Henry Myers & Co. v. Lewis , 121 Va. 50 ( 1917 )

Sims, J.,

after making the foregoing statement delivered the opinion of the court.

With regard to the two preliminary questions above referred to, we deem it sufficient to say:

With reference to whether the return on the process above quoted was “under oath” as required by section 3232 of the Code of Virginia:

We think the trial court correctly ruled that such return was under oath as required by the statute referred to, the affidavit accompanying the return evidencing that fact.

With reference to whether, on motion of defendants to quash the attachment on the ground that “one partner cannot bind another by his tortious acts,” accompanied by tender of depositions which the defendants claimed showed that there was no authorization or ratification of the tort by the other partner the court below should have acted on and sustained such motion on such ground before the case was matured for hearing on its merits:

We think the trial court was also correct in its ruling on this question. The question of the validity of the debt or demand of the plaintiff, i. e., whether it was or was not “established did not arise upon a preliminary motion to quash the attachment but only when the case was heard upon its merits.” Section 2981, Code of Virginia. Therefore the court below properly ruled that “the questions of liability of the partnership for the torts of one of the partners is not within the scope of the motion to quash the attachment, but would have to be determined when the case came up for trial on its merits,” and hence properly overruled the motion aforesaid.

Coming now to the consideration of the action of the trial court involved in the remaining assignments of error.

It seems that the instant case is one of first impression in this court on the subject of the liability of a partnership for a libel published by one of the partners.

We will take up and pass upon the subjects involved in the assignments of error in their order' as stated below.

Giving and refusing instructions.

1. The court below committed no error in giving instruclions No. 1 asked for by the plaintiff. It correctly propounded the law as it has been well settled in principle since as early as the time when Lord Holt was Chief Justice of England. Hern v. Nichols, 1 Salk. 289. The latter was a case of agency; but the liability of a partnership for the acts of an individual partner, in delicto, as it has been well settled also from the earliest times, rests on the doctrine of agency. Story on Part. (5th Ed.) See. 166; Linton v. Hurley, 14 Gray (Mass.) 191; Locke v. Stearns, 1 Met. (Mass.) 560, 35 Am. Dec. 382; Lothrop v. Adams, 133 Mass., 471, 43 Am. Rep. 528. Indeed the liability of a partnership in such case rests precisely upon the same principle as the liability of a corporation for the torts of its agents or employees, whether of malfeasance or non-feasance, Mackey v. Commercial Bank, L. R. 5 P. C. 394, a case of fraud by employee of a corporation; Swift v. Winterbotham, L. R. 8 Q. B. 244, a case of fraud by employee of a corporation; Stockton v. Frey, 4 Gill (Md.) 406, 45 Am. Dec. 138, where the tort of the individual partner consisted of negligence; Atlantic Glass Co. v. Paulk, 83 Ala. 404, 3 So. 800, a partnership case; Read v. Home Savings Bank, 130 Mass., 443, 39 Am. Rep. 468, a corporation case; and many other authorities on this subject too numerous to cite. The doctrine in the law of negligence of the liability of the master for the negligence of his servants, as well as the doctrine of the liability of the master for the malfeasance — the active torts — of his servants, and the great bodies of law which have been built upon these subjects, rest alike upon the same foundation — the doctrine of agency.

The most difficulty in holding a master or principal liable for a tort by his servant, or agent, where a specific actual intention or purpose is necessary for its commission (the tort being neither expressly authorized before its commission nor ratified afterwards by the former), was experienced by the courts in the case of corporations, where it was first doubted whether there could be present, in such an act by an agent or servant, the personality necessary to actually will and to do, — to commit an active tort; and too, the' ■ultra vires doctrine in such case gave difficulty. Maynard v. F. F. Ins. Co., 34 Cal. 48, 91 Am. Dec. 672, and Id., 47 Cal. 207, a case where a corporation was held liable for a libel published by an employee. But as was said in Read v. Home Savings Bank, swpra, “for a quarter of a century corporations have been held liable in tort actions, both for non-feasance and malfeasance.” • To the same effect see Railroad Co. v. Quigley, 21 How. 202, 16 L. Ed. 75 (a case •of an action against a railroad company for libel, where it is said “for acts done by the agents of a corporation, either in contractu or in delicto-, in course of its business and of their employment, the corporation is responsible as an. an individual is responsible under similar circumstances;”) also Washington Gas Light Co. v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 543, where a corporation was held liable in an action against it for libel; and Sun Life Ins. Co. v. Bailey, 101 Va. 443, 446, 44 S. E. 692, holding a corporation liable in such an action.

The difficulty, as has been often remarked, lies not in the uncertainty of the principle we are considering, but in its application. This difficulty, and as we think, the key to its solution in the instant case, will be disclosed by the illustrations afforded by the quotations we make below from some of the leading cases on this subject.

In Barwick v. English Joint Stock Co., L. R. 2 Exch. 259, •(which was an action in delicto against a corporation for the fraudulent concealment and misrepresentation of one of its servants), Willis J. in delivering the opinion of the court said:

“With respect to the question, whether a principal is answerable for the act of his agent in the course of his master’s business, and for his master’s benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong. The general rule is that the master is answerable for every such wrong of the servant or agent as is committed in the course of his service and for' the master’s benefit, though no express command or privity of the master be proved. (See Laugher v. Pointer, 53 &c. 547, 554, 11 E. C. L. R. —.) That principle is acted upon every day in running down cases. It has been applied also to direct trespass to goods, as in the case of holding owners of ships liable for the acts of masters abroad, improperly selling the cargo. (Ewbank v. Nutting, 7 C. B. 797, 62 E. C. L. R. —.) It has been held applicable to actions of false imprisonment, in cases where officers of railway companies intending to act in the course of their duty, improperly imprison persons” (citing a number of English cases). “It has been acted upon where persons employed by the owners of boats to navigate them and to take fares, have committed an infringement of a ferry, or such like wrong. (Huzzy v. Field, 2 C. M. & R. 432, 440). In all these cases it may be said, as it was said here, that the master has not authorized the act. It is true, he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of the master .to place him in.” (Italics supplied.)

In Mackay v. Commercial Bank, L. R. 5 P. C. 394, (which was an action for deceit for false and fraudulent representation contained in a telegram sent by the cashier of the defendant bank).' The cashier “kept the books, conducted the correspondence and prepared the telegrams of the bank.” It is said in the opinion in that case:

“* * * It is seldom possible to prove that the fraudulent act complained of was committed by the express authority of the principal, or that he gave his agent general authority to commit wrongs or frauds. Indeed, it may be assumed that, in mercantile transactions, principals do not authorize their agents to act wrongfully, and consequently that frauds are beyond ‘the scope of the agents’ authority’ in the narrowest sense of which the expression admits. But so narrow a sense would have the effect of enabling principals largely to avail themselves of the frauds of their agents, without suffering losses or incurring liabilities on account of them, and it woidd be opposed as much to justice as to authority. A wider construction has been put upon the words. Principals have been held liable for frauds where it has not been proved that they authorized the particular fraud complained of or gave a general authority to commit frauds; at the same time, it is not easy to define with precision the extent to which this liability has been carried. The best definition yet, in their Lordship’s judgment, is to be found in the case of Barwick v. English Joint Stock Bank” (which is quoted above) “where the judgment of the Exchequer Chamber was delivered by one of the most learned judges who ever sat in Westminster Hall.” (Italics supplied.)

After quoting from the case last named, the opinion in Mackay V. Commercial Bank, supra, continues:

“This doctrine was acted upon lately by the court of Queen’s Bench, in Swift v. Winterbotham, Law Rep. 8 Q. B. 244 where they held a banking company liable in respect of a fraudulent guarantee by their manager * * * although the bank derived no benefit from the representation. This judgment was, indeed, reversed in the Exchequer Chamber on the ground that the signature of the manager was not the signature of the company within the words of 9 Geo. 4, C. 14, S. 6, and that the representation was made by the manager only in his individual capacity, but Lord Coleridge, in delivering the judgment, observes, ‘ This does not at all conflict with the case of Barwick v. English Joint Stock Bank, * * * and cases of that description, because there can be no doubt that where an agent of a corporation, or joint stock company, inl conducting its business, does something of which the joint stock company take advantage, or by which they profit, or by which they may profit, and it turns out that the act which is done by their agent is a fraudulent act, justice points out, and authority supports justice in maintaining that they cannot afterwards repudiate the agency, and say that the act which has been done by the agent is not an act for which they are liable.” (Italics supplied).

In Dunn v. Hall, 1 Ind. 344 (where Watts and Dunn were the owners of a newspaper plant) Dunn, the part owner and publisher of the newspaper was held liable for a libel published in his newspaper, although he, before the publication, expressly forbade the agent left in charge of the publication of the paper from publishing the libel, and Watts, before such publication, expressed disapprobation of it. The court in their opinion in this case said: “* * *if Dunn, the owner and publisher of the paper, chose to leave his home and place his paper in charge of another person, he is responsible for the conduct of the person he so employed: the person so engaged is the owner’s agent in that business and he must be chargeable no matter what private instructions he may have given him; so, if Watts is a joint owner of the concern and chooses to permit Dunn to edit it, or any other person, he too, is responsible for the conduct of Dunn or such other person so employed. We do hot think that the publication having been made against the express disapprobation of Watts, is, of itself, sufficient to discharge him, if, by the exercise of due and proper diligence he could have prevented the publication. If he chose not to oversee the publication of his paper, but to trust it to others, he must be held responsible to the public for the conduct of those he employs, even if his agent does make a publication which he had forbid.” (Italics supplied).

The court then refers to the line of cases and authorities on the subject of the liability of owners of newspapers for libels printed therein “in the. ordinary course of their business” without the actual knowledge or approval or possibility of it, on the part of the owners, on account of their absence, etc. See also Bac. Ab. Lit. Libel 458; 2 Stark on Slander, 29 notes, Wend. Ed., as to liability of book-sellers for libel when a book or pamphlet containing a libel is sold by them in the usual course of trade, in ignorance of its contents; Rex v. Gutch, 1 M. & M. 433, where the owner of the newspaper who lived more than a hundred miles from the place of business of the newspaper, was held criminally liable for the printing therein of a libel, in which Lord Tenterdon, Chief Justice, in delivering the opinion of the court said: “the owner * * * who derives profit from the concern,” (not necessarily from the publication of the particular liabel) “and who furnishes the means to carry on the concern and who entrusts the conduct of the publication” (of the newspaper) “to one whom he selects and in whom he confides, ought to be answerable, even criminally, although it cannot be shown that he was individually concerned in ¿he particular publication. It would be exceedingly dangerous to hold otherwise, for then an irresponsible person might be put forward, and the person really producing the publication and without whom it could not be published, might remain behind and escape altogether. (Italics supplied.) To the same effect Rex v. Walter, 3 Esp. 21, Com’th v. Morgan, 107 Mass. 109, prosecution for libel; Perret v. New Orleans Times Newspaper, 25 La. Ann. 170, action of slander; Storey v. Wallace, 60 Ill. 51, action for libel.

In Wolf v. Mills, 56 Ill. 360 (which was an action for deceit) a partnership was held liable for the fraudulent conduct of one of the partners, without the participation or knowledge of the other partner in the fraud. The tort was committed in the sale of a lot of sheep skins “in the course of the partnership business.” (Italics supplied).

In Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 550 (which was an action for deceit), a real estate partnership was held liable for the fraud of one of the partners (the other partners having “no connection with, knowledge of or participation in the fraud”). The fraud was committed.in a sale of land, it being “in the transaction and prosecution of a partnership enterprise.” (Italics supplied.)

In Linton v. Hurley, 14 Gray (Mass.) 191 (which was an action for personal injury occasioned by the negligence of one of the partners, or of servants employed by the firm in the unloading of the vessel which the firm had contracted to unload), the partnership was held liable, although one of the partners was absent when the accident occurred and had no knowledge óf and did not participate in the negligent manner of doing the work. (These facts and the resultant holding of the court, so familiar in negligence cases, are cited here merely to illustrate what guidance may be obtained from the rule on the same subject in the law of negligence.) Bigelow, J., in delivering the opinion of the court, said:'

“The injury was occasioned either by the negligence of servants employed by both defendants, or by one of them, while acting within the scope of the firm. Partners, like individuals,, are responsible for the negligence of their servants while engaged in the business incident to their employment; and if one partner acts, he is considered as the servant of the rest of the firm. Moreton v. Hardern, 4 B. & C. 223, 6 D. & R. 275; Collyer on Part., sec. 457 et seq.; Story on Part., 166.” (Italics supplied.)

In Atlantic Glass Co. v. Paulk, 83 Ala. 404, 3 So. 800, it does not appear what the business of the defendant partnership was nor what was the tortious act of the partner at fault. But the court held and in its opinion said: “We entertain no doubt of the fact that there may be cases where a partnership is liable for the publication of a libel, as for other like tort, including constructive or legal malice. Of course, generally when the tort complained of is the act merely of one partner * * * in order then to render the other partners liable, the wrong complained of must be committed by such partner in his character as partner and in the course of the partnership business." (Italics supplied.)

In Locke v. Stearne, 1 Metc. (Mass.) 560, 35 Am. Dec. 382, which was an action for deceit consisting in the fraudulent sale by one of the partners, or by an employee, of a mercantile partnership, of meal as linseed meal, when it was in fact a mixture of linseed and teelseed meal, without the knowledge of the other partners, Chief Justice Shaw, in delivering the opinion of the court holding the partnership liable, said: “The deceit was done for the defendants’ benefit, by their agent acting under their orders in the conduct of their general business and responsible to them; and when one party must suffer by the wrong and misconduct of another, it is more reasonable that he should sustain the loss who reposes the confidence in the agent than he who has given no such confidence. Hern v. Nichols, 1 Salk. 289. * * * it is laid down in the general rule of the common law that the principal is civilly responsible for the acts of his agent. Doe v. Martin, 4 T. R. 66. * * * The rule proceeds upon the ground that the servant is proceeding within the scope of his authority, actual or constructive. The case of a sheriff who is liable civiliter, even in an action of trespass, for the misconduct of his deputy, is another familiar application of the rule. Grinnell v. Phillips, 1 Mass. 530. The rule is laid down generally in a recent compilation of good authority, that though a principal, in general, is not liable criminally for the act of his agent, yet he is civilly liable for the neglect, fraud, deceit or other wrongful act of his agent in the course of his employment, though in fact the principal did not authorize the practice of such acts; but the wrongful or unlawful act must be committed in the course of the agent’s employment. 3 Chit. Law of Com. & Man., 200, 210.

“As to the other point, which is indeed little more than a further application of the same principle, it is laid down, as the general rule, that one partner is liable civiliter for damages sustained by the deceit or other fradulent act of his co-partner done within the scope of the general partnership authority. Collyer on Partnership, 241; Rapp v. Latham, 2 Barn. & Ald. 795; Willet v. Chambers, Cowp. 814.” (Italics supplied.)

Other expressions of the rule on this subject found in the text books and decisions which may be helpful are as follows: “The firm is liable for the wrongful acts or omissions of a partner while he is acting in the ordinary course of the firm’s business” (30 Cyc. 523) ; “in the course of and for the purpose of transacting the firm’s business” (Noblett v. Bartsch, 31 Wash. 24, 71 Pac. 551, 96 Am. St. Rep. 886) ; “in the usual and ordinary prosecution of the firm’s business” (Shapard v. Hynes, 104 Fed. 349, 45 C. C. A. 271, 52 L. R. A. 675) ; “within the proper scope and business of the partnership” (Story, Part. 168) ; “a wilful tort committed by a partner in the course and for the purpose of transacting the business of the firm, may make the firm responsible.” (Lindley on Part. 150, citing Pollock on Torts, 80.) (Italics supplied.)

The authorities on the subject develop the conclusion that where there is neither express authority in advance nor ratification afterwards, the test of the liability of the master or principal for the tortious act of the servant or agent, is not whether the tortious act itself — the act in the manner in which it was done — is a transaction within the ordinary course of the business of the master or principal, or within the scope of the servant’s or agent’s authority; but the true test is whether, if the act had been done in a nontortious manner, the service itself, in which the tortious act was done, was within-the ordinary course of such business or within the scope of such authority. That is to say, the true test is, was the service, in which the tortious act was done, incident to the employment? The master or principal is liable for the tortious manner in which a transaction is conducted or a service is performed, entrusted by the former to the latter to be conducted or performed for him in a non-tortious manner. The same is true, of course, as we have above seen, with respect to the liability of a partnership for a tort of an individual partner.

There can be no doubt but that much of the confusion in the authorities and difficulty experienced by the courts in the application of the general principle of the law above considered has been occasioned by the ambiguity of the word “authority,” it being capable, in its narrowest sense, of a meaning having reference to the tortious act itself— which, as we have seen, is not its true meaning as sustained by the authorities, when it is used in connection with the subject we have under consideration. This in turn has sometimes occasioned the losing sight of the true test of the liability in question above adverted to.

Another fallacy, which has found some lodgment in some of the decisions and has been retained in the text of many of the text-writers on the subject, is that whether the master or principal has in fact received a benefit from the tortious act is a test of the liability of the latter for compensatory damages. It is true that if the benefit in such case is knowingly received by the master or principal, it is a circumstance material to be considered in some cases on the point of the liability of the latter (see Harvey Mfg. Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073, relied on by counsel for defendant) ; but it is material as evidence tending to show ratification, not as a test of original liability.

The reference in other cases to the benefit of the tortious act can be justified in principle only on the ground that this fact is a circumstance tending in part to show ratification. Castle v. Bullard, 23 How. 172, 16 L. Ed. 424.

But the mere receipt of a benefit is not a ratification of the tortious act from which the benefit was derived, since “ratification never takes place without knowledge.” Bates on Partnership, sec. 478. Moreover, ratification of a tortious act does not always result in liability therefor. “He that agreeth to a trespass after it is done is no trespasser, unless the trespass be done for his use or benefit, and thus his agreement subsequent amounteth to a commandment.” 4 Coke Inst. 317. See to same effect, Wilson v. Tumman, 6 M. & G. 236; Year Book H. 7, H. 4, fo. 34, pl. 1. The true question is, was the tortious act committed by the servant or agent in the course of his service or employment ? Mere ratification then, is not itself a test of liability of one for the tortious act of another, much less is the receipt of a benefit from the tortious act such test, which in itself does not extend beyond being a circumstance in evidence tending in part to show ratification. Ratification is material as bearing upon the measure of damages, as we shall see below; but is not a true test of original liability in cases such as these we are considering. The question still remains, was the tortious act committed by the servant or agent in the course of his service or employment? Was the service in which the tortious act was done incident to the employment? Which resolves itself into the same questions in another form — Was the person guilty of the tortious act engaged at the time of its commission in the discharge of the duties of a servant or agent of the master or principal sought to be held liable in damages therefor? Did the relationship of master and servant or principal and agent exist quoad the service in which the tortious act was done? (See opinion of this court in Atlantic Coast Line Railroad Co. v. Tredway’s Admr., 93 S. E. 560, 120 Va. 735, handed down at this term of court, on the subject of when this relationship exists in negligence cases.) If the act in question falls within this definition, the master or principal is liable in damages, regardless of whether the act was in fact beneficial to the latter or the contrary. White v. Sawyer, 16 Gray (Mass.) 586, a case of partnership; Aldrich v. Press Printing Co., 9 Minn. 133 (Gil. 123), 86 Am. Dec. 84, case of a corporation. As the learned author of Bates on Partnership, section 478, correctly says, on the subject of receipt of benefit being a ground of liability ex delicto: “ * * * this ground is not the true one.” If it were, the more wanton the act, although done by the servant or agent in the course of his employment, the less, likelihood there would be any liability on the part of his master or principal. The authorities negative this consideration as a ground for the exoneration of the master or principal from liability for the tortious acts of their servants or agents.

To conclude the consideration of the subject of benefit received as a ground of liability of one for the tortious act of another: In cases where the action is in assumpsit, to recover of the master, or principal, money of the plaintiff acquired by the former through the tortious act of his servant or agent, the true issue, indeed, is, was the benefit of thé tortious act in fact received by the master or principal (as in Durant v. Rogers, 87 Ill. 508, also Idem. 71 Ill. 122; and in Guillon v. Peterson, 89 Pa. 163). In such cases, however, “the innocent partners are not liable ex delicto, but the firm is chargeable for money had and received.” Bates on Partnership, sec. 478, p. 498.

Tested by the above conclusions, the tortious act complained of in the instant case, being done by one partner in the course of his conduct of the correspondence of the firm entrusted to him to conduct in a non-tortious manner, the service itself — the writing of the libelous letter to plaintiff with the purpose of obtaining from him the payment of the alleged debt due the partnership — was incident to the employment, i. e., within the ordinary course of the partnership business, within the scope of the authority of the acting partner, and, hence, the firm was liable for compensatory damages for the tortious manner in which the latter conducted such correspondence.

The instant case presents no difficulty on the question of whether the tortious act was committed in the ordinary course of the business of the principal — i. e., in the discharge of the duties of a servant or agent of the master or principal; i. e., in a service incident to the employment— in short, whether the relationship of master and servant, or of principal and agent, existed quoad the business in the performance of which the tortious act was committed. There are cases, however, where the border line between what should be considered the business of the master— what is embraced within “the ordinary course of business” of the master or principal — becomes very indistinct and difficult of ascertainment. Manifestly there may be cases where the individual action of the general agent or servant is so out of the ordinary course of the business of his principal or master that it is evident he acted individually, outside of the relationship of principal and agent, or of master and servant, that the act was not done in the name of the principal or master or for his use; and in such cases the act is regarded as that of the individual and not that of the principal or master. On such ground the decisions rest in the cases of Gilbert v. Emmons, 42 Ill. 143, 89 Am. Dec. 412; Petrie v. Lamont, 1 Car. & March, 57; Grund v. Van Vleck, 69 Ill. 479; Titcomb, &c. v. James, 57 Ill. App. 296; Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387 — cited and relied on by counsel for defendants. In principle, in such cases, the ratification of the tortious act by the master, or principal, would not have rendered the latter liable therefor. 4 Coke Inst. 317; Grund v. Van Vleck, supra; Wilson v. Tumman, supra; Year Book, 7 H., supra. The decisions of cases, on the one side or the other of the border line adverted to, are not all in accord; or reconcilable, indeed, on principle (see collation of some of such character of cases in Bates on Partnership, secs. 465, 466); but, as above stated, the principle involved is not left in doubt by the authorities and the application of it is without difficulty in the instant case.

Hence, as above stated, the court below committed no error in giving instruction No. 1 asked for by the plaintiff.

2. The court below correctly refused to give instruction No. 1, asked for by the defendants, because there was no evidence to support it, and it was contrary to all the evidence on the subject. The evidence for defendants themselves on this point was all to the effect that the tortious act of Jandorff was “within the scope of the partnership business,” as we have above seen.

3. The court below committed no error in refusing to give instruction No. 4, asked for by the defendants.

As stated by 8 R. C. L., sec. 142: “There is some conflict in the authorities as to when and how far a principal or master is liable for exemplary or punitive damages for the torts of his agent or servant. Some courts hold that the principal or master is never liable for exemplary damages under such circumstances, while others hold that he is liable where he has authorized or ratified the act of the agent or servant, but not otherwise. Still another line of authorities is to the effect that the principal or master is liable for such damages regardless of whether or not he has authorized or ratified the act of his servant or agent.”

The rule on this subject in Virginia has been firmly established, and is that the principal or master is liable when he has previously authorized' or subsequently ratified the tortious act of the agent or servant. N. & W. R. Co. v. Lipscomb, 90 Va. 137, 17 S. E. 809; 20 L. R. A. 817; Southern Ry. Co. v. Grubbs, 115 Va. 876, 80 S. E. 749. And the rule seems to be supported by the great weight of authority.

Regarding the evidence in the instant case, as we must regard it, the jury may have found, and hence we must find, as appears from the statement of facts above, that the innocent defendant partner subsequently ratified the tortious act of the othér defendant partner. Hence, the trial court correctly refused to give the instruction under consideration.

4. There was error in the action of the court below in giving instruction No. 2, as asked for by the plaintiff, but we must regard this as harmless error in the instant case.

As an abstract proposition, it was error to instruct the jury that, if they found the defendant liable for damages, they might award exemplary damages. As we have above noted, the rule in this State is that the principal or master is liable for compensatory damages only for the tortious act of his agent or servant, unless he previously authorized or subsequently ratified the tortious act. In the instant case, however, as we have also noted above, we must regard the tortious act in question as having been subsequently ratified by the innocent defendant partner, and hence it is evident that had the instruction under consideration contained the correct limitation, to the effect that the jury could not award exemplary damages against the firm unless they believed from the evidence that the tortious act of Jandorf was subsequently ratified by the other defendant partner, the same verdict might have been rendered. Hence, it does not affirmatively appear that the error in question was injurious, and under the rule established in Standard Paint Co. v. Vietor, 91 S. E. 752, 120 Va. 595, we must regard the error as harmless. Moreover, the error of the trial court in this particular was invited by instruction No. 5 asked for by defendant and given by the court, which was erroneous for lack of the same limitation above referred to. The case was tried in the court below on this point, as asked for by both parties, defendants as well as plaintiff, to the effect that the jury should go without any express limitation in the instructions such as we have under consideration ; and it is now too late for the defendants to avail themselves in an appellate court of such omission.

We come now to the consideration of the action of the trial court in—

Admitting certain testimony over the objection of the defendants.

This testimony appears from Bill of Exception No. 5, copied in the “Statement of the Case and Facts” given above.

The libel alleged in both counts of the declaration in the instant case was actionable per se. The plaintiff, therefore, was entitled to recover substantial, and even punitive damages, without any proof of particular instances of special damage. This is because the law presumes general damages where the libel is actionable per se. Newell on L. & S., p. 1043, sec. 1018, p. 1047, secs. 1020, 1024. The plaintiff accordingly introduced no proof whatever of any special damage. It was by the defendants that the testimony objected to was elicited by their question on cross-examination. If the defendants were not content to let the case stand upon the general damages presumed by law in such a case, but wished to attempt to rebut this presumption by asking the question as to what actual injury the plaintiff had in fact sustained by the libel, they had the right to do this, in diminution of damages. Having asked the question, they cannot sustain their objection to the answer, which was in direct response to the question as far as it went.

We have now only to dispose of the remaining question, whether there was error in the action of the court below m—

Refusing to set aside the verdict of the jury and grant the defendants a new trial.

The same reasons are urged upon this point by counsel for defendants as those considered above in connection with the assignments of error with respect to the other actions of the trial court excepted to. Hence, what has been above said disposes also of this question adversely to the defendants.

For the foregoing reasons, we find no error in the action of the trial court or in the judgment complained of, and such judgment will be affirmed. ^said disposes also of this question adversely to the defendants. For the foregoing reasons, we find no error in the action of the trial court,-of in the judgment complained of, Wid such judgment ¡AYÍ11 be affirmed.

Affirmed.