Picone v. Talbott

Lowe, J., delivered the opinion of the Court. Appellants ask us to review the sufficiency of the evidence upon which a jury of the Circuit Court for Prince George’s County returned a verdict against them for malicious prosecution and defamation. They also ask us to find reversible error because the verdict was returned against both appellants equally for compensatory and punitive damages, notwithstanding the fact that the case presented to the jury against appellant Picone was for malicious prosecution only, while that against appellant Hall was for defamation as well as malicious prosecution. Both torts arose out of the same set of circumstances.

Rena A. Hall handled the leasing arrangements of a small office building owned by her mother, Rose J. Picone. In November of 1970, Hall leased the premises to ITS Company by whom the appellee, Dona Talbott, was employed to provide limited tax consultant services to the public. Subsequently, an altercation over rent arose which provoked Hall into affixing several “for rent” signs to the building, which signs were removed by employees of the ITS Company, the lessee. As additional signs were replaced, they were precipitously torn down.

Hall then obtained arrest warrants for two of the officials of the ITS Company after, which she once more affixed her signs to the building. She testified that Talbott removed the signs on this occasion causing her to return to the police station where she had a warrant issued for Talbott. There was direct contradiction of testimony as to whether Talbott removed the signs. Talbott explained that they were ⁵³⁹ removed by the “main office” and not by her.

Hall produced testimony of witnesses who claim to have seen Talbott remove them. Whatever may have been the truth, Talbott produced further testimony of a conversation in the presence of another whereupon Hall said to Talbott either “If you touch my signs again I will have you arrested” or “Goddamn you, Dona, if you take down another sign I’m going to swear out a warrant for your arrest.” Presumably, the defamation claimed is not the invocation of the wrath of the Almighty, but rather the use of the adverb “again” giving rise to the implication that Talbott had previously removed Hall’s signs. This grievous accusation is at the root of Talbott’s action for defamation. Of greater significance were the arrest warrants and their aftermath.

While at work with a customer, Talbott was arrested by a uniformed officer and, in front of a considerable crowd of spectators, “[t]he police were trying to arrest her and handcuff her and take her in the paddy wagon with them.” The arrest was thus accomplished to the chagrin of a distraught appellee crying and “on the verge of hysterics.” She was charged with the wilful and malicious destruction of property in violation of Md. Code, Art. 27, § 111. When she appeared for trial four months later, the State produced no witnesses and she was acquitted. Malicious Prosecution Without belaboring the question of whether the evidence of malicious prosecution was sufficient as to appellant Hall, suffice to say that we concur with the action of the trial judge below in submitting the issue to the jury. The trial for malicious destruction of property initiated by Hall was terminated in appellee’s favor; a want of probable cause was inferable from the manner in which it was terminated, i.e., dismissal for lack of prosecuting witnesses.

From that want of probable cause (the inference of which was bolstered by affirmative evidence that appellee had not removed ⁵⁴⁰ appellants’ signs) the jury could have inferred malice. These factors satisfy the requisites of the tort of malicious prosecution as set forth in Durante v. Braun, 263 Md. 685, 688 ; Banks v. Montgomery Ward & Co., 212 Md. 31, 38 , and others. Mindful that we must view the evidence and all possible inferences therefrom in a light most favorable to plaintiffs case when reviewing a lower court’s denial of a motion for a directed verdict, Safeway Stores, Inc. v. Barrack, 210 Md. 168 , 173 and see Durante, supra, 263 Md. at 689 , we find no merit in appellant’s contention that “it was clearly erroneous for the Court not to direct [the malicious prosecution] count out at the close of the Plaintiffs case since the evidence clearly established probable cause [for the arrest].” No direct issue as to the agency relationship between Hall and Picone is here raised. However, we note in passing that Picone’s business relationship with her daughter, to which she herself testified, fulfilled the criteria of principal and agent.

Therefore, Picone would not be relieved from liability even if she was unaware that the particular act was to be done by her daughter. Nor would she be exonerated if the injury was due to her daughter’s wilful and wanton conduct: “ ‘The question of liability does not depend on the quality of the act, but rather upon the question whether it has been performed in the line of duty and within the scope of the authority conferred by the master.’ ” Lewis v. Accelerated Express, 219 Md. 252, 256 . Appellant Picone offered no evidence legally sufficient to show that Hall was not engaged in the course of her employment and therefore not her agent. Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210 . 1 ⁵⁴¹ Moreover, the deposed testimony of appellee’s employer permits a logical inference that Picone knew of the arrest warrants and ratified her daughter’s action in procuring them.

Mr. Thomas Hefferon testified: “ ‘Okay. I called her up because I was aware there was warrants out for my arrest, my brother’s arrest, and Mrs. Talbott’s arrest ... I told her we were going to move out in another eight days or so anyway . . . but for the balance of the income tax season we did not want excessive ‘for rent’ signs on the building, if she could talk to her daughter about that, keeping the signs down and also have the warrants for our arrest rescinded. She said she would look into it and call me back.’ ” He then described the conversation of Picone on the return call: “ ‘She told me that she talked to her daughter and she fully agreed with her daughter on the warrants, . . . and she definitely would not drop the warrants. ‘And I asked her again to please drop them.. . . ‘She again said she would not, she would not have her daughter take the warrant, or recall that, and she agreed 100 percent vnth her daughter's actions” (Emphasis added).

We think this is sufficient to raise a jury question as to whether or not Picone ratified the acts of her daughter. “ ‘If the prosecution was previously authorized or subsequently ratified, or if within the scope of the servant’s or agent’s employment, the employer or principal is liable; otherwise he is not.’ ” Nance v. Gall, 187 Md. 656, 671 . Buttressing that evidence of ratification is Picone'. own deposed testimony which was introduced against her: “ ‘Question: So if Mrs. Hall brought in people to rent the place and rerented it after Hefferon left, this would be proper for her to do for you? ⁵⁴² ‘Answer: Right. ‘Question: And you would not object to her doing that, would you? ‘Answer: No, because she was in charge. ‘Question: And she was in charge for who? For you, was it not? ‘Answer: Yes. ‘Question: All right, let me put it in different words. It was all right with you to use whatever procedures she thought necessary? ‘Answer: Right. ‘Question: Did you reprimand your daughter for making out this warrant after you found out about it? ‘Answer: No. ‘Question: Do you think she acted properly? ‘Answer: In my estimation ...

In my estimation I think she acted properly. She was destroying her property. ‘Question: All right. After you found out and your daughter told you what she did, did you approve of what she did? Yes or no, that’s all. ‘Answer:- I’ll give you my answer.

Under the circumstances, under the conditions, yes, I would have approved. I approve and I would have done the same thing.’ ” (Emphasis added). This testimony itself sufficiently generated a jury issue as to agency, scope of agency and ratification. Defamation We come now to the question of sufficiency of evidence of defamation, a term used generically by appellant to include ⁵⁴³ libel and slander, all of which were contained in the third count.

Whether the written charges made by appellant Hall could be sufficient to support libel, or whether they are absolutely privileged, was a question argued peripherally below and raised and argued here upon appeal. Appellant Hall restricts her contention upon the third count regarding slander to a single issue: “The words allegedly uttered by Mrs. Hall did not amount to actionable slander.” The record reveals that the precise words, which were published by being expressed in the hearing of another on a public parking lot, were repeated by the witness to be: “ ‘Well, I heard Mrs. Hall say to Mrs. Talbott, ‘Goddamn you, Dona, if you take down another sign I’m going to swear out a warrant for your arrest.’ ” We think these words are sufficient to imply that appellee had unlawfully performed the act accused in the past contrary to appellants’ contention that the words conveyed a future intent. Parenthetically, we note that contrary to our subsequent admonition in Cheek v. J.B.G. Properties, Inc., 28 Md. App. 29 , the trial judge did not decide preliminarily whether the words and behavior of the speaker were actionable per se but permitted that question to be decided by the jury. We noted in Cheek that the Court of Appeals has held that: “ ‘ . . . ordinarily it is the responsibility of the court, when required to do so, to rule as a matter of law (and not the duty of the jury to find as a fact) whether the words and behavior of a speaker are actionable per se.’ ” Cheek, 28 Md. App. at 40 , citing American Stores v. Byrd, 229 Md. 5, 15 .

In that case, as in this one, “ ‘ . . . inasmuch as there was no objection to the instructions, we need not decide . . . whether the slanderous per se character of the alleged ⁵⁴⁴ defamatory words and behavior were properly submitted to the jury.’ ” Id. at 40 . Appellants’ argue that even if the words allegedly uttered do accuse appellee of a crime, it is not the type of crime this Court considers to be serious enough to make those words actionable per se. Had Cheek been decided before this appeal, appellant might have sought solace therefrom. That decision notwithstanding, we are at a loss as to why the issue of whether the words were actionable per se seems so compelling to appellants.

The historic distinction between slander per se and slander per quod centers upon the need for proof of special damages. In the former, the injurious character of the accusation is a fact of common notoriety, necessarily imparting damages and therefore not requiring proof of special damages. In the latter, the derogatory meaning of the words must be explained by colloquium and special damages must be proved. In the case at bar, there was sufficient evidence for the jury to find a defamation from the manner, circumstances and surroundings within which the words were spoken and there were special damages proven in the nature of medical bills for treatment of a condition which could have been partially attributable to the slander as well as to the circumstances of prosecution.

Since special damages were proven, it is irrelevant whether the words complained of constituted slander per se or per quod. More troubling to us is the libel prong of this amalgamated count. Appellee’s contention as to libel, as argued below, was that Hall communicated to the magistrate in Prince George’s County that the plaintiff had committed the crime with which she was eventually charged, and that this communication, which was put into writing in the form of a warrant, constituted libel. This contention is shown in count III of the declaration where it is