Brinsfield v. Howeth

73 A. 289, 110 Md. 520, 1909 Md. LEXIS 81

• Court: Court of Appeals of Maryland
• Decided: May 20, 1909
• Status: Published

Opinion

Burke, J.,

delivered the opinion of the Court.

This record brings up for review the propriety of ten rulings of the Circuit Court for Wicomico County. In the former appeal of the appellant herein, which is reported in 107 Md. 278, the legal principles to he applied to the case were stated, the judgment was reversed, and the case was remanded for a new trial, and it was adjudged that the plaintiff pay the costs. Upon the new trial a verdict and judgment were entered for the plaintiff for forty-five hundred dollars, and the defendant has again appealed.

This case, which is an action for slander, has been three times tried in the same Court. In the first trial the plaintiff submitted to adjudgment of non pros, and in the subsequent trials she recovered judgments against the appellant. The Court, therefore, in which the case was tried was familiar with the facts, and with the financial condition of the parties, and no doubt knew whether the plaintiff was financially able to pay the costs adjúdged against her on the former appeal. It certainly was in a position to know whether, under the circumstances within its knowledge, it was proper to say that the trial should be stayed until those costs had been paid by the plaintiff. The refusal of the Court ,to grant this stay constitutes the appellant’s first bill of exceptoin. The question presented by this exception was considered in the former appeal, and we there said that an application to grant a temporary stay of proceedings was addressed to the discretion of the Court, and that the refusal of the Court to grant it would not be reviewed, in the absence of an abuse of discretion by the lower Court. A motion to stay proceedings, based upon section 70, Article 75 of the Code 1904, is to be dealt with in precisely the same way. Knee v. City Passenger Railway Company, 87 Md. 623.

At the time the motion for a stay was made, it had been decided by this Court that the plaintiff had a good cause of action against the defendant. The lower Court was aware that the defendant was a man of substantial means, and that the plaintiff was comparatively poor, and the Court may haye well thought that to require her to pay the costs would have imposed upon her a great hardship, and that such an order might have resulted in depriving her of thei ability to try her case. We, therefore, think the Court acted clearly within its judicial discretion in refusing the motion, and that its action is not the. subject of an appeal.

The declaration contains four counts. At the conclusion of the whole case the Court, at the instance of the defendant, instructed the jury that there could be no recovery upon the first and fourth counts, and, therefore, those counts will not be considered. At the time of the publication of the alleged slanderous words the plaintiff was and still is an unmarried female teacher in the public schools of Dorchester County. The words declared on in the second count are these: “She,” the plaintiff, “is a. girl of loose character and not fit to teach school.” On the former appeal we decided that these words, in the absence of a proper averment of extrinsic facts showing that the defendant meant to traduc'e the character of the plaintiff for chastity, were not actionable per se. But in the second count of the present narr. the plaintiff has introduced a prefatory inducement by which the defect found'to exist in the former narr. has been cured. It is averred that he used the words “a girl of loose character” for the purpose of expressing and meaning, and that the words were by the persons in whose hearing they were spoken understood to mean that the plaintiff was unchaste. Under the authorities cited in the former case, the count, as amended, sets forth per se an actionable slander. The words declared on in the third count reflect upon the plaintiff’s chastity, and under sections 1 and 2, Article 88 of the Code are per se slanderous. Cairnes v. Pelton, 103 Md. 40.

The second exception was taken under the following circumstances : S. Spry Andrews, a witness produced on behalf of the plaintiff, testified, among other things, that in October, 1905, at Cambridge, he heard the defendant say to William U. Andrews, the State’s Attorney for Dorchester County, that the plaintiff was a girl of loose character and not fit to teach school. This witness lived about eighteen miles from Cambridge, and went to that place twenty to twenty-five times a year and was well acquainted with the people there. He was asked if he had ever heard “in this neighborhood, in your neighborhood, in Mr. Brinsfield’s neighborhood and in Cambridge the word ‘Loose character’ as applied to a female.” He answered that he had heard it applied to females a good many times. Lie was further asked to state what was the peculiar meaning of the word used on this occasion in the neighborhood described by him. To this question the defendant objected, but the Court overruled the objection, and the witness' said: “It means that a woman has not virtue.” The exception to this evidence is based upon the ground that the witness was not qualified to speak as to the local, or unusual meaning of the words used in the neighborhood. It is true, so far as the record shows, that the counsel in eliciting this evidence did not pursue the formal method stated in Newbold & Son v. Bradstreet, 57 Md. 50, but it does not therefore follow that the testimony should have been excluded. He was well acquainted with the neighborhood in which the words were used, he had heard them applied to females a great many times, and his evidence shows in the neighborhood about which he was interrogated they had a slanderous meaning. He had stated the means and extent of his knowledge upon the subject of the peculiar meaning of the words with sufficient fullness to permit him to testify. In a subsequent part of his testimony he was asked what he understood by the words used on the occasion of the conversation between ■Mr. Brinsfield and:William H. Andrews, and he answered: “Same as before. I understood it to mean that Mr. Brinsfield had said she was not virtuous.”

The third exception was abandoned. The defendant in the former case offered to introduce the same character of evidence as that embraced in the fourth exception, and we held that it was properly excluded.

The plaintiff in the years 1904 and 1905 was teaching in Galestown School, in the neighborhood of her home. She was appointed by the school trustees as teacher in that school for the ensuing year, but her appointment was not confirmed by the School Commissioners. The schools at Toddsville and Hooper’s Island which she secured were twenty-five and forty miles respectively from her home. The declaration alleged that she lost her situation at Galestown, and was also prevented from obtaining other desirable situations because of the alleged slanders of the defendant. To prove these averments her sister, Geneva Howeth, was asked if she knew why the plaintiff did not get any of the schools in her neighborhood in the year she taught in the Toddsville and Hooper Island schools. The defendant objected, and the ruling of the Court permitting •the witness to answer constitutes the fifth exception. The question was a proper one, and asked for information upon a material point, and if her answer was not responsive, or contained irrelevant matter it was the duty of the defendant to have moved to strike it out. But this was not done. It was said in Brashears v. Orme, 93 Md. 451, that “the proper practice is:, -when a question is asked that may call for an answer which is relevant and material, hut the answer given is irrelevant and improper, to then ask the Court to strike out the question and answer, and if it be calculated to do him harm the Court should instruct the jury not to consider it.” But aside from this, which is sufficient to sustain the ruling of the lower Court, the answer of the witness embraced substantially the same facts contained in the sixteenth bill of exception on the former appeal, which facts we held were proper to be considered by the jury.

There was no error in the sixth exception. The defendant sought to obtain from the plaintiff the name of the person who first told her that the defendant had charged her with being a girl of loose character. .It was of no consequence who first gave her the information.

The witness, Jacob N. Wilson, called in rebuttal by the plaintiff, was asked this question: “State whether or not you have heard her general reputation for chastity questioned or doubted until the institution of this suit in 1905.” To this question he answered: “BTo, sir.” After the question had been propounded and answered the defendant objected; but the Court overruled the objection and permitted the answer to go to the jury, and this ruling is the subject of the seventh exception. There was no error in this ruling for at least three reasons — first, the objection came too late; secondly, it was proper evidence in rebuttal; and, thirdly, the testimony under the circumstances cannot fairly be said to have injured the defendant. In Dent v. Hancock, 5 Gill, 127, it is said that “it is the duty of counsel, if aware of the objection to its admissibility, to object to the testimony at the time it is offered to be given, or if unapprised of such objections at the time the evidence had gone to the jury, he must raise the objection within a reasonable time thereafter.” The question propounded gave distinct notice to the defendant that it was proposed to introduce the very character of testimony of which lie here complains, and it was his duty then to object to the question and secure an exception in case of an adverse ruling by the Court. The rule stated in Dent v. Hancock has been approved and applied in many cases in this Court. Baugher v. Duporn, 9 Gill, 325; Groshorn v. Thomas, 20 Md. 242; Marsh v. Hand, 35 Md. 137; Bell v. State, 57 Md. 120. The defendant must be held to have waived all objections to this testimony. But the evidence was admissible in rebuttal. The defendant had offered evidence of witnesses tending to prove that the general reputation of the plaintiff for chastity in the community in which she lived was bad. A number of witnesses testified in rebuttal that hei general reputation in that respect was good. Jacob 3ST. Wilson, whose evidence is excepted to, was the last witness.produced by the plaintiff. It is to be observed that he was not called to establish her general reputation for chastity. Had such been the object of the testimony, it would have been, under all the authorities, inadmissible in the form in which it was offered. It was offered, not to prove her general reputation for chastity, but to rebut the testimony by which that reputation was attempted to be discredited by the defendant’s 'witnesses. There is a clear distinction between the two classes of evidence and the principle controlling its production. This distinction is stated in Sloan v. Edwards, 61 Md. 90, and in that case the principle upon which evidence of the character given by Wilson is held to be admissible was discussed and approved. But in view of the great amount of testimony pro and con offered in the case upon the question of the plaintiff’s general reputation for chastity it is hardly probable that the evidence of Wilson affected the jury to any appreciable extent.

This brings us to the eighth exception, which relates to the ruling on the prayers. The Court granted four prayers on behalf of the plaintiff and six on the part of the defendant. It refused the defendant’s fourth prayer. As the amended declaration states a ease of actionable slander per se, the action of the Court upon the prayers, which the Reporter will set out: in the report of the case, need not be discussed. It will be- seen upon examination of those prayers that the Court correctly applied the rules of law stated in the former case. The defendant’s fourth prayer was bad in that it did not require the jury to find the facts which in law would amount to a qualified privilege. That question, however, was correctly submitted by the plaintiff’s second prayer, which contains a statement of all the facts essential to a recovery on the second count.

The ninth and tenth exceptions may be considered together. The defendant filed a motion for a new trial. In support of this motion he offered an affidavit of John. W. Jones, one of the jurors who tried the case, to the effect that after the jury had retired to the jury room to consider the case he was in favor of a verdict for the defendant, and that he held out for several hours for that finding; that several of the jurors became very angry and swore at him; that there were violent oaths used, and that certain of the jurors intimated that he had been bought; that they told him that he would be a ruined man around the Courthouse if he did not agree to a verdict for the plaintiff; that they said that Brinsfield had bought the witnesses; that but for these threats and representations made to him he would never have agreed to a verdict for the plaintiff, and that in his judgment the verdict was not warranted by the evidence. The Court refused to receive this affidavit in evidence at the hearing of the motion, and this refusal constitutes the ninth exception. The tenth exception is to the denial of the motion for a new trial. It must be admitted that the tenth exception must fail if the Court was right in rejecting the affidavit, as the general rule is that no appeal will lie from the refusal of the Court to grant a new trial. The rule, which obtains in nearly all the States, is that a juror will not be permitted to impeach his •verdict. It prevails both in England and in the Federal Courts. The reason for the rule is thus stated in 14 Ency. Pleading and Practice, 906: “Such evidence is forbidden by public policy, since it would disclose the secrets of the jury room, and afford an opportunity for fraud and perjury. It would open such a door for tampering with weak and indiscreet men that it would render all verdicts insecure; and, therefore, the law has wisely guarded against all such testimony and has considered it unworthy of notice. It would be a most pernicious practice, and in its consequences dangerous to this much valued mode of trial, to permit a verdict, openly and solemnly declared in the Court, to be subverted by going behind it and inquiring into the secrets of the jury room.” This is also the Maryland rule (Bosley v. Chesapeake Insurance Company, 3 G. & J. 473, and Browne v. Browne, 22 Md. 104), and we are not aware of a single instance in this State in which it has not been followed. Such affidavits, if admitted, are entitled to very little consideration, and would not be sufficient in themselves to disturb the verdict. Einding no ei*ror in any of the rulings of the lower Court, the judgment will be affirmed.

Judgment affirmed, with costs above and below.