dissenting.
I respectfully dissent. While I agree with the majority’s disposition of the breach of contract cause of action, I would not affirm the judgment for the defamation action.
Publication of a defamation is essential to liability. The general rule in Texas is that a plaintiff cannot recover for injuries sustained by reason of publication of an alleged defamation if such publication was consented to, authorized, invited, or procured by the plaintiff. Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 772 (1945).
The Restatement (Second) of Torts provides a narrow exception to this general rule:
m. Recipient is the defamed person. One who communicates defamatory matter directly to the defamed person, who himself communicates it to a third person, has not published the matter to the third person if there are no other circumstances. If the defamed person’s transmission of the communication to the third person was made, however, without an awareness of the defamatory nature of the matter and if the circumstances indicated that communication to a third party would be likely, a publication may properly be held to have occurred.
*449RESTATEMENT (SECOND) OF TORTS, § 577 comment m (1977). Thus, under the Restatement rule, there is no publication if the defamed person repeats a slanderous remark unless (1) the defamed person is unaware of the defamatory nature of the matter, and (2) circumstances indicate the communication to a third person would be likely.
The Restatement (Second) of Torts also distinguishes between intentional and negligent publications:
k. Intentional or negligent publication. There is an intent to publish defamatory matter when the actor does an act for the purpose of communicating it to a third person or with knowledge that it is substantially certain to be so communicated. ...
It is not necessary, however, that the communication to a third person be intentional. If a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person, the conduct becomes a negligent communication. A negligent communication amounts to a publication just as effectively as an intentional communication.
RESTATEMENT (SECOND) OF TORTS, § 577 comment k (1977).
The majority opinion, like the opinion it relies upon, First State Bank of Corpus Christi v. Ake, does not properly differentiate between these comments in the Restatement.
Under comment m, a two prong test must be satisfied. It is not in this cause.
Under comment k, Hope made the defamatory remark intentionally if he did so with the knowledge that it was substantially certain to be communicated to a third person. Alternatively, Hope is also liable if he made the remark negligently if “a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter could be communicated to a third person.” There is no jury finding to support either of the above propositions.
Rico relies upon the jury finding to the following special issue:
At the time Hope stated to Rico that Rico had stolen materials from Chasewood, would a prudent person have reasonably expected that such statement would be communicated to others by Rico?
Answer ‘Yes’ or ‘No.’
We the jury answer Yes.
The jury finding does not establish that Hope intended the publication of the remark by Rico; neither does the finding support a negligent publication since it does not rise to the level of necessity. Expecting a statement would be repeated goes only to foreseeability; expecting the statement would have to be repeated would support necessity.
The importance of the necessity of publication by a plaintiff is discussed by Pros-ser:
Ordinarily the defendant is not liable for any publication made to the plaintiff himself, even though it was to be expected he might publish it. There are, however, a few cases in which, because of the plaintiff’s blindness or immaturity, or because of some necessity he was under to communicate the matter to others, it was reasonably to be anticipated that he would do so, and the writer has been held to be responsible.
W. PROSSER, HANDBOOK OF THE LAW OF TORTS, § 113 (1971).
At trial Chasewood objected to the submission of the above special issue because it was an inaccurate statement of the law. Counsel for Chasewood stated:
[T]he standard should be, was he reasonably required to relate it to others ... rather than just this issue that just more or less leaves that element of this theory to whether Mr. Rico wanted to relate it to others, rather than for some business reason was it reasonably required that he reveal what was told to him.
Proper objection to the issue was made. I would hold the special issue was defectively submitted; the jury finding does not establish the necessity of Rico repeating the defamation and there is, therefore, no *450basis for liability by Chasewood for Hope’s statement. I would remand for a retrial.