Dun & Bradstreet, Inc. v. Robinson

Decision Date27 February 1961
Docket NumberNo. 5-2236,5-2236
Citation345 S.W.2d 34,233 Ark. 168
PartiesDUN & BRADSTREET, INC., and Mrs. Margaret Lawrence, Appellants, v. Joe ROBINSON, DBA Joe Robinson Produce, Appellee.
CourtArkansas Supreme Court

Rex W. Perkins, Wade & McAllister, Fayetteville, Mehaffy, Smith & Williams, John T. Williams, Robert V. Light, Little Rock, for appellants.

Crouch, Jones, Blair & Cypert, by James B. Blair, Springdale, for appellee.

HARRIS, Chief Justice.

This is a libel suit. Appellee, Joe Robinson, is engaged in the wholesale produce business in Springdale, Arkansas. Appellant, Dun & Bradstreet, Inc., is a mercantile agency, engaged in the business of gathering, compiling, and furnishing to its subscribers information concerning the credit and financial standing of individuals and organizations. Appellant, Mrs. Margaret Lawrence, was the Dun & Bradstreet correspondent in the Springdale area. Mrs. Lawrence was given employment by the company in February, 1958, and on February 27th, according to her testimony, during the course of taking a report from John Holyfield of Horner Tire Company of Springdale, appellant was asked by the latter if she had heard that Joe Robinson had taken bankruptcy. 1 Mrs. Lawrence had not heard the report, but, according to the witness, in compliance with instructions from Dun & Bradstreet to report to the Little Rock office any unusual occurrences, she left Holyfield's office, went home, and immediately called the Dun & Bradstreet office in Little Rock, and related what Mr. Holyfield had said. The Little Rock office prepared the following 'special notice report', which was sent, on March 3rd, to thirty-six of its subscribers.

In the meantime, Mrs. Lawrence, on February 28th, (the day following her initial report) received a request from the Little Rock office asking for further information in the nature of a report form to be filled in on Robinson. Mrs. Lawrence called Robinson's office, and talked with his secretary, who denied the report. Subsequently, Robinson called this appellant, and told her that the report was not true. Mrs. Lawrence wrote up the report on that date, but was unable to state when it was mailed. The company apparently received it on March 4th, and as a result, sent out the following notice to the same customers.

                '5141
                Robinson, Joe                                   SN 85 March
                                                                  4 1958
                                                                Whol Produce  Springdale Ark
                                                                              Washington County
                                                                              Hwy #71 South or
                                                                              1020 & 1102 N/SE
                                                                                South
                'Rating: C 2 1/2                                'Business
                                                                  Continued
                'Joe Robinson was interviewed recently and he
                  denied reports that operation discontinued
                  or that he has sustained any business
                  reverses
                3"4"58 (066c"51)'
                

On March 15, 1958, appellee instituted suit against Dun & Bradstreet and Mrs. Lawrence seeking recovery of $750,000 for damages sustained as a result of the publication of the notices. The complaint alleged the published notices to be false and untrue, and asserted that the publications had caused Robinson's customers and potential customers to believe that his business had failed or was about to fail. The notices were alleged to have been published with malicious intent to injure Robinson in his business, and appellee asserted that such business had been greatly injured, in that he had suffered a great loss of customers and income, and would in the future so suffer; that his credit had been curtailed, and his reputation injured, as a result of the publication of the reports, and that he had suffered extreme personal embarrassment. After the filing of demurrers, which were overruled, appellants filed their separate answers, Mrs. Lawrence asserting that her communication to the company was made in good faith, under circumstances of reasonable caution as to its being confidential, and that the communications were privileged. She further asserted that the communication was true. Dun & Bradstreet alleged that the information was received from sources reasonably believed by it to be reliable; that the reports were sent only to subscribers as had theretofore requested information pertaining to appellee, and that the report was qualifiedly privileged. Further answering, the appellant company alleged its good faith and denied that the information was furnished maliciously. On trial, the jury returned a verdict for Robinson against the appellants in the amount of $30,000 for special compensatory damages, $10,000 being awarded for damages already suffered, and $20,000 awarded for future damages. The jury did not award punitive damages as sought by appellee. From the judgment entered in compliance with the jury verdict, appellants bring this appeal. 2 For reversal, appellants principally rely upon three contentions, viz., '(1) That the truth of the publications was established by the undisputed proof, (2) That there is no competent evidence in the record to support a finding of malice necessary to destroy the qualified privilege that protects the defendants from liability, and (3) That there is no substantial evidence in the record to support a finding of either the fact or amount of damages accruing to the plaintiff as a proximate result of the publications.' We proceed to a discussion of each contention in the order listed.

Appellants emphasize that Dun & Bradstreet did not report that Joe Robinson had discontinued business operations, but rather, the report stated 'it is currently reported' ' that Robinson had discontinued operations. In other words, appellants contend that since such a report actually had been received, the publication was entirely true, and such truth is a complete defense. We very quickly reject this argument as unsound. While it has been generally held that the truth of a defamatory statement is a complete defense to an action for libel, 3 the 'truth' referred to has reference to the correctness of the substance of the report, rather than the fact that such a report was made. In Restatement of the Law of Torts, Vol. 3, A.L.I., § 582, subsection (d), p. 217, we find:

'd. It is necessary to establish the truth of the defamatory matter contained in the statement. When one person repeats a defamatory statement which he attributes to some other person, it is not enough for the person who repeats it to prove that the statement was made by the other person. He must prove the truth of the defamatory charges which he has thus repeated.'

Obviously, plain logic supports the propriety of this rule. We think the words used in the report of March 3rd clearly, in their common acceptation, convey to the reader that appellee had discontinued operations, even to specifically giving the date of discontinuance, February 26, 1958. The second sentence of the report read, 'Further investigation is underway for more complete details.' More complete details on what? In our opinion, this language would be unquestionably construed by a subscriber to refer, not to whether operations had been discontinued, but rather, to the details of the circumstances leading to discontinuance. Since admittedly, Robinson had not ceased operations, the report sent out by Dun & Bradstreet was erroneous, and appellants have no valid defense in asserting the truth of the communication.

It is not really argued that the second communication was a correction or retraction of the first, 4 nor would such argument be valid. It will be noted that the March 4th report does not state that the earlier notice was in error, and that the subject has not discontinued operations; rather, it states that Robinson 'denied reports operation discontinued.' This, of course, is not to say that the original notice was erroneous, and the second communication would carry but little weight in changing the opinion of those who received the first publication. A person charged with crime generally denies that he has committed the crime, but this does not vindicate him in the eyes of the public. To illustrate, suppose a notice is published, 'It is currently reported John Smith has stolen money from his employer.' Subsequently, a notice is published, 'John Smith denies that he stole money from his employer.' No one could reasonably argue that the latter statement was a retraction of the first. At any rate, of course, even though the second Dun & Bradstreet notice could possibly be considered as a full and fair correction or retraction, same could only be considered in mitigation of damages. See 53 C.J.S. Libel and Slander § 257, p. 371.

It might be well to here state that counsel for appellants and appellee, during oral argument, clearly stated to the Court, and agreed, that neither side desired the case to be remanded for another trial, i. e., appellants' argument was directed solely to the fact that the judgment should be reversed and dismissed, and appellee's argument (his cross-appeal having been abandoned) was directed to support of the judgment awarded.

Of all the instructions given (10), appellants now only complain of the definition of malice given by the court, found in Instruction No. 2. That definition is as follows:

'Malice is defined as the doing of a wrongful act, either in a personal sense, as the doing of an act intentionally that is wrong, or the doing of an act actuated by spite, grudge, hatred, ill will or evil intent, or in the impersonal sense, as the doing of an act without just cause or excuse, with such a conscious indifference or reckless disregard as to its results or effects upon the rights or feelings of others as to constitute ill will.'

Appellants...

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