*2 ESQUIVEL, and MASS Before REEVES EY,* JJ.
MASSEY, (Assigned). Justice Plaintiff, David R. Rico d/b/a Con- subcontractor, Company, struction gen- brought damages against the suit for contractor, Chasewood Construction eral (Chasewood), his Company for breach coun- two contracts. Chasewood written damages. breach of contract terclaimed for later to include Rico’s amended action out growing for defamation an action the same transaction. court jury,
Following trial before a $650,000.00 for Rico for judgment rendered $1,750,000.00punitive damages and actual count, and the defamation * (Acts H.B. Civil as amended Assigned Chief Statutes to this case Justice of 1, 1912, 354, Leg., p. effective § Ch. pursuant 68th Supreme as authorized Court of Texas 1983). (d) Paragraph June Texas Revised of Article faith, Special Issue Num- it answered $51,591.45 damages, together bad $51,491.45 damages inter- post-judgment 7 and found pre-judgment ber $36,000.00 attorney framing fees. The of both the est and the termination Rico to remitt required court later district the trim contracts.
$250,000.00 punitive award. included one preliminary instructions must appeals finding from the every *3 and defamation. breach of contract for both of the evidence. preponderance be a spe- error in the submission Because of find error based We reversible action, contract for the breach of cial issues holding of Pine Lumber Co. the Southern re- judgment for breach of contract is the 473, 483 138 Tex. 161 S.W.2d King, v. for retrial. Our re- versed and remanded Co., (1942). In Pine Lumber Southern only the breach of contract versal affects instruction read: special issue and clearly separable portion of the case and is No._ Special Issue parties. TEX.R. without unfairness to you preponderance find from a Do Judgement for actual and ex- 434. CIY.P. the evidence that ... defamation is af- emplary firmed. you may de- Answer ‘Yes’ or ‘No’ as the evi- preponderance termine from a
BREACH OF CONTRACT dence dispute that ter- There is no Special Issue Number 6 above In both Rico on Decem- minated its contract with jury in the and in the instruction to the 1, 1981, framing trimming and ber cited case of Pine Lumber Co. Southern apartment complexes. emphasis to the word supplied we have depend- damages for breach of contract is spe- Concerning language of the “or.” upon Special Issue Num- ent the answer in Pine Lumber Co. cial issue Southern inquired 6 which whether Chasewood ber supreme court wrote: our Spe- terminations in bad faith. made the Company entitled to The Lumber on a cial Issue Number was conditional special to each of the negative answers finding Special faith in Issue Num- of bad did in the event evidence issues Special Issue Number 6 reads: ber 6. an- preponderate in favor of affirmative ISSUE NO. 6 SPECIAL issues were so thereto. The swers 1, 1981, Did on December affirm- jury inform the that framed as to terminating in faith in Rico’s act bad must based thereto be ative answers con- framing contract and/or the trim evidence, of the preponderance a tract? they fact that in them lies in the but vice ‘They acted in bad faith’ or Answer: jury to inform the so framed as were act in bad faith’ for each ‘they did not must also negative answers thereto that separately. preponderance of upon a be based in that ‘to act bad You are instructed and Considering questions evidence. in that is means to act a manner faith’ they should together as the instructions capricious, or unreasonable. arbitrary, considered, they are both but since be Framing jury answer as to the issues, the conclusion parts of Trim contract as follows: contract and that, escaped while cannot be in Framing They acted bad a ‘yes’ Contract: from to answer instructed (Answer ‘They acted in bad faith’ evidence, faith it was of the preponderance faith’) in ‘They did not act bad ‘no’from answer instructed to likewise in faith the evidence. They preponderance acted bad Trim Contract: (Answer ‘They in bad faith’ or acted merely to been instructions Had the faith’) ‘They did not act bad ‘yes’ or ‘no’ questions answer the been sub- not have special issues would supplied.) (Emphasis of the word “or” against them. urged objections ject acted found Chasewood Because every Traders & Insurance Co. issue this General Jenkins, 232, 135 Tex. 312. ‘yes’ S.W.2d that call for a or ‘no’ doesn’t answer they than that But went further get way succinctly it out of effect, jury, informed the that whether say position our is that when their answers were ‘yes’ or <no’ jury’s say ‘yes,’ we find choices must, case, in either determined from inquired only fact about or we find and preponderance evidence. We .the opposite finding other choices is a give approval cannot our to that charac fact, places of that that it a heavier bur- ter of submission of issues. Psimenos v. position den on the Defendant’s on that Tex.Civ.App., 47 Huntley, S.W.2d it, requires issue than the law and that’s adopted in expressly approved and why submitting we are it. Each of these Employers Texas Insurance Associa in, questions you do should be couched Lemons, tion v. Tex. 83 S.W.2d [125 preponderance find from a of the evi- supra. 658] so, If dence that a fact exists. answer *4 any Under view the issues were con- don’t, you do. If answer we do not. we fusing and that within itself condemns We hold there was no waiver language found in the them. This Hunt- in said issue 6. We are of error number case, approved ley supra, expressly was ‘ * * * opinion fully that the trial court was the case, supra: in the Lemons We apprised of the nature of ob think, facts, Chasewood’s the the form of the under jection. charge was calculated to confuse rather determining
than the the an- aid Plaintiff David R. Rico’s based discussion, question under swer to the inquired upon the breach of contract about deprived appellant and that was of his by Special Issue Number 6 is reversed and right specific to have either a instruction the cause remanded. placing upon appellee prov- burden of question, or ing the affirmative of such question such so framed that the
to have THE FOR DEFAMATION TORT CASE necessarily understand that petition filed original Rico’s was the same should be answered affirma- 17, plaintiff Rico’s May 1982. Because testimony tively only the event the of action for defamation was added cause answer, of such preponderated in favor 9, 1983, it is pleadings filed on June and, preponderance, in the absent such Construction contended Chasewood * * *’ negative. have Company that the trial court should indicated, judg- the error For above provi plea of limitation under sustained it’s Appeals of Civil ments of Court art. of TEX.REV.CIV.STAT.ANN. sions will reversed and the cause trial court (Vernon 1958), com “Actions to be 5524 remanded. The added def year.” menced in one at 483-84. 138 Tex. 161 S.W.2d trans grew out of same amation action Special Is- argues objection that gave which rise to breach action preserved. properly not sue Number was action; wholly based it was not new, distinct, or grown any upon or out
In Construction this case Chasewood than and occurrence different transaction Special Issue Company objected to Number pled the case within relied that improperly places “it the burden 6 because circumstances, such an Earlier, year. Under by gener- upon the Defendant.” year more than one in tort—filed special issues sub- action al to all the by the not barred to that of such occurrence—is with an instruction similar after mitted Texaco, stated Leonard Special plea Issue Number Chasewood of limitation. (Tex.1967); TEX. Inc., to the court: 422 S.W.2d (Vernon art. 5539b REV.CIV.STAT.ANN. objec- I make the same would like to 1958). I like to make the tion to two-A. would get; you said, well, can t He we for it.
Plaintiff Rico was subcontractor know, Rico; well, just have settle we’ll trimming and defendant framing and you. De- general contractor. On 1, 1981, the job Rico left site to cember siding found in Concerning cedar garage. take His of- his automobile claimed garage, Wechsler that Wechsler’s fice, site, away job from the knew located purchased it from six months earlier he absence, During his his whereabouts. He stat- $75.00.” individual “$60.00 president a vice Hope, Mr. Michael siding lumber which ed that it was exterior principal respon- operating Chasewood with using the interior of his he to remodel job site with sibility, visited the Paul Clark- house. He further stated that it son, project manager for the Austin-San eight pieces, six up of foot about inches Bailey Terry area. was the Antonio wide one inch thickness. Supervisor,” who had an of- “Project Job following The same his conversation day, job fice on the site. At mid- in a trailer Clarkson, Hope and Wechsler stated job men morning the three “walked representatives to Rico that the Chasewood generally site” to observe the At work. materials; stealing had accused him of that Ray point, they some were informed he, Wechsler, he had told them that Bridgewater, representative plumbing materials; they then taken and that ac- done many jobs who had subcontractor Rico, stating they cused wanted their regular he had observed a had material and knew that Rico it. Rico, Wechsler, Johnny driv- employee of what Wechsler testified that he further ing job site with out of occurred; the actually told Rico had state- *5 in vehicle. materials his and offi- ments accusations Chasewood actually cials were made. When the three men were informed of this, Johnny present the Wechsler was at Hope that the conversation testified job Hope site. and/or Clarkson instructed Wechsler, allega- the with “He confirmed Bailey Bailey “fire” Wechsler. located to Rico, refused tions David but to Morin, “Project Superintendent,” Albert cooperate family’s his and his fear of “fire” Wechsler. and told him to Morin did safety from from David Rico.” reprisals premises. so left the and Wechsler How- accusing he Hope testified that was ever, theft, he Hope soon decided that talk him should never accused Rico of and had anything with Rico’s office located Rico published Wechsler. slanderous. bring
and told him to find Wechsler and following conversation the Immediately him did job the site. Rico this. About to Wechsler, Rico into the Hope called with Hope in noon was closeted with Wechsler and, office, according Hope, to Chasewood job the Rico the trailer on site. contracts with terminated the Chasewood re- Hope’s outside the trailer remained Rico because im- orally Rico and fired quest. supervision. he did not proper He stated theft, i.e., Rico terminate the “fire” conducted the inter- Hope and Clarkson reason; anyone if for that Rico contracts Wechsler testified: view with Wechsler. theft, they that he “fired” Rico said had they me—first me They accused accused telling not be the truth. would they their material. That that I took $60,- something like missing saying failure differently, were Rico testified they they told me that went to 000.00 and mentioned him. supervise never to was they to and found the material interview my house stated after Wechsler’s He that cedar_ Clarkson, there, some I he summoned they Hope found that with and office, they I trailer where didn’t have—and into the Chasewood told them having well, taken Hope Rico him of we know that Michael accused accused— $12,000.00 belonging to Chase- material, where is it? He materials but has said to him: Hope I Rico stated that where its at. And told wood. says, you know off you took materials anything about “Where that I didn’t know them job site or stole ... the materials ... Rico told employees his that he was ac- $12,000.00 you job_ management stole from the I cused the Chasewood [you] stealing job want materials from get the materials back or off site and job.” per- because of this he and all any No mention was made of sonnel him improper performance associated with had been or- a subcontractor dered to leave. It was reasonable for only under topic his contracts. The explain departure to job from the site. theft of Chasewood materials. Rico ex- added, pressed Hope amazement “I am opinion We are of the Hope, Michael $12,000.00 Bring dead serious. me the care, in the ordinary exercise of should get job right worth of materials or off the have known that Rico would feel an obli- now.” Then employees Rico notified his gation give explanation to to person- his out subcontractors moved into the nel and actually tell them what had street. occurred. The jury found that a reason- attorney developed Rico’s evidence on ably prudent person in the circumstances rights, particularly contractual on breach would have Hope’s known that statement contract, rights provided by of such would be communicated to others Rico. Termination, justify so as to termination. defamatory There are other instances of demonstrated, attorney Rico’s would be statements, written, chargeable oral and prepared manner, dispassionate for in a sup- but the most material as proper opportunity with notice and to cure portive of the substantial found complaint. the cause for Even if there was Hope was the statement of breach, an undoubted a termination would through Rico’s mouth—a communi- Rico— cation a manner convenient to Chase- Hope employees the Rico from wood example, and its accountants. For assembled. Each of Rico’s men would might one effect the termination at the end memory have left with the that the Chase- period of some work and not the middle management charged wood had David Rico day necessary when it would be materials, stealing its and had “fired” stop activity preparation all without to do reason, him whether there was for that so either Chasewood or Rico. our Given *6 truth or in the accusation. All the men not disposition of the breach of cause frequent made and continuous have necessary of action it not to elaborate on job moves to other and would be sites the breach. employed by other contractors and subcon- However, the evidence above indicates Certainly such inference could be tractors. passion by that there was Mi- considerable of drawn from evidence adduced. Word Hope chael sufficient to cause him to termi- thereby be carried to the defamation would immediately, nate and fire Rico without very persons whom Rico could be with any precaution protection for of expected seek work as a subcontractor progress general of activities of a contrac- years to follow. This in the months and testimony tor. The uncontradicted of Rico rapid dissemination would constitute get equip- was that he was ordered to his nature, defamation, and, by its dissem- premises ment and his men off the instant- Rico very upon whom ination to the entities fork-lifts, ly. This meant that two some as a give relied to him work would have vehicles, and over one hundred ten men trial, Significantly, subcontractor. engaged performance in un- who had been stipulated that Rico was quickly der the Rico had to be subcontracts having wrongfully taken materi- guilty of This, turn, premises. removed from the belonging als to Chasewood. equipment meant that such and men were jury findings spe- The to one cluster of literally immediately “in the outside street” support judgment cial issues for David premises, unpaid and incensed. Their damages defamation for for obviously peril and interests were Chasewood: why. Rico to tell them This he did. wanted spurious We consider the claim and “5D.” ISSUE NO. 5. SPECIAL any error of Rico that there was waiver of scope of in the course Hope, Did newly special numbered issues un- Chasewood, state employment his using objections less new the new numbers 1, 1981, reason- words December Rico on Anyway, made. the issues above were being fired meaning that Rico was ably submitted, considering not improperly were from Chasewood? stealing materials objections by all the made ‘No’ ‘Yes’ or Answer: reaps jury from the of this Rico benefit answer: ‘Yes.’ jury theWe findings. NO. 5A. ISSUE SPECIAL dispo- immaterial because having question The material is: There [Omitted sition case] special inquiry been no issue of whether NO. 5B. SPECIAL ISSUE “reasonably required” the circumstances conditionally The issue was employees, that Rico relate to his who were [Omitted. upon faulty immateri- submitted abruptly premises, ordered from the issue; special disregard- and is to materials, al he had been fired for theft of the However, ed because so conditional. having and there been it, too, disposition is immaterial court’s because of absence there- special jury from of a issue which the case.] might explanation find was in [Conditionally that Rico’s NO. 5C. SPECIAL ISSUE “reasonably required,” fact has Rico never- upon submitted Issue No. 5.] findings by he jury theless obtained which by Hope Was the statement made damages recover in tort is entitled to his knowledge that it was false in for the defamation? degree any or made with reckless dis- regard falsity of the truth or jury findings support Rico’s any degree? statement for defamation. Answer: ‘Yes’ or ‘No’ that, circumstances, We hold when We the answer: ‘Yes.’ findings Rico obtained in the number 5 SPECIAL ISSUE NO. 5D. issues, especially [Conditional- the find cluster of ly submitted Issue No. 5.] ing Hope, reasonably prudent as a Hope
At the time expected stated to that his def person, Rico that should have Rico had stolen materials from amation Rico to his face would be com Chase- wood, Rico, prudent person would a have municated others he established rea- sonably expected prima damages. that such his case for In First statement facie Ake, would be Corpus communicated to Bank Christi v. others State (Tex.Civ.App. Corpus Rico? S.W.2d — Answer: ‘Yes’ or ‘No’ n.r.e.), Christi writ ref’d charged answer: to have been defamed ‘Yes.’ *7 defamatory communi defendant when the SPECIAL ISSUE NO. 5E. [Conditional- plaintiff, cation was made ly submitted Issue No. 5.] par third communicated it to plaintiff then Did any damages Rico suffer and/or injuries and plaintiff’s ties. The injury proximate as a result of Rico rea- consequence of to have been a were shown sonably relating to others that he had parties. to third his own communication been fired for theft of materials from knowledge that had The defendant Chasewood? def likely to communicate the plaintiff was Answer: ‘Yes’ or ‘No’ persons. amation to third answer: ‘Yes.’ in Ake stated: The court objections At the time the were made to defamatory court, who communicates proposed charge special One of the person, directly to the defamed matter issue “5C” was labelled issue “5B” it to a third communicates who himself Special but was the same material issue. matter to published the party, has not issues “5D” and “5E” were labelled “5C” 446 person
the third if there support are no other cannot a defamation action. The If in- objection circumstances. the circumstances court Special overruled an Is- 5A, dicated that communication to a third Hope’s sue whether statement was however, party likely, publication is “substantially made,” false when which may properly be held to have occurred. claimed the issue constituted a (Second) Restatement of Torts weight language § the evidence. The (1977). Likewise, m comment if a rea- following morning was removed the at the person recognize sonable would that an request attorneys any ques- of Rico’s act creates an unreasonable risk that the Objections tion became moot. Spe- made to defamatory matter communicated will be cial Issue Numbers 5A and 5B are over- party, to a third the conduct becomes a immaterial, ruled as the issues themselves communication, negligent which amounts being disposition immaterial to our as we publication just effectively as an additionally hold. intentional communication. Restatement Objection Special made to Issue Number (Second) k of Torts comment § not, law, it 5C was that was as a matter of (1977). an ultimate issue in the case because it 606 S.W.2d 701. inquired statement, alleged whether Rico, only reasonably made (Second) be
Comment k of Restatement (In words, (1977), communicated to others. other subheading “In- Torts 577 under § aiming Chasewood was at its true com- negligent publication” tentional or reads: plaint; because there absence of in- publish defamatory There is intent quiry necessity” of “reasonable that Rico matter when the actor does an act for persons tell third of the of him defamation purpose communicating it to a him.) Objection communicated to made to person knowledge third or with that it is (submitted Special Issue Number 5D substantially certain to be so communi- 5E) Special Issue Number was because the cated. ... “reasonably relating standard of to others” however, necessary, It is not that the an inaccurate statement law and person communication to a third inten- be be, standard should “was Rico person If tional. a reasonable would rec- reasonably required to relate it to others.” ognize that an act creates an unreasonble rulings upon objections Our made to defamatory risk that the matter will be charge. person, communicated to a third the con- negligent communication. duct becomes foregoing objections good, were not negligent A communication amounts to a objections to the then whether the effectively in- publication just as as an 5D, special issues 5C and or made to the tentional communication. issues, submitted numbers 5D and 5E. objection Special Issue There was no holding Lyle The Ake case honored the “5 cluster” of issues Number 5 and the Waddle, Tex. S.W.2d faulty inquiry relative to the somewhat (1945), that a cannot which holds Hope spoken by the words had the whether injuries recover for sustained reason meaning” that Rico was “reasonable authorized, publication which he invited stealing. Had the “fired” procured, but at the same time held that a submis- sufficiency reached the of such Lyle rule was under circumstances suspected that our labors would sion it is inapplicable. were re- Those circumstances more difficult. quoted language immediately flected *8 above, Ake, in as taken from the text Special to Issue The answers returned S.W.2d at 701. 5E, through and 5A as same number judg- save the disposition, to our material objection by to
The levelled Chasewood is not because for defamation. This ment Special Issue 5 was that it was not Number along go with might we be able to a statement an ultimate issue because find a waiver lawyers and claiming injury plaintiff and his person made to the who is any portion objections damage Actually of of the him. and we find the exceptions charge place made to the and court’s communications which took such day reports the case privileged before was submitted to to have been and direct- jury following morning, persons ed to entitled thereto. Further- —because request more, plaintiffs change there was a in from our search of the record we numbering of several issues from that find no substantial evidence damage of ac- they cruing any- which were numbered at the time to Rico from the circulation of objections exceptions. thing of the and That harmful to Rico reflected in the re- course, necessary, according ports. such occurred made it opin- Of we are also of the theory, damage to Rico’s that the Chasewood attor- ion the awarded in the trial court’s neys obliged were to start support. over with new has other objections exceptions and charge. Special Issue 9 was the Number issue attorneys This Chasewood and its did not damages resulting actual to Rico from the holding do. preju- Our is that it was not damages defamation. Actual found were thereby right any prior diced and lost no $650,000.00. objection exception and made to an issue read, Special Issue Number 10 as fol- might like unto which these submitted be lows: germane. give found We cannot sanction SPECIAL ISSUE NO. 10. such; it would smack of unfair trial. money, any, What sum of if should be From the whole record it is obvious to us assessed Chasewood Construc- confused, that the trial court was not Company exemplary damages? tion as attorneys the Chasewood justifiably (‘Exemplary damages’ means proceeded security in the belief that you may, your amount that in discre- preserved any had error there was— tion, example as an award to others sought to be shown to the court penalty by way punish- and as a objections exceptions presented —and ment, in any you addition to amount prepared by directed to the may damages.) have found as actual day court the Specifically, before. there cents, any. Answer in dollars and if was no objection waiver of $1,750,000.00 jury answer: asking question issue the same in sub- stance, only objection Special made to Issue though differently numbered. Number 10 was that there had been no analysis From a fair pleadings, proper previous inquiry asking whether the wrong- Rico’s cause of action for (not statement identified as to state- what ful termination of contracts was an action ment) malice, was made with actual which based contract. Tortious breach requisite damages. is the is an There alleged. contract was We cannot see any inquiry any absence of such issue. availability ap- of an action in tort as plied However, to breach of contract. This not a point of error com case where plaining Special election of remedies is involved. Issue Number If question complains it there would no permit but Chasewood exemplary damages by time of submission Rico had find waived ted to consider ing, damages the tort and sued on the contracts. The addition the actual damages resulting of issues on submission defamation of Rico the actual Rico from Chasewood’s breaches of con- had found attributable to the breaches by Special tract was Number 7. of Issue Chasewood. There was no complaint by such at trial. The Following Special Issue Number was point of error is waived. 8A, Special submitted Issues Number 8B, 8C, plain- having By and 8D to an ele- remittitur the trial court caused relation exemplary ment to reduce the of defamation of Rico written re- tiff David Rico $250,000.00. ports, alleged publica- damage finding by appeal to have amounted to On libel, injury complains tion of to have caused defendant of exees- also *9 448 $1,500,000.00 exemplary appeal, in the The on as the same
siveness case includes damages of the damages and excessiveness the total Rico cause of action for for on part breach of contract the of defendant judgment. plaintiff severed from the is complaint in the We see no basis Rico’s cause of action for actual and exem- $650,000.00 damages to finding as actual against plary damages with judgment the thereon. Rico and of based by appel- appropriate order the clerk of this It unreasonable an amount view was not severance, accomplish late court to the and, therefore, of the evidence in the case along the of the case for remand that the was motivated no indication flowing from of damages breach contract. by passion, prejudice, improper or other The of the court for dam- judgment trial damage find making motive the actual ages of the is because defamation af- ing. firmed. $1,500,000.00 more concern is the ex- Of appeal applied as to Costs of both cases damages by emplary the trial awarded against appellant adjudged are one-half as judgment in its after Rico’s remit- court Company, and Chasewood Construction $1,750,- jury’s in reduction of the titur appellee David R. Rico. one-half as finding exemplary damages. on 000.00 requests an remit- additional titur. Justice, REEVES, dissenting. agree I I respectfully dissent. While damages, unlike actu
Exemplary majority’s disposition of the with the damages, jury’s are measured the al not action, I compensation, breach of contract cause of would of the fair application rule of judgment not affirm the for the defamation just punishment. There is but The fixed ratio two. action. no between largely is the discretion of amount within of a defamation is essential Publication finder; appellate court will not the fact general The rule in Texas is liability. to judg the verdict or the amount of disturb injuries that a cannot recover unjust, unless the amount awarded is
ment publication reason of sustained unreasonable, justify and so excessive if alleged publication defamation such pas the result of a conclusion that it was authorized, invited, to, pro- or consented sion, improper motive. prejudice, other Waddle, 144 plaintiff. Lyle cured (1945). Tex. 188 S.W.2d judgment for A that the conclusion from damages passion, resulted exemplary (Second) pro- Torts The Restatement is not improper or other motive prejudice, exception general to this vides a narrow presented by the record possible rule: exemplary dam The appeal. amount person. Recipient is defamed m. of the trial
ages judgment awarded defamatory communicates mat- One who disproportionate so court person, who directly ter to the defamed in the that excessiveness actual per- it to a third himself communicates is punishment for the defamation award son, published the matter has not excessiveness Complaint of apparent. circum- if there are no other person third exemplary judgment for actual person’s trans- If the defamed stances. the defamation damages resultant from the communication mission of & Libel Slander overruled. Tex.Jur.2d however, made, without person third (1962). § defamatory nature of the an awareness and if the circumstances matter court dam- trial communication to third indicated and for attor- ages for breach of contract may likely, publication party re- cause ney’s fees is reversed occurred. held have properly be manded. *10 (SECOND) TORTS, Hope RESTATEMENT OF At the time stated to Rico that Rico (1977). Thus, 577 comment m under the had stolen materials from § rule, publication Restatement there is no if prudent person reasonably would a have person repeats the defamed a slanderous expected that such statement would be (1) person remark unless the defamed is communicated to others Rico? defamatory unaware of the nature of the Answer ‘Yes’ or ‘No.’ matter, (2) circumstances indicate the answer Yes. a person communication to third would be jury finding The does not that establish likely. Hope publication intended the of the re- (Second) The Restatement of Torts also Rico; finding mark neither does the distinguishes negli- between intentional and support negligent publication a it since gent publications: necessity. does not rise to the level of Ex- k. negligent publica- Intentional or pecting repeated a statement would tion. There an publish intent to de- goes only foreseeability; expecting famatory matter when the actor does an repeated statement would have to be would purpose communicating act it support necessity. person knowledge to a third or with that substantially it is certain to be so com- importance necessity publi- The municated. ... plaintiff cation is discussed Pros- however, It necessary, is not that the ser: person communication third be inten- Ordinarily the defendant is not liable for If a person tional. reasonable would rec- any publication made to the him- ognize that an act creates an unreason- self, though expected even it was to be defamatory able risk that the matter will however, are, might publish he it. There person, be communicated to a third which, a few cases in because of the conduct a negligent becomes communica- plaintiff’s immaturity, blindness or or be- negligent tion. A communication necessity he under to cause of some publication just amounts as effec- others, it communicate the matter to tively intentional communication. reasonably anticipated to be that he (SECOND) TORTS, RESTATEMENT OF so, do and the writer has been held would (1977). 577 comment k § responsible. to be majority opinion, opinion like the it PROSSER, THE W. HANDBOOK OF upon, relies First Corpus State Bank TORTS, (1971). LAW OF § Ake, properly Christi v. does not differenti- objected At trial to the sub- ate between these comments in the Re- special because statement. mission of the above issue it statement of the law. was an inaccurate m, prong Under comment a two test stated: Counsel must be satisfied. It is not this cause. be, was he reason- standard should [T]he k, Hope Under comment made the de- ably required to relate it to others ... famatory remark intentionally if he did so just just this more rather than issue knowledge that it was substantial- theory or less leaves that element of this ly certain to be communicated to a third it Mr. Rico wanted to relate to whether person. Alternatively, Hope is also liable if others, rather than for some business he negligently made the remark if “a rea- reasonably required it reason was person recognize sonable that an act him. he reveal what was told to creates an unreasonable risk that the de- famatory matter could be communicated to I made. Proper objection to the issue was person.” jury finding a third There is no defective- would hold the issue was support propositions. either of the above submitted; finding does not ly repeating necessity of Rico jury finding
Rico relies establish is, therefore, no following special issue: the defamation and there liability Hope’s basis for Chasewood for
statement. I would remand retrial. *11 Davis, III,
Walter Riddles & Tomp- C. kins, Dallas, appellant. Smith, Baker,
Joe Foreman & Bou- dreaux, Dallas, appellee. STEPHENS,
Before HOWELL and McCLUNG,JJ. MARTIN, Appellant, D. Jim McCLUNG, Justice. question attorney Our is whether fees INDEMNITY TRAVELERS COMPANY may be recovered from the carrier work- ISLAND, Appellee. OF RHODE compensation ers’ cases under TEX.REV. No. 05-84-01075-CV. (Vernon Supp. CIV.STAT.ANN. art. 2226 Appeals Texas, 1985) Court of part to those made a addition
Dallas. the award at trial accordance with TEX. (Ver- REV.CIV.STAT.ANN. art. 7c§ Aug. 1985. Supp.1985). non hold We cannot. Rehearing Sept. Denied 1985. dispute presented No on the is facts or compensation the amount of workers’ bene- fits awarded that included fees. attorney Appellant complains solely of the denial of attorney his claim for additional fees from appellee, compensation the workers’ carri- er, under 2226. article
Appellant attorney contends that fees he awarded received were under statutory authority compensa- in workers’ tion cases out in as set TEX.REV.CIV. (Vernon and 8307 STAT.ANN. arts. 8306 However, Supp.1985). ap- 1967 & Vernon pellant that he is class insists within by article 2226 because he has enumerated compensation established workers’ a valid carrier, claim and such claim is contract to which he founded on a written alternative, privy, to which he is or in the he is beneficiary, a third thus entitled party attorney to recover fees the additional admitted). (presentment refusal are disagree We with this contention. Appellant legisla- Texas presents us with history 2226 that shows the tive of article times, has, expanded legislature authority for awards of scope statutory attorney previously areas not al- fees into legis- lowed. we are mindful While construction in the lative mandate of liberal