Martin v. Southwestern Electric Power Co.

OPINION

CORNELIUS, Chief Justice.

Southwestern Electric Power Company’s president wrote a letter to several company line foremen about safety practices. In the letter he reported critical comments about Mike Martin’s work habits. Martin sued SWEPCO for libel, but the trial court rendered summary judgment that he take nothing. Because we find that the statements in the letter are privileged and the summary judgment evidence establishes that they were not motivated by malice, we affirm the summary judgment.

Martin was a lineman for SWEPCO and was seriously injured when he came in contact with high voltage lines. John Turk, SWEPCO’s president, became concerned that the line foremen in the East Texas area were not effectively supervising SWEPCO’s employees in their safety practices. He wrote a letter to eight line foremen who had responsibilities in the East Texas area. He sent copies of the letter to nine other SWEP-CO supervisors. In the letter he referred to Martin’s accident and repeated allegations that Martin had a long history of neglecting safety procedures, failing to follow instructions, lack of interest in his work, and lack of interest in the safety book. The letter was distributed only to the SWEPCO line foremen and other supervisory personnel.

The trial court did not state in its order the basis for the summary judgment. In that situation we will affirm the judgment if any theory advanced by the movant for summary judgment is correct. Carr v. *199Brasher, 776 S.W.2d 567, 569 (Tex.1989). SWEPCO moved for summary judgment on the bases that the contents of Turk’s letter were not defamatory, but if they were, they were privileged as a matter of law and were not made with malice. The trial judge wrote a letter to counsel stating that he was granting summary judgment because he found that the statements were not defamatory, but the letter is not part of the trial court’s order and cannot be considered on appeal as giving the reasons for the judgment. Taylor v. Taylor, 747 S.W.2d 940 (Tex.App.—Amarillo 1988, writ denied); Brazos River Authority v. Gilliam, 429 S.W.2d 949 (Tex.Civ.App.—Fort Worth 1968, writ ref d n.r.e.). In any event, the judgment must be affirmed if there is any legal ground presented to the Mai court on which it can be upheld, even if the court’s reason was erroneous. Guaranty County Mutual Ins. Co. v. Reyna, 709 S.W.2d 647 (Tex.1986).

We conclude that, even if the statements in the letter can be considered defamatory, they are privileged. A qualified privilege extends to communications made in good faith on a subject in which the author has an interest or a duty, to another person having a corresponding interest or duty. Dixon v. Southwestern Bell Telephone Co., 607 S.W.2d 240 (Tex.1980); Gillum v. Republic Health Corp., 778 S.W.2d 558 (Tex.App.—Dallas 1989, no writ); Houston v. Grocers Supply Co., 625 S.W.2d 798 (Tex.App.—Houston [14th Dist.] 1981, no writ); Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814 (Tex.Civ.App.—Tyler 1980, no writ). The effect of the privilege is to justify the statements when they are made without actual malice. Dixon v. Southwestern Bell Telephone Co., supra. The privilege is peculiarly applicable to communications between employers and employees. See Dixon v. Southwestern Bell Telephone Co., supra; Bergman v. Oshman’s Sporting Goods, Inc., supra. Where the facts are undisputed and the statements are not ambiguous, the question of privilege is one of law for the court. Denton Publishing Co. v. Boyd, 460 S.W.2d 881 (Tex.1970).

When publication of a defamatory statement is made under circumstances creating a qualified or conditional privilege, the plaintiff has the burden to prove malice or the want of good faith but, when the defendant moves for summary judgment, the defendant has the burden of proving absence of malice. Houston v. Grocers Supply Co., supra. The essential elements of a conditional or qualified privilege are good faith, an interest to be upheld, a statement limiting its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. See 50 Tex.JuR.3d Libel and Slander § 54 (1986). The summary judgment evidence here establishes conclusively that Turk and the addressees and recipients of his letter had specific duties to supervise SWEPCO’s employees in their work and safety practices. The ultimate goal of Turk’s letter was to prevent or reduce the number of accidents. The letter was written after Martin had suffered serious work-related injuries. The letter was published only to those who had supervisory duties over linemen.1

To establish malice one must show that the declarant knew the statements were false or that the declarant acted with reckless disregard of whether they were false. Dun and Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896 (Tex.1970); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (Tex.1969). The summary judgment evidence filed by SWEP-CO contains an affidavit from Turk stating that he did not have any malice or ill will toward Martin when he wrote the letter, and evidence to support these conclusions. In an excerpt from his deposition, Turk states that he believed the information in the letter to be true based on the investigation report of the Martin accident and on word-of-mouth information that he had received in discussing the accident. Turk’s affidavit also states that he relied on the truth of the statements con*200tained in the report and information given to him.2 Reliance on reports and information furnished by other employees in the line of duty under these circumstances could not be considered as reckless disregard of whether such statements were false. This summary judgment evidence serves to negate malice unless it is controverted.

Martin’s response to the motion for summary judgment is supported by his affidavit. He does not directly allege malice on Turk’s part, but says, “I know that most of the assertions made in the letter about me are not true and, therefore: the letter must have been urritten based on malice directed at me” (emphasis added). The assertion that the letter was based on malice amounts to a conclusion, and as such, it does not allege concrete facts that would raise an issue under the summary judgment rule. See Horton v. Montgomery Ward & Co., 827 S.W.2d 361 (Tex.App.—San Antonio 1992, writ denied). Because it is based on an erroneous legal standard, the statement is not an affirmative fact that would be admissible in evidence. The sole reason advanced in Martin’s affidavit for concluding there was malice was that the assertions were not true. Malice, however, cannot be inferred from falsity of the statement alone. Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.); Cheatwood v. Jackson, 460 S.W.2d 528, 530 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ refd n.r.e.). There is no summary judgment evidence raising a fact issue that Turk knew the reports were untrue or acted with reckless disregard of their truth.

Because Turk’s statements were privileged and malice was negated, summary judgment was proper.

The judgment of the trial court is affirmed.

. The dissent complains that Turk selected negative information about Martin to include in the letter; however, the purpose of the letter was not to praise or include a total evaluation of Martin, but rather the letter was written to point out problems that needed to be corrected for the safety of the workers. Thus, it was proper to emphasize behavior that led to Martin’s injury and that could lead to other injuries.

. In an interview with foreman James Weir concerning the accident, which is attached .as a part of the accident report, Weir was asked, “What do you think would cause him [Martin] not to always wear rubber gloves in an area that you would normally require him to do so?” Weir answered, "A combination of several things — his inattention....”