Jacron Sales Co., Inc. v. Sindorf

• Decision Date: 08 January 1976
• Docket Number: No. 66,66
• Parties: JACRON SALES CO., INC. v. Jack SINDORF.
• Court: Maryland Court of Appeals

Page 580

276 Md. 580

350 A.2d 688

JACRON SALES CO., INC. v. Jack SINDORF.

No. 66.

Court of Appeals of Maryland.

Jan. 8, 1976.

Albert D. Brault, Rockville, (Brault, Scott & Brault, Rockville, on the brief), for appellant

Barry J. Nace, Washington, D.C. (Davis & Nace, Washington, D.C., on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

LEVINE, Judge.

We are asked here to determine the extent to which the First and Fourteenth Amendments to the Federal Constitution are applicable to actions for defamation by private individuals against defendants who are not Early in 1972, Sindorf entered the employ of Jacron, a Philadelphia-based company, as a construction tools salesman. Sindorf submitted a letter of resignation terminating that relationship some 18 months later, and within a few days thereafter began working in a similar capacity for a Maryland company known as the Tool Box Corporation. In his letter of resignation to Jacron, Sindorf had acknowledged that he was in possession of inventory belonging to Jacron worth $2,451.77, and further stated that although he regarded the material in his possession as part payment of commissions due him, he would return the property 'at such time as' he received the sum of $2,561.50, representing unpaid commissions of $2,100 and other miscellaneous amounts owed to him by Jacron. In addition to enclosing invoices for the inventory in his possession, he expressed his regret at the need for proceeding in such a manner, which was pursuant to the advice of counsel, but noted that his efforts to 'collect the money' due him 'through normal business channels' had been unsuccessful.

publishers or broadcasters; alternatively, we shall decide as a matter of state law whether the law of defamation should be changed in view of recent decisions of the Supreme Court. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). These questions arise from an action for slander brought by appellee, Jack Sindorf (Sindorf), against his former employer, Jacron Sales Co., Inc. (Jacron). When the case came on for trial before a jury in the Circuit Court for Prince George's County, the court directed a verdict for Jacron at the close of all the evidence. On appeal, the Court of Special Appeals reversed the judgment and remanded the case to the circuit court for a new trial. Sindorf v. Jacron Sales Co., 27 Md.App. 53, 341 A.2d 856 (1975). We then granted certiorari.

Within two days after he commenced his employment with Tool Box, Sindorf was asked to come from his Pennsylvania home to Maryland for a conference with William R. Brose (Brose), the president of the company. At that meeting, Brose related a recorded telephone conversation between him and one Robert Fridkis (Fridkis) Testimony revealed that Fridkis had placed the call to Brose on instructions from the president of the parent corporation in Philadelphia. Those instructions, however, had not implicated Sindorf in any theft or other criminal conduct. In the president's own words, he told Fridkis:

                vice president of Jacron Sales of Virginia, a subsidiary of Jacron, who had never been Sindorf's employer.  1  The tape recording was played for the jury, and a transcript of the dialogue was received in evidence.  2  As related by Brose, the substance of Fridkis' statement was that there were 'quite a few cash sales and quite a bit of merchandise that were uncounted (sic) for.'  This suggested to Brose, according to his testimony, that possibly Sindorf 'had taken items, either for possibly for his own use . . . or for a cash sale,' i. e., implying that they had been stolen by Sindorf.  When confronted by Brose with Fridkis' statements, Sindorf branded them as untrue; furthermore, despite an 'extremely careful' check of the Tool Box inventory entrusted to Sindorf during his nine months of employment, nothing was ever found to be missing.  We note that neither in the Court of Special Appeals nor in this Court has appellant contended that Fridkis' statements did not constitute slander per se
                

'. . . to call the Tool Box and see if Mr. Sindorf was working for them. We explained to Bob how the man had left us, keeping the merchandise in his possession, our merchandise, and we wanted to verify his employment, whether he was working there while he was still on our payroll or had he just started with Tool Box.'

Apparently, when Fridkis reported to the president the outcome of his discussion with Brose, he merely 'verified (Sindorf's) employment . . ..'

In directing a verdict for the defendant, the trial court ruled that although Sindorf had established a case of slander

per se warranting its submission to the jury, Jacron was protected by a common law conditional privilege which had not been lost because Sindorf had failed 'to show actual malice.' Shortly after an appeal had been lodged, the Court of Special Appeals ordered the parties to address their briefs, in part, to the decision in Gertz v. Robert Welch, Inc., supra, which the Supreme Court had handed down on June 25, 1974, more than two months after the trial of this case. The Court of Special Appeals held that Sindorf had presented sufficient evidence of malice to warrant submission of the question of abuse of the common law conditional privilege to the jury, thus compelling a reversal of the circuit court decision. Further, the Court of Special Appeals said that since the defamatory statements here were of a 'purely private' nature, this case was beyond the reach of Gertz.

I

Although we too regard this case as one of defamation of a private individual as to a purely private matter, we think the Court of Special Appeals has misread Gertz in concluding that the holding there applies 'only when a private individual is defamed as to a matter of general or public interest.' 27 Md.App. at 90, 341 A.2d at 878. No consideration of Gertz, however, would be productive without first referring, at the very least, to three prior decisions of the Supreme Court: New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); and Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).

At common law, the only defenses available to a publisher of defamatory material were truth and the common law privileges. Then, in its landmark decision in New York Times, the Supreme Court held that in a state libel trial, a public official must establish 'malice,' defined as a knowing falsity or a reckless disregard for the truth, on the part of the publisher to recover damages for defamatory statements Three years later, in Curtis Publishing Co. v. Butts, supra, ⁴ another unanimous Court expanded the class of plaintiffs subject to the New York Times test to include 'public figures.' Although Mr. Justice Harlan wrote the opinion for the Court, a majority agreed with Mr. Chief Justice Warren's definition of a public figure, which included not only public officials but also those individuals who are 'nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.' 388 U.S. at 164, 87 S.Ct. at 1996. The Chief Justice assumed that involvement in public issues or events itself guaranteed access to the means by which defamatory criticism might be controverted.

                concerning the plaintiff's official conduct.  3  The traditional defense of truth, the Court held, did not provide adequate protection to the First Amendment rights of the press
                

In Rosenbloom v. Metromedia, supra, in an opinion joined by only two other members of the Court, Mr. Justice Brennan appeared to extend the constitutional privilege enunciated in New York Times yet another step further by applying it to defamatory falsehoods if the statements concern matters of public or general interest, regardless of the status of the person defamed. ⁵ The essence of the opinion is this:

'If a matter is a subject of public or general interest, it cannot suddenly become less so merely Subsequent history has proved the separate dissenting opinions of Mr. Justice Harlan and Mr. Justice Marshall more durable than the plurality opinion of Mr. Justice Brennan. Justice Harlan urged in his dissent in Rosenbloom that the New York Times privilege should not apply to private persons because of the diminished likelihood of 'securing access to channels of communication sufficient to rebut falsehoods.' 403 U.S. at 70, 91 S.Ct. at 1833. To this extent, Mr. Justice Marshall, joined by Mr. Justice Stewart, was in general agreement. The disagreement between the two dissenting opinions was over the matter of punitive damages. Justice Harlan was of the view that the states might allow such damages in amounts bearing 'a reasonable and purposeful relationship to the actual harm done,' 403 U.S. at 75, 91 S.Ct. at 1835, while Justice Marshall expressed the view that both punitive and presumed damages should not be allowed because they resulted in self-censorship.

because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. . . .' 403 U.S. at 43, 91 S.Ct. 1819.

Thus was the stage set for Gertz. There, the plaintiff was a Chicago attorney prosecuting a civil action for the family of a youth who had been shot and killed by a police officer. The officer had previously been convicted of second degree murder in the incident, but the plaintiff had neither participated in the criminal proceeding nor discussed the officer with media representatives. Nevertheless, the defendant published an article...