Kilgour v. Evening Star Newspaper Co.

• Decision Date: 21 November 1902
• Parties: KILGOUR v. EVENING STAR NEWSPAPER CO.
• Court: Maryland Court of Appeals

53 A. 716

96 Md. 16

KILGOUR v. EVENING STAR NEWSPAPER CO.

Court of Appeals of Maryland

November 21, 1902

Appeal from circuit court, Montgomery county.

Action by Alexander Kilgour against the Evening Star Newspaper Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

W. Viers Bouic and Edward C. Peter, for appellant.

Ashley M. Gould and Guion Miller, for appellee.

PAGE J.

This is an action for libel. The defendant interposed a demurrer which the court sustained. The judgment being for the defendant, the plaintiff appealed.

The declaration contains three counts. The first and third set out parts of the alleged libelous publication, with certain innuendoes. The second contains the entire article, but without colloquium or innuendo. No special damages have been pleaded, and therefore the only question presented by the record is whether the publication is libelous per se. Whether this be so or not is always, on demurrer, within the province of the court; and it is also "matter of law" whether an innuendo is fairly warranted by the language declared on. Lewis v. Daily News Co., 81 Md. 472, 32 A. 246, 29 L.R.A. 59; Avirett v. State, 76 Md. 510 25 A. 676, 987; Haines v. Campbell, 74 Md. 158, 21 A. 702, 28 Am.St.Rep. 240; Negley v. Farrow, 60 Md 180, 45 Am.Rep. 715. The declaration charges that at the time of the publication the appellant was, and still is, a practicing attorney, and the state's attorney of Montgomery county, and that the publication was "of and concerning him in respect of his said profession as a practicing attorney, and of his duties as state's attorney." It is not contended that the words of the publication are libelous as against the appellant, otherwise than as they touch upon or have reference to his profession and his official position of state's attorney. The rule of law applicable to a case of that kind seems to be clear. "Words spoken of a person in his office, trade, profession, business, or means of getting a livelihood, which tend to expose him to the hazard of losing his office, or which charge him with fraud, indirect dealings, or incapacity, and thereby tend to injure him in his trade, profession, or business, are actionable, without proof of special damage, even though such words, if spoken or written of an ordinary person, might not be actionable per se." 18 Am. & Eng.Enc.Law (2d Ed.) p. 942; Wilson v. Cottman, 65 Md. 197, 3 A. 890. "The words must go so far as to impute to him some incapacity or lack of due qualification to fill the position, or some positive past misconduct which will injuriously affect him in it." Sillars v. Collier, 151 Mass. 50, 23 N.E. 723, 6 L.R.A. 680; Newell, Defam. c. 8, p. 178; Townsh.Sland. & Lib. §§ 188, l89. So this court said in Newbold v. J.M. Bradstreet & Son, 57 Md. 53, 40 Am.Rep. 426, "to say or publish of a merchant anything that imputes insolvency, inability to pay his debts, the want of integrity in his business, or personal incapacity or pecuniary inability to conduct it with success, is slanderous or libelous per se if without justification." In Richardson v. State, 66 Md. 210, 7 A. 46, the court, citing from Woodgate v. Ridout, 4 Fost. & Fin. 223, said: "It is of essential importance the administration of justice should be open to discussion, but that criticism must be fair and honest and not reckless and uncharitable, and that anything beyond this, and which imputes corrupt motives to those who administer it, is an abuse of privilege." "If one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he must do so at his peril, and must either prove the truth of what he says, or answer in damages to the party injured." Negley v. Farrow, 60 Md. 158, 45 Am.Rep. 715. These principles, which are fully supported by authority, establish the proposition that, in order to find the words of this publication libelous, we must be enabled to determine that they impute to the appellant, as an attorney and state's attorney, some base or corrupt motive or incapacity in the discharge of the duties of such office, or, as stated by Newell, some "unfitness to perform" the duties of the office, or "want of integrity in the discharge of them." Newell, Defam. c. 8; Neeb v. Hope, 111 Pa. 153, 154, 2 A. 568; Baldwin v. Walser, 41 Mo.App. 243-254.

The publication was published in the Evening Star, a newspaper printed in the city of Washington, and circulated in Montgomery county. Apparently, it is an ordinary news item, containing a statement of the circumstances attending the death and burial of a negro baby, of the suspicions concerning it that were aroused in the community where the events took place, and of the actions of the state's attorney in connection therewith. It is not requisite that the whole article be reproduced here. It is long, and it will answer every purpose if we state its general purport, and then refer more particularly to those parts that are relied on by the appellant to show the libelous character of the publication. As set out in the second count of the declaration, the article states that one Bessie Sellman had given birth to a child, no physician being present; that the midwife who officiated told the reporter that it was healthy, and that, after seeing it some half dozen times at intervals of probably a week, she predicted it would "grow up"; that on May 3d "she was horrified to be told that a notice was tacked on a tree" to the effect "that the baby was dead, and that Henry Mason had buried it in Steven's lot." Some conversation between this woman and Henry Mason is then recited. The article then proceeds, in substance, to state: That the actions and language used by Mason led the reporter to watch near Mason's house, and he saw Mason's father-in-law come out of Mason's house with a spade, and "go to the place said to be a grave," and dig up a box shaped like a coffin, which he carried away and buried, as the reporter afterwards learned, in Mason's yard. That he then reported the matter to the justice of the peace, who consulted the appellant. That the latter told him to "issue warrants for the arrest of everybody suspected of having anything to do with the affair, and commit them to the Rockville jail." The justice, however, issued a warrant only for the arrest of the mother, who was committed to jail for a hearing. That the remains of the baby were disinterred, "with the idea that an autopsy was to be made," and in compliance with his request the state's attorney was notified. "The latter, Mr. Thompson said, reached Gaithersburg about the hour appointed for the inquest to begin, and almost at once, supposedly by appointment, met Dr. McCormick, who saw the baby soon after its death. A conversation between the doctor and the state's attorney followed, and at its termination Mr. Kilgour informed Deputy Sheriff Thompson and Justice Baughman that, if an autopsy was held, he would refuse to recommend the payment of the bill for the expenses, with the result stated. The state's attorney went back to Rockville soon afterwards, and ordered the immediate release of Bessie Sellman from jail, which order was obeyed." That the baby was reinterred. It is then stated that this action of the state's attorney produced mingled feelings of indignation and resentment on the part of white and colored residents; also what Mr. Thompson had to say about it, to the effect that "he denounced it as an outrage on Kilgour's part"; had it been a white man who was charged, etc., he would in all probability have been strung up to one of the trees, etc., and that he intended "to leave no stone unturned to sift the whole affair"; and, further, that the justice of the peace expressed "similar views," etc.

We do not find in this long publication, a fair outline of which we have given, any imputation whatever upon the motives or capacity of the state's attorney. There is apparently a strong feeling on the part of Thompson that there should have been a fuller investigation, though it does not appear he knew what it was that had been communicated to the state's attorney by Dr. McCormick. The article states that he (Thompson) denounced the transaction as an "outrage" on Kilgour's part. But the word "outrage" was used immediately succeeding the statement of what Mr. Kilgour's part really was, and, if that statement does not impute corrupt motives to him, Mr Thompson's harsh word is of no avail. The charge that he had committed an outrage would not then be slanderous, because of the fact that it is accompanied with words that qualify the meaning that might otherwise be attached to it, and show that the act imputed was not in fact an outrage, nor one that reflected adversely upon the character or motives of the officer. In the opening sentences of the publication it is stated that many prominent citizens were greatly agitated "on account of the alleged stifling by the state's attorney of an investigation of the mysterious death," etc.; and it is insisted that the word "stifling" was used in its offensive sense, and implied that the state's attorney acted from corrupt motives. But we cannot accept this view, if the whole article be considered, as must be done if we are to arrive at the true meaning and force of particular words or phrases. ...