dissenting: The statute under which this action is brought, which is correctly copied in the opinion of 'the Court, is a very useful piece of legislation, and is intended as well for the protection of the traveling public as for the benefit of all employees Avho discharge their duty in a faithful manner.
Taking the statute as a whole, it seems to be very plain in its meaning. The gravamen of the cause of action is an attempt to prevent by word or writing of any kind which is false a discharged employee from obtaining employment. The statute expressly excepts from its operation any cause of action when the statement made by the employer contains a truthful statement of such discharge:
In this ease the plaintiff is an engineer. He belonged to a class of men who daily take their lives in their hand for our benefit, and to a profession whose unpretending, self-sacrificing-heroism has been immortalized in song and story.
Of all professions which are interested in having the records of their members made known for the benefit of the efficient and faithful, the profession of a locomotive engineer stands -first. In order that publicity may be given to such records, the statute expressly authorizes the giving of a truthful statement as to why an employee has been discharged. If the statement is truthful, it is immaterial what the motive of the master may be in furnishing. If his motive is to prevent the employment-in a position of immense responsibility of an incompetent or unfaithful person, then the motive is a laudable one.
The charge which the plaintiff makes in his .complaint is that the defendant company, through its superintendent of motive power, Poole, attempted to prevent his getting employment with certain railroad companies by means of furnishing them with an untruthful statement of his service and record with the defendant company. These letters ai'e published in the opinion of the Court.
I am constrained to hold that the testimony of the plaintiff, himself, shows that every material statement set out,in these letters has been substantiated by his own evidence, and that upon such testimony the learned judge of the Superior Court was justified in sustaining the motion to nonsuit.
*256The plaintiff’s evidence tends to prove that he entered the employment of the defendant 31 January, 1907, and .was dismissed 9 January, 1909. During his employment there was in force on the defendant railway the “merit system,” whereby an engineer received demerits for bad conduct, and upon receiving a given number within twelve months, he was discharged. If he did< not receive ahy demerits, then he Was given a good mark. During the time of the employment of the plaintiff, a period less than two years, he was actually suspended for 120 days on account of accidents and other charges, and also received 45 days record suspension.
The plaintiff admitted upon cross-examination that he was present and his examination taken each time he was suspended, and that he was notified of his suspension. He admits that under the rules of the company he had a right to appeal in each instance in which he was not satisfied with the action of the company in suspending him, and that such ■ appeal could be prosecuted personally by him, or by a committee composed of members of the Brotherhood of Locomotive Engineers.
The plaintiff further admits, although he was suspended on so many occasions, he appealed only on one occasion when he was discharged, and that the Brotherhood of Locomotive Engineers refused to take up the appeal for him, even after he had asked them to -do so.
The plaintiff testified also, in respect to the trials by the officers of the defendant in regard to each of the items set forth in the three letters, as follows:
“These were all investigated. Was notified; was present at each investigation, but did not appeal except in the last case.”
It is further admitted by the plaintiff upon his examination that when he applied to the Florida East Coast Railroad, and the Norfolk Southern, and the Durham and Charlotte, the three railroads to whom these letters were addressed, he authorized the officers of' these railroads to apply to the defendant company for his record, and that this record furnished by the superintendent of motive power, Poole, was sent to the said railroad companies at their request, and by the permission' of the plaintiff, himself.
*257It appears tó me to be almost incontrovertible that upon a comparison of the plaintiff’s own evidence with, the record furnished to the said companies, every fact set out in the record is established by the plaintiff, himself.
It is admitted in the opinion of the Court that the judgment of nonsuit would be sustained by the majority of my brethren upon the plaintiff’s own evidence, except for the fact that in his letter of 9 July, 1909, Poole made this statement, “and will state further that this man is now suing the Seaboard Air Line for personal injury.”
The majority seem to be of opinion that this statement affords some slight foundation for this action, because the suit was instituted after the plaintiff left the service of the defendant. But the record shows that this suit was pending at the time the request was made for the plaintiff’s record, and that the statement was a truthful statement. It is not pretended in the letter that it was a part of his record. On the contrary, the language shows that it refers to a period after his discharge, for the writer says “that this man is now suing the Seaboard Air Line for personal injury.”
It was a statement of a fact admitted to be true, and which could be easily discovered while examining the records of the court. Surely, it cannot be held to be an evidence of malice because the writer of the letter stated a fact which was manifest to all who chose to examine the public records of the courts of the State. If this is the only ground upon which this action can possibly be maintained, then, with all deference to my brethren, it appears to me, too trivial to receive a moment’s consideration.
There is another reason which impels me to the conclusion that the plaintiff cannot recover because of such statement inserted in the letter of 9 July, and that is because it was an unauthorized act of Poole, outside of and beyond his duty, and in no sense ratified by the defendant.
While Poole in his capacity as superintendent of motive power was authorized to communicate a truthful statement as to why the plaintiff was discharged, it appears upon the face of the letter itself that the statement in regard to the suit was *258not a reason for tbe discharge of the plaintiff, because the suit was brought long after his discharge, and it was, therefore, the unauthorized act of Poole, and in no way connected with his duty as a servant or officer of the defendant company.
In Wood on Master and Servant, sec. 279, p. 535, it is said: “The question usually presented is whether, as a matter of fact or of law, the injury was received under such circumstances that, under the employment, .the master can be said to have authorized the act; for if he did not, he cannot be made chargeable for its consequences, because, not having been done under authority from him, express or implied, it can in no sense be said to be his act.”
It is admitted that it was within the scope of Poole’s employment to furnish a coqiy of the plaintiff’s record, and to give a truthful statement of the reason for his discharge, but it was not within the scope of his employment to inject into that statement matters entirely foreign to it 'and entirely disconnected with it, and which appear upon the face of the statement to have transpired long after the discharge. It seems to me that the act of inserting such foreign matter was not at all incident to the performance of the duties entrusted to Pool by the defendant company, any more than an amanuensis would bo authorized to inject the emanations of his own brain into a composition dictated by his master.
I think this position is fully supported by the decisions of this Court in Daniel v. R. R., 136 N. C., 517; Jackson v. Telegraph Co., 139 N. C., 347; and Sawyer v. R. R., 142 N. C., 1.
It is not pretended in this case that there was any express authority given to Poole to make any statement concerning the plaintiff on behalf of the- defendant company, which had taken place after the plaintiff had ceased to be in tts employment. The relation of master and servant had then terminated, and this extraneous matter was inserted by Poole, as appears upon the face of the letter, upon his own authority, and there is no pretense that it was ever ratified by the defendant. On the contrary, it appears upon the face of the communication to be Poole’s act and not that of the company.
*259The principal is not liable, as stated by Mr. Justice Walker in Daniel v. R. R., “wben tbe agent steps aside from the duties assigned to him by the principal to gratify some personal animosity, or to give vent to some private feeling of his own.”