of others would require. This is not doing; but it is the not doing of that which is not imposed upon the agent merely by his relation to his principal, 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 negligence in any relation, and is actionable.” The true rule deducible from the authorities is that the servant is personally liable to third persons when his wrongful act is the direct and proximate cause of the injury, whether such wrongful act be one of nonfeasance or misfeasance.

2. The next question that will be considered is whether the complaint contains allegations sufficient to show that the injury was sustained as the direct and proximate result of a wrongful act on the part of the defendant Welles. Our construction of the complaint is that it seeks to make the defendant Welles respond in damages solely on the ground that he was the agent of the Southern Railway Company, and as such was in exclusive charge of the operation and management of said company at the time of the injury. The persons in charge of the train of cars that caused the injury were not the agents of the defendant Welles, even if employed by him, but of his principal, the Southern Railway Company. While the Southern Railway Company may have been responsible for the conduct of the servants in charge of said train of cars, their acts did not render the defendant Welles liable for the injury, as they were not his agents. There are no allegations in the complaint to the effect that the injury was a direct and proximate result of a wrongful act on the part of the defendant Welles. Therefore it fails to state a cause of action against him, and the demurrer should have been sustained.

It is the judgment of this court that the judgment of the Circuit Court be reversed.

ABLE v. SOUTHERN RAILWAY AND ANOTHER. Supreme Court, South Carolina, January, 1906.

MASTER AND SERVANT-JOINT TORT.— The master and his servant are jointly liable for the wilful tort of the servant committed in the scope of his employment.

SHAM DEFENDANT — REMOVAL TO UNITED STATES COURT. In an action against a railroad company for damages for the death of a man who was struck at a crossing by defendant's engine while being operated by defendant's engineer, it was proper to make the engineer a party defendant and the cause was not removable to the United States Court on the theory that the engineer was merely a nominal or sham defendant.

APPEAL from Common Pleas Circuit Court of Lexington County. Action by Mary E. Able, administratrix of Oliver C. Able, against the Southern Railway and James Alexander. From an order refusing to remove cause to the United States Court, defendants appeal. Affirmed.

B. L. ABNEY, E. M. THOMSON, and R. H. WELCH, for appellant. G. T. GRAHAM and J. WM. THURMOND, for respondent.

WOODS, J. This action was brought by the administratrix of Oliver C. Able for $21,000 damages for his death by the alleged. wrongful acts of the defendant railway company and its codefendant Alexander. The complaint alleges that the defendant railway company is a corporation duly created and existing under the laws of the State of Virginia, and owned and operated a railroad running through the town of Leesville, in the county of Lexington, in this State; that the defendant Alexander was a servant in its employ as engineer of its passenger locomotive engine which struck and killed plaintiff intestate and operated the same. The allegations of the complaint which allege the joint tort and which are material to this appeal are as follows: "That on or about the 13th day of December, 1903, the said Oliver C. Able, deceased, plaintiff's intestate herein, was struck and killed at a public crossing and traveled place within the corporate limits of the town of Leesville, in the county of Lexington and State of South Carolina, by a locomotive engine with a train of passenger cars attached thereto, operated, controlled, and managed by the defendants. And the plaintiff alleges that the death of her intestate, the said Oliver C. Able, was caused by the joint and concurrent, negligent, reckless,

and wanton conduct and management of the said locomotive engine. by the defendants, in that said defendants ran said locomotive and train of cars on and over said railroad track and in the corporate limits of the said town of Leesville at a negligent and reckless rate of speed, and caused said locomotive engine and train of cars to approach the public crossing in Green street, in the town of Leesville aforesaid, the place at which plaintiff's intestate was walking, at a negligent and reckless rate of speed, and then and there negligently, recklessly, wantonly, and wilfully caused said locomotive engine to strike and kill plaintiff's intestate; that while plaintiff's intestate was in plain view of the defendant and was actually seen by him in ample time for them to have avoided injuring him, and while plaintiff's intestate's back was toward the said locomotive and train of cars which was approaching the plaintiff's said intestate at said public crossing, and while the defendants saw and knew the perilous position of her said intestate and could easily have avoided injuring him, but regardless of their duty in that respect, and regardless of the rights of the plaintiff's intestate, and in utter disregard of human life, and without ringing the bell or sounding the whistle of said locomotive, and without observing any care or caution whatsoever, the said defendant ran said locomotive engine and train of cars over said railroad track within the corporate limits of the town of Leesville aforesaid at a negligent and reckless rate of speed, and then and there negligently, recklessly, and wantonly caused said locomotive engine to strike and kill plaintiff's said intestate at said public crossing on said railroad track as he was in the act of stepping off of said railroad track at said public crossing."

Within due time, on April 27, 1904, the defendant Southern Railway Company filed its petition and bond for the removal of the cause to the Circuit Court of the United States for the District of South Carolina. The railway company on April 28th also answered the complaint, denying its allegations and pleading contributory negligence. On the same day the defendant Alexander demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action against him. On the call of the cause on calendar No. 1, Hon. R. O. Purdy, the presiding judge, refused the petition for removal, and the appeal involves chiefly the correctness of this ruling. As stated in appellants' argument, the petition of the railway company for removal alleges, I, that the complaint averred no fact to charge the defendant railway company with participation in alleged wilful and

wanton acts of its codefendant Alexander, and showed a separable controversy; and, 2, upon information and belief that its codefendant Alexander was made defendant to the suit under the allegation that he is a resident and citizen of the State of South Carolina, solely for the purpose of preventing the removal of the cause to the United States court, and that he is merely a nominal or sham defendant and not a necessary or indispensable party to the action; that the said codefendant cannot be made to respond to any judgment that may be had against him in the cause, and that the petitioner does not believe it is intended eventually to obtain a judgment against him.

The first ground was not urged in the argument for the reason, no doubt, that the conclusive opinion of the circuit judge is fully sustained by the cases of Schumpert v. R'y Co., 65 S. C. 332, 43 S. E. Rep. 813, 95 Am. St. Rep. 802; Carson v. R'y Co., 68 S. C. 55, 46 S. E. Rep. 525; Id., 194 U. S. 136, 24 Sup. Ct. 609. Under these authorities the master and servant are jointly liable for the wilful tort of the servant committed in the scope of his employment while in the master's service.

The application of this principle also disposes of the second ground. If a tort was committed, and the defendant Alexander is responsible therefor jointly with the railway company, he is a proper party to the action, and is in no legal sense a sham defendant because a judgment could not be collected from him for lack of property. No one can be a sham defendant who is legally liable in the action. It is not averred in the petition that the facts alleged in the complaint constituting the cause of action against Alexander and giving the State court jurisdiction are not stated in good faith, but pretensively, as, for example, that Alexander is known to the plaintiff not to be a resident of the State, or not to have been the engineer in charge of the locomotive, and was fraudulently made a party to defeat the right of the railway company to have the cause removed. The view of the defendant railway company that, though Alexander may be jointly liable as a matter of fact and law, yet he was a sham defendant, because the plaintiff, as defendant believes, does not expect to collect her money from him, but from the railway company, is erroneous. If all this were proved, it could not confer upon Alexander or any one else the right to have the action against him dismissed. The following clear statement of the principle under consideration made by Chief Justice Fuller in the beginning of the opinion in Chesapeake & Ohio R'y Co. v. Dixon, 179 U. S. 131, 135, 21 Sup. Ct. 67, is conclusive: The