ON REHEARING, December 6, 1928.
Per Curiam:The argument in this case is the result of a rehearing heretofore granted, and presents for the court’s consideration the question of whether or not the learned trial court erred in refusing to give an instruction which affirmatively told the jury that the alleged libel as set out in the declaration was privileged, or was published of and concerning a privileged occasion.
This seems to be strictly a common law action for libel, and the offending publication is only actionable, if at all, because of the inferences which the defendant in error undertook to draw' from the language employed, by the rather free use of inuendoes. Inuendoes prove nothing, they are the conclusions of the pleader. If the jury should believe, under proper instructions, that the inferences drawn by Young from the publications complained of, are justified, this court will not at this time undertake to say a *1003verdict cannot be supported.' It seems quite clear from a careful reading of the publication, that no libel per se is charged therein.
This court is of the opinion that the occasion was clearly privileged, and placed upon the plaintiff in the trial court the positive obligation of showing actual malice on the part of Powell. We think also that he was entitled to have the jury so instructed in unequivocal language.
The burden thus placed upon the plaintiff in an action for libel can be overcome by any legitimate evidence sufficient to convince reasonable minds that malice existed at the time of the publication of the supposed libel, and was the motive prompting same.
When this has been done, that which was qualifiedly privileged, ceases to enjoy that exemption and the offender is answerable in damages under the principles of law, recognized in a long list of cases decided by the courts of last resort in this and other States.
The cases of Ramsay v. Harrison, 119 Va. 682, 89 S. E. 977; Vaughan v. Lytton, 126 Va. 671, 101 S. E. 865; Lightner v. Osborne, 142 Va. 19, 127 S. E. 314; and Aylor v. Gibbs, 143 Va. 644, 129 S. E. 696, are some of the recent decisions dealing with the general subject, and we think are controlling of the questions that may be expected to arise on a second trial of this case.
The publication under consideration seem to us to have been primarily intended as a criticism of “the city installment jewelry concern” attempting to sell its wares in nearby towns, the method of employing “local shark talent” being incidental to the major movement but^whether this is so or not, we think the evidence of the-¿¡quantity of business done by Jacob Bennett, of Norfolk, the number of accounts on his books; and the *1004territory covered by his activities was irrelevant and should not have been admitted.
Certainly Jacob Bennett’s business was not in issue in this action, the question was, whether Powell in a bona fide attempt to protect his own business and the public from what he considered an unhealthy situation, and from unethical business methods, was actuated by an honest purpose directed towards the preservation of his own interests and of that of the public, or went beyond the exigencies of the occasion-, and pursued a course out of proportion to the occasion and the attendant circumstances and whether or not in so doing he was referring to A1 Young.
Where the occasion is privileged as in this case, the jury is to decide whether it was used bona fide or not. If it was so used, no recovery can be had. Strode v. Clements, 90 Va. 553, 19 S. E. 177.
The instructions given and approved by the Supreme Court of Appeals in the cases of Ramsay v. Harrison and Vaughan v. Lytton, supra, seem to us to furnish a most satisfactory guide for any future trial that may be had as a result of this opinion.
For the reasons stated the judgment of the court will be set aside and a new trial awarded, to be submitted upon principles not inconsistent with the views here expressed.
Reversed and remanded.