Kane v. Boston Mutual Life Insurance , 200 Mass. 265 ( 1908 )

Sheldon, J.

It may be assumed that the words alleged to have been uttered by the defendant’s agents were spoken of the plaintiff in his business of an insurance solicitor, and that they were actionable. Lovejoy v. Whitcomb, 174 Mass. 586, 588, and cases cited. But the vital question is whether the defendant corporation can be held responsible for them.

It could not be found that any actual authority had been given by the defendant to its solicitors to make the slanderous statements, or that they were made with its knowledge; nor did anything in the plaintiff’s offer of proof tend to show that there had been any ratification of these wrongful acts. The letters of Bradley, the defendant’s superintendent of agencies, show no such ratification; they express disapproval of what had been done by the solicitors. The mere inaction of the defendant and Bradley’s refusal to do anything for the plaintiff cannot indicate a ratification of what did not appear to have been done in the name or behalf of the defendant, or with the help of its resources or for its advantage. Nor is there any evidence that Bradley had authority to ratify these acts. The facts offered to be proved fall far short of what appeared in Fogg v. Boston & Lowell Railroad, 148 Mass. 513, and White v. Apsley Rubber Co. 194 Mass. 97. Nor would the facts that the plaintiff’s business was diminished after the alleged slanders, and that a part of the business which he lost went to the defendant, be enough to show a ratification in the absence of evidence that the defendant knew these facts. The defendant did not knowingly receive the benefit of its agents’ misconduct, and cannot be held on that ground to have ratified and adopted such misconduct. We find nothing in the cases cited by the plaintiff to support his contention on this point.

The plaintiff contends further that the defendant can be held on the ground that the slanders were uttered by its agents in the course of their employment, even though they were uttered without any prior authority or subsequent ratification from the defendant. But his offer of proof raises no such issue. That offer, as to this question, was simply to show that three solicitors of insurance employed by the defendant “ severally published the various oral statements as set forth in the several counts of the plaintiff’s declaration.” These counts charge that “the defendant by its agents and servants ” uttered the alleged slanders. There was no offer to prove that what was said by either' of the three solicitors was said in the course of his employment or while acting in the apparent scope thereof. Everything that they said may have been uttered wholly outside their employment, and without any reference to their employer. As in Obertoni v. Boston & Maine Railroad, 186 Mass. 481, the mere doing of the acts cannot authorize the inference that they were done in the course of the employment. Washington Gas Light Co. v. Lansden, 172 U. S. 534. Manifestly, for such utterances the defendant cannot be held liable.

We do not mean to throw any doubt upon the statement of Lathrop, J., in Comerford v. West End Street Railway, 164 Mass. 13, 14, that it is at least questionable whether the defendant would have been liable if the utterance of the defamatory words by its agents had been in the course of their employment. Behre v. National Cash Register Co. 100 Ga. 213. Singer Manuf. Co. v. Taylor, 150 Ala. 574. Redditt v. Singer Manuf. Co. 124 N. C. 100. Hussey v. Norfolk Southern Railroad, 98 N. C. 34. Dodge v. Bradstreet Co. 59 How. Pr. 104. And see Odgers on Libel & Slander, 265; 10 Cyc. 1216; 18 Am. & Eng. Encyc. of Law, (2d ed.) 1059. It is difficult to say that such a wrong as this could be committed in the agent’s service and for the principal’s benefit, within the meaning of the rule as stated by Lord Selborne in Houldsworth v. City of Glasgow Bank, 5 App. Cas. 317, 326, and by Campbell, J., in Philadelphia, Wilmington & Baltimore Railroad v. Quigley, 21 How. 202, 210.

Exceptions overruled.