Harnish v. Herald-Mail Co.

286 A.2d 146, 264 Md. 326

• Court: Court of Appeals of Maryland
• Decided: February 22, 1972
• Docket: [No. 81, September Term, 1971.]
• Status: Published

Opinions

Hammond, C. J.,

delivered the opinion of the Court. Barnes and Finan, JJ., dissent and Barnes, J., filed a dissenting opinion in which Finan, J., concurs at page 838 infra.

Richard Harnish, a chiropractor and owner of rental properties, and his wife, Doris Jane, sued the Herald-Mail Co., Inc., which owns and publishes two newspapers in Hagerstown, The Daily Mail (an evening edition), and The Morning Herald, and Philip Ebersole, a reporter, on an amended declaration in three counts. The first count alleged that Dr. Harnish had been libelled by a story written by Ebersole and published in The Daily Mail on October 3, 1967 and in The Morning Herald the next day. The second alleged that the article complained of wilfully and maliciously violated the right of privacy of the doctor and his wife. The third count alleged that the Herald-Mail Co. and Ebersole, by writing, publishing and circulating the article, “did wilfully, wrongfully and maliciously conspire” to deprive the plaintiffs of their reputation, their income and their ability to earn a livelihood. Judge Clapp, sitting in the Circuit Court for Frederick County, directed a verdict for the defendants on counts two and three at the end of the plaintiffs’ case and similarly directed a verdict on the first count at the end of the whole case. Preliminarily, Judge McLaughlin had dismissed Mrs. Harnish as a plaintiff and South Bend Tribune, Inc. (the owner of all the stock of Herald-Mail Co.), a foreign corporation doing no business and having no presence in Maryland, which had been a defendant in the original declaration.

The appellants complain strongly that both dismissals were erroneous. Since we find that Judge Clapp rightly found as a matter of law that the appellants had no cause of action against anybody sued, there is no need to decide the point.

The story which Dr. Harnish finds offensive and harmful to him came to be written and published in this wise.

At least as early as 1966 Hagerstown was facing and attempting to correct the problem and the presence of too much substandard rental property. The matter had become one of public interest and concern. Evidence of this was to be found in a number of newspaper articles written by Ebersole and published in The Daily Mail and The Morning Herald on various aspects of the problem and its effect on the people who had to live in.such properties. In order to keep abreast of the situation, Ebersole regularly visited the office in the City Hall of one Walter J. Nye, a plumber by trade who had been employed by the City as a housing inspector, in search of newsworthy material. Nye’s inspections had turned up a large proportion of houses that were in substantial and potentially harmful violation of housing and sanitary codes. One nest of such substandard dwellings, which Nye had inspected, was on North Locust Street. They long had been known as Potlikker Flats and in general had reached such a physical point of no return that the City of Hagerstown was tentatively considering their acquisition in order to raze them and widen the street on which they fronted. Dr. and Mrs. Harnish owned 634 North Locust Street, one of the Potlikker Flats houses. They had bought it for $1,500, giving back to the seller a mortgage for $1,500. This house was rented to a family named Reeder for $40.00 a month. Nye had inspected this house in the late summer of 1967 and had found numerous violations of the code. After Dr. Harnish had failed to make the repairs Nye had notified him he should make, Nye decided to do what he had done on other occasions — give the situation publicity. Ebersole gave this account from the stand of what happened:

“Well, I was at City Hall checking the offices and I ran into Joe Nye and he told me that he had what he thought might be a very good story for me. That it involved a large family that were living under substandard conditions and that had a son who had been disabled in Vietnam that — who had no home to come to and that he was interested in publicizing them both because to generally show another example of bad housing conditions in the city and also this might help him in his efforts to find a new home for this family. So I asked him if the family would be willing to have me go in their house and be interviewed and he said that he thought they would and I asked him if he thought he could set it up for me and he said he would.”

Ebersole and Nye went to the home of the Reeder family, where Ebersole talked with the husband and father, Elmer Reeder, advising him that he was a reporter. Reeder showed him through the house, pointing out its defects and disrepair. Reeder agreed to be quoted in the article Ebersole proposed to write. Ebersole then talked to Dr. Harnish on the telephone, who, says Ebersole, “made statements about the house and about his intentions to me.”

Ebersole wrote his story which appeared in The Daily Mail on September 27, 1967 and in The Morning Herald the next morning. The story was headed “Wounded Marine’s Home Seen Violating Code.” The two lead paragraphs, alongside a picture of a Marine in uniform, said:

“The Potlikker Flats home of a Marine wounded in Vietnam has been charged to be in violation of the Hagerstown Housing Code.

“Dennis E. Reeder, 19, lived with his mother, father and five brothers and sisters in a 13-foot wide house on the 600 block of N. Locust St. before enlisting in the Marines a year and a half ago. Now he is a patient at the U. S. Naval Hospital at Bethesda, recovering from wounds in both legs suffered at DaNang.”

The story went on to detail the many code violations at the Reeder home and recited that the father said they would have trouble getting the wounded son through the broken doorway in a wheel chair and protecting him from drafts through the holes in the walls and windows when he soon came home on a thirty-day leave. Dr. Harnish’s side of the story also was detailed. He already, he said, had spent hundreds of dollars on the place and would spend more when he could get it, but not until he got a guarantee from the City of Hagerstown that it was not going to tear down Potlikker Flats. He had installed three-quarter panelling in the living room this year, as well as electrical outlets, so that physiotherapy equipment for Dennis Reeder’s injured legs could be plugged in. Ebersole then wrote: “the partially-panelled living room made a good impression on a visitor and so did the cleanliness and neatness of the house generally.” He quoted Dr. Harnish as saying: “It is a poor investment * * *. The worst property I have. More headaches,” and as saying further that he intended to do something about the broken windows and walls and that “there are simply not many places in Hagerstown where a family of seven or eight can rent for $40 or $45 a month. * * * Loans at low interest rates to landlords for improvement to their properties might be one answer * *

Mrs. Harnish kept the accounts and records of the family’s rental properties. On September 28, the day Ebersole’s story appeared in The Morning Herald, she wrote and sent an eviction notice to 634 North Locust Street over the typewritten name of Dr. Harnish. Apparently, she thought the head of the family was a James Reeder — although actually he was named Elmer and there was no James — for she addressed the notice to James Reeder. The eviction date was set in the notice as October 1, three days from the date of the notice, although she meant to write October 31.

Several days later — apparently October 2 — Nye gave Ebersole a photostatic copy of the eviction notice. Ebersole telephoned Dr. Harnish and discussed the notice and the situation with him, and then wrote the story which appeared in The Daily Mail on October 3 and The Morning Herald on October 4 and which Dr. Harnish says libelled him by falsely saying he sent an eviction notice to a wounded marine, and by insinuating that the Harnishes require tenants to be grateful to them, and that they are spiteful and vengeful persons. The story in The Morning Herald had the headline “Wounded GI’s Family Gets Landlord’s Eviction Order.” The headline in The Daily Mail was “Wounded Marine’s Family Evicted From Home After Code Complaints.” The story read:

“The father, mother and five brothers and sisters of a wounded Marine have been given an eviction notice to leave their home at 634 N. Locust St.

“ T just don’t have time to be bothered with people who are ungrateful,’ said their landlord,

Dr. Richard Harnish.

“The premises were cited for alleged violations of the City Housing Code by Housing Inspector Joseph Walter Nye, but this dwelling was not one of the eight Potlikker Flats houses condemned under the Housing Code.

“Elmer Reeder,, his wife and five children live there. A sixth child, James Reeder, 19, is a patient at the U.S. Naval Hospital at Bethesda, where he is slowly recovering from leg wounds suffered while serving with the U.S. Marines in Vietnam.

“The elder Reeder said it would be easier to bring his son home for a visit if cracks in the wall were patched up and the doorway were fixed so his son’s wheelchair could be brought through more easily.

“Dr. Harnish sent this notice:

Sept. 28, 1967

Mr. James Reeder

634 N. Locust St.

Hagerstown

Dear Mr. Reeder

This is a thirty days notice required by law requested that you vacate the premises at 634 N. Locust St., Hagerstown, by October 1, 1967.

Very truly yours,

Richard G. Harnish

D.C.

“It may he noted that the letter is addressed to James Reeder, the wounded Marine whose name was mentioned in a newspaper story last week, and not to Elmer Reeder, who is the actual head of the household there.

“Dr. Harnish said he has done the Reeder family many favors, including forgiving a $150 debt.

“ ‘There is no vengeance here,’ he said, ‘Let Joe Nye find them a decent place to live.’

“Housing Inspector Nye said he will contact veterans’ organizations to see if any of them can help the wounded Marine’s family to find other living quarters.”

Dr. Harnish says the article contained an explicit false statement, namely, that he had sent the notice to the Marine, named James, when actually the Marine’s name was Dennis and he had intended to send the notice to the father, Elmer.

About two weeks later Dr. Harnish met Ebersole in a restaurant and this colloquy ensued, according to Ebersole:

“ [Dr. Harnish] said, Phil, you made an error in your story about the Reeder family. The eviction notice was not sent to the Marine. And I said, well, if we did make an error I am very sorry about it. I will check on it and if it was wrong we will run a correction.”

Ebersole wrote a correction for the following day’s paper and it was printed a day after that on the second most prominent page of the paper in a box in heavy black type.

Dr. Harnish was not only a landlord and chiropractor. For nine years prior to 1966 he had been a member of the five-man Hagerstown Housing Authority Board. He was active in politics and had been a candidate for a seat in the House of Delegates in 1958, 1962 and 1966 Democratic primaries. In the 1962 and 1966 campaigns he had publicized his interest and involvement in adequate housing.

Judge Clapp found that the state of public housing and substandard housing were matters of general public interest and concern in Hagerstown and a field of legitimate inquiry and exposition by the newspapers, and that Dr. Harnish was a public figure, particularly in the field of housing. He found the law to be that a public figure cannot recover for a libel, even a false defamatory statement, unless he shows that the falsehood was written and printed with malice or with a reckless or wanton disregard of its truth or falsity, and found neither malice nor wantonness.

We think Judge Clapp did not err in his finding that Dr. Harnish was a public figure and his finding that the subject matter with which the allegedly libelous story dealt was within the area of general interest and concern of the citizens of Hagerstown as a whole (although the latter finding when he made it did not have the significance it has since attained under the late decisions of the Supreme Court of the United States). His analysis of the law as it then stood was sound, as was his finding that neither malice nor wantonness on the part of Ebersole and the newspapers had been shown. See A. S. Abell Company v. Barnes, 258 Md. 56.

We tend strongly to the view that Ebersole’s erroneous statement that the eviction notice had been sent to the wounded Marine, read in the context of the story as a whole, did nothing to make the story libelous in the traditional sense. The Harnishes say the story made them appear vindictive, callous, hardhearted, vengeful landlords because they were about to throw out of the home a wounded Marine and his family and this was a libel. It was true, as the Harnishes admit, that they did intend to make a family, one member of which was a wounded Marine, move out of their rental property because the family had brought about publicity about the failure of the landlords to keep the house in repair. The fact that the eviction notice, which was to bring about the moving out of the whole family, had been addressed to the Marine rather than his father had that been the case, would not add to or lessen the basic fact that the landlords intended to evict the whole family, including the Marine, or significantly add to or lessen the chance that readers would decide the landlords were nasty people, the reaction the Harnishes complain of. It is not clear that being made to appear a nasty person is a libel— compare Greenbelt Coop. Pub. Assoc. v. Bresler, 398 U. , 26 L.Ed.2d 6, and Werber v. Klopfer, 260 Md. 486 —but if it is, the landlords were not made to appear nastier because they sent the notice to the wrong person. The nastiness, if there was any, was in the intention to evict, not in the name on the notice of the intention, and Ebersole wrote nothing false about the intention. The accuracy of nothing in the article, including the quotes from Dr. Harnish, is challenged, other than the statement that the notice was addressed to the Marine.

We need not flatly decide the point because if it be assumed that the erroneous statement was libelous on its face, it would not help Dr. Harnish. On June 7, 1971, in Rosenbloom v. Metromedia, 403 U. S. 29, 29 L.Ed.2d 296, the Supreme Court broadened the rule and the scope of New York Times v. Sullivan, 376 U. S. 254, 11 L.Ed.2d 686, and the similar cases which followed it. The Court decided that a person who is neither a public official nor a public figure may not recover if the allegedly defamatory statement related to his involvement in a matter of public or general concern, unless he can meet the burden the public official or public figure had to meet under the test of New York Times. The trial court had instructed the jury that the Pennsylvania law imposed liability on the news media for publishing falsehoods if reasonable care was not used in ascertaining the truth of reports. Metromedia rejected that standard on a constitutional basis. It said (p. 315 of 29 L.Ed.2d) that reasonable care is an “elusive standard” which in the words of Time, Inc. v. Hill at p. 389 of 385 U. S.: “would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.” The Court then went on to say:

“We thus hold that a libel action, as here, by a private individual against a licensed radio station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.”

We hold that Dr. Harnish did not offer clear and convincing proof that the error he complains of was published with knowledge that it was false or with reckless disregard for its truth or falsity. A.S. Abell Company v. Barnes, and Rosenbloom v. Metromedia, both supra. It ill lies in the mouth of Dr. and Mrs. Harnish to say that the publication of their expressed mistaken belief that the head of the Reeder family was named James (rather than Elmer) amounted to malice or reckless disregard of truth or falsity. The conclusion the record offers would rather seem to be that Ebersole obviously assumed — although carelessly and forgetfully — that James was Elmer’s son. The testimony permits no clear and convincing proof of other than a careless and even stupid — although probably harmless — mistake on Ebersole’s part. There was no clear and convincing proof of a knowing wilfulness or gross error on the part of Ebersole and the newspapers that would meet the required constitutional standards established by the Supreme Court as binding on the States.

What has been said also disposes of the invasion of privacy claim. In Household Fin. Corp. v. Bridge, 252 Md. 531, in reviewing Carr v. Watkins, 227 Md. 578 (in which we stated, that in a proper case Maryland would recognize that there is redress for an unwarranted invasion of privacy), Judge Finan pointed out that four kinds of invasion of privacy are generally recognized (p. 537 of 252 Md.):

“ ‘ (a) Unreasonable intrusion upon the seclusion of another, * * *

(b) Appropriation of the other’s name or like-

(c) Unreasonable publicity given to the other’s private life, * * *

(d) Publicity which unreasonably places the other in a false light before the public, * * * 9 »

Obviously, only the last two are possible grounds here, the third being of doubtful pertinence. The fact that Dr. Harnish received the publicity as a result of his relation to a matter of general public interest keeps any invasion of his privacy, if invasion there was, from being unreasonable and actionable. In footnote 1 of Metromedia, the Court said the libel case standards were applicable to suits for invasion of privacy, citing Time, Inc. v. Hill, 385 U. S. 374, 17 L.Ed.2d 456. The Court also said in Metromedia, pp. 314-315 of 29 L.Ed.2d, that the libel laws protect two separate interests of an individual, one being his desire to preserve a certain privacy around his personality from unwarranted invasion. It continued:

“The individual’s interest in privacy — in preventing unwarranted intrusion upon the private aspects of his life — is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern.”

The conspiracy claim deserves and will receive short shrift. It is doubtful at the least that an employee of a corporation and that corporation can conspire where the employee is acting only for the corporation and not for any personal purpose of his own. 16 Am.Jur.2d Conspiracy § 47; Nelson Radio & Supply Co. v. Motorola, 200 F. 2d 911, 914 (5th Cir. 1952), cert. denied, 345 U. S. 925; Arthur v. Kraft-Phenix Cheese Corporation, 26 F. Supp. 824, 829-830 (D. Md. 1938, Chesnut, J.).

In any event if such a conspiracy is possible, there was not a shred of evidence of any conspiracy by or between Ebersole and the Herald-Mail Co.

Judgments affirmed, with costs.