Dicken v. Shepherd

• Court: Maryland Supreme Court
• Writing for the Court: COCHRAN, J.
• Citation: Dicken v. Shepherd, 22 Md. 399 (Md. 1864)
• Decision Date: 25 November 1864
• Parties: JOHN B. DICKEN v. AMOS P. SHEPHERD.

22 Md. 399

JOHN B. DICKEN v. AMOS P. SHEPHERD.

Court of Appeals of Maryland.

November 25, 1864

APPEAL from the Circuit Court for Allegany County:

This is an action of slander, brought by the appellant against the appellee, on the 5th of October 1858. The inducement set out in the declaration is briefly as follows: That the defendant on the 21st October 1852, sold to the plaintiff a certain piece of land with a mill thereon, for $5,000, for which the plaintiff paid $2,500 in cash, and confessed a judgment for $2,500, the balance of the purchase money, with a stay of execution to the 1st October 1857; that the mill had been used by the defendant as a grist and merchant mill, and was intended so to be used by the plaintiff after the purchase and that the defendant knew that it was so to be used; that the property was then worth $5,000, and that the plaintiff made valuable and useful improvements to the property, worth $2,000, and increased the value of it to $7,000; that the plaintiff was in good credit when he bought the mill, and could buy grain on credit, or borrow money for the use of his business without difficulty, and upon fair terms; that the defendant well knowing all these matters, and intending to injure the plaintiff, and intending to injure and destroy his credit and his said milling business, uttered and published the false and slanderous words as charged in the several counts, from 1 to 14, inclusive.

The counts relied upon for the purposes of this appeal, are the 2nd, 3rd and 14th.

The words charged in the second count, as spoken of the plaintiff and said property, and his inability to pay for it, without the innuendos, are: " Dicken will never be able to pay for it; tell your father to push him and get his money as soon as possible, for I am going to shut down on him, and he will never get it." The innuendo to this count shows that the defendant intended to charge the plaintiff with insolvency.

The words charged in the third count, as spoken of the plaintiff and the said mill property, are: " Dicken will never be able to pay for it." The innuendo also shows an intention to charge insolvency by the defendant against the plaintiff.

The words charged in the 14th count, as spoken of the plaintiff are as follows: " Against the first of October next, he will owe me $2,600. I have prolonged the time for Dicken one year, to give your friends out there a chance to make their money out of him, and that he, defendant, was going to shut down on him against the 1st of October next; and if he owes you any thing, you had better be getting it." The innuendo is that the defendant thereby intended to charge the plaintiff with being insolvent.

The words as charged in the 2nd count are proved by Robert Chaney. The conversation with this witness, as contended by plaintiff, was in the spring of 1858, less than a year before suit was brought, as shown by J. Wilson's and Chaney's testimony.

The words as charged in the 3rd count are proved by John Wilson Charles Berry, L. A. Hinkle and Robert Chaney. The conversation with Wilson was in the spring of 1858, less than a year before the suit was brought.

The words as charged in the 14th count are proved by Joseph McElfish. This conversation was in August 1858, and Shepherd says in that conversation that " he had prolonged the time with Dicken for one year, to give his friends a chance to make their money out of him," and the execution was in fact issued on the 10th September 1858.

The pleas are: 1st. That the defendant did not commit the wrongs alleged. 2nd. That he did not commit the wrongs alleged, or either of them, at any time within one year before this suit. 3rd. That the alleged causes of action did not, nor did either of them, accrue within one year before this suit. And 4th. That the words spoken were true. The case was tried upon issues joined on the 1st, 3d and 4th pleas, and in the course of the trial, six exceptions were taken by the plaintiff to the ruling of the Court below, and the verdict and judgment being in favor of the defendant, the plaintiff appealed.

1 st Exception. --The plaintiff proved by Joseph McElfish the conversation with the defendant, and then asked the witness whether he was prevented from putting his wheat in Dicken's mill, to be ground, by what the defendant had said to him in relation to the plaintiff, and his indebtedness to the defendant; to which he replied that he was influenced in part by what Shepherd said to him, from putting his wheat in the plaintiff's mill, and in part in consequence of reports in the neighborhood, and that he can't say it was in consequence solely of what Shepherd said to him. To this answer the defendant objected, as illegal testimony for the purpose of proving special damage by reason of the loss of custom of witness to the plaintiff's mill. The Court excluded the testimony, though the counsel for the plaintiff said they offered it for all purposes for which it was legally admissible, and to this ruling the plaintiff excepted.

2 nd Exception. --The plaintiff then asked this same witness " whether or not, if he had heard nothing except what the defendant said to him concerning the plaintiff and his situation as to debts to the defendant, he would have refused to take grain to the mill of the plaintiff, either to be ground or for sale to the plaintiff; and whether or not, if it had not been for what the defendant said to him about the plaintiff, he would have taken his wheat for grinding or sale to the plaintiff's mill?" To his answering this question the defendant objected, on the same ground as stated in the first exception, and upon the further ground that it was a leading question; the counsel of plaintiff offering the evidence as legally admissible for all purposes for which it was offered. The Court ruled that the question was not a proper one, and refused to permit the witness to answer it, and the plaintiff excepted.

3 d Exception. --The plaintiff then offered to prove by this same witness, Joseph McElfish, that before he had the last conversation with Shepherd, detailed by him, he had been in the habit of selling grain to the plaintiff on credit, and that after this conversation he refused to sell his grain to the plaintiff, because he thought, from what Shepherd had said, that if Dicken could not pay what he owed Shepherd, he, witness, could not get his money out of him for what he sold. To the admissibility of so much of the testimony as relates to the refusal of the witness to sell grain to the plaintiff on credit, the defendant objected, and the Court sustained the objection and refused to permit the same to go to the jury, and the plaintiff excepted.

4 th Exception. --The plaintiff proved by Robert Chaney, that some three or four years ago, (that is some three or four years prior to 1860, and more than one year prior to the commencement of this suit,) Shepherd said to the witness " he expected to get his mill back, as he expected Dicken never would be able to pay for it, and he did not expect him to pay for it at the time he sold it to him," and that " he also told me to tell my father to make his money out of him as soon as he could, as he was going to shut down on him, and that if he did not, he would lose his money." The plaintiff then offered to prove, by David Chaney, that he is the father of Robert Chaney, who delivered to him the message from Shepherd, as above stated, and that at the time of the delivery of this message, the plaintiff was indebted to him in the sum of $160, money loaned to him by witness, and that by reason of this message, he called in from the plaintiff the money he had loaned him as aforesaid, which, but for this message, he would not have done, to which testimony the defendant objected, which objection the Court sustained, and refused to let the same go to the jury, and the plaintiff excepted.

5 th Exception. --The plaintiff offered to prove, by Thomas McElfish, that his brother Joseph, whose testimony he had heard delivered in this cause, told him what Shepherd had said, as is before stated in the foregoing bills of exception; that witness had no conversation at any time with Shepherd on the subject, and that in consequence of such statement made to him by Joseph, he stopped putting wheat in the mill on deposit, as he had been in the habit of doing before that time. To this testimony the defendant objected, and the Court refused to permit said evidence to go to the jury, and the plaintiff excepted.

6 th Exception. --This exception was taken to the refusal of the Court to grant the two prayers offered on the part of the plaintiff, and to the granting of the three prayers offered on the part of the defendant,--which were as follows:

Plaintiff's 1 st Prayer. --The plaintiff by his counsel, prays the Court to instruct the jury, that if they shall find from the evidence in the cause, that the plaintiff purchased the mill and property mentioned in the declaration in this cause, from the defendant, for the purpose and with the intent mentioned in the declaration; and that the plaintiff took possession of said mill, and carried it on and conducted the milling business, as mentioned in said declaration, and with the intent and purpose therein mentioned; and that the defendant knew of all said facts; and that the defendant maliciously and falsely published the words stated in the second, third and fourteenth counts of said declaration, or in either of them, of and about the said plaintiff, within one year previous to the bringing of the suit in this cause, then the plaintiff is entitled to recover.

Plaintiff's 2 nd Prayer. --The plaintiff, by his counsel, prays the Court to instruct the jury, that if they shall believe from the evidence in the cause,...