Texas Defamation Cases Damages Types

In both libel and slander the issues are whether the utterance was made, if it was false, if it damaged the complainant and if the speaker had any privilege. RESTATEMENT (SECOND) OF TORTS 558 (1977); c.f. Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921 (Tex. App.--Corpus Christi 1991, writ dism'd w.o.j.). Whether the defendant intended to say or print the defamatory words is not an element of the cause of action unless privilege is involved. See: Express Pub. Co. v. Lancaster, 2 S.W.2d 833, 834 (Tex. Comm. App. 1928) (holding defamation defendant is liable irrespective of his innocent motives in publishing the defamatory statement); Hornby v. Hunter, 385 S.W.2d 473, 476 (Tex. Civ. App.--Corpus Christi 1964, no writ) (holding that even innocent, mistaken publication still subjects defamer to liability); 50 TEX. JUR. 3d Libel & Slander, 12, at 33 (1986) (noting that intent is not an element of defamation). The issue is whether exemplary damages may be awarded if the defamatory statement is made intentionally or willfully. Punitive damages are available in defamation cases based upon the same rules governing punitive damage awards for all torts. Nabours v. Longview Sav. & Loan Ass'n., 700 S.W.2d 901, 903 n.1 (Tex. 1985). The supreme court has held that a plaintiff must prove the statements were made maliciously to justify exemplary damages in a defamation case. See Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984). Civil Practice and Remedies Code section 41.003 provides that exemplary damages may only be awarded if the claimant proves by clear and convincing evidence that the harm resulted from fraud or malice. See TEX. CIV. PRAC. & REM. CODE ANN. 41.003(a) (Vernon 1997). Compensatory damages allowable for defamation are divided into two categories: general and special. General damages are mental anguish, injury to the reputation and the like that naturally flow from the libel and are not easily susceptible to monetary valuation. West Texas Utilities Co. v. Wills, 164 S.W.2d 405, 412 (Tex. Civ. App.--Austin 1942, no writ); Evans v. McKay, 212 S.W. 680, 685 (Tex. Civ. App.--Dallas 1919, writ dism'd); see also Leyendecker, 683 S.W.2d at 374. In actions of libel per se, the law presumes the existence of some actual damages, requiring no independent proof of general damages. See: Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex. App.--Corpus Christi 1991, writ dism'd w.o.j.); Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477, 488 (Tex. App.- -Corpus Christi 1989, writ denied); City of Brownsville v. Pena, 716 S.W.2d 677, 682 (Tex. App.--Corpus Christi 1986, no writ); First State Bank v. Ake, 606 S.W.2d 696, 702 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.). The amount of general damages is very difficult to determine, and the jury is given wide discretion in its estimation of them. Evans, 212 S.W. at 685; Wills, 164 S.W.2d at 412. Lost earning capacity is a form of special damages, Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555, 558 (1889); Houston Belt & Terminal Ry. Co. v. Wherry, 548 S.W.2d 743, 753 (Tex. Civ. App.--Houston [1st Dist.] 1976, writ ref'd n.r.e.), and must be specifically stated and proved. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 91 (Tex. App.--Corpus Christi 1992, writ dism'd w.o.j.); Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 441 (Tex. App.--Corpus Christi 1985, no writ). Although the amount of damages for lost earning capacity is largely within the discretion of the jury, Fowler v. Pedlar, 497 S.W.2d 399, 401 (Tex. Civ. App.--Houston [1st Dist.] 1973, no writ), the plaintiff is required to prove his lost earning capacity "with that degree of certainty to which the case is susceptible . . . ." McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943).