Ewing v. Cargill, Inc.

919 S.W.2d 507, 324 Ark. 217, 1996 Ark. LEXIS 237
CourtSupreme Court of Arkansas
DecidedApril 22, 1996
Docket95-389
StatusPublished
Cited by4 cases

This text of 919 S.W.2d 507 (Ewing v. Cargill, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ewing v. Cargill, Inc., 919 S.W.2d 507, 324 Ark. 217, 1996 Ark. LEXIS 237 (Ark. 1996).

Opinion

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., subsequendy 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 litde 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 922-25. 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 443-44, 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 933-34, 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.

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919 S.W.2d 507, 324 Ark. 217, 1996 Ark. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewing-v-cargill-inc-ark-1996.