United Ins. Co. v. Murphy

UNITED INSURANCE COMPANY OF AMERICA and 
Mark Burcham v. Ann MURPHY

97-234                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


1.   Torts -- defamation -- presumed damages -- genesis of doctrine. -- Under
     the common law, defamation per se encompassed false statements
     that the plaintiff was guilty of a crime, afflicted with a
     loathsome disease, as well as false statements prejudicing the
     plaintiff's ability to engage in his or her profession; in
     such cases, the plaintiff could recover compensatory damages
     without proof of actual damage to reputation; damages were
     presumed from the nature of the defamation, as defamatory
     statements per se were considered injurious and sufficient to
     support an award of special damages; where the statements were
     not actionable as defamation per se, the tort was considered
     defamation per quod and required a showing of special damages.

2.   Torts -- defamation -- presumed damages -- historical modification of
     doctrine. -- The United States Supreme Court has held that, in
     cases involving media defendants, recovery of presumed or
     punitive damages would not be allowed absent a showing of
     knowledge of falsity or reckless disregard of the truth on the
     part of the publisher; absent malice, a private plaintiff was
     limited to recovering damages for actual injury, which
     included impairment of reputation and standing in the
     community, personal humiliation, and mental anguish and
     suffering; in a case involving a private plaintiff and a media
     defendant, the Arkansas Supreme Court adopted the requirement
     that, to recover damages in a defamation case, a private
     plaintiff must prove reputational injury; subsequently, the
     United States Supreme Court held that permitting recovery of
     presumed and punitive damages absent a showing of "actual
     malice" would not violate the First Amendment when the
     defamatory statements did not involve matters of public
     concern.

3.   Torts -- defamation -- presumed damages -- inequities created by doctrine.
     -- By allowing presumed damages for certain words that fit
     within the per se categories but precluding actual damages for
     other words without additional proof of damages, the common-
     law presumed-damages rule creates unjustifiable inequities for
     plaintiffs and defendants alike.

4.   Torts -- defamation -- presumed damages -- doctrine abolished --
     reputational injury must be proved in all cases. -- Prospectively
     abolishing the doctrine of presumed damages, the supreme court
     held that a plaintiff in a defamation case must prove
     reputational injury in order to recover damages and overruled
     all prior inconsistent decisions.

5.   Damages -- review of alleged excessive award. -- When an award of
     damages is alleged on appeal to be excessive, the supreme
     court reviews the proof and all reasonable inferences most
     favorably to the appellee and determines whether the verdict
     is so great as to shock its conscience or to demonstrate
     passion or prejudice on the part of the jury.

6.   Damages -- remittitur -- when appropriate. -- Remittitur is
     appropriate when the compensatory damages awarded cannot be
     sustained by the evidence.

7.   Damages -- remittitur appropriate -- compensatory-damages award could not
     be sustained by evidence. -- The supreme court agreed with the
     trial court that, while appellee's evidence of actual damages
     supported an award of $600,000, the jury's award of $3,000,000
     in compensatory damages could not be sustained by the
     evidence.  

8.   Damages -- punitive damages -- review of award. -- When reviewing such
     an award of punitive damages, the supreme court considers the
     extent and enormity of the wrong, the intent of the party
     committing the wrong, all the circumstances, and the financial
     and social condition and standing of the erring party.  

9.   Damages -- punitive damages -- purpose of. -- Punitive damages are to
     be a penalty for conduct that is malicious or done with the
     deliberate intent to injure another.
10.  Damages -- punitive damages -- appellants' acts done with deliberate intent
     to injure appellee -- award did not shock conscience. -- Where, in
     light of the evidence, the jury could have concluded that
     appellants displayed a conscious indifference for appellee and
     that their acts were done with the deliberate intent to injure
     her, the supreme court concluded that the amount of punitive
     damages did not shock its conscience.

11.  Appeal & error -- constitutional argument not made below -- waived on
     appeal. -- Where appellants' constitutional argument that their
     due process rights were violated because they did not receive
     fair notice that they could be subject to such a severe
     penalty was not made at trial, it was waived on appeal.

12.  Appeal & error -- failure to proffer instruction precludes review. --
     Appellants' failure to proffer or to abstract an instruction
     containing what they saw as a correct statement of the law on
     the proper burden of proof on the issue of falsity precluded
     the supreme court from considering the argument on appeal.

13.  Evidence -- hearsay argument rejected -- statement offered to prove fact
     that it was said. -- The supreme court declined to overrule a
     decision in which a hearsay argument was rejected on the basis
     that the statement in question was offered not to prove the
     truth of what was said but to prove the fact that it was said.

     Appeal from Crittenden Circuit Court; John Fogleman, Judge;
affirmed.
     Butler, Hicky & Long, by: Fletcher Long, Jr.; and Williams &
Anderson, by: Leon Holmes and Jeanne L. Seewald, for appellants.
     Daggett, Van Dover, Donovan & Perry, PLLC, by: Jesse B.
Daggett, Joe R. Perry, and J. Shane Baker, for appellee.

     W.H. "Dub" Arnold, Chief Justice.
     This is a defamation case.  The appellants, United Insurance
Company of America and Mark Burcham, appeal a judgment of the
Crittenden County Circuit Court imposing an award of $600,000 in
compensatory damages and $2,000,000 in punitive damages to appellee
Ann Murphy for her slander claim.  On appeal, the appellants
contend that the trial court erred in instructing the jury that
damages could be presumed and that they had the burden of proving
that the alleged defamatory statements were true.  They further
maintain that the damage award is excessive and that the trial
court improperly allowed hearsay evidence at trial.  The appellee
cross-appeals the trial courtþs remittitur of the juryþs award of
$3,000,000 in compensatory damages.   While we are persuaded by
appellantsþ argument that the doctrine of presumed damages should
be abolished, we conclude that fairness dictates a prospective
application of our holding.   We find no merit in the partiesþ
remaining arguments and affirm the trial courtþs judgment.      
     The appellee was employed by United as a sales representative
in home solicitation sales. As an insurance agent, she sold and
collected premiums for debit insurance to Arkansas customers in
Lee, St. Francis, and Woodruff Counties.  From October 1991 until
her termination from the company on January 12, 1992, she was under
the supervision of Burcham.  In early 1992, Burcham began handling
her accounts.  During this time, he allegedly made defamatory
statements to customers that appellee had stolen their premium
payments.
     The appellee filed a defamation complaint against the
appellants seeking both compensatory and punitive damages for
Burchamþs statements.   At trial, she offered her testimony along
with testimony of her former customers. At the close of appelleeþs
case in chief, the trial court directed a verdict on special
damages.  The case was submitted to the jury on a claim of slander
per se with an instruction that placed the burden on the appellants
to prove that the alleged slanderous statements were true.  The
trial court further instructed the jury that damages could be
presumed in a slander per se action.  The jury returned a verdict
for the appellee, awarding $3,000,000 in compensatory damages and
$2,000,000 in punitive damages, and the trial court entered a
judgment accordingly.  Thereafter, appellants filed a motion for
judgment notwithstanding the verdict, or, alternatively, for new
trial or remittitur.  Following a hearing, the trial court entered
an order remitting the compensatory damages award to $600,000, but
denying appellantsþ remaining motions. 

1. Presumed damages
     One of the appellantsþ primary contentions on appeal is that
the trial court erred in instructing the jury with regard to
presumed damages.  The instruction at issue provided as follows:
               However, you are instructed that there is a
          concept that the law calls slander per se.  In such
          cases, a person slandered is entitled to compensatory
          damages as a matter of law, and such plaintiff is not
          required to introduce evidence of actual damages in
          order to recover compensatory damages.  Therefore, if
          you find that Mark Burcham falsely accused Ann Murphy
          with being involved in criminal activity or which
          injured Ann Murphy in her trade, business, or
          profession, then Ann Murphy is not required to
          introduce evidence of actual damages in order to
          recover compensatory damages.  

Specifically, the appellants ask that we follow the course of
several other jurisdictions and abolish the doctrine of presumed
damages in defamation cases.  See e.g., Taylor v. Chapman, 927 S.W.2d 542 (Mo. App. 1996); Walker v. Grand Cent. Sanitation, 634 A.2d 237 (Penn. Super. 1993); Ryan v. Herald Assn., Inc., 566 A.2d 1316 (Tenn. App. 1989); Costello v. Capital Cities Comm.,
Inc., 505 N.E.2d 701 (Ill. App. 1987); Marchiondo v. Brown, 649 P.2d 462 (N.M. 1982). 
     The genesis of the doctrine of presumed damages can be
traced back to the common law.  Under the common law, defamation
per se encompassed false statements that the plaintiff was guilty
of a crime, afflicted with a loathsome disease, as well as false
statements prejudicing the plaintiffþs ability to engage in his
or her profession.  See Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997); Ewing v. Cargill, 324 Ark. 217, 919 S.W.2d 507
(1996); Reese v. Haywood, 235 Ark. 442, 360 S.W.2d 488, 489
(1962); Studdard v. Trucks, 31 Ark. 726 (1877).  In such cases,
the plaintiff could recover compensatory damages without proof of
actual damage to reputation.  Partin v. Meyer, 277 Ark. 54, 639 S.W.2d 342 (1982); Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960); see also Howard W. Brill, Arkansas Law of Damages, 
33-9, at p.577 (3d ed. 1996) .  In other words, damages were
presumed from the nature of the defamation, as defamatory
statements per se were considered injurious and sufficient to
support an award of special damages.  Dun & Bradstreet v.
Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961); Braham v. Walthall,
215 Ark. 582, 225 S.W.2d 342 (1949); see also Howard W. Brill,
Arkansas Law of Damages,  33-9, at p.577 (3d ed. 1996).  Where
the statements were not actionable as defamation per se, the tort
was considered defamation per quod and required a showing of
special damages.  Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990).
     In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the
United States Supreme Court held that, in cases involving media
defendants, states may not allow recovery of presumed or punitive
damages absent a showing of knowledge of falsity or reckless
disregard of the truth on the part of the publisher.  Absent
malice, a private plaintiff is limited to recovering damages for
actual injury, which included þimpairment of reputation and
standing in the community, personal humiliation, and mental
anguish and suffering.þ Id. at 349.  Thereafter, in Little Rock
Newspapers, Inc., v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983),
a case involving a private plaintiff and a media defendant, we
adopted the requirement that, to recover damages in a defamation
case, a private plaintiff must prove reputational injury:
     The law of defamation has always attempted to balance the
     tension between the individualþs right to protect his
     reputation and the right of free speech.  To totally change
     the character of defamation to allow recovery where there
     has been no loss of the former right, would be an
     unjustified infringement on the First Amendment.

Id. at 31.  However, one year after our decision in Dodrill, the
Supreme Court clarified in Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749 (1985), that "permitting recovery of
presumed and punitive damages absent a showing of `actual malice'
does not violate the First Amendment when the defamatory
statements do not involve matters of public concern."  Id. at
763.
     Since 1985, the question of whether damages to reputation
may not be presumed in cases against non-media defendants has
remained an open one in our state.  See Hogue v. Ameron, Inc.,
286 Ark. 481, 695 S.W.2d 373 (1985)(stating that the Gertz
decision left open the question of whether the defamation per se
concept remained in the law with respect to actions against non-
media defendants); and Ransopher v. Chapman, supra (þ[W]e may
entertain an argument in the future that the awarding of
compensatory damages without proof of loss should not occurþ).  
     As the Supreme Court stated in Gertz, the presumed-damage
rule in defamation cases is an oddity of tort law.  Gertz, 418 U.S.  at 349.  As one commentator has ably described, þ[a] number
of evils flow from the anomaly of presumed damages.þ David A.
Anderson, Reputation, Compensation, and Proof, 25 Wm. & Mary L.
Rev. 747, 749 (1984). Among the problems inherent in presuming
harm are the absence of criteria given to juries to measure the
amount the injured party ought to recover, the danger of juries
considering impermissible factors such as the defendantþs wealth
or unpopularity, and the lack of control on the part of trial
judges over the size of jury verdicts.  Anderson, supra, at 749-
752.  Moreover, by allowing presumed damages for certain words
that fit within the per se categories but precluding actual
damages for other words without additional proof of damages, the
common-law rule þcreates unjustifiable inequities for plaintiffs
and defendants alike.þ Nazeri v. Missouri Valley College, 860 S.W.2d 303, 313 (Mo. banc 1993).  We believe that the better and
more consistent rule, as set out in the Dodrill case,  is to
require plaintiffs to prove reputational injury in all cases. 
See also Prosser & Keeton on the Law of Torts 112, at p. 797
(5th ed. 1984)(stating that þcourts should require as a minimum
for recovery in every case either evidence from which harm to
reputation could reasonably be inferred or direct evidence of
harm to reputation.þ).   
     In the present case, as we will discuss in the following
point, the appellee submitted proof of actual damage to her
reputation.  Under these circumstances, it would be
unconscionable to require her to produce this same proof again at
another trial.  Thus, we conclude that fairness dictates a
prospective application of our holding.  See Oliver v. State, 323
Ark. 743, 918 S.W.2d 690 (1996); Wiles v. Wiles, 289 Ark. 340,
711 S.W.2d 789 (1986).   From the date of this opinion forward,
we hold that a plaintiff in a defamation case must prove
reputational injury in order to recover damages.  Accordingly, we
overrule all prior decisions inconsistent with this opinion.     
     
2. Excessive damages/remittitur
     Appellants further maintain that the damages award is
excessive.  When an award of damages is alleged on appeal to be
excessive, we review the proof and all reasonable inferences most
favorably to the appellee and determine whether the verdict is so
great as to shock our conscience or demonstrate passion or
prejudice on the part of the jury.  Builderþs Transp., Inc. v.
Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996). In its order denying
appellantsþ motion for new trial, the trial court found that
appellee had proved actual damage to her reputation.  We agree
that this evidence justified the award as remitted by the trial
court in the present case.
     The appellee testified at trial that, after Burcham made the
statements that she had stolen her customersþ insurance premiums,
she contemplated going to jail.  She explained that her life was
no longer the same, that she was þmiserable,þ and that the entire
experience had been a þnightmare.þ  She described how people were
now afraid to let her in their homes.  The appelleeþs husband,
Lonnie Murphy, testified that she was þhurt real badþ and was
þreal tore upþ over Burchamþs defamatory publications.  He
related that, after the incident, she would þsit around and cryþ
and had to take nerve pills and sleeping pills because she was so
upset.  According to Lonnie, their seven-year-old son did not
understand these changes in his mother.
     The appellee also offered the testimony of several of her
former customers.  Florence Oglesby þcould not sayþ that appellee
still had a good reputation in the community.  According to
Oglesby, when appelleeþs name arises in conversation, þpeople
still talk about what sheþs supposed to have done.þ  Ruby Anthony
testified that her reputation in the community had changed, as
she is known as a þthief.þ  Elizabeth Moie testified that
Burchamþs publication þreally knocked on [appelleeþs]
reputation.þ  Carol Lindeman testified that, while appelleeþs
previous reputation of truthfulness had been þtopsþ or þnumber
one,þ Burchamþs statements þreally botheredþ her and caused her
to þlose faithþ in appellee.  According to Lindeman, after the
statements were made, none of appelleeþs customers wanted to
purchase insurance from her.  Wilma Stennett testified that she
believed the statements that Burcham had made, that the
statements changed her opinion of appellee, and that she tried to
convince others that Burchamþs statements were true.  As to the
argument on cross-appeal, remittitur is appropriate when the
compensatory damages awarded cannot be sustained by the evidence.
Johnson v. Gilliland, 320 Ark. 1, 896 S.W.2d 856 (1995).  We
agree with the trial court that, while the appelleeþs evidence of
actual damages supported an award of $600,000, the juryþs award
of $3,000,000 in compensatory damages cannot be sustained by the
evidence.  
     Turning to the issue of punitive damages, when reviewing
such an award, we consider the extent and enormity of the wrong,
the intent of the party committing the wrong, all the
circumstances, and the financial and social condition and
standing of the erring party.  McLaughlin v. Cox, 324 Ark. 361,
922 S.W.2d 327 (1996).  Punitive damages are to be a penalty for
conduct that is malicious or done with the deliberate intent to
injure another.  Id. When reviewing the testimony of appelleeþs
former supervisor, Bobby Carey,  the jury could have concluded
that Burcham intentionally made the defamatory statements because
he did not like to work with women and did not want appellee
under his supervision.  Moreover, when hearing the testimony of
Jo Ann Scroggins, one of appelleeþs customers, the jury could
have further concluded that an additional motive of Burchamþs was
to enlist appelleeþs customers as his own.  Particularly,
Scroggins testified that, when making the defamatory remarks,
Burcham told her more than once, þIþm your next agent.þ 
Regarding United, there was evidence presented at trial that the
companyþs officers knew that Burcham had made the defamatory
statements, were aware that Burcham was not following company
audit or documentation procedures to substantiate the allegations
of theft, and did nothing to stop Burcham and even permitted him
to terminate appellee on the basis of these faulty allegations. 
In light of this evidence, the jury could have concluded that
appellants displayed a conscious indifference for appellee and
that their acts were done with the deliberate intent to injure
her.  See McLaughlin, 324 Ark. at 371-372; see also Ledbetter v.
United Ins. Co., 845 F. Supp. 844 (M.D. Ala. 1994).  In sum, when
viewing the facts in this case, the amount of punitive damages
does not shock our conscience.
     Before leaving this point, we will not address appellantsþ
constitutional argument, based on BMW of North America, Inc. v.
Gore, 517 U.S. 559 (1996), that their due process rights were
violated because they did not receive fair notice that they could
be subject to such a severe penalty.  They did not make this
constitutional argument below; therefore, it is waived. 
Sebastian Lake Pub. Util. v. Seb. Lake Rlty., 325 Ark. 85, 923 S.W.2d 860 (1996).

3. Burden of proof
     Appellants further allege that the trial court erred in
instructing the jury that they had the burden of proving that the
alleged defamatory statements were true.  The instruction at
issue provided in pertinent part:
          If you find that any statements made by Mark Burcham
     were true then you are instructed that this is a defense to
     the defamation charge.

          Mark Burcham and United Insurance Company of America
     contend that any derogatory remarks about Ann Murphy were
     true.  Mark Burcham and United Insurance Company of America
     have the burden of proving this contention.
 
In its order denying appellantsþ motion for new trial, the trial
court acknowledged that appellants had objected to this
instruction at trial.  The appellee, however, disputes the fact
that a proper objection was made.  We need not decide whether an
objection was made because it is clear that appellants failed to
proffer an instruction containing what they saw as a correct
statement of the law on the proper burden of proof on the issue
of falsity.  This failure to proffer or abstract a proposed
instruction precludes us from considering appellantsþ argument on
appeal.  Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997);
Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert.
denied, 469 U.S. 847 (1984).

4. Hearsay objection
     Finally, appellants assert that the trial court erred in
allowing the appelleeþs witnesses to testify that persons not
called at trial said that Burcham said that the appellee was a
thief.  Appellants concede that we decided this issue adversely
to them in Wal-Mart Stores, Inc. v. Dolph, 308 Ark. 439, 825 S.W.2d 810 (1992).  In that slander case, the plaintiff testified
that her sisterþs mother-in-law had been told by one of the Wal-
Mart employees that the plaintiff had been caught stealing.  On
appeal, we rejected Wal-Martþs hearsay argument, holding that the
statement was not offered to prove the truth of what was said,
but to prove the fact that it was said.  Id. at 443.  In making
their hearsay argument in the present case, appellants ask us to
overrule our decision in Dolph.  We decline to do so.
     Based on the foregoing, we affirm the decision of the trial
court.
     Newbern, J., not participating.
     Special Justice Thomas Prince, concurs.
     Glaze, Corbin, and Brown, JJ., dissent.

     Tom Glaze, dissenting.  I join Justice Corbin's dissent, but
add that, by today's decision, we change case law on "presumed
injury" in this defamation suit that has been the rule in
Arkansas since statehood.  I believe we should have issued a
caveat that the court intended to consider the soundness of the
rule and the court's possible overruling it.
     Brown,  J., joins this dissent.


     Donald L. Corbin, Justice, dissenting.  I concur with the
ultimate result reached in this case, but I dissent from the
majority's announced prospective rule that henceforth every
plaintiff in every defamation case, whether or not the First
Amendment is implicated, must prove reputational injury in order
to recover damages.  If the majority's decision means that
plaintiffs must now prove actual loss in order to recover in a
slander action, I strongly dissent.
     The rationale behind the doctrine of presumed damages for
slander per se is best illustrated by the dissent of Justice
M. Steele Hays in Lile v. Matthews, 268 Ark. 980, 598 S.W.2d 755
(1980), wherein he wrote:
     The reasoning behind this cardinal principle of libel
     and slander is that some types of defamation are so
     clearly inimical to character, reputation and regard of
     the person defamed that injury to that person's ability
     to earn a livelihood is presumed.

Id. at 989, 598 S.W.2d  at 760.
    Professor Prosser explains further:
     [T]here developed the rule that slander, in general, is
     not actionable unless actual damage is proved.  To this
     the courts very early established certain specific
     exceptions:  the imputation of crime, . . . and those
     affecting the plaintiff in his business, trade,
     profession, office or calling -- which required no
     proof of damage.  The exact origin of these exceptions
     is in some doubt, but probably it was nothing more
     unusual than a recognition that by their nature such
     words were especially likely to cause pecuniary, or
     "temporal," rather than "spiritual" loss. . . .  For
     these four kinds of slander, no proof of any actual
     harm to reputation or any other damage is required for
     the recovery of either nominal or substantial damages. 
     Otherwise stated, proof of the defamation itself is
     considered to establish the existence of some damages,
     and the jury is permitted, without other evidence, to
     estimate their amount. [Footnotes omitted.]

W. Page Keeton, Prosser & Keeton on the Law of Torts,  112, at 788 (5th
ed. 1984).
     Chief Justice Carleton Harris answered the question of
exactly what harm is caused by slanderous words, such as those
used by Appellants in the case before us, when he wrote in his
dissent in McMillion v. Armstrong, 238 Ark. 115, 378 S.W.2d 670
(1964):
          The unfortunate aspect about an accusation that
     reflects upon one's character, is that, even if totally
     untrue, and perhaps not really believed by the
     recipients of the information, such remarks almost
     invariably leave a question in the minds of the
     hearers, and every time the accused person's name is
     mentioned, the accusation is remembered, and the mental
     reaction, consciously or subconsciously, is -- "I
     wonder."

Id. at 126, 378 S.W.2d  at 676.
     Appellee requested that we examine the decision of the
Maryland Court of Appeals in Hearst Corp. v. Hughes, 466 A.2d 486
(Md. 1983).  In doing so, I came to the inescapable conclusion
that our long-established case law, stretching over more than a
century, is just as important to present-day defamation law, due
to the difficulty faced by all plaintiffs in proving the damage
to their reputations caused by the slanderous remarks.  The
following observations by the Maryland court should be as
persuasive to this court as they were to the Maryland majority:
          We are directed by Hearst to the recent decision
     of the Supreme Court of Kansas in Gobin v. Globe
     Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1243 (1982),
     where that court adopted the rule that "[u]nless injury
     to reputation is shown, [a] plaintiff has not
     established a valid claim for defamation...."  This
     approach, in our view, fails to respect the centuries
     of human experience which led to a presumption of harm
     flowing from words actionable per se.  One reason for
     that common law position was the difficulty a
     defamation plaintiff has in proving harm to reputation. 
     Eaton, supra, at 1357 describes the problems:

          The conclusive presumption of injury for
          certain kinds of defamation derives from the
          recognition that injury to reputation is
          extremely difficult to demonstrate, even when
          it is obvious that serious harm has resulted. 
          Identifying and locating those persons in the
          community who may think less highly of the
          plaintiff because of the publication is
          difficult, especially when the defamatory
          statement has been indiscriminately
          circulated.  And once located, it is the rare
          witness who will admit to the plaintiff or
          testify in court that his attitudes toward
          the plaintiff have changed as a result of the
          publication, when by doing so he admits that
          he changed his opinion without determining
          the truth or falsity of the statement.
          Ordinarily, the plaintiff will be able to
          present witnesses who will testify only that
          the plaintiff's reputation has been good,
          that their own opinion of the plaintiff has
          not changed, but that the plaintiff's general
          reputation in the community has suffered as a
          result of the publication.  This kind of
          testimony often lacks credibility because it
          is bottomed on hearsay and imputes to others
          a change in attitude which the witnesses
          themselves thought unnecessary.  And this
          kind of evidence is usually insufficient to
          establish the necessary causal connection
          between the defamatory publication and the
          alleged decline in community standing.  In
          short, a requirement of actual proof of
          injury to reputation has always been thought
          to reduce considerably any chance for
          adequate compensation.  [Footnote omitted.]

Id. at 495 (emphasis added).
     The facts in the instant case bring the importance of the
Maryland court's rationale into perspective.  Here, the
Appellants made much of the fact that Appellee's witnesses
testified that their opinions of Appellee had not changed after
Appellants had made the accusations that she had stolen from
them.  This is precisely the reason why the doctrine of presumed
damages remains a viable, workable, and necessary facet of common
law.  This is also why the great majority of the states still
cling to the concept of presumed damages, at least in some areas
of defamation law.  To do what the majority has prospectively
done today will do nothing short of gutting our law of
defamation, leaving our citizens no real recourse against those
who would unjustly accuse them of heinous acts.  
     Furthermore, I cannot accept the majority's reasoning that a
number of evils flow from presumed damages, namely the absence of
criteria for juries to measure the amount the injured party
should recover, the danger that juries will consider
impermissible factors such as the defendant's wealth or
unpopularity, and the lack of control that trial judges will have
over the size of jury verdicts.  The reason I cannot accept this
rationale is that even with the rule announced today, there is no
real criteria with which juries may measure the damage to a
person's reputation in terms of dollars and cents.  Moreover,
instructing juries as to the concept of presumed damages is no
less a guide in determining the amount of an award than are
claims of outrage, mental anguish, or emotional suffering.  The
only way to adequately provide a measuring stick to juries for
damages is to require that all damage to any plaintiff in any
cause of action must be capable of being reduced to an exact
dollar amount.  Undeniably, such a requirement would be
preposterous.  The majority's reliance on such alleged problems
caused by presumed damages is just as preposterous.  Furthermore,
the danger that there will be impermissible considerations of a
defendant's wealth or unpopularity in assessing damages is
present in every civil action tried before a jury, as are
concerns that a trial judge will not be able to control the size
of the verdicts.    Additionally, I take issue with the
majority's reasoning that by allowing presumed damages for
certain words that fit within the defamation per se category, but
"precluding actual damages for other words without additional
proof of damages, the common law rule 'creates unjustifiable
inequities for plaintiffs and defendants alike.'"  The reason for
distinguishing certain types of defamation is based upon the
gravity of the words said; to call someone a criminal or to say
that he or she is crooked in his or her business dealings, trade,
or profession is so injurious to that person that damage to his
or her reputation can clearly be presumed.  To require those
persons to prove actual injury to their reputations is tantamount
to abolishing the tort of defamation altogether.  This I am
unwilling to do, and I respectfully dissent.
     Glaze and Brown, JJ., join in this dissent.