Brinsfield v. Howeth

• Citation: 73 A. 289,110 Md. 520
• Parties: BRINSFIELD v. HOWETH.
• Decision Date: 20 May 1909
• Court: Court of Appeals of Maryland

73 A. 289

110 Md. 520

BRINSFIELD

v. HOWETH.

Court of Appeals of Maryland.

May 20, 1909.

Appeal from Circuit Court, Wicomico County; Chas. F. Holland and Robley D. Jones, Judges.

Action by Nannie B. Howeth against Zora H. Brinsfield. Judgment for plaintiff, and defendant appeals. Affirmed.

The prayers referred to in the opinion of the court are as follows:

"Plaintiff's First Prayer. (Granted.) The court instructs the jury that inasmuch as the defendant has not pleaded that the charges set out in the declaration and offered in evidence are true, either in whole or part, he admits that the plaintiff is not guilty of any of said charges, and the jury must deal with the case upon that admission.

"Second Prayer. (Granted.) The plaintiff prays the court to instruct the jury that if they shall find from the evidence that the defendant, in the town of Cambridge, Md., in or about the month of April, 1905, in the presence and concerning the plaintiff, spoke the words charged in the second count of the declaration, and meaning and imputing thereby a want of chastity in the plaintiff, and was so understood by said hearers, and if they shall further find from the evidence that the words spoken proceeded from express malice or ill will to the plaintiff, then their verdict must be for the plaintiff; and, if they so find for the plaintiff, they may award such damages as they in their judgment shall think justified by all of the facts and circumstances of the case, not only for the purpose of giving compensation for the injury done to the feelings and character of the plaintiff, but also for the purpose of adequately punishing the conduct of the defendant, and in assessing such damages they may consider the means and wealth of the defendant."

"Fourth Prayer. (Granted.) The plaintiff prays the court to instruct the jury that if they shall find from the evidence that the defendant, in or about the month of February, 1906, in the county of Dorchester, state of Maryland, in the presence and hearing of the witness, Benjamin F. Johnson, spoke of and concerning the plaintiff the words charged in the third count of the declaration, then their verdict must be for the plaintiff, and, if they so find for the plaintiff, they may award such damages as they in their judgment shall think justified by all of the facts and circumstances of the case, not only for the purpose of giving compensation for the injury done to the feelings and character of the plaintiff, but also for the purpose of adequately punishing the conduct of the defendant, and in assessing such damages they may consider the means and wealth of the defendant.

"Fifth Prayer. (Granted.) The plaintiff prays the court to instruct the jury that the word 'malice,' as used in this form of action, is not to be considered in the sense of spite or hatred against a person, but as meaning that the party is actuated by improper and indirect motives, other than the mere purpose of vindicating public justice."

"Third Prayer. (Rejected.) The plaintiff prays the court to instruct the jury that if they shall believe from the evidence that the defendant, in the county of Dorchester, state of Maryland, in or about the month of February or March, 1900, in the presence and hearing of John Stanton, the witness, spoke of and concerning the plaintiff the words charged in the fourth count of the declaration, and meaning and imputing thereby a want of chastity in the plaintiff, and was so understood by said hearers, then their verdict must be for the plaintiff, and if they shall so find for the plaintiff they may award such damages as they in their judgment shall think justified by all the facts and circumstances of the case, not only for the purpose of giving compensation for the injury done to the feelings and character of the plaintiff, but also for the purpose of adequately punishing the conduct of the defendant, and in assessing such damages they may consider the means and wealth of the defendant."

"Defendant's First Prayer. (Granted.) The jury are instructed that the burden of proof is upon the plaintiff to show by a preponderance of evidence that the defendant spoke of and concerning the plaintiff the words charged in the third count of her declaration, and, unless the jury find by a preponderance of evidence that the defendant did speak of and concerning the plaintiff the words used in said count, their verdict must be for the defendant upon said count.

"Second Prayer. (Granted.) The jury are instructed that if they believe from the evidence that the defendant spoke of and concerning the plaintiff the words set out in the second count of the declaration, to wit, 'She is a girl of loose character and not fit to teach school,' and shall further find that the words were spoken to Wm. N. Andrews, state's attorney of Dorchester county, in response to an inquiry made by the said William N. Andrews in his official capacity in the examination or investigation of a case then pending in the circuit court of Dorchester county, wherein the said plaintiff was charged with an assault, then their verdict must be for the defendant upon said count, unless they further find that the said words were spoken with express or actual malice on the part of the defendant, and the burden of proving such express or actual malice is upon the plaintiff.

"Third Prayer. (Conceded.) The jury are instructed that, before they can find for the plaintiff on the third count of her declaration in this case, they must find from the evidence that the words alleged therein to have been spoken by the defendant, if they find from the evidence that they were spoken by him, were spoken by him concerning the plaintiff, Nannie B. Howeth, and no one else; and the burden of proof that said words were so spoken by the defendant of and concerning the plaintiff is upon the plaintiff."

"Fifth Prayer. (Conceded.) The defendant prays the court to instruct the jury that there is no legally sufficient evidence to entitle plaintiff to recover under first count of her declaration.

"Sixth Prayer. (Granted.) The defendant prays the court to instruct the jury that there is no legally sufficient evidence to entitle plaintiff to recover under the fourth count of her declaration.

"Seventh Prayer. (Granted.) If the jury find a verdict for the plaintiff, and if they further find that any of the words charged in the declaration, which they may believe the defendant spoke of and concerning the plaintiff, did not proceed from malice on the part of the defendant toward the plaintiff, in estimating damages the jury may take into consideration the circumstances under which said words were spoken, the reputation of the plaintiff for chastity at the time of the speaking of said words, and all the other facts and circumstances of the case, and may in the exercise of their discretion award to the plaintiff nominal damages only."

"Fourth Prayer. (Rejected.) The jury are instructed that, even though they find from the evidence that the defendant spoke of and concerning the plaintiff the words charged in the second count of the declaration, they cannot find for the plaintiff on said count, unless they further find that said words proceeded from express malice on the part of the defendant toward the plaintiff, and unless the jury so find their verdict must be for the defendant on said second count."

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ.

Alonzo L. Miles, for appellant.

Frederick H. Fletcher, for appellee.

BURKE, J. This record brings up for review the propriety of 10 rulings of the circuit court for Wicomico county. In the former appeal of the appellant herein, which is reported in 107 Md. 278, 68 Atl. 506, the legal principles to be applied to the case were stated, the judgment was reversed, and the case was remanded for a new trial, and it was adjudged that the plaintiff pay the costs. Upon the new trial a verdict and judgment were entered for the plaintiff for $4,500, and the defendant has again appealed.

This case, which is an action for slander, has been three times tried in the same court. In the first trial the plaintiff submitted to a judgment of non pros., and in the subsequent trials she recovered judgments against the appellant. The court therefore in which the case was tried was familiar with the facts, and with the financial condition of the parties, and no doubt knew whether the plaintiff was financially able to pay the costs adjudged against her on the former appeal. It certainly was in a position to know whether, under the circumstances within its knowledge, it was proper to say that the trial should be stayed until those costs had been paid by the plaintiff. The refusal of the court to grant this stay constitutes the appellant's first bill of exception. The question presented by this exception was considered in the former appeal, and we there said that an application to grant a temporary stay of proceedings was addressed to the discretion of the court, and that the refusal of the court to grant it would not be reviewed, in the absence of an abuse of discretion by the lower court. A motion to stay proceedings, based upon section 70, art. 75, Code 1904, is to be dealt with in precisely the same way. Knee v. City Passenger Railway Company, 87 Md. 623, 40 Atl. 890, 42 L. R. A. 363. At the time the motion for a stay was made, it had been decided by this court that the plaintiff had a good cause of action against the defendant. The lower court was aware that the defendant was a man of substantial means, and that the plaintiff was comparatively poor, and the court may have well thought that to require her to pay the costs would have imposed upon her a great hardship, and that such an order might have resulted in depriving her of the ability to try her case. We therefore think the court acted clearly within its judicial discretion in refusing the motion, and that its action is not the...