Hanrahan v. Kelly

*39

Barnes, J.,

dissenting:

I dissent because, in my opinion, the lower court erred in instructing the jury as a matter of law that the possible reading of the libelous letter by Dorothy Daniels did not constitute a publication of that letter by the defendant Kelly, which would sustain liability on his part, such publication being within the qualified privilege, rather than to leave that issue to the jury under proper instructions. Counsel for the plaintiff Hanrahan duly excepted to this error in the lower court’s charge and this error was, in my opinion, a prejudicial one. This is the principal and most obvious error, but I am also of the opinion that there were other errors in the lower court’s charge which would require a reversal and a new trial.

I agree with the analysis by the majority of the prior decisions of this Court in Gambrill v. Schooley, 93 Md. 48 , 48 A. 730 (1901); Domchick v. Greenbelt Consumer Services, Inc., 200 Md. 36 , 87 A. 2d 831 (1952); and Peurifoy v. Congressional Motors, Inc., 254 Md. 501 , 255 A. 2d 332 (1969). The distinction between Gambrill , on the one hand, and Domchick and Peurifoy , on the other, so far as the secretary, Vivian Mercer, is concerned, is properly made, i.e., that in Gambrill there was no conditional privilege involved whereas in Domchick and Peurifoy a conditional privilege was involved.

The majority has also properly observed that there was no intended departure in Peurifoy from the rule in this regard announced in Domchick . The language in Peurifoy that there was no publication by the dictation of the letter to the stenographer meant that there was no actionable publica,turn. This proper interpretation of that language in Peurifoy is supported by the language in the preceding paragraph in Peurifoy where it is stated:

“The appellant contended in his brief and in the argument before us that there was a ‘publication’ of the alleged libel by dictation of the letter ... to his secretary . .. .”

254 Md. at 513 , 255 A. 2d at 338 .

*40 The placing of the word “publication” in quotation marks indicates that this word was used in the sense of actionable publication and not in its technical sense in the law of libel. It is also interesting to note that in the Atlantic Reporter — 255 A. 2d 332 , where Peurifoy is reported, Key Number 25 “Libel and Slander” correctly indicates that the dictation of the letter to the stenographer “did not constitute publication of letter for purposes of establishing libel, considering that letter was privileged.” (Emphasis added), thus correctly interpreting the language in question.

The law is well established that the charging of a crime for which there may be indictment and punishment is libelous per se and imports malice, requiring a directed verdict for the plaintiff for at least nominal damages, unless, of course, the charge of the crime is contained in a communication which is within the scope of a qualified and unabused privilege. Fennell v. G.A.C. Finance Corp., 242 Md. 209, 218 , 218 A. 2d 492, 496 (1966); Richardson v. State, 66 Md. 205, 214 (1886); and Negley v. Farrow, 60 Md. 158, 178 (1883).

In Richardson v. State, supra, Judge Irving, for the Court, stated:

“An evil intent is a conclusive inference and presumption of law from the publication of the libelous matter without excuse,” citing Negley v. Farrow, supra, with approval, where Judge Robinson, for the Court, stated:

“The article being per se libellous, and its publication being established, the only question before the jury, was the amount of damages, which, under all the circumstances, the plaintiff was entitled to recover.”

It is equally well established that when a qualified privilege is asserted by the defendant as a defense, the publication of the libelous writing to one not within the scope of the qualified privilege, that privilege is lost and the ordinary rules in regard to libel per se apply. Love v. Commercial Cos. ins. Co., 26 F. Supp. 481 (S.D. Miss. 1939); *41 Teare v. Local Union No. 295, 98 So. 2d 79 (Fla. 1957); Gardner v. Standard Oil Co., 179 Miss. 176 , 175 So. 203 (1937); Montgomery Ward & Co. v. Nance, 165 Va. 363 , 182 S. E. 264 (1935); 53 C.J.S. Libel and Slander § 109 at 187-88 (1948).

In my opinion, the lower court properly instructed the jury that the letter of November 18, 1970, was libelous perse and that the stenographer, Vivian Mercer, who typed the letter of November 18, 1970, was within the qualified privilege as a matter of law. The lower court erred, however, in also instructing the jury that the fact that Dorothy Daniels, who was in charge of secretarial personnel of Tatar & Kelly, Inc., and may have read the libelous letter, was not an actionable publication by the defendant as a matter of law. 1 The majority states:

“There was no evidence that the procedure used for sending the letter was not reasonable; on the contrary, all the evidence was that the typing by Mercer and under the supervision of Daniels was in *42 accordance with the normal procedure of that office for mailing copies of correspondence.”

My examination of the record extract does not disclose any evidence indicating that Mrs. Daniels participated in the typing or mailing of the letter of November 18, 1970, involved in the present case. She was not produced as a witness by the defendant Kelly. Vivian Mercer’s testimony rather indicates that she herself typed and mailed the letter and the copies as well. She stated, on cross-examination by counsel for the defendant:

“Q. Now, I note it [the unmarked copy of the letter of November 18, without underlining, Plaintiff’s Exhibit No. 11] says registered mail, return receipt requested. A. Uh-huh.

“Q. . . . Was the letter sent out by registered mail? A. As far as — as to my knowledge it was.”

* * *

“Q. Now, isn’t it true that you would only send — you only sent copies of the letter to people whose names appeared either blind copies or regular copies? A. Right. No one else would receive them.”

Indeed, the defendant in his brief does not contend to the contrary, stating:

“The letter was typed by Vivian Mercer ('Mercer’), Kelly’s secretary and mailed to Hanrahan both by ordinary mail and registered mail.”

It would be unlikely that Mrs. Daniels, in charge of secretarial personnel, would attend to the mailing of letters, but far more likely that this task would be done by the secretary, Miss Mercer, as she testified.

The testimony of the defendant Kelly, in my opinion, was sufficient, in itself, to take the case to the jury on this point. He stated:

“Q. In answers to Interrogatories we filed in this case you mentioned persons having knowledge of *43 this matter other than the persons who got carbon copies of this letter included a Vivian Mercer and Mrs. Dorothy Daniels. Did Dorothy Daniels know about this letter and see copies of it before it went out? A. Ican'tsay, but I presume she did.

“Q. Under affidavit you answered my Interrogatories and said she was one of the persons who did know about the letter? A. She would have to know about it. She is in charge of all secretarial personnel.

“Q. In your answers to Interrogatories and answer to question as to what others knew about the contents of this letter or had seen the same in addition to those listed for receiving carbon copies you named Vivian Mercer, and you named an address and Dorothy Daniels. Now, was that true at the time they had— A. She is in charge of all of the secretarial personnel assignment of this thing. She probably did know about it.

“Q. She probably did? A. Yes.

“Q. Did she have any mutual interest in the subject matter of this letter with you particularly, particular interest in her own mutual interest in the subject matter of this letter? A. Not that I can identify. ”

(Emphasis added)

Surely, this testimony that the defendant “presume [d] she did,” “know about this letter and see copies of it,” “would have to know about it,” and “probably did know about it,” with reasonable inferences, would justify a jury in concluding that she did know about and did see copies of it. If she did, there was a publication and the statement of the defendant himself, that he could not identify any mutual interest she might have in the subject matter, is sufficient to justify a conclusion by the jury that she in fact had no mutual interest in the subject matter. These conclusions would eliminate the qualified privilege and would entitle the plaintiff to a verdict for at least nominal compensatory *44 damages and, indeed, for substantial compensatory and possible punitive damages, bearing in mind that the trial court instructed the jury that the letter of November 18, 1970, was libelous per se as charging the commission by the plaintiff of the crime of extortion. This error was, therefore, quite prejudicial to the plaintiff and, in my opinion, requires a reversal and a new trial.

The burden of proof was upon the defendant Kelly to establish the qualified privilege by a fair preponderance of affirmative evidence, see Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 373 , 149 A. 2d 193, 201 (1959); Neigel v. Seaboard Finance Co., 68 N. J. Super. 542, 549, 173 A. 2d 300, 304 (1961); Prosser, Torts § 115 at 796 (4th Ed. 1971); 50 Am. Jur. 2d Libel & Slander § 451 at 974 (1970); 53 C.J.S. Libel & Slander § 220 a at 332 (1948). Cf. Vojack v. Jensen, 161 N.W.2d 100, 108 (Iowa 1968). The lower court properly so instructed the jury. The defendant should have had that burden of proof to establish that Mrs. Daniels, either did not read the libelous letter, or, if she read it, had some mutual interest in the subject matter which would include her within the qualified privilege. In regard to the question of her “mutual interest,” the lower court might well have directed the verdict on this point in favor of the plaintiff in view of Mrs. Kelly’s testimony, already quoted. In any event, it was at least a jury question.

The closest case factually to the present case is Montgomery Ward & Co. v. Nance, supra, where the slanderous statement of a store manager in discharging an employee was made in the presence of a payroll clerk of the company who had no interest in the matter. The Supreme Court of Appeals of Virginia stated:

“. . . it is well settled that the employer has no right to use the words in the presence of a third person who has no interest in the matter and whose duties, though also an employee, do not bring the third person into the transaction.”

165 Va. at 379 , 182 S. E. at 270 .

There are, in my opinion, other errors in the charge of the *45 lower court which also should result in a reversal and a new trial in the present case.

First of all, the lower court erred in confining the plaintiff to proof of express or actual malice to overcome the qualified privilege if the jury found one to exist. It is well established that the protection of the qualified privilege may also be lost by an abuse of the qualified privilege. The privilege must be exercised in a “reasonable manner and for a reasonable purpose.” Prosser, Torts § 115 at 792 (4th Ed. 1971). See Brush-Moore Newspapers, Inc. v. Pollitt, 220 Md. 132, 138 , 151 A. 2d 530, 533 (1959); Rayco Mfg. Co. v. Dunn, 234 F. Supp. 593, 601 (N.D. Ill. E.D. 1964). See also Montgomery Ward & Co. v. Nance, supra; Montgomery Ward & Co. v. Watson, 55 F. 2d 184 (4th Cir. 1932); Newell, Slander & Libel § 343 at 382 and § 392 at 417 (4th Ed. 1924); 53 C.J.S. Libel and Slander § 97 at 154 and § 109 at 187 (1948).

In my opinion, the jury, under proper instructions, could well have concluded that the charge of extortion was excessive, unnecessary to protect any interest of the defendant and an abuse of the qualified privilege. It should be remembered that in Hanrahan’s letter of November 16, 1970, he set out the alleged basis of the partnership, what he had done to promote its interest and the alleged breaches of the partnership trust by Kelly. He demanded either the right to participate actively in the partnership affairs or that his interest be purchased “at a price commensurate with its fair value.” He further stated that if his demand was not complied with, he would file a bill in equity under Maryland Code, Article 73A, § 22 for an accounting of the partnership affairs. He made no threat of any illegal action or indeed a demand for any specific amount, but only for the fair value of his partnership share if Kelly wished to discontinue the partnership. The charge of extortion in the reply letter of November 18 may well be found to be excessive and not to further any legitimate business interest of Kelly. It is not like the situation involving an employee who steals or embezzles — those crimes being germane to the business interest involved. The situation in the instant case is more like that involved in the English case of Senide *46 v. Medland, 4 Ju. (NS) 1039, involving a charge at a vestry meeting by the plaintiff, an incoming vestryman, that the defendant, an outgoing vestryman, had neglected the interests of the vestry and had not collected the rates, to which the defendant replied that the plaintiff had been bribed by a railway company. The Court held that the alleged bribing by the railway company was not connected with the plaintiff’s charges and was not privileged, being not in self-defense but in counter-attack.

It is my opinion that counsel for the plaintiff sufficiently excepted to the charge on this ground, thus preserving it for appellate review. It was pointed out to the lower court that there was no evidence that Kelly “was under any legal duty to anybody to accuse Mr. Hanrahan of extortion” and further that none of the things mentioned in the letter of November 16 had “anything to do with the subject matter of the libelous letter accusing him of extortion.” Nor was this point abandoned on appeal, the appellant stating in his brief that there was nothing in the previous business relationships between Hanrahan and Kelly which “would have justified the language used in the letter of November 18, 1970, which the Court has properly ruled as a libel per se.” The appellant’s brief further stated that “. . . such words, even if privileged, cannot exceed the exigency of the occasion.”

Finally, I am of the opinion that it could well be found by the jury that the sending of the libelous letter to Adler, some two months after its original publication, in view of his subsequent employment only to evict Hanrahan from the premises, was an abuse of the conditional privilege. The jury should have had special instructions in regard to his situation rather than to have him included in a general statement applicable to the original recipients of copies of the libelous letter of November 18. The charge of extortion could have been of no assistance or relevance to Mr. Adler’s legal work in ejecting Mr. Hanrahan from the premises; the Hanrahan letter of November 16, 1970, was relevant to this matter inasmuch as it set out Hanrahan’s position, but a simple statement by Kelly that his position was that *47 Hanrahan’s position was not well founded would have been entirely sufficient and not a republication by Kelly of the charge of extortion by sending Adler a copy of the libelous letter of November 18. See Pulvermann v. A. S. Abell Co., 228 F. 2d 797, 802 (4th Cir. 1956) where the United States Court of Appeals for the Fourth Circuit, in a case involving Maryland law, stated:

“The rule in Maryland is that repetition of false statements is not privileged [citing Negley v. Farrow, supra, and Richardson v. State, supra. ”]

Here again, in my opinion, plaintiff’s counsel preserved this point for appellant review, having excepted to the lower court’s instructions by stating, inter alia, that he did not believe that “all recipients of Kelly’s letter of November 18th had a mutual interest in the subject matter of the plaintiff’s letter of November 16th” and further that Hanrahan’s “status as tenant in the building was a matter between him and Park Plaza Associates, not connected with Kelly in any way, shape or form and nothing to do with the circumstances surrounding the writing of the libelous letter . . . .” Although not developed specifically in his brief, the appellant’s general discussion of “mutual interest in the subject matter” is sufficient, in my opinion, to indicate that the point was not abandoned by the appellant.

For all of these reasons, I am of the opinion that the judgment should ue reversed and the case should be remanded for a new trial.

1 am authorized to state that Judge Smith agrees with the views expressed in this dissenting opinion.

. The lower court’s instruction on this point was as follows:

“. . .as a matter of law . . . the fact that the letter was typed by Vivian Mercer, a secretary in the office of Tatar and Kelly, and may have been read by Dorothy Daniels, another secretary in said office prior to the mailing thereof, does not constitute a publication of said letter . . . and does not sustain liability on the part of the defendant Mr. Kelly, so far as those two secretaries are concerned.”

Counsel for the plaintiff Hanrahan duly excepted to this portion of the charge:

“v . we disagree with your Honor’s conclusions that the dictation to Vivian Mercer and having been read by Dorothy Daniels and further keeping in the files at Kelly’s office and subject to being read by anybody who happens to look at it, that these things laid on the desk in his office which he said. I think that all of those things together, dictation to the secretary and reading by the office manager to complete publication of the libel in this case. Mr. Kelly testified, if your Honor pleases, flatly and very definitely that for Dorothy Daniels in this matter had no mutual interest and that she was aware of the contents of this libelous letter, and now there the defendant himself has admitted no mutuality of interest, and if this is no mutuality of interest, there is no privilege .... For those reasons we except to that portion of your Honor’s charge.”