Martin v. Moore

Briscoe, J., delivered the opinion of the Court. The appellant on the 25th day of October, 1902, brought an action to recover damages for an alleged assault and battery against the appellee, and others, in the Circuit Court for ⁴⁷ Anne Arundel County. The suit was instituted against the Board of Managers of the Maryland House of Correction, J. Jesse Moore, its Superintendent, and George T, Mitchell, W. Randolph Cunningham and Thomas Gehr, employees of the institution. On the 23rd of October, 1903, a demurrer to the declaration was sustained and the narr. was amended by striking out the Board of Managers of the Maryland House of Correction as a party defendant.

Mitchell and Gehr, two of the defendants, were returned non sunt, and the case proceeded to trial against the appellees. The judgment being for the defendants, the plaintiff has appealed. Four exceptions were reserved by the plaintiff during the trial of the case. Three of these were to the admissibility of testimony and the fourth as to the ruling of the Court upon the prayer, granted at the conclusion of the plaintiff’s case, which instructed the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover against the defendants.

The principal question presented by the appellant in his brief, and urged in argument in this Court, is whether or not the Court committed an error in granting the prayer which withdrew the case from the jury. The facts of the case, as set out in the record, are as follows: The plaintiff, a minor, had been committed to the Maryland House of Correction by a Justice of the Peace of the State for a period of thirty days. On the 2nd day of September, 1902, he was brought before Mr. Moore, the superintendent, charged with disorderly conduct in his cell at night, and was directed to be punished for the offence, as prescribed by the rules of the institution. According to the plaintiff’s testimony, as stated in the record, “I was taken at seven o’clock in the morning, before the defendants and the two men named Mitchell and Gehr (I think), and was accused of yelling out in the cell during the preceding night.

Mr. Moore told Mitchell and Gehr to take me back an “punish me and beat me.” I protested that I was not guilty of mak ⁴⁸ ing the noise in the night, but Mr. Jesse Moore directed his subordinates Mitchell and Gehr to take me back and punish me and beat me. Mr. Moore then went to his breakfast in the next room. He further testified that he was taken in a room, stripped of his clothing and given five lashes with a cat-o’-nine tails, each lash made nine welts; that the punishment was administered in a cruel and brutal manner by a man named Gehr, and that he sustained severe and permament injuries from the punishment. There are other facts contained in the record but these appear to us all that are material to dispose of the questions presented in the case.

As to the defendant Cunningham, the record contains no testimony whatever tending to show that he was present or was in any way connected with the alleged assault, and we do not understand that it is seriously contended that there can be a recovery against him. The appellant, howevei, insists that the Court below committed an error in withdrawing the case from the jury, because according to the evidence, Moore, the Superintendent, not only directed the punishment of the plaintiff, but was present aiding and abetting the assault. The testimony, however, fails to support this claim. Conceding the truth of the whole testimony on the part of the plaintiff, we do not think it was legally sufficient to entitle the