Gambrill v. Schooley

Pearce, J., delivered the opinion of the Court. This is an action of libel in which the appellee recovered a judgment for five hundred dollars against the appellant in the Superior Court of Baltimore City. The plaintiff offered five prayers, all of which were granted, and the defendant offered fifteen prayers, of which the 4th, 5th, 6th, 7th, 8th, 10th, 1 ith, 12th, 13th and 14th, were granted and his 1st, 2nd, 3rd, 9th and 15th were rejected. A single exception was taken by the defendant to this ruling on the prayers, and the three following questions arises upon the exception : 1st. -Whether the dictation of alleged libellous letters to defendant’s private and confidential stenographer, their reduction by her to stenographic characters, and subsequent reduction to the characters of the alphabet by means of a typewriter, their signing by the defendant, and their transmission by his direction to the plaintiff, is in law a publication of such letters, where there is no communication of any of said letters, in any manner, to any other person. 2nd.

Whether in such case, the proper action is for libel or slander. 3rd. Whether under the testimony in this case, the jury was properly instructed as to the allowance of exemplary or vindictive damages. There were three counts in the declaration upon three separate letters, and the case was tried on the general issue plea, there being no plea of justification alleging the truth of any of the charges contained in any of the letters, either in whole or in part. Of the libellous character of each of these letters there can be no question, but the letter in the third count was shown by the uncontradicted testimony to be wholly in the handwriting of defendant and never to have been read or exhibited to any one ⁵⁹ but the plaintiff, and the jury was properly instructed by the defendant’s fourth prayer that there could be no recovery on the third count.

It was very earnestly and ably argued by the appellant’s counsel that as the two letters in the first and second counts were not otherwise published, than as above stated, there was no actionable publication of either lettery so as to make either one a libel, and consequently, that the Court erred in granting the plaintiff’s 3^ and prayers, and in rejecting the defendant’s first, second and third prayers, which, respectively, raised the contentions of the parties on this point. This is certainly an important question, and one which has never before been raised in this Court. Indeed, the appellant’s counsel states in his brief, that it has never been expressly ruled upon in America, though he has referred us to a case in the Appellate Division of the Supreme Court of New York (Owen v. Ogilvie Pub. Co., 32 App. Div. 465 ), which he contends supports his positions.

The apppellee’s counsel has submitted a very full brief, but has referred us to no American case upon this point. If such authorities existed, we may safely assume they would not have escaped the well-known diligence of counsel, and we have found none such in our own examination ; but the principles and considerations upon which this question should be decided, are not, in our opinion, difficult to determine, and the instructive English cases which have been cited are in accord with these principles and considerations. Before considering the argument of the appellant, it will be well to recall the definition of publication, given by competent authority, as necessary to constitute -slander a libel. Mr. Odgers, in his work on Libel and Slander, p. 150, defines publication, as applicable either to slander or libel, as, “the communication of the defamatory words to some third person and on page 1, he says: “False defamatory words, if written and published, constitute a libel; if spoken, a slander.” It is obvious however that publication is essential to either, and that the words, “if published,” though not repeated in the latter ⁶⁰ clause, must be understood, as if repeated.

For, to shout aloud defamatory words on a desert moor where no one hears them, is not a publication of -the slander, nor is the utterance of such words in a foreign language, a publication, if no one present understands their meaning. Idem. 151. For the same, reason, very clearly, if one should write a defamatory letter, and hand it to a third person, to be read, who -does not understand and cannot read that language, there would be no publication. of the libel. In Pullman v. Hill, 1 Q. B. Div.

(1891), p. 529, Lopes, L. J., defines publication of a libel -in the exact words cited from Mr. Odgers, and in the same case, Lord Esher, Master of the Rolls, defines it, more fully, and perhaps with more technical accuracy, as, “the making known the defamatory matter, after it has been written, to some person other than the person to whom it is written.” Appellant's counsel, in his brief, says, with equal clearness and accuracy: “Publication, in the law of libel and slander, means the transmission of ideas and thoughts to the perception of a person, other than the parties to the suit.” Bearing in mind these definitions and simple illustrations of what is, and what is not, publication, it will be seen that the argument that there has been no actionable publication in this -case, divides itself into two branches. The theory of the first branch is, that while there was in fact a physical or mechanical reception by the stenographer of the thoughts expressed by the appellant, that such reception was instantaneous only, and merely sufficient for their reduction to written characters; but that there was no comprehension, and no lodgment, of their meaning in the brain of the recipient, who acted as a mere phonograph, and whose function in that regard was not a mental, but purely a mechanical process; so that there was no such perception as is requisite to constitute publication. This theory is both ingenious and subtle, but we cannot be persuaded it is sound. • We cannot doubt that the dictation to Miss Willis, though taken down in stenographic characters, produced in her mind as full and complete perception of the 'thoughts of the appellant, as a slower dictation, for the pur ⁶¹ pose of reduction to ordinary characters, would have produced in the mind of one not a stenographer. If this were not so, there could be no assurance that there would be an accurate reproduction of the matter dictated, such as common knowledge gives assurance of from any skillful stenographer.

A communication therefore to a stenographer must be regarded precisely as a communication to an ordinary amanuensis, and as establishing all that is ordinarily necessary to constitute publication. The second branch of the argument is, that in view of the fact that Miss Willis was the private and confidential .stenographer of the defendant, and in view of the almost universal employment, in this country, of such stenographers, and the necessity for such employment consequent upon the demands of business, that a communication to such a stenographer, should be made an exception to the general rule, and be held' not to be an actionable publication. But we cannot adopt this view. Apart from any precedent or authority, we can perceive no good reason why such an exception should be made to the rule.

Neither the prevalence of any business customs or methods, .nor the pressure of business which compels resort to stenographic assistance, can make that legal which is illegal, nor make that innocent which would otherwise be actionable. Nor can the fact that the stenographer is under contractual or moral obligation to regard all his employer’s communications as confidential alter the reason of the matter. This defense was made in Williamson v. Freer, L. R. 9 C. P. 393, where it was held that the unnecessary transmission by a postoffice telegram, of libellous matter, which would have been privileged, if sent in a sealed letter, avoids the privilege ; Lord Coleridge, C. J. saying: “Although the clerks are prohibited under severe penalties from disclosing the contents of telegrams passing through their hands, still there is a disclosure to them!* In Pullman v. Hill, already cited, the exact question here presented was decided. There, the letter containing the defamatory matter was dictated by the managing director of a corporation to a clerk, who took down the words in short- ⁶² Land, and then wrote them out fully by means of a typewriting machine, and the letter thus written was copied by an office boy in a letter-press book.

When it reached its destination, it was in the ordinary course of business, opened by a clerk of the plaintiff; and it was held that the letter must be taken to have been published both to the typewriter and.to the •copy-press boy., as well to the plaintiff’s clerk. Lord Esher, M. R., in the course of his opinion said: “I do not think that the necessities or the luxuries of business can alter the law of England. If a merchant wishes to write a letter containing defamatory matter, and to keep a copy of the letter, he had 'better make the