Domchick v. Greenbelt Consumer Services, Inc.

Marbury, C. J., delivered the opinion of the Court. The facts in this case, as shown by the record, are as follows. Greenbelt Consumer Services, Inc., one of the ³⁸ defendant-appellees, operates a food store in the town of Greenbelt, Prince George’s County, Maryland. The defendant-appellee, Ashelman, is the general manager of the corporation.

The plaintiff-appellant, Domchick, was employed in the meat department of the food store. He had been employed by the corporation for nine years. For the first six years, he was a meat-cutter, was then made manager of the meat department, and was later demoted to meat-cutter, which position he was filling on November 7, 1950. On that day, a fellow-employee named Faulconer reported to the manager of the meat department that Domchick had sold a customer half a ham for $1.90, which was much below the proper price.

The following day, Ashelman was informed of this accusation, and asked the assistant general manager, Ferguson, to get a written statement from Faulconer, which he did, substantiating his oral report. On November 9, Ferguson called Domchick to his office, discharged him, and gave him a check for his wages up to the time of discharge. Domchick then got an appointment with Ashelman and saw him on November 14. He testified that he told Ashelman he did not do what he was accused of, and wanted a trial before the Board of Directors.

Ashelman, in appellant’s presence, dictated a memorandum of this conversation to his stenographer, and she mailed duplicates to the directors of the corporation at Ashelman’s direction. The pertinent parts of this memorandum were as follows: “* * * I asked Mr. Ferguson to get a written statement from the principal witness involved. This was done, and on Thursday Mr. Ferguson told Mr. Domchick that he was accused of giving away merchandise for less than the regular price and the details. * * * Mr. Ferguson did what I had approved earlier — that we discharge this employee. * * * I am afraid that Pop is going to crusade on the situation. * * *”. “Pop” was Domchick’s nickname. After this discussion, according to Domchick’s testimony, Ashelman called him and said, if he would drop everything, he would pay the two or three weeks wages which ³⁹ Domchick claimed for vacation or termination pay.

Domchick told him he would let him know. Ashelman called him again the next day, and Domchick said he could not accept it. Then the meat supervisor made him the same offer, that he would give him the pay, and he would then resign. Domchick refused this, and, on November 17, wrote to Ashelman requesting reconsideration of his discharge, denying the accusation, asking that the customer to whom he was alleged to have sold a ham, and his wife, be called* and requesting notice in writing of the grounds for his discharge, the latter request being in accordance with the Personnel Policies of the corporation.

Ashelman replied, stating that Domchick was, of course, aware of the details involved, and if he cared to have a hearing, to advise him of the name of his, Domchick’s, representative, the corporation would then appoint one, and they could get together and appoint the third. Domchick then wrote to the chairman of the Board of Directors, Mr. Bierwagen, stating that he was appealing for a hearing by a three-man committee under the provisions of the Personnel Policies, and naming his representative. He requested that Ashelman be directed to give him notice in writing of the specific grounds upon which he was discharged. Ashelman replied to this on November 25.

This letter was dictated to his stenographer and mailed by her to Domchick at the direction of Ashelman. In it he said that in his earlier letter, he had avoided the detailed statement because it might be in Domchick’s interest to do so. However, as more details were requested, the letter said: “You were discharged for misconduct, including the following particulars: “1. On Tuesday, November 7, 1950, undercharging a customer to whom you sold a half ham. “2.

On various occasions removing from the store premises packages of merchandise without checking out and paying for them. ⁴⁰ “In my attempt to investigate the situation, I have uncovered more than enough evidence to back up the charge that it is in the interest of the organization not to have you empolyed any longer. I am sorry that this is the case. “In my letter of the 21st, I failed to mention that we had reconsidered your dismissal. However, as I told you in our conversation, the evidence did not warrant reversing the original decision. The re-investigation turned up addi- ■ titional evidence — which I will be glad to discuss with you — which makes the case closed as far as we are concerned.” In the letter, Ashelman named his representative, at the hearing, and further said: “We have been extremely careful not to discuss the charges except with persons who were directly concerned, and will be glad to cooperate fully in keeping the arbitration hearing private and confidential.” On the same date, two other employees of the corporation stated in writing that they had seen Domchick put items of meat in his clothing or pockets.

These statements, as well as the written statement from the other employee who had given the information about the ham, were typed by Ashelman’s stenographer from the original copies signed by the three men. Several weeks later, there was a hearing before the Policies committee at which, according to Domchick, the three employees all testified to the facts stated in their written reports. The assistant general manager, Mr. Ferguson, testified that Domchick had been discharged for selling the ham, and the grievance committee reported that the discharge of Domchick, “which may have appeared justified at the time, now, after careful review by this committee, appears to have been questionable on the basis of evidence and conflicting testimony which the committee has now heard.” The committee, therefore, recommended that Domchick be reinstated and that he resign his position following ⁴¹ his reinstatement. This recommendation was carried out.

Thereafter, Domchick filed a suit in the Circuit Court for Prince George’s County against the corporation, Ashelman, the three fellow-employees who had testified against him, and an additional employee. The suit as to this last employee was voluntarily dismissed at the trial. The suit was a combination of slander, libel and conspiracy, and the allegations as to Ashelman were: “The defendant, Samuel F. Ashelman, Jr., while acting within the scope, and in the course, of his employment by defendant corporation, and in furtherance of the business of defendant corporation, falsely and maliciously, spoke and published of the plaintiff the words following, that is to say: ‘Mr. Domchick concealed merchandise in his pocket and took it home from the store without paying for it’, and, ‘Pop concealed meat on his person and left the store without paying for it’, and spoke and published of the plaintiff, and wrote and published of the plaintiff in a letter which was sent to the plaintiff, the words following, that is to say: ‘On Tuesday, November 7, 1950, undercharging a customer to whom you sold a half ham’, and, ‘On various occasions removing from the store premises packages of merchandise without checking out and paying for them’, * * followed by an innuendo pointing out that these statements and publications meant that Domchick had wilfully conspired to defraud the corporation, and had defrauded it, and had stolen, embezzled, and converted to his own use, the property of the corporation, and was guilty of the crime of stealing, embezzlement, larceny, larceny after trust, and/or other crimes. The conspiracy charge was against all the defendants, that they had conspired to slander, libel, and defame the plaintiff, and cause him to lose his position.

The corporation was charged with wrongfully discharging him. ⁴² To this declaration, the defendants, and each of them, plead (1) that they did not commit the wrong alleged, and (2) that the alleged defamatory statements are true. The case was-duly tried and at the conclusion of plaintiff’s evidence, a motion was made by all of the defendants for a directed verdict in their favor on the ground that the statements written and made were privileged and malice was not inferred, and there was no evidence of any express malice, and, therefore, there was no legally sufficient evidence to entitle the plaintiff to recover against them. This motion was granted as to the corporation and Ashelman, and a judgment was entered as to each of these defendants for costs. It is from these judgments that the appeal comes here.

The evidence shows no conspiracy by Ashelman or the corporation. No action in tort lies for conspiracy to do something unless the acts actually done, if done by one person, would constitute a tort. Kimball v. Harman, 34 Md. 407, 409 . Miller v. Preston, 174 Md. 302, 312 , 199 A. 471 .

Three of the employees, either truthfully or falsely, reported orally, and then confirmed it in writing, that the complainant had committed certain dishonest acts. On November 14, Ashelman, in pursuance of his duty to his employer, had a discussion with the plaintiff and other employees, and dictated a memorandum to the corporation in the presence of the plaintiff. This memorandum shows a reasonable basis for refusing to reinstate the plaintiff, and indicates in no way any sort of a conspiracy to get rid of him, nor does any of the evidence point to such a conclusion. On the charges of libel and slander, all of the evidence offered by the plaintiff tends to show only that the statements made and the letters and memoranda written were part of the normal and ordinary duties which Ashelman owed, as general manager, to his corporation and its board of directors.

They were, therefore, privileged communications, and, in order to establish a case against Ashelman and the corporation, it would ordinarily be ⁴³ incumbent upon the plaintiff to show express malice. He attempted to do this by his own testimony that Ashelman had demoted him from the managership of the meat department back to meat-cutter, but this testimony shows that as a result of some dissension in the department, Domchick himself had asked for this, and Ashelman had not acceeded to it for about five months, but finally had demoted him. There is in evidence, moreover, a letter from Ashelman to him at that time, February 13, 1950, which indicates quite clearly that there was no bad feeling. This letter says: “Dear Pop — We are paying you at the old rate for last week in appreciation for your help and cooperation.

Best regards and thanks, Sam.” Appellant also contends malice is shown by the memorandum to the Board of Directors, by Ashelman’s attempt to discourage him from a hearing by the Board, by his attempt to “coerce him into dropping the matter”, upon payment of two or three weeks wages if he would resign, and by the fact that, after the plaintiff had appealed, Ashelman, for the first time, accused him of having stolen merchandise, in addition to the ham episode. The appellant says these facts show that Ashelman was motivated by malice, spite, and ill will, and a lack of good faith, and that even if they do not show personal spite and ill will, some of them go beyond what the occasion required and constitute evidence of malice. Fresh v. Cutter, 73 Md. 87 , 20 A. 774 , 10 L. R. A. 67. Jump v. Barnes, 139 Md. 101 , 114 A. 734 .

He further contends that the dictation of the memorandum and letters to the stenographer took the case out of the privileged class. In support of this contention, he cites the case of Gambrill v. Schooley, 93 Md.