(2) The giving of Instruction 6 was not error. (3) There was no error in allowing amended answer to be filed. R.S. 1919, Sec. 1274. (4) There was no error in refusing Instruction E. Patterson v. Evans, 254 Mo. 303; Heller v. Publishing Co., 153 Mo. 205. (5) The demurrers to the evidence should have been sustained, as the communication was privileged. Des Barres v. Tremaine, 16 Nova Scotia 215; Waring v. McCaldin (Ire.), 7 Ire. C.L. 228; White v. Nicholls, 3 Haw. 266, 11 L.Ed. 591; McAllister v. Press Co., 76 Mich. 338; McKee v. Hughes, 133 Tenn, 455, 181 S.W. 930; Coogler v. Rhodes, 38 Fla. 240; Hill v. Murphy, 212 Mass. 1; Aldrich v. Printing Co., 8 Minn. 133; Tyler Commercial College v. Lattimore (Tex.), 12 S.W.2d 680; Van Loon v. Van Loon, 159 Mo. App. 271; Peak v. Taubman, 251 Mo. 419; State ex rel. v. Cox, 298 S.W. 840. SEDDON, C.
Although this evidence raises an inference that Stephens' termination was in retaliation for his potential workers' compensation claim, it does not rise to the level of raising an issue that Delhi managers knew their statements were false or made them with reckless disregard of the truth. At trial, a court may properly direct a verdict for the defendant where the plaintiff offers no evidence tending to show actual malice, Rogers v. Industrial Rice Mills, 292 S.W. 944 (Tex.Civ.App. — Galveston 1927, no writ), or where the plaintiff's evidence does no more than create a mere surmise or suspicion that malice existed, Tyler Commercial College v. Lattimore, 12 S.W.2d 680, 686 (Tex.Civ.App. — Texarkana 1929), rev'd on other grounds, 24 S.W.2d 361 (Tex.Comm'n App. 1930, judgment adopted); 50 TEX.JUR.3d Libel and Slander § 56 (1986). Stephens presented no competent summary judgment evidence that Delhi managers published information to people not covered by the qualified privilege, and he failed to raise a fact issue on the question of actual malice.
Under these statutes, appellant had the burden of proving that the matter was published at the instigation of appellee; that the statements therein were false; and that they were made and published with actual malice. Express Printing Co. v. Copeland, 64 Tex. 354; Tyler Commercial College v. Lattimore (Tex.Civ.App.) 12 S.W.2d 680; Holt v. Parsons, 23 Tex. 9, 76 Am.Dec. 49; 27 C.J. 84, § 498. Until these facts were proven, appellant had not made a prima facie case, and as to them the burden of proof never shifted to the appellee. Appellee's plea of justification is not to be taken as a plea in confession and avoidance because, under article 5432, appellant, in order to recover, must prove that the statements are false and were made with actual malice.