Cheek v. J. B. G. Properties, Inc.

Lowe, J., delivered the opinion of the Court. The moral disdain one feels for the quick tempered who abuse another with vile or abusive language has not always been equated by the courts with potential civil liability. When Christ said “whoever says to his brother ‘Raca,’ shall be liable to the Sanhedrin and whoever says, ³¹ ‘Thou fool!’, shall be liable to the fire of Gehenna,” 1 His opinion was not expressed vis a vis First Amendment rights as interpreted by the Supreme Court. While the danger of hell-fire is not lessened by each opinion that Court hands down, the dangers of retribution in this life certainly are.

The courts historically — and more so contemporarily — have declined to restrict legally the freedoms of speech and press 2 to the extent they were morally restricted by the Christian religion. This perhaps arises from the origin of the action. 3 Defamation was treated initially as a dispute to be arbitrated by local seignorial courts in their super-parent roles. As these dissipated, along with the feudalism that sustained them, defamation fell under the aegis of the ecclesiastical courts where it was punished with a penance as a sin. While some defamatory tort action trickled into the civil courts during the sixteenth century, the marked metamorphosis had to await the historically renowned Court of the Star Chamber.

The jurisdiction was not gracefully given over by the ecclesiastical courts and was even more grudgingly received from them, by the civil courts, on a case by case basis. With the abolition of the Star Chamber, however, common law courts assumed libel in its entirety, and slander more gradually. There continued to be recognized a difference between libel, which was criminal as well as tortious, and slander which was not criminal unless made punishable by statute. Perkins on Criminal Law, (2nd ed.), at 414.

Although not as frequently expressed as in years past, the reverence given the printed word has continued to project libel as the more onerous tort. Indeed, as slander jurisdiction was eased upon the common law courts, they preserved the jurisdictional ³² barrier by requiring proof of “temporal” damage. Prosser, Law of Torts, (4th ed.), at 754 citing Holdsworth, Defamation in the Sixteenth and Seventeenth Centuries. The distinction between the two torts has survived the Revolution and appears in Maryland case law in the form of a presumption: “There is, however, a distinction between oral and written or printed defamation, and the presumption that words are defamatory arises much more readily in cases of libel than in cases of slander.” Bowie v. Evening News, 148 Md. 569, 574 ; See also Greenbelt Coop.

Pub. Ass ’n v. Bresler, 253 Md. 324, 355 . Beyond that presumption and the common sense maxim “scripta manent, verba volent,” 4 the primary recognition given the distinction 5 has been based on the extent of the defamation’s dissemination resulting from the means of publication used. One further and basic difference retained is the emphasis placed in slander cases upon the type of damage allegedly done.

Arising from the transitional requirement of proof of temporal damages, there arose a practice, if not a rule, that slander is not actionable unless actual damage is proven. ³³ From this grew certain exceptions which did not require allegations or proof of actual damages. They included imputation of a crime or of a loathsome disease and defamations affecting one in his calling. Maryland has added by statute the slander of a female by injuring her character or reputation for chastity. Cts.

Art., Sec. 3-501, 502. This type of defamation was considered so obviously detrimental, no proof of any actual harm to reputation or any other damage was required for either nominal or substantial damages. Proof of the statement itself is considered to establish the existence of some damages, i.e., per se, and the jury is permitted, without other evidence, to estimate the amount. Prosser, Law of Torts, at 754.

This oddity of tort law recognized as “the doctrine of presumed damages” (although usually referred to as “general damages”) is not applicable, however, to less substantial slanderous utterances which become actionable only by reason of some “special damage” 6 (i.e., per quod) whereby the claimant has been put to expense or inconvenience as a consequence of the defamatory language; or the loss of some benefit by reason of the wrongful utterance. Poe, Pleading and Practice, Tiffany Ed., Vol. 1, Sec. 174, at 132. Accord General Motors v. Piskor, 27 Md. App. 95 at 119 . The issue of whether the words used are in and of themselves damaging, i.e., actionable per se, is a matter of law for the court’s determination.

American Stores v. Byrd, 229 Md. 5 ; Piskor, supra, at 123 . In the absence of an alternative, the issue may be resolved as a pleading question by a demurrer. Cf. Thompson v. Upton, 218 Md. 433 .

If a plaintiff asserts defamatory language which is not damaging in and of itself and fails to set forth (or to support by specific proof) special damages whereby he was injured (per quod), it follows that he cannot recover. ³⁴ Punitive Damages Exemplary or punitive damages, as the name connotes, are rather a punishment for and deterrent to wrongdoing than a means of recompensing the victim. To the victim they are a windfall not necessarily related to the injury he has suffered. “Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Gertz v. Welch, 418 U. S. at 350, 41 L.Ed.2d at 811. The Court of Appeals early held that punitive damages are not proper in libel and slander cases, unless malice is shown on the part of defendant. Snyder v. Fulton, (1871) 34 Md. 128 ; Fresh v. Cutter, (1890) 73 Md. 87 .

Once again, however, the court’s decision on whether the utterance was damaging per se may be significant in determining the propriety of punitive damages. Where the words are damaging per se, and there is nothing to rebut the imputation of malice, punitive damages as well as “general” compensatory damages, may be awarded. Shockey v. McCauley, 101 Md. 461 . The Facts Appellants, 7 who were tenants in an apartment building, sued their corporate landlord, J.B.G. Properties, Inc. (J.B.G.) and the apartment manager, Alfred A. Flori (Flori) for slander and trespass.

It appears that Mr. Flori and an assistant came to the Cheeks’ apartment to perform plumbing repairs. An argument ensued in which Mr. Flori, in the presence of guests, was quoted by Mrs. Cheek as saying: “ ‘He wheeled and came up and said ‘I have had it with you Cheeks, you have been nothing but trouble makers ever since you moved into the building. You can’t control your kids and your son was out playing football and the football hit the window. I came out and the boy told me he could play where ³⁵ he wanted to.’ I said T don’t believe that.’ He said T watched your daughter break branches off a $50 tree that I just bought.’ I said T don’t believe that.’ He said ‘It’s true, I don’t care whether you believe it or not.’ I said ‘Why didn’t you say something to her if she was in the wrong.’ He said T couldn’t be bothered.’ He said ‘First of all, I thought it was a little girl out there playing football.

I asked my wife if it was a boy or a girl and she said it was Joey Cheek.’ ” After this outburst she became emotional and went into her bedroom and called her husband. During the period of time between the incident and the trial she was in an emotional state at various times, apparently from this event. Mrs. Cheek was allowed to testify that she had to obtain a prescription for tranquilizers from her doctor. The jury returned a verdict on May 3, 1974 for each plaintiff against each defendant: 1.

Aubrey A. Cheek, against: a. Flori — $250 compensatory; $1250 punitive b. J.B.G.— 250 compensatory; 250 punitive 2. Debra Ann Cheek, against: a.

Flori — $250 compensatory; $1250 punitive b. J.B.G.— 250 compensatory; 250 punitive 3. Joseph Scott Cheek, against: a. Flori — $250 compensatory; $1250 punitive b.

J.B.G.— 250 compensatory; 250 punitive 4. Eugenia Sue Cheek, against: a. Flori — $250 compensatory; $1250 punitive b. J.B.G.— 250 compensatory; 250 punitive A motion for judgment n.o.v. or for a new trial “or Remittitur” was filed on May 6, 1974.

On June 21, 1974 the motion was heard and’decided. The trial judge denied the motion for a new trial although he candidly admitted that he “would have reached an entirely different result.” While on the one hand noting the difficulty we often have of sensing the flavor of the case from the cold record, 8 the judge ³⁶ adopted a unique means of ameliorating the result he did not like. He decided that the jury wrongfully apportioned the punitive damages as between the two defendants. He decided that punitive damages were a “joint and several obligation” and could not be apportioned by the jury.

He therefore entered judgment n.o.v. for all those punitive damages which exceed $1000. In effect he reduced the punitive damages from a total of six thousand dollars from both defendants, to a total of one thousand dollars presumably to be divided equally among the four plaintiffs in the amount of $250 each. Seven weeks later, acting sua sponte, he decided that the judgments he had directed be entered as reduced by him “were below the jurisdiction of [the] court” and he therefore: “ORDERED, pursuant to Maryland Rule 625 that the Judgments heretofore entered in this case BE and the same ARE hereby vacated, and it is further ORDERED, pursuant to Maryland Rule 653 that judgments of non-pros shall be entered in this case on the final verdicts. ...” 9 The plaintiffs below (appellants here) were apparently ³⁷ satisfied with the verdict of the jury but question the action of the trial court following that verdict. They contend that the court’s after-the-fact determination that punitive damages are not apportionable is error, that the entry of judgment n.o.v. reducing the punitive damages to the lowest common denominator was error, and that the entry of judgment non-pros pursuant to Md. Rule 653 was error.

Defendants below countered by cross-appeal. They contend here (among other things) that “the words alleged to have been spoken are not slander per se as a matter of law.” Because the trial judge left that for the jury to determine as a matter of fact, rather than ruling upon it as a matter of law, we shall reverse. Cross-appellants’ tangential issues need not be discussed; however, because we will remand for new' trial it is desirable if not necessary that we comment upon issues raised by appellants. Slander Per Se, A Question of Law The record reveals that the appellees, who have cross-appealed, excepted to the court’s instruction on slander per se. “MR.

ABELL: I would also like an exception to the slander per se; I don’t think that the language that you can’t control your children is specific enough to indicate the charge of any crime. Secondly, the instructions as it goes to the daughter of cutting down tree branches from trees, at her age it would not be a crime in any event. She was a juvenile and this would be my exception on that.” Those portions of the judge’s instructions relating to slander per se and the damages premised thereon were as follows: “The first category of slander is what we call ‘slander per quad’ or quod, if you are a real purist in Latin. In order for the plaintiffs to recover for the utterance of defamatory words in this class, you must find all of the following.

That they were ³⁸ false, that they were spoken with malice, that they were published and that they caused some specific damage to the plaintiffs. Now, the words that are alleged to fall into this category are the statement ‘You Cheeks have been nothing but troublemakers since you moved in’, or words to that effect. Those words, if slanderous, are slanderous per quod. The second category of slander is what we call ‘Slander per se.’ That translated means words as such are slanderous.

In order for the plaintiffs to recover under this category, you must find only that the words were false and published and that they accused the plaintiffs or any of them of the commission of a crime intended to injure them and their reputation. You will understand that if you accuse someone falsely of the commission of a crime, you have tended to injure his reputation, so the crucial part about these words of this type is that they must be false as well as published. Now, the statements that are alleged to fall into this category are the statements allegedly made by Mr. Flori to the effect that ‘You can’t control your children and I watched your daughter snap branches off a tree I paid $50 for just yesterday’, or words to that effect. Compensatory damages in a slander case is divided into two parts.

We will call the first part special damages. Those are damages which have actually occurred as the natural result of the wrong committed. They include money actually expended, time lost from work as well as pain and suffering, humiliation, mental anguish and so on. If you find that the words were slanderous per quod, those are the only kind of special damages that you can consider.

If you find that there were words which were slanderous per se, you are also permitted to ³⁹ consider in addition to the special damages, general damages. These are damages which the law presumes must necessarily result from the publication of the defamatory matters. Even if there were no special damages shown, you may allow damages to the plaintiffs or any one of them for the value that you assign to the loss of reputation that you are satisfied has been proven as a result of the slander. In addition to the general damages and special damages, which are part of compensatory damages, you don’t itemize or break them down, compensatory damages would be a single lump sum or figure encompassing either or both types of damages.

In addition to that, the plaintiffs claim punitive damages. Compensatory damages as the name suggests are damages to compensate. Punitive damages on the other hand are damages designed to punish. You may not allow punitive damages unless you find some compensatory damages.

If you find some compensatory damages, you will consider whether or not you will allow punitive damages. Punitive damages are designed to punish the defendants for the wrong they have done for two reasons. First, to warn them that they must not do it again and secondly that if anyone hears about their predicament would be dissuaded from doing similar things and getting in such a predicament themselves. If you find that the statements were slanderous per quod, made with malice or if you find there were statements made slanderous per se, which case you don’t need malice, you may award punitive damages.” [Emphasis added].

In American Stores Co. v. Byrd, 229 Md. at 15 , after a thorough analysis of the historical distinction between slander damaging per se and per quod, Judge Horney said: “With respect to the further contention concerning actionability per se, we agree that ⁴⁰ ordinarily it is the responsibility of the court, when required to do so, to rule as a matter of law (and not the duty of the jury to find as a fact) whether the words and behavior of a speaker are actionable per se. But inasmuch as there was no objection to the instructions, we need not decide in this case whether the slanderous per se character of the alleged defamatory words and behavior were properly submitted to the jury.” More recently Judge Levine quoted that same paragraph in Montgomery Ward and Co. v. Cliser, 267 Md. 406, 423 , but was able to avoid the issue for other reasons: “We need not decide whether in this case the issue should have been decided by the court as a matter of law, since we have determined that the words and conduct were actionable per se.” We are not so fortunate; here we must face the issue. The words and conduct were not damaging per se and timely exception was taken to the instruction. Appellants contend that Mrs. Cheek was slandered per se since the assertion that she could not control her children charged a violation of Article 26, § 91 10 (now Cts.

Art., § 3-840) and that her children were slandered per se by the charge that they broke branches off of a fifty dollar tree. Appellants contend the latter is an indictable offense, although they do not tell us what one can be indicted for if one breaks twigs off of a tree. Presumably they assume the ⁴¹ accusation charged some crime such as malicious destruction of property, Md. Code, Art. 27, § 111. Even allowing for such an assumption, that accusation could hardly be said to have the ominous overtones that a charge in 1808 of poisoning another’s horse would carry, and yet so harsh a charge as that was held not to be actionable per se.

Chaplin v. Cruikshanks, 2 H & J 247. The offending words must impute an indictable offense for which corporal punishment is the immediate penalty to be actionable in slander cases, 11 Griffin v. Moore, 43 Md. 246 ; Dorsey v. Whipps, 8 Gill 457 , and it is hardly likely under our current law and philosophy that the breaking off of a branch or branches of a fifty dollar tree would be such an offense even if the perpetrators had not been juveniles. Cts. Art., § 3-801, et seq.

(former Art. 26, § 51.) Nor do we see the charge that Mrs. Cheek could not control her children as a crime or as such an indictable offense. The juvenile law to which appellants point calls for “wilful neglect” of a parent before the offense is punishable and even then it falls under the juvenile jurisdiction of the circuit court. It is apparent that the language used was intended to offend, but it is certainly not language that the average lay person could construe as charging indictable offenses as a matter of law. Pollitt v. Brush-Moore Newspapers, Inc., 214 Md. 570, 575 ; Blumhardt v. Rohr, 70 Md. 328 .

Since we do not know whether the jury verdict awarding punitive and compensatory damages was based on a presumption of malice arising from what it erroneously treated as a slanderous per se remark, that possibility requires that we reverse and remand for a new trial. An award of compensatory damages on a slander per quod theory would require proof, and a jury finding, of actual damages; an award of punitive damages upon that theory ⁴² would require proof, and a jury finding of actual malice. Fresh v. Cutter, 73 Md. at 92 . As we have indicated, we see no purpose to be served in reviewing the contentions raised by cross-appellants on the issue of trespass.

We are concerned with the procedural aftermath of the trial and the reasons given by the court for its action which were the essence of the direct appeal by plaintiffs below. Although our ultimate result would release us from the obligation of responding to the question of apportionment of punitive damages — as yet undecided in Maryland — or the unique procedural wake that flowed from the court’s views on that question, we feel that in this