Southern Express Co. v. Fitzner

delivered the opinion of the coürt.

The verdict as against the appellant, E. B. Perkins, is correct, and there is no error of law appearing in the record of which he can complain.

Conceding that E. B. Perkins was the agent of the express company at Brookhaven, at the time when the libellous letter was written by him, and taking the testimony as to his duty and authority to act for the company in its most favorable phase for the appellee, no facts were shown, from which the jury could infer express or implied authority on his part to act for the company in the business. So far as is shown by the testimony, he had no authority from the company to write any communications, except in those cases in which application was made by the patrons of the company to the office at Brook-haven for information touching the business at that office, but there was no duty resting upon him to reply to letters addressed to his superior officers or to agents at other places; in so doing he was a mere volunteer, though he professed to write for and in the name of the company. The facts show that no application was made by the tea company to Perkins at Brookhaven, for information touching the matter complained of by Fitzner. If inquiry had thus been made, it would have been within the scope of his authority to reply, and for a libel contained in a reply so made, it might well have been argued that the company would have been liable, because it would have been published by Perkins in the performance of a duty enjoined upon him by his principal, or which he had authority to perform. An act done at the office where the business of the company is conducted, and in its name, and by its servants professing to act for it, does not necessarily bind the corporation. The foundation of its liability must arise from the fact that it conferred *585authority upon the person to do the act, and while all these circumstances would be valuable as evidence of the delegation of power, and in some cases would be conclusive of it, at last the inquiry is narrowed to the question, whether or not the act done was the act of the corporation performed by its agent. Applying this test to the facts of this case, it is apparent that no liability is fixed on the corporation; for the libellous letter was written, not in the performance of any duty which he was required or permitted to perform. It was his own independent wrong, committed in the performance of no duty or service for the company, and he alone is liable for its consequences.

Affirmed as to Perhins and as to the Express Company reversed.