{
  "id": 1715528,
  "name": "Olive M. LILE v. Sherry MATTHEWS",
  "name_abbreviation": "Lile v. Matthews",
  "decision_date": "1980-04-09",
  "docket_number": "CA 79-331",
  "first_page": "980",
  "last_page": "990",
  "citations": [
    {
      "type": "official",
      "cite": "268 Ark. 980"
    },
    {
      "type": "parallel",
      "cite": "598 S.W.2d 755"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
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    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "140 S.W. 746",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1911,
      "opinion_index": 0
    },
    {
      "cite": "100 Ark. 526",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1312240
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      "year": 1911,
      "opinion_index": 0,
      "case_paths": [
        "/ark/100/0526-01"
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    {
      "cite": "202 Ark. 1026",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1450016
      ],
      "weight": 2,
      "year": 1942,
      "opinion_index": 0,
      "case_paths": [
        "/ark/202/1026-01"
      ]
    },
    {
      "cite": "131 S.W. 968",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1910,
      "opinion_index": 0
    },
    {
      "cite": "96 Ark. 354",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1541988
      ],
      "year": 1910,
      "opinion_index": 0,
      "case_paths": [
        "/ark/96/0354-01"
      ]
    }
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  "last_updated": "2023-07-14T19:03:10.426772+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Hays and Penix, JJ., dissent."
    ],
    "parties": [
      "Olive M. LILE v. Sherry MATTHEWS"
    ],
    "opinions": [
      {
        "text": "David Newbern, Judge.\nThis is a slander case in which we are asked to reverse a judgment awarding the appellee general damages of $14, $30,000 compensatory damages and $20,000 punitive damages. The appellant asserts, at first, two errors consisting of admissions of hearsay evidence. We agree with the appellant, but we find one of these errors was not prejudicial and the other went only to the question of damages and thus does not require complete reversal. The appellant argues further with respect to privileged communication. We do not find that argument persuasive.\nThe appellant, Olive Lile, was in the practice of befriending young persons whom she hired as companions and helpers. They lived in her home and helped with domestic and business chores. The appellee, Sherry Matthews graduated from high school. She lived with the appellant two months. The appellee\u2019s testimony was that she left the appellant\u2019s home and employ because she was somehow being \u201cused\u201d in financial transactions. While helping Ms. Lile balance her checkbook she found a cancelled check made out to her (the appellee) for $200 which she had not seen before. When she questioned Ms. Lile about it, Ms. Lile allegedly was unresponsive. The appellee said she was paid no wages by Ms. Lile, other than her room and board, but was allowed to charge items to Ms. Lile\u2019s accounts at various stores from time to time.\nThe appellee testified that she was arrested and tried in 1975 for possession of stolen property, two costume jewelry bracelets and a clock, which Ms. Lile accused her of having taken. The appellee contended all three items were gifts from Ms.Lile, and that the clock had not been removed from the appellant\u2019s home. That criminal trial resulted in the judge holding the case for one year after a hearing and then dismissing the charge.\nIn 1976, Cohn\u2019s Department Store brought suit against the appellee and the appellant to collect for some items charged to Ms. Lile for wiiich she refused to pay because the charge tickets had been signed by the appellee. Ms. Matthews had signed her own name and not that of Ms. Lile. The suit was dismissed as to the appellee.\nFreda Hendricks testified she was, in 1977, living in Ms. Lile\u2019s home in a capacity like that described by the appellee, and upon entering Ms. Lile\u2019s bedroom to deliver her newspaper one morning, she heard Ms. Lile talking on the telephone and describing the appellee as being \u201con dope,\u201d and a thief as well as other remarks alleging she was sexually promiscuous. Ms. Henricks testified that Ms. Lile hung up the phone and told Ms. Hendricks she had been speaking with Mr. Stockard of Kempner\u2019s Department Store because she had seen the appellee acting in a television commercial presented by the store, and she wanted to warn him. Ms. Hendricks testified the appellant called Dillard\u2019s and Montgomery Ward\u2019s before Ms. Hendricks left the room, and from another part of the house she later heard the appellant repeating the message the appellant had allegedly given Mr. Stockard.\nThe appellee testified that she heard about the allegations made to Kempner\u2019s, and at that point she was highly embarrassed and depressed. She consulted a physician and was given medication. She said she thereafter gave up her fledgling modeling career because she was too embarrassed to seek work.\nOther facts will be stated as necessary..\n1. Hearsay Identification\nAt the trial, part of the deposition of Patti George was read into evidence. The essence of the textimony was, first, that Mr. Stockard had stated to Mr. Lynn Kempner in the presence of Ms. George that he had been told Sherry Matthews was a thief and \u201cinvolved with drugs\u201d and had \u201cforged an account.\u201d Mr. Stockard did not, on that occasion, reveal the source of that information. At the trial, he denied that it had come from Ms. Lile. Secondly, Ms. George testified as follows:\nQ. Had Mrs. Lile been on the [Kempner\u2019s] premises anytime shortly before this conversation with Mr. Kempner?\nA. Yes she had.\nQ. Can you tell me what about?\nA. I don\u2019t know if it was the day before or \u2014 I believe I was walking to the elevator. I don\u2019t know Mrs. Lile. There was an elderly woman sitting in a chair outside his office. ... I asked Mrs. Cohn, who works at Kempner\u2019s who the lady was. She said it was Mrs. Lile\nThis testimony had been objected to earlier in the proceedings, and the objection was renewed in a specific and timely manner. The objection was that Ms. Cohn\u2019s identification of Ms. Lile was hearsay. The appellee argues it was not, citing cases which appear to have admitted identification evidence of this sort without much discussion why it does not violate the hearsay rule.\nIf this evidence was hearsay, we conclude it was harmless error to admit it. The jury had before it direct evidence that Ms. Lile had uttered the defamatory statements to Mr. Stockard and others, and that was the theory of the appellee\u2019s case. The testimony identifying Ms. Lile as a person who was at the Kempner\u2019s Store added nothing. Ms. George\u2019s deposition is indefinite as to when Ms. Lile was there. It does not say \u201coutside\u201d whose office she sat.\nAlthough it might be said that this evidence was calculated to prove Ms. Lile was in a position to have uttered the defamatory words at a time vaguely close to the incident Ms. George observed when Mr. Stockard told Mr. Kempner he had received derogatory information about the appellee, we cannot say there is any chance the verdict in this case was to any degree based on that evidence as opposed to the direct testimony of Freda Hendricks.\n2. Privilege\nThe appellee\u2019s complaint contained a count alleging liability of the appellant for her statements to a prosecuting attorney which led to her 1975 arrest. The appellant moved to strike that count on the ground that statements made to a prosecutor in connection with reporting a crime are privileged because they are part of \u201cjudicial proceedings.\u201d Neither the appellant\u2019s abstract nor the record, as far as we can determine, shows the specific action taken by the court on the motion. However, the court\u2019s instructions make it clear the only allegation to be considered by the jury was Ms. Lile\u2019s alleged statement to \u201can employee of Kempner\u2019s.\u201d\nThe appellant contends evidence of the 1975 arrest of the appellee should not have been admitted. The record shows the appellee testified she received two bracelets and a clock as gifts from the appellant. Just after that testimony was received, the direct examination of the appellee continued as follows:\nQ. Did you subsequently get arrested?\nA. Yes, I did.\nQ. What was the charge.\nMR. MADDEN [Defendant\u2019s Counsel]:\nObjection, your Honor, he is talking about some other court proceedings.\nTHE COURT:\nWill you gentlemen approach the bench?\n(Out of hearing of jury)\nTHE COURT:\nNot for the purpose of showing malice or for the purpose of showing any wrongdoing in Mrs. Lile having the woman arrested, but simply for the purpose of disproving the statement that Mrs. Lile has alleged to have made that she was a thief, you may proceed.\nMR. LEWIS [Plaintiffs counsel]:\nI would also like it admitted for the purpose of proving malice, your Honor.\nTHE COURT:\nWell, whatever we call it doesn\u2019t make it any difference to the jury, does it?\nMR. LEWIS:\nI don\u2019t suppose.\nTHE COURT:\nOkay, I am going to rule it out for that purpose right now anyhow. I think, very probably, if Mrs. Lile made these statements, they, of themselves, would be adequate to show malice. But anyhow, I am going to let you go ahead.)\nQ. What were you accused of doing in that charge?\nA. Possession of stolen property.\nQ. Was that a felony charge?\nA. Yes, it was.\nQ. What was it that you were accused of having?\nA. Clocks, jewelry, I don\u2019t know what all she accused me of having.\nQ. Do you recall what jewelry was discussed at that trial?\nA. The two costume jewelry bracelets that she had given me.\nQ. And the clock.\nA. And the clock which I never removed from her house.\nQ. Do you recall how that litigation came out?\nA. Yes, Judge Cole, in that court, dismissed it at that time pending for one year, which after one year, he dismissed it.\nThe objection did not mention privilege. No statement of what Ms. Lile allegedly told the prosecutor was admitted, although reading between the lines might reveal the appellee implied statements made by Ms. Lile when the appellee said \u201cI don\u2019t know what all she accused me of having.\u201d Even if a statement of what Ms. Lile said had been admitted, the privilege which may apply to liability for the statement is not an evidentiary privilege. See, 8 Wigmore, Evidence, \u00a7 2363 (4) (1961). Thus, we find no error on that point.\n3. Excessive Damages\nOn direct examination the appellee gave the following testimony:\nQ. Were the Kempner\u2019s people pleased with that commercial?\nA. Yes, they were.\nQ. Were you, after the conclusion and making of that commercial, offered or told that you would get subsequent spots for Kempner\u2019s?\nA. Yes, Lynn Kempner, I saw him out in public one night and he told me that the commercial went well.\nMR. MADDEN:\nObjection.\nTHE COURT:\nI think the objection to what he told her would be valid, she may testify that she was promised and she didn\u2019t get it.\nA. Mr. Kempner told me. . .\nQ. Were you promised future spots?\nA. Yes, I was promised.\nThis testimony as to what the appellee was \u201cpromised\u201d was hearsay. We cannot understand the distinction the trial court made between that which the appellee was \u201ctold\u201d and that which she was \u201cpromised.\u201d\nThe appellee testified as to how she had given up her modeling career because of her embarrassment and her fear of going into stores where she might be employed, but the only evidence of a direct loss of income resulting from the alleged defamation was the hearsay conversation with Lynn Kempner. Thus, we find the error in admitting that evidence was prejudicial. As the prejudice goes only to the extent of the appellee\u2019s actual financial loss due to the alleged defamation, however, and not to the question of liability, we need not reverse the entire judgment.\nThe appellant\u2019s final point is that the damages are generally excessive, especially in view of the lack of evidence of any financial loss to the appellee. We agree there is little evidence of direct financial loss to the appellee, especially in view of our rejection of the testimony about \u201cfuture spots.\u201d\nWe recognize compensatory damages in defamation cases need not be based on proof of financial loss. Taylor v. Gumpert, 96 Ark. 354, 131 S.W. 968 (1910). See also, Prosser, Torts, pp. 754 et seq., (4th ed. 1971). However, there is another serious problem with the damages portion of this judgment. Although the instructions to the jurors and the nature of the form of their verdict were not specifically made issues on appeal, the appellant does argue the damages were generally excessive. In attempting to evaluate this point, we must look to the instructions and the jury\u2019s response to them.\nThe court instructed the jury on damages as follows:\nCOURT\u2019S INSTRUCTION NO. A\n\u201cPlaintiff claims damages from the defendant and has the burden of proving the following essential propositions:\nThird, if the plaintiff has proven the foregoing element, [the false statement to a Kempner\u2019s employee] she is entitled to recover general damages.\nFourth, in addition to general damages, plaintiff is entitled to receive compensatory damages, that are proven by a preponderance of the evidence, such as embarrassment and mental anguish.\nPLAINTIFF\u2019S REQUESTED INSTRUCTION 7A\nAMENDED\n\u201cBy general damages, I mean that even if plaintiff proves no actual damages, she is entitled to reasonable damages if the words accuse her of a crime or are of the type likely to injure a person in a profession or trade, damage to reputation from such words is presumed.\u201d\n(AMI 2217)\n\u201cIn addition to compensatory damages for any actual loss that plaintiff may have sustained, she also asks for punitive damages. . . .\u201d\nGiven these instructions, we cannot tell if it was the duty of the jury to determine actual loss to the plaintiff as \u201ccompenatory damages\u201d and the kind of presumed damages attendant upon loss of or injury to reputation as \u201cgeneral damages,\u201d or vice versa. We cannot say what the jury intended when it awarded $30,000 in \u201ccompensatory damages\u201d and $14 as \u201cgeneral damages.\u201d\nAlthough the appellee showed a $12 medical expense, we can find no admissible evidence of \u201cactual loss\u201d suffered by the appellee other than this minor one. The instructions were very confusing, and although we might surmise the jurors\u2019 intent, we should not.\nGiven this situation, we can affirm the award of $14 \u201cgeneral damages\u201d and $20,000 punitive damages. We cannot, however, approve the $30,000 \u201ccompensatory damages,\u201d as we do not know for certain whether the jury might have meant it to have been for demonstrated losses to the appellee as the last of the partially quoted instructions seems to require. In view of our rejection of the evidence of promise of future modeling contracts, we can find no evidence of actual loss, other than the $12 medical expense.\nAlthough we could simply modify the judgment and affirm it, Coca Cola Bottling Co. of Southwest Ark. v. Carter, 202 Ark. 1026, 154 S.W. 2d 824 (1942), it will be fairer to offer the appellee an opportunity to remit $30,000 of the judgment or submit to a new trial. Chicago, R. I. & P. Ry. Co. v. Batsel, 100 Ark. 526, 140 S.W. 746 (1911).\nThe judgment will be affirmed if within seventeen calendar days from the date of this decision the appellee enters a remittitur of $30,000; otherwise the case is reversed and remanded for new trial.\nHays and Penix, JJ., dissent.",
        "type": "majority",
        "author": "David Newbern, Judge."
      },
      {
        "text": "M. Steele Hays, Judge,\ndissenting. I would affirm this case on appeal as I do not believe that we are justified in effectively setting aside the jury\u2019s verdict for compensatory damages (albeit by way of remittitur) on a point not raised nor argued by either side on appeal. The point urged on appeal with respect to the verdict is that the damages are excessive, not that the instructions were improper. The majority opinion ignores our own rule, frequently applied, that the instructions must be abstracted, in order to be considered on appeal, and circumvents the rule that defamation of the present sort need not be dependent on specific evidence of pecuniary loss. 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\u2019s ability to earn a livelihood is presumed. Here there was substantial evidence the defamatory remarks not only would have such effect, but that loss of employment by the party offended was clearly intended by the appellant. Indeed, there was testimony the publication of the slander was not just at random, but was specifically repeated to persons employing the plaintiff for the avowed purpose of disrupting that relationship.\nProfessor Prosser defines four categories of slander which do not require proof of damages, two of which clearly cover the slander before us:\n. . . courts very early established certain specific exception: the imputation of crime, of a loathsome disease, and those affecting the plaintiff in his business, trade, profession, office or calling \u2014 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 \u201ctemporal\u201d rather than \u201cspiritual\u201d loss. Modern statutes and decisions have added a fourth catetory, the imputation of unchastity to a woman. 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 are permitted, without other evidence, to estimate their amount. Prosser, Law of Torts, 3d Ed. Page 772, Section 107.\nI find no error in the record that would justify disturbing the verdict returned in this case.\nI am authorized to state that Judge Penix joins in this dissent.",
        "type": "dissent",
        "author": "M. Steele Hays, Judge,"
      }
    ],
    "attorneys": [
      "Jim Hamilton and Harold Madden and Friday, Eldredge & Clark, by: John Dewey Watson, for appellant.",
      "R. David Lewis, for appellee."
    ],
    "corrections": "",
    "head_matter": "Olive M. LILE v. Sherry MATTHEWS\nCA 79-331\n598 S.W.2d 755\nCourt of Appeals of Arkansas\nOpinion delivered April 9, 1980\nReview denied May 14, 1980\nReleased for publication May 14, 1980\nJim Hamilton and Harold Madden and Friday, Eldredge & Clark, by: John Dewey Watson, for appellant.\nR. David Lewis, for appellee."
  },
  "file_name": "0980-01",
  "first_page_order": 1016,
  "last_page_order": 1026
}