Southern Surety Co. v. Davis

LEVY, J. (after stating the facts as above). The appellant presents the two propositions in view, in effect, that (1) the words of the alleged conversations are not actionable and constitute no slander of appellee as a builder of public roads, or personally, and (2) if fairly imputing a defamation, the communications were nevertheless privileged, and there is no evidence that the appellant’s agent was actuated by actual malice in making such communications. Taking the testimony of the witnesses, there was evidence substantially in support of the words spoken, as alleged. It was competent for the jury to find that the agent of appellant spoke the words. And duly considering the words spoken, and complained of as defamatory, there does not appear therefrom either an affront to the general sentiments of morality or decency, or criticisms of the road work itself. The words, though, are fairly directed at and touch appellee with reference to his business, as an imputation that he was in financial trouble and distress, and that his credit was impaired, and that he was unable to meet his obligations. Although the statement made by Mr. Ivey related only to the special contract that appellee had with Harris county, yet such conversation as a whole may not be understood as containing nothing more than necessary to accomplish the purpose of having the two creditors file their claims with the county auditor for immediate payment. The words in themselves are reasonably capable, as the trial court correctly determined, of conveying an injurious meaning or producing an injurious effect relating to the capacity, reputation, and standing of ap-pellee personally in his business as a contractor. Such character of imputation, as generally decided, will support an action when malicious and false publication is made and pecuniary injury actually follows to the business as the probable and natural result of the speaking of the words. Whether or not pecuniary injury did in fact follow as the probable result of the spoken words in the present case becomes a different question. Therefore the first proposition is not sustained. The second proposition must be sustained. We are of the opinion that the alleged defamation was a privileged communication in the circumstances, as the trial court concluded. The appellant was a surety on the bond of appellee. The bond was for the faithful performance of the work contracted to be done. Under the terms of the bond the appellee had agreed to pay promptly the liability for material; and he had promised to complete the contract, under penalty for failure to do so, within 90 days. The parties with whom the conversation was had were creditors of appellee within the terms of the bond. The surety had the right, and it was its privilege, to act in furtherance of and to promote its undertaking. The creditors had the corresponding right.to receive the communication. But whenever a publication can be rendered defamatory by proof of falsity and with actual malice, it is not, as universally held, a publication protected by absolute privilege. And in the present case the trial court made the liability of appellant to depend upon malice vel non. It is conceded that the burden of proof rested upon appellee to establish actual malice. The jury found that appellant, through its agent, was prompted by malice in the conversation. We are unwilling to sustain *619 that finding of fact, in the light of the record, as being contrary to the great weight of the evidence. The falsity of the statements of the spoken communication is very doubtful. There is ample evidence, in circumstances of adequate probative force, for appellant’s agent to have had good reason or reasonable grounds for believing the communication to be true. The circumstances, for the most part, are inconsistent with the existence of malice. The time for the completion of the contract had expired and “the job was only about half completed.” The appellee had been notified by the county that the penalty of the bond would be demanded for delay. About half 'of the contract price had been paid and appellee had given an assignment of all the balance to Mr. Belk. The bills of the two creditors had not been paid promptly. The agent also had urged the appellee to come to see him about the situation, and appellee refused to do so. Appellant had the right to file the assignment from appellee, and malice could not be predicated thereon. The privilege was not lost, if the agent of appellant believed the statements to be true and acted in good faith. Railway Co. v. Edmundson (Tex. Com. App.) 222 S. W. 181. We are of the opinion, further, that there was no sufficient evidence in the present record to warrant a recovery of exemplary damages, and that it was error to admit in evidence the letter complained of in the eighth assignment of error. The judgment is reversed, and the cause is remanded.