*1 HANRAHAN KELLY 217, Sеptember Term, [No. 1972.] May 16,
Decided 1973. *2 argued The cause J., before C. Murphy, Barnes, Digges McWilliams, Singley, Smith, JJ. Levine, W. appellant. Giles Parker Peter Parker for Somerville, William B. with whom were Douglas G. and Smith, Worrall brief, Somerville & on the Case appellees. J., opinion C. delivered the
Murphy, of the Court. Barnes Smith, JJ., J., dissent and dissenting filed a Barnes, opinion Smith, J., in which page concurs at 39 infra.
Appellant Edward M. (Hanrahan) Hanrahan filed suit in County against Circuit Court for Baltimore W. Boulton Kelly (Kelly) and the architectural firm Kelly, of Tatar .& (Tatar Kelly), Inc. seeking damages alleged & for an libel. of libel arose from a Kelly letter from Hanrahan 18,1970, dated November which read: HANRAHAN,
“MR. answering we are your preposterous 16, 1970, of November not to dignify register but to our disavowal of its content. letter, you “Your know, well totally fabrication, devised as an attempt obvious to extort period a settlement. It follows a of harrassment and upon apparent threats other Rased fabrications.
“Any your part support your actions on scheme only vigorously extоrtion will be resisted but may also will be countered proceedings whatever appropriate be remedy an extreme abuse of judicial process.
Very truly yours, /s/ Kelly, For Tatar W. & Boulton WBK/vm
cc: Mr. N. Antonelli Mr. R. Goldman P.Mr. Moser Mr. R. Maher” *3 by jury, Judge The case was heard a Walter M. Jenifer presiding. plaintiffs case, theAt conclusion of the the court in Kelly. directed a verdict favor of At the Tatar & case, the judge conclusion of entire the trial ruled letter the se, per charging extortion, as the criminal offense of jury and submitted case to the on the issues of privilege (terms synonymously herein), or conditional used damages; jury malice and returned in a verdict favor of remaining defendant, Kelly. Judgment in entered favor of both defendants. appealed, alleging Hanrahan error specified in evidentiary rulings instructions to the and issue, however, court. No as raised to the directed and, Kelly, verdict for Tatar consequently, & that matter is appeal. not before us on trial,
At evidence showing was adduced that is a extortion in Maryland (Maryland criminal offense (1957, Code Repl. Vol.) 561, 563); Article been had §§ typed Mercer, secretary Vivian in the office of Tatar & Kelly, possibly and by Dorothy Daniels, read supervisor staff Kelly; copies secretarial of Tatar & letter had persons been sent to the four indicated on the letter; copies and George McManus, were also sent to Solomon, Chase and Abraham Adler. against alleged libelous was mailed to be
The letter dispute between centered on background of events which (Tatar), F. Kelly, Seymour Tatar Dominic and Hanrahan Kingdon Gould, (Gould) (Antonelli) and Jr. Antonelli property concerning interest Hanrahan’s asserted Mt. Place Vernon as the Park Plaza located known long City. had been Hanrahan of Baltimore section Plaza, public having Park handled connected with the prior purchase for former owners to relations two 1966, by Associates, Plaza a limited property, Park general partnership, and were in which Antonelli Gould property partners. leased the Park Plaza Associates corporation in which Company, a the Park Plaza controlling Gould. was owned Antonelli and stock promotional developing for the been ideas Hanrahan had concept,” Plaza, “mansion and specifically a market Park professional public and assistance relations rendered Company, promotional help to the Park Plaza president. spring subsequently its In the became began occupying “penthouse” fifth floor Hanrahan residence and office. Park Plaza his Company Park Plaza was not successful its 2, 1970, operation January and terminated its business on repossessed by Plaza the Park Plaza was Park which time non-payment rent. Associates Park to live Plaza Hanrahan continued develоp plans use, presented he for its which continued directly through attorneys,. their Gould Antonelli (Maher) and Mitchell L. Maher Baltimore Ronald *4 Washington, February (Blankstein), Blankstein D.C. In setting 1970, proposed up development new Hanrahan Plaza; company manage the which to Park a contract under percentage Hanrahan would receive a of the revenues rental up rejected drawn Maher. This contract was at a was meeting April on with Antonelli 1970. As a result of that meeting agreement up, signed by a new was drawn Hanrahan, by given and which Hanrahan was Antonelli up appeared option May be an what to to 1970 for purchase agreed Park of the Plaza. It was also rent-free remain as a permitted to be Hanrahan would meeting 1, 1970. At a Plaza until June Park resident writing, extended, in to June option 9, 1970, was May on when exercised expired date on that 1970 but Hanrahan.1 Park May, Hanrahan discussed the еnd of
Toward the Historical Kelly who was then Chairman Plaza with of Baltimore Preservation Commission and Architectural building his expressed an interest City. Kelly relocating Kelly Tatar, its offices. firm, architectural & attempted Kelly in his ideas for the to interest Hanrahan meeting on June arranged a with Antonelli Plaza and Park Kelly and and Hanrahan was out of town 1970. Antonelli met with Blankstein. began negotiations with Kelly subsequently and
Tatar Plaza; purchase Park Hanrahan was not Antonelli to Kelly’s plans. with their To assist in Tatar’s and included Kelly employed attorneys M. Robert negotiations, Tatar and addition, In (Moser). (Goldman) Peter Moser and Goldman officer, accountant, (Soloman), an Soloman Chase assist was directed to of Tatar director & Plaza purchase the Park Negotiations for the matter. 1970, leading early part July commenced transferring Plaza 14,1970, the Plark August dated contract Tatar, Kelly and partnership interests Associates’ by Blankstein individually. had been reviewed The contract Antonelli, Goldman, and Soloman Moser Maher for things, provided, among other Kelly and Tatar. It Kelly and free of tenancies which Plaza was to be the Park including approve, Hanrahan’s. Hanrahan Tatar did not instead, Kelly’s request; he insisted that move at refused to legal battle to Plaza. An extended rights in the Park he had premises then ensued. Hanrahan evict Hanrahan from the Decker, Boyd Henry M. counsel, employed A. Cookman correspondence, interest, brief Jr., represent his but after eviction they the case. Maher initiated withdrew from George employed attorney, proceedings; Hanrahan another agreement orally Antonelli that the extended. 1. Hanrahan testified beyond ever extended June 1. denied that it was *5 (McManus), the matter with F. McManus who discussed 5,1970. Moser on November 16, 1970, Hanrahan, with some advice from
On November Tatar, reiterating McManus, and his sent letter to previous claims. It read: Seymour:
“Dear Bo and “Despite approached you, Bo, only I the fact that your capacity generate municipal for official to support my enterprise, agree I did later to let — you partners deal my both into with me in ownership development. Park Plaza and “Eventually, agreed your representing I also our finalizing mutual interests the terms purchase conditions of the contract with Park Plaza Associates. partnership, following: I
“Pursuant to our did the —(1) Continued make you available to the three
years my research, analysis ground- you work that publicly have acknowledged from property’s development po- basis of this your therewith; tential involvement — (2) operations, Devised certain tenant divisions licensing formulae; — — (3) negotiated Produced tenants and leases
least one of already which is developing sig- — property nificant revenue in fact: five square-foot times the yield from any former Park lease; Plaza —(4) personally expense Carried continuing occupy, repair, protect maintain and
property, and prospective further unearth ten- ants.
“However, you have breached the partnership trust — imposed upon you by failing so far to furnish me with:
— (a) copy purchase the contract of re:
4, Madison, West Charles; 810 and 812 N. — (b) your acknowledgement written
my therein; interest —(c) notification of settlement date therefor. “Consequently, you I now demand that set the straight by enabling my record further active — participation, buy my price or out interest at a commensurate with fair its market value. you comply
“In the event that fail to with this demand, shall, remedies, I in addition to other 73A, due file Bill time under Article Section for my right accounting partnership’s to an affairs.
Very truly yours, Edward M. Hanrahan” Copies following day by of this were letter sent Hanrahan to Antonelli and Maher.
Kelly turned Hanrahan’s over letter to Goldman who rеsponse, by Moser, drafted a which was edited and sent to typed to be and mailed. This is the letter of November upon Copies which Hanrahan sued. were sent Antonelli, Maher, Goldman, Moser and as indicated on the original. day, copies Later were sent to McManus and Soloman. —
The efforts evict Hanrahan continued unsuccessfully. attorney, experienced Another in eviction proceedings, (Adler), employed, Abraham Adler received, preparation case, Kelly’s file which copy Kelly’s included a Ultimately, November 18 letter. March, Hanrahan left the Park Plaza in 1971. synopsis copious
This brief evidence the record adequately capture cannot the details of involvement recipients named Kelly’s say letter. Suffice it to that we have lengthy studied the us, record extract submitted to that, are convinced interactions, numerous each of the recipients of that fully existing letter was aware of the dispute. Privilege
I. Conditional per finding was libelous se is the letter copies Kelly’s uncontested, and the evidence that heretofore named to the seven individuals were sent appeal, issues, below and on The main both uncontradicted. or involve the defense conditional mutuality sender and the of interest between the based on a Md. recipients. Robinson, As we noted Simon v. 206, 154 (1959): A. 2d
“ duty invari- concerning interest or . . . the cases communication hold that ably state only privileged when the shows that occasion communicating party recipient have *7 duty subject matter, some or mutual interest respect with thereto.” recognizes delineated that under conditions
The defense variety subject an infinite of factual Simon, but to defamatory privileged circumstances, are from words absolutely, but that “the liability, not on condition interest, recipient and the publisher and the have a common reasonably protect to is of a kind calculated communication Prosser, (3d. 110 at ed. 809 further it.” Law Torts or § 1964). privilege, which we Another formulation Club, previously noted Stevenson v. Baltimore Baseball (1968), 2d is Md. 243 A. 533 Inc., 250 (1938): of Torts 596 Restatement § conditionally privileged when the “An occasion lead are such one several circumstances particular persons having a in a common interest correctly reasonably or subject matter believe sharing facts exist which another such is entitled know.” common interest recognizes to the c above section that the Comment common property, in relation interest can arise to interests professional dealings.2 For business and a brief review of our previously recognized privilege arising by 2. We have subject matter interest can inhere in reason of common business
29 prior issue, Robinson, supra, decisions on the see Simon v. 206, 154 221 A. 2d Md. at at 915. subject type
Mutual interest in the matter is but one qualified privilege recognized in law of defamation. See Club, Inc., supra, Stevenson v. Baltimore 250 Md. Baseball general 243 A. 2d governing at 536. The rules all privileges are, however, finding conditional well-settled. A negates conditionally presumption conditional plaintiff of malice and shifts burden to the to show Peurifoy Congressional actual malice. Motors, Inc., Md. A. 2d may jury question. be a Malice 87, 93-94, Cutter, As stated Fresh v. A.
(1890): question
“It
is a
the Court whether
good
if
statement made
faith
without malice
privileged.
right
is thus
But the
has the
notwithstanding
privileged
character of the
go
jury,
communication to
if
there be
tending
malice,
evidence
to show actual
as where
unreasonably impute crime,
the words
or the
occasion of their
indicate, by
utterance is such as to
unnecessary publicity
otherwise,
its
purpose
wrongfully
plaintiff.
Or,
to defame
.
. .
malice
may
by showing
be established
that the
contаined matter not relevant to the
.
occasion.
. .
Expressions
in excess of what
the occasion
per
away
privilege,
warrants do not
take
se
but
may
such excess
be evidence of malice . . ..”
*8
finding
express malice,
Absent a
privilege,
a conditional
if
dealings
publisher
recipient.
Lake,
between the
and the
See Deckelman v.
533, 131
(1926); Bavington Robinson,
149 Md.
85,
A. 762
v.
“If find privileged under the question the letter forth, you if set I have hereinbefore standards persuaded has not further find that you by preponderance affirmative evidence a fair express malice on behalf of there was actual or that writing letter, your said then the defendant inbe favor of the defendant.” verdict should jury, as previously instructed the court had Since the per se, it Kelly’s law, letter that matter of only by finding wholly apparent a conditional letter, recipients of his and the between to exist preponderance of evidence establish the absence Kelly’s part, jury, under the could the malice on actual jury instructions, Kelly’s find in favor. Since the court’s presume doing favor, we so Kelly’s and since found jury’s instructions, plain it is that the the court’s it followed the communication to its conclusion that verdict reflected copies persons of the letter was who received the seven Robinson, privileged and actual malice. without Simon Cf. supra. Appellant finding directly. he does attack this At trial not judgment made for directed verdict n.o.v. no motions jury’s appeal, argues, verdict was On he law, fell into contrary to but that court the facts evidentiary prejudicial and reversible error reason its rulings Specifically, jury Hanrahan claims instructions. instructing that the erred in that: court defendant, determining Mr. “In whether or not the writing Kelly, of his was motivated malice 18, 1970, you should consider of November
31 response it was a to a letter of the 16, November 1970.” dated have been
Hanrahan maintains should only Kelly’s to consider letter November 18 in instructеd law, determining question however, of malice. The is to here, contrary where, privilege qualified the issue of properly 285, Vance, has been raised. 262 Md. See Orrison v. (1971), holding 295, 573, A. 2d all 277 578 relevant determining in circumstances are admissible existence of privilege. malice defeat the actual sufficient to conditional Hanrahan next error claims court’s instruction “subject matter,” which it defined the as that term term qualified privilege upon used in defense of based subject matter,” encompass “mutual interest alleged partner as a in the Park “Hanrahan’s interests Plaza venture, rights promotion same, his in the and his building as a status tenant situate thereon.” Considering complex background case, factual we entirely proper. think the court’s instruction was In so concluding, phrase we note that the “mutual interest in the subject given explanation by matter” was further the court qualified privilege, in its instruction on viz., fashion, “Statеd another a communication is conditionally privileged when the circumstances induce a recipient reasonable belief that the is one publisher legal duty to whom the is under a publish defamatory person matter or is a whom its is otherwise within the general standards of decent conduct.” Much court’s instruction on the matter prior was taken verbatim from our cases. See Robinson, 206, v. 221 supra, 915; Simon Md. at A. 2d 154 Maryland Co., Henthorn v. 226 Railway Western Md.
507-508, 174 A. Reviewing 2d 179 entirety, instructions their Paper Jones v. Federal Board Inc., Co., (1969), Md. A. 2d Kauffman Love, (1969), light A. 2d 700 of all the evidence, we find question that there was a factual as to the *10 Adler, Blankstein, for of a
existence go Solomon, McManus, and sufficient to to the Antonelli properly jury instructed. jury, and that the was to Secretaries II. Publication instructing erred in next claims that the court Hanrahan the that: . . a law . . the fact that the letter
“. . as matter of Mercer, secretary in the a typed Vivian may Kelly, and havе been and of Tatar office secretary in Daniels, Dorothy another read mailing not prior thereof does to the office said and does publication said letter a of constitute defendant, liability part of on not sustain are con- Kelly, as two secretaries Mr. so far those cerned.” that such instruction argues with much force
Hanrahan 93 Md. contrary holding Schooley, our Gambrill v. to exception to the (1901) and within the Gambrill A. 730 subsequently recognized in Greenbelt Domchick v. rule (1952), 2d Inc., 200 Md. 87 A. Services, Consumer Motors, Inc., supra. Congressional Peurifoy v. transcription of typing a we held that In Gambrill secretary private defendant’s by the being defined, we publication (publication a constituted “ defamatory found, of ‘the communication there ”), publication was person’ and that such third words some — support finding a of libel even i.e., sufficient actionable case, then delivered to the writing was, as in that if the persоn. being any other In made known to plaintiff without arguments (1) rejected there advanced: holding we so secretary performing process mechanical communication; (2) perception without secretary’s nature confidential view services, universal employment, and the almost use such creating sufficiently strong policy reason existed an rejecting policy publication. In exception rule of to the said, 61, 48 A. at 731: plea, we prevalence business customs “Neither pressure methods, of business which nor the assistance, compels stenographic resort can legal nor make that make that which is illegal, ” would otherwise be actionable. innocent which added.) (Emphasis States, impression in of first the United
GambriU, case English point, two which are here reviewed the cases on Walter Hill & pertinent. Pullman v. Co., [1891] Q.B. held of a libelous letter to actionable the typed it, boy office who clerk who transcribed and copied letter-press Freres, In it in a book. v. Goblet Boxsius [1894] *11 Q.B. 843, the English court recognized an exception Co., supra. to the rule of v. Walter Hill & Gambrill Pullman 62-63, distinguished 93 Md. at Boxsius, summarized A. at 732:
“There, the libellous letter dictated solicitor, acting direction of in behalf of and at the client, copies in the his were made as case very distinguished the case mentioned. Court through holding, two clearly Hill, from Pullman v. his judges, the solicitor owed to
of the same that instructions, if and that duty client the to act on his directly with the solicitor had communicated the plaintiff, have been communication would the discharge duty, that as privileged, and that he could office, ordinary the in the he did other business of losing privilege. way But without there was no privilege Hill, in and there is question of Pullman v. duty appellant here, owed no
none as the added.) (Emphasis to one.” matter as a Thus, in we declined to view Boxsius GambriU, Pullman, in but weakening general rule declared of the exception distinguishable clearly it instead as a classed general privilege. The rules of rooted in the well-established general England, Pullman, in became the rule in established in Maryland, declared rule GambriU. Boxsius-type exception
Fifty later, years presented to in us concrete form Domchick v. Greenbelt Inc., In Services, supra. appellant Consumer Domchick, employee (an discharged theft) alleged for libel based on — writings by general manager a memorandum to the pertaining appellant’s Board of discharge Directors and a — stating him letter to the reasons therefor both of which typed by general manager’s were secretary. We recognized writings each these out duty arose of a general manager which the corporation owed to the and its directors, board of 834; at 87 A. 2d at further, duty that the letter was the result of a which the general mаnager appellant, owed having the latter requested writing grounds “notice in discharge, his request being . .. with Personnel accordance [this] Corporation.” Md. Policies of the A. 2d at 833. duty general manager Because of the owed connection writings, held conditionally with the we the communications privileged. English recognized Just had courts privilege exception existence an created Boxsms rule, recognized we to the Pullman conditional exception created an Domchick Gambrill said: rule. We
“
[Appellant]
. ..
further contends that the dictation
stenographer
of memorandum and
letters
privileged
support
the case
took
out
class. In
contention, he
of this
case
cites the
of Gambrill v.
*12
93 Md.
48 A.
Schooley,
L.R.A.
which
stenographer
held that the dictation of a letter to a
publication,
privilege
was
that
there was no
stenographer
employer,
between the
her
that
such a dictation in that case
took
privileged
out of
In
communication
class.
case, however, the defendant dictated a libellous
stenographer
letter to his
had
it mailed to plaintiff,
question
whether,
and the sole
was
under
circumstances,
such
dictation
stenographer
publication
letter, as,
was a
of
course, the defendant could not have been liable for
a letter written to the
had
someone
not
that,
case,
held in that
as
else
it. This court
seen
matter,
a
stenographer
in the
it was
had no interest
privilege in
publication.
question
no
There was
hold that
all, and we would be loath to
at
that case
respecting
privileged
the affairs
communications
must
corporation or a business
be written
a
dictated,
universal custom.
as is the
hand and
using
ordinary
manager]
general
was
.
. .
[The
something
doing
office, in
which
of his
facilities
office, and
of his
to hold
came within the duties
about
memoranda
such
dictating
letters
stenographer
awas
to his
matters
and,
person
them,
a
had no interest in
them to
who
ordinary
therefore, they were without the
a
had,
have
leads
they would otherwise
only
termed ridiculous.”
which can
be
conclusion
added.)
43-44, 87
(Emphasis
A. 2d at
Peurifoy v. factually similar to letter Domchick. communication Motors, vice-president Congressional secretary allegedly direction, typed libelous letter at the latter’s discharge, Peurifoy’s and the letter detailing the reasons being Peurifoy, without then hand-delivered was person. Peurifoy When was other communicated to years Domchick, had well after it become decided seventeen arising Maryland out of communications established relationship enjoy employer-employee privilege arising from privilege, whether it be classified as moral), subject duty (legal common matter interest communication, generis рrivilege. or as a sui See Club, Inc., supra, Baseball v. Baltimore Stevenson Therefore, discharge Peurifoy’s A. 2d at 536. typed by employer’s secretary, employer, from his express liability showing malice. immune from absent privileged, and the The occasion of the communication holding in essence our Peurifoy reiterated the Boxsius dicta, namely that “the recognized, Gambrill, we rule if the . . . duty, . . and ... . . the [defen- . . owed [defendant] plaintiff, directly with the communicated had dant] *13 36 privileged, would have been and ... he
communication
could
discharge
duty,
office,
that
as he did other business of the
ordinary way
losing
privilege.”
without
Gambrill v.
62-63,
Schooley, supra,
We
some
reflected
case, may
engendered
have been
instruction
the instant
by
in Peurifoy
the flat statement
that “there was no
...
the dictation of the letter .. . to . . .
publication
[the]
stenographer
transcription
her
of the letter.” 254 Md.
(Emphasis added.)
A. 2d at 339.
We think that a
reading
particularly
heavy
Peurifoy,
fair
its
reliance on
distinguished
readily
Domchick,
Gambrill,
which
makes it
evident that we concluded that there had been no actionable
holding
publication
the circumstances of that case. Our
represent
departure
general
Peurifoy does not
from the
rather,
Gambrill;
exception
it
rule of
follows the Domchick
that while
Gambrill,
i.e.,
such communication is a
publication
publication,
it is not an actionable
where an
qualified privilege
unabused
exists.3
us,
Relating
governing law
instructions before
the two secretaries “does not
(that communication to
publication
not sustain
of said letter
does
constitute
defendant,
Kelly,
part
Mr.
far as
liability
so
on the
concerned”) we
find
are
do not
those two secretaries
error. While
statement
reversible
aas matter of law a
communication was not
Maryland
we
technically in
with the law of
as
conflict
today,
error,
light
we think such
of the overall
reaffirm it
dоes
of the instruction
such communication
correctness
liability
part
(or, we
on the
of the defendant
not sustain
split
authority
3. There exists a
on communication of libelous matter
holding
publication,
holding
secretary,
some courts
no
others
publication except
privileged
Am.
in the situation of a
communication. 50
Slander”)
Slander”)
167, 668-69,
(“Libel
(“Libel
Jur. 2d
53 C.J.S.
§
§
(1950)
81, 131; compare, 2
L. Rev.
S.Car.
with
So. Cal.
L.Q.
accommodation between
We consider
competing policies:
the latter
better-reasoned
protection
individual
unwarranted
from
captured by
defamation;
policy,
privileges,
behind all defamation
and the
Judge
directness
some words need
“[t]hat
McWilliams with characteristic
saying.”
Vance, supra,
To the substantial correctness of the only finding, we law, need look to the court’s as a matter of qualified privilege existence of as to Moser and privilege exist, Goldman. Where a conditional is so found to “Any appropriate reasonable and method of publication may adopted purpose be which fits the protecting particular interest. The dictation stenographer of a [citing business letter to a . . . among may privileged
Domchick be aon others] proper occasion.. . . cases,
“In all such fact that incidentally communication is by read or overheard person to whom there publish is no it liability, will not result if adopted the method appropriate a reasonable one under Prosser, circumstances.” supra, at 820.
There procedure was no sending evidence that the used for reasonable; the letter was not contrary, on the all the typing by evidence was that Mercer, under supervision Daniels, inwas accordance with the normal procedure mailing copies office for correspondence. publication The fact of the to the other five persons, possible malice, and of deprive Kelly would not immunity, single as to act of secretaries, furnished privilege as Goldman and Moser.
III. Admission of Evidence Hanrahan claims that the lower court committed prejudicial refusing error to admit into evidence dictionary (The definitions Dictionary English Oxford unabridged dictionary)
Language, Webster’s newspaper publications” (among “current articles other Annie”) illustrating them, strip Orphan the comic “Little meaning of the word “extortion*.” As this evidence was purpose proving proffered used the — word a libelous context conclusion confirmed lower court when it instructed the the letter — appellant injured by per the court’s se ruling. objects
Secondly, Hanrahan to the court’s refusal to admit Kelly’s All complete financial statement evidence. portions except (a) *15 of this document were read into evidence Kelly by by a held and wife the value of residence his the entireties, (b) figure (which and the net worth included the residence). Kelly’s in value of We think the court was correct excluding ruling property. its consideration of entireties See 581, 588, (1953). 202 Md. A. If Callis, Lake 2d 319 v. proffer excepted were two items directed to the issue punitive damages, objection by rendered is moot jury’s Kelly. if, appellant reason of the verdict for Of as argument, proffer excepted contended oral on of the two Kelly’s credibility, were items directed to the issue of and comparison Kelly intended for with the financial statement prepared case, portions for this we think the read into amply purpose. evidence fulfilled that Lastly, Hanrahan claims court erred in “[t]he allowing lawyers testify the Defendant and his as to what they, them, meant the use of the words in the 18th, though letter of November even ruled that Court ” per the words were The ‘libelous se.’ answer this short testify, contention is that did lawyers, not so and his Moser, objection. Lacking Goldman and testified without objection, question appeal. Maryland is not before us on (d) (2), Rules 522 885. conclusion,
In view unnecessary of our it is for us to consider question Hanrahan’s contentions on the damages.
Judgment affirmed; appellant pay costs. Barnes, J., dissenting: my because, opinion,
I dissent court erred in lower instructing jury possible a matter law reading by Dorothy letter Daniels did not of that the defendant constitute liability part, Kelly, which would his sustain on such publication being qualified privilege, rather than within proper under to leave issue to the instructions. excepted duly Counsel for the Hanrahan to this charge was, my error the lower error court’s this opinion, prejudicial principal one. This is the and most error, opinion obvious but I also of the am that there were require other errors court’s lower which would a reversal and a new trial. agree analysis by
I majority prior with the decisions of this Schooley, Court Gambrill 93 Md. v. (1901);
A. 730 Services, Domchick Greenbelt Consumer Inc., (1952); 200 Md. A. 2d 831 and Peurifoy v. Congressional Inc., A. Motors, 2d 332 Gambrill, hand, distinction between one on the other, on the as the Peurifoy, secretary, Domchick so far Mercer, concerned, made, properly Vivian is i.e., that in privilege there no Gambrill conditional involved whereas Peurifoy Domchick conditional was involved. *16 majority
The properly has also observed that there was no departure intended in in Peurifoy regard from the rule this in language announced The in Peurifoy Domchick. that publication by there was no the the dictation of letter to the stenographer that meant there no actionable interpretation publica,turn. proper This language that of supported by is Peurifoy language the preceding paragraph where it Peurifoy is stated: appellant
“The contended in and in his brief the argument ‘publication’ before us that there was a of alleged the libel dictation of the ... to his letter secretary . .. .”
254 Md. 2d 255A. at 338. placing “publication” quotation of the word marks that was used in sense of actionable indicates this word the publication and in its technical sense in the law of libel. — Reporter interesting note that Atlantic It is also Key reported, is Peurifoy A. 2d where Number 25 correctly “Libel and Slander” indicates that the dictation stenographer publication “did the letter not constitute considering purposes establishing libel, letter for (Emphasis added), correctly privileged.” thus interpreting language question. charging
The law is well of a crime established punishment may be for which therе indictment is imports malice, requiring a per directed se damages, for at verdict for least nominal course, of the unless, of crime is contained scope qualified within the which is communication privilege. Corp., 242 unabused Fennell v. G.A.C. Finance 209, 218, (1966); State, Md. 218 A. 2d v. Richardson (1886); 158, 178 60 Md. Negley Farrow, v. Judge Irving, Court, State, supra, for the In Richardson v. stated:
“An evil is a inference and intent conclusive publication presumption law from the excuse,” citing Negley libelous matter without Judge approval, with where Farrow, supra, Robinson, Court, stated: being and its per libellous,
“The article se established, publication being only question which, damages, jury, was the amount before circumstances, plaintiff was under all entitled recover.” equally
It well established that when a defense, privilege the defendant is asserted writing within of the libelous to one not scope qualified privilege, is lost and the ordinary regard apply. per rules in to libel Love v. se Co., (S.D. 1939); Supp. 26 F. Miss. *17 Cos. Commercial ins. 1957); (Fla. 2d 79 295, 98 So. No. Union Local Teare v. 175 So. Miss. Co., Oil v. Standard Gardner 363, 182 S. Nance, 165 Va. Montgomery Ward & Co. (1937); at 187-88 and Slander (1935); 53 C.J.S. Libel § E. properly instructed court my opinion, the lower In perse of November the letter typed the Mercer, who stenographer, Vivian and that 1970, was within the of November letter however, erred, The lower court law. privilege as a matter of Dorothy fact instructing jury that in also Tatar personnel of Daniels, of secretarial who was letter, was not may read the libelous Kelly, Inc., and have & matter publication by defendant as a an actionable states: majority law.1
“There was no procedure evidence that the used for sending the reasonable; letter was not on the contrary, all the typing by evidence was that Mercer and supervision under the of Daniels inwas point 1. The lower court’s instruction on this was as follows: typed by “. . .as a matter of law . . . the Vivian may said office fact that Mercer, secretary Kelly, the office of Tatar and secretary by Dorothy Daniels, have been read another prior mailing thereof, does not constitute publication part taries are concerned.” liability of said letter . . . and does not sustain on the Kelly, of the defendant Mr. far secre- so as those two duly excepted portion Counsel for the Hanrahan to this charge: disagree your . we with Honor’s conclusions that the dictation to “v having by Dorothy Vivian Mercer and been read Daniels and keeping Kelly’s further subject being the files at office and by anybody happens it, read things who to look at that these laid on the desk in his office which he said. I think that all of those things together, secretary reading by dictation the office manager complete publication of the libel in this case. Mr. testified, your pleases, flatly very definitely if Honor thаt for Dorothy Daniels in this matter had no mutual interest and that letter, she was aware of the contents of this libelous and now there mutuality interest, defendant himself has admitted no mutuality interest, if this is no there is no .... For except portion your those reasons we charge.” to that Honor’s *18 procedure of that with the normal
accordance correspondence.” copies mailing of office for record extract does not disclose My examination of the participated indicating Mrs. Daniels evidence mailing of November typing or of the letter produced was as present case. She not involved in the Mercer’s testi- Kelly. Vivian by witness the defendant typed mailed the mony that she herself rather indicates stated, cross-exami- on copies as well. She letter by for the defendant: nation counsel copy
“Q. Now, I note it unmarked [the underlining, without letter November says mail, registered No. Plaintiff’s Exhibit 11] receipt requested. return A. Uh-huh. “Q. by registered letter sent out mail? . . . Was the — my knowledge it
A. As as was.” far as to
* * * only “Q. Now, you true that would send isn’t it — you only copies people sent of the letter to whose copies regular appeared either blind names copies? Right. A. No one else would receive them.” Indeed, in his brief does contend to the the defendant contrary, stating: by typed ('Mercer’),
“The Vivian Mercer Kelly’s secretary both and mailed to Hanrahan ordinary registered mail and mail.” Daniels, unlikely charge It would be Mrs. letters, personnel, mailing secretarial would attend to likely far this done but more task would be secretary, Mercer, she Miss testified. Kelly, testimony my opinion, of the defendant
sufficient, itself, point. the jury to take case to on this He stated:
“Q. Interrogatories In answers to we filed this you persons having knowledge case mentioned persons got carbon than the who this matter other copies a Vivian Mercer of this letter included Dorothy Dаniels Dorothy Did and Mrs. Daniels. copies it and see
know about this letter before Ican'tsay, presume I did. it out? A. but she went you my “Q. answered Under affidavit persons Interrogatories and said she was one of the She would have who did know about letter? A. it. to know about She all secretarial
personnel. *19 your “Q. In Interrogatories answers and question answer to as to what others knew about the contents of this letter or had in seen the same receiving addition to those copies listed for carbon you Mercer, you named Vivian named an Dorothy Now, address and Daniels. was that true they at the time had— A. She is in all of of personnel assignment the secretarial thing. this of probably She did know it. about “Q. probably She did? A. Yes.
“Q. Did she have mutual interest in the subject matter this you particularly, letter with particular in her interest own mutual interest subject matter this letter? A. Not that I can ” identify.
(Emphasis added) Surely, testimony this “presume that the defendant she [d] did,” copies “know about this it,” letter and see “would it,” have to “probably know about it,” did know about with inferences, reasonable justify jury would concluding that she did know copies about did see of it. did, If she there was a and the statement himself, defendant that he identify any could not mutual might interest subject she have matter, in the is sufficient to justify by jury conclusion that she in fact had no subject mutual interest matter. These conclusions would eliminate and would entitle the plaintiff to a verdict compensatory for least nominal
44 compensatory indeed, and, substantial damages bearing the trial punitive damages, in mind that possible the letter November court instructed per charging the commission 1970, was se as was, therefore, This error plaintiff of the crime of extortion. opinion, requires plaintiff and, my prejudicial quite to the new a reversal and a trial. upon proof was the defendant
The burden of preponderance of qualified privilege a fair establish evidence, Morning Newark Coleman v. affirmative see (1959);Neigel 357, 373, 149 193, 201 A. 2d Ledger Co., N.J. 542, 549, A. Co., Super. N. J. 2d Seaboard Finance v. 1971); Prosser, (4th (1961); Torts 115 at 796 Ed. § (1970); & Slander 451 at 974 53 C.J.S. Am. Jur. 2d Libel § Vojack Jensen, 220 a at 332 Libel & Slander § Cf. 1968). 100, 108(Iowa properly The lower court so 161 N.W.2d had jury. The defendant should have instructed the Daniels, proof did that Mrs. either burden of to establish letter, or, it, had if she read some mutual read the libelous subject matter which would include her interest question qualified privilege. regard In within the interest,” might lower well have her “mutual court point on favor of the directed verdict this *20 Kelly’s testimony, already quoted. any event, Mrs. In view of question. jury at it was least factually present case The closest case Nance, supra, Montgomery & v. where Ward Co. discharging in manager of a an slanderous statement store presence payroll in employee made of clerk of the company Supreme in had no interеst the matter. The who Virginia Appeals of stated: Court employer right it has “. . . is well settled that the no person presence use in the of a to the words third duties, in who no interest the matter and whose has though employee, bring also an do not the third person into the transaction.” 379, 182 270. 165Va. E. at at S. opinion, are, my charge
There other in the errors
45 lower court which also should result in a reversal and a new present trial in the case. all, confining
First of lower court erred proof express qualified to or actual malice to overcome the privilege if the found to It is well one exist. established protection qualified privilege may that the also be lost qualified privilege. an abuse of the The must be exercised manner “reasonable and for a reasonable purpose.” Prosser, (4th 1971). Torts 115 at 792 Ed. See § Pollitt, Newspapers, 132, Brush-Moore v. Inc. (1959); Mfg. Dunn,
151 A. 2d
Rayco
533
Co. v.
234 F.
Supp. 593,
1964).
(N.D.
601
Ill. E.D.
See also Montgomery
Nance, supra; Montgomеry
Ward
& Co.
Ward & Co. v.
Watson,
(4th
1932);Newell,
meeting by plaintiff, vestryman, that the an the vestryman, neglected defendant, outgoing an had the vestry rates, the interests the and had not collected to of had replied which defendant that the been the railway company. The held that bribed Court the company alleged bribing by railway the was not connected plaintiff’s charges privileged, being with the not and was self-defense but counter-attack. plaintiff sufficiently my opinion the It is that counsel for excepted charge ground, preserving it the on this thus to pointed It was to сourt that appellate review. out the lower Kelly any legal duty was “was under there no evidence that anybody Mr. Hanrahan extortion” and to to accuse of things mentioned in the letter of further that none of “anything subject November 16 had to do with the matter of accusing was him of extortion.” Nor this libelous letter point appeal, appellant stating in on his brief abandoned nothing previous was business there relationships between Hanrahan and which “would justified language have used the letter of November 18, 1970, properly per has ruled as libel which Court words, appellant’s The brief further stated that “. . . such se.” exigency privileged, even if cannot exceed the occasion.”
Finally, opinion I am of the that it could well be found Adler, jury sending the libelous letter to some original publication, its in view of two months after his subsequent employment only evict Hanrahan from the to premises, privilege. an abusе of the conditional special regard should had have instructions his general him situation than have included in rather copies applicable original recipients statement 18. The libelous letter of November extortion could have been of no assistance or relevance to Mr. Adler’s premises; legal ejecting Hanrahan from work in Mr. 16, 1970, Hanrahan relevant to this letter November position, it matter set out Hanrahan’s but a inasmuch simple by Kelly his position was that statement *22 position Hanrahan’s was not well founded would have been entirely republication by sufficient and Kelly not a by sending copy of extortion Adler a of the libelous letter of November 18. See Pulvermann Co., v. A. S. Abell (4th 1956) 228 F. 2d Cir. where the United States Appeals Court Circuit, for the Fourth involving in a case Maryland law, stated: Maryland
“The rule in repetition is that of false privileged [citing statements Negley not Farrow, supra, and State, supra. Richаrdson v. ”] again, my opinion, plaintiff’s Here preserved counsel point appellant this review, having excepted to the lower by stating, court’s alia, instructions inter that he did not recipients Kelly’s believe that “all letter of November 18th subject had a mutual plaintiff’s interest matter of the letter of November 16th” and further that Hanrahan’s building “status as tenant in the awas matter between him Associates, and Park Plaza not connected with way, shape nothing form and to do with the surrounding writing circumstances of the libelous letter Although developed . . . .” specifically brief, in his appellant’s general discussion of “mutual interest subject sufficient, my opinion, matter” is to indicate that point appellant. was not abandoned reasons,
For opinion all of these I am of the that the judgment should ue reversed the case should be remanded for a new trial.
1 am Judge agrees authorized to state that Smith with the expressed dissenting opinion. views in this