(146 N.E.) A corporation may be liable for slander committed by an agent, test being whether slander was committed by authority of corporation, expressed or fairly implied. Appeal from Circuit Court, Marion County; Harry Chamberlin, Judge. Action by Hattie Writesman against the Pettis Dry Goods Company. From judgment sustaining demurrer to complaint, plaintiff appeals. Reversed, with directions. Superseding former opinion in 144 N. E. 432. prise in which the parties are engaged." Ap-| 2. Corporations 423 Liable for slander pellant contends that this is tantamount to committed by agent by authority of corporainforming the jury that the care required in tion express or implied. negligence cases varies, and that a higher and greater care was required of appellant on account of the hazards of the enterprise in which it was engaged than would be required in ordinary negligence cases. That the expression was unfortunate must be conceded. The instruction would have better expressed the law without the inclusion of this statement. It has been repeatedly held by this court, and by the Supreme Court, that ordinary care under the circumstances of the case is the only kind of care which is required. Terre Haute, etc., R. Co. v. Phillips, 191 Ind. 374, 132 N. E. 745; City of Decatur v. Eady, supra. But, in view of the statement (Louisville, etc., R. Co. v. Walker, 177 Ind. 38, 97 N. E. 151) that "ordinary care ebbs and flows with the danger to be fairly anticipated by a man of reasonable prudence from the circumstances and conditions involved in each case," and in view of the fact that the expression is so environed by correct expressions of the law, thereby ex-poration, by and through a servant and agent plaining its meaning as given to it by the court, and finally because it is manifest from all the record that a right result has been reached, we do not reverse because of this error, if such it be. We find no reversible error in other instructions given, nor in the refusal to give instructions tendered, even in the absence of the rule of "right result." Appellant predicates error upon the court's action in overruling its objection to a hypothetical question. The question is a long one, and we do not need to set it out. It is sufficient for us to say that we have read it carefully, and we do not find it open to objection that appellant has made thereto. Judgment is affirmed. Newton E. Elliott and Leo X. Smith, both of Indianapolis, for appellant. Byron K. Elliott, Emsley W. Johnson, and Wm. F. Elliott, all of Indianapolis, for appellee. MCMAHAN, J. This is an appeal from a judgment sustaining a demurrer to a complaint which alleged that appellee, a cor acting for and on behalf of appellee, in the hearing of divers persons, falsely and maliciously spoke and uttered certain false and defamatory words concerning appellant. The questions involved in this appeal relate to the right to maintain an action for slander against a corporation, and the necessity of an allegation in the complaint that the agent or servant in uttering the alleged slanderous statement was, in so doing, acting within the scope of his employment. [1] Appellee's first contention is that the complaint is not sufficient because there is no allegation that the employee making the statement was acting within the scope of his employment. It is to be observed that the complaint in direct language alleges that the "defendant company then and there and by and through said agent, servant, and employee, acting for and on behalf of defendant," falsely and WRITESMAN v. PETTIS DRY GOODS co. maliciously spoke the alleged false and de (No. 11962.) famatory words. This is a direct charge that the alleged wrong was committed by the (Appellate Court of Indiana, Division No. 2. defendant. This is equivalent to an aver Feb. 25, 1925.) 1. Corporations 513(4)-Complaint against corporation for slander held to sufficiently allege that employee was acting within scope of employment when making slanderous statements. ment that the alleged slander was uttered by the defendant, acting through its agent and servant. That made it a question of evidence as to whether the servant was acting within the scope of his employment at the time when the alleged statement was made. Wabash R. Co. v. Savage, 110 Ind. 156, 9 N. E. 85; Southern R. Co. v. Crone, 51 Ind. App. 300, 99 N. E. 762. On the authorities of these cases, we hold the complaint is not subject to demurrer because it does In action against corporation for slander, complaint alleging that "defendant company then and there and by and through said agent, servant and employee acting for and on behalf of defendant," falsely and maliciously spoke alleged defamatory words, sufficiently alleged not allege that the employee was acting withthat employee making defamatory statement in the scope of his employment. was acting within scope of his employment. We now pass to consideration of appellee's For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes contention that a corporation is not liable for a slander committed by an agent or employee, when not expressly authorized or ratified by it. Southern Ice Co. v. Black, 136 Tenn. 391, 189 S. W. 861, Ann. Cas. 1917E, 695, cited by appellee, was an action by a servant of a corporation for damages for slander spoken by one servant of another servant. In discussing the liability of the defendant in that case, the court said: "We do not say that a corporation or an individual would not be held liable in particular cases for the slanderous words uttered by a servant; but to make a case of liability the plaintiff must show either that the master expressly authorized the speaking of the slanderous words, or that it would be necessary to speak them in the course of the performance of the duty assigned to the servant, or that it has been ratified by the master. The precise question presented is the liability of a corporation for damages for oral slander spoken by one servant of another while acting within the scope of his authority and in the interest of the master, but who was not actually authorized to speak the slanderous words. We do not think speaking the slanderous words would fall reasonably within the contemplation of the parties when they made the contract of employment, either that the master impliedly authorized the foreman to speak the words, or that he so agreed to indemnify his other servant against such conduct. What we have said, of course, does not apply to a third party to whom the master owes a special duty." The words spoken in that case had a qualified privilege; not that they were not slanderous per se, and ordinarily actionable, but that under the evidence they were not actionable unless malice was proven. Republic Iron & S. Co. v. Self, 192 Ala. 403, 68 So. 328, L. R. A. 1915F, 516, was an action for damages for abusive and insulting language used by the servant of a corporation. The court, after calling attention to the fact that the suit was not for slander, by the way of obiter, said: an action against a partnership for slander, the court, after discussing the law relative to libel, said: * * * "Without including in what we say the rules applicable when the action is for libel, and confining our opinion to actions for slander, as that is the question we are dealing with, we think that a partnership or corporation cannot be held liable for the slanderous utterances of its agents or servants unless the actionable words were spoken by its express consent, direction, or authority or are ratified or approved by it. Generally speaking, when it is attempted to hold the master or principal liable for the wrongful acts of his servant or agent, it is sufficient to describe in a general way the wrongful act, and charge that it was done by the servant while acting within the scope of his employment. * * But a different rule should be applied when it is attempted to hold the master or principal in slander for defamatory words spoken by his servant. Slanderous words are easily spoken, are usually uttered under the influence of passion or excitement, and more frequently than otherwise are the voluntary. thought and act of the speaker. Or, to put it in another way, the words spoken are not generally prompted by or put into the mouth of the speaker by any other person, and represent nothing more than his personal views or opinions about the person or thing spoken of. * And so we think that, when it is sought to charge the master or principal in any state of case with liability for defamatory utterances of the servant or agent, it is not sufficient to aver or prove that the servant or agent at the time was engaged in the service of the master or principal, or acting within the scope of his employment in the ordinary use of that word. But it must be further averred and shown that the principal or master directed or authorized the agent or servant to speak the actionable words, or afterwards approved or ratified their speaking." In Flaherty v. Maxwell Motor Co., 187 Mich. 62, 153 N. W. 45, the court, quoting from 18 Am. & Eng. Cyc. of Law, 1059, said: "The accepted doctrine is stated as follows: 'It was for a long time thought that a cor "If it were such, no recovery could be had un-poration could not in any case be held civilly der this evidence, for it is well settled in this jurisdiction that a corporation will not be liable for any slander uttered by an officer, even though he be acting honestly for the benefit of the company and within the scope of his duties, unless it be proved that the corporation expressly ordered and directed that officer to say those very words; for a slander is the voluntary and tortious act of the speaker." But the same court, in McIntyre v. Cudahy P. Co., 179 Ala. 404, 60 So. 848, when the question was involved, said it was well settled in that state that a corporation could not commit slander, and could only become liable for the utterance of its agents by expressly authorizing them, or by approving or ratifying them. In Duquesne Distributing Co. v. Greenbaum, 135 Ky. 182, 121 S. W. 1026, 24 L. R. A. (N. S.) 955, 21 Ann. Cas. 481, which was liable for a slander. But at the present time the better doctrine would seem to be that, while a corporation is not ordinarily liable for a slander uttered by one of its agents, even though in uttering such words the speaker was acting for the benefit of the corporation and within the scope of the duties of the agency, the corporation may be held liable where it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question.'" And after quoting from Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 So. 210, 9 L. R. A. (N. S.) 929, 124 Am. St. Rep. 90, the court, continuing, said: "Our examination of the cases satisfies us that the great weight of the authorities holds that a corporation is not liable for slander uttered by its servants unless it affirmatively appears that the agent was expressly authorized (146 N.E.) to speak the words in question or the corpo- | slander committed by an agent, and that the ration subsequently ratified the utterance." To the same effect, see Jackson v. Atlantic, etc., R. Co., 8 Ga. App. 495, 69 S. E. 919. But the Supreme Court of the United States, in discussing the liability of a corporation for libel, said: "The result of the authorities is, as we think, that in order to hold a corporation liable for the torts of any of its agents, the act in question must be performed in the course and within the scope of the agent's employment in the business of the principal. The corporation can be held responsible for acts which are not strictly within the corporate powers, but which were assumed to be performed for the corporation and by the corporate agents who were competent to employ the corporate powers actually exercised. There need be no written authority under seal nor vote of the corporation constituting the agency or authorizing the act. But in the absence of evidence of this nature there must be evidence of some facts from which the authority of the agent to act upon or in relation to the subject-matter involved may be fairly and legitimately inferred by the court or jury." Washington Gaslight Co. v. Lansden, 172 U. S. 534, 19 S. Ct. 296, 43 L. Ed. 543. In Courtney v. American R. Exp. Co., 120, S. C. 511, 113 S. E. 332, 24 A. L. R. 128, the court said: "After much discussing and great divergence of opinion, it may be regarded as settled by practical unanimity of text-writers and decided cases, that slander is in the same category with all other malicious torts, and that a corporation may be liable for it as well as for any under like circumstances. of the others, ** * In order to hold the master liable for the tort of his servant, the servant must have been at the time engaged in the discharge of duties intrusted to him in reference to the particular matter in hand and acting within the apparent scope of his employment." In Hypes v. Southern R. Co., 82 S. C. 315, 64 S. E. 395, 21 L. R. A. (N. S.) 873, 17 Ann. Cas. 620, a railway company was held liable for slander, uttered by a division superintendent while examining the time account of an engineer, which charged the engineer with In Rivers v. stealing from the company. Yazoo, etc., R. Co., 90 Miss. 196, 43 So. 471, 9 L. R. A. (N. S.) 931, the court held that a corporation was liable for slander spoken by its agent while acting within the scope of his employment, and in the actual performance of the duties of the corporation touching the matter in question, although it did not appear that the slanderous words were uttered and published with the knowledge, approval, consent, or ratification of the corporation. [2] While there are a few cases holding that a corporation cannot he held liable for slander, the great weight of the authorities holds that a corporation may be liable for a test of liability depends upon whether the slander was committed by the authority of the corporation, expressed, or fairly implied from the nature of the employment and du ties incident thereto. In addition to authorities hereinbefore cited, see Sawyer v. Norfolk, etc., R. Co., 142 N. C. 1, 54 S. E. 793, 115 Am. St. Rep. 716, 9 A. & E. Ann. Cas. 440; Fensky v. Maryland Casualty Co., 264 Mo. 154, 174 S. W. 416, Ann. Cas. 1917D, 963; Vowles v. Yakish, 191 Iowa, 368, 179 N. W. 117, 13 A. L. R. 1132; Allen v. Edward Light Co., 209 Mo. App. 165, 233 S. W. 953; Grand Unton Tea Co. v. Lord, 231 F. 390, 145 C. C. A. 384, Ann. Cas. 1918C, 1118. Without entering any further into the discussion of the circumstances under which a corporation can be held liable for slander, we hold the complaint sufficient to withstand a demurrer. Judgment reversed, with directions to overrule the demurrer to the complaint. SAWERS GRAIN CO. et al. v. GOODWIN et al. (No. 11589.) (Appellate Court of Indiana. March 11, 1925.) 1. Appeal and error 1040 (1)-Antecedent overruling of demurrer, though erroneous, becomes harmless, where special findings of fact and conclusions of law are within issues and valid. Where special findings of facts are within issues, and conclusions of law stated are valid, any antecedent overruling of a demurrer, even though it be erroneous, becomes harmless. 2. Liens 7-One may create lien on property of which he is owner or in possession, which equity will enforce against him. One may create a security or charge in nature of a lien on property, of which he is the owner or in possession, which a court of equity will enforce against him, and those claiming under him with notice thereof. 3. Warehousemen 25 (7)-Commission merchants purchasing grain from elevator owner holding it as bailee held to have acquired no equitable lien as against bailor for advances to bailee. Where defendants, doing general grain commission business, advanced money to elevator owner under promise that grain deposited there by plaintiff's and held by elevator owner as bailee should be consigned to defendants, who might sell it and reimburse themselves for money advanced, held that elevator owner, being merely bailee of such grain, could not defeat plaintiffs' right in such grain or create an equitable lien thereon except by sale in due course, and hence defendants, by their purchase thereof, which was not in due course of business, acquired no equitable lien. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. Principal and agent 43(1)-Agent of ele-, shall therefore at once pass to a considervator owner, holding grain as bailee, held ation of the finding of facts and the conwithoat power, to complete contract for sale clusions of law stated thereon. of grain after death of owner. It appears from the special finding that Under rule that death of principal revokes one Frank R. Pence owned and operated a all authority of agent, an agent of elevator own-grain elevator at Tab, Warren county, Ind., er, holding grain deposited in elevator merely from 1913 to August 3, 1920, on which day as bailee, held without authority, after death of owner, to complete contract for sale of such grain to defendants, which sale was not in due course of business and gave defendants no equitable lien thereon, and shipment of such grain to defendants constituted a conversion as to owner of grain. ENLOE, J. By this action the appellees sought a recovery in damages against the appellants for the alleged wrongful conversion of a quantity of corn. The issues being settled, the cause was submitted to the court for trial with a request for a special finding of facts and a statement of conclusions of law thereon. This was done, and resulted in a statement of conclusions of law favorable to the appellees and a judgment thereon accordingly. The errors assigned and presented in this court challenge the action of the trial court in (1) overruling demurrers to the amended complaint; (2) in overruling motions for a new trial; and (3) error in conclusions of law stated. [1] It is the settled law of this state that, where there is a special finding of facts, and conclusions of law are stated thereon, any antecedent ruling overruling a demurrer to any pleading becomes harmless, even though it be erroneous, if the conclusions of law stated are valid and the facts found are within the issues. Woodward v. Mitchell, 140 Ind. 406, 39 N. E. 437; Smith v. Wells Mfg. Co., 148 Ind. 333, 46 N. E. 1000. We said Pence died; that during said time said Pence engaged in the business of buying, selling, receiving, storing, and selling grain including corn; "that from the 6th day of November, 1919, to the 3d day of August, 1920, the defendant Harold R. McCollum was continuously in the employ of said Frank R. Pence in the conduct of said elevator, under the direction of said Frank R. Pence, save and except the period from June 15th to July 15th, 1920; that during all of the time of his said service he was duly clothed with full power to receive grain at said elevator and receipt therefor, to execute checks on behalf of said Frank R. Pence and deliver the same in payment of corn received by him in said elevator, and to borrow money at the bank for the purpose of purchasing corn delivered to said elevator, and to execute notes therefor, and to ship and bill out corn in due course from said elevator, arrange for and receive advances on corn to be consigned and shipped from said elevator, drew bills of lading, and draw sight drafts and attach the same to such bills of lading, and to keep the books reflecting the business transacted through said elevator, all of which he did in due course during his said period of service." The court further found that the appellees, between May 28, and July 7, 1920, delivered to said Pence, at his said elevator, yellow shelled corn in the following amounts, viz.: Earl Goodwine, 7,704 bushels and 6 pounds; Arthur Arehart, 834 bushels and 18 pounds; Jerry O. Scott, 1,044 bushels and 44 pounds; Fred Greenburg, 1,531 bushels and 10 pounds, of which corn the several appellees all of said corn was delivered under the folso delivering were then the owners. That lowing agreement, viz.: "The corn was to be placed in the said elevator at Tab, Ind., and each of the said plaintiffs had the right in the future to sell the corn bePence to ship and sell the same for him and to longing to him to said Pence, or to order said account to him for the proceeds of such sale after deducting the cost of shipment and sale and a reasonable compensation for said Pence for handling said corn. It was known to the parties to all said agreements that it was the custom of Pence in handling the corn in his elevator under the conditions stated to place said corn in the bins of the elevator with other sell corn from the common mass in the bins of corn of like kind and quality and to ship and the elevator; and it was understood by all of the parties to said contracts that the corn should not be kept separate from other corn and the identical corn retained in the elevator until (146 N.E.) such time as the plaintiffs who placed it there should direct Pence to ship it for him, or otherwise dispose of it; but it was also understood by the parties to all of the said contracts that an equal amount of corn to that deposited, of like quality and kind, should be on hand in said elevator, at any time any of said parties might direct said Pence to ship and sell said corn on his account. The corn of the several plaintiffs was delivered and placed in the bins of the elevator in a common mass with other corn of like quality and kind, and said Pence did ship and sell corn from the common mass in the bins of said elevator until a few days prior to his death." It is further found that Frank R. Pence died on the 3d day of August, 1920, leaving an insolvent estate; that on the day of his death there was on hand in the bins of said elevator, in a common mass, 9,327 bushels and 8 pounds of corn of like kind and quality to that placed therein by the appellees, which said corn then on said elevator was not equal in amount to the corn placed in said elevator by appellees, under said contract, but was deficient by 1,787 bushels and 14 pounds; that prior to the death of said Pence none of the appellees had either sold any of said corn or ordered the same to be shipped out; that on the 7th day of August 1920, 3,146 bushels and 24 pounds of yellow shelled corn was taken from the mass of the corn in the bins at said elevator, loaded into cars, and on the 9th day of August, 1920, shipped to appellant grain company; that the value of the corn so shipped, at Tab, Ind., on the day said cars were loaded, was $4,926.83; that said corn was taken from the bins, loaded and. shipped by the orders and at the direction of the appellant Harold R. McCollum, and pursuant to an agreement made by him with William Simons, one of the appellants herein, and who was the representative of appellant grain compnay, on the 2d day of August, 1920, the court's finding as to said agreement being as follows: to the credit of Frank R. Pence, and forwarded it to a bank in Chicago for collection. On the following day, about 11:00 o'clock a. m., said draft was presented to the Sawers Grain Company at Chicago, Ill., and was at once honored and paid. That on the 2d day of August, 1920, no specific number of bushels of corn was specified as to the amount to be shipped, and no corn was set apart or segregated from the mass in the elevator for that purpose, and the corn which was afterwards shipped was not separated from the mass in the elevator until it was loaded on the cars on the 7th day of August, 1920, as hereinbefore found." It was further found that on the 7th day of August, 1920, letters of administration on the estate of Frank R. Pence to his widow Delia M. Pence were granted, and that on the same day she, as such administratrix, leased said elevator to Harold R. Pence and J. O. Crane, and that Pence and Crane took possession of said elevator on the morning of the 9th day of August, 1920; that at the time Pence and Crane took possession of said elevator the two cars loaded with corn, as above found, were on the railroad siding at Tab, billed in the name of the Frank R. Pence estate to Indianapolis, Indiana, with directions to notify the Sawers Grain Company on their arrival; that said Crane inquired of McCollum concerning the corn in said cars and was told by McCollum that said cars were loaded with corn which had been placed in the elevator by farmers under contract, the terms of which we have herein before set out; that on the 10th day of August, 1920, said two cars of corn were received by the Sawers Grain Company and sold, and the net proceeds of said sale applied by said company to the payment of a debt due to said company from the estate of Frank R. Pence, for money advanced by said company to him in his lifetime; that after said cars of corn had been received by said company Pence and "On the 2d day of August, 1920, an agreement Crane, acting for the appellees, made a draft was made by and between Harold R. McCollum, on the Sawers Grain Company for the proagent of Frank R. Pence, and William Simons ceeds of the sale of said two cars of corn, acting for the Sawers Grain Company, by the which draft was presented to said company terms of which the Sawers Grain Company au- and payment thereof refused; that the fair thorized McCollum as agent of Pence to draw market value of the corn so shipped and a sight draft on Sawers Grain Company in fa- received by said company at Indianapolis, vor of the Citizens' Bank of Tab, Ind., for the Ind., at the time it was so received, was sum of $4,000 in consideration of the agree- $4.926.83 net; that on the 2d day of August,. ment by McCollum as agent for Pence that he would ship to the Sawers Grain Company the 1920, neither William Simons nor the Sawers first two carloads of corn to be shipped from Grain Company had any actual knowledge of the mass of grain then in the elevator at Tab, any claim of appellees or either of them Ind., on consignment to be sold by said Sawers upon or against said corn or any part of Grain Company, and the proceeds to be applied, it in said elevator, nor did said Simons or after deducting expenses and commissions, to the said Sawers Grain Company ever thereafter payment of the indebtedness created by the pay-acquire any knowledge of any such claim of ment of said draft, and a pre-existing indebted- appellees upon said corn until on or about ness of about $900 due to said grain company the 9th day of August following; that after from said Pence. On the same day a draft was drawn by McCollum as agent for Pence, in accordance with said agreement, which said draft was by said McCollum delivered to the Citizens' State Bank of Tab, which passed the same appellee, Jerry O. Scott, had placed his corn in said elevator, as before found, he received from Frank R. Pence the sum of $500 under an agreement that said amount should be |