Southwestern Telegraph & Telephone Co. v. Long

• Decision Date: 24 November 1915
• Docket Number: (No. 5525.)
• Citation: 183 S.W. 421
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. LONG.
• Court: Texas Court of Appeals

183 S.W. 421

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. LONG.

(No. 5525.)

Court of Civil Appeals of Texas. Austin.

November 24, 1915.

On Motion for Rehearing, January 26, 1916.

Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.

Action by Ila Long, by next friend, against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

A. P. Wozencraft and S. P. English, both of Dallas, and Batts & Brooks and Hart & Woodward, all of Austin, for appellant. E. B. Coopwood and J. B. Hatchitt, both of Lockhart, and Fiset, McClendon & Shelley, of Austin, for appellee.

JENKINS, J.

This is a suit by Ila Long, suing by her next friend, J. M. Long, against C. M. Dold and the Southwestern Telegraph & Telephone Company, to recover damages by reason of alleged slander, uttered by said Dold. Appellee, a young lady, aged 19 years, was employed by the appellant as a telephone operator in its office at Lockhart, Tex. C. M. Dold was the manager of appellant at said office, with authority to discharge employés, and to prevent improper persons from loitering in the office building of said telegraph company. H. B. Wheatley was appellant's district manager. His district included the Lockhart office. Appellee and Miss Sadie Wilkins, another employé of appellant, were rooming at the residence of Dold, and using his kitchen and dining room for the purpose of light housekeeping. On the morning of September 9th, Dold had a conversation with Miss Wilkins in his dining room in the presence of his wife, in which he used language substantially the same as he subsequently used to both appellee and Miss Wilkins. He came to the door of their room, just across from the dining room, and told them that they were discharged; that the company did not allow girls to work for it who were not ladies; that they had had men in their room at night. He told them that they must leave his house at once, that he would give them 15 minutes in which to leave, and that if they did not do so, he would have the sheriff put them out. Subsequently, on the morning of the same day, appellee, accompanied by Miss Wilkins, went to the telephone office for the purpose of talking to her sister in San Marcos. After finishing the conversation, both of the young ladies were in the rest room of the telephone office, when Dold entered and called them into the hall. He there said to them: "Why haven't you girls left town like I told you?" One of them replied that they didn't have to leave town. Dold said that if he had done what they did he would be ashamed to be seen on the streets of Lockhart, let alone in people's houses. He hold them to get out of there at once; that the telephone company did not allow girls who were not ladies to hang around the office. Miss Wilkins replied that she was as pure a lady as his wife, and more so, after what she had accused them of. Dold said, "If you were a man I would slap you down stairs." Miss Wilkins replied that she was a lady, and that he could knock her down stairs if he wanted to. During this conversation Miss Addie Paige, another employé of appellant, passed slowly by near enough to have heard what was being said. The night before the above occurrences, Dold told Henry Drake, a former employé of appellant, that he was going to discharge appellee and Miss Wilkins and wished to employ him to work in their place, that his reason for discharging them was that he had found that they were of disreputable character, of such character that the telephone company would not allow them to work for it; that they were crooked. The evidence showed that appellee suffered great shame and mortification by reason of the conduct of Dold as above stated, but there was no proof that she had suffered in the estimation of her friends and acquaintances, or had been denied employment by reason of said charges. There was a jury trial. No evidence was offered by appellant tending to impeach the character or reputation for chastity of either appellee or Miss Wilkins. The jury returned a verdict in favor of appellee, assessing her damages at $20,000, and judgment was entered accordingly. The telephone company only has appealed.

Opinion.

Appellant's first assignment of error relates to the refusal of the court to peremptorily instruct the jury to return a verdict for appellant. The substance of appellant's first proposition under this assignment is that a corporation is not liable for a slander uttered by one of its employés, unless it expressly authorized, or subsequently ratified, the same; and, as in this case there is no proof of express authority to utter the slander, and as ratification of the same is neither pleaded nor proven, a peremptory instruction should have been given to return a verdict for the defendant, appellant herein. As to the necessity of showing express authority, neither reason nor the authorities differentiate corporations from individuals in this respect.

"Private corporations are liable for their torts committed under such circumstances as would attach liability to natural persons." Sawyer v. Railway Co., 142 N. C. 1, 54 S. E. 793, 115 Am. St. Rep. 716, 9 Ann. Cas. 440.

In Hypes v. Railway Co., 82 S. C. 315, 64 S. E. 395, 21 L. R. A. (N. S.) 873, 17 Ann. Cas. 620, the court said:

"It is established that corporations, as well as natural persons, are liable for the willful tort of an agent acting within the general scope of his employment, without previous express authority or subsequent ratification." Rucker v. Smoke, 37 S. C. 377, 16 S. E. 40, 34 Am. St. Rep. 758; Williams v. Tolbert, 76 S. C. 217, 56 S. E. 908; Schumpert v. Railway Co., 65 S. C. 332, 43 S. E. 813, 95 Am. St. Rep. 802; Gardner v. Railway Co., 65 S. C. 342, 43 S. E. 816; Riser v. Railway Co., 67 S. C. 419, 46 S. E. 47; Dagnall v. Railway Co., 69 S. C. 115, 48 S. E. 97; Fields v. Cotton Mills, 77 S. C. 549, 58 S. E. 608, 11 L. R. A. (N. S.) 822, 122 Am. St. Rep. 593.

In W. P. Oil Co. v. Birdwell, 103 Ark. 545, 147 S. W. 64, the court states that there is no evidence in the record of express authority of the agent to commit the slander, but held the defendant liable on the ground of implied authority. In Bushel v. Ins. Co., 15 Serg. & R. (Pa.) 176, Rogers, J., said:

"They [corporations] are bound by like implications and inferences which bind natural persons."

It is but just to the learned counsel for appellant to say that they have not suggested in their able brief herein that a corporation may not be held liable for other torts committed by their agents by implied authority, but their contention is that this legal principle does not apply to slander. If it appears that there is no sound reason for this distinction, then the exception fails, and slander is governed, in this regard, by the general principle above announced. There are decisions which support appellant's contention. These rely principally upon grounds: (1) That as malice is a necessary ingredient of slander, a corporation, having no mind, cannot entertain malice, and therefore cannot be guilty of slander; (2) that slander is usually the voluntary act of the speaker, committed under the immediate influence of sudden passion, and therefore the law ascribes it to the personal malice of the agent, rather than to an act performed in the course of his employment, and in furtherance of the business of the employer.

As to the ground that a corporation has no mind: It is true that for many purposes a corporation is held to be a separate entity from the natural persons who compose it, yet it is, in fact, but the aggregation of such persons, and the mind of such of them as are chosen to manage its affairs is its mind.

"The old doctrine that a corporation, having no mind, cannot be liable for acts of agents involving malice has been completely exploded in modern jurisprudence." Hypes v. Railway Co., supra.

"It is well settled * * * that a corporation may, to the same extent as a natural principal, be held liable for the malicious wrongs of its officers or agents, if committed in the course of a transaction which is within the scope of their authority." Sawyer v. Railway Co., supra.

No one who has the slightest knowledge of law would assert that a corporation could not be guilty of libel, and libel necessarily involves malice. Nor would it be denied that a corporation may be guilty of malicious prosecution or false imprisonment.

The admission implied in appellant's proposition that a corporation may be held liable for slander where it expressly authorizes the same is itself an answer to the doctrine that a corporation cannot be held liable for malice; for a corporation, being an incorporeal entity, must necessarily act through agents where it expressly authorizes such action. In such case it is held to be immaterial that the authorized act was ultra vires, as not being in the scope of its corporate powers. Hussey v. Norfolk S. R. Co., 98 N. C. 34, 3 S. E. 923, 2 Am. St. Rep. 312. The doctrine of ultra vires, in so far as it relates to private corporations, is applicable only to matters ex contractu. A tort is necessarily ultra vires because no corporation is authorized by its charter to commit a wrong.

As to the second proposition that slander is the voluntary act of the speaker, committed under immediate influence of sudden passion, the same may be said, in some instances, of libel. A slander may be, and in some instances undoubtedly is, uttered with deliberate and preconceived malice, while the publication of a libel may be, and in some instances undoubtedly is, made under the influence of sudden passion. If this distinction should be recognized it would not be true, as a matter of law, that a corporation could not be held liable for the utterance of a slander, but its liability would depend upon the degree of malice which actuated the agent in uttering the defamatory words. If defamatory words are falsely...