*1 Reports, Court Yol. of manufacturing logs into lumber, being product the latter Company’s regular business, as as in the process well de- livering lumber good reason carrier, to the station of a common and no we see differing

for Civil in the they conclusion that part manufacturing were of the establishment. In holding gas pipes laid city a in the streets of were gas the “establishment” of a Light company, it was in Memphis Gas- said (Tenn.), Coldwell 453: Dee., Am. Memphis Gas-Light Company corporation “The is a created for purpose manufacturing delivering gas and illuminating Memphis. particular the citizens of in a delivery mode is as purpose much within of its manufacture; creation as the and manufactured, apparatus from the nature article for delivery merely apparatus an extension and continuation of the belong manufacture, both establishment.” injured,

We think was evidence show that minor was there injury engaged work, reason at the of his within time very his which scope duty employment, under was of hazards, against exposed him to which the character law was youthful immaturity. in his to shield him intended plaintiff in a entitling find error to reversal of the ho error District Court and of judgments therefore be affirmed. and the same will

Affirmed. W. D. Dickson. J. et al. v. S. Simmons Feb. June Decided No. 2769. 365.) W.,

(213 S. Communication—Malice—Presumption. 1.—Libel—Privileged conditionally privileged (resolutions of a written communication Where minister) touching not malice is Baptist character Association expressed publication, the fact from of its nor fact from the inferred in severe proof terms; other absence in the and peremptory warranted. for defendant instruction and a recover cannot 232-235). (Pp. BEHEABING.

ON Supreme Court. 2.—Practice remanded be reversed and will error absence of In the proof permit offered he to add new

tc 235). (P. Eighth District, to the Court Error County. from Harris appeal Williams, F. B. Simmons, Boyd, and J. E. S. Dickson sued J. peremptory instruction was a libel. There others, for slander Simmons v. Dickson. to find judgment accordingly. defendants, appealed judgment, Plaintiff defendants named, as to the reversed remanded, They thereupon *2 obtained by Supreme Court, writ of The was, error. case referred B, Appeals, by them, Commission of Section and in an by opinion McClendon, J., it was recommended that the reversed, Court of Civil and that of the trial affirmed, W., court 213 612. The recommended S. was Supreme Court, rehearing by first modified motion for adopted. opinion was of the Commission of The opinions published. Supreme two Court here Doyle Bouldin, Andrews, Cummings, Streetman, & Lattimore, (O. plaintiffs & in error. H. Lattimore and R. Logue, Burns for counsel.) un Kelley, H. The statementswere shown being privileged, and no disputed to have been there evidence a instructing evidence of actual malice the court did not err arising pretended as cause of action therefrom. verdict Hayden, 97 Texas, Cranfill v. 544. Smith, Love, Boyd, and R. M.

Mike E. Green defendant language employed The defamatory the defendants error. against privileged statements, because the con Dickson were not subject-matter. jurisdiction of the ventions and associations had not Thompson, 144; 108 113 Ry. W., S. W. v. S. S. St. L. 552; Ass’n., Texas, 76 v. Benson v. Screwmen Ben. Faucette 325; (N. Y.), 473; Nebraska, A., 13 Jones v. 7 L. R. Charles; Wend. Soc., 453; Delacy Patrick’s Ben. Am. v. St. Dec. Commonwealth Navigation 636; Joseph’s Soc., Lahiff Co., 9 Am. v. St. Dec., v. W., 436; A., 92; Malmstead v. Minn. Aerie No. N. L. R. Regl. 325; Parmento, Soc. 44 N. Canadian v. Jones 559; People Jennings Scorbo, Atl., v. Medical 740; 62 N. E., Georgia Soc., Ga., 157; 32 N. State v. Med. Soc., Y., determining court There was error in the action of the giving peremptory in- against facts in case favor of the defend- a verdict in jury to return structions to the support a ver- undisputed facts sufficient ants, because were directing so plaintiff, and the action of court a dict for jury. province an invasion of the verdict was opinion of Commission of McCLENDON delivered Mr. Justice Appeals. brought S. J. plaintiff, suit Dickson, L. as W. to recover Williams, B. others Boyd, P. Simmons, J. E. publications and slanderous alleged libelous damages certain court part of defendants. and utterances Supreme Reports, Court Vol. peremptorily instructed the to return in favor of defendants. This was affirmed the Court of Civil Eighth District, except all defendants the three named above those and as to reversed and three remanded the case. 170 W.,

When granted the writ case, of error was in this jurisdiction only Court took extent action was libel; one for the decision

final in actions for slander. alleged libelous consists of resolution which passed

was offered and at Baptist the Central Association held at July Anderson, of which Association negro defendants were members. The Baptist min- superintendent ister and orphan’s of an portion home. The complained resolution reads as follows: Supt. “That L. Dickson, W. of the Dickson Orphanage, be *3 he speak, brought disgrace allowed to has shame and negro Baptist ministry unworthy of Texas. That is he be to fellowshipped called a minister and as such.’’ It is conceded privileged, that conditionally the published and that to' be it must have actionable been with actual express malice, proof being upon or burden of cast plaintiff the the contends, however, to establish actual malice. Plaintiff - might held, jury that the infer such language malice from the the dispropor- vehemence of used and the applied charges epithets plaintiff tion between the to made aganst him. ' in unable to concur this conclusion. It is but the assertion language proposition in different that can be' inferred presumed publication. fact of a publication or from the When conditionally privileged, presumption good the law is raises the malice; hold, case, faith and and to in want of such a that malice language alone, inferred the character of can be from used destroy privilege. would, opinion, in our force great This in view, think, weight is accord with we; country holdings previous authority in this with of our Company In Denver Public Warehouse v. Supreme Court. 432, S.) 34 3 Holloway (Colorado Supreme) Colo., A., (N. L. R. St., Cases, Pac., 131, 7 Ann. 83 696, 840, many 114 Am. In a note to upon question cases are reviewed. that case upholding alleged that an the rule when numerous other authorities conditionally been defamatory to have communication shown prove to qualified privileged, the burden is on or Holloway From case we read: malice, are cited. actual is shown to have us when the occasion been that, “It seems to n showing that the defendant has privileged, the burden of lost 233 Simmons Dickson. v. privilege upon plaintiff. presumption The attaches cast which in writing to occasion is that it was written privileged written on a good upon probable O’Brien, faith As said Justice cause. 440, 34 E., in R. N. Y., A., N. L. Nelson, v. Hemmens ‘ charge 342: false, or nor is not whether the true plain cause believe that whether the defendant had sufficient letter, mistake; ques tiff or or in a but hastily, sent acted is, being privileged, tion is evidence the occasion whether there it for the he knew or believed to be false. (defendant) conclusions without sufficient may have arrived at privilege evidence, protects him from on that ground presumption good until has overcome her by proof purpose faith a malicious to defame character says privilege.’ malice,’ ‘This kind under cover of the cited, in and destroys ‘which overcomes O’Brien, the case law, quite from which privilege, is, course, distinct every instance, respect defamatory irre imputes charge, first ‘ spective of motive. It been an indirect wicked has defined ’ plaintiff. to defame the induces the defendant motive Slander, Libel 267.” Odgers, Ry., In own Missouri Pac. our decisions .the A., St., 794, 15 Am.

Richmond, Texas, 568; L. R. are, Hayden, 555 and 97 Texas, Cranfill In question. opinion, of this former these decisive cases, is said: communication made to be that a

“We the law understand person matter which the good in reference to a faith an public or has interest in which the communicating has interest protecting» purpose made another privileged if *4 discharge in the interest, a communication of and that made that or wrong of towards another looking prevention duty and the In good faith. such made in privileged is when so public the may untrue, malice been although statements cases, the made an and to sustain publication implied from the fact of be cannot ’’ proved. motive must of be the existence evil in which action Hayden: quoted following from Cranfill is absolutely the defamatory privileged, publication “If a If arises. the defama- action justifies language and no the occasion privileged, not and are occasion tory published on words every reason that act justified, implied, malice is not legal justifica- damage another, without intentionally of done to the eye defamatory malicious. of law But excuse, is in the the tion or occupies a middle conditionally privileged which is publication publication privileged provided it ground; say, that is to the duty growing occasion, a sense out was actuated of the court finds that provided not malicious. When the Court Reports, Yol. publication is conditionally privileged, the holding effé'et of the upon cast the proving the burden of that malice prompted the merely act—not malice implication arises law, of in fact, malice otherwise denominated actual malice. words, In other if the conditionally privileged, be malice ’’ implied is not from the mere publication. fact of the Plaintiff having offered no evidence of actual on malice defendants, we think trial properly court directed in their favor.

We judgment conclude that Appeals, the Court of Civil in so far as judgment it reverses the rendering court judgment in upon favor of defendants libel, the action for reversed, judgment be of the trial court respect in that affirmed; judgment Appeals upon of Civil ¡action for slander should not be disturbed. Mr. Chief PHILLIPS following opinion. delivered the agree holding with the the Commission of question judgment discussed. The of the District in favor of not, however, wholly the defendants should affirmed. appear It does that the will prove upon not be able another trial Simmons, Boyd the defendants and Williams presentation were actuated in the resolution, as to the action for libel them the is therefore Instead, affirming entitled to another therefore, judg- liability ment as defendants, of the District Court to the of these as judgment recommended Commission in the District Court their favor so far as action was one libel, should be reversed and remanded to the District cause upon liability Court for another trial the issue of their in that respect, holding accordance Commission of malice. The of the Court Appeals, reversing of Civil the District Court remanding liability of these defendants the cause to trial of that issue, accordingly the District Court another judgment, affirming this direction. Its affirmed with Court, defendants, as to the of the other of the district judgments of District Court and Court is also affirmed. respect to the action for slander are not affected undisturbed, but are left since action the case by our only far as suit is one for libel. jurisdiction extends so

ON REHEARING. opinion delivered the of the court. PHILLIPS Mr. Chief directing that as to the for libel action in error We were Express Baggage Ablon. & Elec. 1920] to against remanded plaintiffs error, the cause ' malice was actual Proof of further District Court libelous necessary their because on to original hearing, holding on publication, and such was our properly therefore trial court There no such and the proof, against there. instructed a verdict be affirmed. here to judgment being correct, it entitled That judgment to reversing a correct not be warranted We would he should proof which losing party here to adduce enable the Texas, Shafer, Harris v. first instance. offered 314, W., 979, 24 S. 263. extent, granted rehearing accordingly to The motion for judg- in error plaintiffs the libel action and as to judgment reversed Court of Civil ment of the original affirmed, District Court of unaltered. otherwise District Court

Reversed affirmed. of Company Express Baggage Ablon, Next Morris Electric Friend. 11, February Decided

No. 3259. W., 1030.) (218 S. 1.—Charge—Exceptions. Stats., March Act as amended o£ Articles Rev. special charges submitting well as Leg., apply issues as

Laws, p. 33d. 237-240). (Pp. charge general the court. Trial. for New 2.—Same—Motion finding on complaint that a in a motion A for new supported was not evidence special them was not issue submitted justify its submission evidence to there was no claim identical fact, different, questions being jury, former one the latter

to law. 241-244). (Pp. —Same. charge submitting objections present to a the trial Failure justify ground will not special evidence to there was no issue on the finding against litigant right him deprive therein attack the sup- insufficiency ground of the evidence to for new trial on a motion finding. (Pp. 237-243). port such Supreme Court—Question of Fact. —Jurisdiction The determination fact insufficiency of a such as reversal because of