Behee v. Missouri Pacific Railway Co. , 71 Tex. 424 ( 1888 )

Collard, Judge.

Malice is a necessary ingredient of libel. When a defamatory and false publication is made by one person of another malice will be imputed to the act; but where the publication is privileged and is believed to be true the prima facie case of libel so made is deemed to have been fully met; and then to sustain the action malice must be shown to exist by other evidence as by the style or manner of the writing or by extraneous facts. These principles were clearly announced by Associate Justice Roberts in the well considered case of Holt v. Parsons (23 Texas, 21). They were then and are now amply supported by the best authority. “Malice or want of good faith is established by showing that the matter published was false within the knowledge of the publisher, or it may be established by showing bad motive in making the publication, as that it was made more publicly than was necessary to protect the interest of the parties concerned, or that it contained matter not relevant to the occasion, or that the publisher entertained ill will towards the person whom the publication concerned.” (Townshend on Slander and Libel, 463.)

Such questions of malice should be left to the jury.' If a privileged communication, though false, is believed to be true by the publisher, and the language used to express the communication is not unnecessarily disparaging, and it is not shown by extraneous evidence to have been actuated by a malicious intent to injure, there can be no recovery; but If one, whose duty or privilege it is to give information concerning the character of another, defames his character or states facts not actionable per se, but which become actionable from the injurious consequences resulting therefrom, knowing the same to be false, the bad intent or motive necessary to sustain the action may be inferred. A master does not. have the right to libel his servant simply because the relation of master and servant exists, or had existed, by making false and Injurious publications concerning his character. The jury may infer bad motive from the fact that the publication was false and injurious.

The court in this case, in its charge, after defining express malice to be “a bad, wicked or evil intent,” instructed the jury that such malice “could not be presumed, but must be proved like any other fact.” We think the latter part of the charge was erroneous. The jury may have concluded that the bad motive could only be established by direct evidence. Malice is rarely ever shown by direct evidence; it is commonly a state of mind indicated and inferable from other facts proved^from language used or acts, or both together. We infer a bad motive when an injurious act is intentionally done without legal excuse. The motive is not a bare fact of itself, susceptible of proof like any other fact; it is a conclusion deduced from acts and words. To inform a jury that such a conclusion could not be presumed would give them to understand that it could not be inferred. It would not be presumed as a matter of law, but a jury would not be expected to understand such a distinction unless it was explained to them. If the alleged libel in this case was not actionable in itself, but was made so by special damage resulting from its improper publication, and defendant knew it to be false, malice might be presumed or inferred by the jury. We do not think it would be correct to call the attention of the jury to any fact from which they might infer malice, but they should have been informed that it could be inferred, from facts and circumstances. (Townshend on Slander and Libel, 348-351; Odgers on Libel and Slander, 265-267; Townshend on Slander and Libel, pp. 129-133, secs. 87-89; Willis & Brother v. McNeil, 57 Texas, 465; Stansell & Younger v. Cleveland, 64 Texas, 660.) The foregoing views will dispose of all the errors complained of on account of the charge of the court and of refused charges. The list inquired about, in the interrogatories propounded to the witness Fred Richmond, is shown by bill of exceptions number four to have been in the possession of Funnell, assistant superintendent of the International & Great Northern Railway, one of the lines at that time operated by defendant, and Funnell swears he had in his possession one or more of such lists, and that he returned them to Joseph Herrin, superintendent, by his order. It is thus traced into the possession of defendant. Richmond says he has not possession of the list or control of it. Plaintiff' gave notice to defendant to produce it on the trial. These being the facts, on the failure of defendant to produce the list, plaintiff was entitled to prove the contents of it by secondary evidence. It seems the four bills of exception refer to the same list. If they do, and Funnell as assistant superintendent had it in his possession, plaintiff could prove its contents by parol. The evidence was admissible to show the animus of the defendant. It was not the libel as alleged, and it was published after the time definitely complained of; but under the allegations of the petition plaintiff could offer proof of a republication, or a continuous publication of the alleged libel, or of other words written or spoken by defendant, before or after the commencement of the action, going to show malice. (Odgers on Libel and Slander, 270, 271.) It was error to exclude the evidence. What Funnell said about it was not evidence.

It is our opinion the judgment ought to be reversed and the case remanded for a new trial.

Reversed and, remanded.

Opinion adopted October 16, 1888.

Stayton,

Chief Justice*