H. P. Rieger & Co. v. Knight

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment rendered in favor of the appellee for costs, after a demurrer had been sustained to the declaration of the appellant, who declined to amend. There are three counts in the declaration, and the demurrer was to each count. It is alleged in the first, that the plaintiff and defendant were engaged in the City of Baltimore in the manufacture, sale and erection of tombs, monuments and mausoleums, and they entered into competition for the obtention of a contract to erect a mausoleum for one Laura Praeger; that on or about the 21st óf February, 1910, the said Laura Praeger awarded to the plaintiff a contract for the construction of a granite mausoleum, to be erected in her family lot in Druid Hill Cemetery; that the plaintiff began the erection of said mausoleum and the “plans and specifications called and provided for a method of construction and ventilation and drainage of a mausoleum and the crypts or catacombs therein in a manner which was usual and customary and well known in the trade for a long period of years”; that having failed to obtain the contract, the defendant instituted suit on the 21st day of February, 1911, by exhibiting his bill of complaint in the United States District ¹⁹¹ Court against the plaintiff (and others named, who wrere sued individually) charging it with the infringement of certain letters patent, and prayed for an injunction and damages, to which the plaintiff filed an answer denying any infringement; proofs were taken on both sides and the case came on regularly to be heard by Judge Hose in said District Court, and after argument the said District Court passed a final decree dismissing the bill of complaint; that the defendant having been allowed an appeal prosecuted it in the United States Circuit Court of Appeals for the Fourth Circuit, and after argument that Court, on the 3rd of February, 1914, affirmed the decree of the District Court, dismissing the bill of complaint.

That count then concludes as follows: “and the said defendant herein, by reason of his alleged claim to said pretended patent rights above mentioned, contrived to procure the said process of the said United States District Court against this plaintiff (who was one of the defendants in said cause) and its decretal order prohibiting the plaintiff from constructing said mausoleum and carrying on its business as above mentioned, without sufficient and probable ■cause) and for the purpose of oppressing it and to break up its business, and by so doing subjected the plaintiff to great loss and expense, both in time and money, costs and counsel fees, and greatly damaged and injured this plaintiff in its business, financial standing and otherwise.” In the second count it is alleged that the defendant falsely pretended to have a patent right to the exclusive use of the method of construction and ventilation and drainage of mausoleums and the crypts or catacombs therein, although it was well known to the defendant that the method and manner of construction and ventilation and drainage as described and disclosed in his alleged patent were the usual and common ones being used, etc.; that by reason of his pretended claim to said alleged patent rights and the false affidavits filed in said cause, in the United States District Court, together with his bill of complaint for an injunction, “a pro ¹⁹² visional or preliminary injunction was on the 16th day of May, 1911, issued by said United States District Court, prohibiting and restraining the plaintiff and its co-defendants from completing and delivering the Praeger mausoleum and any other mausoleums the plaintiff was then engaged in erecting” ; that upon final hearing in said Court, upon the pleadings and testimony taken, the said -preliminary injunction was dissolved and the bill dismissed, on the ground that the said complainant had no valid patent rights to the method of construction and ventilation and drainage o'f mausoleums, etc., which order dissolving the said injunction and dismissing the bill was affirmed by. the United States Circuit Court of Appeals upon appeal prosecuted by him, “and by reason of the defendants’ action in procuring said injunction and restraining order of the District Court aforesaid the plaintiff was greatly damaged and injured by the defendant in its business, fináncial credit and otherwise.” The third count is as follows: “And for that the said defendant falsely and maliciously.-procured said injunction to be issued against said plaintiff by falsely alleging in his bill of complaint against it filed in the United States District Court for the District of Maryland, that the plaintiff was infringing his patent rights as above mentioned, while he well knew that the plaintiff was not infringing the alleged patent rights of the said defendant, but that the plaintiff was-using, as it had a perfect right to do, the common and usual method of construction and ventilation and drainage known to the trade for a long period of years; and by reason of the false and malicious charges against this plaintiff in said bill of complaint, and the false affidavits filed in said cause he ewas enabled to procure said injunction to be issued against this plaintiff for the purpose and with the intent of oppressing it and breaking up its business, and to prevent it from competing with him, the said defendant, in the monumental stone business, and that by so doing he subjected this plaintiff to great expense in money, and to great loss of both time ¹⁹³ and business, but that after years of loss and litigation the Court of last resort, i. e., the United States Circuit Court of Appeals for the Fourth Circuit, decided that this defendant had no valid patent rights and passed an order affirming the decree of the United States District Court dissolving the provisional or preliminary injunction and dismissing the hill of complaint.” It may be well to first recall some of the decisions of this Court in reference to suits for malicious prosecution of civil actions. McNamee v. Minke, 49 Md. 122 , was an action on the case for a malicious prosecution of an ejectment suit, which this Court held could not be maintained. In the course of the opinion Judge Alvey said: “It is true, a party may he held liable for a false and malicious prosecution of either a criminal or civil proceeding; but when it. has been attempted to hold a party liable for the prosecution of a civil proceeding, it has generally been in cases where there has been an alleged malicious arrest of the person, as in Turner v. Walker, 3 G. & J. 377 , or a groundless and malicious seizure of property, or the false and malicious placing the plaintiff in bankruptcy, or the like.” Then after quoting from Lokd Camdey, C. J., in Goslin v. Wilcox, 2 Wils. 302, and from 1 Bac. Abr., tit., Action on the Case, (H) 141, be continued: “But if the plaintiff declares that be has been falsely and maliciously arrested, or that, by reason of a false claim maliciously asserted by the defendant, be was required to give bail, and upon failure be was detained in custody, or his property was attached, there the action lies, because of the special damage sustained bv the plaintiff'.

It- is not enough, however, for the plaintiff to declare generally that the defendant brought an action against him ex maliiia el sine causa, per quod he put him to great charge, etc.; but he must, allege and show the grievance specially * * *. Otherwise, parties would be constantly involved in litigation, trying over cases that may have failed, upon the mere allegation of false and malicious prosecution.” ¹⁹⁴ In Supreme Lodge v. Unverzagt, 76 Md. 104 , the narr. alleged that the defendants maliciously and without probable cause instituted a proceeding for the dissolution of the plaintiff (a corporation), and in the bill made many false, malicious and slanderous allegations. Judge Eowler, in delivering the opinion of this Court, referred to the fact that at common law an action on the case was given for all civil cases brought falsely, maliciously, and without probable cause, and that the right to such action was not dependent upon an interference with either the person or property of the plainitff, but that after the passage of the British statute giving costs to the defendant by way of damages against the plaintiff pro falso clamore, “It was held that the malicious prosecution of a civil suit without probable cause was not good ground for an action on the case, unless there was an arrest of the person.or a seizure of property, or other special injury, which would not necessarily result in all suits prosecuted to recover for like causes of action.” He concluded by saying: “It may be said, that in general an action like this does not lie unless there is a concurrence of: first, falsehood in the demand; second, want of probable cause; third, malice in the defendant; and fourth, damage by arrest or imprisonment, seizure of property, bankruptcy proceedings, or the like.” The case of Clements v. Odorless Excavating Apparatus Co., 67 Md. 461 , is more analagous to the one under consideration, as that was an action to recover damages for having instituted a proceeding in the United States Circuit Court, maliciously and without probable cause, to restrain defendants from using an apparatus or machine; on the ground that it was an infringement, of letters patent issued to the company. Judge Robinson, in speaking for the Court, said: “Whatever may be said of the earlier decisions, it is quite well settled that an action will lie in some cases for the malicious prosecution of a civil suit without probable or reasonable cause, although there is some conflict as to the cases embraced within the rule.

Such suits are not, however, en ¹⁹⁵ couraged, because tlie law recognizes the right of everyone to sue for that which he honestly believes to be bis own, and the payment of costs incident to the failure to maintain the suit is ordinarily considered a sufficient penalty.” Then after quoting from McNamee v. Minke as to when parties have been held liable for the prosecution of civil proceedings, the Court left undecided the question whether filing a bill m equity to restrain the use of a machine, on the ground that it was an infringement of letters patent, if done maliciously and without probable cause, would give a right of action. The case was decided on the ground that there was probable cause. The Court said that as it appeared that the injunction proceeding was heard by the Court, on proof taken by both sides and argument by counsel of the respective parties, the Federal Court was of opinion that the apparatus used by Clements was an infringement of the patent rights oí che company-— that “It was the deliberate judgment of a Court of competent jurisdiction, that there was not only a probable cause for filing the hill for injunction, hut that the appellee was entitled to the relief prayed. A judgment thus, rendered ought to be considered conclusive as to the question of probable causey although it was reversed on appeal by the Supreme Court, otherwise in every case of reversal an action would lie for the institution of the original suit.” Lt is apparent that the' ease last cited is not conclusive of the one under consideration. .It left the main question open-—■ whether an injunction issued on a bill filed maliciously and without probable cause to restrain the use of an apparatus or machine on the ground that it was an infringement of letters patent issued to plaintiff, furnishes ground for an action for malicious prosecution.

Our cases recognize the right to such action for a groundless and malicious seizure of property, and if a party is prevented by an injunction, issued maliciously and without probable cause1, from using property which he would have the right to use but for such injunction, and the party enjoined thereby sustains special injury, it is difficult to see why he should not have the right of action in ¹⁹⁶ the one ease as well as in the other. In Cooley on Torts (3rd Ed.) 348, n. 27, it is said that “a suit for malicious prosecution will lie( where the plaintiff’s property or business has been interfered with by the appointment of a receiver, the granting