AFFIRMED
MARCH 15, 1990
NO. 10-89-035-CV
Trial Court
# 85-3133-1
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
* * * * * * * * * * * * *
RALPH W. DONAHO,
Appellant
v.
FRANK SHORT, ET AL,
Appellees
* * * * * * * * * * * * *
From 19th Judicial District Court
McLennan County, Texas
* * * * * * * * * * * *
Appellant Ralph W. Donaho is a promoter and outfitter for hunts for "trophy" white-tail deer on a large ranch in Mexico. Appellees Frank Short, Mike Short and Pat Short contracted with Donaho for a hunt on the ranch for a specified week in January 1985. The Shorts arranged for six hunters, each taking a guest. When the six arrived at the ranch they learned that three other hunters were present. A dispute arose between the Shorts and Donaho as to whether the Shorts had contracted for the exclusive use of the ranch for hunting by their group of six during that week. Donaho did not arrive at the ranch until the third day, but he and the Shorts had been in contact by radio until then through a third party. On the day of his arrival there was a heated discussion between him and the Shorts' group, with Frank Short doing most of the talking. The dispute was not resolved, and the Shorts and their group left the ranch in the middle of the week without completing the hunt.
Appellees filed this suit against Donaho and his company Operation Wildlife, Incorporated, under the Texas Deceptive Trade Practices--Consumer Protection Act (DTPA), V.T.C.A., Bus. & C. §17.46 et seq, and under common law theories of breach of contract and fraud. Donaho and Wildlife answered and filed a counterclaim against appellees for slander and actual damages, and for attorney's fees under DTPA section 17.50(c) on the ground that appellees' suit was groundless and brought in bad faith.
The case was tried to a jury. The jury failed to find for appellees on any of the essential issues of their actions. The jury also failed to find (Special Issue No. 17) that Operation Wildlife, Incorporated, was Donaho's alter-ego. Surrounding appellants' slander action, the jury found (Special Issue No. 19) that each appellee "made false statements, to the effect that Ralph Donaho was dishonest or unethical in the practice of his employment, to other clients or prospective clients of Operation Wildlife, Incorporated"; failed to find (Special Issue No. 20) as to each appellee "that such statements were made with the knowledge that they were false or with reckless disregard for the truth"; found (Special Issue No. 23) the amounts of damages to be paid by each appellee (a) to Donaho for injury to his reputation and for embarrassment, humiliation and mental anguish and (b) for loss of earnings by Operation Wildlife; found (Special Issue No. 24) that the suit brought against Donaho and Operation Wildlife "was brought in bad faith and for the purpose of harassment"; and, based upon the finding in Special Issue No. 24, the jury found (Special Issue No. 25) attorney's fees that should be awarded to Donaho and Operation Wildlife for defending appellees' DTPA action. Thereafter, on appellees' motion, the trial court disregarded the jury's answers to Special Issues Nos. 17, 19, 23, 24 and 25. On appellees' motion, the court also expressly found that appellees' suit was not groundless. Judgment was rendered that appellees take nothing and that appellants take nothing by their actions. This appeal resulted. We affirm the judgment.
After the briefs in this appeal were filed, our Supreme Court rendered its decision in Donwerth v. Preston II Chrysler-Dodge, 775 S.W.2d 634 (Tex.1989). Appellants conceded during oral argument that the Supreme Court's ruling in Donwerth concluded appellants' action for attorney's fees under the DTPA against them. The question remaining for our review is whether the trial court properly disregarded the jury's findings for appellees on their slander actions. Appellants rely upon the following testimony as some probative evidence supporting their slander actions:
(1) Donaho testified that appellee Frank Short called him "a liar, a cheat and a crook . . . [a] sorry, no good MF, son-of-a-bitch," in the presence of the other appellees and their three guests at the time of the dispute at the ranch.
(2) Julie Donaho, the wife of appellant Ralph Donaho, and Gary Bickel testified that appellee Mike Short pulled Dr. Bill Watson, a prospective client of Donaho/Wildlife, away from Julie Donaho while she was talking to him about wildlife at the Dallas Safari Club in 1985 and that following such action Dr. Watson "never came back."
(3) Bennie Bowers testified that Pat Short "left the impression" that the Shorts and their party had been treated unfairly by Donaho and that, as a result, Bowers did not book several hunters with Wildlife as he had planned.
(4) Wyatt Dawson, a booking agent for hunters and past president of the Dallas Safari Club, testified that Pat Short told Dawson that Short had "had a serious dispute with Ralph Donaho, and that he thought [Donaho] was wrong and they were probably going to take it to court."
Appellants also assert that Gary Bickel testified that Michael Short made statements to Don Price, Littie Price and Steve Reichard that "Ralph [Donaho] ran a sorry operation," but the record reflects that Bickel's attempts to show statements made by or to the Prices and Reichard were excluded on objections that the testimony was hearsay.
A communication made in good faith on any subject matter in which the author has an interest, or with reference to which he has a duty to perform to another person having a corresponding interest or duty, is qualifiedly or conditionally privileged. Goree v. Carnes, 625 S.W.2d 380, 384 (Tex.App.--San Antonio 1981, no writ); 50 Tex.Jur.3d 107, Libel and Slander §54. Appellees pleaded this defense of conditional privilege. The trial court determined that the statements made by appellees about which complaint is raised by appellants were qualifiedly privileged. We agree. The evidence was undisputed that appellees, a father and two sons, have been avid hunters over a long period of time, hunting in many areas of the world. Their three guests who heard Frank Short's remarks made to Donaho at the ranch are also hunters and close friends of appellees. Dr. Bill Watson is a long-time good friend of appellee Mike Short and often sought Mike Short's advice on hunting matters. Bennie Bowers said that he obtained the name of appellee Pat Short from a list of references furnished to him by Donaho, and that he called Pat Short for advice about hunting with Donaho on the ranch in Mexico. Wyatt Dawson's business and purpose was to get comments that hunters had about hunting locations and services in order to publish the information for other interested hunters. These are classic examples of privileged communications. Moreover, the record is silent as to what remarks Mike Short might have made to Dr. Bill Watson, and they show only that Bennie Bowers was "left with an impression" from Pat Short that he had been treated unfairly, and Wyatt Dawson said that Pat Short "felt" that he had been wronged and that they might sue Donaho. These statements do not show that slanderous words were spoken. Additionally, where an action is based on a conditionally or qualifiedly privileged communication or statement, the plaintiff, to be entitled to recovery, must show that it was actuated, inspired or colored by actual or express malice, existing as a fact at the time of the publication, or by some evil motive or bad faith. In our case, the jury failed to find that the allegedly slanderous statements made by appellees "were made with the knowledge that they were false or with reckless disregard for the truth." The issue of malice, conditioned upon an affirmative answer to this question, was not answered and there was no finding of malice.
The distinction between libel and slander, that is, between written and oral imputations, is recognized in Arant v. Jaffe, 436 S.W.2d 169, 176 (Tex.Civ.App.--Dallas 1968, no writ), as follows:
In general, oral words, however opprobrious, are not actionable without proof of special damage, unless they impute to another the commission of a crime or affect a person injuriously in his office, profession or occupation. Written or printed words charging dishonesty, fraud, rascality, or general depravity are general libelous per se, but not so when spoken orally.
Albeit that Frank Short's remarks to Donaho at the ranch might have been, in Donaho's words, "the worst cussing that [he] had ever received in [his] life," there is no showing in the record of any special damages suffered by him in his office, profession or occupation as a result, and there is no imputation in the statements of the commission of any crime by Donaho.
The record does not show slanderous words spoken by appellees. Even if there had been, all conversations were with and between people having joint interests in the remarks. The trial court was correct.
Appellants' points and contentions are overruled. Appellees' conditional crosspoints are not reached.
The judgment is affirmed.
VIC HALL
DO NOT PUBLISHJustice