Evening News Co. v. Bowie

Sloan, J., delivered the opinion of the Co-urt. This is the third time this case has been here. The first appeal was from a judgment on demurrer for the defendant, reported in 148 Md. 569 , where this court held the news ⁶⁰⁷ paper article sued oil libelous per se. The second appeal, reported in 151 Md. 285 , was from a judgment for defendant.

The present appeal is from a judgment for tbe plaintiff, on twenty-six exceptions to tbe evidence, one to tbe rulings on tbe prayers, and one to tbe refusal of the court to' allow tbe defendant’s pleas to be taken to tbe jury room. But eight of tbe exceptions to the evidence were mentioned in tbe appellant’s brief or at tbe argument, though the other eighteen -were not abandoned. Tbe twenty-seventh exception covered all tbe rulings on the prayers, viz.: tbe granting of tbe only prayer offered by tbe plaintiff, and tbe refusal of tbe defendant’s first, second, third, fotirtb, fifth, seventh and tenth prayers. Tbe plaintiff’s (appellee’s) prayer is: “Tbe plaintiff by bis counsel prays tbe court to' instruct tbe jury that if they find for tbe plaintiff in this ease and shall further find that tbe plea of justification has not been sustained by tbe evidence, if tbe jury shall so find, then tbe jury may award tbe plaintiff such damages as in their judgment will be fair compensation for tbe injury sustained and punish tbe defendant for publishing the article complained of.” This prayer only applies when, on all tbe facts offered in evidence, tbe verdict of tbe jury should be for tbe plaintiff.

It would not apply if tbe jury bad been of tbe opinion that tbe libelous article published bad been a substantially correct report of so much of Judge Moss’ charge to tbe grand jury as bad referred to' tbe plaintiff and tbe conduct of bis office as sheriff of Anne Arundel County. It would not apply if tbe jury bad been of tbe opinion that the article published by tbe appellant bad not correctly reported Judge Moss’ charge, and tbe appellant bad sufficiently proved under its plea of justification the facts therein alleged against tbe appellee. In either event such a conclusion by tbe jury would have meant a verdict for tbe appellant. Tbe verdict for tbe appellee could only mean that the jury found tbe appellant bad not published a substantially correct report of Judge Moss’ charge to the grand jury and bad not, under its plea of justification, proven the’truth of ⁶⁰⁸ the charges 'against the appellee.

This being the effect produced in the minds of the jury by the defense of the appellant, and the publication having been declared by this court, in 148 Md. 569 , to be libelous, was the appellee entitled to an instruction to the jury that they could, if they thought the circumstances so warranted, render a verdict for punitive damages? The appellant relies upon the decision of this court in Fresh v. Cutter, 73 Md. 87 , as authority for its contention, that the, appellee’s prayer should have been refused. In the Fresh case Judge McSherry said of the plaintiff’s second prayer that it was erroneous because “it allowed punitive damages to be recovered even though the jury were not required to find the existence of actual malice on the part of the appellant. In cases of this character such is not the law.

If the action brings the words within a qualified; privilege, no damages can be recovered at all unless the plaintiff shows that actual malice prompted the publication or utterance.” The Fresh case differs from the instant case in that the defense there wás one of privilege only, with no attempt to justify. It is well settled that if a publication is made on a proper occasion, from a proper motive, and! defense is made on the ground of privilege, it is necessary for the plaintiff to prove express malice, unless the communication contains expressions which exceed the bounds of privilege. Bavington v. Robinson, 124 Md. 85, 90 ; Fresh v. Cutter, supra. The appellee’s contention, as expressed in its prayer, is that if the defendant files pleas of justification which the jury may find to be unsupported by the evidence, this is. evidence of express malice.

The appellant contends that “a plea of justification, even though unsustained, is not proof of such actual malice as will destroy the defense of privilege,” and cites 36 Cyc. 1237; Odgers on Slander and Libel, 191 and 250, and other authorities. We are aware that there is some difference of opinion as to the inference of malice vel non to be drawn from a plea of justification. Of ⁶⁰⁹ this situation, Newell on Slander and Libel (3rd Ed.), 422, says: “Some of our courts hold that a plea of justification in suits for defamation, if unsupported by evidence is in itself an aggravated repetition of the original defamation and evidence of continuing malice. Other courts hold the contrary doctrine.

In some jurisdictions it is held that when the justification is not fully established the circumstances may be considered in mitigation of damages.” This court has declared for the rule that unsupported plea of justification is evidence of malice. In Blumhardt v. Rohr, 70 Md. 328, 342 , it is said: “The appellant had by plea asserted the truth of the charge his language imputed, and if untrue, as the jury found it to be, it was a re-assertion of the slander and, connected with other circumstances suggestive of malice, it could be considered as some evidence of malice; or, as Chief Justice Parsons expressed it in Wolcott v. Hull, 6 Mass. 514 , where the defendant justified and with proof sought to maintain the charge, fit is evidence of continuing malice.’ ” And in Coffin v. Brown, 94 Md. 190, 199, 200 , it was said: “Although some courts of high authority have taken the contrary view, we are of the opinion that such a plea, when not sustained, is evidence of malice and is an aggravation of the wrong.” “By this plea of justification the defendant assumes the serious burden of proving the truth of the defamatory matter” (McBee v. Fulton, 47 Md. 403, 428 . See also Blumhardt v. Rohr, supra; Coffin v. Brown, supra; Bowie v. Evening News, 151 Md. 288 ) “and is a question for the jury.” We find no error in the granting of the plaintiff’s (appellee’s) prayer. The appellant’s first prayer is the usual demurrer prayer, the second, third, fourth and fifth prayers are respectively demurrers to the evidence under the first, second, third and fourth counts of the declaration.

The several counts were respectively based on the four editions of the Baltimore Evening News of October 20th, 1924, purporting to publish a part of the charge of Judge Robert Moss to the grand jury of Anne Arundel County on that day, wherein Judge Moss ⁶¹⁰ is reported to have severely criticised John Bowie, sheriff of the county, and the police officers of Annapolis. The headline of the article, three columns wide, in the first edition of the paper, were “Jurist Hints at Scandal in Anne Arundel”;“Scandal in Anne Arundel County is Hinted”; in the second edition, “County Scandal Hinted,” “Scandal in Anne Arundel County is Hinted”; in the third and fourth editions, “Jurist Rebukes Anne Arundel Sheriff,” “Sheriff is Rebuked by Judge.” In all the editions is a subhead, “Increase of Bootlegging is called Disgrace in Charge to Jury.” In the publication, what purports to be the charge of Judge Moss is the following: “Special Dispatch to the News. Annapolis, Oct. 20. Corruption in official circles of Annapolis and Anne Arundel County was strongly hinted at by 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.” The appellant’s five prayers are really demurrers to all the evidence, as the only differences are in the headline, the news article being the same in all fo-ur editions of the paper. The only possible reason for offering these prayers is on the hypothesis that the publications were all substantially accurate and fair reports of the charge of Judge Moss to the Anne Arundel grand jury, and that they are within the bounds of privilege. Hnless there be express malice, which ⁶¹¹ in such cases the plaintiff must show, “a report will be privileged if it is substantially a fair account of what took place in court.” “It is sufficient to publish a fair abstract.” Newell on Slander and Libel (3rd Ed.), 669. “Reports of proceeding’s of courts of justice are privileged by the occasion, if fair, bona fide and impartial, though defamatory of individuals and published to the world at large.” McBee v. Fulton, 47 Md. 403, 417 . There is no question here that the publication sued on comes within the class of qualified privilege, and that, in the absence of malice, if it was a fair, bona fide and substantially accurate report of Judge Moss’ charge, the appellant would be entitled to a verdict.

If the facts are uncontroverted and there is no evidence of express malice, the question is ono of law for the court. Bavington v. Robinson, 124 Md. 85, 90 . In that case the court, quoting from Fresh v. Cutter, 73 Md. 87 , said, “Expressions in excess of what the occasion warrants do not per se take away the privilege, but such excess may be evidence of malice.” There is no evidence in this case that the appellant was moved by any hostility, hatred, or ill will toward the appellee in publishing the news item complained of. The situation here was aptly stated in Conroy v. Pittsburgh Times, 139 Pa. 334 , 339 : “Libelous articles in newspapers seldom spring from any hostility to the individual, but usually from a ruthless disregard of personal feelings and private rights in the mad hunt for news and sensations.” It has already been decided by this court, in 148 Md. 569 , that the publication is libelous per se, and its only excuse is the appellant’s claim that it was a fair, bona fide, and substantially correct report of Judge Moss’ charge.

In Garrett v. Dickerson, 19 Md. 418, 450 , it was said: “Words ascertained to be privileged as matter of law still involve the element or fact o£ good faith in speaking them, and that in general, evidence of any act or circumstance tending to show the want of good faith may be offered to remove the protection of privilege, and show the existence of malice.” Bavington v. Robinson, 124 Md. 85, 90 ; Jump v. Barnes, 139 Md. 101, 106 . ⁶¹² Tibe evidence as to what Judge Moss did say in his charge is controverted and fragmentary, and so contradictory as not to warrant this court in saying, as a matter of law, that the publication sued on was a fair, bona fide> and substantially accurate report of his charge. The circumstances under which the news was gathered and reported do not aid in convincing us of its accuracy. “Newspapers have no particular privilege and are required to exercise due care in gathering and publishing public happenings.” 36 C. J. 1273; State Journal v. Redding, 175 Ky. 388 ; Conroy v. Pittsburgh Times, supra. The evidence is that the Evening News correspondent at Annapolis was not in the court-room when Judge Moss charged the grand jury and did not hear the charge. He had heard of it and went to the court-room, and made inquiry, from four or five persons who were present, as to what Judge Moss had said. “I feel sure that one of them was a member of the bar and that they were all people who were capable of stating what happened, * * * and as a result of that I had it pretty clearly in my mind that the judge had said certain things; and I framed the story or rather I took notes. * * * I fiad regarded the story as a very important news story. * * * So when I had the story framed in my mind I * * * called up the office. * * * The facts that I am reasonably sure of are that the judge scored conditions in the county at large in regard to the selling of liquor and .certain conditions at the jail; and that he had criticized official action on account of this Garfield Chase incident.

That is all I remember with any clearness.” He could not remember any of the persons from whom he got his information and did not get a verification of the story from Judge Moss. Judge Moss testified that he had sent the sheriff (appellee) to make an investigation for him of the Garfield Chase incident, and that the sheriff had reported that investigation, which was a verification of the street rumor and more in detail. . Garfield Chase, a negro, himself charged with “boot ⁶¹³ legging,” was a witness against another “bootlegger.” Some friends of the latter, including a justice of the peace, a notary and a chum of Chase, went to the jail and obtained from him a statement which was a repudiation of his story before tbe magistrate. After referring to certain matters in bis charge, Judge Moss testified: “Then I passed to this other matter and, as I repeat, I may have said ‘Sheriff Bowie has verified this information for me/ or something of that kind.

That is as far as I went on that. I then told the grand jury about this transaction as it had been reported to me by -Sheriff Bowie. * * * I didn’t say anything as to conditions at the jail. * * * I did not say that they ought to find him (Chase) guilty of perjury * * * I told them about conditions in tbe upper part of the county. * * *” As to bootlegging “It is my impression that I said it was a disgrace to