Cheek v. J. B. G. Properties, Inc., 814

• Decision Date: 08 September 1975
• Docket Number: No. 814,814
• Citation: 344 A.2d 180,28 Md.App. 29
• Parties: Aubrey A. CHEEK et al. v. J. B. G. PROPERTIES, INC., et al.
• Court: Court of Special Appeals of Maryland

Page 29

28 Md.App. 29

344 A.2d 180

Aubrey A. CHEEK et al. v. J. B. G. PROPERTIES, INC., et al.

No. 814.

Court of Special Appeals of Maryland.

Sept. 8, 1975.

Mark A. Winkler, Washington, D. C., and Samuel M. Shapiro, Rockville, for appellants/cross-appellees.

William F. Abell, Jr. and Joseph M. Quirk, Rockville, with whom were Heeney, McAuliffe, Rowan & Abell, Rockville, on the brief, for appellees/cross-appellants.

Argued before ORTH, C. J., and GILBERT and LOWE, JJ.

LOWE, Judge.

The moral disdain one feels for the quick tempered who abuse another with vile or abusive language has not always been equated by the courts with potential civil liability. When Christ said 'whoever says to his brother 'Raca,' shall be liable to the Sanhedrin and whoever says 'Thou fool!', shall be liable to the fire of Gehenna,' ¹ His opinion was not expressed vis a vis First Amendment rights as interpreted by the Supreme Court. While the danger of hell-fire is not lessened by each opinion that Court hands down, the dangers of retribution in this life certainly are. The courts historically-and more so contemporarily-have declined to restrict legally the freedoms of speech and press ² to the extent they were morally restricted by the Christian religion.

This perhaps arises from the origin of the action. ³ Defamation was treated initially as a dispute to be arbitrated by local seignorial courts in their super-parent roles. As these dissipated, along with the feudalism that sustained them, defamation fell under the aegis of the ecclesiastical courts where it was punished with a penance as a sin. While some defamatory tort action trickled into the civil courts during the sixteenth century, the marked metamorphosis had to await the historically renowned Court of the Star Chamber. The jurisdiction was not gracefully given over by the ecclesiastical courts and was even more grudgingly received from them, by the civil courts, on a case by case basis. With the abolition of the Star Chamber, however, common law courts assumed libel in its entirety, and slander more gradually.

There continued to be recognized a difference between libel, which was criminal as well as tortious, and slander which was not criminal unless made punishable by statute. Perkins on Criminal Law, 2nd ed.), at 414. Although not as frequently expressed as in years past, the reverence given the printed word has continued to project libel as the more onerous tort. Indeed, as slander jurisdiction was eased upon the common law courts, they preserved the jurisdictional barrier by requiring proof of 'temporal' damage. Prosser, Law of Torts, (4th ed.), at 754 citing Holdsworth, Defamation in the Sixteenth and Seventeenth Centuries.

The distinction between the two torts has survived the Revolution and appears in Maryland case law in the form of a presumption:

'There is, however, a distinction between oral and written or printed defamation, and 'the presumption that words are defamatory arises much more readily in cases of libel than in cases of slander." Bowie v. Evening News, 148 Md. 569, 574, 129 A. 797, 799; See also Greenbelt Coop. Pub. Ass'n v. Bresler, 253 Md. 324, 355, 252 A.2d 755.

Beyond that presumption and the common sense maxim 'scripta manent, verba volent,' ⁴ the primary recognition given the distinction ⁵ has been based on the extent of the defamation's dissemination resulting from the means of publication used.

One further and basic difference retained is the emphasis placed in slander cases upon the type of damage allegedly done. Arising from the transitional requirement of proof of temporal damages, there arose a practice, if not a rule, that slander is not actionable unless actual damage is proven. From this grew certain exceptions which did not require allegations or proof of actual damages. They included imputation of a crime or of a loathsome disease and defamations affecting one in his calling. Maryland has added by statute the slander of a female by injuring her character or reputation for chastity. Cts. Art., Sec. 3-501, 502. This type of defamation was considered so obviously detrimental, no proof of any actual harm to reputation or any other damage was required for either nominal or substantial damages. Proof of the statement itself is considered to establish the existence of some damages, i. e., per se, and the jury is permitted, without other evidence, to estimate the amount. Prosser, Law of Torts, at 754. This oddity of tort law recognized as 'the doctrine of presumed damages' (although usually referred to as 'general damages') is not applicable, however, to less substantial slanderous utterances which become actionable only by reason of some 'special damage' ⁶ (i. e., per quod) whereby the claimant has been put to expense or inconvenience as a consequence of the defamatory language; or the loss of some benefit by reason of the wrongful utterance. Poe, Pleading and Practice, Tiffany Ed., Vol. 1, Sec. 174, at 132. Accord General Motors v. Piskor, Md.App., 340 A.2d 767 (filed: June 25, 1975).

The issue of whether the words used are in and of themselves damaging, i. e., actionable per se, is a matter of law for the court's determination. American Stores v. Byrd, 229 Md. 5, 181 A.2d 333; Piskor, supra, 340 A.2d 767.

In the absence of an alternative, the issue may be resolved as a pleading question by a demurrer. Cf. Thompson v. Upton, 218 Md. 433, 146 A.2d 880. If a plaintiff asserts defamatory language which is not damaging in and of itself and fails to set forth (or to support by specific proof) special damages whereby he was injured (per quod), it follows that he cannot recover -punitive damages-

Exemplary or punitive damages, as the name connotes, are rather a punishment for and deterrent to wrongdoing than a means of recompensing the victim. To the victim they are a windfall hot necessarily related to the injury he has suffered. 'Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.' Gertz v. Welch, 418 U.S. at 350, 94 S.Ct. at 3012, 41 L.Ed.2d at 811.

The Court of Appeals early held that punitive damages are not proper in libel and slander cases, unless malice is shown on the part of defendant. Snyder v. Fulton (1871), 34 Md. 128; Fresh v. Cutter (1890), 73 Md. 87, 20 A. 774. Once again, however, the court's decision on whether the utterance was damaging per se may be significant in determining the propriety of punitive damages. Where the words are damaging per se, and there is nothing to rebut the imputation of malice, punitive damages as well as 'general' compensatory damages, may be awarded. Shockey v. McCauley, 101 Md. 461, 61 A. 583.

-the facts-

Appellants, ⁷ who were tenants in an appartment building, sued their corporate landlord, J. B. G. Properties, Inc. (J.B.G.) and the apartment manager, Alfred A. Flori (Flori) for slander and trespass. It appears that Mr. Flori and an assistant came to the Cheeks' apartment to perform plumbing repairs. An argument ensued in which Mr. Flori, in the presence of guests, was quoted by Mrs. Cheek as saying:

'He wheeled and came up and said 'I have had it with you Cheeks, you have been nothing but trouble makers ever since you moved into the building. You can't control your kids and your son was out playing football and the football hit the window. I came out and the boy told me he could play where he wanted to.' I said 'I don't believe that.' He said 'I watched your daughter break branches off a $50 tree that I just bought.' I said 'I don't believe that.' He said 'It's true, I don't care whether you believe it or not.' I said 'Why didn't you say something to her if she was in the wrong.' He said 'I couldn't be bothered.' He said 'First of all, I thought it was a little girl out there playing football. I asked my wife if it was a boy or a girl and she said it was Joey Cheek."

After this outburst she became emotional and went into her bedroom and called her husband. During the period of time between the incident and the trial she was in an emotional state at various times, apparently from this event. Mrs. Cheek was allowed to testify that she had to obtain a prescription for tranquilizers from her doctor.

                The jury returned a verdict on May 3, 1974 for each plaintiff against each defendant:
                1. Aubrey A. Cheek, against:
                     a. Flori - $250 compensatory;   $1250 punitive
                     b. J.B.G.- 250 compensatory;      250 punitive
                2.  Debra Ann Cheek, against:
                     a. Flori - $250 compensatory;   $1250 punitive
                     b. J.B.G.- 250 compensatory;      250 punitive
                3.  Joseph Scott Cheek, against:
                     a. Flori - $250 compensatory;   $1250 punitive
                     b. J.B.G.- 250 compensatory;      250 punitive
                4.  Eugenia Sue Cheek, against:
                     a. Flori - $250 compensatory;   $1250 punitive
                     b. J.B.G.- 250 compensatory;      250 punitive
                

A motion for judgment n. o. v. or for a new trial 'or Remittitur' was filed on May 6, 1974. On June 21, 1974 the motion was heard and decided. The trial judge denied the motion for a new trial although he candidly admitted that he 'would have reached an entirely different result.' While on the one hand noting the difficulty we often have of sensing the flavor of the case from the cold record, ⁸ the judge adopted a unique means of ameliorating the result he did not like. He decided that the jury wrongfully apportioned the punitive damages as between the two defendants. He decided that punitive damages were a 'joint and several obligation' and could not be apportioned by the jury. He therefore entered judgment n. o. v. for all those punitive damages which exceed $1000. In effect he reduced the punitive damages from a total of six thousand dollars from both defendants, to a total of one thousand dollars presumably to be divided equally among the four plaintiffs in the amount of $250 each.

Seven weeks later, acting sua sponte, he decided that the judgments he had directed be entered as reduced by...