Nistico v. Mosler Safe Co.
| Decision Date | 10 September 1979 |
| Docket Number | No. 1360,1360 |
| Citation | 43 Md.App. 361,405 A.2d 340 |
| Parties | Albert L. NISTICO v. The MOSLER SAFE COMPANY et al. |
| Court | Court of Special Appeals of Maryland |
Peter Parker and Harold T. Flanagan, Jr., Baltimore, for appellant.
Pamela P. Wassmann, Baltimore, with whom were Semmes, Bowen & Semmes, Baltimore, on the brief, for appellees.
Argued before THOMPSON, WILNER and GETTY, JAMES S., Specially Assigned, JJ.
Albert L. Nistico, appellant, filed a declaration in the Circuit Court for Howard County against appellees Mosler Safe Company and its agent, Ronald Barnett, seeking damages for an alleged defamation. Appellees demurred to the declaration on the grounds that the statements attributed to them were not actionable, that no special damages were alleged, and that the suit was barred by a collective bargaining agreement to which Mosler and appellant's labor union are parties. The trial court sustained the demurrer on the last mentioned ground. Nistico contends that the demurrer should have been overruled. Appellees contend that the court was not only correct in sustaining the demurrer on the basis of the contract but also would have been correct in sustaining it on either of the other two grounds.
In ruling on a demurrer we must accept as true all well-pleaded facts in the declaration and any reasonable inferences which may be drawn therefrom. Schwartz v. Merchants Mtge. Co., 272 Md. 305, 322 A.2d 544 (1974). Only those matters which appear on the face of the declaration and its supporting documents may be considered. 1 Hall v. Barlow Corp., 255 Md. 28, 255 A.2d 873 (1969); Edelstein v. Nationwide Mut. Ins. Co., 252 Md. 455, 250 A.2d 241 (1969). Applying these principles to the present case we assume the following set of facts, drawn from the allegations of the declaration and its accompanying documents, for the purpose of ruling on the demurrer:
The Mosler Safe Company was engaged in the business of installing, constructing, and servicing safes, bank vaults, safe deposit boxes, and other items of a similar nature. Nistico has been a member in good standing of Local # 16, International Association of Bridge, Structural and Ornamental Iron Workers, A.F.L.-C.I.O., for eight years, and is now a specialist in the installation, construction, and service of the devices in which Mosler deals. For approximately three years prior to the time of the wrongs herein complained of, Nistico had been periodically employed in his area of expertise by Mosler.
On January 18, 1977, Nistico, as a member of the Collective Bargaining Committee of Local # 16, visited a branch of Fidelity Federal Savings & Loan Association, and a branch of Baltimore Federal Savings & Loan Association, and propounded various questions to employees of these financial institutions concerning their safes, vaults, and similar equipment. Nistico did not at any such time identify himself as an employee of Mosler. The sole purpose of his visits was to establish whether or not non-union employees were being used by Mosler in contravention of its collective bargaining agreement with the union.
On January 31, 1977, Barnett, operating within the scope and course of his employment as Regional Installation Manager for Mosler, falsely and maliciously wrote and published the following words, knowing of their falsity or with reckless disregard as to whether they were true or false, to William Shaffer, Vice President of Local # 16, and at least five other persons, concerning the aforementioned visits by plaintiff to the two Baltimore banks:
These statements were intended to convey and did convey, the meaning that Nistico had been guilty of unsavory or criminal conduct, "or deeds or actions of a shameful or disgraceful character." Although Nistico has been available for work ever since said publication, Mosler and various others have refused to employ him, and he has suffered loss of earnings and other income, as well as anxiety, vexation, and mental and emotional anguish.
On January 20, 1977, Barnett, again operating within the scope and course of his employment with Mosler, falsely and maliciously spoke and published by telephone essentially the same words as are set forth above. Appellant claimed $100,000 as damages in each of two counts.
The Court of Appeals recently summarized the elements which must be alleged in a defamation action in Metromedia, Inc. v. Hillman, 285 Md. 161, 400 A.2d 1117, 1123 (1979) as follows:
"Suffice it to say the effect in Maryland of Gertz (V. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)) and Jacron (Sales Co., Inc. v. Sindorf, 276 Md. 580, 350 A.2d 688 (1976)) is that in order for a declaration alleging libel in a Maryland court to withstand the test of a demurrer it must allege:
(1) a false and defamatory communication
a which the maker knows is false and knows that it defames the other, or
b that the maker has acted in reckless disregard of these matters, or
c that the maker has acted negligently in failing to ascertain them, and
(2) that the statement was one which appears on its face to be defamatory, as, E. g., a statement that one is a thief, or the explicit extrinsic facts and innuendo which make the statement defamatory, and
(3) allegations of damages with some particularity, since Gertz and Jacron forbid presumed damages.
In other words, as to (3) in Maryland a pleading to be sufficient must show a basis for believing that the plaintiff has sustained actual injury as defined in Jacron. As Judge Hammond noted in Richardson (v. Boato) supra, 207 Md. (301) at 304, (114 A.2d 49) in some types of action injury was presumed from the violation of an absolute legal right while in others Actual injury has to be shown to make a wrong actionable. In the words of the Court in Garonzik v. Balto. Fed. S. & L. Ass'n, 225 Md. 322, 323, 170 A.2d 219, 220 (1961), a declaration must indicate more 'than extravagant and diffuse conclusions of the pleader.'
In sum, the only distinction remaining in Maryland between a libel per se and a libel per quod is that to recover the plaintiff must first show that the publication is defamatory. Where the words themselves impute the defamatory character, no innuendo no allegation or proof of extrinsic facts is necessary; but otherwise, it is. This is both a pleading rule and an evidentiary requirement. Where extrinsic facts must be shown in order to establish the defamatory character of the words sued upon, the omission to plead them makes the complaint demurrable for failure to state a cause of action. Failure to prove them would justify a directed verdict."
The declaration before us alleges that the statements were made maliciously and with knowledge of their falsity or with reckless disregard for whether they were true or false. The sufficiency of this aspect of the declaration was not challenged by the demurrer and so we need not concern ourselves with it. A court will not consider any ground for a demurrer which has not been specifically raised. Hall v. Barlow Corp., supra. Therefore, the first portion of the test set out in Metromedia, supra, has been met.
As we read the alleged defamatory statement it is capable of supporting the...
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