Appeal from the Baltimore City Court; Harlan, J.
Brune, C. J., and Henderson, Hammond, Marbury and Sybert, JJ. Henderson, J., delivered the opinion of the Court.
This appeal is from a judgment for costs entered after the
court granted a motion to dismiss an action against John B. Funk and Russell S. Davis. These defendants were sued, with three others, in a narr alleging conspiracy to cause the appellant's discharge from the Classified Service. The court sustained a demurrer filed by the other three, with leave to amend, but that ruling is not before us.
The motion purported to be based upon Rule 323 b, which provides:
"b. Motion Mandatory -- Charitable and Governmental Immunity.
The defense of total or partial charitable or governmental immunity shall be raised by motion pursuant to this Rule. Such motion shall state specifically the grounds for immunity. If a ground for partial immunity is that the damages claimed exceed the limits of available insurance the court shall postpone consideration of this particular ground until after trial of the action on its merits."
A Committee Note points out that charitable corporations are immune from suit, but that by virtue of Code (1957), Art. 48 A, sec. 85, the charity may not plead immunity to the extent that its tort liability is covered by insurance. See also Code (1963 Supp.), Art. 48 A, sec. 480. Numerous examples are given of defenses that should be raised under the Rule. The note concludes with the statement that "while the defense of governmental immunity rests on a different basis from that of charitable immunity, it is believed that there are equally persuasive reasons requiring that the defense be raised and its validity determined at an early stage in the proceedings."
None of the problems raised by the existence of insurance are present in the instant case, nor is there any claim of liability on the part of the State itself. We think the Committee simply did not have in mind, when it amended the Rule in 1961, the immunity, or more properly the privilege, of State officials, acting in good faith and within the scope of their official duties, to avoid liability. We are constrained to hold that the motion was improperly filed, for the reason that Rule 323 b is restricted to actions against charitable corporations and governmental
agencies, eo nomine, and does not apply to actions against public officers. The immunity of such officers, where it exists, rests upon wholly different grounds from that of the State. See Muskopf v. Corning Hospital District, 359 P. 2d 457, 462 (Cal.); Lipman v. Brisbane Elementary School District, 359 P. 2d 465 (Cal.). In 3 Davis, Administrative Law Treatise, the author deals separately, in chapter 25, with governmental tort liability, and in chapter 26 with officers' tort liability. In a suit such as this, we think the defense of immunity, or privilege, should be raised by the pleadings and not by a mandatory preliminary motion.
The appellant in the instant case treats the motion to dismiss as a demurrer, for he cites Carr v. Watkins, 227 Md. 578, 585, for the proposition that a defense of qualified privilege is not available on demurrer. See also Powell v. American T. and L. Co., 131 Md. 539, 543. The Attorney General counters with a contention that the privilege is absolute, and may be raised on demurrer. The narr alleged that the plaintiff lost his employment because the defendants Webster and Stern gave perjured testimony at a hearing before Davis, Commissioner of State Personnel, on charges placed by Funk. The motion identifies Funk as the chairman of the State Roads Commission, and asserts that the declaration fails to allege any facts to show that the defendants Funk and Davis were acting with malice or outside the scope of their official duties. The declaration did allege, however, that all the defendants "knowingly, willfully, wrongfully and ...