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An employer is not responsible for a libel perpetrated as a joke by his bookkeeper in stating an account with an employee on a blank furnished for that purpose, which consists of a pencil memorandum of an item implying bestiality, which is not carried into the footings, and for which there is Note. Liability of employer other than proprietor of publication for libel by employee.

As to right of corporation to maintain an action for libel affecting its business, see notes to Brayton v. Cleveland Special

Police Co. 52 L.R.A. 526; Gross Coal Co. v. Rose, 2 L.R.A. (N.S.) 741; and the late case of Pennsylvania Iron Works Co. v. Henry Vogt Mach. Co. 8 L.R.A. (N.S.) 1023.

As to liability of master, including corporation, for slander by servant, see notes to Singer Mfg. Co. v. Taylor, 9 L.R.A. (N.S.) 929; Hypes v. Southern R. Co. 21 L.R.A. (N.S.) 873; and the later case of Duquesne Distributing Co. v. Greenbaum, 24 L.R.A.

(N.S.) 955.

As to liability of telegraph company for handling libelous message, see notes to Western U. Teleg. Co. v. Cashman, 9 L.R.A. (N.S.) 140, and Grisham v. Western U.

Teleg. Co. 37 L.R.A. (N.S.) 861.

As to punitive damages for libel by servant, see note to Forrester v. Southern P. Co. 48 L.R.A. (N.S.) 62.

As to criminal liability of master for libel by servant, see note to Com. v. Sacks, 43 L.R.A. (N.S.) 37.

The present note does not cover the question of what communications are privileged or what circumstances will constitute malice destroying the privilege. As to privilege of communications between principal and agent, see note to Bohlinger v. Germania L. Ins. Co. 36 L.R.A. (N.S.) 449. As to privilege as affected by extent of publication, see note to Coleman v. MacLennan, 20 L.R.A. (N.S.) 361. And see the later case, Kruse v. Rabe, 33 L.R.A. (N.S.) 469.

Neither does the note cover the question of what constitutes a ratification, nor the liability of a partnership for libel.

Liability of corporation for libel-generally.

This note assumes that the article in question was libelous, and deals only with the question whether the employer is liable for the particular act of his employee.

The authorities are agreed that a corporation is liable for a libel published by its agents or servants, where the act was expressly authorized, or was within the scope

no heading in the blank, since the act is not within the scope of the bookkeeper's employment.

A

(January 8, 1915.)

PPEAL by plaintiff from a judgment of the Circuit Court for Pike County in defendant's favor in an action brought to recover damages for an alleged false and malicious publication by defendant's agent of a libel against plaintiff. Affirmed.

The facts are stated in the opinion. Messrs. E. J. Picklesimer and Roscoe

Vanover, for appellant, relied on:

Pennsylvania Iron Works Co. v. Henry Vogt Mach. Co. 139 Ky. 497, 8 L.R.A. (N.S.) of their authority. Maynard v. Fireman's Fund Ins. Co. 34 Cal. 48, 91 Am. Dec. 672; Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202, 16 L. ed. 73; Washington Gaslight Co. v. Lansden, 9 App. D. C. 508, affirmed on this point in 172 U. S. 534, 43 L. ed. 543, 19 Sup. Ct. Rep. 296; Behre v. National Cash Register Co. 100 Ga. 213, 62 Am. St. Rep. 320, 27 S. E. 986; Howe Mach. Co. v. Souder, 58 Ga. 64; Pennsylvania Iron Works Co. v. Henry Vogt Mach. Co. 139 Ky. 497, 8 L.R.A. (N.S.) 1023, 139 Am. St. Rep. 504, 96 S. W. 551; Vinas v. Merchants' Mut. Ins. Co. 27 La. Ann. 367; Pattison v. Gulf Bag Co. 116 La. 963, 114 Am. St. Rep. 570, 41 So. 224; Fogg v. Boston & L. R. Corp. 148 Mass. 513, 12 Am: St. Rep. 583, 20 N. E. 109; Howland v. George F. Blake Mfg. Co. 156 Mass. 543, 31 N. E. 656; Bacon v. Michigan C. R. Co. 55 Mich. 224, 54 Am. Rep. 372, 21 N. W. 324; Minter v. Bradstreet Co. 174 Mo. 444, 73 S. W. 668; Hussey v. Norfolk Southern R. Co. 98 N. C. 34, 2 Am. St. Rep. 312, 3 S. E. 923; Union Cent. L. Ins. Co. v. Mutual Ben. L. Ins. Co. 5 Ohio Dec. Reprint, 521; Hardoncourt North Penn Iron Co. 225 Pa. 379, 74 Atl. 243; Missouri P. R. Co. v. Behee, 2 Tex. Civ. App. 107, 21 S. W. 384; Belo v. Fuller, 84 Tex. 450, 31 Am. St. Rep. 75, 19 S. W. 616; Missouri P. R. Co. v. Richmond, 73 Tex. 568, 4 L.R.A. 280, 15 Am. St. Rep. 794, 11 S. W. 555; Sun Life Assur. Co. v. Bailey, 101 Va. 443, 44 S. E. 692; Empire Cream Separator Co. v. De Laval Dairy Supply Co. 75 N. J. L. 207, 67 Atl. 711; Citizens' Life Assur. Co. v. Brown [1904] A. C. 423, 73 L. J. P. C. N. S. 102, 90 L. T. N. S. 739, 20 Times L. R. 497, 53 Week. Rep. 176; Whitfield v. Southeastern R. Co. El. Bl. & El. 115, 27 L. J. Q. B. N. S. 229, 4 Jur. N. S. 688, 6 Week. Rep. 545.

V.

The practical question is whether the employee was acting within the scope of his authority in publishing the libel, and that is obviously quite a different question in the case of employers, corporate or otherwise, not engaged in the publication of papers or magazines, than in the case of employers so engaged; and the latter class of cases has therefore been excluded.

And it was conceded in Ramsdell v. Penn

sylvania R. Co. 79 N. J. L. 379, 75 Atl. 444,

1023, 139 Am. St. Rep. 504, 96 S. W. 551; | the alleged false and malicious publication 10 Cyc. 1203; Missouri P. R. Co. v. Rich- by its agent of a libel against and concernmond, 73 Tex. 568, 4 L.R.A. 280, 15 Am. St. Rep. 794, 11 S. W. 555; Hill v. Murphy, 212 Mass. 1, 40 L.R.A. (N.S.) 1102, 98 N. E. 781, Ann. Cas. 1913C, 374; note to Com. v. Sacks, 43 L.R.A. (N.S.) 1-44. Messrs. Stratton & Stephenson for pellee.

ing him. The language and character of the libel will more fully appear from the following averments of the petition: "Plaintiff states that on and prior to February 16, 1913, he was employed by the ap-defendant and in its service, engaged in mining coal at its mine in Pike county; that it was customary for defendant

Settle, J., delivered the opinion of the company to issue to its laborers statements

court:

This is an appeal from a judgment of the Pike circuit court, entered upon a verdict returned in behalf of appellee in obedience to a peremptory instruction from the court. The action was brought by appellant to recover of appellee damages for that a corporation was liable for a libel published by an employee where it was not privileged.

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showing the amount of labor performed by the laborer for the two weeks preceding, and said statement also showed any and all advances made said laborer for said period; that on said date defendant, by its duly authorized bookkeeper, issued a statement to this plaintiff showing the amount sonal beings-mere legal entities, which exist only in contemplation of law-to perform corporal acts, or deal with personal agents, the principle of representation has been adopted as a part of their constitution. The powers of the corporation are placed in the hands of a governing body selected by the members, who manage its affairs, and who appoint the agents that exercise its faculties for the accomplishment of the object of its being. But these agents may infringe the rights of persons who are unconnected with the corporation, or who are brought into relations of business or intercourse with it. As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal representatives, is the recognition of a corporate responsibility for the acts of those representatives. With much wariness, and after close and exact scrutiny into the nature of their constitution, have the judicial tribunals determined the legal relations which are established for the corporation by their governing body, and their agents, with the natural persons with whom they are brought into contact or collision. The result of the cases is, that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business and of their employment, the corporation is responsible, as an individual is responsible under similar circumstances."

The court in Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202, 16 L. ed. 73, said: "The defendants contend that they are not liable to be sued in this action; that theirs is a railroad corporation, with defined and limited faculties and powers, and having only such incidental authority as is necessary to the full exercise of the faculties and powers granted by their charter; that. being a mere legal entity, they are incapable of malice, and that malice is a necessary ingredient in a libel; that this action should have been instituted against the natural persons who were concerned in the publication of the libel. To support this argument, we should be required to concede that a corporate body could only act within the limits and according to the faculties determined by the act of incorporation, and therefore that no crime or of fense can be imputed to it. That although illegal acts might be committed for the benefit or within the service of the corporation, and to accomplish objects for which it was created by the direction of their dominant body, that such acts, not being contemplated by the charter, must be referred to the rational and sensible agents who performed them, and the whole responsibility must be limited to those agents; and we should be forced, as a legitimate consequence, to conclude that no action ex delicto or indictment will lie against a corporation for any misfeasance. But this conclusion would be entirely inconsistent with the legislation and jurisprudence of the states of the Union relative to these artificial persons. Legisla tion has encouraged their organization, as they concentrate and employ the intelligence, energy, and capital of society for the development of enterprises of public utility. There is scarcely an object of general interest for which some association has not been formed, and there are institutions whose members are found in every part of the Union who contribute their efforts to the common object. To enable imper-581, 42 Am. Rep. 379, it was said in an ac

In actions of libel against a corporation it is a question for the jury to determine whether the corporation sought to be held liable had authorized or ratified the publication, or whether the publication was made or directed by its servants or agents in the course of their employment. Washington Gaslight Co. v. Lansden, 9 App. D. C. 508, reversed on other grounds in 172 U. S. 534. 43 L. ed. 543, 19 Sup. Ct. Rep. 296; Fogg v. Boston & L. R. Corp. 148 Mass. 513, 12 Am. St. Rep. 583, 20 N. E. 109; Hussey v. Norfolk Southern R. Co. 98 N. C. 34, 2 Am. St. Rep. 312, 3 S. E. 923.

-evidence as to employee's authority. In Southern Exp. Co. v. Fitzner, 59 Miss.

due said plaintiff from defendant, and also,, county, Kentucky, by defendant's said under the head of 'Advances,' or under the bookkeeper; that by the word 'mulage,' as head showing what defendant had paid charged in said statement, defendant meant plaintiff, defendant wrongfully, unlawfully, to convey, and those who saw said statewilfully, and maliciously, and for the pur- ment understood defendant to convey, the pose of defaming plaintiff in his good name meaning that plaintiff had been having and character, and with malice toward sexual intercourse with defendant's mules plaintiff, falsely issued said statement with used by defendant in its said coal mine in the following item as advanced plaintiff, to the mining and operating its said coal wit: 'Mulage, $1.50;' that the said book- mines; that at and previous to said time keeper of defendant issuing said statement defendant had been and was using mules in for defendant had the authority under his its said mining operations in its said mines; said employment to issue statements for that it was known and generally understood defendant, and was acting in the scope of among the miners and people in and about his authority under his employment by de- said mines that the word 'mulage,' as used fendant when he issued said statement as on said statement, meant to have sexual above set out; that said statement was ex-intercourse with a mule, and that, when hibited to sundry people and citizens of Pike so charged as an advancement on said

tion for libel against a corporation that | an act done at the office where the corporation's business is conducted, and in its name, and by its servants professing to act for it, does not necessarily bind it, but that the foundation of its liability must arise from the fact that it conferred authority upon the person to do the act; and that while all these circumstances would be valuable as evidence of the delegation of power, and in some cases would be conclusive of it, at last the inquiry is narrowed to the question whether or not the act done was the act of the corporation performed by its agent.

sponsible for the telephoning of a libelous advertisement for which it was sued, it was held that the libelous matter and evidence of its publication in a newspaper were inadmissible.

In Howe Mach. Co. v. Souder, 58 Ga. 65, evidence that the agent of a corporation, after a suit had been begun against it for a libelous advertisement in a newspaper, changed the advertisement and regretted that he could not then pay for it, but promised to pay as soon as he received funds of the company, was held admissible in an action against it for libel to show that it authorized the publication.

In Hussey v. Norfolk Southern R. Co. supra, it was admitted by demurrer that the libel was published by the defendant corporation, and it was held unnecessary to allege that the agent of the company was authorized to publish it, and that he was acting within the scope of his authorand duty in so doing.

In Carroll v. Penberthy Injector Co. 16 Ont. App. Rep. 446, where the only evidence of publication of a libelous circular by a corporation was the testimony of the plaintiff that the defendant's manager admitted that it was published by the defendant, it was held that no recovery could be had, since the manager had no authority to sub-ity ject the corporation to an action of libel by his admission that he had published the libel by its authority.

But it was held that if the manager had been called as a witness and had proved that he had been authorized, or that it formed any part of his duty, to do the act complained of, then the act would have been that of the corporation, and it would have been liable. Ibid.

Where the evidence merely shows that a corporation against which a recovery for libel is sought appointed a committee to investigate certain bills without specially directing or authorizing them to make their report in print, and no usage was shown authorizing such a report, it is not liable for a libel contained in printed reports of the committee which were placed on the secretary's desk, and which were freely taken by members, since the report was but the act of the committee. De Senancour v. Société la Prévoyance, 146 Mass. 617, 16 N. E. 553.

publications relative to former employees.

A sewing machine company has been held liable for a libel contained in an advertisement in a newspaper, stating that the plaintiff, a former employee, was not authorized to sell its machines, which was inserted by an agent of the company authorized to stop the plaintiff from selling the machines. Gallagher v. Singer Sewing Mach. Co. supra.

And the company cannot escape liability on the ground that the agent was prohibited in general terms from advertising, and that his act was a wilful departure from his employment, but the act may be characterized as a wilful act done by the agent in the company's business. Ibid.

And in Pattison v. Gulf Bag Co. 116 La. 963, 114 Am. St. Rep. 570, 41 So. 224, it was held that a corporation was liable for a libel published with reference to the discharge of an employee which its manager sanctioned in the interest of the company.

In Gallagher v. Singer Sewing Mach. Co. 177 Ill. App. 198, where there was no com- And a railroad corporation is liable for petent evidence tending to prove that the a libelous statement concerning the disdefendant corporation authorized or was re-charge of a conductor and the reasons there

statement, it meant that defendant company was charging plaintiff the sum of $1.50 for having sexual intercourse with its mules; that defendant's said bookkeeper, having the authority to issue statements for defendant, showed and exhibited said statement to various and sundry people, and at said time laughed and made fun of plaintiff, and thereby, and as herein set out, injured and defamed the good name and character of said plaintiff falsely and maliciously, to his damage in the sum of $3,000."

no

was due him for his labor and also such charges as he was owing it, the statement as delivered to appellant contained charge for "mulage," as alleged in the petition, but that, after the statement was issued and delivered to appellant, someone then present in appellee's store, suggested, as a joke, that appellant should be charged with "mulage," whereupon the latter returned the statement to its bookkeeper, who, to carry out the jest, added to it the word "Mulage," and placed opposite same the figures "$1.50;" that the Appellee's answer, as amended, contained whole matter was a joke at which appellant two paragraphs, the first being a traverse, took no offense and in which he participated and the second alleging, in substance, that, by returning the statement to the bookalthough it did, on February 16, 1913, issue keeper for the purpose of having the words to the appellant a statement showing what and figures in question added to it; and for, contained in a circular posted where the | Week. Rep. 176, there was held to be evipublic could read it, by order of the general dence from which the jury could properly manager of the company, in the ordinary find that the publication of a libelous letperformance of his duties. Tench v. Great ter sent to policy holders of the defendant Western R. Co. 32 U. C. Q. B. 452. insurance corporation concerning a competitor was within the scope of the writer's employment where there was testimony that he was a superintendent who was to devote his whole time to the defendant's business, and act under instructions given by its officers in accordance with its rules; that he was to receive and pay money and supervise agencies; that he was to appoint and look after agents and to stand as an intermediary between the assured and the insurer; and that he was authorized to secure business and save business and visit policy holders whose policies had lapsed or were likely to lapse.

In Howe Mach. Co. v. Souder, supra, the jury's verdict that the corporation authorized the publication of the libel complained of, and that it referred to the plaintiff, a former employee, was held to be sustained by the evidence, which, however, is not set out.

See also Henry v. Pittsburgh & L. E. R. Co. under subdivision, "-publication for which employee furnished data;" Hardoncourt v. North Penn Iron Co. under subdivision, "-publications concerning competitor and advancement of employer's business;" and Washington Gaslight Co. v. Lansden, under subdivision, "-personal acts of employee."

-publications concerning competitor and advancement of employer's business.

A corporation has been held liable for a libel relative to a competitor, contained in a letter written by a manager of its branch office, upon paper bearing its letter head, for the purpose of obtaining a contract for work for his employer which was also sought by the competitor, although the libelous statement was not known or assented to by it, the act being one within the scope of his employment. Pennsylvania Iron Works Co. v. Henry Vogt Mach. Co. 139 Ky. 497, 8 L.R.A. (N.S.) 1023, 139 Am. St. Rep. 504, 96 S. W. 551.

And it has been held that an insurance corporation may be held liable where its general agent investigated statements made by an agent of another company, and subsequently published a libelous statement concerning the other agent, which was signed by him in the name of the company, his act being for the defendant's benefit. Wells v. Payne, 141 Ky. 578, 133 S. W. 575.

And in Citizens' Life Assur. Co. v. Brown [1904] A. C. 423, 73 L. J. P. C. N. S. 102, 90 L. T. N. S. 739, 20 Times L. R. 497, 53

And where there was evidence that a libelous publication concerning a former employee of the defendant corporation was sent to persons with whom it had or desired to establish business relations with the evident object of protecting its business from competition by the former employee, and that it was signed in the name of the corporation, followed by the name of a person who was one of its directors and its treasurer and general manager, although it did not appear that the office of general manager had been created, it was held that it could not be said that the testimony furnished no ground for the inference that such person, in writing and publishing the libel, was acting within the scope of hiз authority, and that after a verdict for the plaintiff in the libel suit a judgment non obstante veredicto could not be entered for the defendant. Hardoncourt v. North Penn Iron Co. 225 Pa. 379, 74 Atl. 243.

In Fogg v. Boston & L. R. Corp. 148 Mass. 513, 12 Am. St. Rep. 583, 20 N. E. 109, there was held to be evidence for the jury upon the question whether the libel complained of had been published by the defendant railroad's authority, or ratified by it, or made by one of its servants or agents in the course of the business in which he was employed, where it was admitted that a libelous extract from a newspaper con

that no charge was, in fact, made against appellant or deducted from his wages for any such item.

On the trial appellee, at the conclusion of appellant's evidence, moved the court to grant a peremptory instruction directing a verdict for it. The court, however, then declined to act upon the motion, but later granted it at the conclusion of all the evidence.

"mulage" by the miners of the community in which appellee's mine is situated, would be manifest, because, as applied, it tended not only to make appellant contemptible and odious, which would of itself make the tort complete, but it, in fact, charged him with the crime of buggery. So, if the libel had been committed in the manner and under the circumstances indicated, there would seem to be no doubt of the appelIt is insisted for appellant that the giving lant's right to make the bookkeeper, Johnof the peremptory instruction was error. If son, responsible therefor in damages; but the word "Mulage" and accompanying fig- it would not follow that appellee would be ures complained of had been written and responsible for the act of Johnson in published by appellee's bookkeeper, John- writing or publishing the libel, unless it son, in the manner alleged in the petition, was done in execution of the authority, its libelous character, in view of the evi-express or implied, given by it; for beyond dence as to the meaning given the word the scope of his employment the servant

cerning a ticket broker doing business on the same street as the defendant was kept posted for forty days in a conspicuous place in the defendant's office, which was in immediate charge of one of its employees, and there was evidence from which it might be inferred that the defendant's office was used for publishing information to persons about to purchase tickets which would be likely to induce them to buy of defendant rather than elsewhere, and that the principal managing agents had knowledge of the kinds of advertisements and notices posted in the office, and that the defendant's general passenger agent declined to interfere with the publication complained of. In Etna L. Ins. Co. v. Paul, 37 Ill. App. 439, it was held that an action against an insurance corporation for libel published in a circular containing libelous statements concerning a person insured by the company, which its agent had caused to be printed, could not be maintained where the company did not specially authorize the printing in advance or subsequently ratify it, and the expense of printing was paid by the agent, who had no authority to print anything unless application was made to the home office, and the company was not informed and had no actual knowledge that the circular had been printed or sent out, since, although it was within the scope of his duty to push the company's business by ordinary methods, he had no authority to do so by means of malicious torts.

-publication for which employee furnished data.

In Henry v. Pittsburgh & L. E. R. Co. 139 Pa. 289, 21 Atl. 157, where there was no evidence that libelous articles concerning an employee of the defendant corporation were dictated or inspired by the company or by its general superintendent, but that they were published by reporters, the corporation was held not liable. The court said: "The other charge, that the railroad company was responsible for a libel published by its general superintendent, is

But

yet more novel. It would certainly be
carrying the doctrine of respondeat superior
to an extreme length. The doctrine is hard
enough as it is, and we are not disposed
to push it further. There was not a scin-
tilla of testimony to show that the com-
pany published a libel, authorized anyone
else to do so, or knew that it had been
done. It appears that when it became
known that irregularities were supposed
to exist in the ticket department of the
company, a number of reporters, with the
irrepressible enterprise for which they are
somewhat celebrated, proceeded, in their
own way, to investigate the matter and
lay the fruits thereof before the public
through the Pittsburgh newspapers.
there was no evidence that these articles
were dictated or even inspired by the com-
pany, or by Mr. Holbrook. That he was
beset by the reporters for information is
certain; that he gave very little, and that
very reluctantly, is equally certain.
even if he furnished all the information
which the plaintiff imputes to him, it would
not make him responsible for a libel, un-
less he went one step further, and procured
its publication. Of this there was no evi-
dence. The proprietors of the respective
newspapers may or may not be responsible
in damages for the publication; the de-
fendant company and Mr. Holbrook clearly
are not."

And

In Howland v. George F. Blake Mfg. Co. 156 Mass. 543, 31 N. E. 656, in an action for libel against a corporation based on a report of an investigating committee, it was held that certain requested instructions were erroneous and properly refused where they contained the propositions that if the defendant, through its officers, agents, or employees, in the course of their employment, furnished any part of the materials used in the composition of the libel, or was concerned or in any way aided in the production of the libel, this would make the defendant liable for the libel in the form in which it appeared.

See also Washington Gaslight Co. V. Lansden, under subdivision, "-personal acts of employee."

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