Houston Belt & Terminal Ry. Co. v. Wherry

• Decision Date: 02 December 1976
• Docket Number: No. 16755,16755
• Citation: 548 S.W.2d 743
• Court: Texas Court of Appeals
• Parties: HOUSTON BELT & TERMINAL RAILWAY COMPANY et al., Appellants, v. Joe W. WHERRY, Appellee. (1st Dist.)

Page 743

548 S.W.2d 743

HOUSTON BELT & TERMINAL RAILWAY COMPANY et al., Appellants, v. Joe W. WHERRY, Appellee.

No. 16755.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Dec. 2, 1976.

Rehearing Denied March 10, 1977.

Fulbright & Jaworski, John D. Gilpin, Osborne J. Dykes III, Thomas O. Matlock, Jr., Houston, for appellants.

Helm, Pletcher, Hogan & Burrow, George E. Pletcher, J. Donald Bowen, Houston, for appellee.

PEDEN, Justice.

Mr. Joe Wherry alleged in this libel action that the appellants had made a false written statement branding him a drug addict. His specific complaint was that on or about August 23, 1972, and prior thereto, the defendant, Houston Belt & Terminal Railway Company, acting through its agents and employees, T. Minahan, D. H. Montgomery, and Bill Robins, acting in the course and scope of their employment for defendant, Houston Belt & Terminal Railway Company, wrote, published and caused to be delivered a report that methadone had been found in plaintiff's system, and that this "is a synthetic drug commonly used in the withdrawal treatment of heroin addicts."

The appellants filed a general denial, denied that the report was maliciously made or was known by them to be untrue, and asserted that any statements made by them were qualifiedly privileged. Their trial amendment alleged that any statements made in the course of either a hearing, brief, appeal, or award of the Public Law Board, or any such body, would be absolutely privileged.

At the close of the evidence Wherry dismissed his action against Dr. Robins. In response to special issues the jury found that 1) the defendant Railroad stated in writing that Wherry was a narcotics user in violation of Railroad Rule G, 2) such statements were false, 3) Wherry received an injury to his reputation or good name, 4) the statements made were a proximate cause of the injury to his reputation or good name, 5) the defendant acted with malice in regard to the statements made, 6) $150,000 would reasonably compensate Wherry for injuries suffered as a result of such statements, and 7) he should be awarded $50,000 against the Railway as exemplary damages.

The trial court overruled defendants' motion for judgment notwithstanding the verdict and their amended motion for new trial. They complain in twenty-five points of error.

Wherry was first hired by the Belt in September 1969 as a switchman. After working seven months he was drafted into the Army where he remained until December, 1971. He attended college for a semester, then returned to work as a switchman for the Belt in June, 1972. When the Belt allowed him to resume his position with full seniority, the union challenged this action and claimed time for another man every day that Wherry worked. On July 14, 1972, Wherry sustained a knee injury as he was attempting to climb on a fence to pass signals to other railroad employees. He sat down, then fainted, receiving cuts on his face. He was examined by Dr. Robins, the designated chief surgeon for the Belt, who treated his cuts and ordered two tests run by the hospital laboratory to learn why he had fainted: one for diabetes and the other, a drug screening, to see if the fainting was drug-related. The lab report was received by Dr. Robins on July 18 stamped "DRUG SCREEN METHADONE POSITIVE." Below the stamped word "METHADONE" appears the handwritten word "trace." Dr. Robins explained that a trace is a minute amount and that one test is not enough to indicate that Wherry was a drug user. He reported by telephone to Mr. Montgomery, superintendent of safety and assistant manager of personnel for the Belt and the official to whom Dr. Robins customarily reported, that "we had obtained a positive methadone, with a trace" and that "methadone was a drug which was used usually in treating heroin addicts, to get them off of heroin and onto the methadone." He told Montgomery he couldn't say this means anything, but it might be investigated further. He intended to convey only the possibility that Wherry was a heroin or methadone user, not that he was a user. Dr. Robins testified that methadone will show up in one's urine for only about twenty-four hours. At Montgomery's request Dr. Robins furnished a narrative report dated July 24, 1972. Its pertinent contents will be later quoted as writing # 1.

On July 19, 1972, after talking to Dr. Robins, Montgomery had prepared a written report describing Wherry's accident, his injuries, and the telephone conversation with Robins. Montgomery's report will be quoted later, in part, as writing # 2. The report was sent to seven Belt officials, including Superintendent O. R. Adams. Each received it by reason of his position and duties at the Belt. This was the reporting procedure usually followed for any accident that resulted in loss of time.

On July 21, Dr. Robins released Wherry to return to work, but the Belt suspended him the same day by letter from O. R. Adams, pending a formal investigation into his alleged injury. The "investigation", or hearing, was held on August 1. Wherry first heard of the methadone finding when Montgomery read the doctor's report and his own report at the hearing. He then had another urinalysis run for drugs in his system. The report on that test was made by a Dr. John Spikes and was received by the Belt on August 7; it stated that Wherry's urine sample revealed the presence of a compound whose characteristics resembled methadone, but that further analysis showed that the compound was not methadone or any of the commonly employed drugs of abuse. Wherry testified that he had never taken heroin, methadone, or any narcotics. On August 9, Wherry was dismissed for being an unsafe employee and for failure to timely report his accident even though, as we will see, the elapsed time was very short. He was not dismissed for violation of Rule G, which provides that the use of intoxicants or narcotics is prohibited.

After his discharge from the Belt, Wherry sought assistance from the Veterans' Administration on the grounds that he was discharged without cause. Mr. Merle Rider of the U. S. Department of Labor wrote defendant Mr. Minahan asking about Wherry's discharge. Minahan replied by letter dated August 23, 1972, that Wherry was dismissed for violation of safety and accident reporting rules and making another statement which we will notice as writing # 3.

Wherry appealed his discharge under the Railway Labor Act, and his dismissal was affirmed by Public Law Board No. 1259 on November 13, 1974. The Board was convened as an arm of the National Railroad Adjustment Board under authority of Public Law 89-456, 45 U.S.C. § 153. Its three members were Mr. Minahan, representing the Belt, Mr. A. J. Cotton, representing the union and Wherry, and Mr. Burl E. Hays, a neutral member appointed by the National Mediation Board.

The award was filed with the National Mediation Board. It will be quoted as writing # 4 later. It was signed by Hays and Minahan. Cotton did not sign it.

We look first to these points of error:

9. "The trial court erred in submitting Special Issue No. 1, over proper objection, because there was no evidence that any defendant stated in writing that plaintiff was a drug user.

10. "The trial court erred in overruling defendants' amended motion for new trial because the evidence was factually insufficient to support the jury's affirmative answer to Special Issue No. 1.

11. "The trial court erred in submitting Special Issue No. 2, over proper objection, because there was no evidence that defendants' statements were substantially false.

12. "The trial court erred in overruling defendants' amended motion for new trial because the evidence was factually insufficient to support the jury's affirmative answer to Special Issue No. 2."

These are the excerpts from the four writings in evidence (referred to above) which must be looked to in reviewing this case:

1. Montgomery's July 19, 1972, accident report. Only pertinent part:

"Laboratory results of the urine specimen was positive for methadone, which is a synthetic drug commonly used in the withdrawal treatment of heroin addicts."

2. Dr. Robins' letter on the lab results sent to Montgomery on July 24, 1972. Pertinent part:

"The Drug screening test was positive for Methadone. Methadone is a drug which is often used to give heroin addicts since it has essentially the same effects as heroin, but is much less expensive. It can in some doses produce syncope . . ."

3. Minahan's letter of August 23, 1972, to Mr. Rider of the U. S. Department of Labor, set out above:

"It was also determined by the Doctor who examined Mr. Wherry following his injury, caused when Mr. Wherry passed out and fell, that traces of methadone were present in Mr. Wherry's system, which constitutes grounds for discharge under Uniform Code of Operating Rules, Rule G."

4. The Public Law Board award, dated November 13, 1974. Pertinent part:

"Carrier should not have removed Claimant Wherry from service prior to the investigation in view of the above facts. The Board will therefore allow Yardman Wherry pay for all time lost commencing July 21, 1972, until August 23, 1972, the date he was dismissed by the Carrier.

"The testimony at the investigation disclosed that Claimant was, in fact, responsible for his accident in that he was 'under the influence of' or 'had been using' a drug known as methadone. This, in the Board's opinion, was sufficient justification for his dismissal, even though he was not formally charged with violation of Rule G of Carrier's Uniform Code of Operating Rules."

We think it clear that Dr. Robins' letter was not libelous, and did not fit the inquiry in Issue No. 1, and we do not believe the jury considered it did so in answering the issues.

Wherry contends that the first writing listed above, Montgomery's report, was libelous because it implied that he was using methadone and was a heroin addict, it failed to reflect Dr. Robins had said that only a...