Stearns v. McManis

ON MOTION FOR REHEARING

We withdraw the holding in our previous opinion that the appellant had waived the affirmative defense of qualified privilege. We agree with him that special issues HA and 11B submitted that defense. As we noted, the jury found in response to those issues that when Stearns uttered the defamatory statement (sic) he believed it to be true and that such statements were made only to members of the Saint Bernard Club. The appellant’s ninth point of error is that the trial court erred “in entering judgment upon and in failing to set aside the general damage finding ... as the statement was a qualified privilege.”

Qualified privilege comprehends all communications 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. 36 Tex.Jur.2d 357, 358, Libel and Slander § 71.

*664 However, the privilege is lost jf the defendant was in any degree actuated by malice in making or publishing the defamatory statement. Neither does the privilege exist if he who utters the statement was actuated by malice in part and in part by lawful motive. Butler v. Central Bank & Trust Co., 458 S.W.2d 510 (Tex.Civ.App. 1970, writ dism.); Cranfill v. Hayden, 97 Tex. 544 , 80 S.W. 609 (1904).

The appellant complains in his first point of error that there was no evidence to support the jury’s finding, in response to the 17th" special issue, that he made the statement in question with malice.

In cases involving qualifiedly privileged defamation, although the existence of actual or express malice is not presumed as a matter of law and must be proved, it need not be proved by direct or extrinsic evidence; its existence is sufficiently shown by evidence of facts and circumstances from which it is reasonably in-ferable. It may be inferred from the relation of the parties, the circumstances attending the publication, the language used, and from the words or acts of the defendant before, at, or after the time of the communication; but there must be evidence from which the jury can infer malice existing at the time of publication and actuating it. Malice is not implied or presumed from the mere fact of the publication, nor may it be inferred alone from the character or vehemence of the language used, nor found from the falsity of the statement alone. 36 Tex.Jur.2d 475, Libel and Slander, § 149.

There was other evidence of the defendant’s ill-will toward the plaintiff in addition to that we noted in our opinion. There was testimony that pursuant to the parties’ agreement, the plaintiff fed, kept, and cared for Pandora at considerable expense to him but could not derive any of his contemplated benefits of ownership because the defendant quit showing her and refused to carry out his agreement to have her bred. Further, when the plaintiff let a friend temporarily keep a second dog co-owned by the parties, the defendant demanded that the plaintiff take the dog back even though this resulted in expense to the plaintiff. The plaintiff bore the expense of providing for the co-owned dogs for a total of 3,202 days, but the defendant wouldn’t even discuss his share of the expense.

The plaintiff also said that the defendant -became critical of him and called his price exorbitant even though the puppies the defendant was selling were far inferior to the ones the plaintiff was bringing in and the parties were charging about the same prices. The jury was entitled to conclude that the defendant’s dealings with the plaintiff concerning the dogs that the parties had jointly purchased were so unreasonable as to demonstrate his jealously, personal animosity and ill-will toward the plaintiff.

The motion for rehearing is denied.