Coffin v. Brown

Boyd, J., delivered the opinion of the Court. The appellee sued the appellant for libel and this appeal was taken from a judgment recovered in favor of the former. The alleged libelous words were contained in a letter written by the appellant to Mr. Murray Vandiver, Chairman of the Democratic State Central Committee, a few days before the election held for Governor and other officers, on the 7th day of November, 1899. The Hon.

Lloyd Lowndes was then Gov ¹⁹² ernor of Maryland and was a candidate for re-election. The appellant had been a prominent Republican. After referring to the removal by Governor Lowndes of a supervisor of election and the appointment of the appellee in his place, the portion of the letter quoted in the declaration thus speaks of the appellee : “ This man Brown was a Justice of the Peace under Democratic rule, and at that time kept a speak-easy, where he sold whiskey, and then as Justice fined the men for disorderly conduct. He helped stuff the ballot-box at the Republican primaries in Vansville District two years ago, and has no moral character whatever.

This is the man that Governor Lowndes has appointed as election supervisor. A man that everyone who knows him believes can be induced to perpetrate any crime in politics that will pay him. I shall therefore support Colonel Smith, and hope all Republicans and Democrats who believe in the purity of the elections, will do the same.” i. The defendant filed the general issue plea and nineteen pleas of justification.

A number of the latter were demurred to and the rulings of the Court in sustaining the demurrers to the sixth, seventeenth, eighteenth, nineteenth and twentieth present the first questions for our consideration. The sixth undertook to justify the statement that the plaintiff “has no moral character whatever,” by alleging that he was the agent of the Havener Baking Company of Washington City to sell bread and crackers for said company upon commission, to deliver them to the purchasers, collect the money therefor and return it to the company, “and that in the course of such agency the plaintiff received from said company large quantities of bread and crackers which he has not returned to said company and the value of which, to wit: thirty-six dollars and forty cents he has not returned to said company, although demand therefor has been made upon him, the plaintiff, by said company.” The mere statement of that alleged justification, in the words of the plea, is sufficient to relieve us of further discussion of it, as it will be observed that it is not even alleged ¹⁹³ that the appellee had received the money, and there is nothing in the plea that in any way justifies the charge referred to in it. 2. The seventeenth, eighteenth, nineteenth and twentieth pleas can be considered together. They undertook to justify the statement that the plaintiff was “a man that everyone who knows him believes can be induced to perpetrate any crime in politics that would pay him,” by alleging that the plaintiff committed the wrongs spoken of in the fifth plea and also that he was one of the judges of election for the election held in November, 1990, and while so acting as such judge gave a reward to wit: the sum of one dollar and seventy-five cents to a registered voter of his district to secure his vote.

That is the statement in the seventeenth plea which differs but little from the other three. The only question we need consider in reference to them is whether the defendant is entitled to justify by alleging that the plaintiff had done those acts at the election held in November, ipoo, which was the year after the publication of the alleged libel. As was said in Lewis v. Daily News Company, 81 Md. 473 , “ every publication injurious to the character is, in law, false and malicious, until the presumption of falsehood is met by plea-of the truth or the presumption of malice is removed by showing a justifiable occasion or motive.” That being so it is difficult to see how an act done a year afterwards can be said to meet the presumption that the publication was false. In 18 Ency. of Law (2nd ed.), 1069, a great many cases are cited to sustain the statement in the text that “ to constitute a justification, the precise charge must be justified, and it will not be sufficient,, to offer truth of another charge, though of the same general nature, and though distinct only as to the subject-matter or the time and place.” It cannot be claimed that the statement made in the letter of defendant which is referred to in those pleas was based on what occurred a year afterwards.

So far as the acts set out are concerned, the defendant was not justified in what he said of the plaintiff in November, 1899, and no one could have been so gifted with prophecy as to have- ¹⁹⁴ believed in 1899 that the'plaintiff could be induced to perpetrate any crime in politics that would pay him, by reason of what he afterwards did in 1900. The defendant in a case of-this character-is exempted from liability when - he proves that what he published of the plaintiff was true, but unless he does, or the publication is protected by privilege, it is not justified, even if the defendant in good faith believed the charges to be true and otherwise acted without malice. 18 Ency. of Law, 1074. It was very ingeniously argued by the appellant’s attorneys that the charge was that he " can be induced,” etc., and hence his subsequent conduct tended to sustain that statement. But the defendant said of him that he was “ a man that every one who knows him believes can be induced”—that is every one who knew him at the time-of the publication then believed that he cóuld be induced to perpetrate any crime in politics that would pay him. • It was impossible for. those who knew him to have formed such belief from what had not then occurred.

If- he had been previously guilty of such acts as would justify such a conclusion, there would be some foundation for the statement, but if up to that time he had not been thus guilty then it was not true when made,' and it was none the less untrue then; even if a year afterwards he did something which might tend to show that he was at'that time that character of a man. No authority has been cited by the appellant to sustain the contention and, in the absence of some-binding authority, we can see no reason for adopting a position that would give the alleged acts in 1900 such a retrospective effect as is claimed for them. We think the demurrers to those pleas were properly sustained. 3. There are four bills of exception in the record.

The first embraces a ruling of the Court in admitting a- circular containing this letter and the others refer to the prayers. It will be more convenient to first consider the rulings on the prayers. Those offered on the part of the defendant- were based on the theory that this communication from appellant to Mr. Vandiver was privileged and therefore in the absence of proof of express malice he was not liable. It is contended ¹⁹⁵ that it was the duty of the appellant to make known such information as he had concerning the appellee, who had been appointed a supervisor of election.

It is conceded that it was for the Court to determine whether or not this communication was privileged. There was no testimony offered on the part of the defendant, and it was a'dmitted by counsel that Mr. Van-diver, if present, would testify as set out in a statement filed in «the case, which shows the position he occupied, his duties and that the defendant wrote the letter to him on the 4th day of November, 1899. It is difficult to understand' how it can be contended from what appears in the record that this letter was written by the appellant for the purpose of giving to Mr. Vandiver information concerning the appellee, in discharge of a duty he, as an elector, owed the public. It is apparent that it was aimed at Governor Lowndes and the object was to affect his candidacy.

The statements about the appellee were given as reasons for the appellant not supporting Governor Lowndes, and . manifestly were not intended to enable Mr. Vandiver to take any steps towards the removal of the appellee, who was appointed by the Governor, who alone was authorized to remove him, for good cause shown, upon written charges and after notice and hearing. Code, Art. 33, sec. 3. If such charges has been made in good faith by the appellant against the appellee, to the Governor, in an effort to have him-removed, and the appellee was complaining of that, the appellant would occupy a very different position from that he has placed himself in. There may be a justification from the occasion in some classes of cases and then the words must be proved to be malicious as well as false, to entitle the plaintiff-to recover.

In Fresh v. Cutter, 73 Md. 92 , this Court quoted, with approval -from Harrison v. Bush, 5 El. and Bl. 344, that such justification arises when a communication is “madzbona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, if-made to a party having a corresponding interest or duty * * * and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation.” But ¹⁹⁶ that cannot be extended to an occasion such as this letter presents. Surely the appellant owed no such duty to Mr. Vandiver, or the political party he represented, or to the public as authorized him to thus speak of the appellee, under the protection of the above rule. Nor can it'be said that he had such an interest as is there referred to. To so extend the rule would place a premium on abuse, which is unfortunately already too freely used during political campaigns for the good of the country.

The authorities are not altogether uniform as to how far a public officer, who is a candidate before the people for reelection can be criticised, without subjecting the writer to a suit for damages. In this State it has been said that while the official conduct of a public officer may be discussed and criticised, within lawful and proper limits, “ if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base c’and corrupt motives, he must do so at his peril; and must either prove the truth of what he says or answer in damages to the party injured.” Negley v. Farrow, 60 Md. 177 . In 18 Ency. of Law, 1041, it is stated that “the prevailing rule is that charges imputing a criminal offense or moral delinquency to a public officer cannot if false be privileged, though made in good faith and this though the charge relates to an act of the officer in the discharge of his official duties,” and many cases are cited. In the same volume on page 1042 the right is fully recognized to discuss the fitness of a candidate for office and to communicate to other electors any facts within his knowledge concerning the candidate’s character or conduct, and express his opinion thereon “ so long as he states as facts only the truth and as opinion only honest belief,” but it is said to be the prevailing rule that “the publication of falsehoods against the character of the candidate, as for instance charges imputing to him a criminal offense, whether the charge relates to the candidate’s prior official conduct or not, does not come within the domain of a privileged communication.” While there are some authorities that hold that defamatory words published of a candidate are ¹⁹⁷ privileged, if circulated in good faith, or according to some of them if founded on probable cause, there are none that we are aware of, and if there were such we would not follow them, that go to the extent contended for in this case.

This letter was doubtless intended, as we have said, to affect Governor Lowndes’ candidacy, but if the greatest possible latitude be given to such publication against one situated as he was, being a public official who was a candidate for re-election, it cannot be that the appellant was privileged to make such charges against the appellee, who was not a candidate for office at that election, if they be not in fact true. Is it to be said that in order to inform the public of the conduct and character of a candidate for office, any elector can publish false and defamatory statements about any appointee of such candidate without being called upon to answer for them, unless the injured party can establish express malice? To announce such a doctrine would in many cases result in refusing those thus wronged redress for injuries which are far dearer to most men than loss of property, for which the law furnishes relief against the wrongdoer, as it would often be impossible to establish express malice. Freedom of speech and liberty of the press are among the boasted rights of the people of this country, but the abuse of either is not only calculated to cause breaches of the peace, but to do irreparable injury to innocent persons.

If every appointee of a President, Governor, or other officer seeking re-election, is to be liable to be subjected to false charges, imputing crimes or other acts that bring reproach upon him,-and he is to be deprived of all redress on the theory that words so uttered or published are privileged, then indeed is his lot an unfortunate one. When public officers, for political or other purposes, select for important positions those who are utterly incompetent or of bad character, such officers deserve to be exposed, but when direct and specific charges are made