Lewis WAGNER, Petitioner, v. CAPROCK BEEF PACKERS COMPANY, Respondent, 540 S.W.2d 303

STEAKLEY, Justice. The question before us is whether the record supports a jury finding that the manager of a meat packing plant was acting in the course and scope of his employment when he slandered a former employee. The trial court ruled that it did; the Court of Civil Appeals held that it did not. 531 S.W.2d 194. We agree with the Court of Civil Appeals. The facts and procedural situation are these. Lewis Wagner, plaintiff below and Petitioner here, is a former employee of Caprock Beef Packers Company, a corporation engaged in the meat packing business. It has a plant located at Booker, Texas.

Elmer Rabin was the general manager of the Booker plant. Wagner voluntarily left his employment at the Booker plant and later applied for employment at three other packing plants in no way connected with Caprock Beef Packers, and located elsewhere. Rabin learned of these applications for employment and on his own initiative, and not in response to any inquiries from Wagner’s prospective employers, telephoned the personnel manager at each plant and stated that Wagner was an alcoholic. Wagner sued Caprock Beef Packers and Rabin for slander.

Upon trial the jury found that Rabin’s remarks were false and that they were made while Rabin was “acting within the course and scope of his employment for Caprock Beef Packers Co.” Caprock made a motion to disregard the jury’s finding on course and scope of employment and to render judgment non ob-stante veredicto in its favor. The trial court overruled Caprock’s motion and rendered a joint and several judgment against Caprock Beef Packers and Rabin for actual and exemplary damages in the sum of $35,-000.00. Caprock appealed; Rabin did not appeal and the judgment as to him has become final.

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that Wagner take nothing against Caprock. It held there was no evidence in the record to support the finding of the jury that Rabin was acting within the course and scope of his employment when he made the slanderous telephone calls. Both parties agree that the governing rule is stated in Texam Oil Corp. v.

Poynor, 436 S.W.2d 129 (Tex.1968): “An action is sustainable against a corporation for defamation by its agent, if such defamation is referable to the duty owing by the agent to the corporation, and was made while in the discharge of that duty.

Neither express authorization nor subsequent ratification is necessary to establish liability.” In response to Wagner’s requests for admissions, Caprock admitted that Rabin’s duties “included the hiring, firing and directing the work of Caprock’s employees at the Booker, Texas, facility.” A witness testified that Rabin “ran” the plant at Booker and that he did not let anyone else have any authority at the plant.

Other than this, the record is silent with respect to the scope of the duties of Rabin, and as to the custom and practice in the meat packing business pertaining to the duties of the general manager of a meat packing plant.

There is no evidence that Caprock charged Rabin with the duty of voluntarily assisting other meat packing plant employers in the hiring of employees generally, or in the hiring of any former employees of Caprock; nor is there any evidence of any custom or practice of such unsolicited assistance on the part of one meat packing plant to another such plant, or of any benefit to Caprock in thus. prejudicing the opportunity of Wagner for employment elsewhere.

Notwithstanding, Wagner argues that the showing that Rabin was in charge of Caprock’s plant, and that his duties included the hiring and firing of personnel, support an inference the jury was entitled to draw that Rabin’s unsolicited communication defaming Wagner was referable to and in discharge of a duty Rabin owed Caprock; and, further, that in any event, such showing, standing alone, established that Rabin was a vice-principal for whose defamatory acts Caprock was responsible. We disagree.

Whether or not other plants employed Wagner was not shown by the record to involve, or have any relation to, the personnel activities or decisions of Rabin as manager of Caprock’s Booker plant. Nor was there any evidence that the personnel policies of Caprock, or the quality of its products, or the operation of its plant, would be affected in any wise by the employment decisions of other plants having no connection with Caprock’s Booker plant.

Moreover, Wagner had voluntarily left his employment with Caprock and there is no evidence that Caprock had any further interest in where he went or for whom he worked; or that Caprock owed any duty to furnish information concerning Wagner to third persons. This no doubt explains the testimony of Rabin when called as an adverse witness by Wagner, and who was interrogated on direct examination concerning his telephone calls to Wagner’s prospective employers: Q. Isn’t it true that you don’t make it a practice of calling up other Packing Companies about employees? That is not your practice? A. That’s right. Q.

And if anyone would ever do that, that would be rather unusual in the Packing Industry, would it not? A. Yes. We have reviewed the evidence, and all permissible inferences therefrom, in the light most favorable to Wagner, see Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957). In so doing, we hold there is no factual basis for the inference that Rabin’s unsolicited calls were referable to or in discharge of any duty he owed Caprock, or that Caprock had conferred on Rabin such comprehensive and general power as to make Rabin its alter ego whose acts were the acts of the corporation.

See Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637 (1936), where under an analogous review of the evidence, the court concluded that the manager of a local store of the corporate employer was not about his employer’s business when he uttered the slanderous words imputed to him. And cf. Producers’ Refining Co. v.

Frazier, 283 S.W. 880 (Tex.Civ.App.1926, no writ) where the evidence established that an auditor for the corporate employer was engaged in the work committed to him when he uttered the slanderous words; as the court there said, the slander was referable to the manner in which the auditor performed an authorized duty. See also Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934) and Raney v. H. B. Zachry Co., 285 S.W.2d 955 (Tex.Civ.App.1956, no writ). It can only be concluded under the evidence here that Rabin was acting independently and outside the scope of any duty he owed Caprock.

The judgment of the Court of Civil Appeals is affirmed. Dissenting opinion by McGEE, J., joined by SAM D. JOHNSON, J. . In connection with this issue, the trial court instructed the jury that the phrase “course and scope of his employment” meant “conduct that is referable to the duty owing by an employee to the corporation and made while in the discharge of that duty.”