135 S.W.2d 138 | Tex. App. | 1939
This appeal is from an order overruling the plea of privilege of appellant, West Texas Utilities Company, a corporation, to be sued in Taylor County, the county of its residence. The plea of privilege was duly controverted, the controverting affidavit, itself, succinctly stating a cause of action for slander in strict accord with the requirements prescribed for such controverting affidavit by the Supreme Court in the recent case of A. H. Belo Corporation v. Blanton, Tex.Sup.,
It is not contended that appellee failed to prove the last two requisite venue facts required by the decision; but that he failed to prove the first requisite venue fact for the two reasons above stated. We do not sustain these contentions.
Appellee established at least a prima facie case of liability for damages for slander against appellant on the venue hearing, by alleging in his controverting affidavit and by proving that for several years he had been employed by appellant as a switch board operator in its power plant at San Angelo, Tom Green County, Texas, where he had resided continuously for about nine years, and where he resided at the time the cause of action accrued; and by proving facts and circumstances which tended to show, in substance, that because of his activities in the organization of a union of appellant's electrical employees under the recent Wagner Labor Relations Act,
"Q. What effort, if any, did the West Texas Utilities Company make to keep you from collecting your insurance? A. According to the insurance company's adjuster, he told me that Mr. Huss and other officials had told him there was not a damned thing wrong with me, and that they were holding up on the compensation for that reason until they could investigate it. I asked him the question if that was not what the chief engineer and other officials had told him and he said, `that is exactly right; that is what they told me.'"
Appellee also testified, in substance, that he never had a cross word or complaint about his work at any time, but that because of the ill feeling of appellant against appellee for his union activities, Huss and other agents and officials of appellant made the *140 remark or statement that he was faking an injury, which was maliciously and purposely made to injure the character of appellee, and so as to leave the impression that he was being fired and dropped from the payroll for faking an injury, rather than because of his activities in the organization of the labor union against the wishes and over the protest of appellant, its agents and officials.
Wm. Camfield testified that chief engineer Huss made the statement to him that appellee was trying "to put the big breeches on the company," which remark or statement he understood to mean just what was said, and that appellee was faking an injury so as to take advantage of his employer and the insurance company.
On January 20, 1938, Huss, the chief engineer, called appellee to the power plant and gave him a check, paying him for his wages up to January 15, 1938; and as reasons for firing appellee stated:
"Q. What did he say to you as the reason he was firing you? A. He said on the shift I was working on they were not getting the cooperation out of me they thought they should have.
"Q. Did he explain in what way? A. No, he did not; he said, `we are not getting the cooperation out of you on the shift you have been working on and that is why we transferred you to the repair gang, and as soon as you went to work there you claim you were injured, and according to your doctor and the company doctor you are not injured, and under those conditions we cannot use you any longer; here is your check.'"
Appellee also testified that he went to Abilene, to the home office of appellant, to find out why the company had fired him, and that the following conversation with the vice-president and general manager took place:
"Q. To whom did you talk? A. I talked to Mr. Schroder, vice-president and general manager.
"Q. What was your conversation? A. I asked him the reason I was fired and he asked me if I hadn't been told why. I said, `Yes, but I want to get it from you.' He asked the reason they gave me and I told him and he said that was correct.
"Q. He asked you if you had been told why you were fired? A. Yes, sir.
"Q. And you told him you had been told why? A. Yes, sir.
"Q. What did you tell him? A. I told him that the Chief told me he was not getting the cooperation out of me on the shift I had been working on and that was the reason he had transferred me to the repair gang, and shortly after I began work on the new job I claimed I was injured, and that according to my doctor and their doctor I was not hurt, and that under those conditions the Company did not want me any longer, and he said that was right."
The facts and circumstances detailed establish at least a prima facie case of slander by the chief engineer of appellant, who was shown to have the authority to fire or discharge appellee, which act of the chief engineer was also later ratified and confirmed by the vice-president and general manager of appellant. The chief engineer made the statement to appellee's fellow employees and to the insurance adjuster, and in connection with his duty of controlling appellee in his employment and in firing and discharging him, to the effect that appellee was merely faking an injury so as to impose upon and to in effect defraud both appellant and the insurance company in his claims for wages and compensation insurance during the time he was disabled by reason of the fake injury; which statement was falsely and maliciously made, according to appellee's testimony, and was made because he had incurred the ill will of appellant in helping organize a labor union of appellant's employees, under the recent Federal Labor Relations Act, which union appellant was fighting through Huss and its other officials, who talked with appellee while he was in the employ of appellant, protesting his activities in the organization of such union.
Appellant contended that the statement shown to have been made by Huss was not slanderous per se, and since no special damages were shown, no cause of action for slander accrued. The general rule is that it is necessary to accuse a person of a crime in order to make such accusation per se slanderous; but there is an exception to this general rule which is as well settled as the general rule, and which is that words not otherwise actionable per se sometimes become so if spoken of a person engaged in a particular business or profession, where they charge him with fraud, indirect dealings, or incapacity, and tend to injure him in his trade, occupation, employment, or business. That exception to the general rule is applicable to the instant case, and a clear statement of it is made in the case of Mayo *141
v. Goldman,
To the same effect are Missouri Pac. Ry. Co. v. Richmond,
In this connection, we sustain the proposition of appellee that an employee's compensation under the Workmen's Compensation Act is a part of and incident to his employment, trade, occupation, or calling; and an employee's union activities and association are a part of and incident to his employment, trade, occupation, or calling, under the modern business methods; and an employee's right to remain on the payroll and in the employment of his employer and to continue to receive his wages during disability because of injury is a part of and incident to his employment, trade, occupation, or calling; and that to falsely and maliciously accuse appellee of faking an injury so as to take advantage of his employer and of the insurance company carrying the compensation insurance for his employer injuriously affected appellee in his business, trade or calling as an electrical switchboard operator; and that the effect of such statement was slanderous per se, entitling appellee to general damages; and his cause of action for slander was established without the necessity of proving special damages. We also think that appellee established special damages; but under the rules stated and applicable here that question need not be discussed.
Nor do we think it necessary to discuss at length the second contention of appellant that if the statements made by Huss constituted actionable slander, then appellee failed to prove that Huss, the chief engineer, was acting on the part of appellant in making the slanderous statement. Briefly, the evidence showed that Huss had the authority to demote and to fire and hire appellee and had complete control over him, and did fire him. The statement made by Huss was in connection with his authority to control and fire appellee, which he exercised in appellee's case, and such action was later ratified and confirmed by the vice-president and general manager of appellant. The following authorities sustain the conclusion that the slanderous statement made by Huss was made in the discharge of his duty of controlling, hiring, and firing appellee, and was in reference to the duty owed by appellee to the appellant corporation, which can only act through its agents and officials; and that the statement was made in the furtherance of the corporation's business; and that the statement made by Huss was ratified and confirmed by appellant. Great Atlantic Pac. Tea Co. v. Harris, Tex. Civ. App.
The judgment of the trial court is affirmed.
Affirmed.
*142BAUGH, J., did not take part in the decision of this case.