Ozborn v. Woolworth

32 S.E. 581, 106 Ga. 459, 1899 Ga. LEXIS 705

• Court: Supreme Court of Georgia
• Decided: February 10, 1899
• Status: Published

Opinion

Lumpkin, P. J.

This case presents the single question whether or not an action for slander will lie against a partner ship. The trial judge held, as we think correctly, that such an action was not maintainable. Whatever may be the law-in other jurisdictions, we are quite certain that under our code there can be no action against a partnership for slanderous words uttered by one of its members. Slander is essentially a tort, the principal ingredient of which is malice. “ Partners are not responsible for torts committed by a copartner.” Civil Code, § 2658. There is authority for the proposition that a corporation may be held liable for the publication of a libel; but it can not be held responsible for a slander perpetrated by an agent, unless it be affirmatively shown that the corporation, as such, expressly directed the agent to speak the identical words used by him. See Behre v. National Cash Register Co., 100 Ga. 213, and authorities cited. In speaking slanderous words, each member of a partnership acts for himself alone and upon his own responsibility. In view of the above-cited section of our code, he can in no sense be regarded as the “ agent” of his copartners to utter a slander. The provision therein that “for the negligence or torts of their agents or servants, [partners] are responsible under the like rules with individuals,” immediately following the language above quoted from this section, was manifestly intended to apply to “agents or servants” who are not members of the partnership,.and not to the partners themselves. The petition in the present case contained an allegation that the partnership, as such, was liable because, after the speaking of the slanderous words complained of, the members of the firm had ratified the same. In reply to this, we have to say that while a partnership may ratify an act done by an agent in its behalf and for its benefit without previous authority having been given for the doing of the act, it must be one such as the partnership could in the first instance have authorized the- agent to do, for a principal can not ratify that which he had no power to authorize. See, in this connection, Harrison v. McHenry, 9 Ga. 164, 170. Since the "code expressly declares that a partnership is not liable for the torts of its members, the mere fact that all the partners approved of a tort committed by one of their number can not make the partnership liable for such tort upon the idea of ratification. Hence, the allegation in the plaintiff’s petition last referred to was not sufficient to give the plaintiff a standing in court, as its effect is simply to assert as a fact a legal impossibility.

The questions dealt with in this case were not involved in that of Gilbert v. Crystal Fountain Lodge, 80 Ga. 284; and though Chief Justice Bleckley, in delivering the opinion of the court, observed that “On principle, we can think of no reason why a partnership might not slander a third person through agents or members authorized and empowered to defame orally, or by adoption and ratification after defamation by slanderous words,” it is evident that his attention was not in that connection directed to our peculiar code provisions above stated. Certain it is that the court did not undertake to then pass definitely upon the question. It may be true that, “ on principle,” a given proposition should be regarded as sound law; yet, it can not be allowed to control if in conflict with a plain provision of a statute.

Judgment affirmed.

All the Justices concurring.