is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged cannot be regarded as the act of the master. was suggested by Cline or Steele asking Johnson if, in making out the statement for appellant, he had charged him with "mulage," in reply to which Johnson said he had not, and then obtained from apIt does not appear from the evidence, how- pellant the statement and added to it the ever, that the alleged libel was committed word "Mulage" and figures "$1.50." Acin the manner alleged in the petition. It cording to all the evidence, this act of was admitted by appellant in giving his Johnson's raised a laugh among the pertestimony that the statement of his account sons present, in which appellant joined. with appellee when first handed him by the It is true that appellant claims he became bookkeeper, Johnson, did not contain the indignant on account of the addition to word "Mulage" or the figures "$1.50," but the statement of the word and figures comthat they were added thereto by Johnson plained of, but we think it manifest from after its delivery to appellant, and apparent the testimony of Johnson, Cline, and Steele from the testimony of Johnson, uncontra- that such indignation was not shown by dicted by appellant, and in part corroborated appellant at the time, and he did not deny by the witnesses Cline and Steele, that the ad- that he laughed with the others at what dition of the objectionable word and figures all evidently regarded as the joke perpeit being held that the instruction explained the meaning of the term "scope" as used in a preceding instruction, and that this ground was not covered by another instruction which was given by the court. -personal acts of employee. It has been held that a gas company is not liable for the act of its general manager in writing a personal letter, which he copied into the official copy book of the company, and which was used as the basis of a libelous publication by the newspaper to which it was sent, respecting the testimony of a former manager of the company before a committee of Congress as to the price of gas, the letter having been sent in response to a communication to the general manager requesting information, and there having been no specific authority given, and the act not being within his duty as general manager, and he having testified that he did not regard the correspondence as of an official nature, but that he answered the request for information as an act of courtesy. Washington Gaslight Co. v. Lansden, 172 U. S. 534, 43 L. ed. 543, 19 Sup. Ct. Rep. 296, reversing 9 App. D. C. 508. And it has been held that an express company is not liable for a libel where the son of its agent, who performed the latter's duties, seeing a complaint of a consignor concerning goods which the consignee had refused because of breakage, which had been answered by the agent, wrote a libelous letter to the consignor concerning the consignee, the libelous letter not being written in the performance of any duty which he was required or permitted to perform. Southern Exp. Co. v. Fitzner, 59 Miss. 581, 42 Am. Rep. 379. In Sun Life Assur. Co. v. Bailey, 101 Va. 443, 44 S. E. 692, in an action against a corporation for libel by its agent, it was held that an instruction requested by the defendant should have been given which stated that if the jury believed from the evidence that the duty of the author of the libelous letter, as an agent of the defendant, did not require or authorize him to write the letter, but that it was his own personal act, outside the scope of his duty to the defendant, and written because he felt angered and aggrieved at what he conceived to be the bad treatment of him by the plaintiff, they should find for the defendant, -for libelous protest by notary. A notary is not a mere agent or servant of a bank, but is a public officer, sworn to to which a draft was sent for collection is discharge his duties properly; and a bank not liable in an action for libel on the ground that the draft was protested by the notary of the bank without presentation notary was also an employee and agent of for payment, and this is true although the the bank. May v. Jones, 88 Ga. 308, 15 L.R.A. 637, 30 Am. St. Rep. 154, 14 S. E. 552. Liability of employers other than corporations. Employers other than corporations are held to be liable for libels published by their employees where the publication was expressly authorized, or was within the scope of the employee's authority. Thus, it has been held that a dealer in plumbers' supplies is liable for a libel contained in a letter written by his manager in the routine of the business to a plumbers' association, regarding the plaintiff's credit, although it was wilfully done, since a master is responsible for a wilful injury committed by his servant while engaged in the transaction of the master's business. Trapp v. Du Bois, 76 App. Div. 314, 78 N. Y. Supp. 505. In Pollasky v. Minchener, 81 Mich. 280, 9 L.R.A. 102, 21 Am. St. Rep. 516, 46 N. W. 5, it was held that the liability of the general manager of a commercial agency for libel should be submitted to the jury where the publication was made by a notification sheet sent to patrons of the agency by the general manager's chief clerk on information sent to the general manager, addressed to him in his name, without anything to indicate that it was intended for the agency, and the clerk, who was au trated by Johnson. It is further apparent an indecent one, which only the vulgar from the evidence that, of the persons mind would appreciate. Although appelpresent in the store, only Cline saw the lant, at the time of its perpetration, was word "Mulage" and figures "$1.50" after apparently amused by it, he did not willthey had been added to the statement by ingly participate in the joke, and it can Johnson. They were afterwards seen by readily be understood that a sober second two other persons, but it was because the thought enabled him to realize its sting and paper was shown them by appellant in the humiliation of feeling that would the effort to discount or sell it to them, naturally result to a victim of such obsuperinduced by his need of the money it scenity. If this were an action against showed him entitled to receive, which did Johnson for the libel complained of, we not become due until several days later. would be inclined to hold that he could not escape liability upon the ground that the libel was a joke. At most, evidence that this was so would be competent only in mitigation of damages; as it would tend to show the motive for the libel and the absence of actual malice. The circumstances attending the transaction in question clearly indicate that Johnson's motive in adding to the statement the word and figures complained of was to afford amusement to himself and the other persons present. The joke, however, was thorized to open his letters and prepare such notification sheets without consulting the manager, unless there was something exceptional in the communication, sent out the report without consulting the defendant, it being held that the principles of respondeat superior applied. In Harding v. Greening, 8 Taunt, 41, 1 J. B. Moore, 77, Holt, 531, it was held that there was no evidence either of command, authority, adoption, or recognition to go to the jury, and that a nonsuit was properly entered where it appeared that the defendant, a tradesman, was in the habit of employing his daughter to draw his bills and write his business letters; that a bill in the daughter's handwriting was sent to a person who employed the plaintiff to inspect the bill, which, after he had reduced it, was returned by the debtor to the defendant; that it was then returned, together with the libel upon the plaintiff, which was also in the daughter's handwriting; it being held that there was nothing to show that it was within the scope of her authority to write the libel, or that she had been given such authority by the defendant. It has been held that where authority is given to an agent to publish libelous words, and he causes a publication to be made which substantially corresponds with those words, the principal is liable. Dawson v. Holt, 11 Lea, 583, 47 Am. Rep. 312. But the principal is not liable where the libel authorized to be published was in substance that the plaintiff was a troublesome fellow to his neighbors, and had tried to hire a negro to swear falsely, and the publication made by the agent was that the plaintiff was a pest to the community, and that there was overwhelming evidence on file in the clerk's office clearly establishing his guilt of subornation of perjury, such publication not being within the authority conferred on the agent. Ibid. And in Russo v. Maresca, 72 Conn. 51, 43 Atl. 552, it was held that the president of a society was not liable for a libel published where he presided over a regular meeting at which it was voted to publish an answer to a certain newspaper article relating to the society, and at which a newspaper was designated in which the answer was to be published, and an appropriation made to pay for its insertion, and a member was selected to write it, but there was no contemplation that the answer should contain any libelous matter. In Wilson v. Noonan, 27 Wis. 598, it was held that one who wrote an article for publication in a newspaper published in a foreign language, and gave it to the proprietor of the paper to be translated, was responsible for a libelous article which was printed, although the translation was materially inaccurate, it being held that the maxim respondeat superior applied. In Parkes v. Prescott, L. R. 4 Exch. 169, it was held, Byles and Mellor, JJ., dissenting, that the case should have been submitted to the jury on the question of a request by the defendants that the proceedings should be published, and on the question whether the published reports contained a correct account of the proceedings as the defendants meant them to appear, where there was evidence that the libels complained of were reports in newspapers of proceedings at a meeting of the board of guardians of a parish in which a discussion took place respecting the plaintiff's conduct; that one of the defendants stated that he hoped the local press would take notice of the very scandalous case, and requested the chairman to give an outline of it; that this was done by members of the board and the facts were taken down by reporters; that the other defendant, who was chairman of the meeting, said that he was glad gentlemen of the press were present, and hoped they would take notice of the case, and that he hoped the matter would be given publicity, and the other defendant added, "And so do I," to the former's remark that he hoped the press would take notice of the matter. Montague Smith, J., said: "I agree with the learned counsel for the defendants that loose expressions of a mere wish or hope that proceedings should be published would not be sufficient to fix liability on the defendants in cases like the present. I think the words must be of The remaining question to be determined | except the figures "1.50," which, together is: Do the facts appearing in the record with the word "Mulage," was written with make appellee responsible for the libel com- a pencil. It will further be observed that plained of? The paper on which it was the figures "1.50" were not included in the written is a printed form appellee requires advances charged to appellant in the stateits bookkeeper to use in furnishing its em- ment, nor was the $1.50 actually charged ployees statements of its accounts with to appellant or deducted from what was them. The statement furnished appellant due him from appellee. The form of stateby Johnson, the bookkeeper, was as follows: ment used in furnishing appellant his account contains no item or heading for such a charge as mulage, and it is admitted by appellant that no such charge as mulage is required by appellee to be made against its employees. Mr. Did Case Cars 37 @ Hours Tons Yards No. 4. Total Earnings Advances Store Rent Doctor Fuel Board Smithing Insurance Co. Deductions Claims Mulage Feb. 16, 1913. 7.85 .50 .50 1.50 22.20 We think it patent from the evidence that the bookkeeper, Johnson, in writing the word and figures complained of on the statement furnished appellant, was not acting in the performance of any duty required of him by appellee or in the execution of any authority, express or implied, given him by it; nor was it an act within the scope of his employment or in the furtherance of his employer's business. It was merely an act done to accomplish a purpose of his own, wholly foreign to any duty he owed his employer, and entirely beyond the apparent scope of his employment by the latter. Nor does it appear from the evidence that his act in writing on the statement the word and figures complained of was at any time approved or ratified by appellee. Many cases have arisen in which the master has been held responsible for the torts of the servant, 12.15 whether the tort consisted in the infliction of physical injury to the person aggrieved or injury to his character, but in all such cases liability is fastened upon the master because the servant is acting for the master. This doctrine is well stated in Sullivan v. Louisville & N. R. Co. 115 Ky. 447, 103 Am. St. Rep. 330, 74 S. W. 171, as follows: "The reason the master is liable for the act of his servant at all is because the servant is acting in that matter in the master's stead and for him. Obviously, if the servant is not acting for the master, he cannot be said to be his representative in that act. So, if the servant is charged by the master with the authority to act in his stead in a given matter, the servant's action or his failure to act, as the case may be, is imputed to the master as if it were his own. This general doctrine must be too well known to require now the citation of aulibelous matter so published. Whether the libelous matter published is in pursuance of, and in accordance with, the request, or a departure from it, and so unauthorized, would be a question to be considered on the circumstances of the particular case." J. T. W. It appears from the foregoing statement that appellee's indebtedness to appellant was $22.20, and that there was due it from appellant for advances, as shown opposite the proper headings, various items aggregating $12.15, which, deducted from the $22.20 of its indebtedness to appellant, left due him $10.05, as shown on the statement. According to the evidence, after this statement had been completed, Johnson obtained it from appellant and wrote thereon, opposite the word "Claims," the word "Mulage," and to the right of that word the figures "1.50." At the time this was done he ran his pencil through the word "Claims." All the figures appearing upon the statement were entered with a pen and ink, such a kind, and used in such a manner, as to satisfy the jury that they amount to, and were in fact, a request to publish. If the words do amount to such a request, and the publication be made in pursuance of it by the persons to whom it was addressed, then it seems to me the persons making such request would be responsible for the has no thority to support it. But where the serv-1 of the publication of the libel, its failure ant steps aside from his employment and to repudiate it before suit operated as a assumes to act, and does act, solely on his ratification and approval of the libel. In own account in a matter which the master the opinion it is said: "A corporation is more connection with than if he liable in damages for the publication of a were the most complete stranger, it would libel as it is for other torts. To establish not be logical or fair to make the master its liability the publication must be shown vicariously suffer for it; for in doing that to have been made by its authority, or to act the servant, so-called, was absolutely have been ratified by it, or to have been his own master. In determining made by one of its servants or agents in whether a particular act is done in the the scope of his employment and in the course of the servant's employment, it is course of the business in which he was emproper to inquire whether the servant was ployed." at the time engaged in serving his master. In Duquesne Distributing Co. v. GreenIf the act be done while the servant is at baum, 135 Ky. 183, 24 L.R.A. (N.S.) 955, liberty from the service, and pursuing his 121 S. W. 1026, 21 Ann. Cas. 481, which own ends exclusively, the master is not re- was an action for slander, it was held that sponsible. If the servant was, at the time | a partnership or corporation is not liable the injury was inflicted, acting for himself for slander by its servant, unless the acand as his own master pro tempore, the tionable words were spoken by its express master is not liable. If the servant step consent, direction, or authority, or were aside from his master's business, for how-ratified or approved by it. In a case for ever short a time, to do an act not connected with his business, the relation of master and servant is for the time suspended." Cincinnati, N. O. & T. P. R. Co. v. Rue, 142 Ky. 694, 34 L.R.A. (N.S.) 200, 134 S. W. 1144. In Newell on Slander & Libel, p. 373, it is said: "If a partner, in conducting the business of a firm, causes a libel to be published, the firm will be liable as well as the individual partner. So, if an agent or servant of the firm defames anyone by the express direction of the firm, or in accordance with the general orders given by the firm for the conduct of their business. To hold either of the members of a partner ship, it is not necessary that the partner should publish the libel himself. It is sufficient if he authorized, incited, or encouraged any other person to do it, or if, having authority to forbid it, he permitted it, the act was his." Burgess v. Patterson, 139 Ky. 547, 106 S. W. 837. In Pennsylvania Iron Works Co. v. Henry Vogt Mach. Co. 139 Ky. 497, 8 L.R.A. (N.S.) 1023, 139 Am. St. Rep. 504, 96 S. W. 551, it was held that one corporation may sue another for libel on it, as distinct from a libel on its individual members. In that case the plaintiff and defendant were rival ice machine manufacturers, both endeavor ing to secure a particular contract, and defendant's agent for this purpose wrote a letter to the proposed purchaser, stating that plaintiff was a secondhand dealer, that it put in a class of inferior work, was a scab establishment, and did not have a mechanic in its employ. It was held that such a writing was libelous per se, and that the corporation whose agent wrote the letter was liable in damages for the libel it contained, because, after obtaining knowledge libel by the servant of a corporation, however, the question of the latter's liability will not turn upon whether it expressly consented to, directed, or authorized the libel. It will be responsible for the libel if it was published by the servant in execution of the authority, express or implied, given by the corporation, or in the performance of the service for which the servant was engaged, or the act was one within the apparent scope of his employment. Measured by the above test, there is no cause for holding that appellee is responsible for the libel complained of in this case; hence the action of the Circuit Court in peremptorily instructing the jury to find for appellee was not error. Judgment affirmed. dients cannot be defeated because it was not | ingredients is the difference between the suitable to the purpose for which it was sold. value of the article delivered and what it would have been worth had it been as represented. effect of fertilizers breach Evidence of warranty. 2. Upon the question of breach of warranty that fertilizer contains certain ingredients in certain proportions in a contract which provided that the vendor should not be liable for results, evidence of the effect of the fertilizer upon crops is admissible in connection with proof of the kind of soil, manner of cultivation, accidents of season and other pertinent facts to prove that it did not contain the ingredients stated or in A the proportion specified. (March 24, 1915.) PPEAL by plaintiff from a judgment of the Superior Court for Franklin County in defendant's favor in an action brought to recover the purchase price of fertilizers sold by plaintiff to defendant under a warranty as to ingredients. New trial. note to Leonard Seed Co. v. Crary Canning | good results under similar circumstances, Co. 37 L.R.A. (N.S.) 79. It will be noticed that this note lies in somewhat narrow compass, as the warranty is simply of ingredients and not of excellence or of results. Generally speaking, the result of the use of a thing is evidence of the nature of the thing. Whether the events following the use are due to the use, and so evidence of the nature of the thing used, depends on circumstances. Positive as distinguished from negative events following the use of a thing perhaps point more directly to its nature, as violent illness immediately after eating or drinking, with symptoms characteristic of the use of a certain poison; so the presence in a crop of a great deal of a certain weed may suggest that the seed used contained much of that weed. But if there seems more ground for hesitation in reasoning from "negative results" or lack of results following the use of a certain thing, this kind of deduction is constantly employed by all of us every day, as for instance in concluding that there has been an omission to put sugar in our coffee. The matter becomes, therefore, one depending upon what is fair and reasonable in the particular class of cases; but it is essential that the limited scope of the evidence be emphasized in the instructions to the jury. It is interesting in this connection to refer to the opinion in Knowles v. State, 80 Ala. 9, where the court in holding that whether a liquor was intoxicating or not might be shown from its effect on persons using it said: "The most available mode of testing the nature and properties of a fluid or drug, next to that of chemical analysis, is by its effects on the human system. That a liquor when taken in certain quantities intoxicated or failed to intoxicate the person taking it is as competent to prove or disprove its intoxicating qualities as it would be to prove the poisonous nature of a drug by the effect following its administration." provided the matter is properly limited in instructions to the jury. In Georgia it is held that the result upon the crop cannot be shown unless there is other evidence of the ingredients of the fertilizer (Hamlin v. Rogers, 78 Ga. 631, 3 S. E. 259); but that in such case it may be shown (De Loach v. Hardee's Son & Co. 64 Ga. 94; Jones v. Cordele Guano Co. 94 Ga. 14, 20 S. E. 265). In Hamlin v. Rogers, supra, cited in the principal case, the court approved the rejection, under a similar contract, of evidence of failure to benefit the defendant's crops although the crops were properly cultivated, the soil suitable and the seasons propitious, and the plaintiff had testified that if the fertilizer was "as represented by the analysis on the sacks, it would have benefited the crops, with good seasons." The court said: "The evidence offered and rejected would not per se have shown that the fertilizer was deficient as to any of such ingredients; without being offered in aid of other testimony to establish this fact, it would be immaterial. At best, it is only adminicular in its character. Where, for instance, another analysis is given or offered in evidence to show that the fertilizer does not come up to the standard laid down by the state chemist, those facts may be used in aid of such other analysis; but here there was nothing which the evidence offered could sustain. This is the extent to which former decisions of this court have gone." In Scott v. McDonald, 83 Ga. 28, 9 S. E. 770, where it does not appear that there was any particular form of warranty, the court, in holding that the defendant's evidence was not sufficient where the plaintiff showed that some of the same lot of guano had benefited his crops and the defendant showed its lack of benefit to his crops, said: "The law does not require the seller to guarantee its effects upon crops. It only requires him It seems a sound doctrine which is sus- to warrant that it contains such a per cent tained in the principal case, that failure of of certain ingredients. The purchaser must results in the use of a fertilizer is some determine for himself whether those inevidence that the fertilizer did not conform gredients will benefit his crops. . . It to a standard which generally produced' is necessary for him to go further than |