Kilgour v. Evening Star Co. , 96 Md. 16 ( 1902 )

This is an action for libel. The defendant interposed a demurrer which the Court sustained. The judgment being for the defendant, the plaintiff appealed.

The declaration contains three counts — the first and third set out parts of the alleged libelous publication, with certain innuendoes; the second contains the entire article, but withoutcolloquium or innuendo. No special damages have been pleaded; and therefore the only question presented by the record, is, whether the publication is libelous per se Whether this be so or not, is always on demurrer within the province of the Court; and it is also "matter of law" whether an innuendo is fairly warranted by the language declared on. Lewis v. Daily NewsCo., 81 Md. 472; Avirett v. State, 76 Md. 510; Haines v.Campbell, 74 Md. 158; Negley v. Farrow, 60 Md. 180.

The declaration charges that at the time of the publication the appellant was and still is a practicing attorney and the State's Attorney of Montgomery County, and that the publication was "of and concerning him in respect of his said profession as a practicing attorney and of his duties as State's Attorney." It is not contended that the words of the publication are libelous as against the appellant, otherwise than as they touch upon or have reference to his profession and his official position of State's Attorney. The rule of law applicable to a case of that kind, seems to be clear. "Words spoken of a person in his office, trade, profession, business or means of getting a livelihood, which tend to expose him to the hazard of losing his office, or which charge him with fraud, indirect dealings or incapacity and thereby tend to injure him in his trade, profession or business, are actionable without proof of special damage, even though such words if spoken or written of an ordinary person, might not be actionable per se." 18 Am. Eng. Ency. of Law, p. 942 (2nd ed.); Wilson v. Cottman,65 Md. 197.

"The words must go so far as to impute to him some incapacity or lack of due qualification to fill the position, or some positive past misconduct which will injuriously affect him in it." Sillars v. Collier, 151 Mass. 50; Newell on Defamation,Slander and Libel, ch. 8, p. 178; Townsend, Libel andSlander, secs. 188, 189.

So this Court said in Newbold Sons v. The J.M. Bradstreet Son, 57 Md. 53: "To say or publish of a merchant anything that imputes insolvency, inability to pay his debts, the want of integrity in his business, or personal incapacity or pecuniary inability to conduct it with success, is slanderous or libelousper se if without justification."

In Richardson v. State, 66 Md. 212, the Court citing fromWoodgate v. Ridout, 4 Foster Finlason, 223, said: "It is of essential importance the administration of justice should be open to discussion; but that criticism must be fair and honest and not reckless and uncharitable; and that anything beyond this, and which imputes corrupt motives to those who administer it, is an abuse of privilege." "If one goes out of his way to asperse the personal character of a public man and to ascribe to him base and corrupt motives he must do so at his peril, and must either prove the truth of what he says or answer in damages to the party injured." Negley v. Farrow, 60 Md. 158.

These principles, which are fully supported by authority, establish the proposition, that, in order to find the words of this publication libelous, we must be enabled to determine that they impute to the appellant as an attorney and State's Attorney, some base or corrupt motive, or incapacity, in the discharge of the duties of such office; or, as stated by Newell, some "unfitness to perform" the duties of the office, or "want of integrity in the discharge of them." Newell on Slander andLibel, ch. 8; Neeb v. Hope, 111 Pa. St. 153-154; Baldwin v. Walser, 41 Mo. App. 243-254.

The publication was published in the "Evening Star," a newspaper printed in the city of Washington, and circulated in Montgomery County. Apparently, it is an ordinary news item, containing a statement of the circumstances attending the death and burial of a negro baby, of the suspicions concerning it that were aroused in the community where the events took place, and of the actions of the State's Attorney in connection therewith. It is not requisite that the whole article be reproduced here. It is long, and it will answer every purpose, if we state its general purport and then refer more particularly to those parts that are relied on by the appellant to show the libelous character of the publication. As set out in the second count of the declaration, the article states, that one Bessie Sellman had given birth to a child, no physician being present; — that the mid-wife, who officiated, told the reporter that it was healthy and that after seeing it some half-dozen times at intervals of probably a week, she predicted it would "grow up;" that on May 3rd, `she was horrified to be told that a notice was tacked on a tree' to the effect that the baby was dead and that Henry Mason had buried it in Steven's lot." Some conversation between this woman and Henry Mason is then recited. The article then proceeds (in substance) to state, that the actions and language used by Mason led the reporter to watch near Mason's house, and he saw Mason's father-in-law come out of Mason's house with a spade and "go to the place said to be a grave" and dig up a box shaped like a coffin, which he carried away and buried (as the reporter afterwards learned) in Mason's yard. That he then reported the matter to the Justice of the Peace who consulted the appellant; that the latter told him to "issue warrants for the arrest of everybody suspected of having anything to do with the affair and commit them to the Rockville jail." The justice however issued a warrant only for the arrest of the mother who was committed to jail for a hearing. That the remains of the baby were disinterred "with the idea that an autopsy was to be made" and in compliance with his request the State's Attorney was notified. "The latter Mr. Thompson said, reached Gaithersburg about the hour appointed for the inquest to begin, and almost at once, supposedly by appointment met Dr.McCormick, who saw the baby soon after its death. A conversation between the doctor and the State's Attorney followed and at its termination, Mr. Kilgour informed Deputy Sheriff Thompson and Justice Baughman, that if an autopsy was held he would refuse to recommend the payment of the bill for the expenses, with the result stated. The State's Attorney went back to Rockville soon afterwards, and ordered the immediate release of Bessie Sellman from jail, which order was obeyed." That the body was reinterred. It is then stated that this action of the State's Attorney produced mingled feelings of indignation and resentment on the part of white and colored residents; also what Mr. Thompson had to say about it, to the effect, that "he denounced it as an outrage on Kilgour's part;" had it been a white man who was charged, c., he would in all probability have been strung up to one of the trees, c., and that he intended "to leave no stone unturned to sift the whole affair;" and further that the Justice of the Peace expressed "similar views," c.

We do not find in this long publication, a fair outline of which we have given, any imputation whatever upon the motives or capacity of the State's Attorney. There is apparent a strong feeling on the part of Thompson, that there should have been a fuller investigation; though it does not appear he knew what it was, that had been communicated to the State's Attorney by Dr. McCormick. The article states that he, Thompson, denounced the transaction as an "outrage" on Kilgour's part. But the word "outrage" was used immediately succeeding the statement of what Mr. Kilgour's part really was; and if that statement does not impute corrupt motives to him, Mr. Thompson's harsh word is of no avail. The charge, that he had committed an outrage, would not then be slanderous, because of the fact, that it is accompanied with words that qualify the meaning, that might otherwise be attached, to it, and show that the act imputed, was not in fact an outrage, nor one that reflected adversely upon the character or motives of the officer.

In the opening sentences of the publication, it is stated that many prominent citizens were greatly agitated, "on account of the alleged stifling by the State's Attorney of an investigation of the mysterious death, c.," and it is insisted that the word "stifling" was used in its offensive sense, and implied that the State's Attorney acted from corrupt motives. But we cannot accept this view if the whole article be considered, as must be done if we are to arrive at the true meaning and force of particular words or phrases. It is not proper to separate words or phrases from the context. All parts of the paper should be read in connection, to collect their true meaning. Gaither v. TheAdvertising Co., 102 Ala. 458; Donaghue v. Gaffy,53 Conn. 43; Am. Eng. Ency. of Law, 2nd ed., vol. 18.

Now almost in the same connection in which the words "alleged stifling" occur, we are told how the stifling was accomplished, viz. the State's Attorney "announced he would not recommend the payment of any expenses incurred in making the inquiry." And later on it is stated, that he made this announcement at the termination of a conversation between the State's Attorney and Dr. McCormick "who saw the baby soon after its death." So that the charge of "stifling" as explained in the article, means nothing more, than that the State's Attorney after he had had a consultation with the physician who had seen the baby soon after its death, announced he would not recommend the payment of the expenses if the inquest was held. There is no imputation here that the State's Attorney was actuated by corrupt motives; on the contrary it would seem to be a reasonable inference from the statement, that after the consultation with the physician, he deemed an inquest unnecessary, and therefore would decline to recommend the payment of the expenses.

Another statement in the article, which is relied on by the appellant to show its libelous character, is, that in which the State's Attorney is "reported to have said; I want you, as soon as you go back, to issue warrants for the arrest of everybody who is suspected of having anything to do with this affair and commit them to the Rockville jail." But we cannot think this imputes anything to the detriment of the official character of the appellant. If there were reasonable grounds of suspicion against persons, it was highly proper that they should be brought before the magistrate, and their supposed crime investigated. It certainly could not detract from the official reputation of the State's Attorney, that he desired that all suspected persons should be secured and retained until their probable complicity with the crime could be examined into. It was not a "wholesale arrest of citizens" that he advised, but such as were only suspected of having anything to do with the crime. If there were any properly suspected, they should have been arrested.

But without prolonging this opinion with a further discussion of the article, we may say, that after a careful examination of its statement, we are of opinion that it is not libelous either in its entirety or any of its parts.

Aside from all we have said, so far, there is another matter that forces itself on our attention. Whatever may be held as to the character of the publication, can any of its statements touch the appellant as State's Attorney? The narr. charges that they were printed and published of and concerning him in respect of his profession "as a practicing attorney and of his duties as State's Attorney." If the appellant in his actions before the Justice of the Peace, was not within the authority of the office of State's Attorney, he must be viewed as a private person only, and a charge that he was then actuated by corrupt motives would only touch him personally, and the words could not in such case be actionable per se on the theory that it touched him in his office. In Ayre v. Craven, 2 Adolp El. 2, it was held that the scandalous conduct imputed to the plaintiff in his profession must "be connected by the speaker with that profession." Words not per se actionable, will not be ground for an action "though spoken of one who holds an office * * unless they are spoken of and touch him in his office."VanTassel v. Capron, 1 Denio, 252. And in Baldwin v.Walser, 41 Mo. App. 251, it was said the language "must touch him" in that special character or relation * * It is not sufficient that the language disparages him generally, or that his general reputation is thereby affected, it must be such as, if true, would disqualify him or render him less fit properly to fulfill the duties incident to the special character assumed."Townsend on Slander and Libel, sec. 190. See 18 Am. Eng.Ency. of Law (2 ed.) p. 945, where many authorities are collected.

The specific charge in the article is that the appellant announced to the justice that he would refuse to recommend the payment of the expenses of the inquest, and thereby "stifled" the investigation. It is imposssible for us to find any theory upon which it can be held that in making such announcement, the appellant was acting within the scope of his official duties as a State's Attorney. The duties of the State's Attorney are such only, as are prescribed by our Constitution and the statutes of the State. He possesses no "power by the common law of England for they are unknown to it; nor by the common law of this State, for both they and the power claimed for them are unknown to it."Hawkins v. The State, 81 Md. 313. His duty as prescribed by statute, is to prosecute and defend on the part of the State, in all cases in which the State may be interested: Code, Art. 10, sec. 17. There is no case before the officer holding an inquest in which there is prosecution to be done on the part of the State; and even if there was, the duty (if it be conceded there was such), to prosecute would not carry with it the obligation on the part of the State's Attorney, to make recommendations as to the payment of the expenses. It should be borne in mind in this connection that the charge is not that the appellant committed some wrong while prosecuting or defending for the State before the justice, or omitted to do something he ought as a faithful officer to have done; but only that he "announced" he would not recommend, (to some one, whose name is not given), the payment, c. This certainly was not within his duties as State's Attorney, and any criticism directed towards him for making such an announcement, affects him only as a private person. As such he had power to make recommendations, but he had no such authority or obligation as a State's Attorney, who has nothing to do, officially, with the expenses of a coroner holding an inquest. If we are correct in this, it would follow, if there were no other reason therefor, that the demurrer to this count was properly sustained.

It is attempted, in the first count, to impute to the words of part of the article, a libelous signification, by means of an innuendo. The alleged libel is set out in this count in the following words; viz. "Probing the mystery. Death of a child at Emory Grove excites suspicion. Infanticide openly charged. Action of the State's Attorney strongly criticised. Citizens are aroused. Many of the most prominent residents of Gaithersburg, Maryland, and nearly the entire population of Emory Grove, a hamlet about a mile from that town are greatly agitated on account of the alleged stifling by the State's Attorney Kilgour (meaning the plaintiff), of an investigation of the mysterious death May 1st, or the night previous of a two-months-old child at Emory Grove. The investigation was started by Justice of the Peace Baughman, and Deputy Sheriff Horton Thompson, and promised, so those officials told a `Star' reporter to clear up all doubts in the case. The State's Attorney (meaning the plaintiff), appeared at the preliminary hearing before Justice Baughman, however, and announced that he would not recommend the payment of any expenses incurred in making an inquest and that the proceedings were a little later brought to a close. (Meaning thereby that the plaintiff wantonly, wilfully, corruptly, and by malfeasance in the discharge of his official duties as State's Attorney, aforesaid, stifled and prevented all proper inquiry as to the cause of the death of a two-months-old child at Emory Grove, aforesaid, and thereby perverted the ends of justice)."

There is no colloquium to support the innuendo; and in such case the rule is, that the innuendo "can never be taken to expand or enlarge the meaning of the words used, and give to them a particular meaning different from that in which they would be ordinarily understood in their more innocent signification."Peterson v. Sentman, 37 Md. 153; Barnes v. State,88 Md. 351.

As has been shown there is nothing in the publication that imputes corrupt motives to the appellant, or that he prevented any inquiry into the death of the child, or that he did anything "by malfeasance in the discharge of his official duties." What it is stated he did, was, merely, that he made an announcement. If the inquest was thereby ended, it was by the act of the Justice of the Peace, for which the State's Attorney was not responsible, either personally or as State's Attorney. It seems to us very clear, therefore that when it is claimed that the words of the publication mean or may be taken to mean that the appellant, as a public officer, acted "wantonly, wilfully, corruptly and by malfeasance and thereby prevented" the inquiry and "perverted the ends of justice," there is an enlargement of the meaning of the words actually used, far beyond what they will bear. For this reason the count is bad.

We refrain from discussing the sufficiency of the third count, after all that has been already said. We are of the opinion that the innuendo therein set forth, is not warranted by the words of the publication. There is nothing in the publication that by any reasonable interpretation, unaided by colloquium or inducement, can be taken to mean that the State's Attorney "had all sufficient evidence" to have required the State's Attorney "to have caused a full investigation of a heinous crime" or that he declined to do so because the baby and Mason were negroes. The count was therefore bad.

Finding no error in the ruling of the Court, the judgment will be affirmed.

Judgment affirmed.

(Decided November 21st, 1902.)