West Texas Utilities Co. v. Wills , 164 S.W.2d 405 ( 1942 )

Appeal in a suit for slander from a final judgment upon a special issue verdict in favor of Wills (appellee) and against Utilities (West Texas Utilities Company, appellant) for $852 actual and $300 exemplary damages.

The case was before us in a former appeal from an order overruling a plea of privilege. 135 S.W.2d 138. A careful examination of the statement of facts discloses that the evidence upon the two appeals was in substance largely the same; and since a very full and accurate statement of the material evidence is given in Associate Justice Blair's opinion on the former appeal we refer, in the interest of brevity, to that opinion for a full statement of the evidence, confining our present statement to such brief outline thereof as may be necessary to a clear understanding of the points raised in the appeal and of our holdings thereon.

The slanderous words which form the basis of the judgment were uttered by Huss, Chief Engineer of Utilities at its San Angelo power plant, to Camfield, an employee of Utilities at that plant, concerning Wills, another employee. These words were: "There is nothing wrong with him, he is just trying to put the big britches on the Company." The alleged implication of this language was in substance that Wills was attempting to commit a fraud upon Utilities by feigning that he had been injured in the course of his employment when in fact he had received no injury.

The circumstances surrounding this utterance, as gleaned from plaintiff's evidence, may be epitomized as follows: Wills had been in the employ of Utilities at its San Angelo plant for a number of years as a switchboard operator. In the fall of 1937 the National Brotherhood of Electrical Workers, an affiliate of the American Federation of Labor, undertook to unionize the plant, and obtained a charter for a local union of which Wills became a member and officer. Utilities was making strenuous efforts to prevent unionization of its plant and Wills was remonstrated with by some of Utilities' officials for his "lack of co-operation" in this regard. December 4, 1937, Wills was transferred from the switchboard to the repair gang. Although the salary was the same, this change was regarded as a demotion because of the difference in character of the work; that on the repair gang being hard manual labor. This demotion was due to Wills' "lack of co-operation." Three days later Wills sustained an injury to his back while working as a member of the repair gang. January 20, 1938, he was discharged by Huss, with the statement that it was on account of his lack of co-operation and his claiming to have been injured. The language complained of was uttered by Huss to Camfield at the plant a few days after Wills was discharged.

Utilities has briefed its case under fourteen points.

Point one urges that Huss was not acting within the scope of his employment, and therefore the utterance was not imputable to Utilities. Huss had general supervision of the San Angelo plant, with authority to "hire and fire" the several employees. The fight to unionize the plant was then going on, in which Utilities was endeavoring to prevent unionization and Wills was one of the leaders in the efforts to unionize. Wills had been discharged, and the evidence showed there was discussion among other employees concerning his discharge. Huss had inquired of Camfield whether he had heard of such discussion. The attitude of the other employees in that regard was evidently a matter of concern to Utilities in its relation to its employees, as the morale of the employees was no doubt involved in this attitude. The clear purpose of the utterance of Huss was to justify the discharge of Wills upon a valid ground, and to negative any implication that Utilities was motivated by Wills' unionization activities. Viewed in this aspect, which the evidence amply supports, Huss was clearly acting within the scope of his duties to his employer. For an able discussion of this subject with digest and analysis of authorities see Southwestern Tel. Tel. Co. v. Long, Tex. Civ. App. 183 S.W. 421.

The second and fourth points are in substance that if Huss was acting within the scope of his employment then (2) Camfield was also so acting and there was therefore no publication of the slander since it was in effect a communication by Utilities to itself, and (4) in any event the communication was privileged and therefore not actionable absent a showing of express malice. These points are not well taken for the reason that while Huss was acting within the scope of his duties to Utilities, Camfield was not so acting. He had no duties to his employer concerning the maintenance of morale of his fellow employees with regard to the unionization vel non of the plant. In this respect the company was dealing with its employees at arm's length. Its efforts to counteract unionization, in so far as they were legal, had nothing to do with the duties of such employees to the company in their relation as employees.

The third point contends that the utterance was on its face complimentary and not derogatory, and therefore it was necessary to show actual damages to sustain an action for slander.

The charged implication of the utterance, which the evidence supports, was that Wills was dishonest in his dealings with Utilities, in that he was attempting to practice a fraud upon it by feigning an injury which did not exist. It is now a generally accepted doctrine that to charge an employee with dishonesty in his dealings with his employer is slanderous per se in that it falls within the general classification of "words which affect a person injuriously in his office, profession, or occupation." Mayo v. Goldman, 57 Tex. Civ. App. 475, 122 S.W. 449, 450; 33 Am.Jur., p. 86, § 71. It is likewise a general rule that in order to authorize recovery of substantial (as distinguished from nominal) damages, for a per se slanderous utterance, it is not necessary to prove special damages, since injury to reputation is presumed. Jenkins v. Taylor, Tex. Civ. App. 4 S.W.2d 656; 37 C.J., p. 115, § 564, B. This holding also disposes of point seven which asserts there was no proof of special damages.

Points five and six complain of the failure of the court to submit to the jury the issues (5) whether Huss was acting within the scope of his authority and (6) whether the uttered words were in fact slanderous. We think appellant was clearly entitled to have these issues submitted upon proper request therefor. The points were raised only by objection to the charge; and appellee contends that this was not sufficient and a special issue thereon should have been requested by appellant, citing Wichita Falls O. Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, and other cases. Since we are reversing the judgment on other grounds, and since the new rules will apply to another trial of the case, we find it unnecessary to consider this question of practice.

The eighth point contends there was no basis shown for exemplary damages, since the malice of Huss was not imputable to the company. We think the conversation which Wills had with Schroeder, vice-president and general manager of appellant, which is detailed in our former opinion, was sufficient to authorize a finding that the slanderous utterance was ratified, if not in fact authorized, by appellant.

The remaining six points complain of rulings of the court upon the admission of evidence. Before considering them on their merits we will dispose of a question of practice, raised by appellee, which is applicable alike to each of them. Appellee contends that these points should not be considered because they were not properly raised in appellant's motion for new trial as provided in District Court Rule 71a (126 Texas VII, 99 S.W.2d XXX). The record showing in this regard is as follows: The judgment was rendered May 24, 1940. Appellant's motion for new trial was filed the same day and overruled June 17, 1940. It contained fifteen assignments of error, each complaining of a separate ruling upon the admission of evidence. There are fifteen separate bills of exception corresponding respectively to these assignments, all filed July 15, 1940, after adjournment of the court. Since the second assignment (covered by point 9) is illustrative of them all in this regard, we shall confine our discussion to it. It reads:

"Because the court erred in admitting the evidence set out under the circumstances set out, over the objections of the defendant as set out in its Bill of Exceptions No. 2, here referred to and made a part hereof."

Bill of exceptions No. 2 reads: "Defendant tenders as this bill of exception the questions, answers, objections and actions reflected by the statement of facts beginning at Line 3, Page 18, through Line 12, Page 18, and in order to make clear the testimony and the reasons for its objections thereto it adopts as part of its bill Lines 7 to 28, each inclusive, Page 17, of the Statement of Facts."

The court's approval reads: "The foregoing having been examined, submitted to opposing counsel and found to be correct and not objected to by opposing counsel, is allowed as Defendant's Bill of Exception No. 2, and ordered filed as a part of the record herein, this 15 day of July, A.D. 1940."

Appellee's contention is that the assignments in the motion for new trial did not direct the court's attention to any specific rulings that were complained of because the references in the assignments were to bills of exceptions that were not then in existence, they not having been presented to the trial judge and filed until a month after the motion was overruled.

The purpose of Rule 71a is clearly and succinctly stated in Judge Sharp's opinion in Stillman v. Hirsch, 128 Tex. 359, at page 369,99 S.W.2d 270, 275. That purpose is "to give to the trial judge an opportunity to try the case correctly, and to avoid unnecessary appeals," by directing his attention to such asserted errors as the proponent of the motion expects to rely upon on appeal, so that the judge "may have an opportunity of reviewing his decisions, and, if need be, correct them." Substantial compliance with the rule in the light of its objective, is all that is required. The course followed in this case carries with it the presumption, we think, that the trial judge had before him, at the time he overruled the motion, the substance of the data contained in the several bills of exceptions which he later approved. The motion was overruled and the several bills approved without qualification. Appellee made no objection to the bills in the form and manner or as regards the time of their presentation. The trial judge approved them without qualification. This clearly shows that the method adopted by appellant of preserving its exceptions to the several rulings upon evidence was acquiesced in both by the trial judge and appellee. We therefore hold that the invoked rule was complied with.

The ninth point complains of admission of Camfield's evidence to the effect that he had heard repeated several times around the plant "that there was nothing the matter with him (Wills) that he was just faking." This evidence, we think, was admissible as showing the setting in which the slanderous utterance was made, and the objective of Huss in making it. As detailed by Camfield, the attendant circumstances were as follows:

"Well, shortly after Mr. Wills was fired — I call it — soon after he quit work over there, Mr. Huss came to me in the shop and asked me if I had heard it discussed around the plant as to why Mr. Wills was not there. I told him I had not heard any discussion to speak of. He told me he had heard it around that some of the boys had been discussing it and that he had been unjustly let out from the service. He said he didn't figure it that way; that the Company figured he was not hurt and was trying to put the big britches on the Company."

We overrule the point.

Points ten and eleven complain of admission of evidence of Wills to the effect (10) that he had not earned much since his discharge, that he didn't have much left after paying his expenses and that he was in debt several hundred dollars; and (11) that his credit rating had been impaired. We sustain these points for the reason that the evidence does not show any causal connection between the slanderous utterance and Wills' financial condition or his credit rating. A different question would be presented if the suit were one for wrongful discharge.

Point twelve complains of admission of testimony of Wills to the effect that he was entitled to $20 per week from appellant's insurance carrier as workmen's compensation for his injuries. Wills' claim was properly filed, denied, and suit brought thereon. It was later compromised for $300. No tenable hypothesis is presented under which evidence as to what Wills was in fact entitled to under his compensation claim had any relation to any issue in the case. Moreover the evidence was pure hearsay, since Wills testified he based it upon what his attorney told him.

Points thirteen and fourteen complain of the admission of testimony of Wills and wife detailing a statement made to them by the insurance adjuster, to the effect that the officials of appellant had told him "that there was not a damn thing wrong" with Wills and not to pay him anything. This evidence was hearsay and clearly not admissible on that ground.

The trial court's judgment is reversed and the cause remanded.

Reversed and remanded.

BAUGH, J., did not sit in this case.