Mills v. W.T. Grant Co.

• Decision Date: 16 June 1919
• Citation: 123 N.E. 618,233 Mass. 140
• Parties: MILLS v. W. T. GRANT CO. GODFREY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 140

123 N.E. 618

MILLS

v.W. T. GRANT CO.

GODFREY

v.SAME.

Supreme Judicial Court of Massachusetts, Essex.

June 16, 1919.

Exceptions from Superior Court, Essex County; Joseph F. Quinn, Judge.

Actions by Mildred P. Mills and Ruth E. Godfrey against the W. T. Grant Company. Verdict for plaintiffs, and defendant excepts. Exceptions overruled.

James W. Sullivan, of Lynn, for plaintiffs.

C. Neal Barney and Wilbert A. Bishop, both of Lynn, for defendant.

LORING, J.

These are two actions of slander by different plaintiffs against the same defendant. The cases were tried together. In each case the plaintiff had a verdict. The facts were in substance these: The plaintiffs went to the defendant's store in Lynn to buy Christmas presents. After they had left the store they were followed by one Flora Lipkin employed by the defendant ‘as a store detective’ to ‘assist in pointing out people who where ‘a cause for the enormous shortage in the store’; that she was supposed to watch anybody who ‘grabbed anything out of the store without paying for it’ and to inform the manager thereof; that it was her business to know whether people had taken anything from the store or not.' ‘At Lipkin's request the plaintiffs returned with her to the store of the defendant and were brought by her to * * * Baldwin, manager of the store, whereupon Lipkin, in the presence of others, accused the plaintiffs of having stolen some beads from a counter in the store, in substantially the words set out in the plaintiff's declaration; and the manager, Baldwin, reiterated the charge against the plaintiff and made further talk in which he endeavored to induce the plaintiff to return the beads, which she denied having. The evidence as to the nature of the employment of Mr. Baldwin was that he was manager of the store, that he was in charge there and that there was nobody higher in authority at that time in that particular store.’ The defendant moved for a verdict in its favor as matter of law and asked for the three rulings set forth in the margin.¹ The presiding judge instructed the jury that:

The rulings asked for were:

3. The defendant is not liable under the count for slander unless the jury find either that the defendant authorized its servants to commit the acts complained of, or that it ratified said acts.8. If the jury find that the words set forth in the third count of the plaintiff's declaration were published by the servants of the defendant, the defendant is not liable in the absence of evidence tending to show that said words were uttered by the authority of the defendant corporation or that said corporation had ratified such acts of its servants.9. The mere fact that slanderous words were published by an agent or servant of the defendant in the course of his employment, and in reference to the plaintiff, is not sufficient to hold the defendant liable. Comerford v. West End Street Railway Co., 164 Mass. 13, 41 N. E. 59.

‘The defendant, of course, as a corporation can only do anything through agents or servants, and if these agents or servants of this corporation were doing this in the course of their employment, which is for you to find whether or not they were, then the corporation is responsible.’

The case is here on exceptions taken to the refusal of the judge to direct a verdict for the defendant, to his refusal to give the rulings asked for, and to the instructions on the point given in the charge to the jury.

The question raised by these exceptions is a question which was left open by this court in Comerford v. West End Street Railway Co., 164 Mass. 13, 14, 41 N. E. 59,Kane v. Boston Mutual Life Insurance Co., 200 Mass. 265, 269, 86 N. E. 302, and Economopoulos v. A. G. Pollard Co., 218 Mass. 294, 297, 105 N. E. 896.

In Comerford v. West End Street Railway Co., ubi supra, it was said:

‘Of course, if slanderous words are shown to have been uttered by the authority of a corporation, or to have been ratified by it, the corporation is liable; but if they are uttered by an agent or servant in the course of the business in which he is employed, it is at least questionable whether the corporation is liable. We are aware of no case in which this has been held.’

This question was left open (in Comerford v. West End Street Railway) because of the statement of the point made by Mr. Odgers in his treatise on Libel and Slander published in 1881. This is apparent from the defendant's brief among the original papers in that case. Mr. Odgers' statement (at page 368, 1st Ed.) is:

‘A corporation will not, it is submitted, be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company and within the scope of his duties, unless it can be proved that the corporation expressly ordered and directed that officer to say those very words: for a slander is the voluntary and tortious act of the speaker.’

In the second edition of his book (published in 1890, five years before the decision in Comerford v. West End Street Railway) Mr. Odgers repeated the statement made in the first edition, with the omission of the concluding words, ‘for a slander is the voluntary and tortious act of the speaker,’ and that statement was repeated in the third edition of his work. There are statements in 18 Am. & Eng. Encyc. (2d Ed., published in 1901) 1059, and in 10 Cyc. (published in 1904) 1216, substantially to the same effect.

Townshend on Libel and Slander also is relied on by the defendant in the case at bar. In the first edition (published in 1868) at page 360, Mr. Townshend makes this statement:

‘As a corporation can act only by or through its officers or agents [section 261] and as there can be no agency to slander [section 67] 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.’

The same statement is repeated in the second edition (published in 1872) at page 459, and again in the fourth edition (published in 1890) at page 474. It is to be observed that the proposition laid down by Mr. Townshend is quite different from that originally laid down by Mr. Odgers, in substance repeated in 18 Am. & Eng. Encyc. 1059, and in 10 Cyc. 1216. The proposition laid down by Mr. Townshend is that laid down by Lord Bramwell in Abrath v. North Eastern Railway, 11 App. Cas. 247, 253, 254. When that proposition was stated by Lord Bramwell in that case, it was not concurred in by the Lord Chancellor, Lord Watson, or Lord Fitzgerald who sat with him at that time. It never became the law of England. See Lord Lindley in Citizens' Life Assurance Co., Ltd., v. Brown, [1904] App. Cas. 423, 426. It is not the law of this commonwealth. Reed v. Home Savings Bank, 130 Mass. 443, 39 Am. Rep. 468. Moreover the statement made by this court in Comerford v. West End Street Railway, ubi supra, 164 Mass. 14, 41 N. E. 59, is a statement that that proposition is not law here. In that statement this court said:

‘Of course, if slanderous words are shown to have been uttered by the authority of a corporation, or to have been ratified by it, the corporation is liable.’

The distinction put forward originally by Mr. Odgers (namely, that although a corporation is liable in slander if the stockholders of directors of the corporation expressly authorize the slanderous words or subsequently ratify them, yet it is not liable if they are uttered by an agent or servant in the course of his employ), was abandoned by him in the end. In the fourth edition of Odgers' Libel and Slander (published in 1905) that statement was omitted. The omission without doubt was due to the decision of the Privy Council in Citizens' Life Assurance Company, Ltd., v. Brown, ubi supra. Having reference to that case Mr. Odgers (in the fourth edition, at page 553) said:

‘It has now been decided that a corporation may be rendered liable for words published on a privileged occasion, by proving malice in its servant who published them, provided the servant was acting within the scope of his employment. Citizens' Life Assurance Co., Ltd., v. Brown [1904] A. C. 423, 74 L. J. P. C. 102, 90 L. T. 739, 20 Times L. R. 497.’

And the statement here in question made by Mr. Odgers in the earlier editions of his work was omitted.

A corporation, being an artificial being, can act only by stockholders, officers, agents or servants. It is now settled (contrary to the opinion of...