Rivers v. Yazoo & Mississippi Railroad

43 So. 471 | Miss. | 1907

Whitfield, O. J.,

delivered the opinion of the court.

The action of the court below in overruling the demurrer of the plaintiff to the defendant’s third plea is affirmed; but the court below erred in sustaining the demurrer of the defendant to the second, third, and fourth counts of the amended declaration. The doctrine has long been exploded that a corporation is not liable for slander because, as it was ridiculously expressed, there could be “no agency to slander.” The true doctrine is that set forth in Clark & Marshall on Corporations, vol. 1, pp. 627-629: “It has been said that corporations cannot be liable for slander or oral defamation by officers or agents, as ‘there can be no agency to slander’; and the opinion has also been expressed that a corporation, because of its impersonal nature, cannot commit torts involving elements of malice, since, to support an action for tort, ‘it must be shown that the -defendant was actuated by motive in his mind, and a corporation has no mind.’ This reasoning, however, is unsound. The corporation, it is true, has no mind. It cannot itself entertain malice; but its officers and agents may, and their mental attitude, including the malice, may, like their consent to contract, or their physical acts, be imputed to the corporation. It is well settled, therefore, for this reason, that corporations might, to same- extent as natural principals, be liable for malicious wrongs of their officers or agents, if committed in a transaction which is in the scope of their authority. Thus it has been held that corporations to the same extent as individuals, are liable for action of libel, or, it seems, for slander, or in action for malicious prosecution, or false arrest, or imprisonment. While it is true that a corporation cannot itself speak, and therefore it cannot itself slander, neither can a corporation itself make false representations of its agents. Eor the same reason, it may- be liable for slander by its agents.” The same principle is announced by this court in the case of Williams v. Planters’ Insurance Co., 57 Miss., 759, 34 Am. Rep. 494. Lord Mansfield very accurately said in the case of Maloney v. Bartlett, 3 Camp., 210, that “there appeared to be no well-founded distinction between written and unwritten slander,” and that “the reasons given in the books for such a distinction were very insufficient.” He further said that the first reason given was that by writing the scandal became more diffused, but that this was casual, for words might be spoken under circumstances which would give them much more publicity and render them much more injurious than if they were committed to paper and shown to third persons. He further said that “as to another reason, that the writing of scandal shows more malice against the defendant, the true foundation of civil actions was some damage sustained by the plaintiff, not the malice which actuated the defendant.” This great judge was eminently correct in holding that no sound distinction can be drawn between the liability for libel and the liability for slander. It is further to be observed that the case of Childs v. State Bank, 17 Mo., 213, was disapproved in the case of Williams v. Planters’ Ins. Co., supra, and in the case of Iron Mountain Bank v. Merchants’ Bank, 4 Mo. App., 505, it was shown that since the Childs case there had been a complete change in the law on this subject in Missouri and elsewhere. It is very correctly pointed out in the brief of the learned counsel for appellant that 18 Am. & Eng. Ency. of Law (2d ed.), p. 1057, cites Townsend on Slander, and that Townsend on Slander cites the case we have just referred to of Maloney v. Bartlett, which, so far as its reasoning is concerned, supports the appellant. The case holding the appellee’s view, Owsley v. M. & W. R. R. Co., 37 Ala., 560, was overruled by Jordan v. A. G. S. R. R., 74 Ala., 85, 49 Am. Rep., 800. We think our own cases of Railroad v. Brooks, 69 Miss., 185, 13 South., 847, 30 Am. St. Rep., 528; Williams v. Planters’ Ins. Co., 57 Miss., 579, 34 Am. Rep., 494, and Richberger v. Express Co., 73 Miss., 161, 18 South., 922, 31 L. R. A., 390, 55 Am. St. Rep., 522, are decisive in favor of appellant’s contention. See also, Sawyer v. Norfolk S. R. Co. (N. C.), 54 S. E. 793; Bacon v. Mich. Central R. R. Co., 21 N. W. 324, 55 N. W., 224, 54 Am. Rep., 372; and International Co. v. Heartt, 136 Fed., 129, 69 C. C. A., 127.

The test is whether the slanderous words were spoken by the agent of the company while acting within the scope of his employment and in the actual performance of the duties of his principal touching the matter in question, as pointed out in the BicKberger case above. We have nowhere found a better statement of the true doctrine on this subject than that announced by Brickell, O. J., in his masterly opinion in the case of Jordan, v. Ala. Great Southern R. R. Co., 74 Ala. 85, 49 Am. Rep., 800, cited supra: That great judge said: “The idea that a corporation is not liable for a tort involving a malicious intent had origin in the day when it was denounced as soulless, and was an application of the quaint syllogism, ascribed by Lord Coke to Chief Baron Manwood, that ‘none can create souls but God, but a corporation is created by the King; therefore a corporation can have no soul.’ The current of authority now is that corporations are responsible civilly, the samé as natural persons for the torts of their agents committed in the course of their employment, or which are authorized, or subsequently ratified. Ang. & Ames, Corp., secs. 385-389; Morawetz on Private Corporations, secs. 89-96; Cooley on Torts, 119-123; Southern & N. A. R. Co. v. Chappell, 61 Ala., 527. The immunity from individual liability afforded by corporate organization, the capacity for the concentration and employment of intelligence, energy, and capital, without break or interruption because of changes in membership, has led to the multiplication of corporations, until there is scarcely an object of general concern a corporation is not formed to promote, and to a great extent they have engrossed business in all hazardous enterprises or enterprises requiring the investment and use of large capital. ‘With the multiplication of corporations,’ said Rogers, J., in Bushel v. Com. Ins. Co., 15 Serg. & R. (Pa.), 176, ‘which has been and is' taking place to an almost indefinite extent, there has been a corresponding change in the law in relation to them.’ And he adds: ‘The change in the law has arisen from a change of circumstances — from that silent legislation by the people themselves, which is continually going on in a country such as ours, the more wholesome because it is gradual and wisely adapted to the peculiar situation, wants, and habits of our citizens.’ . . . It is the aim and duty of courts to apply principles of the common law, with such modifications as are necessary to adapt- them to the changed necessities, varied social conditions, and diversified business and interests of the community. Perhaps, there is not, in the history of the common law, more distinctive evidence of its modifications, of the rejection of its narrow technicalities, than in the adaptation of the legal relation of corporations to a just liability for the acts, omissions, or engagements of the governing body, or its agents or servants employed in the transaction of corporate business. The ancient rule, that they could speak and act only through the common seal, is obsolete; and now they are bound by the like implications and inferences which bind natural persons.” Chief Justice Brickell then quotes approvingly the following language of Mr. Justice Campbell in the case of P., W. & B. R. R. Co. v. Quigley, 21 How. (U. S.), 210, 16 L. Ed., 73: “But these agents may infringe the rights of persons who are connected 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. . . . 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.” Chief Justice Brickell then concludes as follows, citing a great number of authorities: ' “We have among us, not only purely domestic corporations, but corporations existing by the separate authority of several states, drawn into the daily transaction of business with all classes of the community, holding property of every species under the protection of the law of the state, compelled to a frequent resort to the courts for prevention or redress of injuries. Foreign corporations, by a liberal comity, here exercise corporate power, transact business, hold and enjoy property. It is by the representation of natural persons that their franchises are exercised, their business transacted, and property acquired. It would not be just, if a natural person suffer wrong from the malicious acts of the representative of a corporation, while within the scope of his employment, for the courts to refuse to look beyond the legal entity to its real and true character, an association or aggregation of natural persons, capable of acting by a corporate name and in continuous succession. This is not unjust to the corporation, for it ‘tends to induce greater care and caution in the selection of those who are to be intrusted with corporate affairs.’ ”

The demurrer of the defendant to the second, third, and fourth counts of the amended declaration is overruled, the judgment is reversed, and the cause remanded.