Jump v. Barnes

Boyb, C. J., delivered the opinion of the Court. This is an appeal from a judgment rendered in favor of the defendant (appellee) for costs in an action for libel brought by the appellant against him. The alleged libel was in a letter dated October 22, 1918, written by the appellee to Mr. O. C. G-lessner. The declaration contained two counts— tire first being based on the first part of the letter and the second on the remaining part of it.

A demurrer was sustained and leave was granted to- amend the first count, which, the docket entries state, was done by an interlineation of the statement, “and received by the said O. C. Glessner and by said Baltimore & Ohio Railroad Co.” A demurrer to the amended declaration wa.s overruled and, after issue was joined on a general issue plea, the ease was tried before a jury. What is called the “amended declaration” is set out in the. record, and only contains the first count of the original declaration as amended, and the second was apparently intended to be omitted. As the demurrer to the amended declaration was overruled and the interlineation could do no possible harm to the plaintiff, it is unnecessary to refer further to the demurrer. The defendant first filed the general issue plea and what we understand was intended to be a plea of justification of ¹⁰³ tlie truth of the matter alleged, and one1 of privilege, on which issues were joined “'short,” but they were withdrawn and the general issue plea refiled, on which issue was joined before the jury was sworn.

A number of exceptions to rulings on the admissibility of evidence; were noted, but as they were not brought up for review by bills of exception, .tbe only question before us is as to the granting of the defendant’s third prayer1 — his first and second having1 been rejected. The plaintiff (appellant) is a farmer and deals in grain, living at Queen Anne, Queen Anne’s County, in this State. The defendant (appellee) was, at the time of the transactions mentioned in this case, agent at Qxxeen Anne for tbe Philadelphia, Baltimore & Washington Railroad Company of the Pennsylvania System. About March 12th and March Utli, 1918, the appellant shipped two carloads of corn from Queen Anne to the Baltimore Pearl Hominy Company in Baltimore.

It was shipped by the Philadelphia, Baltimore & Washington Railroad Company from Qxxeen Anne, but was delivered to the Baltimore & Ohio Railroad Company at Baltimore. The car to which the letter set oxxt in the dec-1 a-ration had reference was R. H. Ro-. 79194, aud contained 1,123 bushels of corn, and the other one was O. R. I. & P. Ro. 37367, containing 1,100 bushels of corn. The Baltimore Pearl Hominy Company claimed that the com was in bad condition when it reached Baltimore, and filed claims against the Baltimore and Ohio Railroad Company for both carloads. C. O. Glessner was auditor of freight claims of the Baltimore & Ohio Railroad Company, and Joseph TL Eisenrieh was a claim investigator in his department.

Both railroads were under the control of the Federal Government at the time, and Messrs. Barnes, Glessner and Eisenrieh were really in the employ of the United States Railroad Administration. In the course of his investigation of the claims, Mr. Eisenrieh wrote, in the name of his superior, C. O. Glessner, a letter dated October 9th, 1918, addressed to “Agent P. R. R. Co., Queen Anne, Md.,” “Supt. Freight Transportation, ¹⁰⁴ P. E. E. Co., Philadelphia,” and others, for information concerning oar Eo. 79194, which in part was as follows: “Agent, Queen Anne, will furnish billing from your station, mechanical inspection record of car prior to loading and after loading was completed, grade, quality and condition, also the amount of moisture contained in this corn at time of loading, advise what the shippers at Queen Anne were receiving for this grade of corn from outside parties on the date the bill of lading was issued; was it old or new crop corn and how long, of the seals, general condition of the corn crop at your section, marks, numbers and impressions on the seals, on side and end doors.

Do you consider the shipper’s weight of 1125 bushels very reliable and correct?” A reply came addressed to C. C. Glessner, dated October 22nd, 1918, from the appellee, as follows: “Dear Sir: This car corn, I understand, was rotten before it was loaded in car here, as it had been stored away in a tight place without much ventilation and was wet when stored, and when hauled out to car was in a mouldy condition and wet, rotten; shipper tried to sell it to farmers here at $1.00 per bushel and could not sell it at any price on account of being so badly damaged. I would consider it rotten, rejected corn from all accounts. I would not consider the weight of 1125 bushels correct as he only weighed a few bags from each wagon load and balance of weight guessed at or estimated, also I have an idea that it was weighed when stored in bags and not weighed again when loaded in car and after being in bags some time it will dry out and fall short in weight. “Yours respet., “E. H. Barnes, Agent.” That is the letter which is set out in the declaration, and in the first count it is alleged that the statement made in the letter from the beginning to “I would consider it rotten re ¹⁰⁵ jccted corn from all accounts,” inclusive, “is false and malicious; that it was made for the- purpose of defeating the plaintiff’s aforesaid claim and for the purpose of injuring the plaintiff in his business as a grain dealer, and that the defendant meant by making the aforesaid statement that the plaintiff had made a fraudulent claim against the Baltimore & Ohio Railroad Go-.” In the second count the rest of the letter was alleged to he false and malicious, etc. The third prayer of defendant, which was granted, was as follows: “The defendant prays ihe court to- instruct the jury that tilt1 evidence produced in this case by the plaintiff shows that the letter incorporated in the JNTarr. and offered in evidence, and alleged to be libellous, was written by an employee of the U. S. R. R. Admin, in the discharge of his duty in answer to a letter from a superior employee of said R. R. Admin, about a carload of corn shipped from the railroad station where said employee- was the agent of said U. S. R. R. Adm. and is a privileged communication, and in order to maintain this action the plaintiff must show that the privilege was abused; and that the defendant was actuated by express malice towards the plaintiff in writing the said letter; that there is no evidence in this case of any abuse- of the defendant’s privilege and no evidence that he was actuated by express malice in writing said letter; the court, therefore, further instructs the jury that there is-no legally sufficient evidence in this ease to entitle the plaintiff to- recover and their verdict must be for the defendant. * * *” The appellant concedes the case to he one of qualified privilege, but insists that it should have been submitted to the jury. We do not understand the appellee to contend that the communication was- absolutely privileged, but he- in effect concedes it to have been one of qualified privilege.

Under our decisions it would seem undoubtedly to be of the- latter class, as may be- seen by some of them, which we will refer to- at some length. In Garrett v. Dickerson, 19 Md. 418 , the remarks relied on in sup-port of the action for slander were ¹⁰⁶ made at a meeting! of the board of directors of the Baltimore and Ohio Railroad Company, of which Mr. Garrett was then a member, in reference to a former employee of the company, who had been discharged. The court, on page 450, said: “The question, whether words sufficient in themselves to raise the legal presumption of malice are privileged, is one of law, determinable from the circumstances leading to and attending their utterance. It is to be observed that words ascertained to be privileged as matter of law still involve the element of fact of 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.” It was further there said that “the jury may look to the words themselves, in connection with other facts and circumstances than those from which the privilege is deduced, in passing upon the question of express malice.” It was held that the case was properly submitted to the jury.

In Maurice v. Worden, 54 Md. 233 , the appellant, who had been a teacher of French at the United States Raval Academy at Annapolis, placed his resignation in the hands of the. appellee, who was the superintendent of the academy, to be forwarded to the Secretary of the Ravy. The resignation was forwarded by the appellee, with his endorsement thereon of reasons why it should be accepted. The appellant sued the appellee for an alleged libel based upon that endorsement. Amongst the regulations for the government of all persons attached to the naval service of the United States was one, of which this court said: “The regulation referred to plainly required the appellee to state his opinion in writing, by endorsement or otherwise, in regard to the propriety of it (the resignation) being accepted.

This he did by making the endorsement complained of. It was therefore made in the line of his duty and'one of the questions presented by the second exception is whether or not his endorsement is a privileged communication, and if so, to what extent?” Judge ¹⁰⁷ Bekxt, in speaking' for the Court, said: “There are two classes of privileged communications which form exceptions to the general law of libel. The one is absolutely privileged and cannot be sued upon, while the other may be the cause of action, and the suit upon it maintained on proof of malieo. “Ho then mentioned those enumerated in Starkie on Libel and BSlander as being absolutely privileged, though false and malicious and made without reasonable or probable cause, which we need not repeat, as neither of them applies to this case1, and said: “Beyond this enumeration we are not prepared to. go.” He referred amongst other cases to that of White v. Nicholls, 3 How. (U. S.) 267, where “the Supremo Court, refused to extend the doctrine of absolute* privilege to eases where the author of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral.” JEdoe Brext concluded his opinion on the question by saying: “We are satisfied that the communication in question does not fall within the class of communications which are absolutely privileged.

We hold it, however, to be privileged, to the extent that, the occasion of making it rebuts the presumption of malice and throws upon the plaintiff the onus of proving that it was not made from duty, but from actual malice’ and without reasonable and probable cause.” The Court referred to some evidence in relation to what transpired between