Hines v. Gravins , 136 Va. 313 ( 1922 )

Prentis, J.,

delivered the opinion of the court.

This is an action for slander and insulting words under the Virginia statute, in which there was a verdict and judgment against the Director General of Railroads in favor of W. F. Gravins.

The case must be considered in two aspects, because it is necessary to observe the distinction between common law action for slander and the action given in Virginia by statute for insulting words.

1. The first count of the declaration charged common law slander. Omitting the introductory statements, this count charged that the defendant, “maliciously, wickedly and falsely uttered and published of and concerning the said plaintiff, and of and concerning-him in his trade and business, the following scandalous and malicious and defamatory words, that is to say, the said defendant, by and through the said G. A. Warthen, his general agent, servant and employee, acting within the general or apparent scope of said Warthen’s employment and in the furtherance of defendant’s business, or incidental thereof, or within the actual or apparent scope of said Warthen’s employment, or authorized expressly or impliedly or approved or ratified expressly or impliedly by said defendant, did say: T (meaning him, G. A. Warthen, general agent, agent, servant and employee of said defendant) ‘am not thoroughly convinced that you (meaning W. F. Gravins) ‘did not send the man’ (meaning the man who stole the eggs) ‘to the car’ (meaning the railroad car of defendant) ‘to get the eggs’ (meaning the eggs stolen from the car), ‘and the man’ (meaning the man who stole the eggs) ‘bring them to your store,’ (meaning the-store of W. F. Gravins) ‘and you’ (meaning W. F. Gravins) ‘filed claim for them.’ Meaning that W. F. Gravins, the plaintiff, was a crooked and dishonest person, and that he, W. F. Gravins, sent the man who stole the eggs from the car, and had him bring the eggs to his store, and that he, Gravins, made claim for the same against defendant.”

There was a demurrer to this count as well as to the other two and to the entire declaration, which was overruled by the court.

Referring now alone to this count, we think it only necessary to consider one of the grounds alleged in the demurrer, and that is that the count is fatally defective ■because it fails to allege a publication of the alleged slander.

We think it needs no citation of authority to show that the words charged, with the inducement, colloquium, imputation and innuendoes, constitute common law slander. It is necessary, however, also, in order to sustain a recovery for slander at common law, to allege and prove that there was a publication. Stivers v. Allen, 115 Wash. 136, 196 Pac. 663, 15 A. L. R. 247, 17 R. C. L. 315. Bearing these principles in mind, we observe that the declaration does not follow the usual form and allege that the slander was published in the presence and hearing of, or to any other person than the plaintiff. It does, however, allege a publication. Whether or not this alone is sufficient, it is necessary to determine. Sun Life Assurance Co. v. Bailey, 101 Va. 445, 44 S. E. 692. It is certainly true that the defendant was ultimately entitled to know to whom the slander was published; but this information he could have secured by a motion to require the plaintiff to file the particulars of his claim. Whether overruled or sustained, however, the demurrer does not dispose of the question in this case, because it was again raised after the evidence was introduced and it clearly appears from the plaintiff’s own testimony that in "the angry colloquy which occurred between the plaintiff and Warthen, the general agent of the defendant, no one was close enough to them to hear the offensive words. It clearly appears, therefore, that there was no publication of the alleged slander.

The necessity for showing such publication seems to have been ignored during the trial, because, notwithstanding the indisputable fact that the alleged slanderous words were never spoken or published of the plaintiff to any one other than himself, the court in the admission of the testimony and in the giving and refusing of instructions, appears to have allowed the trial to proceed upon the theory that no publication was necessary. For this error, which pervades the entire proceedings, the case must be reversed. The defendant is entitled to a judgment here in his favor upon the count charging the common law slander, and this without reference to any of the other questions which are raised.

2. There were, however, two other counts in the declaration under the Virginia statutes (Code, 1919, see. 5781), which provides that “All words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace shall be actionable. No demurrer shall preclude a jury from passing thereon.’ ’ The briefs contain an elaborate discussion in support of the contention that publication is also required in order to entitle a plaintiff to recover for insulting words, as in common law slander. It may be conceded that there is much in favor of this view. We have, recently, however, after careful deliberation, in a previous case, Davis v. Heflin, 130 Va. 169, 107 S. E. 673, determined otherwise, and believe the conclusion there reached to be sound. In Rolland v. Batchelder, 84 Va. 673, 5 S. E. 695, the same view was expressed.

When the history of the statute is recalled, and it is observed that its purpose was so to extend the common law as to give a right of action for insulting words, even though containing no imputation which was actionable at common law, the reason for the rule of Davis v. Heflin, to which we adhere, seems to us appa:rent. The design of . the statute is to prevent breaches of the peace, to discourage offensive and excessive freedom in the use of that unruly member, the tongue, to inflict punishment therefor, and by subjecting those who are so hasty of temper and inconsiderate of the feelings of others as to insult them to such actual and punitive damages as may be awarded by a jury. The purpose of the statute would be in a measure defeated, and breaches of the peace would be encouraged rather than ■discouraged, by holding that no action would lie thereunder for insults privately given. The statute is peculiar, as we believe, to Virginia and Mississippi, and while most of the rules applicable to common law blander are now applicable to this action, the rule re■quiring publication is not applicable. Considered from this point of view alone, we are of opinion that the ■court did not err in overruling the demurrer to the .second and third counts of the declaration.

Warthen, who uttered the words complained of, was not sued, and it must be remembered that there may be some liability upon him which could not be imposed upon the director general, who was sued. If the liability of the directpr general is identical with that which would have attached to the railway corporation before he took possession, then there is no doubt that, by the great weight of authority, if Warthen was acting within the scope, or within the apparent scope, of his authority, then his principal is liable upon the doctrine of respondeat superior to the plaintiff.

While there are eases of high authority which distinguish between the liability of a corporation for libel and for slander, holding that a verbal defamation is so personal that a corporation is only liable for a slander uttered by its agent where it has actually authorized, or subsequently ratified, his utterance, the whole trend •of judicial opinion in the more modern cases is to disregard such a distinction as unsound and based upon no sufficient reason.

Among those cases is Rivers v. Yazoo & Miss. Val. R. Co., 90 Miss. 196, 43 South. 471, 9 L. R. A. (N. S.) 931, in which a corporation is held liable for slander, where it was shown that the agent was acting in the scope of his employment and in the actual performance of the duties of the corporation touching the matter in question ; and a plea which set up by way of defense that it did not appear that the corporation had knowledge that the slanderous words had been uttered or published, that they were not uttered with its approval or consent, and that they had never been ratified, was overruled.

So, also, in Hypes v. Southern Ry. Co., 82 S. C. 315, 64 S. E. 395, 21 L. R. A. (N. S.) 873, 17 Ann. Cas. 620, the defendant was held responsible for a slander uttered by the division superintendent while examining the time account of an engineer, charging him with stealing from the company, upon the ground that it was in the course and scope of his employment and-under the implied authority of the corporation. Kane v. Boston Mut. L. Ins. Co., 200 Mass. 265, 86 N. E. 302; Empire Cream Separator Co. v. De Laval Dairy Supply Co., 75 N. J. L. 207, 67 Atl. 711.

In Roemer v. Jacob Schmidt Brewing Co., 132 Minn. 399, 157 N.W. 640, L.R.A.1916E, 774,itis held that the liability of a corporation for a slander uttered by its agent is governed and determined by the same rule which, determines its liability in the ease of libel published by such agent, and it is responsible for a slander uttered by said agent in the course of his employment and in the furtherance of business engaged in by the corporation; and other modern cases are cited in a note to this case, L. R. A. 1916E, 774. Grand Union, etc., v. Lord, 231 Fed. 392, 145 C. C. A. 384, Ann. Cas.1918 C, 1118. There is a dictum to the same effect in Sun Life Ins. Co. v. Bailey, 101 Va. 446, 44 S. E. 692.

That W ar then was then acting within the actual and apparent scope of his authority is manifest. The plaintiff was in the habit of receiving carload shipments of eggs. He had complained on the 4th of September that apparently twenty-one crates of eggs had been stolen from a ear belonging, to him, then on the railroad yard to be unloaded. The suspicion of the Director General’s agents had also been aroused by the fact that a colored driver had been seen to go to the car and unload some of the eggs, but as they were not sure that this was not one of Mr. Gravins’ drivers, they did not stop him. This circumstance was being investigated by King, the chief special agent of the carrier, and the thief was soon thereafter caught and convicted. Gravins then thought that twenty-one cases had been taken, but when the car had been fully unloaded he discovered that only eight cases were missing. He thereupon, on September 5th, went to Warthen’s office to obtain what is spoken of as a bad order or shortage ticket for the eight crates of eggs to form the basis of his claim against the defendant for the value of the eggs which had apparently been stolen. Wartben was not charged with the duty of personally issuing these bad order or shortage tickets, but one of his immediate subordinates was, and such tickets were signed in Warthen’s name. Warthen’s claim in the discussion arising as to the circumstances related, was that after the ear was delivered to the consignee, his principal ought not to be held responsible for theft therefrom. Warthen and Gravins met just outside of the office, when an angry colloquy resulted, though the great weight of testimony shows that Gravins, especially after he alleges that Warthen uttered the offensive words, became excited and, violent in manner, that his words were loud and angry, and in the highest degree insulting to Warthen, whereas Warthen was more quiet in manner, and what he said to Gravins was said in a quiet, restrained tone and was heard by no one else except Gravins.

These being the circumstances, there can hardly be any fair doubt that Warthen was acting within the apparent scope of his authority.

We are urged to hold that whatever would be the rule, if Warthen had been acting as the agent of the railroad company, this rule should not be applied to the Director General. There is some authority for this view, but we believe the weight of authority and the better reason is the other way, and that the statute indicated the intention of the Congress, which was effectuated by the proclamation of the President, through the Director General, based upon the act of Congress, to preserve to the public substantially every right of action against the Director General for compensatory damages which theretofore existed against the corporations.

Section 10 of the Federal control act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, sec 3115^-j), among other things provides: “That carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws, or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control, or with any order -of the President. Actions at law or suits in equity may be brought by and against such carriers, and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal government. * * * But no.process, mesne or final, shall be levied against any property under such Federal control.”

Pursuant to that statute, what are known as General Orders Nos. 50 and 50A were promulgated, of which the pertinent part here involved reads thus: “Whereas since the Director General assumed control of said system of transportation, suits are being brought and judgments and decrees rendered against carrier corporations on matters based on causes of action arising during Federal control for which the said carrier corporations are not responsible, and it is right and proper that the actions, suits and proceedings hereinafter referred to, based on causes of action arising during or out of Federal control, should be brought directly against the said Director General of Railroads and not against said corporations; It is therefore ordered that actions at law, suits in equity and proceedings in admiralty hereafter brought in any court, based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit or proceeding but for Federal control might have been brought against the carrier company, shall be brought against the Director General of Railroads, and not otherwise; provided, however, that this order shall not apply to suits, actions, or proceedings for the recovery of fines, penalties and forfeitures.”

The conclusion from a fair consideration of the circumstances and of this language is, that the act of Congress and the proclamation were to interfere little with the accustomed processes of the courts during the period of Federal control, and to subject the Director General to the same general liabilities to which the railroad corporations would have been subjected but for that act, expressly denying, however, the right to levy on or against any of the property used while under the control of the Federal government and also relieving the Director General from all liability in actions, suits or proceedings for the recovery of fines, penalties, or forfeitures. In this we are confirmed by these clear expressions of the Supreme Court of the United States in the Ault Case, hereafter cited: “The plain purpose of the above provision was to preserve to the general public the rights and remedies against common carriers which it enjoyed at the time the railroad’s were taken over.by the President, except in so far as such rights or remedies might interfere with the needs of Federal operation.” * *

“The government was to operate the carriers, but the usual immunity of the sovereign from legal liability was not to prevent the enforcement of liability ordinarily incident to the operation of the carriers. The situation was analogous to that which would exist if there were a general receivership of each transportation system. Operation was to be continued as theretofore, with the whole personnel subject to change by executive order. The courts were to go on entertaining suits and entering judgments under existing law, but property in the hands of the President for war purposes was not to be disturbed. With that exception, the substantial legal rights of persons having dealings with the carriers were affected by the change in control.” Such actions, in substance and effect, are against the United States. Bailey v. Hines, Dir. Gen., 131 Va. 421, 109 S. E. 470; Westbrook v. Director General (D. C.), 263 Fed. 211; Blevins v. Hines, Dir. Gen. (D. C.), 264 Fed. 1005.

This construction has been uniformly applied, with one exception, so far as we are informed, though the facts of that case are not given. This exception is Dougherty v. Payne, Director General of Railroads (D. C. So. Dist. Fla.), 276 Fed. 451, where it is held that an action for malicious prosecution cannot be maintained against the Director General of Railroads, as such, for the act of one of the employees of the railroad system under his control. No reason for this conclusion is given in this opinion, and the facts of the case are not stated. We observe that in Neely v. Payne, Dir. Gen., 126 Miss. 854, 89 South. 669, an action for alleged slander and libel against the Director General, was maintained, though a verdict in favor of the defendant on the issues of fact submitted was affirmed.

3. This record presents still another proposition. No actual damages were proved and the court gave several instructions, authorizing the jury to impose punitive damages upon the defendant. The amount of the verdict, $5,000, indicates that they have done so.

In the case of Missouri Pacific R. Co. v. Ault, 256 U. S. 554, 65 L. Ed. 1087, 41 Sup. Ct. 593, there are expressions which indicate that in no event can punitive damages be imposed upon the Director General. The precise question there involved was, whether or not an Arkansas statute, which provided for the recovery of a penalty from railroad companies for delay in the payment of wages justly due employees, who had been discharged or refused further employment, was valid against the Director General. The act required the rate of wages theretofore paid to be paid from the date of discharge until payment, as a penalty, and under that statute an employee had recovered as wages $50, and $300 in addition thereto as the statutory penalty. The Supreme Court of Arkansas (140 Ark. 572, 216 S. W. 3) affirmed the judgment of the trial court, and the case was taken to the Supreme Court of the United States by writ of error. In deciding that the Director General could not be subjected to this penalty, the court said: “The purpose for which the government permitted itself to be sued was compensation, not punishment. In issuing General Order No. 50, the Director General was careful to confine the order to the limits set by the act, by concluding the first paragraph of the order: ‘Provided, however, that this order shall not apply to actions, suits, or proceedings for the recovery of fines, penalties and forfeitures.’

“Wherever the law permitted compensatory damages they may be collected against the carrier while under Federal control. Such damages may reasonably include interest and costs. See Hines v. Taylor, 79 Fla. 218, 84 South. 381. But double damages, penalties and forfeitures which do not merely compensate, but punish, are not within the purview of the statute. See Hines v. Taylor, supra; Jackson-Tweed Lumber Co. v. Southern Ry. Co., 113 S. C. 236, 101 S. E. 924. The amount recovered in the present case over and above the wages due and unpaid with interest is in the nature of a punishment. It is called a penalty in the State statute. The Supreme Court of Arkansas had held that it was not technically a penalty, declaring:

“ ‘It is allowed for a double purpose, as a compensation for the delay, and as a punishment for the failure to pay. It is composed of all the elements and serves all the purposes of exemplary damages.’ Leep v. Railway, 58 Ark. 407, 440, 441, 25 S. W. 75, 85 (23 L. R. A. 264, 41 Am. St. Rep. 109).

“But whether iu a proceeding against the Director General it shall be deemed compensation or a penalty presents a question not of State, but of Federal law. Whatever name be applied, the element of punishment clearly predominates and Congress has not given its consent that suits of this character be brought against the United States. The judgment against the Director General, so far as it provided for recovery of the penalty, was erroneous.”

All of the cases cited in the above quotation related to statutory penalties, but as is thereby indicated statutory penalties are composed of all the elements and serve all the purposes of exemplary damages. Punishment of the offender as a deterrent example to others is the sole justification for awards of punitive or exemplary damages and we are unable to perceive any distinction between penalties imposed pursuant to the common law, and those imposed by statutory sanction. The Federal act prevents and supersedes the operation of the State statutes imposing penalties, and we cannot distinguish exemplary damages imposed under the Virginia statute for insulting words from other pecuniary exactions imposed as punishment under other statutes. We are of opinion, therefore, that the same rule must be applied thereto, and as the construction placed by the Supreme Court of the United States upon Federal statutes is controlling, it follows that all State laws which theretofore justified the imposition of penalties were abrogated during the period of Federal control of the railroads, and that the Federal government has not consented to be sued therefor.

It may be urged that the penalty by way of punitive damages only attaches as incidental to a righteous claim for compensatory damages, but this does not differentiate it from the statutory penalty which was involved in the Ault Case. There, too, the penalty was attached to a righteous claim for a debt due the claimant, and the penalty was claimed only as an incident to such debt.

In this view we are confirmed by the case of Davis, Director General, v. Elzey, 126 Miss. 789, 89 So. 666. In that case the Mississippi court, in the same case, had previously held (88 South. 630) that punitive damages could be recovered of the Director General, but after the Ault Case was decided reversed its previous decision and in this connection said: “A careful consideration of this decision (Ault Case) by the Supreme Court of the United States, which is the court of final authority on this question, convinces us that we were in error, and that punitive damages may not be recovered against the government or the Director General.” And the same court, in the cases of Neely v. Payne, Dir. Gen. 126 Miss. 854, 89 South. 672, and Payne, Dir. Gen. v. Bartlett (Miss.), 89 South, 912, reiterated its ruling and that construction of the Ault Case.

In Ginn v. U. S. R. Administration, 114 S. C. 236, 103 S. E. 549, an action for injury to a sick passenger, caused by exposure to a storm, it is said that “the Director General, representing the government, cannot be held to respond in punitive damages.” It is also said in Rowell v. Hines, Director General, 114 S. C. 339, 103 S. E. 546, where a trespasser was injured in alighting from a train, that “The Director General could not be sued for wilfulness.”

Our conclusion here, then, is that the instructions which authorized the recovery of punitive damages against the Director General were erroneous.

There is still another aspect in which this case may be considered which leads to the same conclusion. The general rule is that punitive damages cannot be recovered against a principal for a slander uttered by one of its agents, unless it has either authorized and directed the utterance by the agent, or after knowledge thereof has ratified and approved it.

In this case the evidence shows just the contrary. When the plaintiff reported the occurrence complained of to Mr. George W. Stevens, Federal Manager of the Chesapeake and Ohio Railway Company, he in substance replied that, if true, Mr. Warthen should offer an apology for his aspersions upon the plaintiff. King, the special agent, was promptly sent with the plaintiff to Warthen, and in the interview which ensued Warthen denied the utterance of the words complained of, and undertook to explain that he did not mean by the words which he actually did use to reflect upon the honesty or integrity of the plaintiff; and in substance ^that what he really meant was, that it was impossbile for him to know either whether the driver who took the eggs from the car was the agent of the plaintiff, or that he did not take them to the plaintiff, but that he didnot thereby mean to impute that the plaintiff would consciously connive with the driver to effect such a fraudulent purpose. There being no evidence that the federal agent or the Director General ever at any time authorized, ratified,, or approved, the offensive charge, the instructions authorizing the recovery of punitive damages are erroneous.

The circumstance which seems to be most-relied upon to show ratification is that when the plaintiff threatened suit, Warthen sent the letter to the Director General’s attorney. The Director General had the right to defend the action. He has not pleaded justification, but only tendered the general issue of not guilty, and this does not afford the slightest evidence of ratification. Inasmuch as the suit was threatened against the Director General and was promptly instituted against him, this circumstance does not even tend to show ratification.

Having reached these conclusions, we must determine, under Code, section 6366, as to the judgment to be entered here. That section requires this court, when judgments are reversed in whole or in part because erroneous, to “enter such judgment, decree or order as to the court shall seem right and proper, and shall render final judgment upon the merits whenever, in the opinion of the court, the facts before it are such sis to enable the court to attain the ends of justice.”

In this connection we observe that in Mississippi, which has a statute substantially like the Virginia statute, making insulting words actionable, in the case of Dixie Fire Ins. Co. v. Betty, 101 Miss. 880, 58 South. 705, that court construing the statute held that in no event could a suit be maintained to hold a principal liable for insulting words spoken by an agent, unless possibly in a case where such words were spoken at the command of the principal, using this language: “Over the objection of the appellant, appellee was permitted to amend his declaration by adding a count predicated on section 10, Code, 1906, by which certain words are made actionable. In so doing the court committed fatal error. This section has no application in a suit to hold a principal liable for words spoken by an agent, unless possibly such words were spoken at the command of the principal, as to which we express no opinion. Its language, together with the fact that its first appearance in our statutes was as section 9 of the act to suppress dueling, passed June 13, 1822 (Rev. Code of Laws 1824, Ch. 50), demonstrates that its enactment was for the purpose of preventing personal difficulties, and that consequently it applies only to persons liable to become involved in such a difficulty by reason of having referred, to another in words of the character therein mentioned.”

This contraction of the statute was reaffirmed in Neely v. Payne, Director General, supra.

It should doubtless be subject to the further qualification that the insulting words were neither authorized nor ratified by the principal.

While this question has never been raised in Virginia, we are greatly impressed by the reasonableness of this construction of the statute, and the expressions contained in the Virginia cases are insufficient to discredit its logic.

In Brown v. N. & W. Ry. Co., 100 Va. 624, 42 S. E. 665, 60 L. R. A. 472, there was an action for libel and for insulting words under the statute, published by an agent of the defendant. The defendant demurred to the evidence and the court used this language: “This case was heard in the trial court on a demurrer to the evidence, but the plaintiff voluntarily joined in the demurrer. Whether he could have been compelled to join if the action had been brought for common law libel simply, is unnecessary to decide. Section 2897 of the Code, however, provides that ‘all words which, from their usual construction and common acceptation, are construed as insults and tend to the breach of the peace, shall be actionable. No demurrer shall preclude a jury from passing thereon.’ The latter provision was evidently inserted for the benefit of plaintiffs in actions to which the section is applicable, and they have the right to waive it if they choose. Counsel for the plaintiff in the trial court, bearing in mind this statute, intended to waive the benefit of it expressly, as is manifest from his bill of exception, which states that ‘after the evidence was all introduced to the jury, the defendant demurred to the testimony, and the plaintiff being willing to join therein, notwithstanding the last count of the declaration’—which was a count under section 2897 of the Code—‘joined in the demurrer.’ This he had a right to do.” And the judgment of the trial court upon this demurrer, in favor of the defendant, was affirmed.

In Sun Life Ins. Co. v. Bailey, supra, which was also an action for libel at common law, and for insulting words under the statute, published and uttered by an agent of the defendant, the court reversed the judgment for the plaintiff, because the jury were instructed that it was not “incumbent upon the plaintiff to prove any special damages, and if they find for the plaintiff they shall find such damages as they think he is entitled to under all the circumstances as shown in the evidence. And in ascertaining the damages they may consider the plaintiff’s standing and that of the defendant.” And in this connection said: “The court had properly, in another instruction, told the jury that this action being against the defendant corporation, of which the writer of the letter sued on was the agent, they could not give punitive or exemplary damages,. unless they believed from the evidence that the alleged libel of the agent was either authorized by the defendant or was subsequently ratified by it, and there being no evidence whatever .tending to show that the defendant (plaintiff in error) either authorized or ratified the act of Bartow in writing and mailing the letter sued on, but on the contrary the evidence being distinct and uncontradicted that the company’s chief officers knew nothing of the writing of the letter until the institution of this suit, it was clearly erroneous to tell the jury that in ascertaining the damages they might allow the plaintiff, the standing of the defendant company might be considered.”

We know of no other cases which have reached this court except these two, in which actions have been maintained against principals for insulting words uttered by their agents, and both of these cases were actions for common law libel as well as for insulting words under the statute.

Then in Boyd v. Boyd, 116 Va. 326, 82 S. E. 110, Ann. Cas. 1916D, 117 3, there was an action based on the statute.. It appeared that a stepson had published grossly insulting words of his stepmother, but there was no evidence of actual damage, and the court was asked to set aside a substantial verdict upon the ground that in the absence of actual damage, there can be no recovery of punitive damages under the Virginia statute. This court said: “It is unnecessary in this case to consider whether or not publication is necessary to maintain an action for insulting words, since if it be it is clear that there was a publication in this case. Neither was it necessary for the plaintiff to prove actual pecuniary loss resulting from the utterance of the insulting-words in order that the jury might give punitive damages. The law presumes that damages result from the utterance of insulting words, made actionable by our statute, just as it does where the words uttered are actionable per se; and it is not necessary in either ease, in order to recover, to prove actual or pecuniary loss.”

Applying the suggestions contained in these cases, we have here an action for insulting words where no actual damages are proved, and where, as a necessary consequence, the only damages which can be recovered are punitive damages, and this only because of the Virginia statute authorizing the recovery of such punitive damages for insulting words. As we have undertaken to-' show, however, this plaintiff cannot recover punitive damages of the Director General on account of insulting words uttered by its agent for two reasons—first, because the Federal government has not consented that the Director General shall be penalized or subjected to punitive damages imposed by statute, and, second, be-' cause in this case there has been no ratification of the insulting words by the Director General. No actual damages have been proved, and hence the only possiblrecovery in this case is for exemplary or punitive dame ages. This being true, it is logical to hold that the plaintiff has failed in his proof to show that he is entitled to any damages against the Director General, however clear his right may appear to be, under the statute, to have submitted to a jury his right to penalize or recover punitive damages of Warthen, who uttered the insulting words. Our conclusion, therefore, is, in accordance with Code section 6365, to enter final judgment here in favor of the Director General.

Reversed.