Garrett v. Dickerson, 19 Md. 418 (Md.)

Cochran, J.,

delivered the opinion of this Court:

This appeal was from a judgment obtained in a suit brought to recover damages for defamatory words spoken by the appellant of the appellee, at a meeting of the Board of Directors of the Baltimore & Ohio Rail Road Company, held on the 18th of March 1851.

It was admitted at the trial below, that the appellant was a sworn'1 Director in that Company at the time the words declared on were spoken, and that these words were addressed to the President and other Directors of the Company ; and further, that the appellee had been employed by the Company in the care of its wood at Locust Point, for some time previous to the 8th of January 1856, and that he was on that day discharged.

It also appears, that after swearing the jury, and before it retired to consider of the verdict, the appellee offered certain amendments to his declaration, which, by an agreement of the parties, were to be taken and considered as made at bar, by leave of the Court.

Exceptions were reserved on both sides, and after verdict, a motion for an arrest of judgment was filed by the appellant, and by his consent overruled pro forma.

We have concluded, from an examination of the case, that its determination depends on the questions presented by the motion in arrest, and the appellant's exception to the refusal of the instruction contained in his 1st prayer,

ami shall therefore limit this opinion to an expression of our views on those questions.

The motion brings into review the formal proceedings in the case, upon the consideration of which we are to determine whether the alleged defects in the original and amended declaration are of such a character as to justify an arrest of the judgment. It was contended that the ■original declaration was insufficient, on the ground that the defamatory words, as laid in the several counts, did not with sufficient certainty impute to or charge the appellee with the commission of any criminal offence. The force of this objection was practically conceded by the attempt to remedy or remove it by the amendments offered during the trial, and agreed to, as made by leave of the Court. The verdict having been rendered on the amended and not on the original declaration, we think the objection does not, arise on the pleadings as they are now actually presented,, and that whatever effect it might have had before the. amendments were made, it is not a material one in the-present state of the case. On this motion we are to review the record, not as it was before the amendments were made,, but as it stood at the rendition of the verdict, and from, that point proceed to determine the character of the pleadings. In our opinion, the amended declaration discloses and presents a substantial cause of action. Although the" defamatory words, as laid, inay not show that a particular-felony was charged with technical precision, yet we think, that they do impute the commission of a particular offence, punishable as a crime either at common law, or by statute. In cases of slander, words take their actionable character from the sense in which they appear to have been used,, and that in which they are most likely to be understood by those who hear them. The words declared on in this case, in their natural sense and import, constitute a slanderous charge, and as they are averred to have been spoken of and

concerning -the appellee by the appellant, and that they were meant by liim to inrpute to the appellee tbe commission of a specific offence, punishable as a crime, we think the declaration as amended was sufficient. But the objection was not made so much to the form of the amended pleadings, as to the mode and circumstances in and under which the amendments were made. It was contended, that making the amendments after the jury were sworn, without withdrawing a juror, changed the issues the jury were sworn to try, and that, as a consequence, the verdict rendered was without authority of law, and invalid. Whether this was the legal result of amending the declaration in the manner disclosed, depends on the construction of the agreement, and of the Acts of 1809, ch. 153, sec. 1, and 1852, ch. 1W, secs. 1 and 9.

'The Act of 1809, embracing substantially the provisions -of the Act of 1185, ch. 80, sec. 4, vested the Court with power to order and allow any amendment in the proceedings before verdict, but not after swearing the jury, without withdrawing a juror; and it was contended that this last conditional provision was not repealed by the Act of 1852. If we were even to concede that clause of the Act of 1809 to be unaffected by the Act of 1852, still we think, upon a fair interpretation of the agreement, that the ap2oellant is not entitled to make the objection relied on. The evident purpose of the agreement, was to waive a compliance with the formalities incident to amendments made by leave of the Court, and to bring the case upon the amended, instead of the original pleadings, before the jury then sworn. The plain import of its terms is, that the amendments proposed were to be considered as made in the case for the jury then empannelled, and as entering into and constituting, with the other proceedings, the actual record upon which the verdict of that jury was to be found. The Act of 1809 required the withdrawal of a juror as one of

tbe conditions or incidents of amending proceedings after swearing tbe jury, and construing the agreement witb reference to the requirements of that Act, the parties to it would be considered, as having obligated themselves, in the further progress of the tidal, to assume that those requirements had been complied witb. In that view, tbe effect of the agreement would be, to place the case on the amended pleadings before the same jury, and to estop the parties from objecting on that ground to their verdict. We think,however, that the Act of 1809 was so far modified by the Act of 1852, as to permit the amendments made in this case, without withdrawing a juror. The 1st section of the last named Act, authorizes the amendment of the proceedings, including the writ or summons, at any time before the jury retire to make up their verdict, and the 9th declares that no continuance shall be granted upon such amendments, and “that (he case shall proceed as if no amendment had been made.’’ unless the Court is satisfied that a continuance is necessary to tbe ends of justice. These provisions are clear and intelligible, and, in our opinion, authorize amendments which do not change the substance of tbe issues, to be made after the jury are sworn, without withdrawing a juror. The clause directing “the case to proceed as if no amendment had been made,” can have its full effect upon no other construction.

The amendments made in this case, did not change the issues joined, nor were they such as to deprive the appellant of any defence or right, and as the Court had the power to direct the case to bo proceeded witb, as if no amendment had been made, we think the objection to the verdict cannot be maintained. Having found, in our view of the record, no sufficient reason for arresting the judgment, the ruling of the Court below on the motion will he affirmed.

The instruction contained in the appellant’s 1st prayer, which the Court rejected, presents two propositions: 1st, that the words laid in the declaration were privileged; and 2nd, that there was no evidence in the case from which the jury could find that they were spoken from malice in fact. The 1st of these propositions was granted by the Court in the appellant’s 2nd prayer, which, for that reason, need not be considered, and the proposition that there was no evidence of express malice, alone remains to be determined. 4

The only effect of privilege on actionable words, is to rebut the legal inference or presumption of malice, and to that extent constitute a good defence in an action upon them. 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 or 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. And although the occasion may be such as to justify the legal inference of privilege, yet 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, and evidence of any other words or acts having reference to the subject matter of the actionable words, may be submitted to the jury for the same purpose, whether such other words or acts were spoken and done before or after suit brought. Toogood vs. Spyring, 1 Crom. Mees. & Ros., 192. Coxhead vs. Richards, 52 Eng. Com. L., 584. Taylor vs. Hawkins, 71 Eng. Com. L., 301. Wright vs. Woodgate, 2 Crom. Mees. & Ros., 513. Gassett vs. Gilbert,

6 Gray, 97. White vs. Nichols, 3 How., 266. Wallis vs. Mease, 3 Bin., 546. Bodwell vs. Swan, 3 Pick., 376. Kennedy vs. Gifford, 19 Wend., 296. Duvall vs. Griffith, 2 H. & G., 30. Applying tbe principles enunciated upon tbe strength of these authorities, wo think the instruction that there was no evidence proper for the jury to consider on the question of express malice, was properly refused. The conversation of the appellant with Mr. Latrobe, as stated by the witness Bollman, referred to the appellee, and in some degree indicated personal hostility on the part of the appellant. In that view we think it was evidence on the question of express malice, and that it was properly allowed to go to the jury.

(Decided March 25th, 1863.)