§ 941. Liability for torts generally.—Although a corporation cannot commit a crime in its political capacity, yet the intellectual agency of natural persons by which it is governed may cause it to depart so far from the purposes of its establishment as to commit, through its servants, trespasses and other torts; and redress is allowed to be had against it for reparation by way of damages ex delicto as well as ex contractu.1

§ 942. Liability for libel.-Whether corporations are liable in an action for damages for the publication of a libel by its directors and officers, was long a question giving rise to forensic contests and judicial disagreements. But the drift of recent decisions supports the view that they are liable, like natural persons, to the same extent and for the same reasons only. The disputed points seem to have been the difficulty of attributing to a soulless, emotionless entity the quality of malice necessary to be proven in libel and other injuries

1 A railroad company was held liable to an action for malicious prosecution. Though apparently beyond any possible objects for which such a corporation may be formed, yet, as was truly said in Ricord v. Cent. Pac. R. R. Co., 15 Nev. 167, by BEATTY J., in delivering the opinion of the court, "It is the object of such corporations to acquire property, and it is their privilege to protect it by every lawful means. It is not only a lawful, but a perfectly legitimate and even a commendable means of protecting private property, to institute criminal proceedings against those who infringe the right by criminal practices. And this is even more emphatically true of corporations than of natural persons.

Their property is so vast, and their business so extended and complicated; they are so constantly and in so many directions exposed to the danger of loss by theft, robbery, and embezzlement, that they are compelled, by the same policy that induces penal legislation on the part of the state, to let it be known that they will prosecute vigorously and systematically all criminal acts by which they are directly injured. That they act in conformity with this policy, is notorious. They have not only their corps of legal advisers and their local attorneys, but they keep a force of detectives continually employed in ferreting out depredators upon their rights, and assisting the public authorities in bringing them to justice." In another action for damages for malicious prosecution, it was held proper to submit the question to the jury whether the attorney whose duty it was to propose cases for trial had authority to institute a prosecution for perjury alleged to have been committed in any of the company's litigation. Gulf C. G. F. Co. v. James, 73 Tex. 12.

to character and the supposed injustice of compelling the stockholders and members to respond in damages for acts the doing of which they never authorized and never contemplated when they entered into relations with each other and with the corporation. But the great and ever increasing number of corporations assuming all the functions of individuals has created a tendency strongly manifested in the modern decisions to assimilate, so far as possible, the rights and duties of corporations to those of natural persons.1

The first objection was answered by the court in an English case in these words: "This allegation may be proved by showing that the publication of a libel took place by order of the defendant and was, therefore, wrongful, although the defendant had no ill will to the plaintiffs and did not intend to injure them." 2

This is equivalent to saying that in such cases malice in its legal sense only-a wrongful act done intentionally without just cause or excuse-need be proven.

In Maynard v. Fireman's Fund Ins. Co., the action was for libelous words published of and concerning plaintiff. One of the reasons on which the Supreme Court of California based its decision in favor of defendants' liability was that advanced in an early Connecticut case, to wit, that the directors who published the libel did not exercise merely delegated authority; but in the sense that servants and attorneys exercising it constitute "the mind and soul of the body politic

1 Como v. Port Henry Iron Co., 12 Barb. 28; Van Acerman v. Bleitein, 102 N. Y. 355; 7 N. E. 537, action against a joint-stock publishing company. Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568; 11 S. W. 555. The refusal of the general passenger agent of the company to interfere with the publication, a month before its discontinuance, is evidence, in connection with the other evidence, of a ratification and of a publication by the company from that time. Fogg v. Boston & L. R. Co., 148 Mass. 513; 20 N. E. 109.

2 Whitfield v. Southeastern Railway Co., 96 E. C. L. R. 115. 3 34 Cal. 48.

and corporate constituting its thinking and acting capacity." But it still must be remembered that the directors are not the corporation itself but only its representatives, however much they may differ from other representatives. And as for their being the mind and soul of the corporation it is difficult to see how one can be made by its representative to do that which it never willed and express that which it never conceived.

The rule itself is doubtless just and salutary when properly applied, but a very poor reason is urged in its support in the Connecticut case and adopted as one ground of the decision in the above case.

From all these we may gather the following result: that the principal is liable for all the acts, negligent omissions, frauds and torts which the agent is enabled to be guilty of by means, in whole or in part, of the authority, whether actual or ostensible, with which the principal has clothed him.1

§ 943. Character of corporation sometimes important.It will be observed that the reason stated in the case above noticed is that on which is based the liability of principals in general; but on applying the principle to the facts in that case it is seen that it does not support the decision. Recurring to the general rule that "the principal is liable only for those torts which the agent is in whole or in part enabled to commit and does commit by means of the authority, whether actual or ostensible, with which his principal has clothed him,”2 we see at once that an insurance company does not give its officers and agents even the semblance of authority to adopt the publication of any matter concerning the character of third parties as a means of prosecuting its

See Goodspeed v. The East Hadden Bank, 22 Conn. 580, and Daily Post Co. v. McArthur, 7 Am. Law N. S. 462.

2 Supra, § 937.

business. It is probably otherwise with such companies with respect to carrying on public prosecution, often necessary to expose and punish fraud on the corporation and prevent future attempts of the kind. And if an insurance company should be sued for malicious prosecution under such circumstances the same reasoning would apply as in the Nevada Railroad case.1

Again, if a corporation is engaged in the publication of a newspaper, its agents are given a character by their principal in which they are extremely liable, even without actual malice, to commit a tort of another kind, and to hold the corporation liable in case they publish a libel is only to bring them within the rule as applied to natural principals.2 Nor is the difficulty of proving the guilt of the actual perpetrators any reason for tak ing corporations out of the general rule. It is no more difficult to find and implicate the actual makers and publishers of a libel by a trading corporation, or the actual prosecutors of a malicious and groundless accusation by a corporation having no property needing protec tion, than if these things were done by mutual agreement and counsel among the same number of persons not being agents or directors of a corporation. The solvency or insolvency of parties never affects the question of primary liability for a tort.

A trading corporation often receives valuable personal property for sale or safekeeping, and is clearly liable to the consignor in case of conversion or larceny of such goods by its agents. So is a railroad corporation liable

1 Ricord v. Cent. Pac. R. R. Co., 15 Nev. 167; supra, § 941.

2 In an action against a newspaper for libel, held not error to charge the jury that the mere fact of defendant being an officer of the company publishing the paper did not make him liable for the publication complained of; but if he was engaged in the general management of the paper, he would be liable, if the publication was unjustifiable. Nevin v. Spieckmann (Pa.), 4 A. 497.

in trespass or case if its agents injure the property or person of a third party in operating its line.1

But outside the scope of his employment the acts of an agent not connected with the execution of the service for which he was engaged cannot be imputed to his principal.2

1 For an injury done by the wilful act of the captain in charge of defendant's boat it was held that the corporation was not liable, although the act was authorized and approved by its president and general agent. Richmond Turnpike Co. v. Vanderbilt, 1 Hill, 480; Comst. 479; Thompson v. Sixpenny Savings Bank, 5 Bosw. 293. In a Wisconsin case it was held that a railroad company was liable for compensatory damages for an indecent assault upon a female passenger in one of the trains. Cracker v. Chicago, etc., R. R. Co., 36 Wis. 668. On the question of liability, RYAN, C. J., said: "We cannot help thinking that there had been some useless subtlety in the books in the application of the rule respondeat superior, and some unnecessary confusion in the liability of principals for wilful and malicious acts of agents. This has probably arisen from too broad an application of the dictum of Lord Holt, that "no master is chargeable with the acts of his servant but when he acts in the execution of the authority given to him, and the act of his servant is the act of the master. Citing Middleton v. Fowler, 1 Salk. 282. For this would seem to go to excuse the master for the negligence as well as for the malice of his servant. One employing another on good faith to do his lawful work, would be as little likely to authorize negligence as malice; and either would then be equally dehors the employment. Strictly, the act of the servant would not, in either case, be the act of the master. . . . In spite of all the learned subtleties of so many cases, the true distinction ought to rest, it appears to us, on the condition whether or not the act of the servant be in the course of his employment, as is virtually recognized in Ellis v. Turner, S Tenn. 531. But we need not pursue the subject. For, however that may be generally, there can be no doubt of it in those employments in which the agent performs a duty of the principal to third persons, as between such third persons and the principal; because the principal is responsible for the duty, and if he delegate it to an agent, and the agent fail to perform it, it is immaterial whether the failure be accidental or wilful, in the negligence or in the malice of the agent. The contract of the principal is equally broken in the negligent disregard, or in the malicious violation, of the duty by the agent. It would be cheap and superficial morality to allow that one owing a duty to a third is without responsibility for the malicious conduct of the substitute in performance of the duty. If one owe bread to another and appoint an agent to furnish it, and the agent of malice furnish a stone instead, the principal is responsible for the stone and its consequences. In such cases, malice is negligence. Courts are generally inclined to this view, and this court long since affirmed it."

2 If a railroad company employ an agent to sell tickets and furnish him with a hatchet for an useful purpose connected with the business and the agent, in the course of an altercation strike a passenger, the company is not liable for the injury. In the first place, breaking skulls was not the business for which the agent was employed, nor is it in any way connected with the business; and in