Nance v. Gall

• Decision Date: 12 December 1946
• Docket Number: 25.
• Parties: NANCE et al. v. GALL.
• Court: Maryland Court of Appeals

50 A.2d 120

187 Md. 656

NANCE et al. v. GALL.

No. 25.

Court of Appeals of Maryland

December 12, 1946

Opinion Modified March 13, 1947.

Appeal from Court of Common Pleas of Baltimore City; John T. Tucker Judge.

Action by Glenn Gall against Jack B. Nance and Maryland & Pennsylvania Railroad Company for malicious prosecution. From a judgment for plaintiff, the defendants appeal.

Judgment as to defendant Nance affirmed, and judgment as to defendant Maryland and Pennsylvania Railroad Company reversed without a new trial.

R Dorsey Watkins, of Baltimore, and James C. L. Anderson, of Towson, for appellants.

Robert H. Archer and J. Cookman Boyd, Jr., both of Baltimore (Robert H. Archer, Jr., of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON Judge.

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 company.

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 Road 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 Fallston. 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 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 Forestery 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 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 conversation 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 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...