*1 Majure. et Great Atlantic & Pacific Tea Co. al. v. (Division April 1936.) B.
[167 32214.]. So. 637. No. (Division Suggestion B. June 1936. of Error of Great & Atlantic July 3, 1936; Suggestion Pacific Tea Co. Overruled of Error of Sept. 28, 1936.) G. E. Hart Overruled
[
Butler & Snow, of Jackson, *10 Reily & San- Richardson Meridian, and Parker, & appellee. Philadelphia, for ford, of *12 Reily appellee. for Parker, Meridian, & Earl Philadelphia, appellee. Richardson, of *14 Eager,
Reily & Watkins Parker, Meridian, & appellee. flor Jackson, *15 Hugh Argued orally by George Butler, V. Wall and appellant, Reily, for and Marion W. Wat- and W. H. appellee, kins, Sr., for opinion J.,
Griffith, delivered the court. Appellant company operates large groc- a number ery throughout country. at stores One of these is Philadelphia Appellant man- this state. Hart was the ager Appellee of this store. a clerk therein, was superior had been several months. The or district claiming company officers was were that there shortage particular a No- this store. On or about appellee discharged, vember 18, 1934, was and about ten days parties or two weeks later four went store to the- why appellee discharged, asked and ager replied was and the man- shortage there was in the store *16 appellee go shortage. that had to on account of the Appellee sued for slander, on trial and, the of the managers case, the local and district both testified ex-
375
concerning
responsibility'
any
appellee
onerating
from
having
manager
shortage;
denied ever
alleged
the
the
argued
charge;
if such
that
any
it is
and
snch
made
charge
per
was
and
se
slanderons
was not
made, it
were
friendly.
entirely
being
parties
the
malice, all
without
integrity
capacity, whether
imputing
or
a want of
Words
profession,
pecuniary,
of a
conduct
in the
mental or
per
Farley Buf
v.
se.
slanderous
trade,
business are
or
a mer
A clerk
After consideration, mature we have concluded that appellant company proof Taking tea not is liable. appellee, plaintiff, entirely in behalf as as is true, proper proof because of the verdict, this is that the dis- charge appellee days had occurred about ten or two uttering alleged weeks before the of the slander, appellee’s discharge throughout had for and said days completed twelve beén a and closed so incident, *17 376 legitimate were
far as Hart’s
official duties thereinabout
C.
&
183
Co.,
concerned. Strickland v.
Kress
N.
S. H.
Exp.
Courtney
R.
534, 112 E.
Am.
30;
S.
v.
see,
and
also,
al
Co., 120 S. C.
113 E.
24 A.
128. The
511,
S.
L. R.
332,
leged
closely
dis
slander was not
connected with the
so
‘‘
charge
point
part
may
in
a
of
that
to
time
it
be said
be
gestae
discharge.”
pertaining
of the res
New Or
to the
leans Great
Miss.
158
Northern Railroad Co. v. Frazer,
497;
Edgar
407, 421, 130 So.
Scott-Burr Stores v.
493,
(Miss.),
So far as the record had no shows, contract appellant company period any with the term for fixed or employment. of right It lawful was within therefore the appellant of company discharge any appellee to time at it any might chose to do' so, and for reason it think suffi- cient, or having even for no law- reason at all. And that right, ful any it was none of lawful the of third business person why discharge as to the conse- was made, and, quently, appellant was a com- matter about which pany duty give any owed no whatever to to information any person. third discharge was of a matter the incident of
And since
duty,
corporation
no
no
and
was under
had
which the
in
of its
to discuss
the furtherance
business,
occasion
any
logically
persons, must
follow
it
that
with third
employee
corporation,
acting
discussing
agent
of the
it
or
any
person,
beyond
was
of and
with
third
outside
corporation
beyond
any
the
and
that
duties owed
which was in the furtherance
its
and there-
business,
beyond
fore was
and outside
which
the duties
employee
agent
corporation
or
owed to the
to
do,
any
beyond
for
same reason was outside of and
employee
agent
impliedly
duties which the
or
au-
was
perform
corporation.
thorized
upon equal legal logic
follow
It must
that
when
agent,
parties,
discussed this matter with
Hart,
outside
purely voluntary
part,
his actions were
his
had
on
nothing actually
employment,
to do'with his
and whether
not
did
or slanderous
were false
his statements
words,
In other
legal
master.
concern
sense
ut
he
business when
agent
master’s
about the
was not
imputed
Co.
Stave
to him. See Moore
tered
words
are
And
228.
we
So.
111 Miss.
Wells,
v.
leaving
serving
perhaps
his
manager
was
aside
personal
mentioned.
heretofore
interests, as we have
own
corporation was
alleged
far as the
was,
The
slander
so
*18
employee
appellee
of
been an
as if
had never
concerned,
appellant
any
company,
business re
had never had
and
certainly
will contend
whatever;
with it
and
none
lations
manager
by a
a
store
that because
slander is uttered
person
against
particular
having
with
a
no connection
company
corporation,
liable.
of
is
the business
the
the
respondeat superior
universal
The rule of
has no such
strong
application
nearly
as that. The case is not
so
against
Magnolia
principal
161
v.
Craft
Stores,
the
as
Murphree,
756,
405,
So.
Miss.
138
or Martin Bros. v.
132 Miss.
are,We of not that because course, employee discharge discharged, an has been and the completed any a within itself is will event, this render subsequently by corpora agents slander uttered of the personal purely agent, a tion matter of the with no re sponsibility part principal, especially on of when the the by general corporate agent; the slander is a to1 abut case come within is rule when the slander is nevertheless in
uttered of furtherance the master’s and business, scope agent’s authority within the of the duties and at by time, as is illustrated La. case, the recent Oil Corp. v. Renno, Miss. 609, 157 So. 98 A. L. R. substantially 1296; but there are no facts here sufficient bring applied to this case within the rule in Renno principle. Case, those similar urged jury It is that the was authorized under the evi- dence to' infer that the slander was uttered in the fur- therance of the business master, that slander prevent appellee was done to obtaining employ- from competitive taking away in a from ment store and cus argument along tomers An to the other store. line this aspects in its substantial was made in Hand v. Co. Ins. (Miss.), 165 So. was be 616, but held court not to appellee And sufficient. it is said that if the friends of explanation an, discharge, were not furnished for his they explanation, go would, the absence of such else where to trade, that it was for this reason that the jury slander was uttered. cannot We conceive how a suppose of reasonable men a would slander uttered against thought by a friend of customers would be person holding sensible to abe means of those friends as argu customers; and, besides, so far as concerns the principal ought ment last stated, the not to be held anticipation part an agent of an action on the of an so Compare devoid of common as that sense would be. supra. Hand v. Ins. Co., part, part
Affirmed in and in reversed. Ethridge, opinion J.,P. delivered the court on Judgment. Motion to Correct day
On a former of this term of court, we considered up and decided the above case on the record sent *19 from the court and below, that & held the Great Pa- Atlantic Company injury cific Tea was not liable for the com- plained but E. of, that G. Hart, the other defendant and
appellant
appeal
on the record, was
and
liable,
that the
given
judgment
bond
was liable for the
rendered,
to-
gether
ordinary consequences
with the
of costs of the
appeal
damages.
and
Motions signed company Hart, motions were tea by and G. E. which attorneys. Separate as entered were the orders same overruling motions, in of the to each the defendants appeal supersedeas. an with which court allowed the judg- the On after rendition 1, November the of 1935,. 30th, during of the term ment on October same petition by joint appeal the tea a was filed court, company being signed by Hart, E. the and G. the same attorneys represented who in had the defendants court below. signed by stenographer writing
A one notice to the attorneys representing of the both defendants represents appellant below, here, court was and who Hart, given stating appeal on of G. behalf E. an Hart, by with was G. E. desired notice was filed which separate stenographer A was the clerk. notice to by attorneys filed & on behalf the Great Atlantic Company Pacific Tea et al. joint signed appeal
On November a bond was Surety Company, company, with the National tea reading as follows: Company,
“We, Great & Atlantic Pacific Tea corporation, principals, Hart, individual, and G. E. an hereby agree pay Majnre and bind ourselves to E. C. payment $11,000.00, the sum of which we bind assigns firmly by our ourselves, executors our these presents. obligation foregoing The conditions are tbe *20 Majnre such that E. the above named C. above sued the principals named in the circuit court of Conn- Neshoba against ty slander, for a verdict them and obtained principals, and the named $5,500.00, sum of above the appealed cause in have said cause, defendants said the Mississippi. supreme Now, of court the State of to the principals, At if named Great the above the therefore, Company Pacific and G. well Hart, lantic & Tea E. shall by supreme truly of and abide decision the court the of any obligations Mississipi, pay and all State of shall and by supreme satisfy court, the said and shall as directed any judgment supreme by
rendered the and court, then t obligation void, in tha this null and event, shall be otherwise, it will in full remain and effect. Given force day under our hands which this the 6th of Nov., 1935,” operated supersedeas. bond as up regular record came The this court form to appeal operating supersedeas, with said bond aas and the cause was submitted on atten- here and briefs, the any of tion court this was therein, not directed to defects any proceeding any nor was taken at time before the submission and of decision the cause to correct rec- respect. any By ord in section of is Code it follows; provided, “Appeal-bonds as shall be sufficient signed by appellants, if one or of more several with sure- required ties as law, and case the affirmance judgment complained judgment of the or decree of, against appellants affirmance shall be entered all the signed in the same manner ifas all had bond; such but judgment if the decree or affirmed be as to and some appellants, judgment reversed as to others of said only against affirmance shall be entered those as to whom it is appeal- affirmed, the sureties on bond.”
From the statement of the case at bar, it will be seen appeal given bond bring was sufficient to judgment entire record of the court below be- company fore us as to the tea and G. E. Hart for re- unnecessary view. It sign was appeal for Hart get bond in order to joined the benefit thereof. He was
381 subsequently appellant no and bond, in the with the ap- join proceeding E. in G. Hart to the or notice to duty required. appellee peal no was under The was judgment, brought appellant. an Hart in as The to have super- company, a Hart and to tea was as to as the both upon appellee and the could not issue execution sedeas, against judgment the in favor Hart. rendered his By provided that when 1930, section Code it is 758, of or’obligation any a of kind in shall be executed bond, any legal person proceeding, it to shall inure to the by designed security, law whom it is a and sub- as be ject judgment in no' to whom is to his matter it favor, payable, what condi- amount, made nor is its nor how persons executing and tioned, the bond be such shall thereby judgment bound shall or and be liable to the payable decree on such if it bond, as were and condi- respects prescribed by tioned all as if bond by law, such prescribed had the which a effect bond conditioned as law would have had. party signed petition a appeal,
Where
a
has
he
appellant,
has made himself an
and while not himself
required
give
surety
to
bond, he cannot
a
the
become
on
any
appellants,
bond of
of the other
since
a co-
he is
appellant.
Gray,
Hudson v.
mitting possession not will for, of sued he possession deny of it at the time had heard to that he be replevin of of the suit the service of institution forthcoming operates bond recital in the the writ. The estoppel deny possession upon of the an him to as property. of in most solemn admission, form, It is an property by possession him.” of the Berry, v. 171 Miss. 157 So.
See, also, Schneider giving was where court that: bond said “The possession property and was an admission *22 equivalent property in an to admission that the was 1No. in which writ and returned. district the issued was Fitzgerald 101 Furst v. 136 Miss. Williams, 250, 370; So. Pease, v. 52 468, 97 Miss. So. 257.” duty appellant
It was the of the G. E. Hart to examine the records to that see its contents were correct and that proceedings regular, they all the if were and ir- were regular or incorrect, to call same to the attention this of appropriate way an court in and to the record, defects in the apply either to this court, or to' court for below, the permission prior to have the record corrected to the sub- mission to this court for decision. Cartledge,
See Union Motor Car Co. v. 133 318, Miss. suggestion 97 So. on the 801, of error, where is it said duty appellant appealed that: “It is the the in of cases by to this court to see that the record certified clerk the steps is if perfect correct, and, not to take correct, to it before submission for decision, and the after de court, suggestion will cision, not on of error decide between conflicting orig of certificates the clerk; and where the judgment appealed inal record shows the from to have been rendered and entered in vacation, the court will not consider of certificates the clerk that it was entered on the minutes in term time.”
In Brown v. 158 Sutton, Miss. 121 78, So. 835; there point, was an again elaborate discussion of this and we held that corrections of the record could not be made after submission for and that decision, a certified record
383 transcript appeal, the record in if a for true filed of appellate impeached in the of cannot be hands the clerk, by de matters of and cannot be altered evidence court, hors the record. Na in case
The matter was further discussed
Bradley,
157
154
724,
tional Box
171 Miss.
So.
15,
Co. v.
speak
Judge Griffith,
95
where
A. L. R.
91, 92,
1500,
So.
ing
1930,
that: “Section
Code
court,
said
adequate
simple
a
for the correc
furnishes
method
reporter’s transcript
pro
tion
ofl the trial
court
ceedings,
simple
fail
and if counsel
to avail
that
predicate
a valid
offered
method,
excuse should be
as
petition
transcript
for a
record after
to correct the
ap
any
has been filed in
court.
this
And,
event,
plication for the correction
should be made before
citing
of the case
court,”
submission
this
Brown
to
v.
supra.
petition
“But
Sutton,
script
this
tran
correct the
presented
was not
trial court until
the case
by
had been decided
his court.
It would be intolerable
applications by
party
that
either
to correct
record
should be entertained after decision
this
court;
expressly
applications
it has been
decided
such
after
McIntyre,
decision
too
here are
late. Ross v.
Miss.
Cartledge,
133; Union Motor Car
v. Co.
Miss.
*23
333,
It is from manifest these that decisions the company, up rely in the case at bar, cannot now set and upon any proceedings, alleged defect in the or the state- ment that E. appeal. G. Hart had not an authorized The operated stay proceedings bond judgment to the on the judgment as to Hart company, and the tea and must be rendered on here this bond. up appeal
Can Hart set that the was not authorized under the facts contained in this record? attorneys
It right is true that appeal no have to on behalf of judgments clients after the rendition of in the authority court below without may from clients; but, not party employed a attorney who has estopped an be from authority setting up attorney in such an want to take attorney appeal, has conducted in where such the trial steps court and has taken lower numerous in the the promote pros- behalf which would client’s his interest in appeal? ecuting an will from a
It be seen statement of the case at bar petition appeal that that the record shows the for was jointly severally by company filed and tea the and E.G. signed by attorney representing and was Hart, each in trial in them the the court below, and that notice given stenographer by attorney was to the such to tran appeal scribe his notes in evidence the case on the steps appeal “for All us.” of these were taken and an company given, bond for Hart and the tea was and so day the record when or about stood, on the 21st of De appeal purported per cember, after the 1935-, was to be attorneys pre Hart fected, was notified that had pared giving by necessary pe case notice and appeal, titions for Had etc. he examined record thus .prepared, would have he seen and known that at his torneys, or those who- had been authorized for to act prejudicial him, had action taken to the interest of the appellee by operated supersedeas, which the bond aas and no ascertaining execution could be issued, thus duty promptly not give was Hart under to act to notice attorneys conducting litigation they had authority, prop acted for him without his and to take the steps appeal er to have the to him as nullified, and the record corrected so as to show that he had not, fact, appealed? May party, silently in this sit situation, by proceedings operate prejudicially let the to his adversary? provides .Section Code in or that, appeal any judgment der to obtain an from or decree, litigant petition, writing, shall the clerk of the judgment court where the or decree was rendered. Sec provisions tion 21, Code pe 1930, sets forth the of such appeal, tition provides and section 52, Code 1930, appeal that summons to answer such shall be served
385 county appellee, his proper or the on of the sheriff the days time before the attorney of ten record, fact or in attorney the shows that This section it is returnable. agent of employed the a or made case, in has been who recognized process, appellee as is of for the service the appeal. au attorney 1930, Code 38, an Section the on corporation by appeal attor on of a behalf thorizes an corporation. neys of in name the the attorney an authorized to hold that is mean We do not against appeal prosecute without the consent, an or to may when; his but situations arise client, the wishes of party, may be a client and the client as between another estopped denying authority attorney from the of his to any steps attorney litigation take in the wherein such employed. always presumed has been It is that an at- torney represented party a has is authorized to do who necessary properly litigation, all to acts conduct the party denying authority the such has the burden of showing authority, his want of bound, attorney and is to the as opposite by any party, act which the does in regular practice, improper course of however act may be, if done without fraud or collusion.
Grand Court Downs, v. Colanthe 98 53 Miss. Judge speaking So. 418. In this case, Anuerson, presumed attorney, court, said that, “It is that an assuming represent party, to a is authorized to so, do necessary proper and to do all acts to conduct of party denying cause, authority, such has the showing authority. burden of party his want of A may appear person suit attorney, or his and, by attorney, if opposite ‘by he is party, as to bound, every attorney act which regular does in the course practice, and without fraud or in collusion, however judicious may give the act be.’ He can no instructions attorney to his advantage which he can take of as against adversary.” Schirling his v. 41 Scites, Miss. 644, and Lester v. Watkins, Miss. 647.
But, the recent case Hirsch & Bros. Co. v. E. R. *25 Kennington 1, L. R. 88 So. 242, 124 Miss. A. Co., party attorney a unless could bind an not we held that employed party, by the such and overruled he had been by party holding a was bound that earlier decisions employed. every attorney of act he had the party principle It that a seems to be the sound where employs attorney, attorney in such acts for him an and proceedings, being presumptively au- the court such acts injured party and of the thorized, a third is act such attorney party attorney, and where for whom the the steps acts take does not reasonable to or un- overcome, wrongful consequences attorney, the of of do, the act the estopped setting up party any pow- such is from want of attorney er in the to act him. applying reasoning
So this are to the case at we bar, opinion having steps of the that G. E. Hart, taken nn alleged attorney, to correct the unauthorized act of his opportunity after a reasonable know to thereof, should estopped be after of now, the decision the from cause, setting up any authority attorney. want in of his already
One further observation: We have called at quoted tention and pro to section Code 1930, which appeal signed by vides that bond an shall be if sufficient appellants. or suppose one more of several Let us that there several are in defendants the trial and, court, judgment supersedeas after ap adverse all to of'them, peal naming appellants prin all bond, of them as and as cipals given approved, in signed, bond, the is and how by only parties ever, pellants; of ap one the named therein as suppose and that the case is submitted the to Supreme judgment Court on that record and the is af appellants firmed sign as to one the who did not the bond and all suppose reversed as to the and others, we open should then surety the doors of this to court the appeal on ap the bond after decision to show that the pellant actually sign who did not the to bond, and as whom decision the was adverse here, had in never, fact, appeal just authorized an how wide would this be to — procedure and even of uncertainties admission slight- without the And is stated this fraud itself? to any wrongful con- been there has that intimation est present any this case. kind in duct filing ap- upon appeal and bond, an on Sureties ap- parties proval to the make themselves bond, of the respect appellee, to all peal, to answerable liability touching is sign questions it Since on that bond. appellants necessary only shall one of that several surety or sureties to is business it bond, appellants the bond actual for whom know are the who being at is time find is out executed, *26 signing delivery bond. such and Since time surety no hard- or there is is the business sureties, ship requiring surety that or to attend to sureties any court And there safe that this business. is course pursue surety say sureties can other to the or than appel- appeal actually on that said bond those who are surety lants must be ascertained or sureties be- certainly signed, approved, fore bond and or be- is an is and after decided, fore the case submitted and appeal brings a here, bond has been case case submitted and all who recited as decided, therein are appellants appellants, must held be to be so far as the surety said or sureties concerned? We there are think judg- no is other safe we direct that course, must against appellant ment be entered Hart and the surety on the bond.
It is ordered. so