Southern Express Co. v. Fitzner

• Decision Date: 10 May 1882
• Citation: 59 Miss. 581
• Court: Mississippi Supreme Court
• Parties: SOUTHERN EXPRESS CO. et al. v. PETER FITZNER

59 Miss. 581

SOUTHERN EXPRESS CO. et al. v. PETER FITZNER

Supreme Court of Mississippi

May 10, 1882

Appeal from the Circuit Court of Lincoln County Hon. J. B. Chrisman Judge.

A can of tea shipped from New Orleans, Louisiana, to the appellee at Brookhaven, Mississippi, was broken, and he refused it and wrote to the consignor, who sent his letter with a complaint to the head officer of the express company at New Orleans. The officer forwarded the inquiry and letters to the route agent, who referred them to his subordinate, the agent at Brookhaven. This agent reported to the company that the can was broken when received by him, and thus the matter rested but his son, E. B. Perkins, who performed his duties, seeing the letters, without consulting any one, wrote as "acting agent" to the consignor, stating that "this fellow Fitzner" had no idea when he wrote the letter, intimating that the tea was opened in this office that "it would be referred here for an explanation," or he would have been far from doing so that he is engaged in a small business here, in principle is a small man, will do anything dirty, and is endeavoring to beat you out of tea. The letter concluded: "His idea was to beat you out of another can or simply to get something for nothing. As I said before he is a dirty, low-lifed whelp, and seeks to put me on an equality with him; as, if he had a chance, he would do anything that was dirty. I send you a three cent stamp, and want you to send this letter to him and advise me on card." The consignor used the stamp as instructed, and the appellee obtained judgment for five hundred dollars against the "acting agent" and his company.

Affirmed.

Sessions & Cassedy, for the appellants.

1. The express company is not responsible for the conduct of its agents' sons. While a corporation aggregate may be liable for a libel, if published by its authority or ratified, the authorization or ratification must be proved. Odgers on Libel and Slander, 359. Nothing in this case tends to connect the company with the libellous letter or the writer. His effort to increase his importance by signing himself "acting agent" could not affect the corporation, which did not employ him. The fact that his father engaged him about the company's business is unavailing, for a principal is not accountable for the conduct of every person whom his agent may choose to hire.

2. If the writer were an agent of the express company, however, the corporation would not be liable. From its nature, a corporation can neither slander nor compose a libel, but it may publish the latter, and may ratify its agent's act. Townshend on Libel and Slander, § 265. Non-intervention, merely standing by, is not enough, but the company must, with a knowledge of the act and an intention to ratify it, do something to that end. Odgers on Libel and Slander, 360. Publishing libels is not one of the ordinary duties of an express agent, and in order to bind the company, the plaintiff must prove an authorization, for it is not liable for its agents' wilful torts. Harding v. Greening, 1 Moore, 477; Illinois Central Railroad Co. v. Downey, 18 Ill. 259; Isaacs v. Third Avenue Railroad Co., 47 N.Y. 122; Carter v. The Howe Machine Co., 51 Md. 290. Neither authority to publish this letter nor ratification of its publication is shown.

4. Even the writer of the letter has the right to a reversal. No publication took place in this State, except that by the plaintiff, and the courts of Louisiana alone have jurisdiction of the offence committed in that State. Story Confl. Law, § 307. Exemplary damages should not have been awarded against him, for malice is not shown. He was vindicating himself. No actual damage was sustained by the plaintiff. Odgers on Libel and Slander, 291. The amount of the verdict is so disproportionate to the harm done, that it shows a grave mistake into which the jury were led by their feelings and the errors of the court at the trial.

A. C. McNair, on the same side.

This letter was not written by an agent of the company. But if the writer were an agent, the corporation is not liable, because it was beyond the scope of his duties, and if it had been within the scope of his employment to write a letter, he transcended his duty when he wrote a letter like this. The acts of an agent for which a corporation can be held liable, must not only be within the scope of the supposed authority of the particular agent, committing the act complained of, but the act done by the agent must be done in the performance of business coming within the purview of the objects and purposes for which the corporation was created and the powers conferred by its charter. Gillett v. Missouri Valley Railroad Co., 55 Mo. 315; Mali v. Lord, 39 N.Y. 381; Carter v. Howe Machine Co., 51 Md. 290.

R. H. Thompson, for the appellee.

1. A corporation can be held in a civil action...