Fensky v. Maryland Casualty Company

• Decision Date: 02 March 1915
• Citation: 174 S.W. 416,264 Mo. 154
• Parties: CHARLES FENSKY, Appellant, v. MARYLAND CASUALTY COMPANY
• Court: Missouri Supreme Court

174 S.W. 416

264 Mo. 154

CHARLES FENSKY, Appellant, v. MARYLAND CASUALTY COMPANY

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from St. Louis City Circuit Court. -- Hon. C. C. Allen Judge.

Reversed and remanded.

Charles Fensky pro se; Henry E. Haas of counsel.

(1) To accuse one with the commission of a felony, either directly or by innuendo, constitutes actionable slander. Sec. 4817, R S. 1909; 18 Am. & Eng. Ency. Law, 868; 25 Cyc. 271; Webb's Pollock on Torts, p. 289. (2) Under the statutes of Missouri it is a felony for a person to have in his possession any forged instrument of writing, knowing the same to be forged, by which he may endeavor to cheat, injure or defraud another, or to collect money on account of the same. Secs. 4651, 4654, 4666, R. S. 1909; 25 Cyc. 292; 18 Am. & Eng. Ency. Law, 882. (3) To charge and accuse an attorney at law with corrupt, dishonest or improper practice, in the conduct of his profession, tending to prejudice him in his calling or to impeach his integrity as an attorney constitutes actionable slander. 18 Am. & Eng. Ency. Law, 960; 25 Cyc. 333; Webb's Pollock on Torts, p. 289; Johnson v. St. Louis Dispatch Co., 2 Mo.App. 565; 22 Am. & Eng. Ann. Cases, 375; Montgomery v. Printing Co., 229 Pa. St. 165; Garr v. Selden, 6 Barb. 416. (4) A corporation is liable for a slander uttered by its agent while acting within the scope of his employment and in the actual performance of his duties thereof touching the matter in question, though the slander was not uttered with the knowledge of the corporation or with its approval and though it did not ratify the act of the agent. Thompson on Corporations (2 Ed.), sec. 5441; 1 Clark & Marshall on Corporations, pp. 627, 629; 17 Am. & Eng. Annotated Cases, 620; Hypes v. Railroad, 82 S.C. 315; Rivers v. Railroad, 90 Miss. 196; Payton v. Clothing Co., 136 Mo.App. 577; Minter v. Bradstreet Co., 174 Mo. 444; Johnson v. Dispatch Co., 2 Mo.App. 565; Johnson v. Dispatch Co., 65 Mo. 539; Boogher v. Life Assn., 75 Mo. 324; State ex inf. v. Ins. Co., 152 Mo. 38. (5) And whether the agent of the corporation was acting within the scope of his employment and in the actual performance of his duties, is a question of fact to be submitted to the jury. Payton v. Clothing Co., 136 Mo.App. 577; Thompson on Trials, sec. 1370.

Holland, Rutledge & Lashly for respondent.

(1) The utterance referred to in appellant's petition is not slanderous. The words contained therein being ordinary English words free from ambiguity, they may not be enlarged upon or added to by the allegations contained in the innuendo. Cook v. Pub. Co., 241 Mo. 326; Walsh v. Pub. Co., 250 Mo. 141; Powell v. Crawford, 107 Mo. 595; Winsor v. Ottofy, 140 Mo.App. 563; Church v. Bridgman, 6 Mo. 190; Naulty v. Bulletin Co., 206 Pa. St. 128; Townshend on Slander and Libel (4 Ed.), par. 336; Newell on Slander and Libel (2 Ed.), p. 619. (2) Even if it be assumed that the utterance in question contained all the charges mentioned in the innuendo, that is, even if it were actually slanderous, the respondent corporation would not be liable therefor. Under some authorities a corporation is never liable for slander; under others it may be liable, but only where it is shown that an official or manager of the corporation made the utterance. Townshend on Slander and Libel (4 Ed.), par. 265; Payton v. Clothing Co., 136 Mo.App. 577. In this case there is no charge that the utterance in question was made by an official or manager of the corporation.

OPINION

GRAVES, P. J.

This is an action for slander. In the trial court the plaintiff was cast upon a general demurrer, charging that his petition failed to state facts sufficient to constitute a cause of action. That is the sole question here. The petition reads:

"Plaintiff states that he is and was at all times herein mentioned a regularly licensed attorney at law and has been practicing his profession in the city of St. Louis, Missouri, for the past fifteen years:

"That the defendant, Maryland Casualty Company, is a foreign corporation doing business in the State of Missouri and is engaged, among other things, in carrying employers' liability insurance.

"Plaintiff further states that on the 8th day of May, 1911, he was employed by one Eugene May, colored, to prosecute his claim for damages against the Polar Wave Ice & Fuel Company, a corporation, doing business in the city of St. Louis, on account of personal injuries sustained by the said Eugene May while in the employ of said Polar Wave Ice & Fuel Company on or about the 29th day of April, 1911, at its plant at or near Cook and Channing avenues in said city of St. Louis; that plaintiff's contract of employment was in writing duly signed by the said Eugene May and that by reason thereof plaintiff had a property right in said cause of action to the extent of his statutory lien; which said contract is herewith filed and marked 'Exhibit A.'

"Plaintiff further states that the said defendant, Maryland Casualty Company, was assurer for said Polar Wave Ice & Fuel Company and had contracted and agreed to hold the said Polar Wave Ice & Fuel Company harmless from any and all liability by reason of damage suits, and was by reason of said contract of assurance vitally interested in the outcome of the claim of said Eugene May.

"Plaintiff further states that he duly notified the Polar Wave Ice & Fuel Company of his employment in writing by said Eugene May and of his statutory lien on the cause of action, and that the said Polar Wave Ice & Fuel Company in turn notified the said Maryland Casualty Company.

"Plaintiff further states that on or about the 19th day of May, 1911, two agents of the defendant corporation, whose names, to the best knowledge and belief of plaintiff, are Fred Kraemer and -- Hulbert, having in their company the said Eugene May, called on plaintiff at his office in the Times Building in the city of St. Louis, Missouri, and said Fred Kraemer, agent of defendant, while acting within the scope of his employment and in the actual performance of the duties thereof touching the matter in question, in the presence and hearing of this plaintiff and of divers other persons, falsely, wantonly, and maliciously spoke of and concerning the plaintiff the following false, malicious, and defamatory words, to-wit: 'The contract you (meaning plaintiff) claim to have with this man (meaning May) was not signed by him and he (meaning May) is here to tell you so. Furthermore, the day on which this contract is alleged to have been signed, I saw May and his hand was so badly hurt and bandaged that he could not have signed his name if he wanted to,' then and there intending to charge and impute, and then and there charging and imputing, to plaintiff that he had in his possession and was asserting a right under a forged instrument, knowing the same to be forged, which said charge, if true, constitutes a felony under the laws of the State of Missouri and would subject plaintiff to degrading punishment.

"Plaintiff further states that at the time of uttering said false, malicious, and defamatory words as aforesaid, and with a view of intensifying said slander, the said Fred Kraemer, agent of said defendant, while acting within the scope of his employment and in the actual performance of the duties assigned to him by this defendant procured the said Eugene May, under promise of pecuniary reward, to then and there deny his signature in the presence and hearing of plaintiff and divers other persons; that the false and slanderous language so spoken of and concerning the plaintiff, together with the denial of said Eugene May, so procured as aforesaid, was understood and believed by the persons in whose presence and hearing the same was uttered to mean that plaintiff had in his possession and was asserting a right under a forged contract, and that he, the plaintiff, then and there knew the same to be forged.

"Plaintiff further says that the false and slanderous words so spoken of and concerning the plaintiff by defendant's said agent while acting in the scope of his employment, greatly humiliated plaintiff and has greatly prejudiced him in his good name, fame and reputation and has greatly injured him in his profession and business as an attorney at law, to his damage in the sum of fifty thousand dollars, in actual damages in the sum of twenty-five thousand dollars and in exemplary or punitive damages in the sum of twenty-five thousand dollars.

"Wherefore, the premises considered, plaintiff prays judgment against defendant for twenty-five thousand dollars actual damages and for twenty-five thousand dollars punitive damages and for his costs in this behalf sustained."

I. The demurrer being a general one we are not advised upon what theory the trial court held this petition bad. In the brief of appellant it is said that the trial court took the view that there was no agency in slander, and a corporation was not liable for the slanderous statements of its agent. We admit that a rule thus broad is announced by Townshend on Slander and Libel (4 Ed.), sec. 265, whereat it is said:

"As a corporation can act only by or through its officers or agents (sec. 261) and as there can be no agency to slander (sec. 57), it follows that a corporation cannot be guilty of slander; it has not the capacity for committing that wrong. If an officer or an agent of a corporation is guilty of slander, he is personally liable, and no liability results to the corporation."

This rule has long since been exploded, and rightfully so. The more recent and better rule is well worded in 5 Thompson on Corporations (2 Ed.), sec. 5441, whereat it is said:

"The general rule makes the corporation liable for a slander uttered by its agent while acting...