Gambrill v. Schooley
| Decision Date | 21 February 1901 |
| Citation | 48 A. 730,93 Md. 48 |
| Parties | GAMBRILL v. SCHOOLEY. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city; Henry D. Harlan Judge.
"To be officially reported."
Action by George T. Gambrill against John W. Schooley. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Argued before McSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD BRISCOE, and SCHMUCKER, JJ.
John P Poe, Geo. Whitelock, and Jones & Ridgely, for appellant.
William Colton and H.C. Gaither, for appellee.
This is an action of libel, in which the appellee recovered a judgment for $500 against the appellant in the superior court of Baltimore city. The plaintiff offered 5 prayers, all of which were granted; and the defendant offered 15 prayers, of which the 4th, 5th, 6th, 7th, 8th, 10th, 11th, 12th, 13th and 14th were granted and his 1st, 2d, 3d, 9th, and 15th were rejected. A single exception was taken by the defendant to this ruling on the prayers, and the three following questions arise upon the exception: (1) Whether the dictation of alleged libelous letters to defendant's private and confidential stenographer, their reduction by her to stenographic characters, and subsequent reduction to the characters of the alphabet by means of a typewriter, their signing by the defendant, and their transmission by his direction to the plaintiff, are in law a publication of such letters, where there is no communication of any of said letters in any manner to any other person; (2) whether in such case the proper action is for libel or slander; (3) whether, under the testimony in this case, the jury was properly instructed as to the allowance of exemplary or vindictive damages.
There were three counts in the declaration, upon three separate letters, and the case was tried on the general issue plea; there being no plea of justification, alleging the truth of any of the charges contained in any of the letters, either in whole or in part. Of the libelous character of each of these letters there can be no question, but the letter in the 3d count was shown by the uncontradicted testimony to be wholly in the handwriting of defendant, and never to have been read or exhibited to any one but the plaintiff; and the jury was properly instructed by the defendant's 4th prayer that there could be no recovery on the 3d count.
It was very earnestly and ably argued by the appellant's counsel that, as the two letters in the 1st and 2d counts were not otherwise published than as above stated, there was no actionable publication of either letter, so as to make either one a libel, and consequently that the court erred in granting the plaintiff's 3 1/2 and 4 1/2 prayers, and in rejecting the defendant's 1st, 2d, and 3d prayers, which, respectively, raised the contentions of the parties on this point. This is certainly an important question, and one which has never before been raised in this court. Indeed, the appellant's counsel states in his brief that it has never been expressly ruled upon in America, though he has referred us to a case in the appellate division of the supreme court of New York (Owen v. Publishing Co., 32 A.D. 465, 53 N.Y.Supp. 1033), which he contends supports his position. The appellee's counsel has submitted a very full brief, but has referred us to no American case upon this point. If such authorities existed, we may safely assume they would not have escaped the well-known diligence of counsel, and we have found none such in our own examination; but the principles and considerations upon which this question should be decided are not, in our opinion, difficult to determine, and the instructive English cases which have been cited are in accord with these principles and considerations.
Before considering the argument of the appellant, it will be well to recall the definition of "publication," given by competent authority, as necessary to constitute slander a libel. Mr. Odgers, in his work on Libel and Slander (page 150), defines "publication" as applicable either to slander or libel, as "the communication of the defamatory words to some third person"; and on page 1 he says, "False defamatory words, if written and published, constitute a libel; if spoken, a slander." It is obvious, however, that publication is essential to either, and that the words "if published," though not repeated in the latter clause, must be understood as if repeated. For to shout aloud defamatory words on a desert moor, where no one hears them, is not a publication of the slander; nor is the utterance of such words in a foreign language a publication, if no one present understands their meaning. Id. 151. For the same reason, very clearly, if one should write a defamatory letter, and hand it to a third person, to be read, who does not understand and cannot read that language, there would be no publication of the libel. In Pullman v. Walter Hill & Co. [[[1891] 1 Q.B. 529, Lopes, L.J., defines "publication of a libel" in the exact words cited from Mr. Odgers; and in the same case Lord Esher, master of the rolls, defines it, more fully, and perhaps with more technical accuracy, as "the making known the defamatory matter, after it has been written, to some person other than the person to whom it is written." Appellant's counsel, in his brief, says, with equal clearness and accuracy, "Publication, in the law of libel and slander, means the transmission of ideas and thoughts to the perception of a person other than the parties to the suit."
Bearing in mind these definitions and simple illustrations of what is and what is not publication, it will be seen that the argument that there has been no actionable publication in this case divides itself into two branches. The theory of the first branch is that, while there was in fact a physical or mechanical reception by the stenographer of the thoughts expressed by the appellant, such reception was instantaneous only, and merely sufficient for their reduction to written characters, but that there was no comprehension and no lodgment of their meaning in the brain of the recipient, who acted as a mere phonograph, and whose function in that regard was not a mental, but purely a mechanical, process, so that there was no such perception as is requisite to constitute publication. This theory is both ingenious and subtle, but we cannot be persuaded it is sound. We cannot doubt that the dictation to Miss Willis, though taken down in stenographic characters, produced in her mind as full and complete perception of the thoughts of the appellant as a slower dictation, for the purpose of reduction to ordinary characters, would have produced in the mind of one not a stenographer. If this were not so, there could be no assurance that there would be an accurate reproduction of the matter dictated, such as common knowledge gives assurance of from any skillful stenographer. A communication, therefore, to a stenographer, must be regarded precisely as a communication to an ordinary amanuensis, and as establishing all that is ordinarily necessary to constitute publication.
The second branch of the argument is that in view of the fact that Miss Willis was the private and confidential stenographer of the defendant, and in view of the almost universal employment in this country of such stenographers and the necessity for such employment consequent upon the demands of business, a communication to such a stenographer should be made an exception to the general rule, and be held not to be an actionable publication. But we cannot adopt this view. Apart from any precedent or authority, we can perceive no good reason why such an exception should be made to the rule. Neither the prevalence of any business customs or methods, nor the pressure of business which compels resort to stenographic assistance, can make that legal which is illegal, nor make that innocent which would otherwise be actionable. Nor can the fact that the stenographer is under contractual or moral obligation to regard all his employer's communications as...
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