M & S Furniture Sales Co. v. Edward J. De Bartolo Corp.

• Decision Date: 29 April 1968
• Docket Number: No. 198,198
• Citation: 249 Md. 540,241 A.2d 126
• Parties: M & S FURNITURE SALES CO., Inc. v. The EDWARD J. DE BARTOLO CORPORATION.
• Court: Maryland Court of Appeals

Page 540

249 Md. 540

241 A.2d 126

M & S FURNITURE SALES CO., Inc. v.The EDWARD J. DE BARTOLO CORPORATION.

No. 198.

Court of Appeals of Maryland.

April 29, 1968.

Lawrence F. Rodowsky, Baltimore (Albert P. Hand, Baltimore, on the brief), for appellant.

Robert J. Thieblot, Baltimore (Allen, Thieblot & Hughes, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and HORNEY, McWILLIAMS, FINAN and SINGLEY, JJ.

HORNEY, Judge.

The question presented by the appeal in this action for libel is whether the facts stated in the amended declaration in explanation of the alleged libelous conduct were sufficient to show that the conduct complained of was defamatory per se.

The facts as set forth in the original one-count declaration are to the effect that the plaintiff-appellant(M & S Furniture Sales Company), the tenant herein, operates a store in the Glen Burnie Mall Shopping Center; that the defendant-appellee(Edward J. De Bartolo Corporation), the landlord herein, is the owner of the shopping center; that the landlord, acting through employees, ordered the tenant out of the store, ¹ at noon on December 6, 1966 and closed the main entrance with a screen equipped with an internal lock (ordinarily used as a protection against burglary when the store was not open for business) as well as the rear delivery doors by chaining and padlocking both entrances; that the landlord, by such chaining and padlocking, which remained throughout the afternoon, published and communicated to persons in and about the shopping center, including fellow tenants and its prospective customers, that the tenant had not paid its honest debts and therefore the landlord had repossessed the premises; that the publication was untrue and false in that the tenant had performed all obligations required of it under the lease three days prior to the lockout; and that the false publication defamed and libeled the tenant in its business reputation.

The demurrer of the landlord on two grounds-that special damages had to be pleaded because the acts alleged to be defamatory and libelous were not actionable per se and that it had not been alleged that third persons understood the conduct to be defamatory-was sustained with leave to amend.

The tenant then filed an amended two-count declaration.The second count, based on trespass quare clausum fregit, to which the landlord filed a general issue plea and on which issue has been joined, is not before us on this appeal.The amended first count is the same as the original except that a sentence reading-

'The fellow tenants of the plaintiff, its prospective customers, its store manager, and persons in and about the Glen Burnie Mall Shopping Center recognized the chains and padlocks as symbols of a creditor's or landlord's execution and understood the publication to impute to the plaintiff a failure to honor business contracts and a failure of business credit.'

was included in the innuendo.On the first count the lower court concluded that the conduct of the landlord was not actionable per se, but was rather an attempt to allege defamation by innuendo which as such necessitated an allegation of special damages to be actionable and sustained the demurrer to the amended declaration without further leave to amend.This appeal followed.

The tenant contends that the conduct of the landlord, in that it imputed inability to pay its debts, was actionable per se, and, in the alternative, that if such conduct was not actionable per se it was a question for the jury to determine despite the absence of an allegation of special damages.The landlord in effect contends that its conduct was not defamatory on its face and therefore was not actionable per se and that if its conduct was actionable per quod, then, in addition to the innuendo, the tenant should have alleged special damages.

This case is unusual in that the alleged defamation consists entirely of conduct rather than spoken or printed words.So far as we have found there are only four cases directly in point.See the annotation, Defamation by acts, gestures, pantomine or the like, in 71 A.L.R.2d 808, § 4at p. 814.In American Stores Co. v. Byrd, 229 Md. 5, 181 A.2d 333(1962), however, spoken words combined with conduct were held to be actionable.

It would seem therefore that actions or conduct as well as spoken or printed words could be actionable per se or per quod.The distinction is based on a rule of evidence and the difference between them lies in the proof of the resulting injury.In the case of words or conduct actionable per se, their injurious character is a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved.In the case of words or conduct actionable only per quod, the injurious effect must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage.The cases in this state are collected in 14 M.L.E., Libel and Slander, § 11.See also33 Am.Jur., Libel and Slander, § 5;53 C.J.S.Libel and Slander§ 170 b, c.

There may be some question as to whether conduct should be classified as libel or slander but...