
    Harry J. Flanagan, Respondent, v. McDermott Dairy Company and Harry Johnson, Appellants.
    First Department,
    May 7, 1909.
    Libel — publication not libelous — complaint not stating cause of action — when corporation not liable for libel by superintendent.
    A corporation is not liable for an alleged libel written by its superintendent to a third person stating that “Experience is worth a million dollars. I will know better in the future not to give a man that has no more honor than to expect every new man he breaks in to treat him to a glass of booz or turn him down as incompetent. If you are an advocate of rum stick to Flanagan,” in the absence of an allegation that the superintendent was employed or authorized by his corporation to write the letter.
    Employment as superintendent of a corporation gives no authority to publish a libel on its behalf..
    Moreover such letter is not libelous per se and a complaint based thereon fails to state a cause of action against the writer, for it simply states that if the recipient “advocates” rum, he will “stick to Flanagan,” and many good men are advocates of rum.
    Appeal by the defendants, the McDermott Dairy Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19th day of Hovember, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrers to the complaint.
    
      John De Witt Warner, for the appellants.
    
      Maurice L. Heidenheimer, for the respondent.
   Ingraham, J.:

The action is for a libel contained in a letter written by the defendant Johnson, dated April 10, 1908, addressed to one M. Murphy, and is as follows :

“ My Good Sib.— Experience is worth a million dollars. I will know better in the future not to give a man that has no more honor than to expect every new man he breaks in to treat him to a glass of booz or turn him down as incompetent. If you are an advocate of rum stick to Flanagan.

“Believe me when I sign myself, Tours very truly,

“H. M. JOHMSON.”

The coinplaint alleges that the defendant corporation is a domestic corporation, doing business in the State of Mew York; that the defendant Johnson was employed by the corporation as superintendent, and as such was in charge or control of, or supervised the business of the defendant corporation; that on the 21st day of March, 1908, the defendant corporation by the defendant Johnson, its superintendent, and' the defendant Johnson, wrongfully, willfully and maliciously wrote and published the letter of and concerning the plaintiff to one M. Murphy in the city of Mew York; that the said letter and libelous statement was written and published by the defendant Johnson in his capacity as superintendent of the defendant corporation, and was written and published for the purpose of aiding and benefiting the said defendant corporation in the conduct of its business, and more particularly to influence through its terms and through the statements as to the plaintiff’s habits and conduct, the said Murphy, and to retain the custom and trade of the said Murphy for the defendant corporation ; that the plaintiff was and still is in the employ as driver of the ■ Thorndale Farms, which is in the milk business, and has covered the same tenitories and sold milk to persons in the same localities as the branch of the defendant corporation, and that the said libel was published by the defendant for the purpose and with a view that.it would be spread among the customers of the plaintiff, who was formerly employed by the defendant corporation; and the complaint demands judgment for the sum of $20,000.

The defendants demur separately to this complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

It is quite evident that no cause of action is alleged against the defendant corporation. It is not alleged that the defendant Johnson was employed or authorized by the corporation to write such a letter. Johnson’s employment by the defendant corporation as superintendent gave him no authority on behalf of the corporation to libel others. It is not alleged that this letter was written in relation to the business of the corporation, that the plaintiff was ever employed by the corporation to break in new men, or that he ever turned down any new man as incompetent. The allegation of the complaint that the letter was written and published by Johnson in his capacity as superintendent of the. defendant, corporation could not bind the corporation, unless Johnson occupied such a relation to it as made the defendant responsible for his acts of such a character, and it appeared that the letter was actually written as an act of Johnson on behalf of the corporation and within the authority conferred upon him. . The form of the letter on its face is a letter of Johnson’s to a third party, having no relation to the corporation or its business or affairs.

But the letter.is not libelous per se. It does not appear upon its face to have had any relation to the plaintiff or to his former employment by the defendant- corporation. Hotliing connects the plaintiff with the first clause of the letters. The statement in the letter: “ If you are an advocate of rum stick to Flanagan,” does not charge him with being a drunkard, or a man of dissolute habits. -Nor is he charged with being an advocate of the use of rum. It merely states that if the person to whom the letter is written is an advocate of such use, he will stick to Flanagan, fío far as appears Flanagan may be a total abstainer or an advocate of the use of intoxicants upon scientific principles. The use of alcohol is advocated by a large proportion of the community, and whatever may be the individual opinion of any one person, it certainly cannot be considered as tending to disgrace a person orto hold him up to contempt and ridicule to say that those who do advocate the use of alcoholic beverages should befriend or support a person named. The allegation that this letter was written for the purpose of retaining the trade of the person to whom it was addressed as against the Thorn dale Farms, a competitor in business of the corporation by whom the plaintiff was employed, would not necessarily injure the plaintiff.. It would be an injury to his employer rather than to him. Upon the whole, I think the article is not libelous per se, and for that reason the demurrers should have been sustained.

The judgment appealed from is, therefore, reversed, with costs, and judgment sustaining the demurrers directed, with costs, with leave to the plaintiff to amend his complaint within twenty days upon payment of costs in this court and in the court below.

Patterson, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed, with costs, and demurrers sustained, with costs, with leave to plaintiff to amend on payment of costs.  