On Petition for Rehearing.
It is stated in petition for rehearing that briefs “were filed prior to the decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. But this decision certainly does not require that Federal court precedents should be ignored.”
In the Tompkins Case it is held [page 822]: “Except in matters governed by the Federal Constitution or by acts of Congress, the law to. be applied in any case is the law of the state. * * * There is no federal general common law.”
The data having been supplied by appellant’s agents from Denver, Colorado, it was in effect transmitted by auditor Hall from Omaha, Nebraska, to the Surety Company at Kansas City, Missouri. During the oral argument on the petition, it was conceded by both sides that under the weight of authority the law of Missouri governed, the law of Colorado being in effect the same.
The declaration in the pleading is that “subsequently and to-wit, on or about the month of March, A. D. 1934, said defendant maliciously, falsely, wilfully, and with reckless and wanton disregard of plaintiff’s rights and with no reasonable or probable cause to believe the same, notified * * * the National Surety Company a corporation, to the effect that said plaintiff had embezzled from said defendant while in the employ of said defendant as aforesaid, the sum of Twenty-six and 10/100 ($26.10) Dollars.”
Records and statements made and caused to be made by Gleason at Denver, Colorado, passenger agent for appellant, whose duty it was to make a daily check of Crane’s ticket sales, to examine and oversee his daily reports and to receipt for and to receive all monies payable to the company, who was the superior of A. R. Olson, defendant’s bookkeeper, and who during these dates assisted Gleason in the particulars complained of, and E. S. Haverly, the Superintendent of defendant, with headquarters at Denver, in charge of both Union Pacific Stages and the cut rate Coast-to-Coast Lines, both Haverly and Gleason occupying responsible executive positions, Gleason through his communications with Hall effected the filing of claims against the Surety Company under appellee’s bond, Hall, the auditor, testifying that the wire to him by Gleason signed with Haverly’s initials was “the only basis for filing the first claim.” With respect to other claims, Hall said he did not recall that he examined any of the records personally before he sent the letter to the Surety Company, but that he communicated with Gleason or Haverly before sending same.
Hall’s letter to Haverly states: “Each and every one of these matters were forwarded to Mr. Gleason who should be more familiar with actual conditions than we here in Omaha with respect to his personal contacts with Mr. Crane at the time he was endeavoring to get them straightened out.”
When Crane made his request for a correction as to the charges, Flail placed the matter squarely in the hands of Haverly, to act in the premises.
In Conrad v. Allis-Chalmers Mfg. Co., 228 Mo.App. 817, 73 S.W.2d 438, it was urged that there was no liability “as to the corporate defendant” as “such defendant neither knew of, authorized, or ratified the act of defendant Voorhees as its agent in writing” the letter. [Page 450.] The appellate court held against said contention as to such corporate defendant’s liability as “the act of the defendant was the act of the corporation,” the court saying: “The corporate defendant’s liability does not rest upon an express authorization of the particular act in question or upon immediate knowledge or ratification by it of such act, but upon the fact that the defendant Voorhees was acting for it in the conduct of its business within the authorized line of his employment. Under such circumstances, it not only became liable for defendant Voorhees’ act, but liable with Voorhees, *863and to the exact same, extent as Voorhees. Priest v. Central State Fire Ins. Co., 223 Mo.App. 122, 9 S.W.2d 543, loe. cit. 544; Connell v. A. C. L. Haase & Sons Fish Co., 302 Mo. 48, 257 S.W. 760; Haehl v. Wabash Railway Co., 119 Mo. 325, loe. cit. 343, 24 S.W. 737.”
To the same effect, see also Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332; Sinclair Refining Co. v. Fuller, 190 Ark. 426, 79 S.W.2d 736; Weber v. Butler, 81 Hun 244, 30 N.Y.S. 713; Morrison v. Press Publishing Co., 59 N.Y.Super.Ct. 216, 14 N.Y.S. 131; Scott v. Times-Mirror Co., 181 Cal. 345, 184 P. 672, 12 A.L.R. 1007; Brown v. Massachusetts Title Ins. Co., 151 Mass. 127, 23 N.E. 733; Post Pub. Co. v. Hallam, 6 Cir., 59 F. 530.
In Solow v. General Motors Truck Co., 2 Cir., 64 F.2d 105, the agent who was guilty of malice was held not to be acting within the scope of his authority.
In the instant case, Gleason had reason not only to know that the data that he furnished auditor Hall would be passed on to the Surety Company, but also in effect induced the data to be passed on.
The court instructed the jury that the burden rested upon the plaintiff (appellee). This court on appeal, where there is substantial evidence to sustain the issue may not weigh the evidence.
Appellant states that this court “appears to regard the testimony of Crane as truthfully establishing all the facts and disregards much of the other evidence which conclusively rebuts Crane’s statements.” The jurors evidently believed Crane under the controverted issues as submitted to them under instruction of trial court.
We adhere to our former opinion. The judgment of the District Court is affirmed.