Tully v. Dasher

Barnes, J., delivered the opinion of the Court. The appellant, United Investment Management Corporation (United), is the rental agent for the Pennbrooke Apartments located in Suitland, Prince George’s County. It signs the leases with the tenants as landlord. Mrs. Ruby L. Tully, the other appellant, is employed by United as resident manager of Pennbrooke Apartments and had been so employed since November 7, 1964.

The appellees, Mrs. Laverne Dasher and Mrs. Dona Mae Talbott, were tenants in two separate apartments in the Pennbrooke Apartments on Saturday, January 16, 1965, having possession of their respective apartments under similar leases which had been automatically converted into month to month tenancies after their respective one-year terms had expired. Mrs. Dasher, her husband Charles Dasher, and their daughter Sherry, then aged fifteen, occupied apartment T-2 in 5088 Silver Hill Court and Mrs. Talbott, also a daughter of Mr. and Mrs. Dasher, occupied apartment T-l in 5044 Silver Hill Court with her husband Pearson Talbott, and her two girls, one three years of age and the other eight years of age. The appellees, Mrs. Dasher and Mrs. Talbott, were plaintiffs below in an action against United and Mrs. Tully to recover damages resulting to the plaintiffs from malicious prosecution. The case was tried by a jury and resulted in verdicts of $15,000 in favor of Mrs. Dasher and $10,000 in favor of Mrs. Talbott, respectively.

This appeal was timely taken from a judgment entered upon those verdicts. United and Mrs. Tully, the appellants, raise several questions before us. These questions involve alleged errors of the lower court in refusing to grant motions of the defendants for di ⁴²⁸ rected verdicts, the alleged improper argument to the jury by counsel for the plaintiffs and the alleged errors of the trial court in ruling on evidence in five regards. We will first consider the facts generally and then other facts under the discussion of each of the alleged errors.

On Saturday, January 16, 1965, Mrs. Dasher and Mrs. Talbott sponsored a birthday party for Sherry Dasher and her teenage friends at the Dasher apartment, T-2, and also utilized the adjacent laundry room, 669 square feet in size (35 feet long with a varying width from 17 to 23 feet), for the party. Mrs. Dasher had obtained permission for a similar party, utilizing the laundry room, the previous year from Mrs. Beverly J. Henkle, the predecessor as resident manager of the apartment house of Mrs. Tully, so that she did not apply to the management for additional permission for the party to be given on January 16, 1965. The birthday party began at approximately 7:00 p.m. on January 16 with approximately twelve persons attending, of whom eight or more were teenagers, the others being adults chaperoning the party. It was a cold day and was snowing so that several of the guests, who had been invited for 5 :00 p.m., were late in arriving at the party.

A small portable record player was used, playing rock and roll music, at a moderate sound level. One of the tenants at the Pennbrooke Apartments (not produced at the trial as a witness) apparently complained about the party. The complaint ultimately reached Mrs. Tully who requested Nicholas Uhal, a maintenance engineer for the Pennbrooke Apartments, to investigate the party going on in the Dasher apartment and adjacent laundry room. When Mr. Uhal came to the laundry room, he requested that the music be turned down and suggested that the party be moved into the Dasher apartment.

The music was turned down and the guests began to move the party into the Dasher apartment. Mr. Uhal then returned to Mrs. Tully’s apartment—approximately one block from the laundry room—and reported to her that a party was in progress. Mrs. Tully then called the Prince George’s County Police and the two police officers who responded to her call accompanied Mrs. Tully and Mr. Uhal to the laundry room. When they arrived, no music was playing and the room was ⁴²⁹ empty.

Mrs. Tully thought the party had ended. After some of the guests, Mrs. Dasher and Mrs. Talbott had entered the laundry room, Mrs. Tully, without identifying herself, demanded in a loud voice that they “get the hell out” of the laundry room and stop the party. Thereafter there was a vigorous exchange of strongly worded statements between Mrs. Tully and Mrs. Dasher. Mrs. Dasher attempted to explain that she had received permission from Mrs. Henlde, the resident manager, to hold a birthday party in the laundry room and was not aware that Mrs. Tully had replaced Mrs. Henkle as the resident manager.

Mrs. Dasher testified that Mrs. Tully stated, during the course of the exchange, that she was going to have Mrs. Dasher arrested. The testimony then was as follows : “ T asked her what for * * * I didn’t do anything wrong.’ .And she said, ‘Well, I am going to have you arrested anyhow.’ And I said ‘Well you can’t.’ She said ‘United Investors told me I could.’ ” The police officers requested Mrs. Dasher to take the party into her apartment. When Mrs. Tully, Mr. Uhal and the two officers left, the transfer of the party to the Dasher apartment was completed. Officer Blankford, one of the two police officers who testified for the defendants, testified that no one was disorderly in his presence and that he had informed Mrs. Tully that if the party was continued, was loud and disturbed anyone, “then she could contact the Justice of the Peace to secure a warrant for disorderly conduct by disturbing the peace, but they weren’t disorderly in my presence.” Shortly thereafter, Mrs. Tully telephoned Janet Kurland, the secretary-treasurer of United, who authorized her to swear out warrants for Mrs. Dasher and Mrs. Talbott.

Without further communication with either Mrs. Dasher or Airs. Talbott and without checking to see if the party had been discontinued in the laundry room, Mrs. Tully drove six miles (a round trip of twelve miles) to the Suitland Police Station through the heavy snow and swore out warrants for Mrs. Dasher and Mrs. Talbott before a Justice of the Peace, charging them with disorderly conduct. These warrants were forwarded to the police to be served and were in fact served at 1 :30 a.m. Sunday morning January 17, 1965.

Following ⁴³⁰ service, Mrs. Dasher and Mrs. Talbott dressed, were taken into custody, placed in the police wagon with neighboring tenants watching, and taken to the police station where they were booked for disorderly conduct, posted bond and were released. When the two criminal cases came before the People’s Court for Prince George’s County on March 15, 1965, both defendants were found not guilty. On January 26, 1965, ten days after the birthday party, Mrs. Tully personally handed Mrs. Dasher an eviction notice charging her with disorderly conduct and ordering her to vacate the Dasher apartment. The Dashers did this and Mrs. Talbott and her family moved from their apartment because of their fear of what Mrs. Tully and United might do to them if they remained as tenants with Mrs. Tully as resident manager.

Mrs. Dasher and Mrs. Talbott employed counsel to defend them against the criminal charges at a cost of $200. Mrs. Dasher lost one week’s work because of her upset condition following her arrest and both plaintiffs had to incur moving expenses and pay $8.50 each as a bond premium in connection with the criminal charges. Mrs. Dasher suffered stomach irregularities resulting from the tension caused by her arrest and removal from her home in the middle of the night and Mrs. Talbott experienced tension headaches. Neither Mrs. Dasher nor Mrs. .Talbott had ever had any criminal charges placed against them and both suffered great embarrassment because of the permanent record of the criminal charges placed against them as a result of the warrants having been sworn out against them.

On cross-examination, when examined in regard to the alleged disorderly conduct, Mrs. Tully testified as follows: “Q. In what way would you say that Mrs. Talbott and Mrs. Dasher were disorderly, taking them one at a time ? * * * “Q. Mrs. Talbott first, please. A. Mrs. Talbott was siding in with her mother and agreeing with her, that they started bringing up things that had happened that was not material to what was going on in the basement ⁴³¹ there, and well, I felt that she—it was no concern of hers, that she did not live there, and I felt that she had no say so of what I was trying to restore peace and quietness in the building, and the intimating remarks, I was nobody, not mess with her, she is nobody, you don't have to listen to her, and things of this nature. “Q. Did Mrs. Talbott tell you you were a nothing? A. She—she said I was nothing, I was new. “Q. Mrs. Talbott? A. Yes. “Q. Is this the reason you swore out the warrants?

A. That is right. ‘■Q. You felt that they did not show proper respect for your authority and position? A. I felt they didn’t show me respect, regardless of my authority or position. “Q. And that is the reason that you felt they were disorderly? A. They were disorderly in refusing to remove the equipment from the laundry room, telling me I couldn’t make them move it from there. “Q. But the main reason was this disrespect? A. Hot disrespect.

I didn’t appreciate being called a nothing—.” We will now consider the alleged five errors of the trial court on the admission of certain evidence. E The first claim of error of the trial court in ruling on the evidence was permitting Mrs. Henkle, a witness for the plaintiffs, to testify over objection of the defendants (a) in regard to the lease of the Dashers with United, (b) the policy of United toward tenants in regard to parties, and (c) that the witness granted the Dashers permission to hold a party one year prior to January 16, 1965. (a) In regard to the Dasher lease, the record does not indicate that Mrs. Ilenkle testified in regard to the Dasher lease on ⁴³² direct examination. Counsel for Mrs. Dasher asked Mrs. Henkle: “Q. Mrs. Henkle, is it permissible under the lease of the building in which you were resident manager for the tenants to hold parties ? “Mr. Butler (counsel for the defendants) : Objection on the best evidence rule, as the lease speaks for itself, Your Honor. “The Court: Rephrase your question, counselor. “By Mr. Leach (counsel for the plaintiffs) : Q. Mrs. Henkle, while you were resident manager did you make any rules respecting parties being held by the tenants of the apartment buildings ?” This last question was objected to and counsel for the plaintiffs then ultimately went to the question of the specific authorization by Mrs. Henkle to hold a birthday party for her daughter.

The questions in regard to the lease were propounded to Mrs. Henkle on cross-examination by counsel for the defendants. There obviously can be no error on this ground available to the defendants, now appellants here. (b) and (c) The testimony indicated that Mrs. Dasher and Mrs. Talbott had leases from United identical in form and that both tenants were holding from month to month under the same provisions of those leases which were in effect when Mrs. Henkle was resident manager charged with the duty of applying the policy of the landlord in regard to the tenants under the leases. Mrs. Henkle’s employment with United terminated in October, 1964, approximately two and one-half months prior to January 16, 1965.

The party in question was held for the same girl in the same place and to celebrate the same event. Mrs. Henkle was in a position to testify in regard to the landlord’s policy relative to parties and that she, as the landlord’s agent, had granted the Dasher’s permission to hold a birthday party for their daughter in their apartment utilizing the adjacent laundry room in accordance with that policy. Under these circumstances it will be presumed that the same policy thus established would continue ⁴³³ until there was a change in that policy by the landlord. See Donner v. Calvert Distillers Corp., 196 Md. 475 , 77 A. 2d 305 (1950); McCormick on Evidence, p. 642.

There is no suggestion in the testimony that there had been a change of policy by the landlord, and such a change would be particularly within the knowledge of the landlord. The burden of coming forward with evidence of a change in policy passed to the landlord. See Donner v. Calvert Distillers Corp., supra, 196 Md. at 490 ; McCormick on Evidence, p. 644. There is little question that Mrs. Henkle’s testimony is relevant on the question of the propriety of the actions of the tenants in going forward with the party on January 16, 1965, and also on the question of probable cause by Mrs. Tully in swearing out the warrants, particularly as this prior policy of the landlord, and its specific application the previous year to the very situation in question, was brought to the attention of Mrs. Tully prior to the issuance of the warrants.

There is no specific rule of evidence which forbids the admissibility of this relevant evidence and the trial court did not abuse its discretion in admitting it. See Haile v. Dinnis, 184 Md. 144 , 40 A. 2d 363 (1944). 2. The appellants, United and Mrs. Tully, contend that the trial court erred in permitting Mrs. Dasher to testify, over objection, that no complaints were received concerning the party. They rely on the rule against “negative hearsay” and cite Honolulu v. Cain, 244 Md. 590 , 224 A. 2d 433 (1966) and Denver City Tramway Co. v. Hills, 50 Colo. 328 , 116 P. 125 (1911).

The evidence of Mrs. Dasher in question is as follows: “Q. Had you talked to any of the other tenants regarding whether they would have any objection to your holding such a party ? “A. Yes; the ones that were home. “Mr. Butler: Objection. “The Court: Just a moment. Overruled. “The Witness: The ones that were home, sir. I told them we were holding a 13-year old party, if there was any noise whatsoever or disturbed anyone to be sure and let us know.” ⁴³⁴ Mrs. Dasher was not asked and did not testify that she received no complaints after the party began; her inquiry was whether there was objection by some of the tenants to her having a 13 year old party at all. These tenants were invited to advise Mrs. Dasher if they were disturbed by any noise, but the matter was left there.

The evidence does not indicate whether any tenants advised Mrs. Dasher that they were disturbed. In short, the appellants are complaining about testimony that was never given so that their contention about “negative hearsay” has no relevance in the present case. 3. The appellants contend that the trial court erred in permitting Mrs. Talbott and Mrs. Dasher to testify in regard to their expenses and losses incurred in moving from the Pennbrooke Apartments (a) in view of the provisions of the expired lease and (b) because they failed to prove that these damages were caused by the occurrence on January 16, 1965, or were incurred by the plaintiffs. (a) Mrs. Dasher was unable to give any amount of her moving expenses.

She apparently was prepared to give the cost of a new rug she was required to purchase as a result of the old rug being torn in the moving, but the trial court sustained the objection to the question in regard to its cost and there was no proffer of any amount paid for the new rug. She was permitted to testify that she liked the Pennbrooke Apartment in which she and her family were living, did not intend or want to move and that after her eviction by Mrs. Tully’s notice to quit because of alleged disorderly conduct she moved to a new apartment which was no larger or better than the Pennbrooke Apartments but for which she had to pay $144.50 a month rent as compared with the $127.50