
    (110 Tex. 230)
    SIMMONS et al. v. DICKSON.
    (No. 56-2769.)
    (Commission of Appeals of Texas, Section B.
    June 25, 1919.)
    Libel and Slander <®^>101(4) — Privileged Communications — Inference of Malice-Character of Language Used.
    When a publication is conditionally privileged, the law raises the presumption of good faith and want of malice, and it will not be held in such a case that malice can be inferred from the character of the language used alone, since such inference would destroy the force of the privilege.
    Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by W. L. Dickson against J. S. Simmons and others. A judgment for defendants, was reversed by the Court of Civil Appeals (170 S. W. 834), and they bring error.
    Reversed and remanded, with directions.'
    Andrews, Streetman, Burns '& Logue, of Houston, and Lattimore, Cummings, Doyle & Bouldin, of Et. Worth (O. S. Lattimore, of Austin, and R. H. Kelley, of Houston, of counsel), for plaintiffs in error.
    Mike E. S\mth, of Et. Worth, and Green & Boyd and R. M. Love, all of Houston, for defendant in error.
   McCLENDON, J.

W. L. Dickson, as plaintiff, brought this suit against J. S. Simmons, J. E. Boyd, E. B. Williams, and others, to recover damages for certain alleged libelous and slanderous publications and utterances on the part of defendants. The trial court peremptorily instructed the jury to return a verdict in favor of defendants. This judgment was affirmed by the Court of Civil Appeals, Eighth District, as to all defendants except the three named above, and as to these three reversed and remanded the case. 170 S. W. 834.

When the writ of error was granted in this case, the Supreme Court took jurisdiction only to the extent that the action was one for libql; the decision of the Court of Civil Appeals being • final in actions for slander.

The alleged libelous publication consists of a resolution which was offered and passed at the Central Baptist Association, held at Anderson, July 31, 1911, of which association plaintiff and defendants were members. The plaintiff was a negro Baptist minister and superintendent of an orphans’ home. The portion of the resolution complained of reads as follows:

“That W. L. Dickson, Supt. of the Dickson Orphanage, be not allowed to speak, as he has brought shame and disgrace on the negro Baptist ministry of Texas. That he is unworthy to be called a minister and fellow'shipped as such.”

It is conceded that the publication was conditionally privileged, and that, to be actionable, it must have been published with actual or express malice; the burden of proof being cast upon the plaintiff to establish actual malice. Plaintiff contends, however, and the Court of Civil Appeals held that the jury might infer such malice from the vehemence of the language used and the disproportion between the epithets applied to the plaintiff and the charges made against him. We are unable to concur in this conclusion. It is but the assertion in different language of the proposition that malice can be inferred or presumed from the fact of publication. When a publication is conditionally privileged, the law raises the presumption of good faith and want of malice; and to hold, in such a case, that malice can be inferred from the character of the language used alone would, in our opinion, destroy the force of the privilege.

This view, we think, is in accord with the great weight of authority' in this country and with previous holdings of our Supreme Court. In Denver Public Warehouse Co. v. Holloway, 34 Colo. 432, 83 Pac. 131, 3 L. R. A. (N. S.) 696, 114 Am. St. Rep. 171, 7 Ann. Cas. 840, many of the cases upon this question are reviewed. In a note to that case numerous other authorities, upholding the rule that when ah alleged defamatory communication is shown to have been conditionally or quali-fiedly privileged 'the burden is on the plaintiff to prove actual malice, are cited. Erom the Holloway Case we read:

“It seems to us that, when the occasion is shown to have been privileged, the burden of showing that the defendant has lost his privilege is cast upon the plaintiff. The presumption which attaches to a writing written on a privileged occasion is that it was written in good faith and upon probable cause. As said by Justice O’Brien, in Hemmens v. Nelson, 138 N. Y. 524, 20 L. R. A. 440, 34 N. E. 342: ‘The question is not whether the charge is true or false, nor whether the defendant had sufficient cause to believe that the plaintiff sent the letter, or acted hastily, or in a mistake; but the question is, the occasion being privileged, whether there is evidence for the jury that he knew or believed it to he false. The plaintiff (defendant) may have arrived at conclusions without sufficient evidence, but the privilege protects him from liability on that ground until the plaintiff has overcome, the presumption of good faith by proof of a malicious purpose to defame her character under cover of the privilege.’ ‘This kind of malice,’ says Justice O’Brien, in the case cited, ‘which overcomes and destroys the privilege, is, of course, quite distinct from that which the law, in the first instance, imputes with respect to every defamatory charge, irrespective of motive. It has been defined to be an “indirect and wicked motive which induces the defendant to defame the plaintiff.” ’ Odgers, Libel & Slander, 267.”

In our own state, the decisions in Railway v. Richmond, 73 Tex. 568, 11 S. W. 555, 4 L. R. A. 280, 15 Am. St. Rep. 794; and Cranfill v. Hayden, 97 Tex. 544, 80 S. W. 609, are, in our opinion, decisive of this question. In the former of these cases, it is said:

“We understand the law to be that a communication, made in good faith in reference to a matter in which the person communicating has an interest, or in which the public has an interest, is privileged if made to another for the purpose of protecting that interest, and that a communication, made in the discharge of a duty and looking to the prevention of wrong towards another or the public, is so privileged when made in good faith. In such cases, although the statements made may have been untrue, malice cannot be implied from the fact of publication and to sustain an action in which the existence of evil motive must be proved.”

The following is quoted from Cranfill v. Hayden:

“If a defamatory publication is absolutely privileged, the-occasion justifies the language, and no action arises. If the defamatory words are published on an occasion not privileged, and are not justified, malice is implied, for the reason that every act intentionally done to the damage of another, without legal justification or excuse, is in the eye of the law malicious. But a defamatory publication which is conditionally privileged occupies a middle ground; that is to say, the publication is privileged, provided it was actuated by a sense of duty growing out of the occasion, and provided it was not malicious. When the court finds that the publication is conditionally privileged, the effect of the holding is to east upon the plaintiff the burden of proving that malice prompted the act , — not merely malice which arises by implication of law, but malice in fact, otherwise denominated actual malice. In other words, if the publication be conditionally privileged, malice is not implied from the mere fact of the publication.”

Plaintiff having offered no evidence of actual malice on the part of - defendants, we think the trial court properly directed a verdict in their favor.

We conclude that the judgment of the Court of Civil Appeals, in so far as it reverses the judgment of the trial court rendering judgment in favor of defendants upon the action for libel, should be reversed, and the judgment of the trial court in that respect affirmed, and that the judgment of the Court of Civil Appeals upon the action for slander should not he disturbed.

PHILLIPS, C. J.

We agree with the holding of the Commission of Appeals on the question discussed. The judgment of the District Court in favor of defendants should not, however, he wholly affirmed. It does not appear that the plaintiff will not be able to prove upon another trial that the defendants Simmons, Boyd and Williams were actuated by malice in the presentation of the resolution, and as to the action for libel against them the plaintiff is therefore entitled to another trial. Instead, therefore, of affirming the /judgment of the District Court as to the liability of these defendants, as recommended by the Commission of Appeals, the judgment of the District Court in their favor in so far as the action was one for libel, should be reversed and the cause remanded to the District Court for another trial upon the issue of their liability in that respect, in accordance with the holding of the Commission of ■appeals on the question of malice. The judgment of the Court of Civil Appeals, reversing the judgment of the District Court as to the liability of these defendants and remanding the cause to the District Court for another trial of that issue, is accordingly affirmed with this direction. Its judgment, affirming the judgment of the District Court, as to the liability of the other defendants, is also affirmed. The judgments of the District Court and Court of Civil Appeals in.respect to the action for slander are not affected by our action in the case but are left undisturbed, since our jurisdiction extends only in so far as the suit is one for libel. 
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