Aetna Life Ins. Co. v. Brewer

• Decision Date: 03 May 1926
• Docket Number: No. 4274.,4274.
• Citation: 56 App. DC 283,12 F.2d 818
• Parties: ?TNA LIFE INS. CO. et al. v. BREWER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 283, 12 F.2d 818 (1926)

?TNA LIFE INS. CO. et al. v. BREWER.

No. 4274.

Court of Appeals of District of Columbia.

Submitted February 1, 1926.

Decided May 3, 1926.

B. S. Minor, H. P. Gatley, H. B. Rowland, J. S. Easby-Smith, and R. B. Fleharty, all of Washington, D. C., for appellants.

W. G. Gardiner and F. J. Hogan, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This was an action in slander, brought by the appellee, Brewer, as plaintiff, against the ?tna Life Insurance Company, a corporation, and C. K. Mount, as defendants, upon a declaration containing four counts, each claiming damages in the sum of $50,000. Demurrers to this declaration were overruled, and defendants pleaded the general issue. The jury returned a verdict against both defendants upon the first and second counts in the sum of $5,000 on each count. Upon the third count judgment was entered for defendants, and it requires no further mention here. Upon the fourth count the jury returned a verdict in the sum of $5,000 against the defendant company alone. The defendants have appealed.

In the first count the plaintiff in substance alleges: That at and before the times now in question the defendant company maintained a branch office in the District of Columbia, and that defendant Mount was and is the general manager of such office, having exclusive control thereof in the District. That for a long time prior to the grievances complained of, the plaintiff was employed by the defendant company at this branch office, and always conducted himself in a faithful and law-abiding manner, and enjoyed a good reputation for honesty in the community; but that the defendants contriving and maliciously intending to injure plaintiff in his good name and bring him into public scandal and disgrace, and oppress and ruin him, the defendant company in August, 1915, "did, among other things, through its agent and general manager, the said defendant C. K. Mount, utter, speak, and say the following false, malicious, scandalous, and defamatory words of and concerning the plaintiff in the presence of at least one person, without any reasonable or probable cause so to do," to wit: "I can show you that Brewer does not deserve the confidence that you have in him. He has been guilty of forgery. He forged my name to a check and got the money. He is also short in his accounts, and I want you to read these affidavits, which will show you that he has been guilty of other crimes, and that you should not, and I am sure, after reading them, that you will not, continue having confidence in him or do business with him. * * * He was also mixed up in a premium that had recently been stolen from the company by one Hartnett." That all of these statements were false, and were known to defendants when uttered to be false, and were intended to wrongfully injure and ruin plaintiff, to his damage in the sum of $50,000.

The second count is similar to the first in substance, except that it relates to a different publication. The fourth count sets out a similar publication, and alleges that it was made by the defendant, the ?tna Life Insurance Company, "through one Miller, its agent with authority from its general manager, the said defendant C. K. Mount."

The appellant company contends that it is not alleged in the declaration, and that there is no evidence in the case tending to show, that the defendant Mount, in uttering the words set out in the declaration and testified to by the plaintiff's witnesses, was acting in the course of and within the scope of his employment in the business of the defendant company, or that the utterances were made by the express authority of, or were ever ratified by, the defendant company or any of its officers or directors.

In answer to this criticism of the counts of the declaration we may say, without intending to commend them as forms of pleading, that they are sufficient to resist a demurrer. In the first three counts it is alleged in substance that Mount was the agent and general manager of the company's branch office in the District of Columbia, having exclusive control of said branch office within the District, and that, the defendants maliciously intending to injure the plaintiff, the defendant company, through its said agent and general manager, did utter and publish the certain defamatory words complained of. These statements fairly signify that the words in question were spoken by Mount as agent and general manager for and on behalf of the company, both of them at that time maliciously intending to injure the plaintiff thereby. The fourth count is not essentially different in these particulars. If a variance appears between these allegations and the proofs, we do not believe the variance to be fatal.

As to the testimony in the case, it fails to show that the utterances in question were made by the express authority of, or were ratified by, the defendant company or any of its officers or directors. Nevertheless it tends to show that the defamatory words were uttered by Mount while acting in the course of and within the scope of his employment in the business of the defendant company. Mount was the general agent of the defendant company in charge of its branch office in the District of Columbia, and engaged among other duties in soliciting business for it in the District. The testimony introduced in support of the first count tends to show that, after discharging Brewer as cashier and underwriter, Mount escorted Brewer's successor to the offices of certain former patrons of the company, in order to introduce him with a view to securing future business from them; that in the meantime Brewer had set up for himself in the District as a solicitor and broker of insurance, and thus had become a competitor of the defendant company in Mount's territory; that the persons to whom Mount introduced Brewer's successor spoke in a friendly way about Brewer, and expressed a purpose to continue to patronize him; and that Mount later produced two affidavits in reference to Brewer, and uttered the defamatory words in question, at the same time soliciting the continuance of the customer's patronage; that subsequently in his own office Mount substantially repeated the defamatory statements in the presence of the same and another person, and requested them to spread the report abroad among insurance people so as to deprive Brewer of their patronage. The testimony in support of the second count was similar in general to that under the first. We think that this testimony was entitled to go to the jury in relation to the claim that Mount was then acting in the course of and within the scope of his employment in the business of the defendant company.

It is settled law "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." Philadelphia & W. B. R. Co. v. Quigley, 62 U. S. (21 How.) 202, 16 L. Ed. 73. This doctrine has...