It is the law that (quoting from 17 R.C.L. 341) "a communication made in good faith on any subject-matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although, the duty is not a legal one, but only a moral or social duty of imperfect obligation."
Appellants insist it appeared that the occasion of Roberts' writing the alleged libelous letter was within the rule just stated, and appeared, further, that there was no evidence of malice on his part and no evidence that he did not in good faith believe that what he wrote was true. Therefore, they say, the trial court erred when he refused to instruct the jury to return a verdict in their favor. Appellee, on his part, insists that the matter in Roberts' letter was privileged only so far as it was a reply to inquiries in Seymour's letter. Those inquiries, he says, were only as to what the records of the school showed as to his work there, and as to whether he had been expelled from the school or had completed its course and received a diploma. He insists that the charge in the letter that he had been "arrested and put in jail for stealing a typewriter" was not in reply to any inquiry in Seymour's letter, and therefore was not privileged within the rule stated above. And he insists, further, that if the publication as a whole was privileged as claimed, there was evidence warranting a finding that it was made maliciously and not in good faith. Therefore, he says, the trial court did not err in the particular claimed by appellants.
It is generally held that a publication on an occasion like the one in question here is privileged, and therefore not actionable, if all the matter in it, though false, was pertinent to the inquiry made and was stated in good faith and without malice. 36 C.J. 1241 et seq.; 17 R.C.L. 341 et seq. And as to privileged matter it is held that the burden of proving bad faith or actual malice on the part of the publisher is on the complainant, and must be discharged by evidence other than that furnished by the falsity of the charge and the vehemence of the language used in making it. Simmons v. Dickson (Tex.Com.App.) 213 S.W. 612; Nunn v. Webster (Tex.Com.App.) 260 S.W. 157; Ry. Co. v. Edmundson (Tex.Com.App.) 222 S.W. 181; Ry. Co. v. Floore (Tex.Civ.App.) 42 S.W. 607. In the case last cited the court quoted approvingly the statement in Townshed on Libel and Slander, § 244, that, when the occasion is privileged, "expressions in excess of what the occasion warrants do not per se take away the privilege," and added:
"Although the statements made may have been untrue, malice cannot be implied from the fact of publication, and to sustain an action the existence of evil motive must be proved."
In Nunn v. Webster the court said: "Actual malice can not be inferred from the character of the language used, without other evidence to indicate it." In Ry. Co. v. Edmundson the plaintiff was employed as a baggage master on one of the railroad company's *Page 683 trains, and had been charged by one Martin, the company's superintendent, with carrying a passenger in the baggage car in violation of the company's rules. In discussing the law applicable to the case, the court said:
"The question is not whether the charge was true or false, nor whether Martin had sufficient cause to believe that plaintiff did carry the passenger, or whether Martin acted hastily or through mistake, but the question is, the occasion being privileged, whether there is evidence for the jury that Martin knew or believed it to be false. Martin may have arrived at conclusions without sufficient evidence, but the privilege protects him and the defendant from liability on that ground until the plaintiff has overcome the presumption of good faith by proof of a malicious purpose to defame him under cover of the privilege."
A majority of the members of this court think all the matter in the letter to Seymour alleged to be libelous was privileged, if written in good faith and without malice on Roberts' part, and, further, that there was no evidence of probative force showing it was not so written. Therefore they are of the opinion appellants' contention that the trial court erred when he refused to instruct the jury to return a verdict in his favor should be sustained. Conceding that all the matter in the letter, including the charge that appellee had been "arrested and put in jail for stealing a typewriter," was pertinent to the inquiry made by Seymour, the writer does not agree there was no evidence warranting a finding that Roberts did not act in good faith or with malice in writing the letter. It appeared without dispute in the testimony that appellee was suspended for a few days, but was never expelled from the school, and that he was never arrested nor put in jail for stealing a typewriter; and the jury had a right to say from testimony before them that his record in the school was not a "very bad" one. The testimony was that an account of appellee's conduct as a student in the school was kept in writing (which writing was before the jury as evidence) by the school authorities, but that Roberts did not look to it before writing the letter in question. According to Roberts' account of the matter, the only basis he had for his charge that appellee had been arrested and put in jail for stealing was a suggestion made to him by one Thornton, an employee of the school, at the time he (Roberts) wrote the letter, that he (Roberts) ought not to recommend appellee too strongly, because it was his (Thornton's) information that appellee had "been in jail for stealing a typewriter." The fact that Roberts made no effort to ascertain if there was any truth in the information Thornton said he had, and the fact that, instead of advising Seymour that all he knew about appellee's stealing a typewriter was what Thornton said about it, he, instead, in effect stated it to be a fact within his knowledge that appellee was arrested and put in jail for stealing, was evidence, the writer thinks the jury had a right to say, of bad faith or malice on Roberts' part. Appellee as a witness testified that "near the last of March," 1926, Roberts acknowledged to him that what he wrote about appellee's stealing a typewriter in the letter to Seymour was untrue; yet it appeared he (Roberts), on April 10, 1926, wrote a letter to Seymour in which he complained because Seymour had shown the alleged libelous letter to appellee's father, but made no correction of the false charge he made in that letter about appellee's stealing a typewriter. The writer thinks that was a circumstance the jury had a right to consider as indicating bad faith or malice on Roberts' part. And the writer does not agree that, as urged by appellants, the jury did not have a right to look to the alleged libelous publication itself for evidence of bad faith and malice on the part of the publishers. Ry. Co. v. Edmundson, supra; Cobb v. Garlington (Tex.Civ.App.) 193 S.W. 463. He thinks the jury had such a right and had a right to say that the statement in the letter with reference to giving appellants an opportunity to advise Seymour about office help he needed furnished such evidence.
In conformity to the views of the majority of the members of this court, the judgment of the court below will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.
On Motion for Rehearing.