Garrett v. Dickerson

• Citation: 19 Md. 418
• Parties: JOHN W. GARRETT v. PETER DICKERSON.
• Decision Date: 25 March 1863
• Court: Court of Appeals of Maryland

19 Md. 418

JOHN W. GARRETT v. PETER DICKERSON.

Court of Appeals of Maryland.

March 25, 1863

In an action for slander, although the defamatory words laid in the declaration may not show that a particular felony was charged with technical precision, yet if they impute the commission of a particular offence, punishable as a crime either at common law or by statute, such declaration will be held to present a substantial cause of action.

In cases of slander, words take their actionable character from the sense in which they appear to have been used, and that in which they are most likely to be understood by those who hear them.

The Act of 1809, ch. 153, embracing substantially the provisions of the Act of 1785, ch. 80, sec. 4, vested the Courts with power to order and allow any amendment in the proceedings before verdict, but not after swearing the jury, without withdrawing a juror.

The Act of 1809, ch. 153, was so far modified by the Act of 1852, ch 177, as to authorize amendments which do not change the substance of the issues, to be made after the jury are sworn without withdrawing a juror.

The only effect of privilege on actionable words, is to rebut the legal inference or presumption of malice.

The question, whether words sufficient in themselves to raise the legal presumption of malice, are privileged, is one of law determinable from the circumstances leading to and attending their utterance; but words ascertained to be privileged, as matter of law, still involve the element of good faith in speaking them, and, in general, evidence of any act or circumstance tending to show the want of good faith, may be offered to remove the protection of privilege, and show the existence of malice.

Although the occasion of speaking the actionable words may be such as to justify the legal inference of privilege, yet the jury may look to the words themselves, in connection with other facts and circumstances than those from which the privilege is deduced, in passing upon the question of express malice, and evidence of any other words or acts having reference to the subject matter of the actionable words, may be submitted to the jury for the same purpose, whether such other words or acts were spoken and done before or after suit brought.

APPEAL from the Circuit Court for Baltimore county.

This was an action for slander, brought by the appellee against the appellant, at the May term, 1857, of the Superior Court of Baltimore city, and afterwards removed, upon the suggestion and affidavit of the appellant, to the Circuit Court for Baltimore county.

The declaration contains two counts. The first count charges " that a certain Jacob Miller, now deceased, had, in his lifetime, for a long space of time been employed and entrusted by the Baltimore and Ohio Rail Road Company as their agent, in the custody and charge of the stables and horses belonging to said company, at Mount Clare, and the said plaintiff had also been acting and employed for a long space of time as the agent of the said Baltimore and Ohio Rail Road Company at Locust Point, in the city of Baltimore, and as such agent, the said plaintiff during all such time had the charge, care and custody of all the wood belonging to said company at said Locust Point; " and that both the plaintiff and the said Miller, before words complained of were spoken, " had been discharged from their said employment and agency." The alleged defamatory words and innuendoes were set forth in this count as follows: " One of your first acts, Mr. President," (meaning a certain Chauncey Brooks, who was then and there the president of the said company,) " was to visit the stables of Mount Clare, and you there found a deficiency of thirty-seven horses, the value of which had gone into the pocket of a dishonest employee," (meaning the said Jacob Miller.) " At Locust Point, a similar dishonest appropriation of the company's wood was discovered," (meaning thereby that the wood belonging to said company at Locust Point, had been dishonestly appropriated; ) " the parties to these frauds" (meaning the said Miller and plaintiff) " were discharged," (meaning that the discharge of said Miller and plaintiff, as aforesaid, was on account of their dishonest conduct in the premises.)

The second count sets forth the words and innuendoes as follows: " At Locust Point, a similar dishonest appropriation of the company's wood was discovered," (meaning that the wood belonging to the said company, and in the charge and custody of the said plaintiff, had been dishonestly appropriated; ) " the parties to these frauds were discharged," (meaning thereby that the plaintiff was a party to a fraud, and had been discharged on account thereof.)

The defendant pleaded that he did not commit the wrongs alleged.

After the jury was sworn, and before the rendering of the verdict, the following amendment of the pleadings and agreement were filed:

" The plaintiff, with leave of the Court here first obtained, amends his nar. at bar in the following particulars: 1st. In the first count, after the word ‘ employed,’ strike out the word ‘ intrusted.’ 2nd. In the first count, after the words ‘ had been and was guilty of,’ strike out the word ‘ fraud.’ 3rd. In the first count, after the words ‘ which had gone into the pocket of a dishonest employee,’ strike out the words in brackets, (‘ meaning the said Jacob Miller,’ ) and insert the words (‘ meaning that the said Miller had feloniously embezzled and appropriated to his own use thirty-seven horses, under his charge as agent aforesaid.’ ) 4th. In the first count, after the words ‘ company's wood was discovered,’ strike out the words in brackets, and insert in lieu thereof the following words, (‘ meaning that the plaintiff had dishonestly and feloniously embezzled and appropriated to his own use the wood of the said Rail Road Company, so under the plaintiff's charge as such agent at Locust Point, aforesaid.’ ) 5th. In the second count, after the words ‘ had been dishonestly,’ insert the words ‘ and feloniously,’ and after the word ‘ appropriated,’ insert the words ‘ by the plaintiff to his own use.’ "

The agreement is in these words: " It is agreed that the above amendments are to be considered as made at bar, with leave of the Circuit Court of Baltimore county, in which the said cause was tried." This agreement was signed by the respective attorneys of the plaintiff and defendant.

Defendant's 1 st Exception. Joshua Atkinson, the secretary of said Board of Directors, proved that at a meeting of the Board, on the 18th of March 1857, the following resolution was offered: " Whereas, matters of much importance may come before the Board to-day, in which the community at large feel a deep interest, and of which they should be fully and correctly informed, be it resolved, that one or more of the reporters of the press be admitted on this occasion to this room." That to this, John W. Garrett moved the following as a substitute, which was adopted: " Resolved, that until the further action of the board on the subject, the reporters for the press be admitted at its meetings."

The plaintiff's counsel then read the following agreement, signed by the counsel of the parties, and filed in the cause: " It is admitted in this case, that the words were spoken by the defendant in debate, at a meeting of the Directors of the Baltimore and Ohio Rail Road Company, as they are alleged in the nar. That at the time they were spoken, the defendant was a sworn director in the said company, and that they were spoken in the presence of his co-directors, the president of the company, and of the reporters for the public press, at a meeting of the Board on the 18th of March 1857. It is further admitted, that the plaintiff, Peter Dickerson, had been the agent of the company, in charge of their wood at Locust Point, from which post he had been discharged by the said company previously to the speaking of the words, as aforesaid."

The plaintiff further proved, that the words charged in the declaration to have been spoken, were used by the defendant in a discussion is reference to the comparative merits of the administrations of William G. Harrison, a former president, and his successor, Chauncey Brooks, then president; and that a report of the said remarks was published in the " Baltimore American" newspaper, on the 19th of March 1857. And also proved by Wendell Bollman, an employee of the company, that between the periods of the 18th of March 1857, and the trial of the suit of Dickerson vs. The Balto. & Ohio Rail Road Co., that is, between March 1857, and July 17th, 1858, he was present on the premises of John S. Gittings, Esq., a director, in company with Mr. Brooks, the President of the Baltimore and Ohio Rail Road Company, the defendant, two other directors of the company, and its counsel, Mr. Latrobe, and that on this occasion the defendant asked the counsel for the company if he was preparing for the trial of the suit brought by Dickerson against the company? That the counsel replied that he thought it as well to drop the suit, and that the defendant said in reply, " that he wanted to bring on said suit, as he wanted to show up all the villiany of these men."

The plaintiff then read so much of said record as showed the matters in issue in said cause, with a view to explain the subject matter of the defendant's said remarks. But the Court, on motion of the defendant's counsel, rejected so much of said record as relates to the verdict and judgment in said case; and thereupon the defendant's counsel prayed the Court to instruct the jury as follows:

" The defendant prays the Court to instruct the jury, that although they may find from the evidence that the defendant uttered the words laid in the

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