Browne v. Brick

• Decision Date: 12 May 1900
• Citation: 56 S.W. 995
• Parties: BROWNE v. BRICK.
• Court: Texas Court of Appeals

Page 995

56 S.W. 995

BROWNE v. BRICK.

Court of Civil Appeals of Texas.

May 12, 1900.

Appeal from district court, Comanche county; N. R. Lindsey, Judge.

Action by Anna Brick against F. M. Browne. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Goodson & Boynton, for appellant. Wilkinson & Reid and J. M. Rieger, for appellee.

STEPHENS, J.

Appellee sued appellant for slander. The defense was, "privileged communication." Appellant's statement of the nature and result of the suit is accepted by appellee, and is here referred to in explanation of what follows. We have concluded that the error assigned to the following charge requires us to reverse the judgment: "You are further instructed that there has been admitted before you evidence to show that the plaintiff, as an employé of the Browne-Cox Company, failed to obey or comply with the rules of the Browne-Cox Company adopted by said company in the conduct of their business, and that the plaintiff had been by the defendant discharged from the employ of said company. You will consider said testimony only on the question of punitory or exemplary damage, for the purpose of determining whether or not the defendant was actuated by actual malice in making the statements (if he did so) alleged and complained of in plaintiff's first amended original petition, and, if he was, then in mitigation of said damages; said evidence being admitted for those purposes alone." The testimony referred to in this charge tended, in some measure, at least, to sustain the defense of privileged communication as alleged in appellant's trial amendment, in that it tended to show that appellant had reason to believe the slanderous statements to be true, and hence that he was not actuated by malice in making them. It was, therefore, as competent upon the issue of actual as it was upon that of exemplary damages; for, if the false statements were privileged, and made without actual malice, appellee was no more entitled to recover actual than exemplary damages. Counsel for appellee, however, do not seem to controvert this proposition, but contend that the charge, when fairly construed, was but an instruction to the jury to consider the evidence referred to "only in determining whether or not appellant was actuated by express malice." But, in view of the language of the charge expressly limiting the testimony to the issue of punitory damage, we do not feel warranted in giving it that construction. We are also...