Marshall Field Stores, Inc. v. Gardiner

OPINION ON MOTION FOR REHEARING

WILSON, Justice.

We overrule the appellee’s motion for rehearing and his motion to retax costs, but issue this opinion to clarify certain portions of our original opinion.

The appellee, Gary W. Gardiner, contends this Court applied an incorrect standard of review when it sustained the appellants’ no evidence point of error. Gardiner asserts this Court disregarded inferences favorable to his claim and substituted its opinion for that of the jury. Specifically, Gardiner again points to testimony that everyone “knew” about the incident in question to infer that he was defamed by Beirne or Varga. Thus, he asserts, there was sufficient circumstantial evidence to support the jury’s finding he was defamed.

When considering a no evidence point, an appellate court may consider only the evidence and inferences favorable to the jury’s verdict. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). We understand the meaning of the term “inference” as follows:

In the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved....

Black’s Law DICTIONARY 700 (5th ed. 1979).

For a jury to infer a fact, it must be able to deduce that fact as a logical consequence from other proven facts. Gardiner argues that because only he, Var-ga, and Beirne knew initially that he was accused of theft and he did not tell other Marshall Field employees, the logical consequence is that Varga or Beirne must have told them. Therefore, he asserts, the jury was entitled to make that inference.

Gardiner overlooks the equally plausible deduction, which he himself asserted as evidence of a publication in his appellate brief, that the other employees knew of the accusation because they saw Gardiner being removed from the sales floor by security. When circumstances are consistent with either of two facts and nothing shows that one is more probable than the other, neither fact can be inferred. Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984). Because the circumstances proven are as consistent with nonpublication by Varga or Beirne as they are with publication, and nothing shows one was more probable than the *401other, the jury was not entitled to infer publication.

This is not a case in which some circumstantial evidence points in one direction, and other circumstantial evidence points in the opposite direction. In cases involving conflicting evidence, the jury is the sole arbiter of which evidence should be believed. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).1

This is a case in which the uncontrovert-ed, circumstantial evidence most favorable to the jury verdict is equally susceptible to conflicting inferences. We find no evidence tending to show more forcefully that Gardiner was defamed than not. There was no direct evidence of publication by either Varga or Beirne. Every piece of circumstantial evidence relied on by Gard-iner to infer publication equally supports the inference that this knowledge was gained from mere rumors or gossip spread by other store employees.

An ultimate fact may be established by circumstantial evidence, but the circumstances relied upon must have probative force sufficient to constitute a basis of legal inference. It is not enough that the facts raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. The circumstances relied on must be of such a character as to be reasonably satisfactory and convincing, and must not be equally consistent with the nonexistence of the ultimate fact.

Texas Dep’t of Corrections v. Jackson, 661 S.W.2d 154, 157 (Tex.App.—Houston [1st Dist.] 1983, writ ref d n.r.e.).

Given that the circumstances proven in this case provide no more than a suspicion or surmise that publication occurred, we reaffirm our holding that the jury was not entitled to reach a speculative conclusion on this issue.

Gardiner also contends the evidence relied on in our original opinion departs materially from the record. He cites the following statement in our original opinion:

Fargo testified she did not speak to Beirne about Gardiner. Fargo further stated she started a conversation with Varga some time after the twenty-fifth, telling Varga she was certain Gardiner had not taken anything, and suggested someone else as a possible suspect. Fargo testified Varga said she was probably right, and she would watch the other person. (Emphasis added.)

The record reflects portions of Ms. Fargo’s deposition testimony were read at the trial:

Mr. McKinney: My offer begins on page 40, line 23.
Q: “First of all, have you ever had a conversation with Bonnie Beirne or — bad question. Did you have a conversation with Bonnie Beirne concerning the circumstances under which Mr. Gardiner separated from Marshall Field back in April or May of 1986?
A: No, I did not.
Q: Did you have a similar conversation with Susan Varga about that circumstance under which Mr. Gardiner separated from Marshall Field back in April or May of 1986?
A: The circumstances? You mean did we — did I say — was he — I don’t think he took the money or—
Q: Did you talk to Ms. Varga about Gary Gardiner leaving Marshall Field?
A: It seems to me I told her about Mike Rose when we were discussing that. I may have said something like that.
Q: Did Ms. Varga say anything to you about Gary Gardiner?
*402A: That was awhile back. I — I—it would be very difficult for me to say absolutely, positively.”
Mr. McKinney: That concludes my offer at page 41, line 19.
Ms. Watson: Plaintiff will commence on page 41, lines 20 to 25.
Q: “As you sit here today, do you recall any statements made by Mrs. Varga or Ms. Varga concerning Gary Gardiner and the circumstances under which he left?
A: Well, since she brought to mind Mike Rose and she, meaning this attorney, brought Mike Rose, it seems that I — I do remember now it was a very short — ”
Ms. Watson: Page 42, lines 1 through 18.
A: “ — conversation, that I told her that I really didn’t think Gary took anything, but that Mike Rose was the one that took the money.
Q: Yes, ma’am. I understand that’s something that you said to Ms. Varga.
A: Right.
Q: Okay. Now, has Ms. Varga ever said anything to you about Gary Gard-iner that you can recall sitting here today?
A: Not — no, she made some comment about she was sure she was right, but she would watch Mike.
Q: All right. And where was this conversation that you had with Ms. Varga?
A: On the selling floor.
Q: And did you initiate the conversation or did Ms. Varga initiate the conversation? Who started the conversation?
A: Oh, I’m sure I did.”
Ms. Watson: That concludes plaintiff's offer.

Gardiner contends this Court’s opinion did not accurately summarize this testimony, and that the testimony is evidence of publication by Varga.

We conclude our statement from the record is accurate, with the sole and immaterial exception that we should have used the word “sure” where we used the word “probably.” Further, we conclude the cited exchange is no evidence of publication by Varga. Varga's statement that “she was sure she was right” does not necessarily infer a defamatory publication about Gardiner, particularly because Varga did not say what she was “right” about.

The appellee’s motion for rehearing is overruled. Further, Gardiner’s motion to retax costs is denied.

. Gardiner cites Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951), and INA of Texas v. Torres, 808 S.W.2d 291 (Tex.App.—Houston [1st Dist.] 1991, no writ), for the proposition that jury verdicts in cases involving conflicting evidence and inferences may not be set aside by an appellate court. Unlike the present case, Benoit and Torres involved conflicting evidence. See 239 S.W.2d at 797 ("The jury in this case has considered all the facts admitted before it and has, by its answers, selected from the conflicting evidence and conflicting inferences that which it considered most reasonable.”); 808 S.W.2d at 293 ("The jury heard extensive conflicting evidence on the relationship between Torres and Overland.").