Orrison v. Vance, 449

• Decision Date: 01 June 1971
• Docket Number: No. 449,449
• Citation: 262 Md. 285,277 A.2d 573
• Parties: Charles E. ORRISON v. James Franklin VANCE.
• Court: Maryland Court of Appeals

Page 285

262 Md. 285

277 A.2d 573

Charles E. ORRISON v. James Franklin VANCE.

No. 449.

Court of Appeals of Maryland.

June 1, 1971.

Arthur Dale Leach, Silver Spring, for appellant.

James F. Vance, Oxon Hill, and Charles L. Richards, Silver Spring, for appellee.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

McWILLIAMS, Judge.

The casus belli here is the following letter sent by the appellee (Vance) to the County Commissioners of Prince George's County on 19 October 1969:

'Re: Deathtraps for Little Children at 8400 Oxon Hill Road

'Mr. Chairman and Members of the Board,

'For a number of years the premises of Suburban Applicances, Charles E. Orrison (the appellant), proprietor, has stored in his yard large numbers of refrigerators, washing machines and other applicances. In no case, so far as I have been able to determine, have these appliances been rendered safe by removal of doors or of door latches, or in other ways prevention of the doors closing.

'This is a very dangerous situation. The Fort Foote Elementary School and Kindergarten is less than 200 yards away, where many hundreds of little children attend school. This situation has been brought to attention of County officials repeatedly over a long period of time, but no adequate corrections have taken place. I wonder if our officials are waiting for one or more children to be suffocated before this matter is remedied.

'Prince George's County Ordinance Section 12-8 ¹ may apply, according to your attorney Mr. Albert Lochte. I spoke also to State's Attorney assistant, Mr. Kenkel, who advised me that he thought a prosecution under this section under the circumstances could succeed.

'At my request, Officer Sellman of the Oxon Hill Station visited the premises last Tuesday or Wednesday, as I recall. He reported to me that he did not believe the situation violated the ordinance because: (a) Most of the refrigerators and other appliances stored outside were behind a four-foot high cattle fence; (b) Those outside the fence did not have mechanical latches, but the refrigerator doors were held shut by magnetic catches; and (c) after his first visit these refrigerators-some 6 to 8 of them-were faced toward each other making it difficult for a child to get into them.

'During the past few days, Mr. Orrison has constructed an 8 foot board fence with a gate between Oxon Hill Road and his open storage area for these refrigerators. Officer Sellman told me that he had a colored man watchman on the premises when he arrived there between 6:00 p. m. and 7:00 p. m. I am advised that the watchman sleeps at his home some 200 yards distant. (The 4-foot cattle fence enclosure of a score or more refrigerators was built about two years ago as a palliative after complaint was made to Md-Nat'l P&PC.)

'Ordinance Section 12-8 may need clarification with respect to magnetic latches as well as mechanical latches. (Please see enclosed materials which make it clear that such refrigerators are a definite menace to little children.) If this section needs clarification as to what is meant by 'immediate suprevision' by a responsible adult, I request that such revision also be made. I do not think that the language of the ordinance should remain so unclear that an officer such as Mr. Sellman cannot interpret it.

'As a matter of fact, Officer Sellman told me that he was aware of another business property on Central Avenue where conditions were at least as bad as those at 8400 Oxon Hill Road. I am not critical of Officer Sellman, who I believe was doing the best the could under the circumstances.

'There is no question in my mind that the Ordinance Section 12-8 makes no distinction between refrigerators and other appliances behind cattle fences or board fences, and I don't think such a distinction should be made. Yet it appears that such jerry-made substitutes for compliance with the law are being substituted by Md-P&PC. While it may serve as a minor deterrent to danger, I apprehend that it is in the long run a very unsatisfactory substitute for safety.

'Mr. Orrison's newly built 8-foot board fence is likewise an attempt to circumvent the law. Access to his junkyard storage of refrigerators-40 or more-may also be had by children from the sides and rear of the 8400 Oxon Hill Road property where nothing more than a decrepit 4-foot cattle fence is found. This is no safeguard that we should be satisfied with.

'If the County Commissioners are satisfied that such fencing of refrigerators, and other such appliances is safe, contrary to the findings of the federal government and the National Safety Council, this should be spelled out in the Ordinance, and the law should apply equally to everyone. If this is not safe, then Mr. Orrison should be required to comply with the law to protect the lives of little children in the neighborhood, since he apparently will not do so otherwise.

'I might also mention that the very conscientious Justice of the Peace at the Oxon Hill Police Station where I went to swear out a warrant also found difficulty with Ordinance Section 12-8.

'Therefore, the buck stops with you, our Board of County Commissioners, to make appropriate investigation of this situation and to take remedial action of (a) amendment of the Ordinance of (b) enforcement of the Ordinance, or both. Perhaps all that is necessary is to use the Zoning Ordinance. The premises is a non-conforming use, with nothing in the non-conforming use apparently permitting outdoor storage of refrigerators and electric appliances.

Yours truly,

/s/ James F. Vance

'A collection of authoritative references is enclosed.' ²

On 10 December 1969 Orrison sued Vance 'for slander, libel and defamation of character.' Thereafter Vance took Orrison's deposition and Orrison took Vance's deposition. In April 1970, on Orrison's suggestion and affidavit, the case was removed to the Circuit Court for Calvert County. On 23 September the case came on for a hearing before the trial judge, Bowen, J., on Vance's motion for summary judgment. From the granting of the motion and the ensuing judgment for costs, Orrison has appealed.

Vance, a member of the bar, is employed by the federal government. He devotes a part of his spare time to a law practice which is confined to his neighborhood. He is active in civic affairs and he has been president of a local citizens' association. As he put it:

'If I were to go back for the years I lived in Prince George's County and tell you how many instances we have requested the County officials to investigate problems and to take remedial action, it would take a half-hour-things about roads, things about garbage collection, things about school bus service. That's the normal interest * * * of persons who are concerned about improving the quality of their community.'

Prior to his letter to the county Vance asked an Associate County Attorney if there was a law relating to the storage of refrigerators. He was told there was such a law. ³ He made it his business to get in touch with the State's Attorney's office and with the county police whom he informed of possible violations of the law by Orrison. Both agencies inspected Orrison's premises and, we were told, neither of them found any violations of the law as it then existed. After he wrote the letter to the Commissioners he discussed the matter with neighbors who shared his concern.

Inquiry must be directed first to the question whether there exists a genuine dispute of a material fact, and then to the question whether Vance was entitled to judgment as a matter of law. Maryland Rule 610. In our consideration of these questions we have looked upon the evidence which was before Judge Bowen in a light most favoragle to Orrison and we have resolved all logical and reasonable inferences deducible therefrom against Vance. Brown v. Suburban Cadillac, 260 Md. 251, 255, 272 A.2d 42 (1971).

Our review of the record has not persuaded us that there is a genuine dispute as to a material fact. Orrison has set forth in his brief a list of 'disputed facts.' No useful purpose will be served by a discussion of them. Some are mere semantic quibbles; others concern only conclusions of law; of the few that might be considered 'genuine' disputes none, in our judgment, is material.

Firmly established is the notion that some communications, otherwise libelous, may be privileged, either absolutely or qualifiedly. Stevenson v. Baltimore Baseball Club, Inc., 250 Md. 482, 243 A.2d 533 (1968). Since we think the words spoken and written by Vance enjoyed, in these circumstances, a qualified privilege it will not be necessary for us to consider or discuss the question whether his words were libelous.

That some words need saying is a notion which has ancient validity but the qualified privilege which usually attends their saying must be exercised in a reasonable manner and for a proper purpose for if the speaker abuses the occasion of their utterance he will forfeit his immunity. The controlling principles of this phase of the law have been stated with clarity and precision in two recent cases, Stevenson v. Baltimore Baseball Club, Inc, supra, and Wetherby v. Retail Credit Co. 235 Md. 237, 201 A.2d 344 (1964), so we shall not repeat them here.

Our inquiry begins with the subsidiary question whether the information itself and those who received it are of a kind and character which will allow Vance to claim privilege. In this regard we look to the relationship between Vance and the recipients, the legal, moral or social duty impelling him to transmit the information, and whether he did so in good faith. Simon v. Robinson, 221 Md. 200, 154 A.2d 911 (1959); Fresh v. Cutter, 73 Md. 87, 20 A. 774 (1890). Undoubtedly there are many varieties of situations in any of which the conditional or qualified privilege might arise, W. Prosser, Law of Torts §§ 593-612 (1964), and were we obliged to fit the instant case into a convenient and recognizable slot...