United Insurance Co. of America v. Murphy

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 plaintiffs reputation has been good, that their own opinion of the plaintiff has not changed, but that the plaintiffs 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 plaintiffin 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.