Ensor v. Bolgiano

Bryan, J., delivered the following dissenting opinion : The declaration in this case contains four counts. The first and second aver that the defendant spoke certain false and defamatory words of and concerning the plaintiff, whereby he sustained damage. The third and fourth counts state that the plaintiff, an attorney at law, was employed by one Thomas E. Allen, to prosecute an action at law against the President; Managers and Company of the Baltimore and Yorktown Turnpike .Road, for the recovery of ten thousand dollars damages for certain injuries sustained by said Allen through the negligence of said company, and that Allen contracted with the plaintiff, that he, the plaintiff, should receive one-half the amount which might be recovered in the action; that the plaintiff instituted the action, and was faithfully and honestly engaged in the prosecution of it; and that the defendant wrongfully and maliciously intending to injure the plaintiff, and to deprive him of his fee in said action, by means of certain false and fraudulent statements, arguments and persuasions, made said Allen believe that plaintiff would not attend to his case, or, if he did attend to it, would so overcharge him that he would have but a small sum left, and thereby induced and procured said Allen to break his contract with the plaintiff, and settle the said suit for damages without ²⁰⁷ the knowledge or consent of plaintiff, for a small and grossly inadequate sum, of which the plaintiff was to receive and did receive no portion whatever. No one can doubt that a good cause of action is stated • in the first and second counts.

But it was strenuously maintained at the Bar that the averments in the third and fourth counts, if found to he true by the jury, would not entitle the plaintiff to a recovery. It is necessary to consider with some particularity the grounds on which the ■defendant is impleaded. It is stated that the plaintiff was in the pursuit of his regular occupation when the interference of the defendant took place. This occupation was •one in all respects lawful, and the plaintiff was entitled to the fullest protection while he was engaged in the peaceful and legitimate exercise of it.

Now the charge is that the defendant molested and hindered him in the transaction of his lawful business, that this molestation and hindrance arose from malicious motives, that it was carried into effect by false and fraudulent means, and that it caused ■a large pecuniary loss to the plaintiff. The plaintiff was prosecuting a lawsuit for a client; and the specific injury was that the defendant persuaded and induced this client to withdraw his suit from his lawyer’s hands. Now it must he borne in mind that the complaint rests upon the motives, and the means by which this result was effected. Undoubtedly a man may give friendly advice to another ■about his lawsuits, as well as about any other business, and if given in good faith and with integrity and honesty of purpose and-truthfulness of statement, he will not be liable to an action by any person whose interests may have been affected by his advice.

The present question, however, has very different aspects; it was a matter of interest to the plaintiff to prosecute this lawsuit; it was in the ordinary •course of his professional business; it was the direct exercise of the occupation by which he earned his livelihood. To withdraw a client from him, to persuade a client to ²⁰⁸ violate his contract with him and thus prevent him from earning his professional fees would certainly entail loss upon him. Suppose such a thing were done with all his •clients, it is easy to see that his business would be ruined. Now the question simply is, whether the law will permit a man to inflict this loss upon another hy false and fraudulent means.

The object is one which no man ought to desire; the means are such as all good men must detest. It is the pursuit of unworthy objects by most disgraceful means. In my judgment it is impossible to find any toleration for it in our enlightened jurisprudence. A vast multitude of decided cases show the circumstances under which actions may be sustained for disturbing rights which the law recognizes.

Let it be once ascertained that a party is entitled to aright; then any one who hinders or disturbs him in the exercise or enjoyment of it, is liable to an action, unless he can show some legal excuse or justification for his conduct. The principles laid down hy Lord Holt in his celebrated judgment in Ashby vs. White, et al., are said by Judge Story to be so strongly commended, not only by authority, but by the common sense and common justice of mankind, that they seem absolutely, in a juridical view, incontrovertible. According to the report in 2 Lord Raymond, 953, his Lordship said: “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed, it is a vain thing to imagine a right withr out a remedy; for want of right and want of remedy are reciprocal.” It is not deemed necessary to fortify the opinion of these eminent jurists; yet it may he useful to make a few citations from high and acknowledged authorities. Every injury to a right imports a damage, though it does, not cost the party one farthing, for wherever the plaintiff establishes some legal right or title in himself which has been invaded, weakened, or destroyed by the ²⁰⁹ unlawful or malicious act of the defendant, there is a wrong and damage in law resulting therefrom, in respect of which an action is maintainable, for pecuniary compensation, though no actual pecuniary loss can be proved.” “Every invasion of the plaintiff’s right hy the fraudulent act of the defendant entitles the plaintiff to some damages.” “Interference by force or fraud with the free exercise of another’s trade or occupation, or means of livelihood, is a tort — such as preventing people by the use of threats and intimidation from trading with the plaintiff’s vessel in a foreign port — or dealing at the plaintiff’s shop, or sending their children to the plaintiff’s school, or placing obstructions and impediments in the way of the exercise of the right of free access to and from a man’s place of business.” * * “Where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases.” “Where the plaintiff’s declaration of his cause of action set forth that he was a mason, and possessed a stone quarry, and quarried and dug stones therefrom, as well to sell as to build stone buildings, and that the defendant, intending to deprive him of the benefits of his quarry, disturbed his workmen, and all comers, threatening to maim and vex them with suits if they worked or bought stones there, whereupon all the buyers desisted from buying, and the workmen from working there, it was held that this was a great damage to the plaintiff and a good cause of action.” Addison on Torts, pp. 9 to 14.

In Lumley vs. Gye, 2 Ellis and Blackburn, 216, it was averred in the declaration that Johanna Wagner had contracted with the plaintiff to perform in his theatre for a certain time, with a condition that she should not sing elsewhere during the term without the plaintiff’s consent, and that the defendant maliciously intending to injure the plaintiff, whilst the said agreement was in force and during the term, enticed and procured Wagner to break her contract, and to refuse to ²¹⁰ perform. It was held by three Judges of the Queen’s Bench against Coleridge, J., dissenting, that the plaintiff had a good cause of action. In this case, Erle, J., said: “He who maliciously procures a damage to another by violation of his right, ought to be made to indemnify; and that, whether he procured an actionable wrong or a'breach of contract.” It is needless to multiply authorities "on this question ; but a few illustrations will be given, showing the way in which Courts of justice deal with malice and fraud. In Levy vs. Langridge in the Exchequer Chamber, 4 Meeson & Welsby, 331, Lord Denman used this language, “as there is fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured.” In Moore vs. Schultz, 31 Md., 418 ; Wanamaker vs. Bowes, 36 Md., 42 , and many other cases in this Court, it was held that if an injury is committed with malice, the jury may give exemplary damages ; and the same measure of damages prevails in cases of wrongs perpetrated by fraud.

Zimmerman vs. Hilser, 32 Md., 274 . It would be an exceedingly difficult matter to find any reputable authority which holds the contrary. It is not a question in the case whether the plaintiff would have recovered a judgment in the suit which he was prosecuting for Allen. The injury to him consists in the wrong-, ful interference with his means of livelihood.

On the prayer of the defendant the Court instructed the jury that there was no evidence to sustain the material averments of the declaration, and that the verdict must be for the defendant. At the trial the plaintiff offered in evidence an affidavit made by Allen, in which it is stated as follows: “That the said Bolgiano stated to him that from what he had heard, John T. Ensor, attorney for plaintiff in said suit, would not attend to it; that if he did attend ²¹¹ to it, he would so charge him for everything he did, that the plaintiff would not get but a small sum out of his claim for damages against said company; that he, Allen, told said Bolgiano, that his attorney, Ensor, had an interest in said suit, and Bolgiano said he did not want Ensor to get one cent; that from what said Bolgiano said to him the impression was made on his mind that his said attorney would not attend to his case, and that even if his said attorney should go on with the case, that he would so conduct it that he, the plaintiff, would be taken advantage of by his said attorney, and that the said attorney would get all or very nearly all the money, and he, the plaintiff, would not get more than a small sum, and that is the reason he accepted from said company five hundred dollars in settlement of his said case, and gave to said Bolgiano for said company a release for the settlement of said case, without the knowledge or consent of his said attorney who brought the suit, and who was interested in it.” The record shows that this affidavit was offered generally, and that no objection was made to its admissibility when it was offered, or at any other time. There is no principle known to the law of this State, which under these circumstances would •authorize the Court to withdraw it from the consideration of the jury. In Dent vs. Hancock, 5 Gill, 120 , hearsay evidence had been offered without objection, and it was held that it was not competent for the Court to instruct the jury ■that it was not admissible.

This Court said : “Whether the objections taken to the testimony were well founded or not, it is deemed unnecessary to inquire, because they were not made in due time. It is the duty of counsel, if aware of the objections 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 his objections within a reasonable time thereafter.” The rule thus established has always been followed in practice. It was stringently ²¹² applied in Washington Fire Insurance Company vs. Davison and Symington, 30 Md., 92 ; and in Barton Coal Company vs. Cox, 39 Md., 1 . But there was other evidence proper for the jury to consider.

Allen in his testimony stated that Bolgiano sent him word that he would like to see him at Dr. Rankin’s office. Being asked what Bolgiano said to him, he said: “Well, he said he wanted to see me about compromising the case; he asked me what I wanted, and I told him a thousand dollars, and he said he didn’t think he could get that for me, but he thought he could get five hundred dollars, and would have to try to get my doctor’s bill paid; so I told him, ‘all right.’ I staid there a little while and talked a little longer, and he said, ‘if you gain the suit, no doubt ' the company will take an appeal, and by the time your lawyers — he didn’t mention any name at all — one or two —he just said by the time my lawyers got through, I might not have but a very small sum coming to me no doubt and then he mentioned about Mr. Ensor’s friend, he said, ‘a particular friend of Mr. Ensor’s told him that I was a worthless onery kind of a drunken man;’ he said he had heard Mr. Ensor’s particular friend had told Mr. Ensor that, and I pitched; — I asked him who it was, and he would not say; so I pitched on Charles Hammond out there, the only gentleman I know who is a particular friend of Mr. Ensor’s; so then I come to the conclusion that I would settle the case, not having heard from Mr. Ensor.” (Page 8 of Record.) Allen stated in his testimony (Page 10 of Record,) as follows: “I told him, plaintiff, Mr. Bolgiano said a very particular friend of his told him I was an onery worthless kind of a man — drunken man.” And on page 11 of record, he states : This particular friend of Mr. Ensor’s telling him I was an onery worthless kind of a man, and I not having heard from Mr. Ensor, so I came to the conclusion there must be some truth in it, and I settled the case.” And on same page: “What I meant is ²¹³ this: the party whoever told Mr. Eusor this, must have told v him so to get him not to attend to the case, and then I came to the conclusion to settle it at once.” And on same page being asked this question: “Then what I understand you to mean hy saying there was some truth in it, is, that you came to the conclusion there must be some truth in the report that Mr. Ensor would not attend to your case ; Mr. Bolgiano did not tell you, Mr. Ensor would not attend to your case ?” He answers: “I made that up in my own mind from what Mr. Bolgiano told me in Dr. Rankin’s office; then I made up my mind to settle the case.” And on page fifteen, he states; “All I recollect is that Mr. Bolgiano was told that a particular friend of Mr. Ensor’s told him I was an onery worthless kind of a man, and I came to the conclusion, from them, to settle the case.” Allen at the time of the trial was in the employment of the Baltimore •and Yorktown Turnpike Road, and was evidently a very unwilling witness for the plaintiff. He gave a good deal of other testimony; much of it evasive, irrelevant and inconsecutive. My present purpose is not concerned with this aspect of it.

It is more important to ascertain what conclusions it was competent for the jury to draw from the evidence which I have quoted. The affidavit was contradicted in some points hy Allen’s testimony; and.the ■evidence above cited was varied and qualified by him in the course of his examination in some particulars. But I suppose it was for the jury to decide what portions of the testimony they would believe. If a part of the testimony of a witness is favorable to the party who called him, and ■another part is unfavorable, there is no rule of practice which authorizes the Court to compel the jury to disregard that which is favorable, and to accept the unfavorable.

The jury have the unqualified right to believe such portions of the evidence as they see fit to credit, and to reject the remainder of it. And the Court cannot control them in the exercise of their functions in this regard. It is a great ²¹⁴ mistake to suppose that a party is bound by the testimony of a witness whom he has put on the stand. Greenleaf states the accepted rule on this subject, (sections 442 and 443, 1stvol:) “When a party offers a witness in proof of his cause, he thereby, in general, represents him as worthy of belief.

He is presumed to know the character of the witnesses he adduces; and having thus presented them to the Court, the law will not permit the party after-wards to impeach their general reputation for truth, or to. impugn their credibility by general evidence, tending to. show them to be unworthy of belief. * * * * But it is. exceedingly clear that the party, calling a witness, is not precluded from proving the truth of any particular fact,, by any other competent testimony, in direct contradiction to what such witness may have testified.” ■ The evidence which has been cited above certainly tends to prove that Bolgiano induced Allen to believe that the plaintiff would not attend faithfully to his lawsuit, and that he would treat him with injustice ; and that in consequence of the belief thus produced on Allen’s mind, he withdrew the suit from the plaintiff,s hands. The imputation was a serious one to make against a professional man. It was well calculated, if true, to injure his business; and the immediate effect of it was to deprive him of the management of the suit in question. The law wisely holds a person responsible for defamatory words spoken of another, unless the speaker-can prove them to be true.

In other words, prima facie,. they are held to be false; and because they are false, they are malicious. In Folkard’s Starkie on Slander, section 9,. we find the law thus stated: “The law always presumes in favor of innocence, and therefore does not require á. plaintiff to prove the falsity of the alleged calumny ; on the contrary, it imposes the burden of proving the affirmative on the defendant; the truth of the supposed slander-is, in effect, a ground of justification, which must be substantiated by the defendant.” In the present case there- ²¹⁵ is no surmise or pretence that the imputations on the plaintiff were true. If the jury believed that they were made, they were required to deal with them as stamped by the law with falsehood and malice. It seems to me that the ruling of the Court below was erroneous.

There was another exception. The plaintiff proposed to prove by his own testimony, that no one had ever said to him that Allen was an onery worthless fellow, and also proposed to prove by Charles Hammond, that he had never made any such statement to the plaintiff. The Court refused to permit the evidence to he given. This evidence tended to show with perfect distinctness, that the information was untrue, which it was alleged that Bolgiano had given to Allen, as an inducement to take his suit out of the plaintiff’s hands.

It has been said that this evidence does not prove that Bolgiano had not heard that this statement had been made to the plaintiff. If a man circulates a false report he cannot escape from responsibility by alleging that he had heard it from another person. “As great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane, or of had character. The person who repeats it gives greater weight to the slander. A party is not the less entitled to damages in a Court of law for injurious matter published concerning him, because another person previously published it.

That shows, not that the plaintiff has been guilty of any misconduct which renders it unfit that he should recover damages in a Court of law, hut that he has been wronged by another person as well as by the defendant, and may, consequently, if the slander was not published by the first utterer on alawfuloccasion, have an action for damages against that person as well as the .defendant.” “The existence of a slanderous rumor does not justify the repetition of it, unless it can be shown that such repetition was made on a justifiable occasion, or that the rumor was true. ²¹⁶ It is no justification to show that the rumor did exist, and that the defendant merely repeated it as a rumor.” Folkmard’s Starkie on Slander, section 318, and cases there cited. Bolgiano being examined as a witness does not say that this information was true; or even that he believed it to be true. By this ruling, the plaintiff was prevented from proving that