{ "id": 1914594, "name": "Richard WAYMIRE v. Jay DEHAVEN", "name_abbreviation": "Waymire v. Dehaven", "decision_date": "1993-07-05", "docket_number": "92-1436", "first_page": "687", "last_page": "692", "citations": [ { "type": "official", "cite": "313 Ark. 687" }, { "type": "parallel", "cite": "858 S.W.2d 69" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "159 Cal.Rptr. 98", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1979, "opinion_index": 0 }, { "cite": "97 Cal. App. 3d 822", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 1999168 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/cal-app-3d/97/0822-01" ] }, { "cite": "451 N.Y.S.2d 869", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1982, "opinion_index": 0 }, { "cite": "88 A.D.2d 740", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3291462 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ad2d/88/0740-01" ] }, { "cite": "280 N.W. 229", "category": "reporters:state_regional", "reporter": "N.W.", "case_ids": [ 4723047 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/neb/135/0034-01" ] }, { "cite": "288 N.Y.S.2d 751", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1968, "opinion_index": 0 }, { "cite": "29 A.D.2d 418", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3206660 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ad2d/29/0418-01" ] }, { "cite": "38 App. D.C. 208", "category": "reporters:state", "reporter": "App. D.C.", "case_ids": [ 1771323 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/app-dc/38/0208-01" ] }, { "cite": "388 P.2d 779", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2695314 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/colo/154/0037-01" ] }, { "cite": "299 Ark. 490", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888421 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0490-01" ] }, { "cite": "302 Ark. 480", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884302 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0480-01" ] }, { "cite": "31 Ark. 726", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879265 ], "opinion_index": 0, "case_paths": [ "/ark/31/0726-01" ] }, { "cite": "235 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684807 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/235/0442-01" ] }, { "cite": "477 U.S. 242", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6206897 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/us/477/0242-01" ] } ], "analysis": { "cardinality": 514, "char_count": 8086, "ocr_confidence": 0.899, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.30178554811496733 }, "sha256": "8e965a439ad3b32ce2661bc0a931b310c491e7a30d18c6eae02c72febfceed32", "simhash": "1:e75e9ee5839e957b", "word_count": 1371 }, "last_updated": "2023-07-14T19:14:05.799320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs.", "Brown, J., not participating." ], "parties": [ "Richard WAYMIRE v. Jay DEHAVEN" ], "opinions": [ { "text": "David Newbern, Justice.\nThis is a defamation case. Richard Waymire, the appellant, entered an agreement to purchase property from The Maumelle Company of which the appellee, Jay DeHaven, is part owner and operator. Mr. Waymire apparently was to trade a recreational vehicle as part of the purchase price. Mr. Waymire and Mr. DeHaven got into a dispute in the course of the transaction, resulting in Mr. Waymire filing a complaint against Mr. DeHaven with the Arkansas Real Estate Commission.\nMr. DeHaven learned that Arkansas Business magazine was to publish an article about him and his company, and he called representatives of the magazine and their lawyer to meet with him and his lawyer. During the meeting Mr. DeHaven was asked about the Waymire transaction and complaint. He responded with the remarks which formed the basis of Mr. Waymire\u2019s slander claim.\nThe article which was the subject of the discussion at the meeting was published in Arkansas Business. It quoted words spoken by Mr. DeHaven at the meeting. After a description of events surrounding the real estate transaction and Waymire\u2019s complaint to the Arkansas Real Estate Commission, the following appeared:\nBut Jay DeHaven of The Maumelle Co. blasts back at Richard Waymire. DeHaven claims Waymire was trying to scam him for $ 15,000.00, that being part of the purchase price, by holding the title of the recreational vehicle for weeks and using other ploys.\n\u201cWaymire is an absolute con,\u201d DeHaven says. \u201cHe\u2019s an absolute crook.\u201d\nThe Trial Court found that the statements Mr. DeHaven made about Mr. Waymire did not constitute slander per se. As Mr. Waymire, who is employed as a salesman of new and used cars, made no showing that he could produce evidence of special damages, the Trial Court held there was nothing for a jury to decide, and summary judgment was entered in favor of Mr. DeHaven.\nThe initial determination whether words spoken or published are capable of constituting defamation per se rests in the Court. The opinion in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1946), discusses in detail the role of a court in defamation proceedings, and W. Prosser and W.P. Keeton, Prosser and Keeton on Torts, \u00a7 111 (5th ed. 1984), at p. 781, states:\nIt is for the court in the first instance to determine whether the words are reasonably capable of a particular interpretation, or whether they are necessarily so; it is then for the jury to say whether they were in fact so understood.\nIf the words in question could not constitute slander per se we would affirm, but we must reverse and remand as the words used by Mr. DeHaven about Mr. Waymire could have been construed as actionable without a showing of special damages because of being prejudicial to a person of a profession or trade. Such words are actionable without a showing of special damages.\nIn Reese v. Haywood, 235 Ark. 442, 360 S.W.2d 488 (1962), in the process of determining that the words in question in that case were not actionable per se, we wrote:\nIn an early case we discussed the distinction between words that are actionable in themselves and those that are not: \u201cWhere 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.\u201d Studdard v. Trucks, 31 Ark. 726.\nWe recently applied the distinction between words actionable per se and those which are not in Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990), where we reversed a directed verdict because the evidence was capable of supporting determination of slander per se. We held that in such a case \u201cno evidence of damages in the form of actual losses is required.\u201d\nThe argument advanced by Mr. DeHaven and adopted by the Trial Court was that the words in question here did not allege that Mr. Waymire was guilty of a crime and were not made about or in direct reference to his business; therefore, they could not constitute defamation per se, and absent a showing of special damages, they were not actionable.\n1. Allegation of crime\nWe look to circumstances surrounding the challenged statements to determine whether they are capable of an actionable meaning. In Bland v. Verser, 299 Ark. 490, 11A S.W.2d 124 (1989), the Arkansas State Medical Board, which had an account at the Bank of Harrisburg, had apparently lost money from the account due to conversion by a Board employee. Dr. Verser, the chairman of the Board, allegedly told a group of persons, \u201cBut I have told them, and I\u2019m telling you, the head teller in the Bank of Harrisburg has to be the dumbest most stupid, ignorant person; or second, there is a collusion.\u201d Ms. Bland, the person referred to, alleged Dr. Verser had defamed her by imputing she was guilty of criminal misconduct. He moved for summary judgment. The Trial Court held Dr. Verser\u2019s statements did not constitute actionable slander and granted summary judgment. We reversed and remanded as the use of the term \u201ccollusion,\u201d in those circumstances was enough to imply Ms. Bland was guilty of theft from the Bank.\nRecognizing that words imputing a crime are capable of constituting defamation per se, the Trial Court in this case looked to cases from other jurisdictions which analyzed the term \u201ccrook\u201d to conclude that it was a word of general disparagement rather than a direct allegation of specific criminal conduct and it was not slander per se. See Cinquanta v. Burdett, 388 P.2d 779 (Col. 1963); Friedlander v. Rapley, 38 App. D.C. 208 (C.A.D.C. 1912); Klein v. McGauley, 29 A.D.2d 418, 288 N.Y.S.2d 751 (1968); Nelson v. Rosenberg, 280 N.W. 229 (Neb. 1938); Vacca v. General Elec. Credit Corp., 88 A.D.2d 740, 451 N.Y.S.2d 869 (1982). Cf., Albertini v. Schaefer, 97 Cal. App. 3d 822, 159 Cal.Rptr. 98 (Ct. App. 1979).\nWe agree that the language used, including the words, \u201ccrook,\u201d \u201ccon,\u201d and \u201cscam,\u201d did not, in context, allege any criminal misconduct on the part of Mr. Waymire.\n2. Prejudice in business or trade\nRestatement 2d, Torts, \u00a7 573, makes the following statement in Comment c.: \u201cIt is not necessary that the defamer refer to the other engaged in the particular profession or calling in question. It is enough that a statement is of a character to be particularly disparaging of one engaged in such occupation.\u201d Use of \u201ccrook,\u201d \u201ccon,\u201d and \u201cscam,\u201d uttered in conjunction with an allegation that Mr. Waymire was using \u201cploys,\u201d including holding title to a recreational vehicle in order to obtain $15,000 from DeHaven, presented a jury question whether Mr. Waymire had been disparaged in his business or profession. Webster\u2019s Ninth New Collegiate Dictionary (1986), at p. 1046, defines \u201cscam\u201d as a fraudulent or deceptive act or operation; \u201ccon,\u201d at p. 271, as a swindle and \u201ccrook,\u201d at p. 308, as a person who engages in fraudulent or criminal practices.\nThis is a close case, but on balance we must hold that the easily ascertainable meanings of the terms used, when applied to a car salesman in the context of describing a trade of a recreational vehicle for real estate, are capable of impugning Mr. Waymire\u2019s business reputation and are thereby capable of being defamatory.\nThat, of course, does not end the matter. Our conclusion is only that summary judgment was improper because Mr. DeHaven was not, in the words of Rule 56(c), entitled to it as a matter of law. Presumably upon remand the case will proceed to trial, and a jury will determine whether Mr. DeHaven\u2019s statement was prejudicial to Mr. Waymire in his business, trade, or profession.\nReversed and remanded.\nGlaze, J., concurs.\nBrown, J., not participating.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "Wallace & Hamner, by: James R. Wallace and Michael A. LeBoef, for appellant.", "Barber, McCaskill, Amsler, Jones & Hale, P.A., by: R. Kenny McCullough, for appellee." ], "corrections": "", "head_matter": "Richard WAYMIRE v. Jay DEHAVEN\n92-1436\n858 S.W.2d 69\nSupreme Court of Arkansas\nOpinion delivered July 5, 1993\nWallace & Hamner, by: James R. Wallace and Michael A. LeBoef, for appellant.\nBarber, McCaskill, Amsler, Jones & Hale, P.A., by: R. Kenny McCullough, for appellee." }, "file_name": "0687-01", "first_page_order": 723, "last_page_order": 728 }