Appellant brought this action in the circuit court of Hinds county against appellee to recover damages for an alleged slander of him by appellee. Appellee's demurrer to the declaration was sustained, and appellant declining to plead further, final judgment was rendered dismissing the cause. From that judgment, appellant prosecutes this appeal.
Appellant was president of the North American Mutual Insurance Company, which company was engaged in the writing of health and accident insurance. Appellee was engaged in the same character of business. W.E. Palmer was appellee's agent to solicit insurance and collect premiums. The declaration charges the alleged defamation in this language: "That on or about the said 8th day of July, 1935, the defendant, through its duly authorized agent Palmer, went to the home of Lottie Robinson, and others in the City of Canton, for the purpose of soliciting of and from the said Lottie Robinson, and others, an application, or applications, for life and health insurance in its own said company and for the purpose of collecting premiums. That at the said time and place the said agent Palmer, then and there acting for and on behalf of said defendant in the course of his employment and in the furtherance of the business of the said defendant and while actively soliciting applications for policies for and on behalf of said defendant, saw a policy *Page 826 which had been theretofore written by the North American Mutual Insurance Company, the mere sight of which provoked and aroused the said agent Palmer, and without any reason, excuse or justification the said agent then and there acting for his said master, and in the direct line of his employment, and in the presence and hearing of the said Lottie Robinson and various and sundry persons without any justification whatsoever, did falsely, maliciously, carelessly, and willfully speak, publish and declare, in the presence and hearing of various and sundry persons then and there present, the following wicked, infamous, false, and defamatory slander of and concerning the plaintiff, to-wit: That said policy, meaning the policy of the said North American Mutual Insurance Company, was no good; that said company was no good, and that the president of said company, meaning the plaintiff, was put in jail for doing some crooked work while working for another company and that as soon as he, meaning the plaintiff, got out of jail, he, meaning the plaintiff, organized the said North American Mutual Insurance Company, and that he, the said plaintiff, had beat an old negro out of his money, and would beat the policy holders of said North American Mutual Insurance Company of Jackson, Mississippi, out of money, meaning thereby to charge, and did in fact charge and convey the impression that the plaintiff, as a representative of an Insurance Company, had beaten people out of money for which he had been sent to jail, and maliciously intending to convey the impression that the said plaintiff in his said employment had committed a crime against the laws of the state."
The demurrer was sustained upon the ground that Palmer, in uttering the language set out in the declaration, was acting beyond the scope of his authority, and therefore did not bind the appellant, his principal. In Loper v. Yazoo M.V.R. Co.,166 Miss. 79, 145 So. 743, *Page 827 745, the court said: "The phrase `scope of the employment,' adopted by the courts for the purpose of determining a master's liability for the acts of his servants, has `no fixed legal or technical meaning;' . . and `the ultimate question is whether it is just that the loss resulting from the servant's acts should be considered one of the normal risks of the business in which the servant is employed which that business should bear,'" adopting A.L.I., Restatement, Agency, sec. 229. The court said further in that case: "The matters of fact usually taken into consideration in answering this question are set forth in section 454, A.L.I. Rest., supra, one of which is `whether the master had reason to suspect that such will be done.'"
In Davis v. Price, 133 Miss. 236, 97 So. 557, the court quoted with approval from 6 LaBatt's Master and Servant (2 Ed.), p. 6704, as follows: "A master clearly cannot be held responsible for a tort committed in furtherance of his business, unless it is shown to have also been committed in the course of the appointed duties of the tort-feasor."
Was Palmer's tort one of the normal risks of appellee's business? Putting it differently, should appellee have reasonably anticipated it as a probable occurrence? We think this question must be answered in the negative. Suppose Palmer had committed an assault and battery upon appellant with the view of getting rid of a competitor, or, for the same reason, had embodied the defamatory language in writing and published it, which would have been a crime, we think it clear that he would have been acting beyond the scope of his authority. We are unable to see any difference in principle in an attempt to destroy a competitor in that manner and an attempt to destroy one as Palmer did.
Craft v. Magnolia Stores Co., 161 Miss. 756, 138 So. 405; Houston v. Oppenheim, 166 Miss. 619, 145 So. 339, *Page 828 and Southern Express Co. v. Fitzner, 59 Miss. 581, 42 Am. Rep. 379, although not in point upon their facts, support the principle upon which this case is decided.
Hines v. Shumaker, 97 Miss. 669, 52 So. 705, does not support appellant's contention. In that case the Lamar Life Insurance Company, acting through its superintendent of agencies, wrote a letter charging Shumaker, the state representative of another insurance company, of being generally dishonest, lacking in brains, undiplomatic, and a "mean knocker." The superintendent had been informed that Shumaker was making defamatory statements as to the Lamar Life Insurance Company. The court held the letter libelous per se. The superintendent had general supervision over all the agents of his company; it was his duty to instruct and control the manner in which they should perform their duties, including the manner in which they should treat their competitors. The court held that the superintendent was acting within the scope of his authority and bound his principal.
We think the difference between that case and the present case is that the action of the superintendent there naturally grew out of the authority conferred upon him by his principal, although not expressly authorized. The principal could have reasonably anticipated the probability of such action, therefore it was one of the normal risks of the business.
Affirmed.