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95-389 ___ S.W.2d ___ Supreme Court of Arkansas Opinion delivered April 22, 1996 [...] DONALD EWING, APPELLANT, V. CARGILL, INC., APPELLEE. 95-389 APPEAL FROM THE PIKE COUNTY CIRCUIT COURT, NO. 92-10, HON. W.H. "DUB" ARNOLD, JUDGE, AFFIRMED. Robert H. Dudley, Justice. Appellant Donald Ewing filed this defamation suit against Cargill, Inc., and, upon trial, the jury found that Ewing was not defamed. The trial court entered a judgment accordingly, and Ewing appeals. We affirm the judgment. The facts leading to the alleged defamation are as follows. Donald Ewing and his brother, Dr. Douglass Ewing, entered the poultry business in 1979, as the operators of Ewing Farms, a partnership, and Ewing Enterprises, Inc. They purchased feed grain from Cargill, Inc. In 1980 and 1981, the Ewing brothers failed to pay Cargill for the feed. Cargill, Inc., subsequently filed suit against "Douglass Ewing, Donald Ewing, and Ewing Enterprises, Inc." Donald Ewing filed a counterclaim. The parties reached an agreement by which Cargill would take a judgment against Dr. Douglass Ewing, but would dismiss its suit against Donald Ewing and Ewing Enterprises, Inc., and Donald Ewing would dismiss his counterclaim against Cargill. On April 14, 1981, Cargill took a judgment against Dr. Douglass Ewing for a little over $63,000. However, the judgment did not mention Cargill's claim against Donald Ewing or Ewing Enterprises, Inc., and it said nothing about Donald Ewing's counterclaim against Cargill. It was not until June 15, 1988, or seven years later, that these claims were actually dismissed. The judgment against Dr. Douglass Ewing was not satisfied. Cargill's attorneys wanted the judgment to survive as long as possible. On February 2, 1989, Cargill sued out a scire facias to revive 16-65-501 -- 505 (1987). A scire facias is in the nature of a summons. Alexander v. Steel, 13 Ark. 392 (1853). The style of the scire facias is "Cargill, Inc. v. Douglass E. Ewing, et al.," but the body incorrectly states that the judgment to be revived was "against Douglass E. Ewing, Donald Ewing and Ewing Enterprises, Inc." The crux of this defamation suit is that the foregoing erroneous statement constituted defamation of Donald Ewing. Other parties were brought in, including Cargill's attorneys, but they were dismissed prior to trial. Donald Ewing's first assignment is that the trial court erred in refusing to instruct the jury that Cargill committed defamation per se. Appellant Ewing cites no case by this court holding that a statement that a judgment exists against a plaintiff, without more, constitutes defamation per se, and we are not aware of any such case. The statement that Cargill had a judgment against Ewing, without more, did not amount to words that "on their face and without the aid of extrinsic proof are recognized as injurious." See Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 178-179, 345 S.W.2d 34, 40 (1961). One writer has explained libel per se at early common law as follows: Libel, on the other hand, was divided into the per se and per quod categories on bases different than those used for slander. When defamatory meaning was apparent on the face of a communication, it was classified as libel per se. When extrinsic evidence was introduced to establish the defamatory character of the statement, it was called libel per quod. Comment, The Law of Defamation: An Arkansas Primer, 42 Ark. Law Rev. 915, 923 (1989); See also Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990) (citing comment with approval). Arkansas has interchanged terminology when discussing slander per se, libel per se, defamation per se, and words that are actionable per se. 42 Ark. Law Rev. at 922-925. The comment states as follows: Under Arkansas law, several types of statements are deemed defamatory per se not only in very old cases, but also in some relatively recent decisions. These include charges of criminal activity, adultery, "contagious distemper," or dishonesty, as well as any charge which injures the plaintiff in his or her trade, business, or profession. 42 Ark. Law Rev. at 925 (citations omitted). We have explained the distinction between words that are actionable per se and those that are not: "Where the natural consequence of the words is a damage, as if they import a charge of having been guilty of a crime, or of having a contagious distemper, or if they are prejudicial to a person in office, or to a person of a profession or trade, they are in themselves actionable; in other cases, the party who brings an action for words, must show the damage which was received from them." Reese v. Haywood, 235 Ark. 442, 443, 360 S.W.2d 488, 489 (1962) (quoting Studdard v. Trucks, 31 Ark. 726, 727 (1877)). In Reese, a comparable case, we went on to explain: Damage is not necessarily a natural consequence of the publication of the bare statement that a farmer owes a past-due account to an implement company, with no suggestion of a dishonest or fraudulent refusal to pay. While such a publication might be defamatory in itself in the case of a trader or one in whose business credit is an important asset, the contrary rule prevails where the plaintiff is not a trader. Harper & James, The Law of 5.2. In the same vein we have said that an imputation of insolvency is not actionable per se. Rachels v. Deener, 182 Ark. 931, 33 S.W.2d 39; see also Honea v. King, 154 Ark. 462, 243 S.W. 74. Id. at 443-444, 360 S.W.2d at 489 (emphasis added). In Rachels v. Deener, 182 Ark. 931, 33 S.W.2d 39 (1930), this court considered whether a letter was libelous per se. The letter, which referred to the plaintiff attorney, stated in pertinent part, "We have found it necessary to charge off some notes that he owed this bank as they were uncollectible. Would suggest rather conservative dealings with him." Id. at 933, 33 S.W.2d at 39. We held, "This is the most damaging statement contained in the letter, and it is not libelous per se, as, when analyzed, it amounts only to a statement that his credit at the bank is not so good as it once was." Id. The opinion concludes: The most that can be said is that there is an imputation of insolvency which is not actionable per se. The words used not being libelous per se, and there being no allegation of special damages, the complaint failed to state a cause of action, and the demurrer was properly sustained. Id. at 933-934, 33 S.W.2d at 40 (citation omitted). In Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961), we considered a case in which the defamatory statement was a report that stated the plaintiff reportedly had discontinued his business operations. We recognized the importance of credit to a business, id. at 186, but held that the trial court correctly ruled that the publication in issue was not libelous per 8, at 41 as follows: "In general, defamatory words may be divided into those that are actionable per se, which on their face and without the aid of extrinsic proof are recognized as injurious, and those that are actionable per quod, as to which the injurious character appears only in consequence of extrinsic facts." Id. at 178-179, 345 S.W. 2d at 40. Further, because we affirm the trial court's ruling that the statement did not constitute defamation per se, we need not consider whether we could affirm for a different reason. Without deciding the issue, we note that the statement in the pleading may have been absolutely privileged. See Pogue v. Cooper, 284 Ark. 202, 680 S.W.2d 698 (1984); see also Comment, The Law of Defamation: An Arkansas Primer, 42 Ark. Law Rev. 915, 997-1000 8.03 (Release #9, Nov. 1995). [from elsewhere:] Footnote: 9 8. Libel per se involves language that is so obviously harmful that there is no proof required of its injurious nature. Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921 (Tex. App.--Corpus Christi 1991, dis w.o.j.). [from elsewhere:] For a libel per se, anyone reading the story will understand the defamation; it is usually accusations of criminal conduct, dishonesty, infedility, infection with a loathsome disease, and a few otehrs I can't remember. A per quod libel requires additional facts be added to the story, facts the plaintiff alleges were known to the intended audience. [from elsewhere:] libel per se is not subject to a defence of good faith nor reasonable care. [From Gertz v. Welch, 418 US 323 (06-25-74):] MR. JUSTICE WHITE, DISSENTING. [...] LEST THERE BE ANY MISTAKE ABOUT IT, THE CHANGES WROUGHT BY THE COURT'S DECISION CUT VERY DEEPLY. IN 1938, THE RESTATEMENT OF TORTS REFLECTED THE HISTORIC RULE THAT PUBLICATION IN WRITTEN FORM OF DEFAMATORY MATERIAL--MATERIAL TENDING "SO TO HARM THE REPUTATION OF ANOTHER AS TO LOWER HIM IN THE ESTIMATION OF THE COMMUNITY OR TO DETER THIRD PERSONS FROM ASSOCIATING OR DEALING WITH HIM" /1/ --SUBJECTED THE PUBLISHER TO LIABILITY ALTHOUGH NO SPECIAL HARM TO REPUTATION WAS ACTUALLY PROVED. /2/ RESTATEMENT OF TORTS 569 (1938). /3/ TRUTH WAS A DEFENSE, AND SOME LIBELS WERE PRIVILEGED; BUT, GIVEN A FALSE CIRCULATION, GENERAL DAMAGE TO REPUTATION WAS PRESUMED AND COULD BE AWARDED BY THE JURY, ALONG WITH ANY SPECIAL DAMAGES SUCH AS PECUNIARY LOSS AND EMOTIONAL DISTRESS. AT THE VERY LEAST, THE RULE ALLOWED THE RECOVERY OF NOMINAL DAMAGES FOR ANY DEFAMATORY PUBLICATION ACTIONABLE PER SE AND THUS PERFORMED "A VINDICATORY FUNCTION BY ENABLING THE PLAINTIFF PUBLICLY TO BRAND THE DEFAMATORY PUBLICATION AS FALSE. THE SALUTARY SOCIAL VALUE OF THIS RULE IS PREVENTIVE IN CHARACTER SINCE IT OFTEN PERMITS A DEFAMED PERSON TO EXPOSE THE GROUNDLESS CHARACTER OF A DEFAMATORY RUMOR BEFORE HARM TO THE REPUTATION HAS RESULTED THEREFROM." ID., 569, COMMENT B, P. 166. IF THE DEFAMATION WAS NOT LIBEL BUT SLANDER, IT WAS ACTIONABLE PER SE ONLY IF IT IMPUTED A CRIMINAL OFFENSE; A VENEREAL OR LOATHSOME AND COMMUNICABLE DISEASE; IMPROPER CONDUCT OF A LAWFUL BUSINESS; OR UNCHASTITY BY A WOMAN. ID., 570. TO BE ACTIONABLE, ALL OTHER TYPES OF SLANDEROUS STATEMENTS REQUIRED PROOF OF SPECIAL DAMAGE OTHER THAN ACTUAL LOSS OF REPUTATION OR EMOTIONAL DISTRESS, THAT SPECIAL DAMAGE ALMOST ALWAYS BEING IN THE FORM OF MATERIAL OR PECUNIARY LOSS OF SOME KIND. ID., 575 AND COMMENT B, PP. 185 - 187. DAMAGES FOR LIBEL OR SLANDER PER SE INCLUDED "HARM CAUSED THEREBY TO THE REPUTATION OF THE PERSON DEFAMED OR IN THE ABSENCE OF PROOF OF SUCH HARM, FOR THE HARM WHICH NORMALLY RESULTS FROM SUCH A DEFAMATION." ID., 621. AT THE HEART OF THE LIBEL-AND-SLANDER-PER-SE DAMAGE SCHEME LAY THE AWARD OF GENERAL DAMAGES FOR LOSS OF REPUTATION. THEY WERE GRANTED WITHOUT SPECIAL PROOF BECAUSE THE JUDGMENT OF HISTORY WAS THAT THE CONTENT OF THE PUBLICATION ITSELF WAS SO LIKELY TO CAUSE INJURY AND BECAUSE "IN MANY CASES THE EFFECT OF DEFAMATORY STATEMENTS IS SO SUBTLE AND INDIRECT THAT IT IS IMPOSSIBLE DIRECTLY TO TRACE THE EFFECTS THEREOF IN LOSS TO THE PERSON DEFAMED." ID., 621, COMMENT A, P. 314. /4/ PROOF OF ACTUAL INJURY TO REPUTATION WAS ITSELF INSUFFICIENT PROOF OF THAT SPECIAL DAMAGE NECESSARY TO SUPPORT LIABILITY FOR SLANDER NOT ACTIONABLE PER SE. BUT IF SPECIAL DAMAGE IN THE FORM OF MATERIAL OR PECUNIARY LOSS WERE PROVED, GENERAL DAMAGES FOR INJURY TO REPUTATION COULD BE HAD WITHOUT FURTHER PROOF. "THE PLAINTIFF MAY RECOVER NOT ONLY FOR THE SPECIAL HARM SO CAUSED, BUT ALSO FOR GENERAL LOSS OF REPUTATION." ID., 575, COMMENT A, P. 185. /5/ THE RIGHT TO RECOVER FOR EMOTIONAL DISTRESS DEPENDED UPON THE DEFENDANT OTHERWISE BEING LIABLE FOR EITHER LIBEL OR SLANDER. ID., 623. PUNITIVE DAMAGES WERE RECOVERABLE UPON PROOF OF SPECIAL FACTS AMOUNTING TO EXPRESS MALICE. ID., 908 AND COMMENT B, P. 555. PREPARATIONS IN THE MID-1960'S FOR RESTATEMENT (SECOND) OF TORTS REFLECTED WHAT WERE DEEMED TO BE SUBSTANTIAL CHANGES IN THE LAW OF DEFAMATION, PRIMARILY A TREND TOWARD LIMITING PER SE LIBELS TO THOSE WHERE THE DEFAMATORY NATURE OF THE PUBLICATION IS APPARENT ON ITS FACE, I.E., WHERE THE "DEFAMATORY INNUENDO IS APPARENT FROM THE PUBLICATION ITSELF WITHOUT REFERENCE TO EXTRINSIC FACTS BY WAY OF INDUCEMENT." RESTATEMENT (SECOND) OF TORTS 569, P. 29 (TENT. DRAFT NO. 12, APR. 27, 1966). LIBELS OF THIS SORT AND SLANDERS PER SE CONTINUED TO BE RECOGNIZED AS ACTIONABLE WITHOUT PROOF OF SPECIAL DAMAGE OR INJURY TO REPUTATION. /6/ ALL OTHER DEFAMATIONS WOULD REQUIRE PROOF OF SPECIAL INJURY IN THE FORM OF MATERIAL OR PECUNIARY LOSS. WHETHER THIS ASSERTED CHANGE REFLECTED THE PREVAILING LAW WAS HEAVILY DEBATED, /7/ BUT IT WAS UNQUESTIONED AT THE TIME THAT THERE ARE RECURRING SITUATIONS IN WHICH LIBEL AND SLANDER ARE AND SHOULD BE ACTIONABLE PER SE. IN SURVEYING THE CURRENT STATE OF THE LAW, THE PROPOSED RESTATEMENT (SECOND) OBSERVED THAT "(ALL COURTS EXCEPT VIRGINIA AGREE THAT ANY LIBEL WHICH IS DEFAMATORY UPON ITS FACE IS ACTIONABLE WITHOUT PROOF OF DAMAGE . . . ." RESTATEMENT (SECOND) OF TORTS 569, P. 84 (TENT. DRAFT NO. 11, APR. 15, 1965). TEN JURISDICTIONS CONTINUED TO SUPPORT THE OLD RULE THAT LIBEL NOT DEFAMATORY ON ITS FACE AND WHOSE INNUENDO DEPENDS ON EXTRINSIC FACTS IS ACTIONABLE WITHOUT PROOF OF DAMAGE ALTHOUGH SLANDER WOULD NOT BE. TWENTY-FOUR JURISDICTIONS WERE SAID TO HOLD THAT LIBEL NOT DEFAMATORY ON ITS FACE IS TO BE TREATED LIKE SLANDER AND THUS NOT ACTIONABLE WITHOUT PROOF OF DAMAGE WHERE SLANDER WOULD NOT BE. ID., 569, P. 86. THE LAW IN SIX JURISDICTTIONS WAS FOUND TO BE IN AN UNSETTLED STATE BUT MOST LIKELY CONSISTENT WITH THE RESTATEMENT (SECOND). ID., 569, P. 88. THE LAW IN VIRGINIA WAS THOUGHT TO CONSIDER LIBEL ACTIONABLE WITHOUT PROOF OF SPECIAL DAMAGE ONLY WHERE SLANDER WOULD BE, REGARDLESS OF WHETHER THE LIBEL IS DEFAMATORY ON ITS FACE. ID., 569, P. 89. ALL STATES, THEREFORE, WERE AT THAT TIME THOUGHT TO RECOGNIZE IMPORTANT CATEGORIES OF DEFAMATION THAT WERE ACTIONABLE PER SE. /8/ NOR WAS ANY QUESTION APPARENTLY RAISED AT THAT TIME THAT UPON PROOF OF SPECIAL DAMAGE IN THE FORM OF MATERIAL OR PECUINARY LOSS, GENERAL DAMAGES TO REPUTATION COULD BE RECOVERED WITHOUT FURTHER PROOF. UNQUESTIONABLY, STATE LAW CONTINUED TO RECOGNIZE SOME ABSOLUTE, AS WELL AS SOME CONDITIONAL, PRIVILEGES TO PUBLISH DEFAMATORY MATERIALS, INCLUDING THE PRIVILEGE OF FAIR COMMENT IN DEFINED SITUATIONS. BUT IT REMAINED TRUE THAT IN A WIDE RANGE OF SITUATIONS, THE ORDINARY CITIZEN COULD MAKE OUT A PRIMA FACIE CASE WITHOUT PROVING MORE THAN A DEFAMATORY PUBLICATION AND COULD RECOVER GENERAL DAMAGES FOR INJURY TO HIS REPUTATION UNLESS DEFEATED BY THE DEFENSE OF TRUTH. /9/ THE IMPACT OF TODAY'S DECISION ON THE TRADITIONAL LAW OF LIBEL IS IMMEDIATELY OBVIOUS AND INDISPUTABLE. NO LONGER WILL THE PLAINTIFF BE ABLE TO REST HIS CASE WITH PROOF OF A LIBEL DEFAMATORY ON ITS FACE OR PROOF OF A SLANDER HISTORICALLY ACTIONABLE PER SE. IN ADDITION, HE MUST PROVE SOME FURTHER DEGREE OF CULPABLE CONDUCT ON THE PART OF THE PUBLISHER, SUCH AS INTENTIONAL OR RECKLESS FALSEHOOD OR NEGLIGENCE. AND IF HE SUCCEEDS IN THIS RESPECT, HE FACES STILL ANOTHER OBSTACLE: RECOVERY FOR LOSS OF REPUTATION WILL BE CONDITIONED UPON "COMPETENT" PROOF OF ACTUAL INJURY TO HIS STANDING IN THE COMMUNITY. THIS WILL BE TRUE REGARDLESS OF THE NATURE OF THE DEFAMATION AND EVEN THOUGH IT IS ONE OF THOSE PARTICULARLY REPREHENSIBLE STATEMENTS THAT HAVE TRADITIONALLY MADE SLANDEROUS WORDS ACTIONABLE WITHOUT PROOF OF FAULT BY THE PUBLISHER OR OF THE DAMAGING IMPACT OF HIS PUBLICATION. THE COURT REJECTS THE JUDGMENT OF EXPERIENCE THAT SOME PUBLICATIONS ARE SO INHERENTLY CAPABLE OF INJURY, AND ACTUAL INJURY SO DIFFICULT TO PROVE, THAT THE RISK OF FALSEHOOD SHOULD BE BORNE BY THE PUBLISHER, NOT THE VICTIM. PLAINLY, WITH THE ADDITIONAL BURDEN ON THE PLAINTIFF OF PROVING NEGLIGENCE OR OTHER FAULT, IT WILL BE EXCEEDINGLY DIFFICULT, PERHAPS IMPOSSIBLE, FOR HIM TO VINDICATE HIS REPUTATION INTEREST BY SECURING A JUDGMENT FOR NOMINAL DAMAGES, THE PRACTICAL EFFECT OF SUCH A JUDGMENT BEING A JUDICIAL DECLARATION THAT THE PUBLICATION WAS INDEED FALSE. UNDER THE NEW RULE THE PLAINTIFF CAN LOSE, NOT BECAUSE THE STATEMENT IS TRUE, BUT BECAUSE IT WAS NOT NEGLIGENTLY MADE. SO TOO, THE REQUIREMENT OF PROVING SPECIAL INJURY TO REPUTATION BEFORE GENERAL DAMAGES MAY BE AWARDED WILL CLEARLY ELIMINATE THE PREVAILING RULE, WORKED OUT OVER A VERY LONG PERIOD OF TIME, THAT, IN THE CASE OF DEFAMATIONS NOT ACTIONABLE PER SE, THE RECOVERY OF GENERAL DAMAGES FOR INJURY TO REPUTATION MAY ALSO BE HAD IF SOME FORM OF MATERIAL OR PECUNIARY LOSS IS PROVED. FINALLY, AN INFLEXIBLE FEDERAL STANDARD IS IMPOSED FOR THE AWARD OF PUNITIVE DAMAGES. NO LONGER WILL IT BE ENOUGH TO PROVE ILL WILL AND AN ATTEMPT TO INJURE.