Walker v. D'Alesandro

• Decision Date: 01 February 1957
• Docket Number: No. 44,44
• Citation: 212 Md. 163,64 A.L.R.2d 231,129 A.2d 148
• Parties: , 64 A.L.R.2d 231 Glenn F. WALKER v. Thomas D'ALESANDRO, Jr.
• Court: Maryland Court of Appeals

Page 163

212 Md. 163

129 A.2d 148, 64 A.L.R.2d 231

Glenn F. WALKER v. Thomas D'ALESANDRO, Jr.

No. 44.

Court of Appeals of Maryland.

Feb. 1, 1957.

Fred E. Weisgal and Robert C. Prem, Baltimore (H. Warren Buckler, Jr., and Stanley Sollins, Baltimore, on the brief), for appellant.

Edwin Harlan, Deputy City Sol., and Shirley B. Jones, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESSCOTT, JJ.

BRUNE, Chief Judge.

Glenn F. Walker, stated in the declaration to be 'a painter and producer of fine works of art', brought this action in tort against Thomas D'Alesandro, Jr., individually. The declaration contained four counts charging, respectively, (1) the wrongful removal of a picture belonging to the plaintiff from its assigned place in an art exhibit at the Peale Museum (sometimes known as the Municipal Museum) in the City of Baltimore, (2) interference with contractual relations between the plaintiff and the Trustees of the Museum pursuant to which the picture, painted by the plaintiff, was to have been shown as a part of the art exhibit for a period of three weeks, (3) slander and (4) libel. A claim for an injunction under Code 1951, Article 75, Section 136, was included in the declaration. The defendant demurrer to each count of the declaration and in response to an order to show cause why the claim for an injunction should not be granted, filed an answer setting up defenses to that claim raising questions of law and of fact. After a hearing the trial court sustained the demurrer without leave to amend and dismissed the claim for an injunction. Judgment for the defendant for costs was entered, and the plaintiff appeals from that judgment. In this Court he challenges the sustaining of the defendant's demurrer, but not the dismissal of the claim for injunctive relief.

As above indicated, the case was and is submitted on the defendant's demurrer to the plaintiff's declaration. It is old and familiar law that the office of such a demurrer is to test the legal sufficiency of the facts alleged in the declaration to state a cause of action. A demurrer admits, for the purpose of determining that question, the truth of all well pleaded allegations of fact contained in the declaration, and it cannot either contradict facts so alleged or add others. Poe on Pleading (Tiffany's Ed.), Sec. 705; Willoughby v. Trevisonno, 202 Md. 442, 97 A.2d 307; Adams v. Baltimore Transit Co., 203 Md. 295, 100 A.2d 781; De Boy v. Harris, 207 Md. 212, 113 A.2d 903; Martin G. Imbach, Inc., v. Deegan, 208 Md. 115, 117 A.2d 864. If there are facts as to which there is no genuine dispute which the defendant thinks entitle him to judgment as a matter of law, he may, under our modern practice, submit them by a motion for summary judgment supported by one or more affidavits; and if (after an answer or hearing, or both, or an opportunity therefor) the court is satisfied that there are facts as to which there is no genuine dispute, which show a good defense, a summary judgment may be entered for the defendant. See Rule 610 of the Maryland Rules, effective January 1, 1957, and the General Rules of Practice and Procedure in force prior thereto and at the time of institution of this suit, Part Two, dubd. IV, Rules 1-4. Disputed or controversial allegations of fact and denials of facts alleged by the plaintiff are, of course, properly raisd by pleas for determination by trial on the merits.

In the instant case the defendant's demurrer sets forth, with regard to each of the four counts of the declaration, allegations of additional facts which are not to be found in the declaration and which undertake to set up affirmative defenses. To such extent as these asserted additional facts constitute matters of which the court may take judicial notice, such allegations are not open to more than technical objection, since the court may properly take such facts into considration, regardless of what is said in the demurrer. ¹

One paragraph containing allegations of facts additional to those shown by the declaration is to be found among the grounds urged in support of the demurrer as to each of the four counts. (There are further additional, factual allegations in support of the demurrer to the defamation counts which will be mentioned later.) The paragraph common to the demurrer as to all four counts reads as follows: 'That the alleged acts of the defendant were performed by him as Mayor of the City of Baltimore, and not as an individual, in which capacity he was being sued.'

The declaration is silent with regard to the fact that the defendant is, and at the time of the alleged wrongs was, the Mayor of the City of Baltimore. The trial court took judicial notice of that fact, and in this we think there was no error. Lucas v. Boyd, 156 Ala. 427, 47 So. 209; Cooper v. O'Connor, 69 App.D.C. 100, 99 F.2d 135, 118 A.L.R. 1440, certiorari denied 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 414; Wigmore, Evidence, 3rd Ed., Vol. 9, Secs. 2576, 2583; McCormick, Evidence, Sec. 328, pp. 703-704. We find no conflict with this view in Hopkins v. North, 151 Md. 553, 557, 135, A. 367, 368, 49 A.L.R. 1303. We think it is supported by the statement made in State v. Price, 12 Gill & J. 260, that 'We know of no recognized presumption either of law or fact, that imputes to the Court an ignorance of a matter, like the present, of such notoriety as to be within the knowledge of the community at large.' See also Dean v. State, 205 Md. 274, 270-282, 107 A.2d 88, 90, 48 A.L.R.2d 1096, where we held that a judge in Baltimore City might take judicial notice of the fact that there were streets in that City bearing the names stated in an application for a search warrant.

Although we agree that the trial court properly took judicial notice of the fact that Mr. D'Alesandro was the Mayor, we think that whether or not the court could take judicial notice that his actions alleged in the declaration were taken in his official capacity presents two quite different questions. One pertains to taking judicial notice of certain provisions of the Charter and Code of Baltimore City, the other to their sufficiency (if properly before the court) to show that the actions and words complained of were taken or uttered in the discharge of the defendant's duties as Mayor or in matters so closely related to his official duties as to bring him within the protection of the absolute privilege which he claims and to which the trial court held him to be entitled. Underlying the latter of these questions is the question as to whether or not, as the trial court held, the office of Mayor of Baltimore City is an office to which an absolute privilege is extended.

The defendant claims, and the trial court held, that he was entitled to an absolute privilege with regard to actions or words involved in each of the four counts of the declaration. Privilege is not confined in the law of torts to matters of defamation, see Restatement, Torts, Vol. I, § 10; Prosser, Torts, 2d Ed., § 16, though it has many applications in that particular field, and it may be either absolute or qualified. In this case the defendant has elected to demur to the declaration, and a defense based upon a qualified privilege is not available on demurrer. Powell v. American Towing and Lighterage Co., 131 Md. 539, 102 A. 747; Cobourn v. Moore, 158 Md. 358, at page 367, 148 A. 546, at page 549.

The basis for immunity from liability by reason of privilege is that a public or social interest is to be served by according the privilege; and as Professor Prosser observes (op. cit. § 16), 'The sliding scale by which the law balances the interests of the parties to accomplish a social purpose is nowhere better illustrated than in the field of privilege.' An absolute privilege is accorded to judicial proceedings and to legislative proceedings and to the activities of high executive officers. (As regards legislative matters, it is usually established under a constitutional provision). As to executive officers, see Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (U. S. Postmaster General) and Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (State Attorney General). See also an elaborate Note on Defamation in 69 Harv.L.Rev., beginning at page 875, dealing with absolute privilege and the basis therefore at pages 917-924 and with qualified privilege at pages 924-931, and the Restatement, Torts, Vol. III, § 591.

Much of the argument in this Court was devoted to the question of whether or not the Mayor of the City of Baltimore occupies such an office as is within the absolute privilege. We may assume, without deciding, that the privilege does apply, but that assumption does not dispose of the case. The question still remains whether or not the words or actions complained of were said or taken in the discharge of the officer's duty or in some matter closely connected therewith. In Spalding v. Vilas, supra, at 161 U.S. 498, 16 S.Ct. 637, the Supreme Court said: 'As in the case of a judicial officer, we recognize a distinction between action taken by the head of a department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision.' A like rule is recognized in Matson v. Margiotti, supra, a 3-2 decision, in which a vigorous dissenting opinion written by Justice Jones and concurred in by Justice Chidsey was based upon the view that the Attorney General was acting outside the scope of his authority and hence was entitled to only a conditional privilege. See the comment on this case in the note in 69 Harv.L.Rev. above cited, at page 919.

In reaching the conclusion that the defendant was entitled to an absolute privilege in respect of the acts and statements complained of, the trial court took judicial notice of...