Garza v. San Antonio Light

• Decision Date: 31 December 1975
• Docket Number: No. 982,982
• Citation: 531 S.W.2d 926
• Parties: Eliseo A. GARZA et al., Appellants, v. The SAN ANTONIO LIGHT et al., Appellees.
• Court: Texas Court of Appeals

Page 926

531 S.W.2d 926

Eliseo A. GARZA et al., Appellants, v. The SAN ANTONIO LIGHT et al., Appellees.

No. 982.

Court of Civil Appeals of Texas Corpus Christi.

Dec. 31, 1975.

Rehearing Denied Jan. 30, 1976.

Carl C. Chase, Chase & House, Corpus Christi, for appellants.

James D. Baskin, Jr., Matthews, Nowlin, MacFarlane & Barrett, San Antonio, for appellees.

OPINION

YOUNG, Justice.

This is an action for libel brought by Eliseo A. Garza and his wife as next of friend for their minor daughter, Mary Garza, against the San Antonio Light, a newspaper, and others. The newspaper published an article on January 30, 1970 entitled 'San Antonio's Forgotten Adoptables' which contained the photograph of Mary Garza. The case was submitted to a jury on special issues. The trial court accepted a verdict in which the jury: (1) left unanswered several of the special issues about liability; (2) did answer the damage issues with 'None' as general damages and '$25,000.00' as exemplary damages. Based on the partial verdict, the trial court rendered a take nothing judgment. The Garzas appeal from that judgment.

The San Antonio Light is a daily newspaper published in San Antonio, Texas. The author of the offending article was Nathan Sherman, a reporter for the newspaper. Sherman had been instructed by his superiors to write a public service article about children ready for adoption in San Antonio who, for various reasons, were difficult to place in adoptive homes. Sherman conducted interviews and collected photographs for his article from various child care and adoption agencies in San Antonio. The photographs were of children who were not adopted in the immediate San Antonio area and the identities of the children were not known to Sherman.

The published article contained six case histories with accompanying photographs of small children. The names, photographs, and case histories did not match, nor were they intended to. The photograph accompanying the story about 'Lupe' was a photograph (several years old) of Mary Garza. The family background of 'Lupe' was described in the article as follows:

'Lupe, 'a beautiful child and very much adoptable,' is overlooked by prospective parents because her family tree is cluttered with drug addicts, prostitutes and illegitimate children.

Lupe . . . was born to a woman who is a former patient of a state mental hospital who has been arrested several times on narcotics charges.

Before Lupe was taken from her home by the state she had been living with her grandmother, also a prostitute, and her grandfather, who was in jail on charges of criminally assaulting his 12-year-old daughter.'

This is not, however, the family background of Mary Garza. Mary was adopted at the age of three and was nine years of age at the time of the publication. She had not been informed that she was adopted until about a year before trial. She had not been made aware of the article or its contents until the time of trial. There is evidence that she had neither seen nor read the article and had been neither teased nor harassed as a result of the article.

The case was submitted to the jury on special issues and the record reflects that the jury had difficulty during their deliberations in answering the various special issues. They sent a series of four notes to the court. Three of the notes indicated that the jury could not arrive at a verdict. The other note was as follows:

'Please give us the definition of the word 'Tending' as used in Special issues 1 thru 6. Does it apply at the time suit was filed, present or future?

Foreman--/s/ Manuel Segura'

The court then contacted all attorneys to discuss a possible answer. A response was drafted and was eventually delivered to the jury in the following form:

'LADIES AND GENTLEMEN OF THE JURY:

You are instructed that each of Special Issues No. 1 through 6 should read (with the exception of the omitted words):

'Do you find from a preponderance of the evidence that At the time of publication the article and photographs . . . was a publication:

A. Tending to . . ." (Emphasis supplied.)

Before the note was delivered to the jury, the appellants urged the court to change also the wording of Special Issue No. 9, the general damage issue, because they felt the new wording of Special Issues No. 1 through 6 would have the effect of directing the jury to limit the award of damages to injury incurred at the time of publication. The court refused to change Special Issue No. 9, but offered appellants the opportunity to present additional jury argument under the provisions of Rule 286, T.R.C.P. They declined this offer. The court then inquired whether the parties wished to have the jury brought back into the courtroom to read to them the answer to their question. All parties agreed that it would be sufficient for the instruction to be delivered in its written form to the jury room; it was delivered as agreed. The jury thereafter returned the incomplete verdict.

In five points of error the appellants complain that the trial court erred by: (1) trying the case on an incorrect basis of law; (2) failing to give the jury a requested definition; (3) failing to submit to the jury a requested special issue; (4) sending a note to the jury, after deliberations had begun, changing the wording of several special issues; and (5) granting judgment on the partial jury verdict.

We will first discuss appellants' fifth point complaining about predicating the judgment on the partial jury verdict. In that regard, the record reveals that when the jury returned to open court, the foreman announced to the court that the jury had not been able to answer all of the issues, but that ten jurors had been able to agree upon the answer to certain issues. After the court inspected the verdict, it was presented for inspection to counsel for all parties. It was inspected by them and in open court counsel for all parties requested that the court receive and file the verdict. The court announced that the partial verdict of the jury was received and ordered filed. Thereafter, the jury was discharged.

The jury has answered 'None' to the general damage issue, Special Issue No. 9. If the jury had given answers favorable to the appellants on the unanswered special issues about liability, the appellee newspaper would still be entitled to judgment because of the 'None' answer about damages. That is, the results of the case would be the same and the unanswered special issues are immaterial. The trial court, therefore, correctly entered judgment on the partial verdict of the jury. Elliott v. Hamilton, 512 S.W.2d 824, 827 (Tex.Civ.App.--Corpus Christi 1974, no writ).

Further, it is the duty of the party dissatisfied with a verdict to make known his objections to the court before the verdict is accepted and the jury discharged. The appellants have not properly discharged their duty and, therefore, have not preserved their objection. Elliott v. Hamilton, supra. Appellants' fifth point is overruled.

Appellants contend in their second point that it was error for the trial court to refuse to define the term 'public hatred'. The request and the suggested form of the definition was made by the appellants as they dictated their objections to the charge to the court reporter. In their third point the appellants contend that it was error to refuse to submit a requested special issue. That request and the suggested form of the special issue were also made as the appellants dictated their objections to the court's charge. These points must be overruled.

The objections to the court's charge and the submission of the definition and special issues were made together. The failure to submit definitions or special issues may not be considered as error by an appellate court unless they have been requested separate and apart from the objections made to the court's charge. Vega...