Coffin v. Brown

• Citation: 50 A. 567,94 Md. 190
• Parties: COFFIN v. BROWN.
• Decision Date: 05 December 1901
• Court: Maryland Court of Appeals

50 A. 567

94 Md. 190

COFFIN v. BROWN.

Court of Appeals of Maryland

December 5, 1901

Appeal from circuit court, Prince George's county; Geo. C Merrick, Judge.

Action for libel by Andrew W. Brown against Charles E. Coffin. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, PEARCE, BOYD, and SCHMUCKER, JJ.

W.L Marbury and F. Snowden Hill, for appellant.

James C. Rogers, Joseph C. Mattingly, and Marion Duckett, for appellee.

BOYD J.

The appellee sued the appellant for libel, and this appeal was taken from a judgment recovered in favor of the former. The alleged libelous words were contained in a letter written by the appellant to Mr. Murray Vandiver, chairman of the Democratic state central committee, a few days before the election held for governor and other officers, on the 7th day of November, 1899. Hon. Lloyd Lowndes was then governor of Maryland and was a candidate for re-election. The appellant had been a prominent Republican. After referring to the removal by Gov. Lowndes of a supervisor of election and the appointment of the appellee in his place, the portion of the letter quoted in the declaration thus speaks of the appellee "This man Brown was a justice of the peace under Democratic rule, and at that time kept a speak-easy, where he sold whisky, and then as justice fined the men for disorderly conduct. He helped stuff the ballot box at the Republican primaries in Vansville district two years ago, and has no moral character whatever. This is the man that Gov. Lowndes has appointed as election supervisor,--a man that every one who knows him believes can be induced to perpetrate any crime in politics that will pay him. I shall therefore support Col Smith, and hope all Republicans and Democrats who believe in the purity of the elections will do the same."

1. The defendant filed the general issue plea and 19 pleas of justification. A number of the latter were demurred to, and the rulings of the court in sustaining the demurrers to the sixth, seventeenth, eighteenth, nineteenth, and twentieth present the first questions for our consideration. The sixth undertook to justify the statement that the plaintiff "has no moral character whatever" by alleging that he was the agent of the Havener Baking Company, of Washington city, to sell bread and crackers for said company upon commission, and to deliver them to the purchasers, collect the money therefor, and return it to the company, "and that in the course of such agency the plaintiff received from said company large quantities of bread and crackers, which he has not returned to said company, and the value of which, to wit, $36.40, he has not returned to said company, although demand therefor has been made upon him (the plaintiff) by said company." The mere statement of that alleged justification in the words of the plea is sufficient to relieve us of further discussion of it, as it will be observed that it is not even alleged that the appellee had received the money, and there is nothing in the plea that in any way justifies the charge referred to in it.

2. The seventeenth, eighteenth, nineteenth, and twentieth pleas can be considered together. They undertook to justify the statement that the plaintiff was "a man that every one who knows him believes can be induced to perpetrate any crime in politics that would pay him" by alleging that the plaintiff committed the wrongs spoken of in the fifth plea, and also that he was one of the judges of election for the election held in November, 1900, and while so acting as such judge gave a reward, to wit, the sum of $1.75, to a registered voter of his district to secure his vote. That is the statement in the seventeenth plea, which differs but little from the other three. The only question we need consider in reference to them is whether the defendant is entitled to justify by alleging that the plaintiff had done those acts at the election held in November, 1900, which was the year after the publication of the alleged libel. As was said in Lewis v. News Co., 81 Md. 473, 32 A. 246, 29 L.R.A. 60: "Every publication injurious to the character is in law false and malicious, until the presumption of falsehood is met by plea of the truth or the presumption of malice is removed by showing a justifiable occasion or motive." That being so, it is difficult to see how an act done a year afterwards can be said to meet the presumption that the publication was false. In 18 Am. & Eng.Enc.Law (2d Ed.) 1069, a great many cases are cited to sustain the statement in the text that, "to constitute a justification, the precise charge must be justified, and it will not be sufficient to offer truth of another charge, though of the same general nature, and though distinct only as to the subject-matter or the time and place." It cannot be claimed that the statement made in the letter of defendant which is referred to in those pleas was based on what occurred a year afterwards. So far as the acts set out are concerned, the defendant was not justified in what he said of the plaintiff in November, 1899, and no one could have been so gifted with prophecy as to have believed in 1899 that the plaintiff could be induced to perpetrate any crime in politics that would pay him, by reason of what he afterwards did in 1900. The defendant in a case of this character is exempted from liability when he proves that what he published of the plaintiff was true; but unless he does, or the publication is protected by privilege, it is not justified, even if the defendant in good faith believed the charges to be true and otherwise acted without malice. 18 Am. & Eng.Enc.Law (2d Ed.) 1074. It was very ingeniously argued by the appellant's attorneys that the charge was that he "can be induced," etc., and hence his subsequent conduct tended to sustain that statement. But the defendant said of him that he was "a man that every one who knows him believes can be induced"; that is, every one who knew him at the time of the publication then believed that he could be induced to perpetrate any crime in politics that would pay him. It was impossible for those who knew him to have formed such belief from what had not then occurred. If he had been previously guilty of such acts as would justify such a conclusion, there would be some foundation for the statement; but, if up to that time he had not been thus guilty, then it was not true when made, and it was none the less untrue then, even if a year afterwards he did something which might tend to show that he was at that time that character of a man. No authority has been cited by the appellant to sustain the contention, and in the absence of some binding authority we can see no reason for adopting a position that would give the alleged acts in 1900 such a retrospective effect as is claimed for them. We think the demurrers to those pleas were properly sustained.

3. There are four bills of exception in the record. The first embraces a ruling of the court in admitting a circular containing this letter and the others refer to the prayers. It will be more convenient to first consider the rulings on the prayers. Those offered on the part of the defendant were based on the theory that this communication from appellant to Mr. Vandiver was privileged, and therefore, in the absence of proof of express malice, he was not liable. It is contended that it was the duty of the appellant to make known such information as he had concerning the appellee, who had been appointed a supervisor of election. It is conceded that it was for the court to determine whether or not this communication was privileged. There was no testimony offered on the part of the defendant, and it was admitted by counsel that Mr. Vandiver, if present, would testify as set out in a statement filed in the case, which shows the position he occupied, his duties, and that the defendant wrote the letter to him on the 4th day of November, 1899. It is difficult to understand how it can be contended, from what appears in the record, that this letter was written by the appellant for the purpose of giving to Mr. Vandiver information concerning the appellee, in discharge of a duty he as an elector, owed the public. It is apparent that it was aimed at Gov. Lowndes, and the object was to affect his candidacy. The statements about the appellee were given as reasons for the appellant not supporting Gov. Lowndes, and manifestly were not intended to enable Mr. Vandiver to take any steps toward the removal of the appellee, who was appointed by the governor, who alone was authorized to remove him, for good cause shown, upon written charges, and after notice and hearing. Code, art. 33, § 3. If such charges had been made in good faith by the appellant against the appellee to the governor, in an effort to have him removed, and the appellee was complaining of that, the appellant would occupy a very different position from that he has placed himself in. There may be a justification from the occasion in some classes of cases, and then the words must be proved to be malicious, as well as false, to entitle the plaintiff to recover. In Fresh v. Cutter, 73 Md. 92, 20 A. 775, 10 L.R.A. 68, 25 Am.St.Rep. 577, this court quoted with approval from Harrison v. Bush, 5 El. & Bl. 344, that such justification arises when a communication is "made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, if made to a party having a corresponding interest or duty; *** and this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation." But that cannot be extended to an occasion such as this letter presents. Surely the appellant owed no such duty to...