Sindorf v. Jacron Sales Co.

Orth, C. J., delivered the opinion of the Court. ⁵⁵ “The security of his reputation or good name from the arts 1 of detraction and slander, are rights to which every man is entitled by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right.” 1 W. Blackstone, Commentaries ¹³⁴. JACK SINDORF felt that his right to personal security had been violated by the defamation of his reputation and good name by a corporation upon the spoken words of one of its employees, Robert Fridkis. Seeking balm for his hurt, he instituted an action at law in the Circuit Court for Prince George’s County for the tort of slander, demanding judgment against the corporation and Fridkis, and each of them, in the amount of $150,000 compensatory damages and $150,000 punitive damages. He did not prevail.

Fridkis was dismissed from the action prior to trial and a judgment was entered in his favor for costs. 2 A verdict in favor of the corporation, which went to trial on a plea of the general issue, was directed by the trial judge at the close of all the evidence. Sindorf appealed from the judgment entered thereon in favor of the corporation for costs. 3 ⁵⁶ The Identity of the Corporate Defendant-Appellee There was confusion about the identity of the corporation Sindorf sued. The corporate defendant named in the declaration was “Jacron Sales Co., Inc.” and in the caption its address was given as “5801 Torresdale Ave., Philadelphia, Pa. 19135.” The declaration averred that “Jacron Sales Co., Inc. is a corporation with a principal place of business in Philadelphia, Pennsylvania,” and that Fridkis “is an employee, agent or servant of the Defendant Jacron Sales Co., Inc. with a principal place of business at the address indicated in the caption hereof.” The general issue plea filed by Jacron Sales Co., Inc. gave the same address in the caption as did the declaration. Sindorf propounded interrogatories to Jacron Sales Co., Inc. on 3 January 1974.

Interrogatory #6 asked for each date that Robert Fridkis had occasion to be at the Philadelphia office of defendant corporation between January and July of 1973. The answer was “Jacron Sales Company, Inc., the Defendant corporation, is a Virginia corporation and has no Philadelphia office. The address listed in the Plaintiffs Declaration is not correct.” Excepting to this answer, and others, Sindorf moved to strike it, stating that “Defendant’s assertion that they have no Philadelphia office is a guise and sham upon this court . . . .” Jacron Sales Company, Inc. replied to this motion: “It should be clear at the outset that the Defendant should not be required to bear the burden of Plaintiff’s uncertainty as to who it has sued. In the Plaintiff’s Declaration, the caption lists the Defendant as Jacron Sales Company, Inc., followed by a Philadelphia address.

JACRON SALES COMPANY, INC., is a Virginia corporation, doing business in Virginia, with its principal and only office at 1310 Mt. Vernon Avenue, Alexandria, Virginia. The Defendant is a subsidiary of the Jacron Sales Company, a Pennsylvania Corporation with its principal offices in Philadelphia. The two corporations are separate ⁵⁷ and distinct entities and their separateness and distinctness cannot be ignored merely because the Plaintiff finds it convenient to do so rather than making the effort to determine who he should sue.

The Plaintiffs attorney alleges that the Defendant has perpetrated a sham upon this Court by its answer to interrogatory No. 6. As is stated above, Defendant, JACRON SALES COMPANY, INC. is a Virginia Corporation and is an entity separate from the Jacron Sales Company, a Pennsylvania corporation. The Defendant has no Philadelphia office. The Defendant has no obligation under any of the discovery rules to respond to what the Plaintiffs attorney meant to ask rather than what he did ask.” 4 This answer left no doubt that it was the Virginia Corporation which appeared to contest the slander suit.

Although Sindorf neither amended his declaration to correct the address nor effected service on the Virginia corporation, he accepted that the corporation contesting his suit was the Virginia corporation and not the Pennsylvania corporation. A hearing on the motion to strike the answers was held on 27 March 1974. 5 The docket entries under that date as to interrogatory #6 read: “Plaintiff concedes answer is satisfactory.” The transcript of the trial clearly shows that the parties considered the Virginia corporation to be the actual defendant. For example, Sindorf argued that there could be no conditional privilege to defame (see infra) because the Virginia corporation had never employed him. ⁵⁸ And when there was dispute over the production of a financial statement of the defendant corporation, both the parties and the court considered such a statement to be that of the Virginia corporation. Sindorf obviously intended to sue the employer of the person who allegedly defamed him.

That employer was the Virginia corporation. The original misconception that Fridkis was employed by the Pennsylvania corporation was cleared up by the answers to the interrogatories. It was the Virginia corporation which filed pleadings, appeared at trial, and defended the suit in fact. We think the Virginia corporation waived any objections with reference to its identity by making a general appearance, Maryland Rule 124 a, without making a special or preliminary objection, Rule 124 b and Rule 323.

See McGinnis v. Rogers, 262 Md. 710 ; Eastham v. Young, 250 Md. 516 ; McCormick v. Church, 219 Md. 422 . Any variance between pleading and proof did not mislead or injure the defendant and, therefore, was not fatal. Phillips v. Haugaard, 135 Md. 427, 436 . See American Stores Co. v. Byrd, 229 Md. 5, 15 .

We conclude that the defendant below was, and appellee on appeal is, the Virginia corporation, hereinafter referred to as “Jacron”. The Facts From the evidence adduced at the trial, we recount the facts and circumstances upon which the cause here is based. Sindorf was employed by the Pennsylvania Jacron for 18 months as a salesman. He resigned on 23 July 1973 because of a dispute over certain sales made by him and commissions he believed due him.

The corporation’s president, John Langton, testified that “sales discrepancies” had arisen from Sindorf’s selling practices. The discrepancies were not financial but resulted from “selling to people without checking credit ratings . . . .” Sindorf testified that he would not receive his commissions from these credit sales until payment had been received for the goods and that uncollectable debts were shared 50/50 by himself and the corporation. He claimed that he had not been paid his ⁵⁹ commissions from his charge sales because the corporation said the accounts were not collected. It was these disagreements which culminated in Sindorf s resignation by letter wherein he explained that he was retaining the inventory in his possession “as partial payment of the commissions due me . . . .” Subsequently the corporation initiated criminal proceedings against Sindorf because of his retention of the goods.

The disposition of those proceedings is not apparent from the record before us. A few days after his association with the Pennsylvania corporation terminated, Sindorf was hired by the Tool Box Corporation of Maryland upon an interview with William Brose, president of that company. When Langton learned that Sindorf was working for Tool Box, he called Fridkis, Vice President of the Virginia Jacron. He asked Fridkis to verify Sindorf’s current employment and to ascertain whether Sindorf had been working for Tool Box at the same time he had been working for the Pennsylvania Jacron.

Langton told Fridkis why Sindorf left the Pennsylvania corporation: “We had mentioned that we had discrepancies with him, the sales picture, and the policy of how he would sell against company policies and do whatever he pleased, and that he had left us and in his possession he had taken with him his complete inventory and wouldn’t return it to us. He claimed that he would return it when he would get his commission money.” Fridkis called Tool Box to talk to Brose, but Brose was not in. Fridkis asked a secretary, Denise Bennett, if Sindorf was then employed by Tool Box. She was not sure.

Fridkis said, “Well, have Bill call me, because we have some things missing and I would like to talk to Bill about Jack.” Denise Bennett recalled the conversation. She said there was no indication in the tone of Fridkis’s voice that he was “mad, vicious, [or] excited,” and he “appeared to be speaking in a normal conversation.” She was asked, “What was your thoughts about Mr. Sindorf?” She answered, “I thought he ⁶⁰ was a thief.” But she admitted that Fridkis had not said that Sindorf had been responsible for the missing articles. When Brose returned the call, he and Fridkis talked first about routine business matters. Brose testified that he had a “nice” business relationship with Fridkis.

Although the Virginia Jacron and Tool Box were competitors, they would, at times, exchange goods arid information and buy from and sell to each other. Brose said that if a former employee was employed or was about to be employed by Jacron, he would call Fridkis, discuss the employee and apprise Fridkis of any problems. Eventually the conversation centered on Sindorf. The conversation was recorded by Brose, and a transcript thereof was offered in evidence.

We quote that part of the intercourse concerning Sindorf. “Mr. Fridkis: ... I want to talk to you about your new salesman, Jack Sindorf Mr. Brose: yeh Mr. Fridkis: ah, ah Mr. Brose: he’s been working the Ocean City area Mr. Fridkis: yeh, you know he, he use to work for Jacron Mr. Brose: understand in Philadelphia Mr. Fridkis: yeh, Philadelphia and, ah, there was quite a Tew cash sales and quite a bit of merchandise that was not accounted for Mr. Brose: Oh really Mr. Fridkis: yeh, so I figured I’d, you know Mr. Brose: Oh good, heavens Mr. Fridkis: So I thought I’d better kind of tip you off about it, you know, watch your stock real, real carefully on trucks and things Mr. Brose: -yeh Mr. Fridkis: when did you hire him, how long Mr. Brose: I think today, no officially yesterday I guess Mr. Fridkis: Oh, officially yesterday ⁶¹ Mr. Brose: uh huh Mr. Fridkis: Oh, okey cause, ah, ah, someone here says he’s been working for you three or four, ah, ah, weeks Mr. Brose: God, I never met him that long ago Mr. Fridkis: o.k., o.k. Mr. Brose: I think, I think the first time I met him was about Thursday or Friday over the phone Mr. Fridkis: ah. huh, ah Mr. Brose: and he was down yesterday morning and we had a chat and decided he’s like to represent The Tool Box in that area, he said that he’s been working before for Jacron in Philadelphia Mr. Fridkis: yeh, yeh, well this was what the story was on it and Mr. Brose: what, did he get fired Mr. Fridkis: ah, yeh, yeh, they were, ah, ah, noticing things, you know what I mean Mr. Brose: Oh boy Mr. Fridkis: ah, noticing things that, ah, ah, were, ah, some checks came in that were made out to him, you know what I mean Mr. Brose: ah huh Mr. Fridkis: you know, and ah, ah, they were noticing some stuff that was disappearing and he had about $3000 worth of merchandise on the truck and ah, when they turned the things in it just didn’t jive Mr. Brose: didn’t jive, yeh Mr. Fridkis: yeh Mr. Brose: good heavens Mr. Fridkis: yeh, and well you know, little things, ah, ah, that he had, you know how guys take stuff out of the place there and he doesn’t turn a ticket in on it, you know what I mean Mr. Brose: oh, oh ⁶² Mr. Fridkis: in other words, odd ball stuff, you know, hey he took out three tools there and, ah, that was three weeks ago and we don’t have a ticket on it Mr. Brose: oh, oh Mr. Fridkis: you know, like what happened to the ticket Mr. Brose: I think we have pretty good inventory control. I think, well, ah, we can’t watch everything, you and I both know that but you just Mr. Fridkis: yeh, well I just, you know, just tipped you off Mr. Brose: I appreciate it Mr. Fridkis: and kind of watch him very, very carefully so far as this is concerned Mr. Brose: Thank you Buddy Mr. Fridkis: you know, see whats what, he did a lot of business and this is not a drop for him.

Now when he first went out there he was doing all kinds of business, then as the months went by his business started to get less and less Mr. Brose: oh Mr. Fridkis: got it, and ah, ah, well I ran out there a few times, ah, ah, I didn’t bump heads with him or anything like that. I had a couple of customers I ran out there for but as far as I’m concerned, that’s a real pain in the tail Mr. Brose: oh yeh Mr. Fridkis: well, as, you know Mr. Brose: that far away Mr. Fridkis: two or three hours ride, you know * * * * I tipped you off on this thing you know Mr. Brose: yeh, well I sure appreciate your telling me and letting me know about that Mr. Fridkis: Well I was curious to see when he started working for you. Had he been working for ⁶³ you at the same time he was working for Jacron in Philadelphia. Mr. Brose: Ah Mr. Fridkis: got it, got it Mr. Brose: Unless he’s still on their payroll now, I understand that he was Mr. Fridkis: No, no, he’s not on the payroll, he was even fired last week I believe, got it Mr. Brose: Oh, he told me he was not on their payroll and there was not a written contract or anything so he was open, he was available so Mr. Fridkis: yeh, yeh Mr. Brose: He seemed like a real nice guy, real nice fellow Mr. Fridkis: Well just keep an eye on him that’s all and ah, that’s all I can say as far as that goes Mr. Brose: Thanks Bob Mr. Fridkis: I think I just met the guy personally a few times, I don’t really know him.

Well I was just talking to Jack and he asked me about it. He was working for you cause he had heard that he had told someone that he had been working for you three or four weeks, you know Mr. Brose: No, if he had been working for anybody it wasn’t The Tool Box Mr. Fridkis: o.k., that’s all Mr. Brose: If he was, then he and Freddie had something going on the side. I didn’t know him that long ago. In fact, it was Thursday or Friday that I talked to him the first time.

Mr. Fridkis: okey Bill Mr. Brose: Thank you ole buddie, . . . .” The conversation returned to other business matters and terminated shortly thereafter. Brose asked Sindorf to come to the office. Brose told him ⁶⁴ what Fridkis said. Within two months Sindorf filed the slander action.

The Question for Decision The precise question for us to decide is whether the trial judge erred in granting the motion for a directed verdict made by Jacron at the close of all the evidence. The answer is reached through the determination of several interrelated questions. “ [I]njuries affecting a man’s reputation or good name are, first by malicious, scandalous, and slanderous words, tending to his damage and derogation. As if a man maliciously and falsely utter any slander of false tale of another; which may either endanger him in law, by impeaching him of some heinous crime, as to say that a man hath poisoned another, or is perjured; or which may exclude him from society, as to charge him with having an infectious disease, or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave .... It is said, that formerly no actions were brought for words, unless the slander was such as (if true) would endanger the life of the object of it.

But, too great encouragement being given by this lenity to false and malicious slanderers, it is now held that for scandalous words of the several species before mentioned ... an action on the case may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod.” 3 W. Blackstone, Commentaries, ¹²³-124. In the posture in which the case is presented, we are not concerned with the nature of the slanderous publication uttered by Fridkis and imputed to Jacron. Jacron does not dispute that the words were slanderous per se, that is, such words as “apparently and on the face of them, import such defamation as will of course be injurious.” Jacron so ⁶⁵ conceded, for the purpose of the motion, at the argument on the motion for a directed verdict made by it at the close of evidence offered by Sindorf.

It maintained, however, that it had a conditional privilege to defame. Sindorf argued that in view of the concession, he did not have to show malice if a conditional privilege did not accrue to Jacron. He agreed in response to a direct question by the trial judge that he had shown no malice in the presentation of his case. The court denied the motion for a directed verdict and Jacron offered evidence, thereby withdrawing the motion previously made.

Rule 522 b. At the close of all the evidence, Jacron renewed its motion for a directed verdict. It argued strenuously that in the circumstances it had a conditional privilege to defame Sindorf and that Sindorf had not overcome the presumption that the privileged words were spoken without malice. Sindorf maintained that there was no conditional privilege.

He shifted his position from his previous concession that he had shown no malice, however. He asserted that malice could be inferred from the evidence, “even if there was a privilege.” In granting the motion, the court found as a matter of law that there was a conditional privilege accruing to Jacron. It found further that Sindorf had adduced no evidence whatsoever to show malice subsequent to his concession that he had not proved the existence of malice, and that, in any event, the whole of the evidence was not sufficient to establish malice. The first interrelated question to be resolved is whether Jacron enjoyed a conditional privilege to defame Sindorf.

Privilege to Defame “In an action for defamation, the plaintiffs prima facie case is made out when he has established a publication to a third person for which the defendant is responsible, the recipient’s understanding of the defamatory meaning, and its actionable character. It is then open to the defendant to set up various defenses, which to some extent have moderated the rigors of the law of libel and slander.” W. Prosser, Law of Torts, 776 (4th ed., 1971). One of these defenses is privilege. “It rests upon the . . . idea, that conduct ⁶⁶ which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation. The interest thus favored may be one of the defendant himself, of a third person, or of the general public.

If it is one of paramount importance, considerations of policy may require that the defendant’s immunity for false statements be absolute, without regard to his purpose or motive, or the reasonableness of his conduct.” Id. This is absolute privilege. See Kerpelman v. Bricker, 23 Md. App. 628 . “If it has relatively less weight from a social point of view, the immunity may be qualified, and conditional upon good motives and reasonable behavior. The defendant’s belief in the truth of what he says, the purpose for which he says it, and the manner of publication, all of which are immaterial when no question of privilege is involved, may determine the issue when he enters the defense of such a conditional privilege.” Prosser, at 776-777.

In the words of Baron Parke in Toogood v. Spyring, 1 C. M. & R. 181, 149 Eng. Rep. 1044 (1834), a publication is conditionally privileged when it is “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.” A considerable segment of the common law rules with respect to qualified privileges has been taken over by decisions of the Supreme Court of the United States into a broad constitutional privilege under the First Amendment involving not only defamation but the right of privacy. The constitutional privilege concerns, generally speaking, defamation of public officials and public figures. See A. S. Abell Co. v. Barnes, 258 Md. 56 , cert. den. 403 U. S. 921 .

Aside from constitutional privilege, which plays no part in the case before us, the types of interest which are protected by a qualified privilege are classified by Prosser, at 786, as interest of the publisher, interest of others, common interest of publisher and recipient, communications made to one who may act in the public interest, and fair comment on matters of public concern. ⁶⁷ See, Restatement, Torts, §§ 593-598 (1938); F. Harper and F. James, The Law of Torts, §§ 5.25-5.26 (1956). “The condition attached to all such qualified privileges is that they must be exercised in a reasonable manner and for a proper purpose. The immunity is forfeited if the defendant steps outside of the scope of the privilege, or abuses the occasion .... [It does not] include publication to any person other than those whose hearing of it is reasonably believed to be necessary or useful for the furtherance of that interest. . . . Any reasonable and appropriate method of publication may be adopted which fits the purpose of protecting the particular interest. The dictation of a business letter to a stenographer . . . may be privileged on proper occasion. . . . [T]he fact that the communication is incidentally read or overheard by a person to whom there is no privilege to publish it will not result in liability, if the method adopted is a reasonable and appropriate one under the circumstances.” Prosser, at 792-794.

The burden is upon the defendant in the first instance to establish the existence of a privileged occasion for the publication, by proof of a proper interest or duty justifying the utterance of the words. “Whether the occasion was a privileged one, is a question to be determined by the court as an issue of law, unless of course the facts are in dispute, in which case the jury will be instructed as to the proper rules to apply.” Id,., at 796. The rules of law as to conditional privilege followed in Maryland generally reflect the views of the authorities above discussed. See, e.g. Orrison v. Vance, 262 Md. 285 ; Simon v. Robinson, 221 Md. 200 .

Thus, the law of this State is that a defamatory publication is conditionally privileged when the occasion shows that the communicating party and the recipient have a mutual interest in the subject matter, or some duty with respect thereto. Hanrahan v. Kelly, 269 Md. 21, 28 , quoting Simon v. Robinson, supra, at 206. Over seventy-five years ago the Court of Appeals established that where an employer gives a character of an employee the communication is conditionally privileged under the ⁶⁸ principle that the party communicating has a duty owed, even though such duty is not a legal one, but only a moral or social duty of imperfect obligation. This is so even though the defamatory information was given voluntarily rather than upon request.

Fresh v. Cutter, 73 Md. 87, 92-94 . 6 In Hanrahan v. Kelly, supra, at 28, n. 2, the Court stated that it had previously recognized that qualified privilege arising by reason of common interest in the subject matter can inhere in business dealings between the publisher and the recipient, referring to Deckelman v. Lake, 149 Md. 533 and Bavington v. Robinson, 124 Md. 85 . The authorities are in general agreement that where a former employer communicates with a new or prospective employer about a former employee, a conditional privilege arises from a discharge of duty owed to the new or prospective employer. Prosser, at 787-788; Restatement Torts § 595 (1938), Comment h at 252-253; Harper, Privileged Defamation, 22 Va. L. Rev. 642 -651 (1936); Jones, Interest and Duty in Relation to Qualified Privilege, 22 Mich.

L. Rev. 437 , 444 (1924). Odgers on Slander & Libel, cited with approval in Fresh , takes the broader view that the duty is owed to society. Sindorf argues that because he was never employed by the Virginia Jacron, the privilege recognized in Fresh did not arise. We do not read Fresh and the authorities so narrowly as to confine the duty as owed only by a former employer.

The basis for the privilege depends upon the particular circumstances of the communication. Other persons may have a bona fide belief that they owe a moral or social duty ⁶⁹ to inform a new or prospective employer about an employee. This is not to say that anyone is privileged to communicate adverse information to an employer. In many instances a reasonable man would conclude that to communicate with an employer would be “officious intermeddling”, Prosser, at 788, and therefore the communication would not be privileged.

The circumstances here, however, were that the defamer was the vice-president of the subsidiary of the corporation which was Sindorf s former employer, and that the communicator and recipient, even though competitors, had a close personal and business relationship. Whether based on a duty owed or a common interest, we think that a qualified privilege arose. In the absence of a dispute as to the facts, the existence vel non of a common interest or duty giving rise to a qualified privilege is a matter of law for the court. Simon v. Robinson, supra, at 205; Fresh v. Cutter, supra, at 94.

There was no dispute here as to such facts. We conclude that the trial court did not err in holding as a matter of law that Fridkis, and therefore Jacron, had a conditional privilege to communicate the defamatory utterance to Brose. The second interrelated question is whether Jacron lost the privilege to defame. Loss of a Conditional Privilege to Defame Because a conditional or qualified privilege is conditioned upon publication in a reasonable manner and for a proper purpose, it is defeasible. “A finding of conditional privilege conditionally negates the presumption of malice and shifts the burden to the plaintiff to show actual malice.” Hanrahan v. Kelly, supra, at 29, citing Peurifoy v. Congressional Motors, Inc., 254 Md. 501 .

The Court of Appeals said in Orrison v. Vance, supra, at 295: “[M]alice means a reckless disregard of truth, the use of unnecessarily abusive language, or other circumstances which would support a conclusion that the defendant acted in an ill-tempered manner or was motivated by ill-will. Stevenson [v. Baltimore Club, 250 Md. 482 ] at 487. In determining ⁷⁰ an abuse of privilege all relevant circumstances are admissible, Foley v. Hoffman, 188 Md. 273 (1947), including the defendant’s reasonable belief in. the truth of his statements, Simon [v. Robinson], supra, the excessive nature of the language used, Stevenson, supra, Fresh, supra, whether the disclosures were unsolicited, id., and whether the communication was made in a proper manner and only to proper parties, Kennedy v. Cannon, 229 Md. 92 (1962).” 7 “Malice may be a jury question.” Hanrahan v. Kelly, supra, at 29. It is a jury question unless only one conclusion can be drawn from the evidence.

Prosser, at 796. In other words, it is only when the evidence and all inferences fairly deducible therefrom lead to conclusions from which reasonable minds could not differ, that the issue of malice is one of law for the court and not one of fact for the jury. The Court said in Fresh v. Cutter, supra, at 93-94, after observing that it is a question for the court whether the publication was privileged: “But the plaintiff has the right notwithstanding the privileged character of the communication to go to the jury, if there be evidence tending to show actual malice, as when the words unreasonably impute crime, or the occasion of their utterance is such as to indicate, by its unnecessary publicity or otherwise, a purpose wrongfully to defame the plaintiff. . . . Or, malice may be established by showing that the publication contained matter not relevant to the occasion. . . .

Expressions in excess of what the occasion warrants do not per se take ⁷¹ away the privilege, but such excess may be evidence of malice . . . In the posture this case comes to us, whether “there be evidence tending to show actual malice” must be considered in the frame of reference of the prevailing rule of law with respect to directed verdicts — where the court directs in favor of one of the parties, we must assume the truth of all credible evidence in the case tending to sustain the contention of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom. Trionfo v. R. J. Hellman, Inc., 250 Md. 12, 15 ; Buchanan v. Galliher. 11 Md. App. 83, 87-88 . The motion for a directed verdict was primarily based on the theory that there was no sufficient showing by Sindorf of malice within the meaning of that word as defeating a conditional privilege.

It appears that the grant of the motion was substantially bottomed on that reason. We think that the grant of the motion was wrong. We believe that the evidence, when viewed as required by the rule pertaining to the grant vel non of a directed verdict, led to conclusions from which reasonable minds could differ. We start with the rule that the publisher’s motive will be more carefully scrutinized if his statements are volunteered than if they are in response to an inquiry, in which latter instance, greater latitude is permitted.

We observe that Fridkis clearly indicated that Sindorf had been fired, whereas, as far as the record shows, he resigned. It does not appear that Langton told Fridkis that Sindorf was fired, and if Fridkis did not in fact know that Sindorf was not fired, stating that he was fired could be found to be a reckless disregard of truth. Langton, before asking Fridkis to call Brose, told Fridkis that Sindorf claimed he would return the “inventory” Sindorf retained when he received his commission money. This is borne out by a letter, referred to as Sindorf s letter of resignation, sent to Jacron of Pennsylvania under date of 2.3 July 1973.

In that letter, Sindorf enclosed invoices representing material in his possession “which I accept as partial payment of the commissions due me as of July 23, 1973.” He added, “At such time as the monies due me are ⁷² paid, all material will be gladly returned to Jacron Sales Co.” None of this was communicated by Fridkis to Brose. According to Langton, Fridkis was to call Brose to verify that Sindorf was working for Tool Box and to ascertain whether he had been working for Tool Box and Jacron at the same time. Fridkis patently went far beyond this in his conversation with Brose. When Fridkis was unable to reach Brose on his first attempt, he spoke to the secretary.

What he said to her led her to believe that Sindorf was a thief. The trial judge could not understand how she reached this conclusion, but we cannot say that a reasonable person would be unable to conclude from what Fridkis told her that Sindorf was a thief. 8 We observe that the publisher will be liable if he publishes his statement to accomplish a distinct objective, which may be legitimate enough in itself but is not within the privilege. Prosser, at 795. We think that a reasonable person could conclude from the evidence that Fridkis’s communication to Brose was an effort to pressure Sindorf into returning the material he was holding or, perhaps, simply to ascertain, as Langton requested, the date of employment of Sindorf by Tool Box.

Neither would be within the privilege. The short of it is that we cannot find, assuming the truth of all credible evidence on the issue of malice and of all inferences fairly deducible therefrom, and considering them in the light most favorable to Sindorf, that they lead to the conclusions, from which reasonable minds could not differ, that Fridkis, and through him, Jacron, did not abuse the privilege to defame by excessive publication or by use of the occasion for an improper purpose, or by lack of grounds for belief in the truth of what was said. Therefore, the question of malice was properly for the jury and the trial judge erred in granting the motion for a directed verdict. The issue of malice should have gone to the jury with appropriate instructions.

We reverse the judgment and remand the case for a new trial. ⁷³ Defamation and the First Amendment As this case was first briefed and argued before us, no reference was made to recent decisions of the Supreme Court of the United States concerning defamation and the First Amendment guarantee of freedom of speech and press. 9 Because we were concerned with the impact of those decisions on the law of defamation followed in Maryland, we ordered the case to be reargued in the light of those decisions. As is manifest, the defamation here was purely private. That is, the parties involved were private persons, neither public officials nor public figures, and the defamatory statement was private, neither a matter of public interest nor general concern. We are satisfied that, with respect to such purely private defamation, the Supreme Court decisions leave the Maryland law of defamation untouched.

We give our reasons. The decision which prompted our concern was Gertz v. Welch, Inc., 418 U. S. 323 , decided 25 June 1974. About ten years ago the Supreme Court decided New York Times Co. v. Sullivan, 376 U. S. 254 . In that case the Court “defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of ⁷⁴ defamation.” Gertz, at 334.

In Rosenblatt v. Baer, 383 U. S. 75 (1966) the Court suggested the minimal perimeters of the “public official” classification, including therein all persons “among the hierarchy of government employees who have, or appear to have, substantial responsibility or control over the conduct of government affairs.” 383 U. S. at 85 . 10 In 1967 in Curtis Publishing Co. v. Butts and its companion Associated Press v. Walker, 388 U. S. 130 , a majority of the Court extended the constitutional privilege to defamatory criticism of “public figures”. Thereafter, the Court engaged or acquiesced “in a progressive expansion of the public figure category into decreasingly public spheres.” 11 See Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U. S. 6 (1970). The process seemed to end with Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), in which a plurality opinion 12 took the New York Times privilege one step further, concluding that “its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest.” Gertz, 418 U. S. at 337 . The plurality abjured the suggested distinction between public officials and public figures on the ⁷⁵ one hand and private individuals on the other, focusing on society’s interest in learning about certain issues: “If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved.” Rosenbloom, 403 U. S. at 43 . 13 New York Times announced the test for the application of the constitutional privilege, 376 U. S. at 279 -280: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” It held that the newspaper’s failure to check the information published did not establish a reckless disregard for the truth under the circumstances.

The standard enunciated was explicated in subsequent opinions, and its meaning narrowed, obviously prompted by concern with the chilling effect on first amendment freedoms posed by state libel laws for the benefit of public officials and public figures. Garrison v. Louisiana, supra, emphasized the necessity for a showing that a false publication was made with “a high degree of awareness of . . . probable falsity.” 379 U. S. at 74. ⁷⁶ In Henry v. Collins, supra, the Court concluded that an intent to inflict harm — the measure of malice of the common law — was not necessary. 380 U. S. at 357. The opinion of Harlan, J., in Curtis Publishing Co. v. Butts, supra, stated that evidence of either deliberate falsification or reckless publication “despite the publisher’s awareness of probable falsity” was essential to recovery by public officials in defamation actions. 388 U. S. at 153 . Finally the Court said in St. Amant v. Thompson, supra: “These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.

There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” 390 U. S. at 731. 14 There appears to be general accord among the commentators 15 that by the advent of Rosenbloom the ⁷⁷ “actual malice” test had become far more strict and the constitutional privilege had extended far beyond the justification of the rationales set out by New York Times when it abandoned the premise that the law of libel remained wholly outside the First Amendment’s aegis. The opinion of the Court in Gertz observes: “Thus, under the plurality opinion [in Rosenbloom], a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test.” 418 U. S. at 337 . The privilege had become virtually impossible to overcome because of the difficulty in meeting the “actual malice” test by demonstrating by clear and convincing evidence what a publisher actually knew, regardless of what he should have known had he been reasonable in his methods of gathering information.

The status of the law prior to Rosenbloom was summed up in A. S. Abell Co. v. Barnes, supra, at 59-60: “One of the things the prolific New York Times and its progeny did was to measure state law, both civil and criminal, with respect to libel, slander and privacy, by constitutional standards, impressing on it the first amendment guarantees of free speech and press. They did so in such a way as to grant immunity from punishment by way of damages, imprisonment, fine or otherwise to publishers of statements concerning the official conduct of public officials and concerning matters of public interest related to public figures. The immunity is by privilege to the published statements. The privilege extends to true statements and false statements.

With respect to true statements the privilege is absolute; with respect to false statements it is conditional. The privilege is removed only from ⁷⁸ those false statements which are made with ‘actual malice’.” Rosenbloom left the law of defamation in a speculative position, and was criticized as fraught with apparent dangers to defamed individuals. 16 It was inevitable, therefore, that the interests in favor of First Amendment protection, on the one hand, and the need for redress of injury to the individual, on the other hand, would lead to a reconsideration of the Rosenbloom plurality position. Gertz provided the Court with the opportunity to look again, under a rather different set of facts, at the question it had before it in Rosenbloom , as to which it had been unable to marshall the agreement of a majority. The question in Rosenbloom and the principal issue in Gertz was “whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements.” Gertz , at 332.

The path of Gertz through the lower courts is clearly traced by the opinion of the Court, 418 U. S. at 325 -332: “In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney to represent them in civil litigation against Nuccio. [Robert Welch, Inc.] publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960’s the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create ⁷⁹ in their stead a national police force capable of supporting a Communist dictatorship.

As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March 1969 [Welch] published the resulting article under the title ‘FRAME-UP: Richard Nuccio And The War On Police.’ The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police. In his capacity as counsel for the Nelson family in the civil litigation [Gertz] attended the coroner’s inquest into the boy’s death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding.

Notwithstanding [Gertz’s] remote connection with the prosecution of Nuccio, [Welch’s] magazine portrayed him as an architect of the ‘frame-up.’ According to the article, the police file on [Gertz] took ‘a big, Irish cop to lift.’ The article stated that [Gertz] had been an official of the ‘Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government.’ It labeled Gertz a ‘Leninist’ and a ‘Communist-fronter.’ It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that ‘probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.’ These statements contained serious inaccuracies. The implication that [Gertz] had a criminal record was false. [Gertz] had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that ⁸⁰ organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that [Gertz] was a ‘Leninist’ or a ‘Communist-fronter.’ And he had never been a member of the ‘Marxist League for Industrial Democracy’ or the ‘Intercollegiate Socialist Society.’ The managing editor of American Opinion made no effort to verify or substantiate the charges against [Gertz], Instead, he appended