Embrey v. Holly

• Decision Date: 07 May 1981
• Docket Number: No. 1106,1106
• Citation: 48 Md.App. 571,429 A.2d 251
• Parties: James EMBREY, Jr. et al. v. Dennis P. HOLLY.
• Court: Court of Special Appeals of Maryland

Page 571

48 Md.App. 571

429 A.2d 251

James EMBREY, Jr. et al. v. Dennis P. HOLLY.

No. 1106.

Court of Special Appeals of Maryland.

May 7, 1981.

Theodore Sherbow, Baltimore, with whom were Stephen M. Hearne, Sherbow, Shea & Tatelbaum, P. A., Baltimore, on brief, for appellants.

Marvin Ellin, Baltimore, with whom were Donald F. Oakley, Donn Weinberg, Ellin & Baker, Baltimore, on brief, for appellee.

Argued before GILBERT, C. J., LISS and MacDANIEL, JJ.

GILBERT, Chief Judge.

Introduction

A jury in the Baltimore City Court, presided over by Judge Martin B. Greenfeld, concluded that a "joke" by James Embrey, Jr., known professionally as "Johnny Walker" (Walker), was not funny. In fact, the jurors decided that the "joke" was libelous, and they awarded Dennis P. Holly, a then television news commentator in Baltimore and the butt of Walker's "joke," $25,000 in compensatory damages, $5,000 punitive damages against Walker, and $35,000 punitive damages against Walker's employer, Baltimore Radio Show, Inc., the operator of radio station WFBR. Perhaps the jury agreed with Markel's Law, "Humor is okay; wit can be dangerous; wisecracking is disastrous," ¹ inasmuch as one man's "joke" may be another man's "choke."

The Facts

To understand why a "joke" should prove to be such a costly remark, one must comprehend the backdrop of the comment. We shall set the scene.

A blizzard dumped 24 inches of snow on Baltimore City and environs in late February 1979. Mobility just about ceased during the storm, and public transportation, as well as police vehicles, was almost totally paralyzed.

Alerted by the media to the immobility of the police, "looters" ² took to the streets, and they broke and entered a number of commercial establishments. ³ After gaining unlawful entry into the shops and stores, the hoodlums literally carried off just about anything that could be moved.

While many of the police vehicles were practically immobile, vehicles of some television stations were not. Some looters were actually photographed committing the reprehensible acts of theft.

The City's newspapers printed banner stories of the wholesale burglaries, and Baltimore City received nation-wide notoriety about the "looting." Mayor William Donald Schaefer summed up the feeling of the overwhelming majority of the City's population when he decried the looting as, "a very disgraceful exhibition."

Numerous arrests were made notwithstanding the difficulty the police experienced in traversing Baltimore's snowladen, slippery streets. ⁴ The Sunday Sun, on February 25, 1979, in a front-page article by Mr. William Salganik, reported a "profile" of those arrested for looting. Mr. Salganik wrote:

"Those arrested for looting in Baltimore last week are overwhelmingly young and poor.

They are unemployed, or have been employed for only a brief time and at low wages.

The majority do not have prior criminal records, and those who have been convicted in the past were almost all found guilty of minor crimes.

Most are black males. Most did not finish high school. Almost all are single or divorced. Virtually none own homes."

As a part of his routine, Walker broadcasts what he terms, "Little News in the Morning." During that segment of the program, Walker says "crazy and wild things about current events." Simulated laughter and various other prerecorded sounds are played throughout the airing of "Little News in the Morning" as part of the response to Walker's jokes.

A regular feature of "Little News" was the "Harry Horni Report." In that "report," Mr. Ron Matz assumed the fictitious role of "Harry Horni." "Horni" would telephone Walker and the two of them would engage in an ad lib exchange about Hollywood personalities. Walker would endeavor to create jokes in response to "Horni's" comments. Testimony disclosed that fact was sometimes mixed with fiction.

The broadcast that led to this particular litigation occurred on the morning of February 28, 1979. Apparently of the belief that the "Horni Report," taped during the broadcast at 6:15 a. m., was lacking in humor, John Elder, an engineer at WFBR, and a part-time writer for Walker, suggested the addition of another comment for use on the 8:15 a. m. rebroadcast of the "Horni Report."

"Horni" had said in the 6:15 a. m. report that Dennis Holly was entering a hospital for surgery on his knee. Walker, seemingly in response to Elder's suggestion, ad libbed about Holly, on the 8:15 a. m. broadcast: "Too bad about Dennis Holly, though. Hope that comes out okay. Wonder how he hurt his knee. Probably fell down carrying that TV during the blizzard last week, right? " ⁵ (Emphasis supplied.)

There is a conflict in the testimony as to whether Walker's ad lib was followed by the playing of a tape of "canned laughter." Walker asserts that it was so followed, but witnesses for Holly stated that it was not.

Mr. Charles Horich, Vice-president and Director of Broadcasting of WMAR-TV, told the jury that when he learned from WMAR-TV employees of the remark Walker made about Holly, he telephoned Mr. Harry Shriver, President and General Manager of Baltimore Radio Show, Inc. Horich complained to Shriver concerning the Walker remark in reference to Holly. Horich said that Shriver answered that "he would talk to Mr. Walker and respond ... in the morning." Later, Horich received a telephone call directly from Walker who asked Horich if he, Horich, "had a problem." Horich related that he replied, "That's right, ... I ... have a problem. Did he (Walker) make the ... quote involving Mr. Holly on the air." Horich testified that he "asked Mr. Walker if he had said, on the radio, that Dennis Holly had hurt his knee while carrying a color television set in the streets, or something of that, something close to that, and ... asked him if he had said that and he said he did and if I had a problem, he would give me his lawyer's name and number, and then he hung up." As events turned out, Mr. Horich's problem was really Mr. Holly's, which later became that of Walker and WFBR.

Patently, failing to see the humor in Walker's remark, Holly sued Walker and WFBR for libel. He acknowledged that his position as a television newscaster made him a "public figure" so that in order to recover from the appellants he carried the burden of proving that the allegedly libelous statement was uttered notwithstanding that it was "false and imperious," and that Walker, as agent of WFBR, made the comment "knowing that the remarks ... would seriously injure and damage the character and reputation" of Holly. Holly also averred that the remarks were knowingly, maliciously and deliberately "done to defame ... (him) by slander and/or libel."

At the conclusion of the evidence, Judge Greenfeld submitted the matter to the jury on issues. Those issues were resolved by the jury in favor of Holly. Embrey (Walker) and Baltimore Radio Show, Inc. (WFBR) have, figuratively speaking, sailed to Annapolis, where they have fired a virtual broadside at the judgment of the Baltimore City Court.

The Issues on Appeal

Appellants aver that:

"I. The trial court erred in denying Defendants' Motions for Directed Verdicts and their Motions for Judgment N.O.V. where the evidence showed that the remark was made with humorous intent and was understood by all witnesses who heard the remark to be a joke.

II. The trial court erred in permitting the jury to find Defendants liable for words spoken that were not actionable per se.

III. The trial court erred in permitting the jury to award punitive damages.

IV. The trial court erred in allowing the jury to award punitive damages against WFBR where WFBR neither ratified nor approved the complained of remark.

V. The lower court erred in denying Defendants' Suggestion for Removal from Baltimore City where Plaintiff stipulated that the jury would be composed of 12 black citizens and the evidence revealed that a large segment of Baltimore's black community was sensitized to the events which would be the subject matter of this suit.

VI. The trial court erred in permitting Plaintiff to appeal to the racial sympathies of a majority of the jury through the use of racially inflammatory words and argument.

VII. The trial court erred in admitting into evidence the substance of remarks made by anonymous telephone callers.

VIII. The trial court erred in denying Defendants' motion to reopen their case for the purpose of calling a newly discovered witness who possessed personal knowledge that Plaintiff had lied during his rebuttal testimony."

We shall consider each assignment of error in the order in which appellant has posited them to us, adding such additional facts as may be necessary to the discussion. In passing upon the issues raised by the appellants, we bear in mind that we must view them in the light of the circumstances existent at the time the allegedly defamatory remarks were made. ⁶

I.

When reviewing a ruling in a defamation case on a motion for directed verdict or a judgment N.O.V., we are required to make an independent examination of the facts submitted at the trial in order to insure that the constitutional right of free speech has been afforded adequate protection. Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6, 11, 90 S.Ct. 1537, 1540, 26 L.Ed.2d 6, 13 (1970); New York Times, Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728, 11 L.Ed.2d 686, 709 (1964); A.S. Abell Co. v. Barnes, 258 Md. 56, 71, 265 A.2d 207, 216 (1970), cert. denied, 403 U.S. 921, 91 S.Ct. 2224, 29 L.Ed.2d 700 (1971). We "assume the truth of all credible evidence tending to sustain the contentions ..., as well as all credible inferences of fact reasonably and fairly deducible therefrom." Kapiloff v. Dunn, 27 Md.App. 514, 523, n. 9, 343 A.2d 251, 258 (1975), cert. denied, 426 U.S. 907, 96 S.Ct. 2228, 48 L.Ed.2d 832 (1976). We follow that course to be sure that there was sufficient evidence to enable the jury to find, by clear and convincing...