Zell v. Dunaway

⁴ Briscoe, J., delivered the opinion of the Court. This is an action for assault and battery brought by the plaintiff against the defendant, on the 15th day of September, 1909, in the Circuit Court for Anne Arundel County. The trial of the case, resulted in a verdict and judgment, in favor of the plaintiff for the stun of $800.00 and the defendant has appealed. The record contains a single bill of exception, reserved at the trial of the case, and that is, to the action of the Court, in granting the plaintiff’s second, fourth and fifth prayers and in rejecting the defendant’s second prayer.

The plaintiff’s first and third prayers were rejected and the defendant’s first prayer was conceded. The Court Reporter will set out the controverted prayers, in his report of this case, that is, the plaintiff’s second, fourth and fifth prayers, and the defendant’s second prayer. The sole question then presented for our consideration, on the record in this case, is the ruling of the Court, upon the prayers embraced in the defendant’s exception. As to the propositions' of law, contained in the plaintiff’s fourth and fifth prayers little need be said.

Similar prayers were approved by this Court in Sloan'v. Edwards, 61 Md. 89 , and subsequently sanctioned by us in" the more recent case of Stockhmi v. Malcolm, 111 Md. 615 . They were practically damage prayers and contained the legal propositions properly applicable to the facts of the case, in estimating the damages to be awarded, if the jury should find their verdict for the plaintiff. It is, however, insisted upon the part of the appellant, that the evidence was insufficient to support the prayers, as granted, and it was error to grant an instruction upon any proposition of law, when there is' no-proof to sustain it. It appears, however, there were no special exceptions to these prayers in the Court below for’ the insufficiency of evidence to support them, and it is well settled, that this Court is precluded by Article 5, section 9 of the Code, Public General Laws (Rule 4 of this Court) from examining the legal suf ⁵ ficiency of the evidence to support a granted prayer, unless it appeal' that such question was distinctly made to and decided by the Court below.

The objection and the ruling thereon must appear in the record by a special exception, properly signed by the Court. Albert v. State, 66 Md. 325 ; Gambrill v. Schooley, 89 Md. 548 . In Gunther v. Dranbauer, 86 Md. 11 , it was distinctly said: “Ho exception, having been.taken in the Court below to the granting of the first instruction on the ground there was no evidence to support the facts alleged to be assumed by it, we are not at liberty to consider such an objection made for the first time in this Court.” In the case of Annapolis Gas. Co. v. Fredericks, 112 Md. 456 , relied upon by the appellant, there was a special exception to the prayer for the want of evidence to sustain it, and in the absence of such evidence the Court held the special exception to the prayer should have been sustained and the prayer refused.

The correctness of the legal propositions contained in these two prayers, we think, are free from criticism, and as the legal sufficiency of the evidence, upon which they rest, is not before us for review we express no opinion upon it. The plaintiff’s second prayer is in these words: “If the jruy find' from the evidence that the defendant assaulted and beat the plaintiff on