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Kennedy v. Cannon

Decided: June 13, 1962.

KENNEDY
v.
CANNON



Appeal from the Circuit Court for Dorchester County; Henry, Jr., J.

Brune, C. J., and Prescott, Horney, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.

Sybert

This appeal questions whether the trial court erred in directing a verdict for the defendant, an attorney, in a suit for slander on the grounds that the allegedly slanderous statement was privileged as part of the defendant's duty as counsel to his client, and that no malice on the part of the defendant had been shown.

The appellee, Robert Powell Cannon (defendant below), was summoned to the Wicomico County jail in Salisbury at the request of Charles L. Humphreys, a Negro who had been arrested early that morning and charged with the rape of the appellant, Jane Linton Kennedy, a white, married woman. After conferring with the prisoner, appellee made a telephone call to Richard L. Moore, managing editor of the Salisbury Times, a daily newspaper published in Salisbury, with a circulation of about 23,000. He inquired concerning any information the newspaper might have received in regard to the charge against Humphreys and was informed by Mr. Moore that "we had talked to the authorities and had gotten a story together, and the story said that Humphreys had signed a statement admitting intercourse with the woman who was involved." Mr. Moore told the appellee that the information had been given by the State's Attorney. Thereupon, the appellee proceeded to tell Mr. Moore everything that Humphreys had related to him, including an assertion by Humphreys that Mrs. Kennedy had consented to the intercourse. When informed that it would be impossible to print matter of that type, and at such great length, appellee agreed, with some reluctance, to the publication as part of the news article of additional material quoting the appellee as to Humphreys' claim. The article which was published that afternoon included in the information furnished by the State's Attorney the identity of the appellant, the fact that she is a white woman, the fact that she had accused Humphreys, a Negro, of raping her, and a statement that Humphreys had signed an admission of the intercourse. The article then quoted appellee as having said, "He [Humphreys] emphatically denies the charge. He says that the woman submitted to his advances willingly."

As a result of the publication of the statement appellant alleged she suffered humiliation and harassment by annoying phone calls from unknown persons and eventually was forced to move with her family out of the community and the State. She instituted a suit against appellee alleging that the words spoken by him to the newspaper charged her with the crime of adultery, were slanderous per se under Art. 88, § 1, Code (1957), and were not privileged.

The appellee admitted on the witness stand that the newspaper article correctly quoted his statement to the editor. He sought to justify its publication on the ground that the physical safety of his client required it. He stated he feared the possibility of a lynching if only the material released by the State's Attorney were published. Recalling a lynching which had occurred in Salisbury under similar circumstances some 25 years previously, he said he felt that the account should include a denial of the charge based upon his client's claim of consent by the woman. At the conclusion of the testimony before a jury, the trial court granted appellee's motion for a directed verdict, expressing the opinion that when the State had undertaken to publish a statement about the case damaging to his client, the appellee was justified and privileged in replying as he did. Appellant appeals from the judgment for costs entered in favor of appellee.

The question raised here is whether appellee's statement comes within the ambit of Code (1957), Art. 88, § 1, supra (relating to slander), or whether a recovery by appellant is barred because the statement was privileged. Words of the nature involved here have been held to be slanderous per se. Brinsfield v. Howeth, 110 Md. 520, 526, 73 Atl. 289 (1909); Cairnes v. Pelton, 103 Md. 40, 63 Atl. 105 (1906).

The privilege afforded an attorney in a judicial proceeding and its rationale are discussed in the leading case of Maulsby v. Reifsnider, 69 Md. 143, 14 Atl. 505 (1888), where this Court stated (at 151):

"* * * All agree, that counsel are privileged and protected to a certain extent, at least, for defamatory words spoken in a judicial proceeding, and words thus spoken are not actionable, which would in themselves be actionable, if spoken elsewhere. He is obliged in the discharge of a professional duty to prosecute and defend the most important rights and interests, the life it may be, or the liberty or the property of his client, and it is absolutely essential to the administration of justice that he should be allowed the widest latitude in commenting on the character, the conduct

and motives of parties and witnesses and other persons directly or remotely connected with the subject-matter in litigation. And to subject him to actions of slander by every one who may consider himself aggrieved, and to the costs and expenses of a harassing litigation, would be to fetter and restrain him in that open and fearless discharge of duty which he owes to his client, and which the demands of justice require. Not that the law means to say, that one, because he is counsel in the trial of a cause, has the right, abstractly considered, deliberately and maliciously to slander another, but it is the fear that if the rule were otherwise, actions without number might be brought against counsel who had not spoken falsely and maliciously. It is better therefore to make the rule of law so large that counsel acting bona fide in the discharge of duty, shall never be troubled, although by making it so large, others who have acted mala fide and maliciously, are included. The question whether words spoken by counsel were spoken maliciously or in good faith, are, and always will be, open questions, upon which opinion may differ, and counsel, however innocent, would be liable if not to judgments, to a vexatious and expensive litigation. The privilege thus recognized by law is not the privilege ...


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