concurring in part, dissenting in part. I agree entirely with the majority opinion down to the final point, i.e., that Braden’s proof of damages fails to sustain the awards of compensatory and punitive damages.
The words written about Braden and his company were actionable per se and, hence, whether Braden’s proof, of pecuniary loss sustained the amount awarded by the trial court is beside the point. In his pleading Braden prayed for the recovery of general damages and the law in this state and in many states, is that libel that is actionable per sc supports a recovery of general damages and is not dependent on proof of special damages. See Dun and Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961); Taylor v. Gumpert, 96 Ark. 354, 131 S.W. 968 (1910); Lile v. Matthews, 268 Ark. 980, 598 S.W.2d 755 (Ark. App. 1980); Prosser on Torts, p. 754 [4th ed.].
In Dun and Bradstreet v. Robinson we upheld an award of general damages of $30,000 where the defendant innocently but inaccurately published a report to its subscribers that the plaintiff had discontinued business operations. In contrast to the libel in Dun and Bradstreet, we have here a deliberate and calculated attempt to defame and discredit Braden and his company by the appellants. Appellants made a veiled but unmistakable reference to Braden and Arkansas Oil and Gas Company as having practiced “out and out lying and stealing,” as well as conspiracy to defraud. Appellants’ letter was then circulated to several other parties as well as to the American and Arkansas Bar Associations. Finally, and to make certain that no one was overlooked, a copy was spread upon the records of the Recorder of Yell County, Arkansas.
It should be noted that in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court excised from the common law of defamation what it termed “an oddity of tort law,” the practice of allowing recovery of purportedly compensatory damages without evidence of actual loss, recognizing that under traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. The court concluded its analysis of First Amendment protections of a free press by requiring that state remedies restrict defamation plaintiffs who do not prove the falsity or reckless disregard for the truth to compensation for actual injury. Gertz, supra at p. 349. Here, while it might well be argued that appellants’ libel brings the case within the stated exception, that need not engage us, as it is plain that the Gertz opinion applies to defamation suits against newspaper publishers and broadcasters, the so-called “media-defendants.” The decision begins with the declaration, “The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for injury inflicted by those statements.”, Gertz, p. 332, and concludes with:
We hold that, so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private individual. (Gertz, at p. 347) (My emphasis.)
A similar interpretation of the Gertz decision, though evident enough from the opinion itself, has been reached in Schomer v. Smidt, 113 Cal. App. 3d 828, 170 Cal. Rptr. 662 (1980). See also, 25 UCLA L. Rev. 915.
I would affirm the award of compensatory and punitive damages.
Adkisson, C.J., joins in this dissent.