Rose v. Imperial Engine Co.

That the letter, for the publication of which the jury have awarded plaintiff the sum of $1,200 damages, is libelous per se, unless it is to be regarded as a privileged communication, is apparent. That the communication is not as matter of law privileged was determined on a prior appeal of this court. 110 App. Div. 437 , 96 N. Y. Supp. 808 . The jury has found as matter of fact that it was not privileged, and we cannot say that this finding was against the weight of evidence.

Counsel for both parties seem to agree that the evidence appearing in the present record does not materially differ from that presented in the record before the court on the prior appeal, except in regard to what was done by defendant’s foreman, Johnson, by way of making inquiries of plaintiff’s fellow workmen before he reported to Hollister (who wrote the letter complained of) that the tools, which the letter charged plaintiff with stealing, had been taken by plaintiff. This additional evidence is to some extent contradictory of evidence given by the same witnesses on the first trial; and apparently was. not considered, either by the jury or the trial court, as entitled to much weight, with which apparent conclusion we entirely agree.

This leaves for consideration only appellant’s claim that defendant was in no event liable for punitive damages, and that the instruction of the court in reference thereto was error. The charge of the court as to the degree of care which the agent should have used in verifying the facts, upon which he assumed to make the libelous statements contained in the letter, was in the exact language requested by defendant’s counsel. The point we are now considering seems, therefore, to narrow to a question as to the extent of defendant’s responsibility for the acts of Hollister, its agent. In other words, were they the acts of an agent simply,, or were they in a broader sense the acts of the defendant as an individual entity, or legal person, for which defendant was liable to the same extent as it would have been if Hollister had been himself the corporation? For the tortious acts of a mere servant or subagent of the principal done or committed in the course of his employment, even if wanton or malicious, the principal is, of course, liable to respond in damages, which will fully-compensate

“The president and general manager, or in his absence, the vice president in his place, actually wielding the whole executive power of the corporation, may well be treated as so far representing the corporation and identified with it that any wanton, malicious, or oppressive intent of his in doing wrongful acts in behalf of the corporation to the injury of others may be treated as the intent of the corporation itself.”

The evidence does not disclose the name or title by which Hollister’s position or duties in defendant’s service were designated; but it seems that he at least had the general management and exclusive control for the corporation of all that part, or department, of its business, in the management of which and as a part of which management, direction, and control this letter in question was written in the name of, and as a letter authorized by, the corporation itself. If defendant had asked to go to the jury for their determination as a question of fact whether or not Hollister did occupy that representative relation to defendant, it is possible that it would have been entitled to' have that matter thus determined. But no such request was made; and we cannot say that the evidence on that point is, as matter of law, insufficient to sustain a verdict in which punitive damages were, as we assume, included.

Judgment and order affirmed, with costs. All concur, except WILLIAMS and KRUSE, JJ., who dissent.