Nance v. Gall

• Decision Date: 13 March 1947
• Docket Number: 25.
• Parties: NANCE et al. v. GALL.
• Court: Maryland Court of Appeals

51 A.2d 535

187 Md. 656

NANCE et al. v. GALL.

No. 25.

Court of Appeals of Maryland

March 13, 1947

Motion for modification of opinion.

Opinion modified.

For prior opinion, see 50 A.2d 120.

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

GRASON, Judge.

On December 12, 1946, this court rendered an opinion in this case, wherein the judgment was reversed without a new trial as to the corporate defendant, and affirmed as to the individual defendant, Nance. He now files a motion for modification of the opinion, and the main ground for the motion is that the verdict of the jury solely reflects punitive damages, and that it would not have inflicted such punishment upon Nance if the action had been instituted solely against him; that the verdict was a joint verdict as to Nance and the railroad and was intended as a punishment not only of Nance but of the railroad, and if it stands it would, therefore, be unjust.

The appellee answered this motion and asserts that Nance could have protected himself at the trial by offering evidence as to his financial responsibility and inasmuch as no evidence of that character was offered, there was no reason to suppose that the judgment of $8500.00, as to him was an excessive punishment for the wrong he committed against appellee.

There was no evidence in this case that appellee sustained compensatory damages through the act complained of. The jury's verdict was purely a punitive one. It could be sustained on no other theory, because if the law required in such a case (which it does not) proof of compensatory damages, the appellee would have suffered no loss. As we pointed out in our opinion, appellee improperly joined the railroad company with Nance in this action. The verdict which the jury rendered was a joint verdict and it could not have been apportioned as to the two defendants. The question now before us is whether the judgment as to these defendants should be allowed to stand solely against Nance.

The case of Schloss v. Silverman, 172 Md. 632, 192 A 343, 348, involved a civil action for damages resulting from an assault and battery. Silverman sued Toney Schloss and Dan Schloss, as co-partners and as individuals. The judgment in that case was reversed by this court as to Toney Schloss and as to the partnership, without a new trial, and was reversed as to Dan Schloss and a new trial awarded. The evidence showed that the financial worth of the partnership was $68,038.78--the financial worth of Dan Schloss's interest in it was $7686.17. Judge Offutt said: 'The jury may therefore in awarding exemplary damages and determining the amount which would sufficiently punish the defendants have been influenced by the net worth of the two individual defendants and the partnership. And since it cannot be assumed that they attempted to make the 'punishment fit the crime,' rather than the offenders, it does not follow that they would have awarded the amount in exemplary damages against one defendant worth less than $8,000 that they did against three worth over $68,000.' See 143 A.L.R. 31.

Appellee argues that Nance knew that punitive damages might be assessed against him as the case below was tried on that theory, and that the record is devoid of any suggestion that Nance was entitled to or sought separate consideration in the matter of damages. But the jury could not apportion its judgment so as to make a part of it applicable to Nance and a part applicable to the railroad company. It could only render a joint judgment, and each would be responsible for the entire judgment. In the following cases, cited by appellee, financial worth was offered as to several defendants: Washington Gas Light Co. v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 43 L.Ed. 543; Strand v. Griffith, C.C., 109 F. 597. He also quotes Minnis v. Friend, 360 Ill. 328, 196 N.E. 191....