I am unable to agree with the views of the majority of the Court that the pleadings of appellant and the evidence adduced on the trial of the case raised a material issue of fact for the determination of the jury.
Appellant in filing this action sought recovery of damages claimed by him to have resulted from the publication of false and malicious statements concerning himself and the ship he commanded in articles published and circulated by the Houston Post on August 8th and 9th, 1946. *Page 91
On the trial, after the submission of the case, the jury reported that it was unable to answer the issues submitted. Thereupon the trial court discharged the jury and rendered judgment in favor of appellee, based on his conclusions that appellee was entitled to judgment under the undisputed evidence as a matter of law. The court held in the judgment rendered that the articles on which the action was based had not been published with malice; that they contained no reference to appellant; and that under the pleadings and evidence in the case the truth or the substantial truth of all statements in the articles alleged to be libelous was established. The court held that the statement in the article published on August 8, 1946, did not constitute a libel of appellant and that the statements in each of the articles in question were privileged communications under Article 5432, Revised Civil Statutes.
At appellant's request the trial court prepared and caused to be filed his findings of fact and conclusions of law in which he found as facts that under the undisputed evidence the articles in question which had been printed, published and circulated by appellee were not published with malice, and that they contained no reference to appellant; that the articles in question did not tend to injure appellant's reputation in the mind of the ordinary reader, and that he had not been discharged as the master of the S.S. Warren Delano by reason of the publication of said articles, but that he had voluntarily left his said employment at his own request. The court further found that the articles in question were concerned with incidents of navigation and that their contents were the subjects of public interest and concern upon which the public was entitled to be informed, and that insofar as they made reference to appellant, they were a reasonable and fair comment or criticism of him with respect to matters of public concern, and were published for general information.
It is well established in this State that where a jury has failed to agree upon a verdict and has been discharged, a trial court has the authority to discharge the jury and to render judgment for defendant if he could have properly directed a verdict in defendant's favor. Hutchison v. East Texas Oil Company, Tex. Civ. App. 167 S.W.2d 205; Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377; Cline v. Insurance Exchange of Houston, 140 Tex. 175, 166 S.W.2d 677, Id., Tex. Civ. App. 154 S.W.2d 491.
Appellant contends that each of the articles in question are libelous and that they must be read and considered together as a single article to determine whether they are, as a matter of law, libelous. This contention cannot, I think, be sustained.
In the case of Houston Press Co. v. Smith, Tex. Civ. App. 3 S.W.2d 900, 909, this Court, in holding that it was error to combine several articles published on different dates as constituting one cause of action, said: "Each of the alleged articles must stand alone, and, if libelous under the law, it constitutes a separate and distinct cause of action, and in such case the defendant has the right to demand separate findings on each article."
The first article complained of is, I think, unambiguous and devoid of any defamatory meaning. It appears to be an article concerning the happenings on board the ship, and no one was held either directly or indirectly responsible for them. No reference to a criticism of appellant was made in the article.
The second article is, in substance, a report on a meeting of the members of the crew called by members of the crew for the purpose of discussing with their union representatives the grounds for charges to be urged against appellant and the Chief Mate. This article refers briefly to the incidents on which the complaints had been based. The complaints which grew out of this meeting were later filed with the Coast Guard.
The truth of the material statements in both articles was, I think, as found by the trial court, established by substantial evidence. The statements were also, I think, privileged communications.
It is well established in this State that the truth of a defamatory statement or of a published fact is a complete defense to an *Page 92 action for defamation. Restatement of the Law of Torts, Sec. 532. It has been uniformly held that it is not necessary to prove the literal truth of the precise statement made. 27 Tex.Jur., 637; Express Publishing Company v. Keeran, Tex.Com.App., 284 S.W. 913; Houston Press Co. v. Smith, Tex. Civ. App. 3 S.W.2d 900.
It follows, I think, that no error was committed by the trial court in rendering judgment for appellee.
For the above reasons the judgment of the trial court should, in my opinion, be in all things affirmed.