*1 еxample point up A will hypothetical WAGNER, Petitioner, Lewis State-operated assume that in a
problem: re- negligently of its doctors hospital, one wrong kidney. doing, In so he moved the BEEF CAPROCK PACKERS scalpel. tangible personal property, uses —a COMPANY, Respondent. scalpel, defect in the but there There is no B-5781. No. tangible injury personal in the use of Legislature provide could property. of Texas. Court negligent waiver for the conduct of July 21, 1976. doctor, it has Did it intend a but not. Rehearing Sept. Denied or use of waiver based on condition tangible personal property, sсalpel? —the do not think so. event, Legislature will future; in the near and it would be
session litigants it
very helpful give if would guidelines
the courts which are easier to
follow. above,—
The facts of the case set out having plaintiff
about the coach’s taken the brace, and the failure of
out remove tape, pleadings; trainer to are not in the
and our decision cannot turn on such a situation. But because these mat-
factual argu-
ters were made known to us in oral brief, plaintiff’s they
ment and in the are
subject to comment in view of a remand for Among allegations pleaded
trial. is a equipment Texas Tech
count that furnishеd uniforms which were defective. Tak- true, stage
ing this to be as we must it was court game,
of the error for trial I, plea
to sustain the in abatement. State’s
therefore, concur in the
Court. DOUGHTY, JJ., join in this
McGEE and
concurring opinion.
jury’s finding on
scope
course and
of em-
ployment
judgment
and to render
non ob-
stante veredicto in its favor. The trial
court overruled
motion and ren-
joint
a
dered
and several judgment against
Caprock Beef Packers
Rabin
and
for aсtual
exemplary
damages
$35,-
in the sum of
Shearer,
Close,
Otis
Lemon,
Atkinson &
Caprock appealed;
000.00.
Rabin did not
Booker,
Shearer,
for petitioner.
C.
appeal
judgment
and the
as to him has
Ochsner, Adkins,
& Han-
Gibson,
Harlan
become final.
Hankins, Amarillo,
respon-
kins,
for
B.A.
The Court of
Appeals
Civil
reversed the
dent.
judgment of the trial court and rendered
take
nothing
STEAKLEY, Justice.
against Caprock.
held
was no evi-
before us
the
question
dence
the
record to
the finding
the
jury finding
a
supports
record
jury
of
that Rabin was
within
packing
was act-
manager
plant
of meat
a
scope
course and
his employment
of
employ-
ing
scope
course and
of his
in the
when he made
the slanderous
employ-
he slandered a former
ment when
calls.
did;
court ruled that
it
ee. The trial
parties agree
Both
the governing
it
Appeals held that
did not.
Court of Civil
Corp. Poynor,
Texam Oil
stated in
agree
with the Court
S.W.2d
(Tex.1968):
Appeals.
of Civil
“An action
against
is sustainable
a cor-
are
procedural
The facts and
situation
poration
for
defamation
Wagner, plaintiff
these. Lewis
below
such defamation is referable to the duty
here,
employee
is a
of
Petitioner
former
owing by
agent
corporation,
to the
Caprock
corpora-
Beef Packers
a
Company,
and was made
the discharge
while in
of
engaged
packing
tion
in the meat
business.
duty.
express
Neither
authorization
Booker,
plant
It has a
located at
Texas.
subsequent
nor
is necessary
ratification
was the general
Elmer Rabin
of
liability.”
to establish
plant. Wagner voluntarily
left
response Wagner’s requests
In
to
for ad-
at
employment
plant
his
the Booker
and missions, Caprock
admitted
Rabin’s
employment
applied
later
for
at three other
hiring, firing
“includеd the
and di-
duties
packing plants
way
no
connected with
recting
Caprock’s employees
work of
Packers,
Caprock
else-
Beef
and located
Booker, Texas,
A
facility.”
witness tes-
learned
applications
where. Rabin
of these
plant
tified that Rabin “ran” the
at Bоoker
initiative,
for
and on
his own
he did not let
else
anyone
any
have
response
from
any inquiries
and not in
this,
authority at the
than
plant. Other
telephoned
Wagner’s prospective employers,
respect
scope
record
silent with
of
personnel manager
plant
at еach
Rabin,
of
duties
and as
the custom
an
stated that
alcoholic.
packing
in the
practice
business
Caprock Beef
pertaining
sued
Packers
to the
duties of
man-
Upon
jury
trial
a
ager
packing plant.
Rabin for slander.
of meat
There is no
false and
Caprock charged
found that Rabin’s remarks were
with
assisting
made while
was “act-
they
voluntarily
were
of
other meat
his em-
plant
course and
packing
employers
hiring
within the
Co.”1
Caprock
employees generally,
hiring
Beef Packers
or in the
ployment
any
for
disregard
employees
nor
Caprock;
made motion to
former
is there
issue,
duty owing by
employee
to the
with
trial court
is referable
an
1. In connection
corporation
phrase
that the
“course and
to the
and made while in the dis-
instructed the
duty.”
employment”
charge
of that
meant “conduct
evidence,
We havе reviewed the
and all
custom or
evidence of
therefrom,
permissible inferences
in the
part
such unsolicited assistance on
light
Wagner,
most favorable to
see Big
such
plant
to another
one meat
gers
System,
Continental
Bus
in thus.
or of
benefit to
plant,
(1957).
so doing, we
for
opportunity Wagner
prejudicing
*3
hold
is no factual
for the
there
basis
infer
employment elsewhere.
ence that Rabin’s unsolicited calls were re
that
Notwithstanding, Wagner argues
discharge
any
ferable to or in
of
duty he
charge of
showing
that Rabin was in
Caprock,
Caprock
owed
or that
had con
that
includ-
Caprock’s plant, and
his duties
comprehensive
on
ferred
Rabin such
sup-
hiring
firing
personnel,
ed
general power as to
make
its alter
was entitled
port an inference
ego
acts
whose
were the acts of the corpo
unsolicited
draw that Rabin’s
communica-
ration. See Great
&
Atlantic
Pacific Tea
to and
defaming
tion
was referable
Majure,
v.
176
Co.
Miss.
jury.” Rabin’s any authority House,” at the Packing Wagner’s position, which is adverse to plant. that Mr. Rabin alone ran the Fur- of a fact majority has assumed the role ther, one, wеighed Rabin made not but tele- the evi three improperly and has finder phone personnel to the Obviously, managers calls at on both sides of issue. dence testimony, plants where taking cognizance of Rabin’s various was seek- by case has not majority falsely informing in the instant them “no evi was an properly applicable followed alcoholic. These calls record, I suspicion. surmise or Under this after only a few weeks were made position understanding with how the ma- difficulty his have voluntarily terminated had clear that Ra- Additionally, it is the conclusion that “there is jority rеached Caprock. compa- on of these calls all three no factual basis for the inference that Ra- bin made own and from his time, day, a work on referable to or in ny bin’s unsolicited calls were Finally, Rabin plant. at the discharge any duty Caprock.” office he owed sрeak knew, requested personally [Emphasis added]. at the managers personnel with, each of discussing article “no evi- In his excellent he contacted. plants packing
three error,” Justice Calvert stat- points dence could corporation that a inconceivable the inference is not a reasona- ed that “[i]f obviously plant which a operate point a evidence’ should be ble one ‘no hired and employees be require would Calvert, “No Evidence” and “In- sustained.” or supervisor have a and not fired Error, Points sufficient Evidence” pеrson- give and receive authority to with also, (1960). Texas L.Rev. See nel references. Corporation of Texas v. Telephone Western jury to me that It is evident McCann, (1937); 128 Tex. calls conclude that liberty to Warden, Texas & N. O. R. Co. to the manner were referable question (1935). Certainly 78 S.W.2d authorizеd performed his which inference drawn reasonable *5 manager, Caprock’s personnel as findings of the uphold one. I would wholly inde- to acts they were not referable Accordingly, I would reverse the jury. scope of such and outside of the pendent appeals civil judgment оf the court of to infer that jury was entitled duty. The the trial court. affirm the uttered statements were the slanderous authority broad of Rabin’s within JOHNSON, J., joins in this dis- D. SAM Caprock’s principal manager of general as sent. not hold that I would place of business. jury’s evidence to there is no due to the fact
findings partly prac- custom and silent as to the
record is pack- managers in the
tices of whole. The should
ing industry as а case on its merits to decide this be allowed LEWIS, Savings Loan W. Sale particular findings upon and base al., Petitioners, Commissioner, alone, et regard- granted to Rabin authority gener- adopted by other less business. the meat managers in al AND BUILDING JACKSONVILLE Townsend, In Woods v. ASSOCIATION, al., et LOAN (1946), this court stated Respondents. differ from minds cannot reasonable No. B-5814. probative the evidence lacks conclusion legal equiva- force, be held to be the it will Texas. Court of understand evidence. I fail to lent of no July 1976. case, in the instant can assert that how one not differ as minds could reasonable Sept. Rehearing Denied evidence reflected or not ma- force. The probative lacks this record offered held that the evidence
jority has Elmer Rabin made prove that
this case to while in the statements slanderous
these is so
course a mere more than create to do no
weak as