Bowie v. Evening News Co.

Urner, J., delivered the opinion of the Court. On the former appeal by the plaintiff in this case, from a judgment on demurrer for the defendant (Bowie v. Evening News Co., 148 Md. 569 ), we held that the declaration stated a good cause of action for libel, and we, therefore, reversed the judgment and remanded the case for further proceedings. The alleged libel consisted of the publication by the defendant in the Baltimore Hews of the following statement: ²⁸⁸ “(Special Dispatch to the News), Annapolis, Oct. 20. — Corruption in official circles of Annapolis and Anne Arundel County was strongly hinted at hy Judge Robert Moss of the circuit court in his charge to the grand jury this morning. The judge’s charge also included a stinging rebuke to Sheriff Bowie of the county.

After declaring the increase of bootlegging was a disgrace to the county, Judge Moss said a clean-up of conditions was in order. He referred to Garfield Chase (colored), who was employed as a 'stool pigeon’ by the sheriff’s office in running down bootlegs, and said repeated attempts to tamper with Chase and make him useless as a State’s witness had been made. He blamed Sheriff Bowie for permitting these attempts, and intimated that a member of the city police force was responsible for them. The court insisted that Chase be indicted either for bootlegging or for perjury, and urged the jury to go to the bottom of the plot to save those against whom Chase was to testify.” This publication was held to be actionable per se as imputing to Sheriff Bowie, the plaintiff, a dereliction in the performance of his official duty in regard to the enforcement of the prohibitory liquor law of the county.

After the remand of the case to the Superior Court of Baltimore City, the defendant filed a general issue plea to the declaration, and also special pleas denying the alleged falsity of the published statement, and alleging that it was a substantially correct report of Judge Moss’ charge to the grand jury, and was a privileged publication. The trial resulted in a verdict for the defendant, and on this second appeal by the plaintiff, the questions to be decided are raised by a demurrer to the special' pleas and by certain exceptions relating to the evidence and the prayers. In denying that the charges against the plaintiff in the publication complained of were false, the special pleas in effect asserted the truth of the accusations. By thus pleading justification, the defendant assumed the burden of proving that the plaintiff was in fact guilty of the official delin ²⁸⁹ quency imputed to him in the newspaper report under consideration.

McBee v. Fulton, 47 Md. 403 . If the defendant had relied simply upon its qualified privilege in publishing reports of judicial proceedings, that defense would have-been sustainable, in the absence of actual malice, by proof that the published summary of Judge Moss’ charge to the-grand jury was substantially correct. But in averring that the reported charges were true, the defendant raised an, issue of fact which the plaintiff was entitled to have properly defined for the purposes of the trial. The point of the-demurrer to the pleas is that they fail to specify the acts- or omissions to which the imputation against the plaintiff’s, official conduct, as printed by the defendant, is intended to. refer.

When an alleged libelous charge is general in its nature,, a plea of justification must specify the facts upon which, the charge is founded, but when the libel consists of a, specific accusation, a general averment of its truth is sufficient. Bingham v. Gaynor, 203 N. Y. 27 ; Dowie v. Priddle, 216 Ill. 553 ; McLaughlin v. Cowley, 127 Mass. 316 ; Hauger v. Benua, 153 Ind. 642 ; Salinger v. Cowles, 195. Iowa, 873; Herald Publishing Co. v. Feltner, 158 Ky. 35 ; Stark v. Knapp, 160 Mo. 529 ; Callfas v. World Publishing Co., 93 Neb. 108 ; Fodor v. Fuchs, 77 N. J. L. 92; Amos v. Stockert, 47 W. Va. 109 ; Krulic v. Petcoff, 122 Minn. 517 ; 37 C. J. 43-4; 17 R. C. L. 400. In the first of the cases just cited, the Court of Appeals, of New York said: “A general allegation charging a person with something that is libelous per se cannot be successfully answered by a general allegation in the answer that the charge is true.

In Wachter v. Quenzer, 29 N. Y. 547, 552 , this court referring to this subject say: ‘Take, for instance, a charge that one is a thief or a murderer, or that he has committed perjury. A statement in the answer that the words are true would not be a justification, and it would fall just as far short of being a statement of facts to ²⁹⁰ be proved by way of mitigation. It is a statement of nothing. It is simply a repetition of the libel.

The reason for this rule is that it does not give to the plaintiff any clue of what the defendant intends to prove upon the trial. The answer in such a case ought to set forth the facts upon which it is alleged that the allegations of the complaint are true. A mere general statement of the truth of the allegations of the complaint is a conclusion and does not constitute a sufficient answer when considered upon demurrer. There is an exception, however, to the rule that a plea must be specific in its denial, and that is where the charge is specific.

Take, for instance, a charge that the defendant, on a day and at a place named, took specified articles of personal property under such specified circumstances as to justify the conclusion that the taking was willful and a larceny. In such a case an answer can be interposed alleging generally the truth of the specific statements of fact alleged in the complaint by the publication of which it is charged the plaintiff has been libelled.” In that case the libel included the following language in reference to the plaintiff: “Scoundrelism.” “The police commissioner is doing all he can to make it impossible for him (Duffy) to lead an honest life and make an honest living and to force him (Duffy) instead to a life of crime.” “Incompetents, corruptionists and sometimes buffoons who are put in rulership over” the men on the police force. “It is an ordinary thing for the police commissioner to refuse to obey the decisions of the courts and compel the police force to disobey them.” “The despotism and lawlessness of the police commissioner is shocking.” These charges were said by the court to be “general in terms,” and to require “a specific and not a general answer.” In the present case it is urged by the plaintiff that the quoted allusions to him in the defendant’s newspaper were general reflections upon his official conduct, and that the defendant should not have been permitted to assert at the trial that the imputations were true, without specifying by pleas ²⁹¹ the particular charges which he would be required to meet. The conceded purpose of the pleas, in denying that the published references to the plaintiff were false, was to enable the defendant to offer evidence that the publication was true and therefore justified, and testimony designed to support that theory was in fact offered and admitted. But the defendant was not entitled to make such a defense unless the pleas sufficiently notified the plaintiff’ as to the nature and scope of Jhe proposed attack upon his official record.

The adequacy of the pleas, for the purposes of a defense of justification, depends upon the question as to whether the charges said to be libelous were general or specific. In considering on the former appeal the meaning and effect of the publication, and deciding that the declaration alleging it to be a libel was not demurrable, the Court, speaking through Judge Offutt, said that “the natural and plain inference to be drawn from the whole article, including the headlines, is that Bowie was rebuked for some dereliction in the discharge of the duties of his office which was. connected in some way with the increase of ‘bootlegging/ which was a ‘disgrace’/’ and that the “plaintiff was a public official, enjoying his office as a result of public confidence and trust, and when the public were informed in the most striking and conspicuous manner by a powerful and influential journal widely circulated that he had been officially rebuked by the very court which his duties required him to serve, and when that statement was followed by the charge that that court had hinted at ‘corruption’ in ‘official circles of Annapolis and Anne Arundel/ of which ‘circles’ he was a part, and by the further charge that the ‘increase of bootlegging was a disgrace to the county, and that the court had blamed him for permitting a State’s witness used in such cases to be tampered with, the natural and likely impression which it would convey to the 'average and ordinary reader would be that the court had rebuked Bowie because his conduct had shown him unfit to perform the duties of his office, and it was, assuming that the charge was false and malicious, and that no such statement was made by the court, libelous per se.” ²⁹² The intimations of corruption in official circles of Anuapolis and Anne Arundel County, and of delinquency in ■checking the increase of bootlegging, were certainly not specific accusations. As already construed by this Court, they "were merely general imputations of unfitness of the plaintiff for his office as sheriff, and of “some dereliction” of duty '“which was connected in some way with the increase of bootlegging.” The statement in the report of the judge’s charge that he blamed the plaintiff for permitting attempts to tamper with a “stool pigeon” employed by the sheriff’s' office in •detecting bootleggers, and to> make him useless as a State’s 'witness, was held in the former opinion not to- impute dishonesty to the plaintiff, as averred by innuendo' in the decla"ration, since there was “nothing in the article or elsewhere ■to- indicate how he could have prevented the attempts.” We have not found any cases in which pleas asserting generally the truth of such general publications as those here under discussion were held to be adequate for the purposes •of a defense of justification. .To sustain such pleas in this ■case would be to oppose the uniform trend of the decisions in relation to a reasonable rule of pleading designed to serve 'the practical ends of justice. In our opinion the demurrer to the special pleas should have been sustained.

The first exception was taken in the course of the testimony ■of Mr. John E. Cullen, vice-president of the defendant corporation, who was called by the plaintiff as a witness to prove 'the publication in controversy. On cross-examination he was asked whether the defendant in making the publication was animated by actual malice. As Mr. Cullen was not then in charge of the Baltimore Hews, he confined his answer to the statement: “Apparently the story