Ewing v. Cargill, Inc.

Donald EWING v. CARGILL, INC.

95-389                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 22, 1996


1.   Words & phrases -- scire facias defined. -- A scire facias is
     in the nature of a summons.

2.   Torts -- defamation -- statement that appellee had judgment
     against appellant did not constitute defamation per se. -- The
     statement that appellee had a judgment against appellant,
     without more, did not constitute defamation per se, i.e., did
     not amount to words that on their face and without the aid of
     extrinsic proof are recognized as injurious.

3.   Torts -- defamation -- distinction between words that are
     actionable per se and those that are not. -- Where the natural
     consequence of 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.

4.   Torts -- defamation -- appellant not prejudiced by failure of
     trial court to give instruction on republication. -- Where
     there was a finding that the original statement did not defame
     appellant, the jury could not have concluded that appellee was
     liable for a republication of the statement; because appellant
     was not possibly prejudiced by the failure of the trial court
     to give the requested instruction on republication, the
     supreme court did not reverse.

5.   Torts -- defamation -- appellant not prejudiced by directed
     verdict on damages for loss of credit and damage to
     reputation. -- Where the jury determined that appellant was
     not defamed, he could not have been prejudiced by the trial
     court granting appellee's motion for directed verdict
     regarding damages for loss of credit and damage to reputation,
     and the supreme court did not reverse.
     Appeal from Pike Circuit Court; W.H. "Dub" Arnold, Judge;
affirmed.
     Benny M. Tucker, Michael S. Ewing, and Charles A. Yeargan, for
appellant.
     Smith, Stroud, McClerkin, Dunn & Nutter, by: W. David Carter,
for appellee.

     Robert H. Dudley, Justice. April 22, 1996   *ADVREP3*





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
the judgment.  See Ark. Code Ann.  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
     Torts,  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
se.  We quoted from 53 C.J.S., Libel and Slander  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
(1989); Rodney Smolla, Law of Defamation,  8.03 (Release #9, Nov. 
1995).
     Donald Ewing next argues that the trial court erred in failing
to give the following instruction on republication:
          You are instructed that under Arkansas law, one who
     publishes a defamatory statement is liable for any
     unauthorized republication, if such republication was
     foreseeable as a natural and probable consequence of the
     original publication.
     We have never decided whether one is liable for republication
of a defamatory statement, see Luster v. Retail Credit Co., 575 F.2d 609 (8th Cir. 1978), and we need not decide the issue in this
case.  Because there was a finding that the original statement did
not defame Ewing, the jury could not have concluded that Cargill
was liable for a republication of the statement.  Since the
appellant was not possibly prejudiced by the failure of the trial
court to give the instruction, we will not reverse.  Mikel v.
Hubbard, 317 Ark. 125, 876 S.W.2d (1994).
     Donald Ewing next argues that the trial court erred in
granting Cargill's motion for directed verdicts on the issues of
loss of credit and injury to reputation.  He argues that he was not
required to present proof of actual loss because his action was one
for defamation per se.  We have already given the reasons that the
statement did not constitute defamation per se.  In addition, since
the jury determined that Ewing was not defamed, he could not have
been prejudiced by the trial court granting the motion for directed
verdict as to damages for loss of credit and damage to reputation. 
Therefore, we will not reverse the trial court on this point. 
Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).
     Affirmed.