Carr v. Watkins

• Citation: 227 Md. 578,177 A.2d 841
• Decision Date: 20 February 1962
• Docket Number: No. 164,164
• Parties: Elmer CARR v. Kenneth WATKINS et al.
• Court: Maryland Court of Appeals

Page 578

227 Md. 578

177 A.2d 841

Elmer CARR v. Kenneth WATKINS et al.

No. 164.

Court of Appeals of Maryland.

Feb. 20, 1962.

Melvin M. Feldman, Wheaton, for appellant.

Douglas H. Moore, Jr., Asst. County Atty. (Alfred H. Carter, County Atty. for Montgomery County, Rochville, on the brief), for Kenneth Watkins and Lloyd Whalen.

Miss Kathryn H. Baldwin, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., and Alan S. Rosenthal, Washington, D. C., and Joseph D. Tydings, U. S. Atty., Baltimore, on the brief), for William H. Gould.

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

HAMMOND, Judge.

The appellant Carr sued Gould, an officer in the security division of the Naval Ordnance Laboratory in Silver Spring, and Watkins and Whalen, officers of the Montgomery County Police Department, because they had transmitted to his employer information as to charges that had been brought against him years ago and his employer had consequently discharged him. The amended declaration is in five counts, sounding respectively in slander, invasion of privacy, the divulging of information without legal right, malicious interference with the contract of employment, and conspiracy to cause termination of the plaintiff's employment. Judge Shure sustained demurrers to the declaration, holding that all the defendants were absolutely privileged as to the slander count, that the tort of invasion of privacy did not exist in Maryland, and that the conspiracy count was defective in failing to allege fraud.

The declaration alleges in the first count that in April 1960 the defendants did wrongfully and maliciously speak and publish of the plaintiff 'That Carr had been fired from the Naval Ordnance Laboratory for molesting kids' and 'That Carr has been fired from the Naval Ordnance Laboratory for being drunk,' which caused his discharge from his employment as a security guard at a regional shopping center in Montgomery County.

The second count alleges that in April 1954 Carr was employed at the Naval Ordnance Laboratory, that 'certain charges' pertaining to his suitability for continued employment were then preferred against him and were heard by the appropriate officials of the installation, and that he was cleared and exonerated and his employment continued. It alleges further that despite Carr's 'right to pursue in peace and privacy any employment that he chose' and his right to be secure and 'let alone' in his personal life and affairs, the defendants violated their duty to let him 'be let alone * * * in his employment, and personal life and affairs [by] maliciously, wilfully and wrongfully' revealing and communicating to Carr's employer the fact that charges had been preferred and 'the nature, result and particulars of the same,' knowing that the consequence would be his discharge from employment.

The third count alleged the defendants had a duty 'not to use information obtained by them * * * outside the scope, authority and duty of their offices,' and that they 'wilfully, wrongfully and maliciously' violated this duty, knowing that their action would cause Carr to lose his position.

The fourth count charges that the defendants did 'induce and coerce' Carr's employer to discharge him and thereby did 'knowingly, wilfully, wrongfully and maliciously interfere with the plaintiff's employment and occupation.'

The fifth count alleges that the defendant 'maliciously, wrongfully, wilfully and knowingly' did 'conspire against the plaintiff for the wrongful purposes of seeing that the plaintiff lost his then employment in Montgomery County * * * and did not obtain future employment in said county of a similar nature.'

The validity of the counts of the declaration--in slander, invasion of privacy, the divulgence of information without legal right, malicious interference with contract rights, and conspiracy to interfere with such rights (all of which to some extent, and the last two in particular, overlap, Horn v. Seth, 201 Md. 589, 597, 95 A.2d 312)--depends in the final analysis, as we see it, on whether the defendants, in communicating or knowingly causing to be communicated to Carr's employer the charges made against him years ago, were sheltered from liability by privilege or immunity because of their status as agents of a government, performing their duties.

We find it clear that if there was immunity from liability for defamation, there was immunity from liability for the other alleged torts claimed by the declaration to have been committed. In Walker v. D'Alesandro, 212 Md. 163, 169, 129 A.2d 148, 64 A.L.R.2d 231, it was noted that privilege is not limited to immunity from liability for defamation, citing 1 Restatement, Torts, Sec. 10, and Prosser, Torts (2d ed.), Sec. 16. In Barr v. Matteo, 360 U.S. 564, 569, 79 S.Ct. 1335, 3 L.Ed.2d 1434, the Supreme Court held that the acting director of the Office of Rent Stabilization, a federal agency, was entitled to an absolute privilege in an action of libel. The opinion not only spoke of the law of privilege as an absolute defense for federal officers in civil suits for libel but included 'kindred torts' and cited with approval other federal cases in which absolute privilege or immunity had been held to be a defense in actions for false arrest and malicious prosecution, such as, for example, Gregoire v. Biddle, 177 F.2d 579 (2d Cir.) (per L. Hand, C. J.), and Yaselli v. Goff, 12 F.2d 396, 56 A.L.R. 1239 (2d Cir.), aff'd per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395. In other federal cases immunity has been granted in a variety of tort actions. ¹ See also 41 Am. Jur. 'Privacy' Sec. 20; Warren and Brandeis, 'The Right to Privacy,' 4 Harv.L.Rev. 193, 216-7; Note, 69 Harv.L.Rev. 875, 920.

Different standards apply to the federal officer, Gould, and the Montgomery County policemen, Watkins and Whalen, in determining whether they enjoy immunity. The Supreme Court in Barr v. Matteo, supra, decided that the immunity the Court had previously given executive officers of Cabinet rank in Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, from liability for defamation while acting as their duties required or inherently permitted, also extended to federal agents of lower standing, apparently no matter what their rank. The Court said:

'It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted--the relation of the act complained of to 'matters committed by law to his control or supervision,' Spalding v. Vilas, supra, 161 U.S. at page 498, 16 S.Ct. at page 637--which must provide the guide in delineating the scope of the rule which clothers the official acts of the executive officer with immunity from civil defamation suits.'

The rationale of the decision was that the benefit to the public of having its governmental agents free to act as the duties of their offices required without fear of harassment or responsibility for damages at the suit of a citizen outweighed the protection of the individual against damage caused by oppressive or malicious action of a federal official. The decision, as seen above, predicated immunity on whether the act complained of was within the scope of the official's duties rather than the official's rank in the governmental hierarchy. ²

Since Gould is a federal employee and his defense of immunity rests upon the claim that he was acting within the scope of matters committed to his execution, supervision, or control, the federal rule is here controlling and must be applied by us as to him. The Supreme Court flatly so held in Howard v. Lyons, 360 U.S. 593, 597, 79 S.Ct. 1331, 3 L.Ed.2d 1454.

The declaration does not state or suggest that Gould was acting within the scope of his duties. On the contrary, in counts three and four it is alleged that the defendants acted outside the scope, proper authority, and duties of their offices. From the pleadings it is difficult to perceive, or indeed to conceive, how Gould's duties as an officer of the security division of the Naval Ordnance Laboratory required or permitted him appropriately to volunteer, directly or indirectly, to the employer of a former co-worker (neither of whom had any connection with the Laboratory in 1960) that the co-worker had six years before been charged with molesting a minor and with drunkenness--particularly since he had been exonerated and continued in employment until he resigned. No threat to the security of the Laboratory appears to have been involved, and no benefit to it would seem to be gained by Carr's dismissal as a guard at a shopping center.

Therefore, the question of whether Gould was or was not acting in the exercise of duties committed to him must be determined from the evidence to be adduced at the trial. ³

The Montgomery County police officers are in a somewhat different position. Maryland has not adopted the rule laid down in the Barr case but, on the contrary, this Court has shown reluctance to extend absolute privilege or immunity from liability for torts to government officers of a higher rank than these defendants. Walker v. D'Alesandro, 212 Md. 163, 129 A.2d 148, 64 A.L.R.2d 231; Maurice v. Worden, 54 Md. 233; see also Brush-Moore Newspapers, Inc. v. Pollitt, 220 Md. 132, 139, 151 A.2d 530. It has been felt that a qualified privilege is sufficient, so that immunity is conditioned upon absence of malice (unlike the situation where there is absolute privilege) and also upon action within the scope of the actor's duties and authority. Walker v. D'Alesandro, supra; 3 Davis, Administrative Law (Treatise) Secs. 26.01-26.05; Prosser, Torts (2d ed.) Sec. 109, pp. 780-4; Comment, 70 U.Chi.L.Rev. 677. ⁴

The matters of malice and the scope of their duties must be determined as to Watkins and Whalen from the testimony presented at the trial since a defense of qualified privilege is not available on demurrer in Maryland. Pollitt v. Brush-Moore, etc., Inc.,...