Opinion
No. 29065.
January 19, 1931.
1. ATTORNEY AND CLIENT.
Authority of attorney employed to prosecute or defend litigation embraces all matters of procedure, and right to act relative thereto is absolute.
2. ATTORNEY AND CLIENT.
Acts of attorney outside due and orderly prosecution or defense of litigation, for which he was employed, to bind principal must be shown to be within scope of authority.
3. ATTORNEY AND CLIENT. Attorney's procuring joinder of another creditor in proposed bankruptcy proceeding which attorney was authorized to institute held beyond scope of authority, and therefore client was not liable for attorney's alleged libelous statements to such creditor.
Attorney was authorized to institute bankruptcy proceedings. To obtain other claims against same debtor, necessary for support of petition in bankruptcy, attorney, without knowledge or consent of his employer, wrote letter to another creditor asking it to join in bankruptcy petition, in which attorney made alleged libelous statements.
APPEAL from chancery court of Sunflower county. HON. J.L. WILLIAMS, Chancellor.
Percy Bell, of Greenville, and Willis Bacon, of Akron, Ohio, for appellant.
Code 1906, section 10, by which certain words are made actionable has no application in a suit to hold a principal liable for words spoken by an agent unless possibly such words are spoken at the command of the principal.
Dixie Fire Ins. Co. v. Betty, 101 Miss. 880, 56 So. 705.
In application of the general rules governing the liability of a principal or master for torts committed by his agent or servant, it is generally held that a principal, master, or employer may be held liable in damages for the publication of a defamation by his agent or servant, where the latter in publishing the defamatory matter was carrying out express orders, or acting in pursuance of express authority or where the libelous publication has been ratified and adopted by the principal or master. But otherwise there is no liability on the part of the principal or master.
37 C.J., page 13.
A client is not responsible for any illegal action taken or directed by his attorney which the client did not advise, consent to, or participate in, and which was not justified by any authority that he had given.
6 C.J., page 671.
Frank E. Everett, of Indianola, for appellee.
A corporation is liable for slander uttered by its agent acting within the scope of his employment and in the performance of his duties touching the matter in question.
Rivers v. Y. M.V.R. Co., 90 Miss. 196; 17 R.C.L. 382; Railroad Company v. Brooks, 69 Miss. 168; Richberg v. Express Co., 73 Miss. 161; Walters v. Stonewall Cotton Mills, 101 So. 495.
Argued orally by Percy Bell, for appellant, and by J.M. Forman, for appellee.
This is an attachment in chancery under the statute now appearing as section 173 of the Code of 1930. The cause of action sued on is an alleged libel alleged to have been published of and concerning the appellee by an attorney at law residing in Akron, Ohio, the domicile of the appellant. It appears from the pleadings and the evidence that the Holland Motor Company in which the appellee was interested was indebted to the appellant. It was advised by an attorney at law, with whom it had placed its claim against the appellee for collection, that a proceeding in bankruptcy would lie therefor, to which the appellant agreed and authorized the attorney to institute such a proceeding. In order to obtain the two other claims against the Holland Motor Company, necessary for the support of a petition in bankruptcy, this attorney without the knowledge or the consent of the appellant, wrote the Indianola Lumber Company, another creditor of the Holland Motor Company, stating that he represented the appellant who desired to institute bankruptcy proceedings against the Holland Motor Company and requested it (the Indianola Lumber Company) to send him a statement of their claim against the Holland Motor Company and authorize him to include it in the bankruptcy proceeding. This letter contained several references to the appellee which he claims are libelous per se and in excess of any privilege relating to it. The court below so held and awarded the appellee damages.
We are relieved from deciding all but one of the several questions presented for decision, for the reason that the soliciting of other creditors of the Holland Motor Company to join with the appellant in the contemplated bankruptcy proceeding was not within the scope of the employment by the appellant of the attorney who wrote the letter to the Indianola Lumber Company here complained of. The authority of an attorney employed to prosecute or defend a litigation embraces all matters of procedure, and his right to act relative thereto is absolute. Scarborough v. Naval Stores Company, 95 Miss. 497, 51 So. 274, 52 So. 143. But "the assumption by an attorney at law, even if generally retained, of authority to act for his principal outside of the due and orderly prosecution, defense, or conduct of litigation or proceedings in courts does not create any presumption of actual authority so to act, but, as in the case of other agents, his acts must be shown to be within the scope of his authority, else they will not bind his principal." Horseshoe Mining Co. v. Miners' Ore Sampling Co. (C.C.A.), 147 Fed. 517, 518; Stone v. Bank of Commerce, 174 U.S. 412, 421, 19 S.Ct. 747, 43 L.Ed. 1028; 6 C.J. 641; 2 R.C.L. 976; 1 Thornton on Attorneys at Law, section 230. (What authority an attorney has to act for his client after the litigation in which he was employed has terminated is, of course, not here involved.) Procuring the joinder of parties in a proposed or pending litigation by means other than ordinary court process is collateral to, but not a part of, the procedure therein, and since no special authority so to do was here given by the appellant to its attorney, it is not liable for the results that may flow from the assumption by its attorney of such authority.
The decree of the court below will be reversed, and the bill will be dismissed.
Reversed, and bill dismissed.