Embrey v. Holly

EMBREY, et al. v. DENNIS P. HOLLY JR. JAMES Term, 71, September 1981.]

[No. March Decided J., The cause was Smith, Murphy, argued C. and before JJ. Rodowsky, Digges, Eldridge, Cole, Davidson and Sherbow, Hearne Stephen whom were M. Theodore with brief, Sherbow, Tatelbaum, on for and Shea P.A. & appellants. were Oakley,

Marvin Ellin and F. with whom Donald brief, Ellin & on the for appellee. Baker J., C. opinion delivered the Court. Digges, Murphy, J., Eldridge J., JJ., C. and and dissent. Murphy, Davidson, filed dissenting opinion infra, in which page Eldridge JJ., join. and Davidson, Ever Court in the case since the United States *1 laws of

New York Times v. in Sullivan declared concepts incompatible libel and with the slander are constitution, first of the federal underlying the amendment balance between struggled proper courts have to strike a 84 S.Ct. L.Ed.2d 686 1. 376 U.S. 2 and the reputation guarding individual

interest of an many ways free values federally speech protected society. With this represent essence of our democratic case, an fray and determine whether join shall we punitive damages imposed held for employer may be liable also defamatory employee. of an We shall for the utterances to have it was trial court appropriate decide whether separate case to award permitted jury multiple against varying amounts first, set forth parties we introduce the defendants. But background litigation. of this factual Holly, Dennis television news commentator Respondent peti- Baltimore, instituted this defamation action Jr., known Embrey, a local radio show host tioners James Walker, employer, Johnny and Walker’s professionally as Show, of radio Incorporated, operator Baltimore Radio By suit, Holly dam- recompense station WFBR. seeks joke a about resulting purported from age reputation his morning during related his the newsman which Walker spe- 1979. It that Walker February, radio seems program as "a and witness characterized in what one listener cializes morning show with zany, whacky, crazy, discjockey fanciful features, Morning Little some such as the News added current crazy wild about Johnny things where writes of that haven’t up things events a whole lot and makes deserving person’s being good A has as more name been described even Shakespeare protection property. noted than his that of lord, woman, my Good in man and dear name souls; jewel Is of their the immediate trash; nothing; my purse something, 'tis Who steals steals his, thousands; mine, slave to 'tis and has been 'Twas my good But from me name he that filches him, me of that which not enriches Robs And poor me indeed. makes "Othello,” put Justice Stewart it: Scene 1.155. And as Act reputation right protection his own from The of a man to the of unjustified concept root of wrongful no our basic hurt reflects more than invasion — every being concept at the worth of human a of the essential system liberty. any of ordered decent (1966) 669, 679, 15 Baer, 75, 92, 86 L.Ed.2d 597 S.Ct. Rosenblatt v. (concurring opinion). they As an like are news items....” happened, but sound show, Matz, Ron a WFBR regular of Walker’s part other newsman, telephone from call Walker another would Horni,” "Harry the character of a impersonate station and Hollywood, phone booth in calling from gossip columnist California, concerning of information with "tidbits” national, occasion, Hollywood, personalities. local and on mix Testimony represented the "tidbits” indicates that fiction, engage Matz with and that Walker and would fact lib Walker dialogue attempt an ad which would to fashion "Horni’s” responses humorous revelations. The "Horni material, punctuated was with Report,” like all of Walker’s cheering, applause, and the like laughter, various sounds of numerous playing which the broadcaster actuated pre-recorded cartridges.3 spawned defamation which

Walker’s comment "Harry segment Horni” his litigation during occurred morning February about a week show on the which left paralyzed had a blizzard after Baltimore been the "Horni city During under two feet snow. buried a.m., Report” taped 6:15 fictitious columnist undergo truthfully Holly that Dennis was about related surgery. Apparently believing knee "Horni” section a.m., show, his at 8:15 lacked which was re-broadcast "humor,” Walker, subsequent airing sufficient ending, an additional comment about "tidbits” was added Holly: Holly, though. Hope Dennis "Too bad about Probably he okay. comes out Wonder how hurt knee? fell week, during carrying that TV the blizzard last down of Walker’s comment right?” unique It was the context seemingly innocuous statement into that transformed this libelous, during be jury one the determined to explained effects 3. He at trial are one hundred sound that there "about goofy things and I use.” offending preserved, is tape 4. As the not there no of the broadcast was filed, however, had documentation of the exact words used. After suit been Walker broadcast on the best their recollection the "Horni” and Matz reenacted to containing just quoted was words. This reenactment recorded station, tape, and, the radio was received at the instance of Walker and played jury. into evidence and for the

blizzard, looters, groups taking advantage of so-called vehicles, commercial police immobilized broke into scores of Pennsylvania Avenue area of establishments in the virtually all merchandise.5 stripped Baltimore and them of recognize Certain did not the "humor” of Walker’s listeners Holly, about for the switchboard radio host’s words WMAR-TV, Holly told the operator employed, at where was jury concerning the inquiries that she received numerous black, Similarly, Holly, truth remark. who is of Walker’s began receiving anonymous, harassing phone calls. One by having caller the newscaster as said: "You quoted pushed job you out of his and now have stolen George Rogers All you getting you a television set and are what deserve.... Thus, you niggers failing appreciate are thieves.” aside, Holly the radio host and Walker’s "humorous” sued City A Baltimore jury his for defamation. jockey’s were libelous Court found that the disc comments $25,000 Holly compensatory damages and awarded addition, defendants; jury awarded against both $35,000 $5,000 against Walker Show, Court against employer, Baltimore Radio Inc. The it Special Appeals, affirming judgment, while vacated as to the a new trial on the issue punitive award ordered determining after on its own motion exemplary damages jury grant that it such dam improper permit was ages differing amounts the two defendants. Court, Baltimore Radio

The in this Walker and petitioners Show, Inc., grant of our of certio- being by limited terms case, two present of this punitive damages aspect rari to the Special Appeals analysis of the factual a detailed the Court of For which, justified opinion, of the in its submission context and innuendo 571, 587, 429 jury Embrey Holly, App. 48 Md. defamation issue to the A.2d evidence, see (1981), "[t]he in this case that where the Court determined standard, convincing allow was such as to tested the clear and reasonably The jury remark” was libelous. to conclude that Walker’s supports perspicuously decided that "the evidence intermediate court also the 'joke’ high jury’s finding that the with a awareness that Walker acted true;” consequently, Holly perceived the radio as relative to host’s conduct met the New York Times properly these determinations was could be standard, were Neither of Id. 429 A.2d at 265-66. awarded in this case. grant encompassed in this within our of certiorari action; consider opinion do not accordingly, express their correctness and we no as to further here. them They allowing damages against such issues. claim first corporate the radio station’s owner on the sole basis of amendment, first as inter- respondeat superior violates the decisions, preted by Supreme recent United Court States impermissibly liability a form of without fault in imposing Next, that the trial petitioners defamation case. assert correctly jury court dam- permitted apportion punitive to ages between Walker and therefore the employer, appellate intermediate court erred when it reversed the trial judge infirmity in this regard. As we find no with the employer, award and we determine that it is proper jury apportion for a trial court to allow the punitive damages multiple judg- between wrongdoers, ment of Special Appeals the Court of will be partially reversed. We first respondeat superior address the issue.

Following a lengthy analysis of federal first amendment values, free speech in contradistinction to the states’ interest utterances, in protecting defamatory their citizens from Inc., United Welch, States Court in Gertz v. Robert 323, 347, 2997, 3010, 94 S.Ct. 41 L.Ed.2d 789 (1974), long they impose liability held that "so do not fault, without the States define for themselves the appropriate liability publisher standard of for a or broad- defamatory injurious caster of falsehood a private individ- Seizing upon ual.” language, petitioners assert that "[vjicarious liability of a in a principal punitive damages for solely defamation case based on the existence of an employer-employee liability relationship is a form of strict principles violates the constitutional established in Alternatively, Gertz.” in the absence of constitutional mandate but in light policy expression of the of free inherent amendment, in the first urged require degree we are some employer complicity defamatory active acts itsof employee liability punitive damages before can attach to the master in a In properly defamation case. order to discuss petitioners’ regard, intertwined claims in this we must employer’s responsibility examine the basis of an for its employee’s torts and the nature of in this context. begin by

We it noting that is hornbook law that an ordinarily responsible for the tortious conduct of employee committed while acting the servant was within scope of the employment relationship. This rule of respondeat superior from principal arises the relation of subordinate, "and rests upon power of control and direc tion which the has superior over the subordinate. ...” Brawner, 417, 421, 129 672, 674 Hooper v. 148 Md. A. Although liability compensatory damages master’s for beyond question, usual case is it universally is far from can, accepted that the on principles, master similar be held responsible in punitive damages employee’s for its tortious A majority acts. of courts have if adopted the rule that servant has committed a tort within scope employ of his ment so as to employer compensatory render the liable for damages, then the master likewise be liable for punitive damages if the act properly servant’s is such as to 6 liability; occasion such and this is true equally where the employer However, is a corporation.7 minority a substantial of courts declare that an employer may not be held vicar iously punitive damages liable for it either unless autho rizes, in, participates employee giving or ratifies the conduct damages.8 century rise to such controversy This old over 336, 117, E.g., Corp. Vaughn, App. 6. Western Coach v. 9 Ariz. 452 P.2d Gunn, 598, (1969); Kentucky 119 v. 234 Ala. 176 So. Standard Oil Co. of 332, 293, (1937); Blanton, 246, Ark. 210 S.W.2d 296 334 Miller v. 213 (Fla. (1948); Mercury 116, 117 Express, Smith, App. Motor v. Inc. 372 So.2d (Ga. 1979); 1948); Fidelity Farmer, 122, 131-32 Co., App. Amer. & Cas. Co. v. 48 S.E.2d 524, App. State Bank of Waterloo v. Potosi Tie & Lumber Ill. 299 893, (1939); Northrop Homes, Iowa, 20 N.E.2d 895 v. Miles Inc. of 204 (Iowa 850, 1973); Ry., N.W.2d 202,223-24 (1869); 858-59 Goddard v. Grand Trunk 57 Maine Weems, 201, 16 D.L. Fair Lumber Co. v. 196 Miss. So.2d (Mo. 770, (1944); Co., 655, App. 773 Rinker v. Ford Motor 567 S.W.2d 669 1978); Minor, 236, 964, (1921); Schmidt v. Minn. 150 184 N.W. 965-66 416, 761, Georgia, Clemmons v. Life Ins. Co. of 274 N.C. 163 S.E.2d 767 (Okla. (1968); Radencic, 580, 1943); Denny’s Kurn v. 141 P.2d 581 v. Stroud Restaurant, Inc., 790, (1975); Gray, 271 Or. 532 P.2d 794 Odom (Tenn. 1974). generally, Damages, S.W.2d See 22 Am.Jur.2d Ed.) 257-261; Cyc. 4906; Prosser, §§. Corps, (perm. § 10 Fletcher W. Law of (4th ed.), p. § Torts 12. Liability municipal corporation punitive however, damages, 7. of a presents entirely question text, an different than the one discussed in the liability and we do not consider such here. E.g., Prentice, 101, 13 261, 263, Lake R. Shore Co. v. S.Ct. (1893); Co., Cal.App.3d L.Ed. 97 Hartman v. Shell Oil 137 Cal. levying principal or other of the master punishment rests agent the acts of the on him for rep- grounds. Some cases ultimately upon philosophical "non-culpable” arguably an position resent it did not to for acts which punished should not be "commit”; of exem- imposition view the degree others some merely injecting an addi- plary damages on the master companies the cost-benefit calculations tional factor into economically prudent it might otherwise find who closer liability or to fail to exercise disregard the threat of Court, of this employees. The decisions control over their of the first amend- discussing question light while not here, on numerous occa- raised have ment considerations vicariously impose sions sided with those which servant committed master for acts of the on the regard without during employment the course of his in, authorized, or ratified participated whether the master Barrack, Stores, Safeway Inc. v. employee’s conduct. See (1955); 457, Boyer & 168, 176-77, 122 A.2d 461-62 210 Md. (1901); 161, Balt. Coxen, 366, 368, A. 162 Co. v. 92 Md. 48 (1876); B Boone, 344, & Yorktown 45 Md. 354-56 & Turn. v. (1867). O, Blocher, 277, was noted Md. 286 As R.R. Co. v. 27 Coxen, 368, by Boyer supra our in & Co. v. predecessors 48 A. at 162:

Although [holding the rule principal liable punitive damages] may in result in some cases hardship principal, yet, carefully applied, to the if it, danger injustice enforcing there is less in in cases, proper denying than in it in all cases unless principal actually participated wrong has 244, Inc., 986, Reptr. (1977); Phelps, 249 Remeikis v. Boss & 419 A.2d 992 522 (D.C. 1980); Co., 881, App. Barlow v. International Harvester 95 Idaho 1102, (1974); Mexico, 179, P.2d 1118-19 Couillard v. Bank of New 89 N.M. 459, 463-64 Inc., (1976); Richardson-Merrell, Roginsky 548 P.2d 832 v. 378 F.2d (2nd 1967) (New Law); Cir. York Hos Rickbeil v. Grafton Deaconess pital, 525, 247, (1946); Div., Gray 74 N.D. 23 N.W.2d 260-61 v. Allison 348, 747, (1977); Corp., App.2d General Motors Gulf, 52 Ohio 370 N.E.2d 15 S.W. 1105 Reed, 362, (1891); Ry. C. & S.F. Co. v. 80 Tex. Shortle (Vt. 1979); 517, 518 v. Central Corp., Vermont Pub. Serv. 399 A.2d Freeman 353, 131 (1963); Sproles, Rueping N.W. 204 Va. S.E.2d v. Chi. & (1903). Ry. Co., 116 Wis. 93 N.W. by agent

done or servant or authorized or Any liability ratified it. of the master for a tort of dependent upon his servant is the fact that in acting servant was at the time the course of his service, benefit, scope master’s and for his within the him employment. of his The master selects for that know, knows, ought service and what sort of a person investing authority he is with to act for him. acting wrong The servant is for his master when the — contemplation is done it is in of law the act of the cases, great many judgment against master. In a injured the servant would be of no value to the one punishment wrong-doer, and no to the as it could business, Every any not be collected. character of proportions, part considerable is for the most con- servants, if through agents prin- ducted and the in cipal responsible or master cannot be held punitive damages, many, it perhaps would torts, equivalent abolishing most actions of be by damages, that character of if he is to be relieved complained reason the fact that the act of was servant, individually. him done and not that, State, It is apparent thus tortious act of ordinarily employment servant done the course of his master, sense, legal act of the and in this County, George’s is not free of "fault.” See James v. Prince 315, 332, Moreover, as 288 Md. 418 A.2d corporation only through agents, logic can act its would agent imputed corpo dictate that the "fault” of the be to the determining responsibility ration for of for a purposes wrongful punitive damage act in order to render mechanism at all effective to bolster the institutional decency corporate of the defendant. The "classic diatribe” Ry., to Trunk 57 Me. this effect is found in Goddard v. Grand 202, 223-24 (1869), which, eloquence, quoting in its merits length. (4th Ed.), Prosser, p. §

9. W. The Law of Torts n. 95. is no class there to us that that it seems We confess exemplary of the doctrine of cases where corpora- to... beneficially applied than can be more them applied to as well not be might ... and it tions where to cases application to limit its at all as by the commanded directly impliedly or servant is insult a maltreat and to corporation [railroad] directly an act is cases where such passenger, or to ever ratified; no such cases will impliedly being. It has imaginary an corporation A is occur. servants; it has no voice mind of its no mind but the servants; no hands and it has of its but the voice All of its servants. to act but the hands with which mischief, well as its schemes its schemes by human minds are conceived public enterprise, hands; minds and and these and executed human All and hands. minds hands are its servants’ therefore, between the distinguish attempts, corporation; guilt and the guilt of the servant the malice of of the servant and or the malice servant and punishment or the corporation; is sheer corporation, of the punishment mind and nonsense; only tends to confuse the malice, nor judgment. guilt, Neither confound the existence, called suffering predicable of this ideal yet cover of its name and corporation. And under wickedness, and authority, as much there is fact as can be deserving punishment, as much that is And these ideal exis- anywhere found else. since whipped, or hung, imprisoned, can neither be tences — stocks, influ- in fact no corrective put since except them brought upon ence can be to bear — loss, seem to us that pecuniary it does is more beneficial exemplary damages doctrine of them, application than in its application its persons. natural uniformly Maryland has petitioners recognize

The of vicarious liabil- applied just-articulated "broad” rule in ity yet they assert punitive damages,10 cases, exception defamation we should fashion an context of by the light policy expression in of the of free fostered first end, this and the radio station amendment. To Walker that, cases, require limited defamation we some propose authorization, or ratifica degree participation, of defamatory employee act of the before particular tion of the liability otherwise, argument will attach.* To do goes, impermissibly "liability will allow without fault” to attach in a defamation case in precepts violation of the of Gertz v. Welch, Inc., Robert supra, only and "can result in a kind, self-imposed censorship of a in pernicious plain most violation spirit of the of the first amendment.” We do not find, first, agree, and petitioners’ perceived illusory context, and, constitutional imperative is second, that the policy expression by of free fostered the first state by legitimate amendment is here the twin overridden (uttered protecting interests of its citizens from defamation malice) deterring with such New York Times actual misconduct in the future.

The United States Court in Gertz addressed the others, question, among play of what role the States liability defining private the standard of for defamation of a Note, Damages Against The Punitive an See Assessment Entrepreneur Employees, L.J. for the Malicious Torts of His 70 Yale that, applied suggest generally, 11. Petitioners even if it is not the test (and Torts, Restatement, Second, duplicated § contained in Restatement, Second, Agency) apply § 217 C of the should least imposition punitive damages against principal defamation cases to the a defamatory agent. for the conduct of the Section 909 states as follows: properly against a Punitive can be awarded master or if, if, agent only principal other because of an act an but (a) doing principal managerial agent or a authorized the act, and the manner of the (b) or agent principal managerial was unfit and the or a him, agent (c) employing retaining was reckless in or or agent employed managerial capacity was in a and was acting (d) scope employment, principal managerial agent principal or a of the approved ratified or the act. essence, by minority jurisdic- represents applied Section tions See note the rule superior. upon respondeat to all claims for based 11, supra, accompanying text. public nor public neither a official who is individual sub States should retain that "the figure12 and concluded remedy legal a for to enforce in their efforts stantial latitude private a reputation to the of defamatory injurious falsehood 345-47, On this 94 at 3010. 418 S.Ct. individual.” U.S. free to basis, that States are declared the the Court then long as in such cases "so responsibility of define the standard on a liability fault” defendant they impose do without not concern the well Id. did not defamation action. Gertz liability applied by individ as principles settled of vicarious limits states; constitutional rather, it established the ual fashioning their operate when may within which the states individual so private of a legal definition of defamation own There is no wrongdoer. impose liability to on the actual employer acting under Gertz for an shield constitutional employer the through agent malice because with actual Gertz thus not wrongdoer.13 the is in such a situation is Supreme Court has Moreover, here. while the dispositive damages in of imposition punitive for the shown a dislike it rights, permitted has involving cases First Amendment liability upon a is based juries levy to such when for the falsity disregard of or reckless showing "knowledge 349, Welch, Inc., 418 U.S. at supra, truth.” Gertz v. Robert in cases such as the one Consequently, 94 at 3011.14 S.Ct. purposes Holly acknowledges public figure of this suit. 12. that he for is a regard Gertz It in this the in our view misreads 13. dissent respondeat superior, an done with "fault” the mischaracterizes constitutional sense can for act vicariously by certainly an be committed contrary. acting through agent, perceive nothing in Gertz to the its and we many to Court in We note recent done 418 U.S. Metromedia, Inc., of the defamation cases reach years corporate for the have involved suits defendants acts Welch, Inc., employees corporation. E.g., v. Gertz Robert 323, 2997, (1974); 94 41 L.Ed.2d 789 Rosenbloom v. S.Ct. 29, 1811, (1971); 403 U.S. 91 29 L.Ed.2d 296 Curtis S.Ct. 1975, 18 Butts, 130, 87 Publishing v. U.S. S.Ct. L.Ed.2d 1094 Co. Gertz, may High although 14. In define Court noted that States liability private for themselves the for of a individ standard defamation ual, liability only compensatory damages. such Court extends The went recovery permit on to damages,... "... state that the States not of ... liability showing knowledge falsity when is not based on 349, disregard or reckless universally negative for the truth.” 418 U.S. at 94 S.Ct. at 3011. The recognized implication curious of the double Court’s use permitted is that here are when such "actual Piskor, 165, 175, 352 Corp. malice” A.2d See v. is shown. General Motors 277 Md. (9th Co., (1976); Hughes 816-17 Maheu v. Tool 569 F.2d us, before petitioner where defamatory Walker’s conduct met this "actual malice” prerequisite for the imposition punitive damages, the States’ in safeguarding interest reputation of its citizens comes to the Certainly, fore. it is important to protect First Amendment rights. equally It is important, however, when the defendant has acted with malice, actual give protection to a person who been has so defamed and to discourage that kind of conduct in the future. (9th See Maheu Hughes Co., Tool 569 F.2d Cir. 1977); (2nd Goldwater v. Ginzburg, 414 F.2d Cir. 1969) denied, cert. cases, In such wrongdoer has clearly put beyond himself pale of the Amendment, First reason, and we discover no constitutional otherwise, employer merely shield an because the mali ciously defamatory falsehood was uttered its servant. The petitioners contend, do not they, nor our view can that the master in such a case constitutionally cannot be held vicariously responsible for compensatory damages. Thus, we fail perceive any to logical why reason that document acts to prohibit vicarious liability punitive for damages; and we already have noted imposition punitive that of damages on the master appropriate for the tortious acts of its servant encourages greater employer accountability and serves to prevent employee by misconduct fostering supervision. Therefore, as it is the constitutional prerogative of the states to deter defamation uttered with "actual through malice” the imposition punitive 14, of damages, see note supra, we shall apply sound and well principles established of Maryland law here and hold that it is not permit error to jury impose to exemplary liability on a master for the defam atory utterances of its servant employee where the acted in the scope of his employment and knowledge falsity with of or disregard reckless for the truth:

We turn now to address the aspect second of petitioners’ contention concerning the award punitive of in this damages 1977); (2nd Buckley Littell, Cir. 882, 1976), v. 539 F.2d 897 Cir. cert. denied 1062; (4th Appleyard Press, 1026,1030 429 U.S. Cir. v. Transamerican 539 F.2d 1976), denied, 1041; Co., cert. Carson v. Allied News F.2d 529 (7th (D.C. 1976); Schuchat, 214 Cir. Davis v. 510 F.2d 737 Cir. 1975).

141 by erred case, Special Appeals of namely, the Court to jury permitting decision court’s reversing trial and against Walker awards levy exemplary separate Show, that we contends Respondent Inc. Baltimore Radio and joint of several principles "traditional apply should been the rule damages long as has liability” punitive to However, compensatory award.15 regarding underlying view, in our this damages is such that nature multiple wrongdoers apportioned between award should be degree of upon culpability depending in a proper case status each. pecuniary axiomatic”, City "It we v. Chevrolet is noted Wedeman Co., 524, 531, (1976), appro "that in Md. A.2d 12 278 366 awarded, over and priate [exemplary] cases are teach punish wrongdoer, compensation, above full him deter repeat wrongful his and to others not conduct states, Many from engaging same conduct.” adopted the recognition principles, rule these have may wrongdoers apportioned be between by providing varying either amounts such awards against some the defendants levying exemplary damages view, In most but not others.16 our sensible approach to be subject, punitive damages, to the order effective, degree fair of culpability must relate to the ability party’s exhibited a and that particular defendant statute, pro By joint pays 15. rata share who more than tortfeaser compensatory his co-defendants. award contribution from obtain (1957, Vol.), Repl. §§ Md. Art. 16-24. Code (D.Del. 1974); See, Dixon, e.g., F.Supp. v. Kim Davidson v. (1943); Chinn, Inc., 857, 133 Phelps, Cal.App.2d Boss & P.2d Remeikis (D.C. Roth, 1980); Ky. 986, App. L & N R.R. v. 130 419 A.2d 991-92 255, 135 759, 114 (1908); Halvorson, 117 Minn. N.W. 818 S.W. 264 v. Nelson (Mo. 1966); Cook, (1912); Lewis, v. ex Hall v. 400 S.W.2d 39 Bowman State rel. Co., (1940); 435, 102 Tripp Dragstedt Edquest v. Mont. 1 & 110 P.2d (1933) Short, Riviera, 446, (dictum); Inc. 80 19 Hotel v. 93 Mont. Nev. Inc., P.2d 637 Industries, 505,396 (1964); Sales v. Newco P.2d 855 Sierra Blanca Co. 26, (1975); Aron, 472, 59 Misc. 109 N.M. 542 P.2d 52 Latasa v. 88 (1933); Stride, 435, (1908); McCurdy Hughes, 512 N.D. 248 N.W. N.Y.S. 744 Mauk v. 269 Or. v. 63 89, (1903); Brundage, Fredeen v. 68 Ohio St. 67 N.E. 152 Co., 369, (1974); Credit 145 525 166 Fredericks v. Commercial P.2d (Tenn. (1928); 380, Huckeby Spangler, 563 S.W.2d 555 S.C. 143 S.E. 179 v. (1908); 89, 113 1978); Ry. Thompson, S.W. 144 Louis v. 102 Tex. St. & S.W. (1963) (dictum). also, 353, Sproles, 410 See Freeman v. 204 Va. 131 S.E.2d Annot. 20 ALR 3d. 666 and case service. later 142 essence, damages, fíne, a civil pay. represent Punitive such, C.f., imposed

and as should be on an basis. individual State, 480-87, 632, Logan 460, v. Md. 289 425 A.2d 642-46 (1981) prevalent penal modern (espousing philosophy of end, punishment). long individualized it To this has been the Maryland exemplary sought, rule in that where an award is evidence of the defendant’s financial status is admissible may jury provided fixing order that the be proper basis for punishment particular wrongdoer. E.g., that Heinze v. 423, 431, 917, (1942); Murphy, 180 Md. 24 A.2d Schloss (1937). Silverman, 632, 643, Md. A. Thus, entirely conceivable, out, it is petitioners point apportionment without of punitive damages, "the admission of evidence of wealth of an affluent defendant can be devastating impecunious to an co-defendant who well And, be far less culpable.” by as noted the United States regard, verdict, Court in by this "the enhanced defendant, evidence of the wealth of one might be collected from respond, the defendant the least able to least all, culpable of who would thus be mulcted in dam- punitive ages, the might by amount of which have been measured evidence of the wealth of another Washington defendant.” Lansden, Gas-Light 534, 552, Co. v. S.Ct. Therefore, 43 L.Ed. 543 while a defendant who culpable may compensatory is least remain for all liable damages plaintiff, suffered of a given purpose award, justice allowing there is no similar recov- ery damages of such in an action several defendants upon based evidence of the wealth and blameworthiness pay exemplary one other than he who must award. Our predecessors recognized problem Schloss v. Silverman, (1937), where, 172 Md. 192 A. 343 after battery determining that a malicious committed a mem- beyond ber scope of a had occurred of the partnership (thus exonerating innocent partnership business and its members), the case remanded for a new trial as to the was wrongdoing partner. explained The Court jury may in awarding exemplary

[t]he ... suffi- which would determining amount defendants, influ- have been the ciently punish individual the two net worth of by the enced since it cannot And partnership. the defendants "pun- to make they attempted that be assumed offenders, it crime”, than the rather fit the ishment awarded they would have that does not follow defen- one damages against exemplary amount $8,000, they did less than dant worth $68,000. 192 A. at [Id. at over three worth 348-49.] permit entirely proper it is we hold that

Accordingly, defen among multiple jury apportion Special Court of dants, judgment of the and shall reverse the regard.17 in this Appeals Special of the Court of

Judgment part affirmed Appeals part. reversed be paid equally Costs to parties. dissenting: J.,C.

Murphy, major- part disagreement I no with While have governing legal principles ity opinion enunciating from the I dissent damages, apportionment punitive Walker’s damages against majority’s imposition Show, majority’s Inc. The Radio employer, the Baltimore doctrine, accepted constitutional decision flies in the face of recovery presumed i.e., permit that "States not on a liability is not based least when punitive damages, at disregard for the falsity or reckless showing knowledge 323, 349, Welch, Inc., 94 S. truth.” v. Robert Gertz (1974). Ct. 41 L. Ed. 2d 789 to balance Gertz, attempted

In Court state legitimate self-censorship with need to avoid media Any just contrary apportionment rule articulated indications Gall, perceived Md. which have been in the addendum to Nance v. hereby (1946), 674-77, Meleski v. Pinero Compare disapproved. 51 A.2d 535-36 are 784, 794-97 526, 544-51, 424 Restaurant, App. A.2d Md. 29, 43-44, 344 (1981), Inc., App. A.2d Properties, Md. with Cheek v. J.B.G. 180, 189-90 by defamatory individuals harmed compensating

interest a action a attorney in civil for Gertz was the falsehood. police a officer. The family son had been killed whose Welch, Inc., defendant, publisher the of a John Robert was Society Birch In of its the publications, newsletter. one efforts behalf of the defendant characterized Gertz’s on family conspiracy against as of a law part communist addition, falsely publication enforcement In officers. and the "architect” called Gertz a "communist fronter” Gertz, When sued defen- police "frame-up.” officer’s privileged dant that were under claimed its statements standard, Times "actual malice” New York v. Sullivan concern, public because statements with matters of dealt notwithstanding public the fact that Gertz was not a official public figure. or rejected argument,

The Supreme holding Court this malice,” private prove individuals need not "constitutional to leaving and it to the states "define for themselves the publisher a or appropriate liability standard of for broad- defamatory "long they caster of falsehood” as as do not U.S. impose liability (emphasis without fault.” 418 at 347 added). to holding, referring punitive In this and explaining damages, the Court state interest stated no compensating plaintiff injury reputation a for to extends injury. Additionally, further actual Id. at 348-49. than especially compelling danger Court noted the allowing jury proof of loss in First Amend- awards without ment cases. Id. at 349-50. reasoning Corp. this Motors

We embraced in General (1976), Piskor, Md. 352 A.2d 810 where we injury actual compensation allowed a to "recover for plaintiff he damages unless meets punitive ... but not presumed knowing falsity or reckless the New Times York standard Sindorf, Co. v. disregard for the truth.” Accord Jacron Sales Md. 350 A.2d 688 individuals, it is axiom- Although private Gertz dealt with be awarded atic that if individual cannot private a malice,” nei- damages, showing a "constitutional absent The Holly. record Dennis figure, ther can a such as public Johnny against malice” finding reveals a of "constitutional liability imposition and the Walker liability solely on vicarious employer based majority The principles. bootstraps respondeat superior full-fledged finding liability into purely policy-based not, in However, imputation my opin- fault. fault based on Any ion, First sanction appropriate in Amendment cases. fault, fault, merely opposed on actual imputed based it, As I see the balance skirts the thrust of Gertz. essential majority’s fragile opinion one and the reached Gertz is equilibrium. maintain this nothing does dispositive” of Gertz as "not Dismissing language the clear explanation, petitioner’s describing, without "illusory,” majority declines claims as constitutional Restatement, Second, of adopt the test contained Torts, (1979), § provides: which be awarded properly can

"Punitive of an against or because act principal a master other if, if, only an agent but (a) managerial agent or autho- principal the a act, or doing rized manner the the and the (b) or agent principal was unfit and agent or managerial employing was reckless in him, retaining

(c) managerial agent employed was employ- in the capacity acting scope and was ment, or

(d) managerial principal agent or a ratified or act.” principal approved the test, by degree employer requiring The Restatement some authorization, employee’s of an participation or ratification liability to the defamatory attaching punitive before act impelled by mandate constitutionally test, Therefore, adopt I Restatement Gertz. would employer, punitive damage reverse award a new remand for trial on issue. Judges me to state that Eldridge and Davidson authorize they join expressed me views herein.

Case Details

Case Name: Embrey v. Holly

Court Name: Court of Appeals of Maryland

Date Published: Mar 23, 1982

Citation: 442 A.2d 966

Docket Number: [No. 71, September Term, 1981.]

Court Abbreviation: Md.