Gambrill v. Schooley

Pearce, J., delivered the opinion of the Court. This is an action on the case for slander, brought by the appellee against the appellant in the Circuit Court for Washngton County. Upon the filing of the declaration in that Court, the defendant filed a plea to the jurisdiction alleging that at the time of the institution of said suit he was a resident of Baltimore City, and was not, at that time, a resident of Washington County, and did not then carry on any regular business, or habitually engage in any avocation or employment therein. After the filing of this plea, the case was removed, on the suggestion of the defendant, to Garrett County, and was again removed, on suggestion of the plaintiff, to Baltimore City.

After the record reached the Superior Court of Baltimore City, replication was filed to that plea, traversing its allegations, and issue was joined on this pleading. A jury was sworn to try this issue, and the trial resulted in a verdict for the plaintiff, upon which there was entered a judgment of respondeat ouster. At the trial of that issue two exceptions were taken by the defendant to the rulings of the Court, the first being to the ruling that the burden of proof was upon the defendant to sustain his plea to the jurisdiction; and the second to the grant ²⁷⁰ ing of'the plaintiff’s two prayers and the rejection of the defendant’s six prayers. After the entry of the judgment of respondeat ouster, the defendant filed the general issue plea, and the trial upon the merits proceeded before a second jury at a later term of the Court.

During the trial of this issue nineteen exceptions were taken by the defendant to rulings upon evidence and one to the ruling upon the prayers, of which the plaintiff offered two, both of: which were granted, and the defendant offered nineteen, of which twelve were granted and seven were rejected. Under the decision in Tyler v. Murray, 57 Md. 445 , the verdict and final judgment being against the defendant, the rulings of the Court in either trial before the jury are open for review. We shall consider first the exceptions in the trial in which the question of jurisdiction was decided. Upon the ruling in the. first exception, that the defendant must first offer testimony in support of his plea to the jurisdiction, no authority was produced on either side ; the plaintiff’s counsel contending that the plea clearly sets, up affirmative matter, and that the replication thereto is mere negation, while defendant’s counsel contends that as jurisdiction to hear the plaintiff’s case is as essential to recovery as the sufficiency of-his cause of action, the plaintiff ought to be required to prove the one as well as the other.

Upon first view it might seem that the position of the defendant is supported by sound reason but careful consideration leads us to a different conclusion. It must be borne in mind that where one has been duly served with process from a Court of general jurisdiction, if he appears generally he waives any personal privilege he may have to object to the jurisdiction of that Court and that if he intends to claim such privilege he must do so either by motion of non pros or by plea, in which he must allege such facts as, under the statute governing the case, are necessary to establish his privilege. In such case he comes within the rule laid down in 1 Jones on Evidence, sec. 178, that where a claim or defense rests upon a negative allegation, the one asserting ²⁷¹ such claim or defense is not relieved of the onus probandi by-reason of the form of the allegation, or the inconvenience of proving a negative ; or, as stated in Stephen’s Digest of the Law of Evidence, Art. 93, “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence or non-existence of any facts which he asserts, or denies, to exist, must prove that those facts do, or do not, exist.” Mr. Reynolds, in his excellent work on Evidence, sec. 73, says : “The best tests for ascertaining on whom the burden of proof lies, are, first, to consider who would succeed if no evidence were given on either side ; and secondly, to examine what would be the effect of striking out of the record the allegation to be proved, bearing in mind that the onus must lie on whichever party would fail if either of these steps were pursued.” The only thing in issue under the plea in question is the liability of the defendant to answer in that Court. Upon that point it may be said there is a quasi presumption of the validity of the process of Courts of general jurisdiction.

If in this case no evidence had been given upon tiiat issue on either side, the maxim Omnia prestmiuntur rite esse acta would have applied to the process by which the defendant was brought into Court; or if the allegations of the plea necessary to be proved under Art. 75, sec. 132 of the Code to show why defendant was not subject to the jurisdiction of the C^urt were stricken out of the record, the plea would be a mere nullity and that issue would be eliminated from the case. The plaintiff was not required to allege jurisdiction, but defendant was required to allege want of jurisdiction, and the burden of proof, except in rare instances, goes with the duty of averment. For these reasons we think this ruling of the Court was correct. The reference which we have already made to the case of Tyler v. Murray, supra, is sufficient to show that no independent appeal was necessary from the judgment of respondeat ouster, and that all errors in rulings in either trial before the jury are open upon the appeal from the final judgment.

After ²⁷² this ruling upon the burden of proof, the defendant; himself testified that he had resided and voted continuously in Baltimore City since August, 1882, being engaged in business there as a grain dealer since 1884. That about 1883 he bought a farm in Washington County, which he stocked and carried on through a foreman who lived on the farm. That he sold the farm November 15th, 1898, three days before this suit was instituted. That he owned the Roxbury distillery in Washington County, and carried on that business there until January 27th, 1898, when he entered into the agreement with Steinhardt Bros. & Co., offered in evidence and transcribed in full as follows : “Articles of agreement made and entered into this twenty-seventh day of January, in the year one thousand eight hundred and ninety-eight, by and between George T. Gambrill, of the city of Baltimore, in the State of Maryland, party of the first part, and Lewis Steinhardt, Morris Steinhardt, Henry Steinhardt, David J. Steinhardt, Edward Strasser, William W. Strasser and Joseph A. Strauser, all of the city of New York, and composing the firm or partnership of Steinhardt Brothers & Co., of the City, County and State of New York, parties of the second part; “Whereas the party of the first part is a distiller of whiskey, owning and controlling a certain distillery known as the Roxbury Distillery, together with the buildings, lands and appurtenances situate in the township of Roxbury, Washington County, Maryland, together with a stock of certain rye whiskey known on the market as Roxbury rye whiskey, and the trade-mark and good will of said business; and has also on hand a certain quantity of the said Roxbury rye whiskey; and “Whereas the parties of the second part hereby agree to and with the party of the first part, that for and in consideration of the premises, and of the performance of the mutual covenants and agreements hereinafter mentioned, they, the said parties of the second part, shall be the exclusive handlers in the first instance of said Roxbury rye whiskey, and under certain conditions shall at the option of them, the parties of ²⁷³ the second part, acquire the said lands, distillery, buildings, and appurtenances, together with the brands, trade-mark and good will of said business of distilling the rye whiskey, now owned and controlled by the party of the first part as aforesaid ; “Now, therefore, for and in consideration of the premises and of .the mutual covenants and agreements hereinafter contained to be done, kept and performed by the respective parties hereto, and for and in further consideration of the sum of one dollar, lawful money of the United States of America by each of said parties hereto to the other in hand paid, the receipt whereof is hereby acknowledged, the said several parties hereto have agreed, and hereby do agree to and with each other as follows: “First.

The parties of the second part hereby agree to purchase from the party of the first part, and the latter agrees' to sell and deliver to the former, during a period of five years from date hereof, at the rate of six hundred (600) barrels of said whiskey per annum, and making a total of three thousand (3,000) barrels of the said Roxbury rye whiskey, upon the terms and conditions hereinafter mentioned. “Second.. The party of the first part hereby agrees and binds; himself, that he will at the option of the parties of the second part, sell and deliver to them, at any time within five years; from the date of this agreement, the entire stock of Roxbury rye whiskey, which is described by serial numbers, statement of age, price and other particulars in the schedule thereof hereto annexed, and which schedule signed by the parties hereto forms part and parcel of this agreement; and the parties of the second part shall have the right to take such part or parts of said whiskies set forth in said schedule hereto annexed, and at such times within the said period of five years as they, the parties of the second part, shall determine and require and the party of the first part, for himself and his legal representatives, hereby binds himself not to sell or deliver any of the said Roxbury rye whiskey described and mentioned in the said annexed schedule to any person, firm or corporation other ²⁷⁴ than the parties of the second part during said period of five years as aforesaid, without the written consent of the parties of the second part thereto first obtained ; it being understood, that no oral consent of the parties of the second part shall be valid or binding as to a waiver of the said option herein and hereby granted to the parties of the second part.” He also testified that since the date of that agreement he had not sold an ounce of whiskey to any one but Steinhardt Bros. & Co., and that the agreement to sell to them included all he was to make for five years ; that the distillery was closed down from August 8th, 1898, to January 12th, 1899, at the ■instance of Steinhardt Bros. & Co., and that on November 5thf 1898, he was not engaged in distilling or in any other business in Washington County; that his agreement with Steinhardt Bros. & Co. required him to make whatever whiskey they needed, and that this was his whole whiskey business there. He was asked, without objection, what was his intention as to resumption, and he answered, also without objection, “my intent was to leave that to them ; if they said start' the distillery, which they had a right to do, I would have done it, and that is where I stand today.” He also testified that about November 22nd, 1898, after the sale of the farm, he leased the farm orchard from the purchaser, for a nephew, though the lease was made in his own name. " Mr. Miller, a revenue officer in charge of that district, also testified for defendant that the distillery was closed during the period already stated, but that he did not know why it was so closed.

The testimony offered by the plaintiff on the plea in abatement was wholly unimportant. At the close of the whole testimony on this branch of the case, the Court instructed the jury first, that by the uncontradicted testimony of the defendant, it appeared that at the time of the institution of this suit, the defendant was a person who carried on a regular business in Washington County, and that under the issues joined their verdict must be for the plaintiff; and second, in similar language, that defendant was a person habitually engaged in an avocation or employment in Wash ²⁷⁵ ington County, and that under the issues joined their verdict must be for the plaintiff It is difficult to perceive how the Court could, as matter of lazv, declare that from the uncontradicted testimony of defendant he was carrying on a regular business, or was habitually engaged in an avocation or employment in Washington County, unless in determining the construction of the agreement offered in evidence, it found that the terms of this agreement necessarily imposed upon the defendant the duty of conducting a regular business as a distiller for five years from its date, and unless the Court also disregarded all defendant’s testimony, admitted without objection, to the effect that he was not so engaged and as to his intention not to resume upon the principle that if the legal effect of the agreement was to make him a regular distiller, his testimony that he was not so engaged, and as to his future intention, could have no effect as against this agreement. We must presume that this was the view of the Court, but we are not able to concur in this view. The only obligation actually imposed upon the defendant was to sell and deliver to Steinhardt Bros. & Co. 600 barrels of whiskey per year, and there is nothing to show that he could not comply with this obligation from time to time, by sales from the stock on hand, unless Steinhardt Bros, in the meantime exercised their option to purchase the entire stock in bulk.

In that event his obligation would have been to resume distilling in order to comply with his contract. But that was a future contingency, not a present existing situation, and during the suspension of business thus brought about he was in the same situation, for the purposes of this exception, as if he had sold or leased his distillery. Steinhardt Bros. & Co. had the exclusive right to handle his whiskey for five years, and it is difficult to conceive why he should continue to manufacture whiskey, unless necessary to fulfil his contract with them, since he could not sell a barrel to any one but them, and could only require them to take 600 barrels per year. We are therefore of opinion that the Court was not warranted in finding as matter of law that defendant was carrying on a regular business or was ²⁷⁶ habitually engaged in an avocation in Washington County, and to direct a verdict for plaintiff on those issues.

The plaintiffs first and second prayers were therefore improperly granted. There was not a particle of evidence to show that the defendant was a resident of Washington County, and plaintiff asked no instruction as to this. There being no such evidence, defendant’s second prayer which was confined to residence should have been granted. The testimony tending to show that he carried on a regular business or was habitually engaged in an avocation in Washington county was certainly meagre, but we are not prepared to say it is so inconclusive as to preclude its submission to the jury.

Defendants first prayer would háve been correct if it had not also submitted the question of residence, but as it embraced that, it was properly refused. His third prayer which was confined to the business of farming and fruit raising should have been granted as there was not h particle of evidence legally sufficient to sustain that finding. His fourth prayer could not have been properly granted, because as we have said, there was no evidence legally sufficient to show residence in Washington County and it was therefore immaterial what constituted residence. His fifth prayer asserts that in determining whether he was then engaged in the avocation of distilling, the jury should consider his testimony in reference to his intention to resume distilling.

In Fenwick's case, 63 Md. 239 , it was held that one on trial for an assault with an intent to murder may testify for what purpose he procured the instrument with which the assault was committed, and the Court said: “It is certain that no other person could swear positively,in regard to the particular intent entertained bythe accused on the occasion mentioned, and it is equally certain that the accused could, if truthfully inclined,swear positively to that intent; and as he knew the fact, and the fact was material and pertinent to the issue, his testimony ought not tó be excluded.” So, in Roddy v. Finnegan, 43 Md. 501 , where the question was as to the intent to violate a city ordinance,the Court said: “The inquiry into the intention of Finnegan relevant, to a proper comprehension of the nature and import of this order (to drive on ²⁷⁷ the pavement.) If he is reliable he can give better testimony than inferential.” This is clear and cogent reasoning and is directly applicable to the question before us, and we think this prayer should have been granted. Defendant’s sixth prayer is defective in failing to state what the contingency is which is referred to therein, and without which it is not intelligible. It might be inferred, if inference were permissible to supply the omission, that the contingency meant was a demand by Steinhardt Bros. & Co. to resume distilling in order to enable defendant to comply with his obligation. Upon that hypothesis the proposition thus asserted would be a sound one, but as offered, this prayer was properly rejected. ■ It results from what we have said that the judgment of respondeat ouster must be reversed. . .

The third, fourth and fifth and sixth exceptions may be considered together. After offering in evidence a written agreement by which defendant agreed to let plaintiff have a dwelling and warehouse at Roxbury rent free for two years, from August ist, 1892, and to pay him $30 per month, plaintiff was allowed to testify, over defendant’s objection, that in April, 1899, during plaintiff’s absence from the house, defendant put plaintiff’s effects out of the house, and nailed it up. This constitutes the third exception. Plaintiff was further in like manner permitted to testify that he had sued defendant in March, 1898, for salary from July, 1895, up to 1898, and had obtained a verdict on November 19th, 1898, for $443% his claim being for $1,800, though he admitted that previous to bringing this suit he had made no demand or claim for any salary after the two years provided in the agreement.

This constitutes the fourth exception. He testified in like manner that in April, 1898, defendant issued two distraints against him and that he replevied the property dis-trained on. This constitutes the fifth exception. He still further testified in like manner that in 1898 and 1899 defendant sued him as a trespasser and took proceedings to evict him, and this constitutes the sixth exception.

The plaintiff ²⁷⁸ claims that all this evidence was admissible to prove malice in fact and asserts that anything the defendant has ever said or done with reference to him may be urged as evidence of malice, while the defendant contends it relates to collateral and wholly irrelevant facts. The true rule to be applied to the determination of this question is well and concisely stated in Garrett v. Dickerson, 19 Md, 450, as follows: “Evidence of any other words or acts having reference to the subject-matter of the actionable words, may be submitted to the jury for the same purpose, whether such words or acts were spoken and done before or after suit brought. ” Here all the acts permitted to be shown grew, out.of the contractual' relations of the parties and there is nothing whatever to show that any one of them bore the remotest relation to the subject-matter of the words charged. In the fourth exception the act offered to show malice was the act of the plaintiff in suing defendant for salary, which would seem to be an inversion of fhe rule, even if otherwise applicable in this case. We think these rulings were all erroneous, The seventh exception was taken to the admission in evidence of a letter from defendant to - plaintiff, dated February 8th, 1899, in which he speaks of acts of fraud and perjury on the part of the plaintiff and by innuendo characterizes him as a thief.

This letter thus may be regarded as having reference to the charge of stealing coal, and therefore as coming in that respect within the rule above recognized. Many Courts hold, and it was held in Maryland in Wagner v. Holbruner, 7 Gill, 296 , and in Negley v. Farrow, 60 Md. 181 , that for the purpose of proving malice and to aggravate the damages evidence may be given of other slanderous words of similar import spoken subsequent to those laid in the declaration, and in some jurisdictions this is allowed though such words may be made the basis of recovery in a separate action. 18 Amer, and Eng. Ency. of Law, 1010 (2 ed.) Mr. Greenleaf, vol. 2, sec. 418, Lewis ed., while stating that evidence may be given of any language of defendant, whether oral or written, indicative of the temper and disposition with which he made the ²⁷⁹ publication, and this whether used before or after the publication complained of, says, “but if such collateral evidence consists of matter actionable in itself, the jury must be .cautioned not to increase the damages on that account.” The letter now in question was published by dictation to a stenographer and is the basis of a pending action in which damages were actually recovered, but on appeal to this Court, the judgment was reversed ( 93 Md. 48 ), and the cause remanded for a new trial. The point now under consideration has not been decided in this State, but we cannot regard the cautionary rule laid down by Mr. Greenleaf, as a safe rule in practice since there is no means of enforcing the caution other than by the exercise of the power always possessed by Courts over verdicts by granting a new trial for excessive damages.

Moreover the rule does not appear to us to rest upon a satisfactory reason since there is undeniable inconsistency in first admitting such evidence not only to prove malice in fact, but to inflame the implied malice, and in then instructing the jury the damages must not be increased on that account. The sounder rule appears to us to be to limit the admissibility to other words or writings not in themselves actionable, as held in De Fries v. Davis, 7 C. & P. 112, and in Bodwell v. Swan, 3 Pick. 376 , or to those for which damages have already been recovered as held in Symmons v. Blake, 1 M. & Rob. 477 , and by Lord Abinger in Pearce v. Ornsby, idem, 455. But without so deciding we are unwilling to extend the rule to include ac: tionable words constituting the basis of a pending action. For this reason we think it was error to admit the letter in question.

The 8th, 16th and 18th exceptions will be considered together. Plaintiff, while under cross-examination and not in response to any question upon the subject, stated that between 1864 and 1868 he had gone into bankruptcy and had received a discharge. Defendant then sought to inquire into the details of the bankrupt proceedings, but plaintiff objected and the Court sustained the objection on the ground that the transaction was too remote in time. This constitutes the eighth exception, and without pausing for remark we think the ruling and its reason was correct. ²⁸⁰ ' Upon cross-examination, defendant was asked whether certain persons named had not recovered judgments against him between 1872 and 1875, and he objected to the question, but the Court overruled the objection, and he answered that he did not know, and added that about that time he was drawn into