Embrey v. Holly
Embrey v. Holly
Opinion of the Court
delivered the opinion of the Court. Murphy, C. J., and Eldridge and Davidson, JJ., dissent. Murphy, C. J., filed a dissenting opinion at page 143 infra, in which Eldridge and Davidson, JJ., join.
Ever since the United States Supreme Court in the case of New York Times v. Sullivan *
Respondent Dennis Holly, a television news commentator in Baltimore, instituted this defamation action against petitioners James Embrey, Jr., a local radio show host known professionally as Johnny Walker, and Walker’s employer, Baltimore Radio Show, Incorporated, the operator of radio station WFBR. By the suit, Holly seeks recompense for damage to his reputation resulting from a purported joke about the newsman which Walker related during his morning radio program in February, 1979. It seems that Walker specializes in what one listener and witness characterized as "a zany, whacky, crazy, fanciful morning discjockey show with some added features, such as the Little News in the Morning where Johnny writes crazy and wild things about current events and makes up a whole lot of things that haven’t
Walker’s comment which spawned this defamation litigation occurred during the "Harry Horni” segment of his show on the morning of February 28, 1979, about a week after Baltimore had been paralyzed by a blizzard which left the city buried under two feet of snow. During the "Horni Report” taped at 6:15 a.m., the fictitious columnist truthfully related that Dennis Holly was about to undergo knee surgery. Apparently believing that the "Horni” section of his show, which was re-broadcast at 8:15 a.m., lacked sufficient "humor,” Walker, as the subsequent airing of the "tidbits” was ending, added an additional comment about Holly: "Too bad about Dennis Holly, though. Hope that comes out okay. Wonder how he hurt his knee? Probably fell down carrying that TV during the blizzard last week, right?”
The petitioners in this Court, Walker and Baltimore Radio Show, Inc., being limited by the terms of our grant of certiorari to the punitive damages aspect of this case, present two
Following a lengthy analysis of federal first amendment free speech values, in contradistinction to the states’ interest in protecting their citizens from defamatory utterances, the United States Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789 (1974), held that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Seizing upon this language, the petitioners assert that "[vjicarious liability of a principal for punitive damages in a defamation case based solely on the existence of an employer-employee relationship is a form of strict liability that violates the constitutional principles established in Gertz.” Alternatively, in the absence of constitutional mandate but in light of the policy of free expression inherent in the first amendment, we are urged to require some degree of active employer complicity in the defamatory acts of its employee before liability for punitive damages can attach to the master in a defamation case. In order to discuss properly petitioners’ intertwined claims in this regard, we must examine the basis of an employer’s responsibility for its employee’s torts and the nature of punitive damages in this context.
Although the rule [holding the principal liable for punitive damages] may in some cases result in hardship to the principal, yet, if carefully applied, there is less danger of injustice in enforcing it, in proper cases, than in denying it in all cases unless the principal has actually participated in the wrong*136 done by his agent or servant or authorized or ratified it. Any liability of the master for a tort of his servant is dependent upon the fact that the servant was acting at the time in the course of his master’s service, and for his benefit, within the scope of his employment. The master selects him for that service and knows, or ought to know, what sort of a person he is investing with authority to act for him. The servant is acting for his master when the wrong is done — it is in contemplation of law the act of the master. In a great many cases, a judgment against the servant would be of no value to the injured one and no punishment to the wrong-doer, as it could not be collected. Every character of business, of any considerable proportions, is for the most part conducted through agents and servants, and if the principal or master cannot be held responsible in punitive damages, it would in many, perhaps in most actions of torts, be equivalent to abolishing that character of damages, if he is to be relieved by reason of the fact that the act complained of was done by the servant, and not by him individually.*137 We confess that it seems to us that there is no class of cases where the doctrine of exemplary damages can be more beneficially applied than to... corporations ... and it might as well not be applied to them at all as to limit its application to cases where the servant is directly or impliedly commanded by the [railroad] corporation to maltreat and insult a passenger, or to cases where such an act is directly or impliedly ratified; for no such cases will ever occur. A corporation is an imaginary being. It has no mind but the mind of its servants; it has no voice but the voice of its servants; and it has no hands with which to act but the hands of its servants. All its schemes of mischief, as well as its schemes of public enterprise, are conceived by human minds and executed by human hands; and these minds and hands are its servants’ minds and hands. All attempts, therefore, to distinguish between the guilt of the servant and the guilt of the corporation; or the malice of the servant and the malice of the corporation; or the punishment of the servant and the punishment of the corporation, is sheer nonsense; and only tends to confuse the mind and confound the judgment. Neither guilt, malice, nor suffering is predicable of this ideal existence, called a corporation. And yet under cover of its name and authority, there is in fact as much wickedness, and as much that is deserving of punishment, as can be found anywhere else. And since these ideal existences can neither be hung, imprisoned, whipped, or put in the stocks, — since in fact no corrective influence can be brought to bear upon them except that of pecuniary loss, — it does seem to us that the doctrine of exemplary damages is more beneficial in its application to them, than in its application to natural persons.
The United States Supreme Court in Gertz addressed the question, among others, of what role the States may play in defining the standard of liability for defamation of a private
We turn now to address the second aspect of petitioners’ contention concerning the award of punitive damages in this
"It is axiomatic”, we noted in Wedeman v. City Chevrolet Co., 278 Md. 524, 531, 366 A.2d 7, 12 (1976), "that in appropriate cases [exemplary] damages are awarded, over and above full compensation, to punish the wrongdoer, to teach him not to repeat his wrongful conduct and to deter others from engaging in the same conduct.” Many states, in recognition of these principles, have adopted the rule that punitive damages may be apportioned between wrongdoers either by providing varying amounts of such awards or by levying exemplary damages against some of the defendants but not others.
[t]he jury may ... in awarding exemplary damages and determining the amount which would suffi*143 ciently punish the defendants, have been influenced by the net worth of the two individual defendants and the partnership. And since it cannot be assumed that they attempted to make the "punishment fit the crime”, rather than the offenders, it does not follow that they would have awarded the amount in exemplary damages against one defendant worth less than $8,000, that they did against three worth over $68,000. [Id. at 644, 192 A. at 348-49.]
Accordingly, we hold that it is entirely proper to permit a jury to apportion punitive damages among multiple defendants, and shall reverse the judgment of the Court of Special Appeals in this regard.
Judgment of the Court of Special Appeals affirmed in part and reversed in part.
Costs to be paid equally by the parties.
. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
. A person’s good name has been described as being even more deserving of protection than his property. Shakespeare noted that
Good name in man and woman, dear my lord, Is the immediate jewel of their souls; Who steals my purse steals trash; 'tis something, nothing; 'Twas mine, 'tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.
"Othello,” Act 3, Scene 3, 1.155. And as Justice Stewart put it:
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential worth of every human being — a concept at the root of any decent system of ordered liberty.
Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (concurring opinion).
. He explained at trial that there are "about one hundred sound effects and goofy things that I use.”
. As the tape of the offending broadcast was not preserved, there is no documentation of the exact words used. After suit had been filed, however, Walker and Matz reenacted to the best of their recollection the "Horni” broadcast containing the just quoted words. This reenactment was recorded on tape, and, at the instance of Walker and the radio station, was received into evidence and played for the jury.
. For a detailed analysis by the Court of Special Appeals of the factual context and innuendo which, in its opinion, justified submission of the defamation issue to the jury see Embrey v. Holly, 48 Md. App. 571, 587, 429 A.2d 251, 262 (1981), where the Court determined in this case that "[t]he evidence, tested by the clear and convincing standard, was such as to allow the jury to conclude reasonably that Walker’s remark” was libelous. The intermediate court also decided that "the evidence perspicuously supports the jury’s finding that Walker acted with a high awareness that the 'joke’ relative to Holly could be perceived as true;” consequently, as the radio host’s conduct met the New York Times standard, punitive damages were properly awarded in this case. Id. at 594, 429 A.2d at 265-66. Neither of these determinations was encompassed within our grant of certiorari in this action; accordingly, we express no opinion as to their correctness and do not consider them further here.
. E.g., Western Coach Corp. v. Vaughn, 9 Ariz. App. 336, 452 P.2d 117, 119 (1969); Standard Oil Co. of Kentucky v. Gunn, 234 Ala. 598, 176 So. 332, 334 (1937); Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 296 (1948); Mercury Motor Express, Inc. v. Smith, 372 So.2d 116, 117 (Fla. App. 1979); Amer. Fidelity & Cas. Co. v. Farmer, 48 S.E.2d 122, 131-32 (Ga. App. 1948); State Bank of Waterloo v. Potosi Tie & Lumber Co., 299 Ill. App. 524, 20 N.E.2d 893, 895 (1939); Northrop v. Miles Homes, Inc. of Iowa, 204 N.W.2d 850, 858-59 (Iowa 1973); Goddard v. Grand Trunk Ry., 57 Maine 202,223-24 (1869); D.L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770, 773 (1944); Rinker v. Ford Motor Co., 567 S.W.2d 655, 669 (Mo. App. 1978); Schmidt v. Minor, 150 Minn. 236, 184 N.W. 964, 965-66 (1921); Clemmons v. Life Ins. Co. of Georgia, 274 N.C. 416, 163 S.E.2d 761, 767 (1968); Kurn v. Radencic, 141 P.2d 580, 581 (Okla. 1943); Stroud v. Denny’s Restaurant, Inc., 271 Or. 430, 532 P.2d 790, 794 (1975); Odom v. Gray, 508 S.W.2d 526, 533 (Tenn. 1974). See generally, 22 Am.Jur.2d Damages, §§. 257-261; 10 Fletcher Cyc. Corps, (perm. Ed.) § 4906; W. Prosser, Law of Torts (4th ed.), § 2, at p. 12.
. Liability of a municipal corporation for punitive damages, however, presents an entirely different question than the one discussed in the text, and we do not consider such liability here.
. E.g., Lake Shore R. Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 263, 37 L.Ed. 97 (1893); Hartman v. Shell Oil Co., 68 Cal.App.3d 240, 137 Cal.
. W. Prosser, The Law of Torts (4th Ed.), § 2, p. 12, n. 95.
. See Note, The Assessment of Punitive Damages Against an Entrepreneur for the Malicious Torts of His Employees, 70 Yale L.J. 1296 (1961).
. Petitioners suggest that, even if it is not applied generally, the test contained in the Restatement, Second, of Torts, § 909 (and duplicated by § 217 C of the Restatement, Second, of Agency) should at least apply in defamation cases to the imposition of punitive damages against a principal for the defamatory conduct of the agent. Section 909 states as follows:
Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
(a) the principal or a managerial agent authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.
Section 909, in essence, represents the rule applied by a minority of jurisdictions to all claims for punitive damages based upon respondeat superior. See note 11, supra, and accompanying text.
. Holly acknowledges that he is a public figure for purposes of this suit.
. It is in this regard that the dissent in our view misreads Gertz and mischaracterizes respondeat superior, for an act done with "fault” in the constitutional sense can certainly be committed vicariously by an employer acting through its agent, and we perceive nothing in Gertz to the contrary. We note that many of the defamation cases to reach the Supreme Court in recent years have involved suits against corporate defendants for the acts done by the employees of the corporation. E.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).
. In Gertz, the High Court noted that although the States may define for themselves the standard for liability for defamation of a private individual, such liability extends only to compensatory damages. The Court went on to state that "... the States may not permit recovery of ... punitive damages,... when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” 418 U.S. at 349, 94 S.Ct. at 3011. The universally recognized implication of the Court’s curious use of the double negative here is that punitive damages are permitted when such "actual malice” is shown. See General Motors Corp. v. Piskor, 277 Md. 165, 175, 352 A.2d 810, 816-17 (1976); Maheu v. Hughes Tool Co., 569 F.2d 459, 479 (9th
. By statute, a joint tortfeaser who pays more than his pro rata share of a compensatory award may obtain contribution from his co-defendants. Md. Code (1957, 1979 Repl. Vol.), Art. 50, §§ 16-24.
. See, e.g., Davidson v. Dixon, 386 F.Supp. 482 (D.Del. 1974); Kim v. Chinn, 56 Cal.App.2d 857, 133 P.2d 677 (1943); Remeikis v. Boss & Phelps, Inc., 419 A.2d 986, 991-92 (D.C. App. 1980); L & N R.R. v. Roth, 130 Ky. 759, 114 S.W. 264 (1908); Nelson v. Halvorson, 117 Minn. 255, 135 N.W. 818 (1912); State ex rel. Hall v. Cook, 400 S.W.2d 39 (Mo. 1966); Bowman v. Lewis, 110 Mont. 435, 102 P.2d 1 (1940); Edquest v. Tripp & Dragstedt Co., 93 Mont. 446, 19 P.2d 637 (1933) (dictum); Hotel Riviera, Inc. v. Short, 80 Nev. 505,396 P.2d 855 (1964); Sierra Blanca Sales Co. v. Newco Industries, Inc., 88 N.M. 472, 542 P.2d 52 (1975); Latasa v. Aron, 59 Misc. 26, 109 N.Y.S. 744 (1908); McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512 (1933); Mauk v. Brundage, 68 Ohio St. 89, 67 N.E. 152 (1903); Fredeen v. Stride, 269 Or. 369, 525 P.2d 166 (1974); Fredericks v. Commercial Credit Co., 145 S.C. 380, 143 S.E. 179 (1928); Huckeby v. Spangler, 563 S.W.2d 555 (Tenn. 1978); St. Louis & S.W. Ry. v. Thompson, 102 Tex. 89, 113 S.W. 144 (1908); Freeman v. Sproles, 204 Va. 353, 131 S.E.2d 410 (1963) (dictum). See also, Annot. 20 ALR 3d. 666 and later case service.
. Any indications contrary to the apportionment rule just articulated which have been perceived in the addendum to Nance v. Gall, 187 Md. 656, 674-77, 51 A.2d 535, 535-36 (1946), are hereby disapproved. Compare Meleski v. Pinero Restaurant, 46 Md. App. 526, 544-51, 424 A.2d 784, 794-97 (1981), with Cheek v. J.B.G. Properties, Inc., 28 Md. App. 29, 43-44, 344 A.2d 180, 189-90 (1975).
Dissenting Opinion
dissenting:
While I have no disagreement with that part of the majority opinion enunciating legal principles governing the apportionment of punitive damages, I dissent from the majority’s imposition of punitive damages against Walker’s employer, the Baltimore Radio Show, Inc. The majority’s decision flies in the face of accepted constitutional doctrine, i.e., that "States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974).
In Gertz, the Supreme Court attempted to balance the need to avoid media self-censorship with the legitimate state
The Supreme Court rejected this argument, holding that private individuals need not prove "constitutional malice,” and leaving it to the states to "define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood” as "long as they do not impose liability without fault.” 418 U.S. at 347 (emphasis added). In explaining this holding, and referring to punitive damages, the Court stated that the state interest in compensating a plaintiff for injury to reputation extends no further than actual injury. Id. at 348-49. Additionally, the Supreme Court noted the especially compelling danger of allowing jury awards without proof of loss in First Amendment cases. Id. at 349-50.
We embraced this reasoning in General Motors Corp. v. Piskor, 277 Md. 165, 175, 352 A.2d 810 (1976), where we allowed a plaintiff to "recover compensation for actual injury ... but not presumed or punitive damages unless he meets the New York Times standard of knowing falsity or reckless disregard for the truth.” Accord Jacron Sales Co. v. Sindorf, 276 Md. 580, 601, 350 A.2d 688 (1976).
Although Gertz dealt with private individuals, it is axiomatic that if a private individual cannot be awarded punitive damages, absent a showing of "constitutional malice,” neither can a public figure, such as Dennis Holly. The record reveals a finding of "constitutional malice” against Johnny
Dismissing the clear language of Gertz as "not dispositive” and describing, without explanation, petitioner’s constitutional claims as "illusory,” the majority declines to adopt the test contained in the Restatement, Second, of Torts, § 909 (1979), which provides:
"Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
(a) the principal or a managerial agent authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.”
The Restatement test, by requiring some degree of employer authorization, participation or ratification of an employee’s defamatory act before attaching punitive liability to the employer is constitutionally impelled by the mandate of Gertz. Therefore, I would adopt the Restatement test, reverse the punitive damage award against the employer, and remand for a new trial on that issue.
Judges Eldridge and Davidson authorize me to state that they join me in the views expressed herein.
Reference
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- JAMES EMBREY, JR. Et Al. v. DENNIS P. HOLLY
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