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is as much a stranger to his master as was suggested by Cline or Steele asking any third person, and the act of the sery. Johnson if, in making out the statement for ant not done in the execution of the service appellant, he had

charged him with for which he was engaged cannot be re. “mulage,” in reply to which Johnson said garded as the act of the master.

he had not, and then obtained from apIt does not appear from the evidence, how. pellant the statement and added to it the ever, that the alleged libel was committed word “Mulage” and figures “$1.50.” Acin the manner alleged in the petition. It cording to all the evidence, this act of was admitted by appellant in giving his Johnson's raised a laugh among the pertestimony that the statement of his account sons present, in which appellant joined. with appellee when first handed him by the It is true that appellant claims he became bookkeeper, Johnson, did not contain the indignant on account of the addition to word “Mulage” or the figures “$1.50,” but the statement of the word and figures co

comthat they were added thereto by Johnson plained of, but we think it manifest from after its delivery to appellant, and apparent the testimony of Johnson, Cline, and Steele from the testimony of Johnson, uncontra- that such indignation was not shown by dicted by appellant, and in part corroborated appellant at the time, and he did not deny by the witnesses Chine and Steele, that the ad- that he laughed with the others at what dition of the objectionable word and figures all evidently regarded as the joke perpe. --personal acts of employee. it being held that the instruction explained

the meaning of the term "scope" as used It has been held that a gas company is in a preceding instruction, and that this not liable for the act of its general manager ground was not covered by another instrucin writing a personal letter, which he copied tion which was given by the court. into the official copy book of the company, and which was used as the basis of a libel. --for libelous protest by notary. ous publication by the newspaper to which

A notary is not a mere agent or servant it was sent, respecting the testimony of a

of a bank, but is a public officer, sworn to former manager of the company before a committee of Congress as to the price of to which a draft was sent for collection is

discharge his duties properly; and a bank gas, the letter having been sent in response not liable in an action for libel on the to a communication to the general manager ground that the draft was protested by the requesting information, and there having been no specific authority given, and the notary of the bank without presentation act not being within his duty as general for payment, and this is true although the manager, and he having testified that he the bank. May v. Jones, 88 Ga. 308, 15

notary was also an employee and agent of did not regard the correspondence as of an official nature, but that he answered the L.R.A. 637, 30 Am. St. Rep. 154, 14 S. E.

552. request for information as an act of courtesy. Washington Gaslight Co. v. Lansden, 172 U. S. 534, 43 L. ed. 543, 19 Sup.

Liability of employers other than corpo.

rations. Ct. Rep. 296, reversing 9 App. D. C. 508.

And it has been held that an express Employers other than corporations are company is not liable for a libel where the held to be liable for libels published by their son of its agent, who performed the latter's employees where the publication was exduties, seeing a complaint of a consignor pressly authorized, or was within the scope concerning goods which the consignee had of the employee's authority. refused because of breakage, which had been Thus, it has been held that a dealer in answered by the agent, wrote a libelous let- plumbers' supplies is liable for a libel conter to the consignor concerning the con- tained in a letter written by his manager signee, the libelous letter not being written in the routine of the business to a plumbers' in the performance of any duty which he association, regarding the plaintiff's credit, was required or permitted to perform. although it was wilfully done, since a mas. Southern Exp. Co. v. Fitzner, 59 Miss. 581, ter is responsible for a wilful injury com42 Am. Rep. 379.

mitted by his servant while engaged in the In Sun Life Assur. Co. v. Bailey, 101 Va. transaction of the master's business. Trapp 443, 44 S. E. 692, in an action against a v. Du Bois, 76 App. Div. 314, 78 N. Y. Supp. corporation for libel by its agent, it was 505. held that an instruction requested by the In Pollasky v. Minchener, 81 Mich. 280. 9 defendant should have been given which L.R.A. 102, 21 Am. St. Rep. 516, 46 N. W. stated that if the jury believed from the 5, it was held that the liability of the evidence that the duty of the author of the general manager of a commercial agency libelous letter, as an agent of the defendant, for libel should be submitted to the jury did not require or authorize him to write where the publication was made by a noti. the letter, but that it was his own personal fication sheet sent to patrons of the ageney act, outside the scope of his duty to the by the general manager's chief clerk on indefendant, and written because he felt an formation sent to the general manager, adgered and aggrieved at what he conceived dressed to him in his name, without any. to be the bad treatment of him by the thing to indicate that it was intended for plaintiff, they should find for the defendant,' the agency, and the clerk, who was au

a

was

trated by Johnson. It is further apparents an indecent one, which only the vulgar from the evidence that, of the persons mind would appreciate. Although appelpresent in the store, only Cline saw the lant, at the time of its perpetration, was word “Mulage” and figures “$1.50” after apparently amused by it, he did not willthey had been added to the statement by ingly participate in the joke, and it can Johnson. They were afterwards seen by readily be understood that a sober second two other persons, but it was because the thought enabled him to realize its sting and paper was shown them by appellant in the humiliation of feeling that would the effort to discount or sell it to them, naturally result to a victim of such obsuperinduced by his need of the money it scenity. If this were an action against showed him entitled to receive, which did Johnson for the libel complained of, we not become due until several days later. would be inclined to hold that he could not

The circumstances attending the trans- escape liability upon the ground that the action in question clearly indicate that libel was a joke. At most, evidence that Johnson's motive in adding to the statement this was 80 would be competent only in the word and figures complained of was to mitigation of damages; as it would tend to afford amusement to himself and the other show the motive for the libel and the abpersons present. The joke, however, was sence of actual malice. thorized to open his letters and prepare the society, and at which a newspaper was such notification sheets without consulting designated in which the answer was to be the manager, unless there was something published, and an appropriation made to exceptional in the communication, sent out pay for its insertion, and a member was the report without consulting the defend selected to write it, but there was no conant, it being held that the principles of templation that the answer should contain respondeat superior applied.

any libelous matter. In Harding v. Greening, 8 Taunt, 41, 1 În Wilson v. Noonan, 27 Wis. 598, it was J. B. Moore, 77, Holt, 531, it was held that held that one who wrote an article for pubthere was no evidence either of command, lication in a newspaper published in a forauthority, adoption, or recognition to go to eign language, and gave it to the proprietor the jury, and that a nonsuit was properly of the paper to be translated, was responertered where it appeared that the defend sible for libelous article which ant, a tradesman, was in the habit of em- printed, although the translation was maploying his daughter to draw his bills and terially inaccurate, it being held that the write his business letters; that a bill in maxim respondeat superior applied. the daughter's handwriting was sent to a In Parkes v. Prescott, L. R. 4 Exch. 169, person who employed the plaintiff to inspect it was held, Byles and Mellor, JJ., dissentthe bill, which, after he had reduced it, was ing, that the case should have been subreturned by the debtor to the defendant; mitted to the jury on the question of a that it was then returned, together with request by the defendants that the pro. the libel upon the plaintiff, which was also ceedings should be published, and on the in the daughter's handwriting; it being held question whether the published reports conthat there was nothing to show that it was tained a correct account of the proceedings within the scope of her authority to write as the defendants meant them to appear, the libel, or that she had been given such | where there was evidence that the libels authority by the defendant.

complained of were reports in newspapers It has been held that where authority is of proceedings at a meeting of the board given to an agent to publish libelous words, of guardians of a parish in which a disand he causes a publication to be made cussion took place respecting the plaintiff's which substantially corresponds with those conduct; that one of the defendants stated words, the principal is liable. Dawson v. that he hoped the local press would take Holt, 11 Lea, 583, 47 Am. Rep. 312. notice of the very scandalous case, and re

But the principal is not liable where the quested the chairman to give an outline libel authorized to be published was in sub- of it; that this was done by members of stance that the plaintiff was a troublesome the board and the facts were taken down fellow to his neighbors, and had tried to by reporters; that the other defendant, who hire a negro to swear falsely, and the pub was chairman of the meeting, said that he lication made by the agent was that the was glad gentlemen of the press were presplaintiff was a pest to the community, and ent, and hoped they would take notice of that there was overwhelming evidence on the case, and that he hoped the matter file in the clerk's office clearly establishing would be given publicity, and the other his guilt of subornation of perjury, such | defendant added, “And so do I," to the forpublication not being within the authority mer's remark that he hoped the press would conferred on the agent. Ibid.

take notice of the matter. Montague Smith, And in Russo v. Maresca, 72 Conn. 51, 43 J., said: “I agree with the learned counsel Atl. 552, it was held that the president of for the defendants that loose expressions of a society was not liable for a libel published a mere wish or hope that proceedings should where he presided over a regular meeting be published would not be sufficient to fix at which it was voted to publish an answer liability on the defendants in cases like the to a certain newspaper article relating to present. I think the words must be of

run

The remaining question to be determined except the figures “1.50,” which, together is: Do the facts appearing in the record with the word “Mulage,” was written with make appellee responsible for the libel com- a pencil. It will further be observed that plained of? The paper on which it was the figures "1.50” were not included in the written is a printed form appellee requires advances charged to appellant in the stateits bookkeeper to use in furnishing its em- ment, nor was the $1.50 actually charged ployees statements of its accounts with to appellant or deducted from what was them. The statement furnished appellant due him from appellee. The form of stateby Johnson, the bookkeeper, was as follows: ment used in furnishing appellant his ac

count contains no item or heading for such No. 4.

a charge as mulage, and it is admitted by

Feb. 16, 1913. appellant that no such charge as mulage Mr. Did Case

is required by appellee to be made against Earnings

its employees. Cars 37 @

22.20 We think it patent from the evidence Hours

that the bookkeeper, Johnson, in writing Tons

the word and figures complained of on Yards

the statement furnished appellant, was not Total Earnings

acting in the performance of any duty reAdvances

quired of him by appellee or in the execuStore

7.85

tion of any authority, express or implied, Rent

given him by it; nor was it an act within Doctor

.50

the scope of his employment or in the Fuel

furtherance of his employer's business. It Board

was merely an act done to accomplish a Smithing

.50

purpose of his own, wholly foreign to any Insurance

duty he owed his employer, and entirely Co. Deductions

beyond the apparent scope of his employ. Claim Mulage

1.50

ment by the latter. Nor does it appear [Pencil line through the word from the evidence that his act in writing "Claims,” and on the same line following on the statement the word and figures comthe word "Claims," is the word "Mulage,” plained of was at any time approved or written with pencil. ]

ratified by appellee. Many

have Helpers

3.30

arisen in which the master has been held

responsible for the torts of the servant, Total Advances

12.15 whether the tort consisted in the infliction

of physical injury to the person aggrieved Balance Duc

10.05 or injury to his character, but in all such

cases liability is fastened upon the master It appears from the foregoing statement because the servant is acting for the master. that appellee's indebtedness to appellant This doctrine is well stated in Sullivan v. was $22.20, and that there was due it from Louisville & N. R. Co. 115 Ky. 447, 103 appellant for advances, as shown opposite Am. St. Rep. 330, 74 S. W. 171, as follows: the proper headings, various items aggre. “The reason the master is liable for the act gating $12.15, which, deducted from the of his servant at all is because the servant $22.20 of its indebtedness to appellant, left is acting in that matter in the master's due him $10.05, as shown on the statement. stead and for him. Obviously, if the servAccording to the evidence, after this state. ant is not acting for the master, he cannot ment had been completed, Johnson obtained be said to be his representative in that act. it from appellant and wrote thereon, oppo. So, if the servant is charged by the master site the word “Claims,” the word "Mulage," with the authority to act in his stead in a and to the right of that word the figures given matter, the servant's action or his “1.50." At the time this was done he failure to act, as the case may be, is imran his pencil through the word "Claims." puted to the master as if it were his own. All the figures appearing upon the state. This general doctrine must be too well ment were entered with a pen and ink, known to require now the citation of ausuch a kind, and used in such a manner, as libelous matter so published. Whether the to satisfy the jury that they amount to, libelous matter published is in pursuance of, and were in fact, a request to publish. If and in accordance with, the request, or a the words do amount to su a request, and departure rom it, and so unauthorized, the publication be made in pursuance of it would be a question to be considered on the by the persons to whom it was addressed, circumstances of the particular case." then it seems to me the persons making

J. T. W. such request would be responsible for the

cases

were

thority to support it. But where the serv- of the publication of the libel, its failure ant steps aside from his employment and to repudiate it before suit operated as a assumes to act, and does act, solely on his ratification and approval of the libel. In own account in a matter which the master the opinion it is said: “A corporation is has no

more connection with than if he liable in damages for the publication of a were the most complete stranger, it would | libel as it is for other torts. To establish not be logical or fair to make the master its liability the publication must be shown vicariously suffer for it; for in doing that to have been made by its authority, or to act the servant, so-called, was absolutely have been ratified by it, or to have been his own master.

In determining made by one of its servants or agents in whether a particular act is done in the the scope of his employment and in the course of the servant's employment, it is course of the business in which he was emproper to inquire whether the servant was ployed.” at the time engaged in serving his master. In Duquesne Distributing Co. v. GreenIf the act be done while the servant is at baum, 135 Ky. 183, 24 L.R.A. (N.S.) 955, liberty from the service, and pursuing his 121 S. W. 1026, 21 Ann. Cas. 481, which own ends exclusively, the master is not re- was an action for slander, it was held that sponsible. If the servant was, at the time a partnership or corporation is not liable the injury was inflicted, acting for himself for slander by its servant, unless the acand as his own master pro tempore, the tionable words were spoken by its express master is not liable. If the servant step consent, direction, or authority, or aside from his master's business, for how ratified or approved by it. In a case for ever short a time, to do an act not con- libel by the servant of a corporation, hownected with his business, the relation of ever, the question of the latter's liability master and servant is for the time sus- will not turn upon whether it expressly conpended." Cincinnati, N. 0. & T. P. R. Co. sented to, directed, or authorized the libel. v. Rue, 142 Ky. 694, 34 L.R.A. ( N.S.) 200, It will be responsible for the libel if it was 134 S. W. 1144.

published by the servant in execution of In Newell on Slander & Libel, p. 373, it the authority, express or implied, given by is said: "If a partner, in conducting the the corporation, or in the performance of business of a firm, causes a libel to be pub. the service for which the servant was enlished, the firm will be liable as well as gaged, or the act was one within the apthe individual partner. So, if an agent or parent scope of his employment. servant of the firm defames anyone by the Measured by the above test, there is no express direction of the firm, or in accord cause for holding that appellee is responance with the general orders given by the sible for the libel complained of in this firm for the conduct of their business. To case; hence the action of the Circuit Court hold either of the members of a partner. in peremptorily instructing the jury to find ship, it is not necessary that the partner for appellee was not error. should publish the libel himself. It is suffi- Judgment affirmed. cient if he authorized, incited, or encouraged any other person to do it, or if, having authority to forbid it, he permitted it, the

NORTH CAROLINA SUPREME act was his.” Burgess v. Patterson, 139 Ky.

COURT. 547, 106 S. W. 837.

In Pennsylvania Iron Works Co. v. Henry HAMPTON GUANO COMPANY, Appt., Vogt Mach. Co. 139 Ky. 497, 8 L.R.A. (N.S.) 1023, 139 Am. St. Rep. 504, 96 S. W. 551, it HILL LIVE-STOCK COMPANY, was held that one corporation may sue another for libel on it, as distinct from a (168 N. C. 442, 84 S. E. 774.) libel on its individual members. In that case the plaintiff and defendant were rival Sale fertilizer warranty of ingreice machine manufacturers, both endeavor.

dients result. ing to secure a particular contract, and

1. An action for the purchase price of fer

tlizer sold under a warranty as to ingredefendant's agent for this

purpose wrote a letter to the proposed purchaser, stating Note. Evidence as to results of use of that plaintiff was a secondhand dealer, that substance upon issue as to breach of it put in a class of inferior work, was a warranty as to ingredients. scab establishment, and did not have a mechanic in its employ. It was held that such

For admissibility upon question as to a writing was libelous per se, and that the breach of warranty, of evidence as to success

or failure of similar goods or apparatus, corporation whose agent wrote the letter

see note to Waterman-Waterbury Co. v. was liable in damages for the libel it con- School Dist. L.R.A.1915B, 626. tained, because, after obtaining knowledge For liability of vendor of seeds, see the

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dients cannot be defeated because it was not | ingredients is the difference between the suitable to the purpose for which it was sold. value of the article delivered and what it

would have been worth had it been as repEvidence effect of fertilizers - breach

resented. of warranty. 2. L'pon the question of breach of warran

Sale warranty - extension by retailer. ty that fertilizer contains certain ingre; tilizer upon his warranty to the retailer

4. The liability of a manufacturer of ferdients in certain proportions in a contract which provided that the vendor should not cannot be enlarged by warranties inserted be liable for results, evidence of the effect by the latter in his contracts with conof the fertilizer upon crops is admissible sumers. in connection with proof of the kind of soil, manner of cultivation, accidents of season

(March 24, 1915.) and other pertinent facts to prove that it did not contain the ingredients stated or in

PPEAL by plaintiff from a judgment of the proportion specified.

the Superior Court for Franklin County Damages breach of warranty

in defendant's favor in an action brought

to recover the purchase price of fertilizers 3. The measure of damages for breach of sold by plaintiff to defendant under a warwarranty that fertilizer contains certain ' ranty as to ingredients. New trial. note to Leonard Seed Co. v. Crary Canning good results under similar circumstances, Co. 37 L.R.A.(N.S.) 79.

provided the matter is properly limited in It will be noticed that this note lies in instructions to the jury. somewhat narrow compass, as the warranty In Georgia it is held that the result is simply of ingredients and not of excellence upon the crop cannot be shown uniess there or of results. Generally speaking, the re- is other evidence of the ingredients of the sult of the use of a thing is evidence of the fertilizer (Hamlin v. Rogers, 78 Ga. 631, 3 nature of the thing. Whether the events S. E. 259); but that in such case it may be following the use are due to the use, and so shown (De Loach v. Hardee's Son & Co. 64 evidence of the nature of the thing used, de Ga. 94; Jones v. Cordele Guano Co. 94 Ga. pends on circumstances. Positive as distin- | 14, 20 S. E. 265). guished from negative events following the In Hamlin v. Rogers, supra, cited in the use of a thing perhaps point more directly principal case, the court approved the reto its nature, as violent illness immediately jection, under a similar contract, of eviafter eating or drinking, with symptoms dence of failure to benefit the defendant's characteristic of the use of a certain poison; crops although the crops were properly so the presence in a crop of a great deal of cultivated, the soil suitable and the seasons à certain weed may suggest that the seed propitious, and the plaintiff had testified used contained much of that weed.

that if the fertilizer" was “as represented But if there seems more ground for hesita- by the analysis on the sacks, it would have tion in reasoning from “negative results" benefited the crops, with good seasons." or lack of results following the use of a cer- The court said: “The evidence offered and tain thing, this kind of deduction is con- rejected would not per se have shown that stantly employed by all of us every day, -as the fertilizer was deficient as to any of such for instance in concluding that there has ingredients; without being offered in aid been an omission to put sugar in our coffee. of other testimony to establish this fact, it The matter becomes, therefore, one depend would be immaterial. At best, it is only ading upon what is fair and reasonable in the minicular in its character. Where, for in. particular class of cases; but it is essential stance, another analysis is given or offered that the limited scope of the evidence be in evidence to show that the fertilizer does emphasized in the instructions to the jury. not come up to the standard laid down by

It is interesting in this connection to re- the state chemist, those facts may be used fer to the opinion in Knowles v. State, 80 in aid of such other analysis; but here there Ala. 9, where the court in holding that was nothing which the evidence offered could whether a liquor was intoxicating or not sustain. This is the extent to which former might be shown from its effect on persons decisions of this court have gone.” using it said: “The most available mode of In Scott v. McDonald, 83 Ga. 28, 9 S. E. testing the nature and properties of a fluid 770, where it does not appear that there was or drug, next to that of chemical analysis, any particular form of warranty, the court, is by its effects on the human system. That in holding that the defendant's evidence was a liquor when taken in certain quantities not suflicient where the plaintiff showed intoxicated or failed to intoxicate the person that some of the same lot of guano had benetaking it is as competent to prove or dis- fited his crops and the defendant showed its prove its intoxicating qualities as it would lack of benefit to his crops, said: “The be to prove the poisonous nature of a drug law does not require the seller to guarantee by the effect following its administration.” | its effects upon crops. It only requires him

It seems a sound doctrine which is suis- to warrant that it contains such a per cent tained in the principal case, that failure of of certain ingredients. The purchaser must results in the use of a fertilizer is some determine for himself whether those inevidence that the fertilizer did not conform gredients will benefit his crops. to a standard which generally produced 'is necessary for him to go further than

It

.

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