167 So. 637 | Miss. | 1936
Lead Opinion
Appellant company operates a large number of grocery stores throughout the country. One of these is at Philadelphia in this state. Appellant Hart was the manager of this store. Appellee was a clerk therein, and had been for several months. The superior or district officers of the company were claiming that there was a shortage in this particular store. On or about November 18, 1934, appellee was discharged, and about ten days or two weeks later four parties went to the store and asked why appellee was discharged, and the manager replied that there was a shortage in the store and that appellee had to go on account of the shortage.
Appellee sued for slander, and, on the trial of the case, the local and district managers both testified exonerating *375
appellee from any responsibility concerning the alleged shortage; the manager denied ever having made any such charge; and it is argued that if such charge were made, it was not slanderous per se and was without malice, all the parties being entirely friendly. Words imputing a want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade, or business are slanderous per se. Farley v. Bufkin,
After mature consideration, we have concluded that the appellant tea company is not liable. Taking the proof in behalf of appellee, plaintiff, as entirely true, as is proper because of the verdict, this proof is that the discharge of appellee had occurred about ten days or two weeks before the uttering of the alleged slander, and that appellee's discharge had for and throughout said twelve days been a completed and closed incident, so *376
far as Hart's legitimate official duties thereinabout were concerned. Strickland v. S.H. Kress Co.,
So far as the record shows, appellee had no contract with the appellant company for any fixed period or term of employment. It was therefore within the lawful right of appellant company to discharge appellee at any time it chose to do so, and for any reason it might think sufficient, or even for no reason at all. And having that lawful right, it was none of the lawful business of any third person as to why the discharge was made, and, consequently, was of a matter about which appellant company owed no duty whatever to give any information to any third person.
And since the incident of discharge was of a matter which the corporation was under no duty, and had no occasion in the furtherance of its business, to discuss with third persons, it must logically follow that any agent or employee of the corporation, in discussing it with any third person, was acting outside of and beyond any duties owed by the corporation and beyond that which was in the furtherance of its business, and therefore was beyond and outside of the duties which the employee or agent owed to the corporation to do, and for the same reason was outside of and beyond any duties which the employee or agent was impliedly authorized to perform for the corporation.
It must follow upon equal legal logic that when the agent, Hart, discussed this matter with outside parties, his actions were purely voluntary on his part, and had nothing actually to do with his employment, and whether *377
his statements were false or slanderous did not in a legal sense concern the master. In other words, the agent was not about the master's business when he uttered the words imputed to him. See Moore Stave Co. v. Wells,
We are, of course, not holding that merely because an employee has been discharged, and the discharge within itself is a completed event, this will render any slander subsequently uttered by agents of the corporation a purely personal matter of the agent, with no responsibility on the part of the principal, especially when the slander is by a general corporate agent; but a case to come within the rule is when the slander is nevertheless uttered in the furtherance of the master's business, and within the scope of the agent's duties and authority at the time, as is illustrated by the recent case, La. Oil Corp. v. Renno,
It is urged that the jury was authorized under the evidence to infer that the slander was uttered in the furtherance of the business of the master, in that the slander was done to prevent appellee from obtaining employment *378
in a competitive store and from taking away customers to the other store. An argument along this line in its substantial aspects was made in Hand v. Ins. Co. (Miss.),
Affirmed in part, and in part reversed.
Addendum
On a former day of this term of court, we considered and decided the above case on the record sent up from the court below, and held that the Great Atlantic Pacific Tea Company was not liable for the injury complained of, but that G.E. Hart, the other defendant and appellant on the record, was liable, and that the appeal bond given was liable for the judgment rendered, together with the ordinary consequences of costs of the appeal and damages.
A judgment was rendered in the court below against the tea company and G.E. Hart, in favor of E.C. Majure, on October 30, 1935.
Motions for a new trial were separately filed by the tea company and G.E. Hart, which motions were signed by the same attorneys. Separate orders were entered as to each of the defendants overruling the motions, in which the court allowed an appeal with supersedeas.
On November 1, 1935, after the rendition of the judgment on October 30th, and during the same term of court, a joint petition for appeal was filed by the tea company and G.E. Hart, the same being signed by the attorneys who had represented the defendants in the court below.
A notice to the stenographer in writing signed by one of the attorneys representing both defendants in the court below, and who represents the appellant here, was given on behalf of G.E. Hart. stating that an appeal was desired by G.E. Hart. which notice was filed with the clerk. A separate notice to the stenographer was filed by the attorneys on behalf of the Great Atlantic Pacific Tea Company et al.
On November 6, 1935, a joint appeal bond was signed by the tea company, with the National Surety Company, reading as follows:
"We, the Great Atlantic Pacific Tea Company, a corporation, and G.E. Hart, an individual, principals, hereby agree and bind ourselves to pay to E.C. Majure the sum of $11,000.00, the payment of which we bind ourselves, our executors and our assigns firmly by these presents. The conditions of the foregoing obligation are such that the above named E.C. Majure sued the above named principals in the circuit court of Neshoba County *380 for slander, and obtained a verdict against them for the sum of $5,500.00, and the above named principals, the defendants in said cause, have appealed said cause to the supreme court of the State of Mississippi. Now, therefore, if the above named principals, the Great Atlantic Pacific Tea Company and G.E. Hart, shall well and truly abide by the decision of the supreme court of State of Mississippi, and shall pay any and all obligations as directed by the said supreme court, and shall satisfy any judgment rendered by the supreme court, then and in that event, this obligation shall be null and void, otherwise, it will remain in full force and effect. Given under our hands this the 6th day of Nov., 1935," which bond operated as a supersedeas.
The record came up to this court regular in form with said appeal bond operating as a supersedeas, and the cause was submitted here on briefs, and the attention of this court was not directed to any defects therein, nor was any proceeding taken at any time before the submission and decision of the cause to correct the record in any respect. By section 37, Code of 1930, it is provided, as follows: "Appeal-bonds shall be sufficient if signed by one or more of several appellants, with sureties as required by law, and in case of the affirmance of the decree or judgment complained of, the judgment of affirmance shall be entered against all the appellants in the same manner as if all had signed such bond; but if the decree or judgment be affirmed as to some and reversed as to others of said appellants, the judgment of affirmance shall be entered only against those as to whom it is affirmed, and the sureties on the appeal-bond."
From the statement of the case at bar, it will be seen that the appeal bond given was sufficient to bring the entire record and the judgment of the court below before us as to the tea company and G.E. Hart for review. It was unnecessary for Hart to sign the appeal bond in order to get the benefit thereof. He was joined *381 with the appellant in the bond, and subsequently no proceeding or notice to G.E. Hart to join in the appeal was required. The appellee was under no duty to have Hart brought in as an appellant. The judgment, both as to Hart and as to the tea company, was a supersedeas, and the appellee could not issue execution upon the judgment rendered in his favor against Hart.
By section 758, Code of 1930, it is provided that when a bond, or obligation of any kind shall be executed in any legal proceeding, it shall inure to the person to whom it is designed by law as a security, and be subject to judgment in his favor, no matter to whom it is made payable, nor what is its amount, nor how conditioned, and the persons executing such bond shall be bound thereby and shall be liable to the judgment or decree on such bond, as if it were payable and conditioned in all respects as prescribed by law, if such bond had the effect which a bond conditioned as prescribed by law would have had.
Where a party has signed a petition for appeal, he has made himself an appellant, and while not himself required to give bond, he cannot become a surety on the bond of any of the other appellants, since he is a coappellant. Hudson v. Gray,
The surety company having executed a bond reciting that the Great Atlantic Pacific Tea Company and G.E. Hart were appellants, and having contracted to pay same in case the appeal was not successful, is in no position now to say that Hart had not appealed. It is estopped to contend contrary to the stipulations in its bond and the recitals therein, as against appellee, Majure. Hauenstein v. Gillespie,
See, also, Schneider v. Berry,
It was the duty of the appellant G.E. Hart to examine the records to see that its contents were correct and that all the proceedings were regular, and if they were irregular or incorrect, to call same to the attention of this court in an appropriate way to the defects in the record, and apply either to this court, or to the court below, for permission to have the record corrected prior to the submission to this court for decision.
See Union Motor Car Co. v. Cartledge,
In Brown v. Sutton,
The matter was further discussed in the case of National Box Co. v. Bradley,
It is manifest from these decisions that the surety company, in the case at bar, cannot now set up and rely upon any defect in the proceedings, or the alleged statement that G.E. Hart had not authorized an appeal. The bond operated to stay the proceedings on the judgment as to Hart and the tea company, and judgment must be rendered here on this bond.
Can Hart set up that the appeal was not authorized under the facts contained in this record?
It is true that attorneys have no right to appeal on behalf of clients after the rendition of judgments in the court below without authority from clients; but, may not a party who has employed an attorney be estopped from *384 setting up want of authority in such attorney to take an appeal, where such attorney has conducted the trial in the lower court and has taken numerous steps in the client's behalf which would promote his interest in prosecuting an appeal?
It will be seen from a statement of the case at bar that the record shows that the petition for appeal was filed jointly and severally by the tea company and G.E. Hart, and was signed by the attorney representing each of them in the trial in the court below, and that notice was given to the stenographer by such attorney to transcribe his notes of evidence in the case on the appeal "for us." All of these steps were taken and an appeal bond for Hart and the tea company was given, and so the record stood, when on or about the 21st day of December, 1935, after the appeal was purported to be perfected, Hart was notified that the attorneys had prepared the case by giving the necessary notice and petitions for appeal, etc. Had he examined the record thus prepared, he would have seen and known that his attorneys, or those who had been authorized to act for him, had taken action prejudicial to the interest of the appellee by which the bond operated as a supersedeas, and no execution could be issued, and thus ascertaining was not Hart under duty to act promptly to give notice to the attorneys conducting the litigation that they had acted for him without his authority, and to take the proper steps to have the appeal as to him nullified, and the record corrected so as to show that he had not, in fact, appealed? May a party, in this situation, sit silently by and let the proceedings operate prejudicially to his adversary? Section 20, Code 1930, provides that, in order to obtain an appeal from any judgment or decree, the litigant shall petition, in writing, the clerk of the court where the judgment or decree was rendered. Section 21, Code 1930, sets forth the provisions of such petition for appeal, and section 52, Code 1930, provides that summons to answer such appeal shall be served by *385 the sheriff of the proper county on the appellee, or his attorney in fact or of record, ten days before the time it is returnable. This section shows that the attorney who has been employed in a case, or made the agent of the appellee for the service of process, is recognized as the attorney on an appeal. Section 38, Code 1930, authorizes an appeal on behalf of a corporation by attorneys in the name of the corporation.
We do not mean to hold that an attorney is authorized to prosecute an appeal without the consent, or against the wishes of his client, but situations may arise when, as between a client and another party, the client may be estopped from denying the authority of his attorney to take any steps in the litigation wherein such attorney has been employed. It is always presumed that an attorney who has represented a party is authorized to do all acts necessary to properly conduct the litigation, and the party denying such authority has the burden of showing his want of authority, and is bound, as to the opposite party, by any act which the attorney does in the regular course of practice, however improper the act may be, if done without fraud or collusion.
Grand Court of Colanthe v. Downs,
But, in the recent case of Hirsch Bros. Co. v. R.E. *386
Kennington Co.,
It seems to be the sound principle that where a party employs an attorney, and such attorney acts for him in the court proceedings, such acts being presumptively authorized, and a third party is injured by such act of the attorney, and where the party for whom the attorney acts does not take reasonable steps to overcome, or undo, the wrongful consequences of the act of the attorney, such party is estopped from setting up any want of power in the attorney to act for him.
So applying this reasoning to the case at bar, we are of the opinion that G.E. Hart, having taken no steps to correct the alleged unauthorized act of his attorney, after a reasonable opportunity to know thereof, should be estopped now, after the decision of the cause, from setting up any want of authority in his attorney.
One further observation: We have already called attention to and quoted section 37, Code 1930, which provides that an appeal bond shall be sufficient if signed by one or more of several appellants. Let us suppose that there are several defendants in the trial court, and, after judgment adverse to all of them, a supersedeas appeal bond, naming all of them as appellants and as principals in the bond, is given and approved, signed, however, by only one of the parties named therein as appellants; and suppose that the case is submitted to the Supreme Court on that record and the judgment is affirmed as to one of the appellants who did not sign the bond and reversed as to all the others, and suppose we should then open the doors of this court to the surety on the appeal bond after decision to show that the appellant who did not actually sign the bond, and as to whom the decision was adverse here, had never, in fact, authorized an appeal — just how wide would this be to *387 the admission of uncertainties in procedure and even to fraud itself? And this is stated without the slightest intimation that there has been any wrongful conduct of any kind in this present case.
Sureties on an appeal bond, upon the filing and approval of the bond, make themselves parties to the appeal, and answerable to the appellee, in respect to all questions touching liability on that bond. Since it is necessary that only one of several appellants shall sign the bond, it is the business of the surety or sureties to know who are the actual appellants for whom the bond is being executed, and the time to find that out is at the time of the signing and delivery of the bond. Since such is the business of the surety or sureties, there is no hardship in requiring the surety or sureties to attend to that business. And is there any safe course that this court can pursue other than to say to the surety or sureties on said appeal bond that those who are actually appellants must be ascertained by the surety or sureties before the bond is signed, and approved, or certainly before the case is submitted and decided, and that after an appeal bond brings a case here, and the case has been submitted and decided, all who are recited therein as appellants must be held to be appellants, so far as the said surety or sureties are concerned? We think there is no other safe course, and we must direct that judgment be entered against the appellant Hart and the surety on the bond.
It is so ordered. *388