Hand v. Industrial Life & Health Ins. Co

• Decision Date: 10 February 1936
• Docket Number: 32047
• Citation: 165 So. 616,174 Miss. 822
• Parties: HAND v. INDUSTRIAL LIFE & HEALTH INS. CO
• Court: Mississippi Supreme Court

165 So. 616

174 Miss. 822

HAND v. INDUSTRIAL LIFE & HEALTH INS. CO

No. 32047

Supreme Court of Mississippi

February 10, 1936

Suggestion Of Error Overruled March 16, 1936.

(In Banc.)

INSURANCE.

Insurance agent's allegedly slanderous attack upon competitor and its president while agent was soliciting applications held not within agent's "scope of employment," and hence agent's employer was not liable therefor.

ETHBIDGE J., dissenting.

HON. J P. ALEXANDER, Judge.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by John G. Hand against the Industrial Life & Health Insurance Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

Affirmed.

Lotterhos & Travis, of Jackson, for appellant.

The declaration sufficiently charges a cause of action.

Canada v. Y. & M. V. R. Co., 101 Miss. 274, 57 So. 913.

This slander alleged to have been uttered was in its nature one calculated to cause the persons hearing it not to take a policy of insurance in the appellant's company, or if they had taken such a policy to drop same and substitute in its stead a policy to be written by the appellee company on an application procured by its agent. However, it is not necessary that the declaration allege the innuendos which may be deducible from the fact of the utterance of the slander.

Section 530, Code of 1930.

An insurance corporation is liable for a slander uttered by its agent in the course of his employment and in the furtherance of the master's business.

Maynard v. Fireman's Fund Ins. Co., 38 Cal. 48, 91 Am. Dec. 672; Rosenberg v. Underwriters Salvage Co., 190 Ill.App. 64; Vinas v. Merchants Mut. Ins. Co., 27 La. Ann. 367; Kane v. Boston Mut. L. Ins. Co., 200 Mass. 265, 86 N.E. 302; Fensky v. Maryland Casualty Co., 264 Mo. 154, 174 S.W. 416; Union Cent. L. Ins. Co. v. Mutual Ben. L. Ins. Co., 5 Ohio Dec. Reprint, 521; German-American Ins. Co. v. Huntley, 161 P. 815; Sun Life Assur. Co. v. Bailey, 101 Va. 443, 44 S.E. 692; Ecuyer v. New York Life Ins. Co., 107 Wash. 411, 181 P. 871, 107 Wash. 423, 186 P. 327; Morse v. Modern Woodmen, 166 Wis. 194, 164 N.W. 829, Ann. Cas. 1918D, 480; Nevill v. Fine Arts & Gen. Ins. Co., 2 Q. B. 156, 64 L. J. Q. B. (N.S.) 681, 14 Reports 587, 72 L. T. (N.S.) 525, 59 J. P. 371 (1897) A. C. 68; Hinds v. Shoemaker, 97 Miss. 669; Labatts Master & Servant (2 Ed.), secs. 2376, 2505a, Note 4; Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Primos v. Gulfport Laundry & Cleaning Co., 157 Miss. 770, 128 So. 507; Barmore v. Ry. Co., 85 Miss. 440, 38 So. 210; Richberger v. The Express Co., 73 Miss. 161, 18 So. 922; Rivers v. Y. & M. V. R. Co., 43 So. 471; Singer Sewing Machine Co. v. Stockton, 157 So. 366, 171 Miss. 209.

The master is responsible for the acts of an agent with limited authority if, at the time of the performance of the acts, such agent is acting within the scope of his limited authority.

2 C. J., Agency, sec. 221; National Life & Acc. Ins. Co. v. Cruso, 113 So. 396; Walters v. Stonewall Cotton Mills, 101 So. 495, 136 Miss. 361; Germania Life Ins. Co. v. Bouldin, 56 So. 609.

Robertson, Campbell & Robertson, of Jackson, for appellee.

An insurance corporation is not liable for slanderous words uttered by an authorized agent where he was at the time not acting within the scope of his employment and where the language charged was not used in the actual performance of his duties touching the matter in question.

Southern Express Co. v. Fitzner, 59 Miss. 581; Martin Bros. v. Murphree, 96 So. 691, 132 Miss. 509; Craft v. Magnolia Stores Co., 138 So. 405, 161 Miss. 756; Houston v. Oppenheim, 145 So. 339, 166 Miss. 619; Western Union Tel. Co. v. Stacy, 162 Miss. 286, 139 So. 604; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305, 141 So. 335; Y. & M. V. R. Co. v. Tatum, 163 So. 893; 14a C. J., sec. 2856, page 87; Sawyer v. Norfolk, etc., R. Co., 142 N.C. 1, 8, 54; S.E. 793, 115 Am. S. R. 716, 9 Ann. Cas. 440; 1 Cooley on Torts, sec. 70, pages 223-5; First Prudential Ins. Co. v. Moreland, 55 S.W.2d 616; AEtna Life Ins. Co. v. Paul, 37 Ill.App. 439; Kane v. Boston Mutual Life Ins. Co., 86 N.E. 302; Vowles v. Yakish, 179 N.W. 117, 13 A.L.R. 1132.

The declaration alleges facts which show that the agent of appellee who uttered alleged slanderous words was an authorized agent, but show that such agent was at the time not acting within the scope of his employment, and that the language used was not used in the actual performance of the duties of such agent touching the matter in question.

Anderson, J., Smith, C. J., specially concurring. Ethridge, J., dissenting.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of Hinds county against appellee to recover damages for an alleged slander of him by appellee. Appellee's demurrer to the declaration was sustained, and appellant declining to plead further, final judgment was rendered dismissing the cause. From that judgment, appellant prosecutes this appeal.

Appellant was president of the North American Mutual Insurance Company, which company was engaged in the writing of health and accident insurance. Appellee was engaged in the same character of business. W. E. Palmer was appellee's agent to solicit insurance and collect premiums. The declaration charges the alleged defamation in this language: "That on or about the said 8th day of July, 1935, the defendant, through its duly authorized agent Palmer, went to the home of Lottie Robinson, and others in the City of Canton, for the purpose of soliciting of and from the said Lottie Robinson, and others, an application, or applications, for life and health insurance in its own said company and for the purpose of collecting premiums. That at the said time and place the said agent Palmer, then and there acting for and on behalf of said defendant in the course of his employment and in the furtherance of the business of the said defendant and while actively soliciting applications for policies for and on behalf of said defendant, saw a policy which had been theretofore written by the North American Mutual Insurance Company, the mere sight of which provoked and aroused the said agent Palmer, and without any reason, excuse or justification the said agent then and there acting for his said master, and in the direct line of his employment, and in the presence and hearing of the said Lottie Robinson and various and sundry persons without any justification whatsoever, did falsely, maliciously, carelessly, and willfully speak, publish and declare, in the presence and hearing of various and sundry persons then and there present, the following wicked, infamous, false, and defamatory slander of and concerning the plaintiff, to-wit: That said policy, meaning the policy of the said North American Mutual Insurance Company, was no good; that said company was no good, and that the president of said company, meaning the plaintiff, was put in jail for doing some crooked work while working for another company and that as soon as he, meaning the plaintiff, got out of jail, he, meaning the plaintiff, organized the said North American Mutual Insurance Company, and that he, the said plaintiff, had beat an old negro out of his money, and would beat the policy holders of said North American Mutual Insurance Company of Jackson, Mississippi, out of money, meaning thereby to charge, and did in fact charge and convey the impression that the plaintiff, as a representative of an Insurance Company, had beaten people out of money for which he had been sent to jail, and maliciously intending to convey the impression that the said plaintiff in his said employment had committed a crime against the laws of the state."

The demurrer was sustained upon the ground that Palmer, in uttering the language set out in the declaration, was acting beyond the scope of his authority, and therefore did not bind the appellant, his principal. In Loper v. Yazoo & M. V. R. Co., 166 Miss. 79, 145 So. 743, 745, the court said: "The phrase 'scope of the employment,' adopted by the courts for the purpose of determining a master's liability for the acts of his servants, has 'no fixed legal or technical meaning;' . . and 'the ultimate question is whether it is just that the loss resulting from the servant's acts should be considered one of the normal risks of the business in which the servant is employed which that business should bear,' " adopting A. L. I., Restatement, Agency, sec. 229. The court said further in that case: "The matters of fact usually taken into consideration in answering this question are set forth in section 454, A. L. I. Rest., supra, one of which is 'whether the master had reason to suspect that such will be done.'"

In Davis v. Price, 133 Miss. 236, 97 So. 557, the court quoted with approval from 6 LaBatt's Master and Servant (2 Ed.), p. 6704, as follows: "A master clearly cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort-feasor."

Was Palmer's tort one of the normal risks of appellee's business? Putting it differently, should appellee have reasonably anticipated it as a probable occurrence? We think this question must be answered in the negative. Suppose Palmer had committed an assault and battery upon appellant with the view of getting rid of a competitor, or, for the same reason, had embodied the defamatory language in writing and published it, which would have been a crime, we think it clear that he would have been acting beyond the scope of his authority. We are unable to see any difference in principle in an attempt to destroy a competitor in that manner and an attempt to destroy one as Palmer did.

Craft v. Magnolia...