Stephens v. Dixon

Morton, J., delivered the opinion of the Court. The appellant brought a two-count civil action against the appellee in the Circuit Court for Carroll County charging assault and battery in Count I and defamation of character in Count II. The trial judge allowed the assault and battery count to go to the jury which returned a verdict in favor of the appellee. He granted a directed verdict in favor of the appellee on the defamation count at the conclusion of the appellant’s case.

In this appeal it is contended that the trial judge committed error in his instructions to the jury with respect to the alleged assault and battery and in directing a verdict for the appellee on the defamation count. ⁵⁸ The record indicates that appellant, Frederick W. Stephens, lived on a farm near Mount Airy, Maryland. For several years he had been employed as an engineer at the National Institute of Health (NIH). The appellee, Lewis C. Dixon, was the Mayor of Mount Airy and also employed by the Naval Service Reference Center. In October, 1968, Mr. Stephens became aware of the fact that the town of Mount Airy had decided to locate a sewage treatment plant on what was then Mr. Stephens’ property.

In August, 1969, negotiations began concerning compensation to Mr. Stephens. A private settlement was never reached and the property was finally obtained by the town through condemnation proceedings. On June 18, 1973, Mr. Stephens attended a town meeting to lend support to a community association on a matter unrelated to the present case. Mr. Stephens testified at the trial below that toward the end of the meeting he attempted to make a statement to the effect that he was waiting to receive answers to letters he had written to the mayor “about deficiencies in the construction [of the treatment plant] on my farm.” The meeting apparently adjourned before Mr. Stephens was able to say anything so he decided to follow the mayor into an adjoining room to discuss his grievance with the mayor personally.

When Mr. Stephens asked the mayor for a written response to his letters, the mayor, according to Mr. Stephens, indignantly responded that “we’re not going to write you anything.” At this point the discussion ripened into a rather heated argument. The mayor requested Mr. Stephens to leave. Mr. Stephens refused. A physical encounter ensued and continued until several people entered the room and broke it up.

According to Mr. Stephens, the mayor began the physical altercation. The mayor claimed he acted in self-defense. Eric Green, a staff writer for the Frederick News Post who witnessed the episode, could not remember who threw the first punch. For several months thereafter the local newspapers carried stories of the incident which included statements alleg ⁵⁹ edly made by the mayor concerning the altercation and the culpability of the participants.

The controversy culminated in a 2,000 word written statement 1 by the mayor describing his version of the incident which he read into the minutes of a town council meeting in October, 1973, and then made copies available to the press. As a result of the mayor’s statement, the town council passed a resolution barring Mr. Stephens from attending meetings “until he publicly apologizes to this Body and the Mayor for his misconduct.” We turn first to appellant’s contentions with respect to the trial judge’s instructions. He urges that the failure “to instruct the jury that an assault and battery includes an unlawful touching of another by the aggressor” constituted reversible error. Since the omission was not objected to below, and appellant concedes this, the issue was not properly preserved for review by this Court.

Maryland Rule 554 e. See also Podolski v. Sibley, 12 Md. App. 642 (1971). Before punitive damages can be awarded for civil assault and battery, malice must be shown. Vancherie v. Siperly, 243 Md. 366 (1966).

Appellant contends that the trial judge erred “in failing to instruct the jury that malice can be inferred from the act of a public official violently depriving a citizen of his right peaceably to petition the government.” He argues that persons who violate the Federal Civil Rights Act, 42 U.S.C. § 1981 et seq., may be held liable for punitive damages. By analogy, he asserts, “The jury should have the right to decide whether the assault and battery were performed with the purpose of depriving the Plaintiff-Appellant of his right to assemble and petition the government * * *.” The short answer to this contention is that no such analogy exists. If appellant believed that his constitutional rights were violated, he should have filed suit alleging violation of 42 U.S.C. § 1983 of the Federal Civil Rights Act. The trial judge had no reason to instruct the jury that they could infer malice from an infringement of appellant’s First ⁶⁰ Amendment rights when appellant did not even allege in his declaration that such an infringement occurred.

Even if appellant had alleged a malicious infringement of his First Amendment rights, appellant’s proper method of recovery would be via 42 U.S.C. § 1983 . To say that the mayor maliciously deprived appellant of a constitutional right is quite different from saying that the mayor maliciously committed an assault and battery on appellant. “A wrongful deprivation of appellant’s civil rights” may be indicative of malice under 42 U.S.C. § 1983 , but certainly it is not evidence of malice on a count charging assault and battery. The trial judge advised the jury, at considerable length, that before they could assess punitive damages for the alleged assault and battery, they must first find that the appellee acted with malice toward the appellant and the trial judge proceeded to give the jury a comprehensive definition of the word “malice.” Under the circumstances, we find appellant’s contention with respect to this segment of the instructions to be without merit. The appellant also contends that the trial judge erroneously failed to instruct the jury that the appellee must prove, by a preponderance of the evidence, that he acted in self-defense.

Although appellant timely objected to the omission of his requested charge, he failed to state “the ground of his objection” as required by Maryland Rule 554 d. Nevertheless, where the ground is evident, the issue will be considered, notwithstanding the failure to comply with the rule. Kowalewski v. Carter, 11 Md. App. 182 (1971). In the present case, it is clear that the appellant believed the jury was entitled to know who had to prove self-defense and the quantum of proof necessary to sustain the plea.

The law in Maryland places the burden of proving justification in an assault and battery count upon the defendant. Sellman v. Wheeler, 95 Md. 751 (1902). In that case, holding that an instruction on the burden of proof had been properly given at the trial below, the Court stated, at 757: ⁶¹ “The rule has been well stated in Blake v. Damon, 103 Mass. 199 , thus: Tf plaintiff alleges acts which if proved, and not justified, will sustain his action, and the defendant seeks to justify them, the burden is upon him to prove his justification.’ And this rule was well illustrated in St. John v. Eastern R. W., 1st Allen 574, where it was said: ‘Where plaintiff was a passenger on a railroad, and defendant by its agents assault him, if the assault is proved, the burden of justifying it rests upon the defendant as in ordinary cases.’ ” If there is a conflict in the testimony on any material point, it is proper to give an instruction on the burden of proof. Meyer v. Frenkil, 116 Md. 411 (1911).

Appellee does not dispute the law, but apparently believes that there was no material conflict in the testimony on the issue of self-defense. He argues that “the Trial Court could have properly granted a directed verdict [in his favor], either at the end of the Plaintiffs case, or the entire case.” He relies on several statements made by the reporter, Mr. Green, at the trial which tended to show that the mayor acted in self-defense. In particular, on cross-examination, Mr. Green testified that immediately before the scuffle began, “Mr. Stephens was the aggressor.” His testimony, however, clearly indicated that no matter who was the aggressor in the verbal dispute, he could not remember “how each one got their arms on the other.” Furthermore, appellant testified that Mayor Dixon delivered the first blow. Clearly, there was conflicting testimony on the issue and, accordingly, the trial judge correctly denied appellee’s motion for a directed verdict.

It is equally clear that a jury instruction on the burden of proving that the appellee acted in self-defense would have been proper and from our reading of the instructions as a whole, the refusal to comply with appellant’s request for such an instruction constituted prejudicial error. Kowalewski v. Carter, supra. The trial judge properly instructed the jury that “the burden of proof is upon the plaintiff [appellant] to make out his case and to prove to your satisfaction by a preponderance of evidence ⁶² that an assault was committed * * He refused, however, to advise the jury that the appellee had the burden of proving, by a preponderance of the evidence, that he acted in self-defense. Since there was a material difference in the testimony of the witnesses, identification of the party carrying the burden of proof became especially significant.

The jury returned twice to ask the court for a definition of “assault.” Although it is not our function to second-guess the jury, the possibility that they were having difficulty determining who was the aggressor indicates the necessity for the instruction. We conclude that the failure to give the requested instruction compels a reversal of the judgment on the assault and battery count. Appellant finally contends that the trial judge improperly granted the appellee’s motion for a directed verdict on the defamation count at the end of appellant’s case. In granting the motion, the trial judge stated: “But more specifically, I think more important than anything else is that there has been no damages proven and the Court, the jury would have to speculate.

No other way could they do it. As a matter of fact, this letter here somewhere, as I recollect it, I may be wrong, but indicates that he’s not interested in monetary gain and his change in jobs he’s just interested in helping people or something like that. But the jury would have to speculate on his present salary, which they don’t know, on any future salary which he might expect, which they don’t know, to the extent of his damage to his reputation how long it would last or even if it’s in effect today. All of this would be purely speculation and there is no, and I can’t find that the words are libelous per se.

I think that would be a question for the jury. So that there are no damages that I can find that would be available to the jury to consider unless by pure speculation. And we can’t allow that. So I’ll grant the motion on the second count.” ⁶³ In reaching this conclusion, the trial judge had before him the testimony of Alfred L. Perkins, head of the division in which Mr. Stephens worked at the National Institute of Health.

Mr. Perkins testified that in June, 1973, Mr. Stephens applied for an executive training program at the N.I.H. The application was submitted prior to the altercation between Mr. Stephens and the mayor. Mr. Perkins wrote a “letter of recommendation for Mr. Stephens to indicate that he would be well qualified and suitable for the program.” He stated that Mr. Stephens also applied for a position as his assistant. According to established procedure, a Qualifications Review Board reviews the applications and places each in one of three categories according to its quality. The Board’s determination is turned over to a recommending official, who in the present case was Mr. Perkins, to recommend one of the candidates for the position.

Another official then makes the final selection. Mr. Stephens’ application was rated “highly qualified,” which placed him in the most desirable category. Subsequently, newspaper articles containing stories of the fight between the mayor and Mr. Stephens were circulated in Mr. Perkins’ office. Mr. Perkins did not recommend Mr. Stephens for the position but stated at the trial his knowledge of the fight was not a factor in his decision.

Mr. Stephens was not selected for either the executive training program or the position as assistant to Mr. Perkins. Jack S. Robbins testified that Mr. Stephens applied for a position in his office at the N.I.H. He stated that Mr. Stephens was rated as “qualified,” which is the least desirable of the three alternative categories. Mr. Robbins further stated that newspaper articles containing accounts of the altercation between Mr. Stephens and the mayor were circulated around the office. To his knowledge at least one of the individuals on the Qualifications Review Board knew of the incident.

Mr. Robbins indicated that his knowledge of the fight between Mr. Stephens and the mayor was a factor in his own evaluation of Mr. Stephens which was later submitted to the review board. He could not, however, ⁶⁴ estimate the effect his knowledge of the fight had on his evaluation. Mr. Stephens testified that in August, 1973, he was approached by “the contracting officer from the Frederick County Research Center” and subsequently applied for a position there. In his application for the position he denied responsibility for the alleged assault on the mayor.

He was not selected to fill the position. Dr. Mary Rita Miller, a professor of linguistics, testified that as a result of her professional analysis of the written statement read by the mayor to the town council, which was subsequently made available to the press, “the general impression is that although the Mayor says he is defending Mr. Stephens that it is in fact a self-serving article to present his point of view. It is damaging to Mr. Stephens. * * * I think you would have to decide on the basis of the article that Mr. Stephens is a very unstable person and that he is arrogant, persistent, a heckler and completely looses control of himself under stress.” She then described in technical detail the basis for her conclusion. At the time this case was tried below and at the time it was argued before this Court, the bench and bar did not have the benefit of the views expressed by Judge Irving A. Levine for the Court of Appeals