In overruling the motion for a rehearing, the majority of the court think it only proper to make a fuller statement of the facts upon which they based their opinion as to the insufficiency of the evidence to show malice. In explaining his conduct in writing the letter to Seymour, Roberts testified as follows:
"In the letter that I wrote to Mr. Seymour in reply to that letter (the letter of inquiry from Seymour), in which it is stated that the plaintiff, Rex Lattimore, was arrested and put in jail for stealing a typewriter, when I wrote that letter as to what information I received about that matter, I will state that when I received the letter I did not know the young man personally and I raised the window right next to me and Mr. Thornton was in the Employment Department — there is just a partition wall between, and a window in the wall — and I raised the window and told Mr. Thornton I had an inquiry on one Rex Lattimore and asked if he knew anything about him, and he kind of smiled and said, `I reckon you know he was arrested and put in jail for stealing a typewriter?' and I said, `No, I didn't know it;' and I passed that *Page 684 information into the dictaphone and it was transcribed and I sent it off. The information that I gave in my letter to Mr. Seymour in reply to that matter was solely based on the information I had obtained from Mr. Thornton."
The witness further stated that he was acquainted with Mr. P. A. Botts, who occupied the position of principal in the school in 1923 and until the early part of 1925. As such principal, it was the duty of Botts to supervise the students and maintain discipline. All misconduct was reported to him. Continuing, the witness said:
"As to what was said to me by Mr. Botts about Rex Lattimore, I will state that he came to me on several occasions — I do not know how many — complaining about him not being the kind of student he ought to be, that he disregarded the regulations of the school by being absent, and we have a rule during the week that students are not supposed to be out of their rooms after eight o'clock and he persisted in going to the skating rink in violation of that rule; I say he told me that. Those reports were made to me by Mr. Botts before I wrote this letter. In writing the letter in behalf of the Tyler Commercial College to Mr. Seymour, that has been introduced in evidence here and upon which this suit is based, I was acting on the information I had from Mr. Botts and Mr. Thornton. I did not know anything about Mr. Lattimore myself, except I saw him pass back and forth in school. My relations with him had been friendly as far as I know; I never had any friction with him at any time."
Thornton, who was connected with the Tyler Commercial College at the time the letter to Seymour was written by Roberts, testified in part as follows:
"As to the occasion of Mr. Roberts making inquiry of me about Mr. Lattimore, he had received a letter and raised the window between he and I and asked me about it — about Mr. Lattimore. As to the inquiry he made about Mr. Lattimore, I could not recall the exact words that he asked me; in substance he just wanted to know what about him. In my reply to that inquiry I just said, `W. M., I wouldn't recommend him too strongly because it is my information that he has been in jail for stealing a typewriter.' * * * I couldn't recall anything against him or for him as a student there; as far as I recall there was nothing against his record as a student then. I told Mr. Roberts the source of my information. The substance of what I told him was that I had gotten it from one of the officers here. I told him it was from Mr. Langston. I could not recall the words I used. I do not know that Mr. Roberts asked me where I got my information. As to whether I am confusing in my mind the information on which I acted with some statement I made to Mr, Roberts and whether I mean to say I acted myself on information in making the statement to Mr. Roberts or whether I mean to say that I told Mr. Roberts that Mr. Langston had told me that Mr. Lattimore had been arrested and put in jail for stealing a typewriter, I will state that I am sure that is the way it was; well, I was just acting — in telling him what I did I was acting on the information I had. As to whether I acted on that information myself or whether I told Mr. Roberts the source of my information, I will say, well, I acted on the information myself — I just acted on it myself."
P. A. Botts testified by deposition in part as follows:
"As to whether the conduct and deportment of said R. C. (Rex) Lattimore was good or bad during the time he was a student in said college, I will state that I would say that his conduct was unsatisfactory as a student. It was bad by continued violation of the rules of the school. Said R. C. (Rex) Lattimore was suspended from said college; he was suspended by myself for a period of fifteen days. W. M. Roberts was president of the Tyler Commercial College during the time I was connected with said college. W. M. Roberts was out of the city at the time of the suspension of said Lattimore, but returned before the fifteen day limit had expired. I did, several times, report to said W. M. Roberts the record, conduct and deportment of said R. C. (Rex) Lattimore. I reported in general that Rex Lattimore was not doing satisfactory work as one of his capability could do, and that his record was not good."
John W. Glenn, secretary and treasurer of the Tyler Commercial College, testified as follows:
"Mr. Roberts talked to me about this letter (the letter to Seymour). He said he made the statement on the strength of Mr. Thornton's answer regarding Mr. Lattimore and that that was all the information he had. He did not tell me that he found out it wasn't true; he just said he didn't know anything about it other than this information he had at the time."
Lattimore, the plaintiff in the suit, testified as follows:
"I went to Tyler along the latter part of March, and went to see Mr. Roberts up there. I had a conversation with him. I went into his office and talked to him and asked him why he wrote such a letter and at first he didn't seem to understand. I told him I knew about the letter he had written Mr. Seymour and asked him why he charged me with such a thing as that and he didn't know what to say. He told me that he had received the information from one of his employees and I asked him, "Did you write such a letter like that just on something that one of your employees might say? That is very serious; you should look into that. I would delve into *Page 685 the facts before I would write such a letter.' Mr. Roberts told me that he was indeed sorry that he had written the letter, after having thought it over, and he seemed to be very much — I will do my best to remember the substance of the conversation. He told me that he would be willing to advertise that he had written and mailed a falsehood concerning me provided I was willing to wipe the slate off on both sides. Those were his exact words. That was very near the last of March."
In a deposition introduced in evidence upon the trial, the plaintiff, after admitting that he had been suspended from school for writing an anonymous letter to the principal, testified:
"I have often wondered what caused Mr. Roberts to write such a letter as this; I really do not know why he did it. I have already told Mr. Price that my personal relations with Mr. Roberts were friendly. He dismissed me from school on account of my having written a letter to Mr. Botts, the principal of the school. I admitted that I had written the letter. I was in the wrong about that; in the first place I know I should not have written an anonymous letter, and in the second place I should not have sent it to the principal of the school. * * * When Mr. Roberts talked to me there was not a bit of bitterness between us — at that time Mr. Roberts was entirely fair. On March 12, 1926, I resided in Cherokee County; my home was there at that time. While I have been taken away from Cherokee County in my different lines of work, that county has been my home all the time. I never heard of Mr. Roberts making any complaint about my being an unsatisfactory student, except on account of that letter."
When the publication alleged to be libelous is published on a privileged occasion, as in this case, there is no presumption of malice on the part of the writer, and the law imposes upon the plaintiff the burden of proving actual malice. Simmons v. Dickson (Tex.Com.App.) 213 S.W. 612; I G. N. R. Co. v. Edmundson (Tex.Com.App.) 222 S.W. 181; Nunn v. Webster (Tex.Com.App.) 260 S.W. 157. In the first case cited the court said:
"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."
The court then quotes with approval the following language used by the Supreme Court of Colorado:
"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 [344]: `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 be false. The 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.'"
The court also quotes with approval the following language used by our Supreme Court in Cranfill v. Hayden, 97 Tex. 544, 80 S.W. 609:
"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 connot be implied from the fact of publication and to sustain an action in which the existence of evil motive must be proved."
We are unable to find in the testimony in this case any evidence whatever that would tend to prove that Roberts wrote the letter to Seymour with any purpose or design to injure the plaintiff. It may be true that, under certain circumstances, the language of an offensive publication may furnish evidence of an evil or malicious motive on the part of the writer, as when he uses language which expresses ill will or unfriendly feeling towards the person whose character is defamed. But when, as in this case, the publication merely purports to state facts, which may be true or untrue, and without disclosing any feeling indicative of malice or ill will, the language of the publication cannot be looked to as furnishing sufficient proof of malice. The mere fact that what is said is untrue and is calculated to damage the reputation of the plaintiff is not sufficient, in the absence of other evidence of malice. *Page 686
When the law imposes upon the plaintiff in a suit of this character the burden of proving malice, it means that he must do more than create a mere suspicion that malice may have existed in the mind of the writer. I. G. N. R. Co. v. Edmundson, supra; Joske v. Irvine, 91 Tex. 574,44 S.W. 1059.
For the reasons stated, we think the motion for a rehearing should be overruled.