Duke v. Feldman

Marbury, J., delivered the opinion of the Court. Albert Duke, appellant, has appealed from a judgment, entered on the granting of a motion for a directed verdict by Judge Lester L. Barrett of the Circuit Court for Baltimore County, in favor of Shirley Feldman, appellee, against whom civil assault had been alleged by appellant. On June 3, 1963, at about 5 :00 p.m., Albert Duke was physically assaulted by Joseph G. Feldman, the husband of appellee, in the rear yard of the Duke home in Baltimore County. The Duke house was located on a dead-end street in the Belle Farms development.

Duke had been a sales broker for houses in the Belle Farms development. He had no interest in the development other than as a real estate broker. Mr. Feldman had made a down payment on one of the houses sold by appellant, and he paid, in addition, about $1200 or $1300 for the purchase of extras for the house. The development company, which appellant represented as a broker, became insolvent.

The purchasers of ⁴⁵⁶ the houses under the Veterans Administration Act were able to get back their down payments, but the Feldmans were unable to recover the money paid for the extras. Duke lost some of the commissions owed him for the houses that he had sold. He had several conversations about the refunding of the down payments with the buyers, including Joseph Feldman. There were some meetings among the buyers.

Appellant testified that a few months prior to the assault, Mr. Feldman telephoned him to request a list of all the people who had bought houses. Because he had been harassed by others, on the advice of counsel, he refused to give out any more information than he already had given. Duke also testified that at the conclusion of the conversation, Mr. Feldman threatened him, telling him that he was going to break appellant’s head open. Appellee testified that in the telephone conversation which she had overheard, her husband had only asked for a list of former buyers.

On the day of the assault, a Sunday, Mr. Feldman and appellee drove to the Belle Farms development to see what the new developer had done to the houses. The Feldmans and their three children, who were sitting in the back of the automobile, were dressed in their Sunday clothes. They spent about five minutes viewing a model home in the development. After that they drove in the direction of the home that they had wanted to buy, Mr. Feldman at the wheel, and turned down Arrowhead Road, the dead-end street on which the Duke house was located.

During the drive appellee and her husband had not discussed the house that they wanted to buy nor had they talked about the money they had lost. Appellee testified that her husband told her that he wanted to see appellant. Appellee said, “Try to get our money back.” Her husband made no reply. There was some evidence that Mr. Feldman parked the car on the left side of the street between the Duke house and that of a next door neighbor.

Mr. Feldman got out of the car and went toward the Duke house. Appellee testified that she was busy with the children, who wanted to get out of the automobile, and that she did not notice if her husband had anything in his hand when he left the automobile or when he returned. Appellant’s next door neighbors, who had been sitting on their ⁴⁵⁷ back patio, testified that they saw Mr. Feldman approach appellant with a monkey wrench in his hand. They heard Mr. Feldman give a friendly greeting which was returned by appellant, then they saw him strike appellant with the wrench.

Duke was in his back yard teaching golf to his son. After the first blow was struck, appellant grabbed Mr. Feldman and they wrestled to the area between the Duke house and the neighbor’s. There Mr. Feldman struck another blow and proceeded toward his car with the neighbors and Duke, who had a golf club in his hand, in pursuit. As he approached the car Mr. Feldman told his wife to drive.

He got into the front passenger side, and his wife backed the car into a side street to turn around and drove off. The neighbors who witnessed the assault testified that they thought the motor of the Feldman vehicle was running, since they heard no starting of the engine. Appellee asked her husband what had happened. She testified he told her that he had struck appellant because she had raved so about how nice the model home was which they had visited.

When she asked him why he struck appellant, he replied, “I thought