with much other testimony was printed and em to the nature of the duties and powers of the of gas, and all persons employed in those de- From the evidence in the case no presumption could be indulged that the duties of the In this case no specific authority was pre- general manager of the corporation in ques[545]tended to have been given the general mana- tion included in their general scope or charger, Leetch, to write the letters which he acter the right to represent the corporation sent to Brown, or to authorize the publication in any business such as is referred to in the of anything whatever in the periodical letters of Brown or in the letters of Leetch in named. We are, then, limited to an inquiry answer thereto. The letters of Mr. Brown whether the evidence is sufficient upon which had nothing whatever to do with the transa jury might be permitted to base an infer-action of the business of the corporation, or ence that Leetch had the necessary authority with anything relating thereto which the to act for the company in this business. It superintendent was authorized to perform. different inferences might fairly be drawn It was an inquiry relative to a past transfrom the evidence by reasonable men, then action regarding the testimony supposed to the jury should be permitted to choose for have been given before a committee of Conthemselves. But if only one inference could gress, having, among other things, the subbe drawn from the evidence, and that is a ject of the price of gas in the city of Washwant of authority, then the question is a ington before it for consideration. From the legal one for the court to decide. We do not evidence in this case it is plain that it was mean that in order to render the company no part of the duty of the general manager liable there must be some evidence of author- even to appear before that committee unless ity, express or implied, given to the manager summoned so to do by the committee, or speto publish or to authorize the publishing of cially directed by the company to so appear. a libel, but there must be some evidence from In no view of the evidence can we see the which an authority might be implied on the least basis for an inference that the manager part of the manager to represent the com- had authority to represent the company in pany as within the general scope of his em- any matter connected with third parties and ployment, in regard to the subject-matter of relating to the character of the evidence the correspondence between Brown and him-given by the plaintiff before the committee self. There is no evidence of an express au- of Congress. thority, or of any subsequent ratification of The manager did not himself regard the Leetch's conduct by the company. Can any correspondence as one of an official nature, authority be inferred from the evidence as and he swears that he answered the letters ། as a mere personal matter, altogether ex-dence upon which to base a verdict against it. clusive of any duty that he owed to the gas The next question arises in regard to the [547 company; that the gas company had no inter- defendant Bailey. est in it, and he merely wrote the letters as an act of courtesy stating the facts, and that none of the officers of the company was informed as to the contents of the letters that he wrote, and they were ignorant regarding them. The plaintiff, of course, would not be bound by the evidence of Mr. Leetch as to how he regarded the letters or in what capacity he thought that he was answering them, if there were other evidence in the case from which a contrary inference could properly be drawn,-evidence from which it could be inferred that the manager was acting within the scope of his employment as manager. In such case it would be proper to refer the question of fact to the jury to ascertain whether the letters were written within the scope of his employment, notwithstanding his assertion that he wrote them in his per sonal capacity. But there is no such evidence. The fact that the manager copied his letters to Brown into the official copy book kept in the office of the secretary is not material upon this question. It was the act of Mr. Leetch, unknown to the officers of the company, so far as the record shows, and the company cannot be held liable for the original act of Leetch by such evidence. It does not tend to show that his action was within the scope of his employment as manager. If we set aside for a moment the testimony in regard to the duties to be performed by the superintendent, as stated in the communication of March, 1865, and look simply at the other facts in the case, we are still without any evidence from which it might be inferred that the act on the part of the manager was within the scope of his employment. The burden is upon the plaintiff to show this fact. From the use of the term "general manager" we should not be authorized to infer any such authority, nor would it be permissible to allow the jury to make a mere guess that it existed. A general manager of a business corporation, such as this gas company is, would not be presumed to have this power. The term, in our judgment, when used in connection with such a corporation, [548]cannot, in the absence of any evidence on the subject, be presumed to mean anything more than that the person filling the position has general charge of those business matters for the carrying on of which the company was incorporated. These might include the buying of material, the employment of laborers, the supervision of their labor, the manufacture of gas, its distribution, and the general ways and means of accomplishing the object of the corporation, all these in subordination to the board of directors and such superior officers as the board should provide. The only evidence is regard to this defendant is that he was secretary of the company at the time in question; that after Mr. Lansden, the plaintiff, had made the memorandum in preparation for his being called as a witness before the congressional committee in 1893, and in which memorandum he had stated the cost of gas (although, as he says, he took that cost from the president, and did not pretend to state it as of his own knowledge), he gave the memorandum to Mr. McLean, the president of the defendant company, who gave it to Mr. Bailey, the secretary, who had kept it in his possession from that time; that after Mr. Leetch received Mr. Brown's first letter relating to the plaintiff's testimony before the congressional committee of 1894, Mr. Leetch showed him (Bailey) the letter, and that Mr. Bailey then read it, and stated: "I have a paper in Mr. Lansden's own handwriting, where he stated that the price of gas was so and so and the price of distribution was so and so;" and he then gave Leetch the paper; that he then knew that the items therein, so far as they regarded the cost of distribution, did not rest on plaintiff's personal knowledge, but that they came from the books; that he did not know what Leetch wanted with the paper; that he thought nothing about it; that Leetch had asked him, "Where is the paper?" and he then got it 549 and Leetch asked him to let him take it; an that Leetch did take it and went off to his room, and that Bailey never saw it again or heard of it until after the letter was written; that Bailey did not give Leetch any data to reply to the letter, and he thought nothing about writing the letter, and that he simply said, as a matter of fact, that he (Lansden) had said that gas could be made and sold at a profit at a dollar. He never knew that the first letter of Brown had been answered until he saw it in the Progressive Age. This is all the evidence connecting Mr. Bailey in any way with the publication of the libel, and we think it wholly insufficient for that purpose. We think there is nothing in this evidence from which the inference can reasonably and fairly be drawn that there was any intention on the part of Mr. Bailey to furnish Mr. Leetch with the figures in the memorandum so that he might answer the letter from Mr. Brown, and have the figures or any other matter published in his paper. A finding by the jury that Mr. Bailey furnished the information contained in this memorandum to Mr. Leetch for the purpose of having him communicate it to Mr. Brown, and for the purpose of having Mr. Brown publish the same, would not be supported by any evidence in this case. Such a finding would be a pure guess, unsupported by any evidence, and the jury should not be offered the opportunity to make it. The judgment should therefore be reversed as against Mr. Bailey. We are of opinion that the court erred in submitting to the jury the question whether Leetch, in respect to the subject of the letters written by him to Brown, had authority to bind the company. The court should have directed a verdict for the corporation on the We are of the opinion that the judgment ground that there was an entire lack of evi-ought also to be reversed and a new trial The third question relates to the judgment against Leetch. awarded as against him. We do not think it | fendants said that their claim was only $50,would constitute a defense in his case that 000. To which the court responded: "If there were other matters contained in the ar- you admit that if they are entitled to a verticle published by Mr. Brown, not pertaining dict at all they are entitled to $50,to and which were no part of the subject- 000, that does away with the necessity of matter upon which Mr. Leetch wrote his let- the evidence; otherwise I think it would be ters. For anything appearing in that publi- admissible." And under the objection and cation, which was outside and beyond the exception of the defendants' counsel the witscope of the subject-matter of the letters of ness then testified that he knew what diviMr. Leetch, he would not be responsible, be- dends had been paid by the gas company cause he could not be charged with authoriz- since 1890, but did not know what had been ing the publication of such matter in any earned: that every year they had paid 10 form; but if upon all the evidence on an- per cent; that in 1893 they had paid 15 per [550]other trial the jury should be satisfied "he cent; that was an extra dividend; that in furnished the publisher, Mr. Brown, with in- 1895 they had paid $400,000,-an extra div formation of à libelous character regarding idend; that from 1890 down to the present the plaintiff, for the purpose and with the time they had paid the regular 10 per cent intention of having the same published by dividend every year, and that in 1890 they Mr. Brown, we think that the defendant had issued $600,000 of interest-bearing cermight be held liable for such publication on tificates to the stockholders, which would the ground that it was published by his aid make it 40 per cent for that year, and in and procurement and substantially by his 1893 there was a special dividend paid of $3 agent. Of course, the evidence would have to be sufficient to justify a jury in finding the that in 1894 he did not know of anything beper share in addition to the 10 per cent; fact of such intention and that the informa- ing paid but the regular dividend; that in $200,000 to make the regular dividend, and 1895 they paid $4 a share, and that it takes they paid $400,000 extra in $600,000 altothe jury that the evidence was only admissigether. The court did not directly instruct ble for the purpose stated by him in his reply to the objection made by counsel for the defense. In his final charge to the jury and upon the request of the counsel for the dethe plaintiff was not entitled to recover punifendants, the court instructed the jury that tive damages against the defendant company or against either of the other defendants, but only such damages as the evidence proves that he has sustained on account of the action of the defendants, if any. tion was so furnished to Mr. Brown. There are, however, two grounds upon which we think this judgment should be reversed, and no judgment entered upon the verdict, even as against Mr. Leetch, one of which rests upon an exception to evidence, and the other is based upon the substantial injustice which we think might be the result if we were to permit judgment to be entered upon the verdict as against him alone. When the plaintiff was on the stand, upon dends that had been paid upon the stock Counsel for plaintiff said he was seeking The witness then testified that the company had paid the last two regular dividends of ten per cent upon its capital stock. The plaintiff in bringing his action saw fit to join the gas company and several of its officers as individual defendants. He could, had he so chosen, have brought his action against the company alone. All the[552] defendants joined in a plea of not guilty, and the jury could not find a verdict of guilty against all, and apportion the damages among the several defendants by giving a certain amount as against the company and a certain other amount as against the doers who are sued together and found guilty individual defendants. Those of the wrongin an action of tort are liable for the whole injury to plaintiff, without examining the ity. And if but one is sued, he is liable for question of the different degrees of culpabilall the damages inflicted by the most culpable. Cooley on Torts, 133, 135, 136; Currier v. Swan, 63 Me. 323; Berry v. Fletcher, 1 Dill. 67; Pardridge v. Brady, 7 Ill. App. 639; McCarthy v. De Armit, 99 Pa, 63-72. The rule is different in South Carolina, where the jury can apportion the damages among the different defendants found guilty. It is acknowledged to be a departure from the rule at common law. White v. M'Neily and others, 1 Bay, 11. The court then said to counsel: "That the admission of the fact that the company was able to respond in damages amounted to nothing; that the object of the evidence [551]was to furnish the jury a basis upon which they might calculate exemplary damages if they were entitled to exemplary damages, as was claimed. If the jury were going to give exemplary damages they might give much larger damages against a very wealthy per- As between themselves, there is no contrison than they would against a person of or-bution among several tort feasors. Merrydinary circumstances." Counsel for the de-weather v. Nixan, 8 T. R. 186; Farebrother 550 v. Ansley, 1 Campb. 343; Wilson v. Milner, petent and is admitted as against one of the and as furnishing a basis for a computation ration, and a verdict may very probably be In this case the jury was bound to give cured by the ruling of the court in response In many cases against several defendants it frequently happens that evidence is com only, and yet did not afterwards in terms impossible to say that, by merely charging | tering judgment upon his verdict against the case. In regard to the defendants, McLean, the president, and Orme, the assistant secretary, the judge charged the jury that there was no prayer granted or asked by plaintiff's counsel directed specially to informing the jury whether it might or might not find against those defendants; that he did not understand that the plaintiff's counsel earnestly insisted upon a verdict against them personally; and he could only say that the evidence tending to show that they were personally liable was slight, and he submitted the case to the jury with that expression, leaving it to their discretion to find for or against them as they might think best. There was no finding by the jury against those defendants, and no have not brought error. In reversing the[557] judgment we do not intend to reverse what may be considered a finding of the jury in their favor. We are also of opinion that, even upon the assumption that no error was committed upon the trial as against the defendant Leetch, which in itself would call for a reversal, yet the judgment should be wholly reversed and no judgment entered upon the verdict as to him, because the original verdict was against the three defendants, and it was given under such circumstances that we might well fear the amount was enlarged by the evidence as to the wealth of the cor-judgment was entered against them, and they poration, and it is possible, if not probable, that if a verdict had been rendered against the individual defendant alone it would have been for a materially less amount. At any rate, the jury has never been called upon to For the reasons given, we reverse the judgrender a verdict against a sole defendant, ment of the Court of Appeals of the District and while it may be said that, whether of Columbia. with directions to that court against one or against all the defendants, to reverse the judgment of the Supreme the plaintiff suffers the same damage and Court of the District of Columbia, and to should be entitled to a verdict for the same grant a new trial to the three defendants who sum, still the question arises whether a jury, are plaintiffs in the writ of error sued out in passing upon the several liability of the from this court. individual defendant, would give a verdict of the same amount as it would if both the other defendants remained. We cannot say it would, and as the jury has never rendered a verdict against Mr. Leetch individually and solely, and as the case is one where damages are so largely in the sole discretion of the jury, we think it unjust and improper to [556]permit this verdict to stand against Leetch alone while we set it aside as against the other defendants. Where the judgment is based upon a cause of action of such a nature that it might work injustice to one party defendant if it were to remain intact as against him while reversed for error as to the other defendants, then we think the power exists in the court, founded upon such fact of possible injustice, to reverse the judgment in toto and grant a new trial in regard to all the defendants. The question is discussed with much fullness in Albright v. McTighe and others, 49 Fed. Rep. 817, and the same conclusion is arrived at. ORIENT INSURANCE COMPANY of Hartford, Connecticut, Plff. in Err., . v. ROBERT E. DAGGS. (See S. C. Reporter's ed. 557-567.) When a corporation is not regarded as a citizen-equal protection of the laws-validity of state statute. 1. 2. 3. A corporation is not a citizen within the meaning of the constitutional provision as to privileges and immunities of citizens. A fire insurance company is not denied the equal protection of the laws by a statute applicable to fire insurance only, which makes the entire amount of the insurance payable in case of total loss, except as reduced by depreciation of the property after it was insured. A state statute compelling fire insurance companies in case of total loss to pay the amount for which the property was insured, less depreciation between the time of issuing the policy and the time of loss, does not deprive the insurer of property without due process of law, as it leaves the parties to fix the valuation of the property as they choose, but makes their action in this matter conclusive. [No. 81.] The provisions contained in the judgment in Pennsylvania Railroad Company v. Jones, 155 U. S. 333, at 354 [39: 176, at 183], indicate the opinion of this court that it was right to reverse the entire judgment in that case for error in regard to one of several defendants; but the court held that as the error did not affect the others the plaintiff should have liberty to become nonsuit as to the one defendant, and to then have judgment upon Argued December 8, 1898. Decided January his verdict against the others. In that case there was a failure to prove a cause of action against the one defendant, while no such failure existed as to the others, and there were no special reasons for a total reversal, but, on the contrary, justice seemed to require that plaintiff should have the liberty of en IN 16, 1899. IN ERROR to the Supreme Court of the State of Missouri to review a judgment of that court affirming a judgment of the Circuit Court of Scotland County in said state in favor of the plaintiff, the defendant in |