Barabasz v. Kabat

Citation46 A. 337,91 Md. 53
PartiesBARABASZ v. KABAT et ux
Decision Date22 March 1900
CourtCourt of Appeals of Maryland

Appeal from Baltimore city court; Charles B. Phelps, Judge.

"To be officially reported."

Action by Vincent Kabat and wife against Mieczyslaus Barabasz. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Argued before McSHERRY, C. J., and PAGE, PEARCE, FOWLER, BOYD, JONES, BRISCOE, and SCHMUCKER, JJ.

Fred'k C. Cook and Charles W. Heuisler, for appellant. Marcus Kaufman and George T. Mister, for appellees.

PEARCE, J.This is an action brought by the appellees against the appellant to recover damages for an alleged assault and battery made upon the female plaintiff by one Joseph Molis while in the discharge of his duties and in the course of his employment as the servant or agent of the appellant. At the close of the plaintiffs' testimony the defendant offered eight prayers, by each of which in varying form, the court was asked to with draw the case from the consideration of the jury. All these prayers were rejected by the court, and their rejection constitutes the first exception. After the rejection of these prayers, the defendant proceeded with his case, and introduced a number of witnesses to sustain his defense. At the close of the whole case, prayers were offered by both parties, and were passed upon by the court, but are not embraced in the record; it appearing therefrom that the defendant waived all objection to the ruling on all these prayers pnd on questions of evidence. At the time of the signing and sealing of the first bill of exceptions, which is referred to and made part of the second exception, the plaintiffs insisted that the cross-examination of Joseph Molis, one of the defendant's witnesses, should be incorporated in, and constitute part of, the record, to which the defendant objected; but the court overruled his objection, and directee the cross-examination of said witness to be incorporated in the record, which ruling, being excepted to, constitutes the second exception.

The appellees contend that though there may have been error in the court's ruling in refusing to take the case from the jury at the conclusion of the plaintiffs' evidence, such error was waived by the defendant in proceeding with his own case, and cannot be reviewed on this appeal. Prior to the act of 1894, c. 516 (section 87a, art. 75, of the Code), this question could not have arisen in Baltimore city, because, before the passage of that act, if the defendant at the close of the plaintiff's testimony submitted a prayer to take the case from the jury, and such prayer was refused, the defendant could not, under the rules of the courts of Baltimore city, offer testimony in defense, and the case went to the jury on the plaintiff's testimony, just as, prior to the act of 1867, c. 388 (Code, art. 75, § 8), if a party demurred to the declaration or to a plea at any stage of the case, and his demurrer was overruled, the other party was entitled to judgment on the demurrer, unless by leave of court the demurrer was withdrawn and plea was filed in due course according to the stage of the case. This was so, because when the party elected, by his demurrer, to rest his case upon an issue at law, he thereby waived the right to have an issue of fact (or, to speak more accurately, acknowledged there was no issue of fact), so long as the issue of law tendered by him was not, by leave of court, withdrawn. This reason of the common law would seem to be equally applicable and controlling in the case of a prayer offered at the close of plaintiff's testimony to take the case from the jury. By offering such prayer the defendant admitted all the facts established by the plaintiff's testimony, and rested his defense upon an issue of law, viz. the sufficiency of those facts to warrant a recovery. But parliament in England and American legislatures are constantly modifying the rigor of the common law, and our own legislature, by the act of 1867, gave to the party demurring to a declaration or plea the right to plead over without withdrawing his demurrer, and expressly provided in such case that "upon appeal or writ of error the question of law arising upon the demurrer should be decided and determined as fully to every intent as if the party demurring had not pleaded over." This privilege was a wise and salutary one, since without it only partial relief would have been afforded against the evil intended to be remedied. Without it, the demurrant would have lost absolutely the right to have decided the issues of law, upon which he might be correct, and the only benefit he would have secured would be the chance of establishing his defense upon the issue of fact to be raised by plea. In other words, he would purchase the doubtful result of an issue of fact by the abandonment of the uncertain result of an issue of law. But under the operation of the act of 1867 he enjoys the benefit of a defense both at law and on the facts. Thus, equal and exact justice is done to both parties, and the cost and delay of litigation are greatly reduced. The practice of offering prayers to take a case from the jury is said to be equivalent to a demurrer to evidence, and when a defendant, at the close of the plaintiff's testimony, submits such a prayer, it is in effect a motion for a nonsuit, which is the practice prevailing in some states to-day. The only difference in the effect of a demurrer to evidence and a motion for nonsuit upon plaintiff's testimony, as stated by Mr. Justice Gray in Central Transp. Co. v. Pullman's Palace-Car Co., 139 U. S. 39, 11 Sup. Ct. 478, 35 L. Ed. 55, being that the judgment on the former is a final determination of the rights of the parties, whereas the judgment on the latter is in favor of plaintiff, the case must be submitted to the jury; and, if in favor of defendant, it is no bar to a new action. The act of 1894 enacted that where the defendant offers such a prayer at the close of the plaintiff's evidence, and it is rejected, "the defendant shall not be precluded from offering evidence of defense, but any defendant in any such action may offer evidence of defense as fully and to the same extent as though such prayer had not been offered." It does not, however, provide, as the act of 1867 did in reference to its subject-matter, that "upon appeal or writ of error the question of law arising upon such rejected prayer shall be decided and determined as fully to every intent as if no evidence in defense had been offered." We think there was a sound reason for not so providing, because the defendant's evidence, being in by his own deliberate election, should be available as well for the plaintiff as toe the defendant, since it not unfrequently happens that the defendant, in so electing, supplies the deficiency of plaintiff's testimony; and if the defendant is still of opinion that upon the whole testimony, which he has himself in voked, there is no legally sufficient evidence to warrant a recovery, he may renew his prayer to...

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57 cases
  • Farmers' & Merchants' Nat. Bank of Cambridge v. Harper
    • United States
    • Court of Appeals of Maryland
    • June 29, 1926
    ......Barabasz v. Kabat, 91 Md. 53 [46 A. 337]. That decision was made, notwithstanding the act of 1894 provided that 'the defendant shall not be precluded from ......
  • Farmers' & Merchants' Nat. Bank of Cambridge v. Harper
    • United States
    • Court of Appeals of Maryland
    • June 29, 1926
    ...... offers evidence himself, the error, if any, in rejecting the. prayer, is waived, and cannot be reviewed on appeal. Barabasz v. Kabat, 91 Md. 53 [46 A. 337]. That. decision was made, notwithstanding the act of 1894 provided. that 'the defendant shall not be precluded ......
  • State v. Stewart.
    • United States
    • Supreme Court of New Mexico
    • February 9, 1929
    ......v. Durack, 78 Ohio St. 243, 85 N. E. 38, 14 Ann. Cas. 218 and note at page 222, collecting cases from all over the United States; Barabasz v. Kabat, 91 Md. 53, 46 A. 337, is a fine case collecting many of the cases. Southwest Cotton Co. v. Ryan, 22 Ariz. 520, 199 P. 124; People v. ......
  • State v. Stewart
    • United States
    • Supreme Court of New Mexico
    • February 9, 1929
    ......v. Durack, 78 Ohio St. 243,. 85 N.E. 38, 14 Ann.Cas. 218 and note at page 222, collecting. cases from all over the United States; Barabasz v. Kabat, 91 Md. 53, 46 A. 337, is a fine case collecting. many of the cases. Southwest Cotton Co. v. Ryan, 22. Ariz. 520, 199 P. 124; People ......
  • Request a trial to view additional results

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