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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.