Writesman v. Pettis Dry Goods Company

• Decision Date: 25 February 1925
• Docket Number: 11,962
• Parties: WRITESMAN v. PETTIS DRY GOODS COMPANY
• Court: Indiana Appellate Court

146 N.E. 835

82 Ind.App. 504

WRITESMAN v. PETTIS DRY GOODS COMPANY

No. 11,962

Court of Appeals of Indiana

February 25, 1925

From Marion Circuit Court (36,975); Harry O. Chamberlain, Judge.

Action by Hattie Writesman against the Pettis Dry Goods Company. From a judgment for defendant, the plaintiff appeals.

Reversed.

Leo X Smith and Newton E. Elliott, for appellant.

Emsley W. Johnson, William F. Elliott and Byron K. Elliott, for appellee.

OPINION

MCMAHAN, J.

This is an appeal from a judgment sustaining a demurrer to a complaint which alleged that appellee, a corporation, by and through a servant and agent acting for and on behalf of appellee, in the hearing of divers persons, falsely and maliciously spoke and uttered certain false and defamatory words concerning appellant.

The questions involved in this appeal relate to the right to maintain an action for slander against a corporation, and the necessity of an allegation in the complaint that the agent or servant in uttering the alleged slanderous statement was, in so doing, acting within the scope of his employment.

Appellee's first contention is that the complaint is not sufficient because there is no allegation that the employee making the statement was acting within the scope of his employment. It is to be observed that the complaint, in direct language alleges that the "defendant company then and there and by and through said agent, servant and employee acting for and on behalf of defendant" falsely and maliciously spoke the alleged false and defamatory words. This is a direct charge that the alleged wrong was committed by the defendant. This is equivalent to an averment that the alleged slander was uttered by the defendant, acting through its agents and servant. That made it a question of evidence as to whether the servant was acting within the scope of his employment at the time when the alleged statement was made. Wabash R. Co. v. Savage (1886), 110 Ind. 156, 9 N.E. 85; Southern R. Co. v. Crone (1912), 51 Ind.App. 300, 99 N.E. 762. On the authorities of these cases, we hold the complaint is not subject to demurrer because it does not allege that the employee was acting within the scope of his employment.

We now pass to a consideration of appellee's contention that a corporation is not liable for a slander committed by an agent or employee, when not expressly authorized or ratified by it.

Southern Ice Co. v. Black (1916), 136 Tenn. 391, 189 S.W. 861, Ann. Cas. 1917E 695, cited by appellee, was an action by a servant of a corporation for damages for slander spoken by one servant of another servant. In discussing the liability of the defendant in that case, the court said: "We do not say that a corporation or an individual would not be liable in particular cases for the slanderous words uttered by a servant; but to make a case of liability the plaintiff must show either that the master expressly authorized the speaking of the slanderous words, or that it would be necessary to speak them in the course of the performance of the duty assigned to the servant, or that it has been ratified by the master. The precise question is the liability of a corporation for damages for oral slander spoken by one servant of another while acting within the scope of his authority and in the interest of the master, but who was not actually authorized to speak the slanderous words. We do not think speaking the slanderous words would fall * * * within the contemplation of the parties when they made the contract of employment, either that the master impliedly authorized the foreman to speak the words, or that he so agreed to indemnify his other servant against such conduct. * * * What we have said, of course, does not apply to a third party to whom the master owes a special duty."

The words spoken in that case had a qualified privilege. Not that they were not slanderous per se, and ordinarily actionable, but that under the evidence they were not actionable unless malice was proven.

Republic Iron & Steel Co. v. Self (1915), 192 Ala. 403, 68 So. 328, L.R.A. 1915F 516, was an action for damages for abusive and insulting language used by the servant of a corporation. The court, after calling attention to the fact that the suit was not for slander, by the way of obiter, said: "If it were such, no recovery could be had under this evidence, for is well settled in this jurisdiction that a corporation will not 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 be proved that the corporation expressly ordered and directed that officer to say those very words; for slander is the voluntary and tortious act of the speaker."

But the same court in McIntyre v. Cudahy Packing Co. (1913), 179 Ala. 404, 60 So. 848, when the question was involved, said it was well settled in that state that a corporation could not commit slander, and could only become liable for the utterance of its agents by expressly authorizing them, or by approving or ratifying them.

In Duquesne Distributing Co. v. Greenbaum (1909), 135 Ky. 182, 121 S.W. 1026, 24 L.R.A. (N. S.) 955, 21 Ann. Cas. 481, which was an action against a partnership for slander, the court, after discussing the law relative to libel, said: "Without including in what we say the rules applicable when the action is for libel, and confining our opinion to actions for slander, as that is the question we are dealing with, we think that a partnership or corporation cannot be held liable for the slanderous utterance of its agents or servants unless the actionable words were spoken by its express consent, direction, or authority, or are ratified or approved by it. Generally speaking, when it is attempted to hold the master or principal liable for the wrongful acts of his servant or agent, it is sufficient to describe in a general way the wrongful act, and charge that it was done by the servant while acting within the scope of his employment. * * * But a different rule should be applied when it is attempted to hold the master or principal in slander for...