Brush-Moore Newspapers, Inc. v. Pollitt

• Decision Date: 14 May 1959
• Docket Number: No. 241,BRUSH-MOORE,241
• Citation: 151 A.2d 530,220 Md. 132
• Court: Maryland Court of Appeals
• Parties: NEWSPAPERS, INC. v. Jesse M. POLLITT.

Page 132

220 Md. 132

151 A.2d 530

BRUSH-MOORE NEWSPAPERS, INC. v. Jesse M. POLLITT.

No. 241.

Court of Appeals of Maryland.

May 14, 1959.

As Modified on Denial of Rehearing June 4, 1959.

Charles E. Hearne, Jr., and Hamilton P. Fox, Jr., Salisbury (Godfrey Child, Pocomoke City, and Wm. H. Vodrey, Jr., East Liverpool, Ohio, on the brief), for appellant.

John B. Robins and Richard M. Pollitt, Salisbury (Stanley G. Robins and Vaughn E. Richardson, Salisbury, and John L. Sanford, Jr., Berlin, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND and HORNEY, JJ.

HENDERSON, Judge.

Jesse M. Pollitt, the sheriff of Wicomico County, sued the appellant for an alleged libel which appeared in 'The Salisbury Times' on November 14, 1956. The trial court sustained a demurrer to the declaration, but on appeal to this Court we reversed. Pollitt v. Brush-Moore, etc., Inc., 214 Md. 570, 136 A.2d 573. After various further pleadings, the case was removed to Worcester County for trial, which resulted in a jury verdict for $12,000. There was a motion for judgment N.O.V., or in the alternative, for a new trial, which was denied and judgment entered. The appeal is from that judgment.

A reporter for the 'Times,' Mr. Gould, attended a regular meeting of the County Commissioners of Wicomico County on November 13, 1956. At this meeting Mr. Naegele, a partner in the firm of F. W. LaFrentz & Co., accountants, presented a report of his annual audit of the books of various county offices, including the sheriff's office, for the year ending June 30, 1956, with recommendations. The report was discussed, and the commissioners appointed a committee to discuss the recommendations with the sheriff. Gould obtained a copy of the report and took it home to study. The next morning he wrote the news article, which is the basis of this suit, and after approval by the news editor, it was delivered to the press room and appeared on the front page of the paper. After the first copies of the paper, some 400 to 800 in number, had been printed, a mistake in the article was discovered by another employee in the news room. The press was stopped, and a correction made. About 250 copies had been delivered, however, to the advertising, editorial and circulation departments of the paper, and about 200 copies had been delivered to downtown newsstands.

The circulation manager was advised of the mistake and its correction. He dispatched an employee to the various newsstands to pick up the incorrect copies and replace them with correct copies. The incorrect copies were withdrawn from circulation. There was testimony that none of the incorrect copies were distributed to carriers or subscribers. However, Mrs. Kolb, daughter of the plaintiff, who with her husband operates a general store, identified an incorrect copy, plaintiff's exhibit No. 1, as being 'like paper' she received for distribution. The mere fact that exhibit No. 1 was an incorrect copy would seem to demonstrate that not all the incorrect copies were destroyed. The circulation manager testified that to the best of his knowledge all of the incorrect copies were retrieved, although he admitted 'there were probably some we didn't get. After all, you have about fifteen people all wanting papers at once. It's pretty hard to get them all back.' In answer to a question as to whether some could have gotten out, he replied 'that is right.' On November 15, 1956, the 'Times' published a correction on its front page.

The article complained of, as set out in the declaration, was summarized in our opinion in Pollitt v. Brush-Moore, etc., Inc., supra, and need not be repeated here. Suffice it to say that a word in one sentence in the auditor's report, stating that the record kept by the sheriff for booking prisoners was 'complete,' had been erroneously quoted in the article as 'incomplete.' We held that this charged the sheriff with a violation of local law carrying a criminal penalty, and hence charged the commission of a crime, which made the statement libelous per se. We also held that the article was libelous per se because it imputed to the sheriff conduct incompatible with the proper conduct of his office, and tended to degrade and expose him to contempt and ridicule. These holdings were based not only upon the inaccurate quotation of the one sentence, but upon the fact that the article also charged the sheriff 'with non-compliance with the law on account of incompleteness of records concerning fees and collection costs.' The article also interpolated a statement reiterating a story, previously carried by the 'Times,' on a purported erasure in the 'jail log' kept by the sheriff, and the substitution of a ficticious name. This incident was not within the period covered by the auditor's report.

The appellant contends that there was no evidence of publication, but we do not agree. Publication was put in issue by the general issue plea, and was submitted to the jury. Distribution of copies to the employees of the newspaper would alone be evidence of publication. See Gambrill v. Schooley, 93 Md. 48, 48 A. 730, 52 L.R.A. 87 (dictation to a stenographer); Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 47 N.E.2d 595, 602 (intracorporate communication); note 166 A.L.R. 114; Newell, Slander and Libel (3d ed.), § 262; 3 Restatement Torts, § 577, Comment e (publication complete even though entitled to a qualified privilege under § 593). The distribution to newsstands, and the testimony of Mrs. Kolb, would also tend to support an inference that some of the incorrect copies came into the hands of readers. The publication of the corrected copies was undisputed.

The chief contention of the appellant is that the publication of the article was privileged. That contention was made in the previous appeal, and our answer was that the defense of qualified privilege cannot be raised on demurrer, citing Walker v. D'Alesandro, 212 Md. 163, 169, 129 A.2d 148, 64 A.L.R.2d 231, and cases cited. See also Thompson v. Upton, 218 Md. 433, 439, 146 A.2d 880. In the previous appeal in the Pollitt case, we added the comment that 'As to the claim that all reports of the proceedings of superior tribunals and legislative bodies are privileged, we see no reason why an auditors' report should be in this classification.' [214 Md. 570, 136 A. 2d 575.] The comment requires some elucidation.

It is a general rule that the official participants in judicial and legislative proceedings enjoy an immunity from actions for defamation, described as an absolute privilege, on grounds of public policy. But it has been stated that the rule should not be extended 'beyond the strict line established by a concurrence of decisions.' Maurice v. Worden, 54 Md. 233, 254. See also 3 Restatement, Torts, § 590, Comment c; Prosser, Torts (2d ed.), § 95, p. 611; 69 Harv.L.Rev. 875, 917. Whether such immunity extends to the proceedings of boards exercising delegated legislative or quasi-legislative powers, or to subordinate officials, is a question on which the decisions are not in accord. In Peeples v. State, 179 Misc. 272, 38 N.Y.S.2d 690, a suit against the State under the Court of Claims Act, based on a published report by a state auditor of his examination of the records of a police justice, it was held that the report was not absolutely privileged, but was entitled to a qualified privilege that shifted the burden to the plaintiff to prove...