Sindorf v. Jacron Sales Co., Inc.

• Decision Date: 25 June 1975
• Docket Number: No. 257,257
• Parties: Jack SINDORF v. JACRON SALES CO., INC.
• Court: Court of Special Appeals of Maryland

Page 53

27 Md.App. 53

341 A.2d 856

Jack SINDORF v. JACRON SALES CO., INC.

No. 257.

Court of Special Appeals of Maryland.

June 25, 1975.

Barry J. Nace, with whom were Davis & Nace, Washington, D. C., on the brief, for appellant.

Thomas E. Donahue, with whom were Koepenick, Patterson, Schuman & Donahue on the brief, Albert D. Brault, Rockville, with whom were Brault, Scott & Brault, Rockville, on the brief, for appellee.

Argued on Nov. 4, 1974, and Reargued on April 7, 1975 before ORTH, C. J., and GILBERT and LOWE, JJ.

ORTH, Chief Judge.

'The security of his reputation or good name from the arts ¹ of detraction and slander, are rights to which every man is entitled by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right.' 1 W. Blackstone, Commentaries *134.

JACK SINDORF felt that his right to personal security had been violated by the defamation of his reputation and good name by a corporation upon the spoken words of one of its employees, Robert Fridkis. Seeking balm for his hurt, he instituted an action at law in the Circuit Court for Prince George's County for the tort of slander, damanding judgment against the corporation and Fridkis, and each of them, in the amount of $150,000 compensatory damages and $150,000 punitive damages. He did not prevail. Fridkis was dismissed from the action prior to trial and a judgment was entered in his favor for costs. ² A verdict in favor of the corporation, which went to trial on a plea of the general issue, was directed by the trial judge at the close of all the evidence. Sindorf appealed from the judgment entered thereon in favor of the corporation for costs. ³

The Identity of the Corporate Defendant-Appellee

There was confusion about the identity of the corporation Sindorf sued. The corporate defendant named in the declaration was 'Jacron Sales Co., Inc.' and in the caption its address was given as '5801 Torresdale Ave., Philadelphia, Pa. 19135.' The declaration averred that 'Jacron Sales Co., Inc. is a corporation with a principal place of business in Philadelphia, Pennsylvania,' and the Fridkis 'is an employee, agent or servant of the Defendant Jacron Sales Co., Inc. with a principal place of business at the address indicated in the caption hereof.' The general issue plea filed by Jacron Sales Co., Inc. gave the same address in the caption as did the declaration. Sindorf propounded interrogatories to Jacron Sales Co., Inc. on 3 January 1974. Interrogatory #6 asked for each date that Robert Fridkis had occasion to be at the Philadelphia office of defendant corporation between January and July of 1973. The answer was 'Jacron Sales Company, Inc., the Defendant corporation, is a Virginia corporation and has no Philadelphia office. The address listed in the Plaintiff's Declaration is not correct.' Excepting to this answer and others, Sindorf moved to strike it, stating that 'Defendant's assertion that they have no Philadelphia office is a guise and sham upon this court . . ..' Jacron Sales Company, Inc. replied to this motion:

'It should be clear at the outset that the Defendant should not be required to bear the burden of Plaintiff's uncertainty as to who it has sued. In the Plaintiff's Declaration, the caption lists the Defendant as Jacron Sales Company, Inc., followed by a Philadelphia address. JACRON SALES COMPANY, INC., is a Virginia corporation, doing business in Virginia, with its principal and only office at 1310 Mt. Vernon Avenue, Alexandria, Virginia. The Defendant is a subsidiary of the Jacron Sales Company, a Pennsylvania Corporation with its principal offices in Philadelphia. The two corporations are separate and distinct entities and their separateness and distinctness cannot be ignored merely because the Plaintiff finds it convenient to do so rather than making the effort to determine who he should sue.

The Plaintiff's attorney alleges that the Defendant has perpetrated a sham upon this Court by its answer to interrogatory No. 6. As is stated above, Defendant, JACRON SALES COMPANY, INC. is a Virginia Corporation and is an entity separate from the Jacron Sales Company, a Pennsylvania corporation. The Defendant has no Philadelphia office. The Defendant has no obligation under any of the discovery rules to respond to what the Plaintiff's attorney meant to ask rather than what he did ask.' ⁴

This answer left no doubt that it was the Virginia Corporation which appeared to contest the slander suit. Although Sindorf neither amended his declaration to correct the address nor effected service on the Virginia corporation, he accepted that the corporation contesting his suit was the Virginia corporation and not the Pennsylvania corporation. A hearing on the motion to strike the answers was held on 27 March 1974. ⁵ The docket entries under that date as to interrogatory #6 read: 'Plaintiff concedes answer is satisfactory.' The transcript of the trial clearly shows that the parties considered the Virginia corporation to be the actual defendant. For example, Sindorf argued that there could be no conditional privilege to defame (see infra) because the Virginia corporation had never employed him. And when there was dispute over the production of a financial statement of the defendant corporation, both the parties and the court considered such a statement to be that of the Virginia corporation.

Sindorf obviously intended to sue the employer of the person who allegedly defamed him. That employer was the Virginia corporation. The original misconception that Fridkis was employed by the Pennsylvania corporation was cleared up by the answers to the interrogatories. It was the Virginia corporation which filed pleadings, appeared at trial, and defended the suit in fact. We think the Virginia corporation waived any objections with reference to its identity by making a general appearance, Maryland Rule 124 a without making a special or preliminary objection, Rule 124 b and Rule 323. See McGinnis v. Rogers, 262 Md. 710, 279 A.2d 459; Easthan v. Young, 250 Md. 516, 243 A.2d 559; McCormick v. Church, 219 Md. 422, 149 A.2d 768. Any variance between pleading and proof did not mislead or injure the defendant and, therefore, was not fatal. Phillips v. Haugaard, 135 Md. 427, 436, 109 A. 95. See American Stores Co. v. Byrd, 229 Md. 5, 15, 181 A.2d 333.

We conclude that the defendant below was, and appellee on appeal is, the Virginia corporation, hereinafter referred to as 'Jacron'.

The Facts

From the evidence adduced at the trial, we recount the facts and circumstances upon which the cause here is based. Sindorf was employed by the Pennsylvania Jacron for 18 months as a salesman. He resigned on 23 July 1973 because of a dispute over certain sales made by him and commissions he believed due him. The corporation's president, John Langton, testified that 'sales discrepancies' had arisen from Sindorf's selling practices. The discrepancies were not financial but resulted from 'selling to people without checking credit ratings . . ..' Sindorf testified that he would not receive his commissions from these credit sales until payment had been received for the goods and that uncollectable debts were shared 50/50 by himself and the corporation. He claimed that he had not been paid his commissions from his charge sales because the corporation said the accounts were not collected. It was these disagreements which culminated in Sindorf's resignation by letter wherein he explained that he was retaining the inventory in his possession 'as partial payment of the commissions due me . . ..' Subsequently the corporation initiated criminal proceedings against Sindorf because of his retention of the goods. The disposition of those proceedings is not apparent from the record before us.

A few days after his association with the Pennsylvania corporation terminated, Sindorf was hired by the Tool Box Corporation of Maryland upon an interview with William Brose, president of that company. When Langton learned that Sindorf was working for Tool Box, he called Fridkis, Vice President of the Virginia Jacron. He asked Fridkis to verify Sindorf's current employment and to ascertain whether Sindorf had been working for Tool Box at the same time he had been working for the Pennsylvania Jacron. Langton told Fridkis why Sindorf left the Pennsylvania corporation:

'We had mentioned that we had discrepancies with him, the sales picture, and the policy of how he would sell against company policies and do whatever he pleased, and that he had left us and in his possession he had taken with him his complete inventory and wouldn't return it to us. He claimed that he would return it when he would get his commission money.'

Fridkis called Tool Box to talk to Brose, but Brose was not in. Fridkis asked a secretary, Denise Bennett, if Sindorf was then employed by Tool Box. She was not sure. Fridkis said, 'Well, have Bill call me, because we have some things missing and I would like to talk to Bill about Jack.' Denise Bennett recalled the conversation. She said there was no indication in the tone of Fridkis's voice that he was 'mad, vicious, (or) excited,' and he 'appeared to be speaking in a normal conversation.' She was asked, 'What was your thoughts about Mr. Sindorf?' She answered, 'I thought he was a thief.' But she admitted that Fridkis had not said that Sindorf had been responsible for the missing articles.

When Brose returned the call, he and Fridkis talked first about routine business matters. Brose testified that he had a 'nice' business relationship with Fridkis. Although the Virginia Jacron and Tool Box were competitors, they would, at times, exchange goods and information and buy from and sell to each other. Brose said that if a former employee was employed or was about to be employed by Jacron, he would call Fridkis, discuss the employee and apprise Fridkis of any problems. Eventually the conversation centered on Sindorf. The...