Nance v. Gall

Grason, J., delivered the opinion of the Court. This case was instituted in the Court of Common Pleas of Baltimore City by Glenn Gall against Jack B. Nance and Maryland and Pennsylvania Railroad Company, a corporation. The narr. charged: that defendants instituted a criminal prosecution against him; that the same was finally dismissed and that the prosecution was false and malicious and instituted by the defendants without probable cause. The defendants filed pleas, issue was joined thereon and the case went to trial before a jury and resulted in a verdict against the defendants in favor of the plaintiff for $8500.

A combination motion N.O.V. and for a new trial, filed by the defendants, was overruled and a judgment entered on the verdict, from which defendants appeal. The evidence shows that Nance was superintendent, and McClellan the chief engineer of the railroad com ⁶⁶⁰ pany. The office of the railroad was at Oak Street and North Avenue, in the City of Baltimore. These officials of the railroad occupied the same office.

Gall is a sawmill and logging operator and conducts his business in an office at Belair Eoad and Gunpowder Falls. The building is about fifty feet from the road, and along the road are large signs, four by twelve feet, with his name across the same in letters sixteen inches high. He had been engaged in this business for fifteen years. He purchased certain trees standing on property owned by Mr. Hicks.

This property abuts on the right of way of the railroad, in the vicinity of its station at Laurelbrook, and extends northerly to a county road that runs obliquely in a northeasterly direction to Falls-ton. These trees had been marked or blazed by the State Forester. Along the right of way the railroad company had telephone and telegraph wires strung on poles- The railroad used this telephone system to communicate with the various stations along its road. Gall stated he went over the land and “saw all the trees when I bought the timber.” Some of the trees stood on a high elevation above the right of way of the railroad and if cut without being roped there was danger they might fall on the railroad tracks.

He knew this “from personal observation when I bought the trees,” and further stated: “* * * when I buy timber I look for the dangerous trees and take particular notice of them, and I had a pretty good idea where they are on the site.” On June 12th or 13th, 1945, Gall called the office of the railroad and talked with McClellan about these trees. “I told him five or six trees were dangerous to cut along this right of way of the railroad; some were hanging over the railroad,” and “I told him to see my man in the woods and he would show him which trees.” McClellan told Gall that he would look at the trees and communicate with him, and thereafter he called Gall and stated that the railroad would rope the trees at his expense, but would only do it at his expense. Gall would ⁶⁶¹ not pay the railroad for roping the trees and told McClellan to forget the matter. Gall says that he saw all of the trees he purchased but that he could not recall particularly any of the trees, except the six trees he described to McClellan and had seen before he talked to him. William Lehman had twenty-five years’ experience in cutting timber.

He was employed by Gall to cut timber for him, and he hired his own men to help him. The timber was to be cut, split into logs, and hauled to Gall’s place of business by trucks. On June 18, 1945, he was cutting timber at Laurelbrook, on this tract of land for Gall. He had cut one tree, which was logged, and then proceeded to cut a poplar tree, which fell on a telegraph pole, knocking it down, disrupting communication by telephone and telegraph.

This tree stood about sixty feet north of the railroad right of way. It appeared to be perfectly sound. Lehman notched the tree on the side away from the railroad. He then sawed the tree on the side next to the railroad and drove wedges in the side which was sawed, and by this process the tree should have fallen up the hill and away from the railroad tracks.

The tree was rotten on the inside and instead of falling the way Lehman intended it to fall, namely, up the hill and away from the railroad right of way, it broke off and fell on the telephone and telegraph pole, knocking it down, and the wires thereon, putting out of use the telephone and telegraph system. From the testimony, a clear inference can be drawn that it was the rotten condition of the tree that caused it to fall the way it did, and not the want of ordinary skill exercised by Lehman in cutting it. It was admitted that Sidney D. Peverley, if present, would testify he has been engaged, all his life, in the timber business, which involved sawing, cutting and felling trees, and for a number of years has been a member of the State Forestry Board; he was familiar with the proper way of cutting timber and how to fell trees, and had practical experience in this kind of work since ⁶⁶² boyhood. He saw the stump of this poplar tree. “The stump of this tree showed that it had been cut in a way that was intended to throw it in a northwesterly direction, away from the railroad, the notch having been made on the northwest side and it having been sawed and wedged from the southeasterly direction.” Peverley further said: “I was shown a number of trees, I think at least six in number, which had been marked by the State Forester to be cut but were leaning toward the railroad and . would have to be roped to prevent their falling on the track.

None of these marked trees had been cut.” He stated that the method of cutting the poplar tree was executed in the usual manner and with reasonable skill. Mr. Gall, Mr. Archer, Mr. Brown, a photographer, and Mr. Deaton, a surveyor, accompanied Peverley when he inspected the stump of the poplar tree and the other trees Gall had purchased. After Nance discovered that the wires were down in the vicinity of Laurelbrook, he and McClellan drove to Bel Air and consulted Mr. H. Breckenridge Heaps, a lawyer with offices in that town- These gentlemen went to Bel Air via the Belair Road, and passed the office of Gall. They were in consultation with Mr. Heaps, at his office, for a period of from three to four hours.

Mr. E. Paul McNabb, the State’s Attorney for Harford County, was called to Mr. Heaps’ office by him and introduced to Nance and McClellan. These three gentlemen were in this law office until Mr. McNabb left. Mr. McNabb was called as witness by the plaintiff. He testified as follows: That Heaps asked him to read Section 535 of Article 27 of the code.

After a discussion of the matter by all parties present, Heaps asked McNabb his opinion regarding the right to take out a warrant under the section referred to. McNabb says he was told a convérsation was held between McClellan and Gall, in which a disagreement arose as to how certain trees should be cut and thrown so as not to fall on the railroad tracks, and that notwithstanding that conversation some trees had been cut by Gall’s employees and ⁶⁶³ they were in the act of cutting those trees along the railroad tracks at the time. He says he was told that no trees had been seen on the tracks, but that fresh poplar leaves, as well as some twigs from a tree, were found on the tracks, which indicated that a tree had fallen thereon; that the telephone wires had been broken and communication disrupted. He told them his opinion was that if they cared to take out a warrant they were within their rights, but he did not advise the taking out of the warrant.

While he was there, there was a discussion by the three other gentlemen concerning the institution of a proceeding to enjoin further cutting of the trees. He wasn’t certain why they wanted an injunction but, according to his testimony, the inference seems to be it was abandoned because the court wasn’t sitting in Bel Air on that day. Mr. McNabb further stated he understood from them “that the cutting of trees was still in progress down there on that particular afternoon; and from the conversation, it was my opinion that, or I took from Mr. Nance’s conversation, rather, that there had been some apprehension of the trains being stopped by the falling of these trees.” “Q. I mean, was that an apprehension of their being stopped following their talk with you, is that it? A. Yes, sir. “Q. In the future?

A. Yes, sir. * * * I felt at the time that the breaking of the wires was part of the railroad’s system as contemplated by the Act, and I expressed myself in that way.” He does not recall being told that the wires had been repaired and the telephone was in service again. “I think there was some statement made that one train had—that a train had gone through. I don’t recall whether it was supposed to have gone through before those trees were cut or after, I am not sure about that.” He had “no information as to whether it was one or more than one tree that had been cut. * * * My recollection is that more than one tree was discussed. I don’t have any independent recollection of reference being made to a state or county road. * * * there was some reference made to other trees standing close along ⁶⁶⁴ that track. * * * there were a number of trees along there that were contemplated cutting.” They told him of a conversation between McClellan and Gall, in which reference was made to several trees, “five or six as I recall it, or more, and that all of these trees had not been cut, they were in the act of cutting them at that time, as I understood, only a number of them up to that time had been cut, and that’s what I understood them to mean, whether they should get out an injunction to stop the cutting of the rest of them or not; but that conversation (about the injunction) was not with me. * * * I did understand from them that, a rather serious condition existed down there with reference to the operation of the railroad tracks and that they did want to take care of the railroad tracks and the safe conduct of the trains through there, that certain acts had already been done which they were considering as being within the statute, and other acts were in progress at that time. Q. Were in progress?

A- That is, I mean cutting of additional trees.” Magistrate Spencer, who testified for the plaintiff, was called to Heaps’ office after Mr. McNabb left, and met Mr. Nance and Mr. McClellan there. He was told of the happening at Laurelbrook that morning and of the conversation between McClellan and Gall, and that there wasn’t much satisfaction gotten out of the conversation so far as the railroad was concerned. He was led to believe “that it was a proposition whereby something should be done about it. * * * there had been certain trees cut there which had gotten on the right-of-way; there were also other trees which were going to be cut, probably were cutting them. * * * it was a continuous proposition, that they were going ahead and cutting these trees.” He stated that he got this information from Heaps, McClellan and Nance, and that there was some talk of an injunction, but it was too late to get an injunction that afternoon because the judge wasn’t there. It was between three and four o’clock in the afternoon at that time.

He further testified': “In my ⁶⁶⁵ own mind, it was more or less a continuous proposition. If there hadn’t been any damage done that afternoon, the next morning, if they had started to cut the trees, by the time the court opened, to have possibly prepared and gotten an injunction would have taken several hours, and I was thinking about the safety of the general public traveling on the railroad. * * * The fact that there had already been some damage to the railroad company, and the further fact that I didn’t know what was going to happen, is the reason that the warrant was issued.” He went to his office, prepared a warrant, and returned to Heaps’ office where the warrant was discussed with Heaps in the presence of Nance and McClellan. The warrant was then given to the sheriff, who went to the office of Gall and arrested him, took him to Bel Air, and he was held in custody for some time before he was released for a hearing. This warrant is as follows: “State of Maryland, Harford County, to wit: “To Charles T. Stephens, Sheriff of said County, Greetings: “Whereas, complaint has been made before me, the subscriber, one of the justices of the peace of the State of Maryland, in and for said County, upon information and oath of J. B. Nance, who charges Glenn Gall with having on the 18th day of June, 1945, committed the crime of having placed trees on the Maryland & Pennsylvania Railroad, calculated to obstruct, overthrow or direct from the track of said Railroad cars traveling or passing thereon, in violation of Section 535 of Article 27 of the Public General Laws of Maryland. “You are therefore commanded immediately to apprehend the said Glenn Gall and bring him before me, the subscriber, or some other justice of the said State in and for said County as aforesaid, to be dealt with according to law.

Hereof fail not and have you then and there this warrant. “Given under my hand and seal this 18th day of June, in the year of our Lord, 1945. “S. S. Spencer, J. P. (Seal)” ⁶⁶⁶ Section 585, Art. 27, Code 1939, provides: “If any person shall place anything, or cause anything to be placed on any railroad in this State, calculated to obstruct, overthrow or direct from the track of such railroad any car, vehicle or carriage, traveling or passing on such railroad, or shall break or injure in any manner any railroad in this State, with the view or intent to obstruct or overthrow any car, vehicle or carriage, such person so offending shall be deemed guilty of felony, and upon conviction thereof shall be sentenced to the penitentiary for not less than two years nor more than ten years.” The witness Crouse hauled logs in a truck from this property near Laurelbrook to the sawmill of Gall, down next to the Gunpowder Falls. He went to the woods that morning between 8:30 and 9 o’clock and the poplar tree in question had been cut down. He cut a limb off this poplar tree and it fell down over the fence along the right of way of the railroad.

He threw this limb back over the fence, loaded his truck with logs, returned to the mill, at about 10:30 or 11 A. M., and advised Gall what had happened. When Gall got this information he immediately stopped the cutting of all trees close to the railroad tracks. The testimony shows that there was a tree standing near the county road, that was thereafter felled, and that some of its branches scraped high tension wires of the gas company, but did not break them as it fell ¿cross the road. This tree was so far away that it could not possibly have interfered with the tracks of the railroad company.

The testimony of the plaintiff further shows that the trees that Gall talked to McClellan about roping, and which were dangerous, were not cut. The only tree cut that day, about which the railroad company could complain, was the poplar tree heretofore mentioned. A hearing was had on this warrant, before Magistrate Spencer, and Gall was dismissed. At the hearing the prosecution was conducted by the State’s Attorney, but Heaps was present during most of the time of the hearing.

Nance, McClellan and an employee of the railroad ⁶⁶⁷ company testified. They were summoned by the State to appear for the hearing. From these facts it appears that Gall talked with McClellan over the telephone regarding the roping of certain trees that he wanted to cut on the land referred to. Thereafter, MClellan told Gall over the telephone that the railroad would rope certain trees at his expense.

Gall thought that the railroad should do this work at its own expense and refused to pay it for roping the trees. On June 18th, 1945, Gall’s woodsman started to cut trees. One was cut and its falling in no way injured the railroad. A large poplar tree, standing about sixty feet from the northernmost rail of the track was cut.

The land from the track up to and beyond this tree ascended so that the tree did not stand near a cut or on a hill that would make its cutting dangerous to the railroad right of way. This tree appeared perfectly sound and had been marked, or blazed, by the State Forester. The manner of cutting it was that of a skillful woodsman. The evidence shows that it would have fallen away from the railroad tracks if it had bsen sound, but because the tree was decayed, which could not be seen by the workmen, it fell towards the railroad tracks, knocked down the telegraph and telephone pole with wires thereon, and disrupted the company’s system of communication.

A limb of this tree, after it was felled, might have extended over the tracks of the railroad, but it was cut off by a workman and the tracks were not obstructed. After the condition at Laurelbrook became known to Nance and McClellan, they went to Bel Air and consulted Mr. Heaps. They passed the office of Gall, but did not stop in to ask him about the matter- After the poplar tree was cut Gall stopped the cutting of all trees that could possibly fall on the railroad tracks. Nance and McClellan, as shown by the testimony narrated above, led both State’s Attorney McNabb and Magistrate Spencer to believe that the cutting of the trees adjacent to the railroad tracks was continuing and Nance caused the issuance of the warrant set out above.

He denies that he actually swore out the warrant and relies on this as a ⁶⁶⁸ defense of both himself and the railroad company. In this connection he sets up that he, McClellan and Irwin, an employee of the railroad company, were summoned as witnesses for the State and at the hearing the State was represented by the State’s Attorney. Heaps, counsel for Nance and the railroad company, was present at the hearing and remained there until it was nearly over. In Stansbury v. Fogle, 37 Md. 369 , it is stated: “While mere passive knowledge and consent to the acts of another, is not sufficient to render a party liable, (Gilbert v. Emmons, 42 Ill. 143 , 89 Am.

Dec. 412 ), yet voluntary aid and assistance undoubtedly will. The first prayer of the appellee in Cooper v. Utterbach, 37 Md. 282 , approved by this court, was to the effect, that if the jury found from the evidence that the defendant aided and assisted in procuring the arrest and prosecution of the plaintiff, and aided and contributed to said prosecution, then he is liable to be sued by the plaintiff in this action, provided, the jury under the instructions of the court, shall find the other facts necessary to render him so liable. So in Cotton v. Huidekoper, 2 Pen. & Watts 149, the court states what is unquestioned law, ‘if the defendant participated voluntarily in the prosecution of the plaintiff and it was carried on with his countenance and approbation, he is liable in damages, whether there were other who were