Pollitt v. Brush-Moore Newspapers, Inc.

• Decision Date: 25 November 1957
• Docket Number: BRUSH-MOORE,No. 39,39
• Citation: 214 Md. 570,136 A.2d 573
• Parties: Jesse M. POLLITT v. TheNEWSPAPERS, Inc.
• Court: Maryland Court of Appeals

Page 570

214 Md. 570

136 A.2d 573

Jesse M. POLLITT v. The BRUSH-MOORE NEWSPAPERS, Inc.

No. 39.

Court of Appeals of Maryland.

Nov. 25, 1957.

Richard M. Pollitt and John B. Robins, Salisbury (Robins & Robins and Vaughn E. Richardson, Salisbury, on the brief), for appellant.

Charles E. Hearne, Jr., Salisbury (Hearne, Fox & Bailey, Salisbury, and William H. Vodrey, Jr., East Liverpool, Ohio, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, ^* HENDERSON, HAMMOND and PRESCOTT, JJ.

PER CURIAM.

Here are two appeals by Jesse M. Pollitt, Sheriff of Wicomico County, plaintiff, appellant, from judgments for costs entered for the Brush-Moore Newspapers, Inc., defendant, appellee, as a result of the sustaining of general demurrers to the plaintiff's declarations in two cases for libel.

For the purposes of this case, the declaration in case No. 2133 alleges that the defendant falsely and maliciously printed an auditors' report about the plaintiff in one of its newspapers called the 'Salisbury Times'. The newspaper article carried the following words as here summarized. Better records are urged for the sheriff's office. Auditors think the Sheriff of Wicomico County should keep better records. They said so in their report of the examination of the records of the sheriff and jail. In their report new legislation and some changes in the sheriff's methods are recommended. 'It is also noted that in one instance, there is an apparent noncompliance with Maryland law by his failure to maintain a record of the fees and charges to be collected.' The recommended legislation is that the sheriff return all legal papers to the court of their origin within a prescribed time. The report 'Urges New Law'. The sheriff's office would function better if such a law were passed. 'Incompleteness of the sheriff's office records concerning fees and collection costs were noted in the report.' The report of the auditors was qualified because the sheriff accounts only for collections and maintains no record of any fees and charges to be collected by him. The Maryland law requires that the sheriff shall maintain 'in such books as may be required and furnished him, an official record of the fees and charges to be collected by him. Whenever a sheriff shall retire from office leaving uncollected any costs, fees or money lawfully payable to him, it shall be his successor's duty to collect and pay over the same, * * *. Previous reports recommended that such a book be kept and it was repeated in this latest examination. * * * Concerning other records of the sheriff's office, the reports said: 'We examined the procedure for booking prisoners at the jail and found the record incomplete." (Italics supplied.) A plain paper book with hand-placed pencil ruling had been used. Entries were made mostly in pencil. 'A printed book with pre-numbered pages made in ink was recommended by the auditors.' Also the recommendation of the installation of a machine to write receipts was made. The declaration further alleged: 'Last August, The Times carried a story on a purported erasure on the jail log which erased the name of a county employee booked on a minor traffic charge. A fictitious name was substituted on the record. Since then, the sheriff, Jesse M. Pollitt, has withheld the jail book from reporters of the Times and barred its reporters access to the jail.' The declaration further stated that the words 'We have examined the procedure for booking prisoners at the jail and found the record incomplete,' were false and malicious and libelous per se in that they imputed conduct tending to degrade the plaintiff and to lead the public to believe that the plaintiff was guilty of a misdemeanor under Maryland law, which requires the sheriff to keep records which the newspaper article said he did not keep. It is further alleged that the plaintiff never violated the law. In fact, the auditors' report, from which the defendant purports to be quoting, did not contain the statement published in the Salisbury Times, but in fact the auditors' report stated: 'We examined the procedure for booking prisoners at the jail and found the record to be complete.' The entire newspaper article containing the auditors' report was written in such a manner as to create a false, inaccurate and misleading impression in the minds of the public by taking certain portions therefrom out of the context and by carefully omitting other portions, all of which was designed to and intended to degrade the plaintiff and expose him to contempt and ridicule and to prejudice his reputation as a private citizen and as a public official.

Plaintiff relies on the italicized words above quoted from the newspaper article as charging him with the commission of a crime. The defendant contends that the alleged defamatory words are privileged. It relies on Powell v. American T. & L. Co., 131 Md. 539, 102 A. 747. It is a well known principle of law in this State that a qualified privilege cannot be raised on demurrer. Walker v. D'Alesandro, 212 Md. 163, 169, 129 A.2d 148, and cases there cited. Defendant admits in its brief that the above italicized word 'incomplete' was in error and that the word in the auditors' report was 'complete'. The demurrer admits the publication by the defendant and that the words are false and malicious. Flaks v. Clark, 143 Md. 377, 122 A. 383; Cobourn v. Moore, 158 Md. 358, 148 A. 546. As to the claim that all reports of the proceedings of superior tribunals and legislative bodies are privileged, we see no reason why an auditors' report should be in this classification.

Plaintiff contends that the words in the aforesaid declaration are libelous per se. With this contention we agree. It is true, as contended by the defendant, that in an action for slander, in order to constitute words actionable per se, they must impute to the plaintiff and indictable offense for which corporal punishment is the immediate penalty. Griffin v. Moore, 43 Md. 246.

Chapter 233, Acts of 1953, relating to Wicomico County, provides in part:

'It shall be the duty of the Sheriff to keep a book at the county jail in which he shall keep a correct and full statement or schedule of all prisoners committed to his custody, showing by what authority the offense charged, the time when received and the time of discharge, which statement or schedule, together with all books, papers and commitments kept by him pertaining to prisoners in the jail shall at all times be open to the inspection of the County Commissioners, State's Attorney and Grand Jury, and should the Sheriff neglect or refuse to keep said book or comply with any of the duties which he is hereby required to perform, he shall be guilty of a misdemeanor and subject to indictment, and upon conviction thereof he shall be fined a sum not exceeding One Hundred Dollars ($100.00).' (Italics supplied.)

Even in slander it is not necessary to set out the offense supposed to be imputed with the same precision as required in an indictment. If it is done in such language, as in ordinary 'lay conversation' will impute the crime, or be understood to impute guilt, that will be sufficient. Blumhardt v. Rohr, 70 Md. 328, 17 A. 266. In Snyder v. Fulton, 34 Md. 128, a newspaper published an assertion that the plaintiff, a news boy who sold papers on a train between Washington and Baltimore, 'takes every occasion to insult Republican passengers'. Also, that he 'appears to have been in collusion with ruffians' and that 'on approaching the city he went around (in the cars) to take a vote of the passengers, the object being evidently to spot the Republicans that the assailants might know who were their friends and who their opponents.' The court stated (34 Md. at page 134) that these words were libelous per se and said: 'To make defamatory words actionable per se, when they are written or published, it is not necessary that they should charge a party with a crime or offense which would subject him to indictment or ignominious punishment. There is a broad and just distinction, in this respect, between spoken words and words written or published.' In Foley v. Hoffman, 188 Md. 273, 284, 52 A.2d 476, 481, it is said: 'The scope of libel is wider than that of slander * * *.'

The majority rule in other jurisdictions seems to be that charging one with any crime, regardless of the degree of punishment, is libelous per se. In Webb v. Beavan, 11 Q.B.D. 609, Baron Pollock said: 'The expression 'indictable offence' seems to have crept into the text-books, but I think the passages in Comyn's Digest are conclusive to shew that words which impute any criminal offence are actional per se.' See also 116 Am.St.Rep. 802, 813; Thorley v. Kerry, 4 Taunt 355, 128 Eng.Rep. 367; Wilson v. Savino, 10 N.J. 11, 89 A.2d 399; Ray v. Citizen-News Co., 14 Cal.App.2d 6, 57 P.2d 527; Jones v. Brinkley, 174 N.C. 23, 93 S.E. 372; Davis v. Macon Telegraph Pub. Co., 93 Ga.App. 633, 92 S.E.2d 619. As to the minority view see Proto v. Bridgeport Herald Corp., 136 Conn. 557, 72 A.2d 820; M. Rosenberg & Sons v. Craft, 182 Va. 512, 29 S.E.2d 375, 151 A.L.R. 1095. We therefore conclude that for the purpose of the demurrer the declaration alleges the commission of a crime and is libelous per se.

Restatement of Torts, Chapter 24, Section 569d, in discussing the fact that libelous and slanderous imputations of crime are distinguished, states in part:

'There is also a substantial residuum of criminal imputations which constitute libel although they would not support an action for slander * * *. Thus, * * * it is immaterial that the crime charged is not an indictable offense or that it is not punishable by imprisonment or death. It is enough that the crime is of a character such as to harm the reputation of the person charged therewith in the eyes of a substantial minority of respectable persons. On the other hand, there are some crimes so trivial that an imputation thereof is not defamatory at all and can,...