Opinion
No. B-1684.
October 1, 1969.
Appeal from the District Court, Harris County, John Snell, Jr., J.
Raymond H. Wilson, Houston, for petitioner.
Cattanach, Hughes, Carlisle Cralle, Robert A. Cattanach, Houston, for respondent.
The trial court granted defendant's motion for summary judgment in this libel action, the proof establishing a qualified privilege of the defendant but standing silent as to the presence or absence of actual malice. On trial of the cause, it would be the burden of plaintiff to prove his allegation of actual malice. The Court of Civil Appeals has reversed the judgment and remanded the cause for trial, on the grounds that the defendant as movant had to negative the plaintiff's cause of action. 442 S.W.2d 789. Since the defendant, though enjoying a conditional privilege, would be liable if actuated by malice, it must fall to him to establish the absence of malice on his motion for summary judgment.
We approve this holding of the Court of Civil Appeals but since its opinion passes on matters not brought to this Court, the application for writ of error is refused, no reversible error.