(dissenting).
I respectfully dissent.
Upon reviewing the case now before us we must determine whether there is any evidence to support the jury’s finding that Elmer Rabin’s slanderous remarks were made while Rabin was acting within the course and scope of his employment for Caprock Beef Packers Company. Under a “no evidence” assignment of error we may consider only that evidence, if any, which, *306when viewed in its most favorable light, supports the finding, and we must disregard all evidence and inferences which would lead to a contrary result. Garza v. Alviar, 395 S.W .2d 821 (Tex.1965). In sustaining Caprock’s no evidence point, the majority has held that “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 . . . .” The majority announces that it can only be concluded under the evidence here that Rabin was acting independently and outside of any duty he owed Caprock in his unsolicited slander of Wagner. I would not concede that this is the only conclusion that can be reached.
In the instant case, both the majority of this court and the court of civil appeals have erroneously relied upon Rabin’s testimony, when called as an adverse witness by Wagner, as being supportive of their holding. Rabin testified that he did not make a practice of contacting other packing companies about employees and that such a procedure would be unusual in the meat packing industry. This testimony, which must not be considered by us, is the only evidence in the record which would indicate that Rabin did not make these calls within the course of his employment. In Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914), this court stated that in passing upon the question of whether there was any evidence to sustain a verdict for the plaintiff, the Supreme Court must reject all evidence favorable to the defendants, and consider only that evidence sustaining the verdict. In Cartwright, when considering whether there was any evidence to support a jury finding favorable to the plaintiff the court also held that “[t]his court must pass upon that issue as if the evidence favorable to the defendants had not been before the jury.” By considering Rabin’s testimony which is adverse to Wagner’s position, the majority has assumed the role of a fact finder and has improperly weighed the evidence on both sides of the issue. Obviously, by taking cognizance of Rabin’s testimony, the majority in the instant case has not properly followed the applicable “no evidence” appellate review standard in reaching its final determination.
However, I am in agreement that the rule governing this case is that set out in Texam Oil Corporation v. Poynor, 436 S.W.2d 129, 130 (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.”
On the other hand, I disagree with the majority’s application of this broad rule to the factual situation presently before us. Is there any evidence in this record that will support the jury’s finding that Rabin’s defamatory remarks were made within the course and scope of his employment? I believe that there is. It is undisputed that Rabin was the general manager or executive officer of Caprock’s plant in Booker, and that he also served as its treasurer. We have frequently spoken of the broad powers possessed by a general manager. In Sealy Oil Mill & Mfg. Co. v. Bishop Mfg. Co., 235 S.W. 850 at 852 (Tex.Comm’n App. 1921, opinion adopted), the Court stated that:
“The general manager of a corporation occupies the position of a general agent. As a corporation can only act through its agents, the general manager, or general agent, is virtually the corporation itself.”
Thus, the general manager is often an extremely powerful individual clothed with substantial authority. See, Helms v. Home Owners’ Loan Corporation, 129 Tex. 121, 103 S.W.2d 128 (1937). By virtue of his position, Rabin was empowered and obligated to hire and fire employees on behalf of Caprock and he alone controlled matters involving personnel. Mr. Abel testified that “Mr. Rabin didn’t let anyone else have any authority at the Packing House,” and that Mr. Rabin alone ran the plant. Further, Rabin made not one, but three telephone calls to the personnel managers at the various plants where Wagner was seeking employment falsely informing them that Wagner was an alcoholic. These calls *307were made only a few weeks after Wagner had voluntarily terminated his position with Caprock. Additionally, it is clear that Rabin made all three of these calls on company time, on a work day, and from his own office at the Booker plant. Finally, Rabin personally knew, and requested to speak with, each of the personnel managers at the three meat packing plants he contacted. It is inconceivable that a corporation could operate a packing plant which obviously would require that employees be hired and fired and not have a supervisor or manager with authority to give and receive personnel references.
It is evident to me that the jury was at liberty to conclude that the telephone calls in question were referable to the manner in which Rabin performed his authorized duty as Caprock’s personnel manager, and that they were not referable to acts wholly independent and outside of the scope of such duty. The jury was entitled to infer that the slanderous statements were uttered within the scope of Rabin’s broad authority as general manager of Caprock’s principal place of business. I would not hold that there is no evidence to support the jury’s findings partly due to the fact that the record is silent as to the custom and practices of general managers in the meat packing industry as a whole. The jury should be allowed to decide this case on its merits and base its findings upon the particular authority granted to Rabin alone, regardless of the practice adopted by other general managers in the meat packing business.
In Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884 (1946), this court stated that if reasonable minds cannot differ from the conclusion that the evidence lacks probative force, it will be held to be the legal equivalent of no evidence. I fail to understand how one can assert that in the instant case, reasonable minds could not differ as to whether or not the evidence reflected in this record lacks probative force. The majority has held that the evidence offered in this case to prove that Elmer Rabin made these slanderous statements while in the course and scope of his employment is so weak as to do no more than create a mere surmise or suspicion. Under this record, I have difficulty understanding how the majority reached the conclusion that “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.” [Emphasis added].
In his excellent article discussing “no evidence points of error,” Justice Calvert stated that “[i]f the inference is not a reasonable one a ‘no evidence’ point should be sustained.” Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 363 (1960). See also, Western Telephone Corporation of Texas v. McCann, 128 Tex. 582, 99 S.W.2d 895 (1937); Texas & N. O. R. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164 (1935). Certainly the inference drawn by the jury is a reasonable one. I would uphold the findings of the jury. Accordingly, I would reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
SAM D. JOHNSON, J., joins in this dissent.