Bavington v. Robinson

Constable, J., delivered the opinion of the Court. This is an action of slander, in which, under the instructions of the Court below a verdict was rendered for the defendant, and from the judgment entered thereon the plaintiff appealed. The declaration contained five counts. The alleged defamatory words set forth in the first count were: “Don’t you (meaning the plaintiff) know you .are stealing my corn?

Well, you are;” in the second count, “Don’t you know you are criminally liable? You are;” in the third count, “I (meaning the defendant) am going to see the State’s Attorney, you (meaning the plaintiff) have been robbing me long ⁸⁸ enough.” The fourth and fifth counts restated the same charges. The defendant pleaded the general issue, and filed a special plea of justification to the second count. At the conclusion of the testimony for the plaintiff the Court directed a verdict for the defendant, on the ground that the alleged slanderous words were privileged and the plaintiff had failed to offer any proof of express malice; and it is from that ruling that the only question in this appeal arises, the several exceptions to the testimony having been abandoned by the appellant.

From the testimony it appears that the appellant is a young man engaged in farming and has canned tomatoes since 1906 in his home county, Harford, and on the Eastern Shore. The appellee is a canner and canned goods broker. The canning operations of the appellant had been financed since their beginning by the appellee until the difficulty which gave rise to' this suit. The business of the appellant did not prosper to any considerable degree, and, in 1908, he gave to the appellee a bill of sale to cover the indebtedness to him of two thousand dollars.

On the 8th day of November, 1909, the appellant gave another bill of sale to the appellee for one thousand and fifty dollars for a further indebtedness. The property under this bill of sale included two hundred and fifty barrels of com, then in the field unhusked, the number of barrels being estimated, as well as a lot of farming machinery and some live stock,' all of which remained in the possession of the appellant. On the 18th of December, 1909, the appellee loaned the appellant several hundred dollars on the joint note of the appellant and his father, payable two months after date. The appellant agreed with the appellee, at this time, that the com that was covered by the bill of sale should be hauled and sold by him and the proceeds therefrom applied to the payment of the note.

It was not agreed, however, that it should be hauled at once, but in several conversations it was agreed that it should be held until it advanced to four dollars ⁸⁹ a barrel. On February 21st, 1910, the appellant was standing in the corridor of the Bel Air Court House, talking with some people, when the appellee called to. him. After the appellant had walked over to him the appellee said to him: “How about that corn, have you hauled any of it •out ?” Appellant told him he had hauled out about thirty-five barrels. Upon the appellee demanding the money the appellant told him he had part of it to his credit in bank, a part his father, with whom he lived, had, and a part of the corn had not been paid for, and that since he had not the weights with him he could not tell how much he had received, and, therefore, could not pay him that day.

Whereupon, shaking his finger at him, the appellee in a loud voice «poke the words set out in the declaration. Several persons, who were in the corridor of the Court House, testified as to the use of these words and the manner of the appellee. The only question presented is, should the Court have ruled, upon this state of facts, that the appellee was entitled Io- the protection of a privileged communication? The law upon the subject of privilege is too well settled to admit of serious controversy.

The statement of the testimony shows that if this is to he classed as a privileged communication, it is of course a qualified privilege. Malice is the essential of the action of slander, but it is not necessary that it be proved; when once the slanderous words are proved, malice is presumed.