clothed by the defendant company with the power to exercise their discretion as to the methods to be adopted in ferreting out the crime. Acting under this authority, clothed with this discretion, seeking to accomplish the ends for which they were employed, the agents of the defendant company did the wrong to plaintiff set forth in the declaration. It would not be contended otherwise than that a natural person, standing in the same relationship to the active wrongdoers in the case at bar as did the defendant company towards these agents, would be liable under the circumstances set forth. At common law a corporation could not be made a defendant to an action of battery, or suchlike personal injuries, for, in its corporate capacity, it could neither beat or be beaten; a corporation being, in the language of Sir Edward Coke, "invisible, and existing only in intendment and consideration of law," and wholly devoid of corporal body. But of recent years, with the growth of corporations, the multiplicity of interests owned by them, the diversity of business enterprises by them conducted, "judicial tribunals, with much wariness, and after close and exact scrutiny into their nature and constitution," ex necessitate have modified the strict rules of the common law in relation to corporate liability; and it is now declared to be the law that a corporation is liable civiliter for torts committed by its servants or agents, precisely as natural persons. Fotheringham v. Express Co., 36 Fed. 252; Railroad Co. v. Quigley, 21 How. 202; Salt Lake City v. Hollister, 118 U. S. 256, 6 Sup. Ct. 1055; Railway Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286. It is admittedly correct, as stated by counsel for the defendant company, that affirmative, willful action by the chief officers of the defendant company could not have made the company liable for the acts complained of in the declaration, for the corporation is liable only for the acts of its servants and employés within the scope of their duties. But in the case at bar the detection of the felon who robbed the company's office was, in the judgment of the company, very important to it. They employed their agents to detect the wrongdoer and bring him to justice. It was their duty to have selected for this purpose safe, careful, and prudent men,-representatives who would pursue this special business of the company in a legal, proper, and prudent way. This they did not do. They selected as agents men regardless of the rights of others; men who sought only the end for which they were employed, regardless of the means adopted to bring about this desired consummation. These agents committed the assault upon the plaintiff; and for this action by its agents, acting within the scope of their authority, the defendant company cannot escape responsibility.

Whether or not there was a subsequent ratification of the acts of these agents by the chief officers of the company is immaterial, for the reason that immediately upon the perpetration thereof the liabil ity of the company to make satisfaction therefor attached. The acts of the agent were the acts of the company. If the perpetrators of this outrage had been successful, by means of the illegal and criminal methods employed against the defendant in error, in securing evidence against him that would lead to his conviction of the crime of robbery, or to the recovery by the company of the money of which it

36 C.C.A.-4

was robbed, then the company would have been the recipient of the advantage gained by the wrongful acts of its agents; and this was the end sought by the express company. But these agents were unsuccessful in their efforts, and the company gained nothing thereby. "The question is not whether the particular act was authorized, but whether the act done grew out of the exercise of an authority which the master had conferred upon the servant." The bare reading of the allegations of the declaration demonstrates that the acts complained of grew out of the exercise of the authority given by the defendant company to these representatives.

Should the demurrer to the declaration have been sustained for the reason that the names of the persons committing the assault were not named therein? There is nothing in this contention, for the reason that the names of these persons are set forth. In the declaration the names of these persons are given as follows: "Four persons, to wit, C. L. Myers, N. W. Buxton, and two others to plaintiff unknown," employés of the company, committed the acts complained of. But even if no names were set forth in the said declaration, and it was alleged simply therein that certain agents and representatives of the defendant company, to the plaintiff unknown, had been guilty of this trespass, then the contention of plaintiff in error could not be sustained, for the reason that this deficiency would be only in a matter of proof, and not of allegation in the pleadings. It follows that there was no error made by the trial court in overruling the plaintiff in error's demurrer.

It is contended by the plaintiff in error (the defendant below) that the trial court erred in permitting the plaintiff below to testify as to the mental suffering occasioned him by reason of the assault. Bearing in mind that this action was one purely of tort, and that there was proof of substantial physical hurt and injury, there can be no question but what the plaintiff below was entitled to recover compensation for the mental pain and suffering that inevitably and necessarily resulted from the original injury. As was said by Mr. Justice Gray in Kennon v. Gilmer, 131 U. S. 28, 9 Sup. Ct. 697:

"When the injury, whether caused by willfulness or by negligence, produces mental as well as bodily anguish and suffering, independently of any extraneous consideration or cause, it is impossible to exclude the mental suffering in estimating the extent of the personal injury for which compensation is to be awarded."

And in the case of McIntyre v. Giblin, 131 U. S. clxxiv., 9 Sup. Ct. 698, in an action brought by the defendant in error against the plaintiff in error to recover damages for negligent shooting, Chief Justice Waite expressly held that the plaintiff below was entitled to recover "a fair compensation for the physical and mental suffering caused by the injury.'

Numerous assignments of error are based upon the admission of certain testimony which is alleged to be hearsay, and hence inadmissible. An examination of the record discloses that this so-called hearsay testimony was testimony of declarations and statements made by one who was proved to be an agent of the plaintiff in error while engaged in the transaction of the business of his principal, and hence

was properly admitted in evidence. That the parties who made these declarations alleged to be hearsay were the agents of the plaintiff in error, there can be no reasonable doubt. The actions and conduct of W. T. Sherrett were of such a character, so continuous, so well known and notorious, not only to the people in and around the place where the robbery had been effected, but among the other recognized and admitted agents of the plaintiff in error. He was recognized, received, and assisted as an agent of the express company, and for nearly three weeks was virtually in control of its office at Bartow for the purpose of his employment. During this time, by his directions, the books of the company were mutilated, that the plaintiff below might be decoyed from his bed at night to be assaulted as described. These and other acts of W. T. Sherrett were properly submitted to the jury to establish agency. A careful examination of the record discloses no substantial error on the part of the trial judge in the admission of this testimony.

In the declaration it was charged that Myers and Buxton, and two others to the plaintiff unknown, were procured to make the assault set forth therein. There is no testimony whatever in the record that in any wise connects Myers with the assault, directly or indirectly. Upon the conclusion of the testimony on behalf of the plaintiff below at the trial, the attorney for the plaintiff in error moved the court to instruct the jury to bring in a verdict for the defendant on the ground that the evidence disclosed a fatal variance between the allegations of the declaration and the proof in this respect, which motion was denied by the court; and the ruling of the court on this motion was assigned as error. There is no allegation, or even intimation, that the plaintiff in error had been misled in maintaining its defense upon the merits by this variance. There is nothing in the record, or on the face of the pleadings, in any wise showing that the express company was prejudiced thereby in any respect. This being the case, such variance was an immaterial one, and the court was correct in overruling the motion, and allowing defendant in error at that time to amend his declaration by striking out the name of Myers. It is only in case of a very gross or flagrant abuse of the discretion of the trial judge in allowing amendments to the pleadings that the same will be interfered with in the appellate court. A careful examination of the entire record discloses no substantial error against the appellant, and the judgment appealed from is therefore affirmed.

PARDEE, Circuit Judge, dissenting.

(94 Fed. 6.)

DULANEY v. SCUDDER et al.

(Circuit Court of Appeals, Fifth Circuit. March 28, 1899.)

1. EQUITY-JURISDICTION.

No. 694.

A bill by the assignee of a contract with the government, who had completed the work thereunder, against the assignor, who was insolvent, and owed the assignee on account of the contract more than was due from the government, and who had filed objections with the government against payment to the assignee, to enjoin the assignor from collecting or receiving the money due for the work, and to settle, as between the parties, which had the better right to the fund, is within the cognizance of equity.

2. PARTIES.

The government is not a necessary party to a suit by the assignee of a contract with it against the assignor to enjoin his collecting or receiving the money due under it, and to settle as between the parties the better right to the fund.

3. UNITED STATES-CLAIMS AGAINST ASSIGNMENT.

There is no claim against the United States, and therefore no assignment of it, within Rev. St. § 3477, declaring void all assignments of a claim against the United States, and all powers of attorney or other authorities for receiving payment of any such claim, unless made after issue of warrant for payment thereof, where one having a contract to do work for the United States, before doing any work under it, contracts with another to obtain advances with which to do the work, agreeing to make payment for the advances out of the moneys to be received from the government for the work, and executes a power of attorney to such other person, authorizing him to collect all money to become due on the contract with the government.1

4. SAME-CONTRACTS-ASSIGNMENT.

Under Rev. St. § 3737, declaring that any assignment of a contract with the United States shall cause the annulment of the contract, so far as the United States are concerned, the government may treat it as annulled, or recognize the assignment.

5. EQUITY MATTERS CONsidered.

The court having taken jurisdiction of a suit by the assignee of a contract with the United States against the assignor to enjoin the assignor from collecting or receiving the money due under it, properly ascertains the amount due complainant from defendant, and renders a personal decree against him for that sum.

Appeal from the Circuit Court of the United States for the Southern District of Mississippi.

Murray F. Smith, for appellant.

S. H. King, for appellees.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

SHELBY, Circuit Judge. L. C. Dulaney, the appellant, made a written contract with an officer representing the United States, binding himself to construct certain levees. He agreed to furnish the labor and material, and to complete them in a manner satisfactory to the government. Dulaney was insolvent, and unable to carry out his

1 As to assignment of government contracts, see subdivision 5 of note to Bank v. Lawrence, 22 C. C. A. 656.

agreement without assistance. On the 31st of March, 1894, to get the money and supplies to do the work, he made a contract with Scudder & Co. This contract is in writing, and by its terms Dulaney was to repay Scudder & Co. for the advances made to him, out of money he was to receive from the government for the work on the levees. With the contract, Dulaney executed a power of attorney to Scudder & Co. authorizing them to collect and receipt for all money to become due on Dulaney's contract with the government. The agreement referred to the power of attorney executed at the same time in these words: "In case the power of attorney executed by the said Dulaney shall not be satisfactory to the United States authorities, he agrees to execute such other or others as may be necessary to conform to the requirements of said authorities." The power of attorney was submitted to the government, and accepted as satisfactory, after requiring a change in the acknowledgment. The estimates, when due, while Dulaney had charge of the work, were paid to Scudder & Co. under this contract and power of attorney. In May, 1895, it became known to Scudder & Co. that Dulaney had failed to comply with the terms of his contract with the government, and that the government was about to annul the contract. Scudder & Co. had already made large advances to Dulaney. To avoid the loss of advances already made, Scudder & Co., on the 27th* day of May, 1895, made another agreement with Dulaney. By this agreement Dulaney transferred certain personal property to Scudder & Co., and also assigned to them "all his rights and interest" in the contract which he had made with the government; Scudder & Co. agreeing to finish the work which Dulaney had, in the first instance, agreed to do. Scudder & Co. proceeded to finish the work, taking entire charge of it. As the work progressed, payments were made to them upon estimates made pursuant to the original contract between Dulaney and the government. When the work was finished, it was accepted by the government, and the estimate for the final payment was made; but, before it could be paid to Scudder & Co., Dulaney gave the government written notice that he had revoked his power of attorney, and objected to this final payment being made to Scudder & Co. The amount then due from the government on the work was about $7,715, and Dulaney was, on account of these transactions, indebted to Scudder & Co. in a much larger sum. Dulaney continues insolvent, and the substantial subject of this litigation is the right to the money due for the work, and now held by the government. On the 27th of May, 1896, Scudder & Co. filed their bill in chancery against Dulaney, alleging the facts that we have briefly stated, and praying for general relief, and specially that Dulaney be perpetually enjoined from collecting or receiv ing the money due for this work. The circuit court overruled a demurrer to the bill, and on the final hearing enjoined Dulaney as prayed for; and also rendered a decree against Dulaney for the amount found to be due Scudder & Co. The cause is brought here by appeal, and it is urged that there is no equity in the bill, that the United States was a necessary party to the suit, and that sections 3477 and 3737 of the Revised Statutes of the United States make the dealings between the parties illegal, and that, therefore, the contracts between Dulaney and Scudder & Co. are against public policy, and void.