Ensor v. Bolgiano
| Decision Date | 22 April 1887 |
| Citation | 9 A. 529,67 Md. 190 |
| Parties | ENSOR v. BOLGIANO. |
| Court | Maryland Court of Appeals |
Appeal from the court of common pleas.
W S. Bryan, Jr., and W. A. Hammond, for appellant,
Frank Gosnell and A. W. Machen, for appellee.
Thomas F. Allen was injured on the Baltimore & Yorktown Turnpike road, and Mr. Ensor became his counsel to sue the company for damages. The agreement between them was that Mr. Ensor should receive for his services one-half of what might be recovered. The suit was brought in August, 1883; the damages claimed in the narr being $10,000. Afterwards, in January, 1884, Allen compromised with the company upon receiving $500, and executed to them a release. This release was filed in July 1884, and Mr. Ensor, as counsel for the plaintiff, thereupon entered the case "off." After this, in October, 1884, Mr. Ensor brought the present suit against Mr. Bolgiano, a stockholder of the company who had been instrumental in bringing about this compromise. The original declaration contained two counts in slander, charging, in substance, that Bolgiano said to Mr. Allen these words in reference to the damage suit, and the compromise of it: Afterwards the declaration was amended by adding a third and fourth count, which charge, in substance, that the defendant, well knowing the contract which the plaintiff had made with Allen for compensation in the damage suit, and wrongfully and maliciously intending to injure him, and deprive him of his fee as attorney in that action, by means of certain false and fraudulent statements, arguments, and persuasions, made Allen believe the plaintiff would not attend to his case; and, if he did, would so overcharge him that he would have but a small sum left, and thereby induced Allen to break his contract with the plaintiff, and to settle the suit, without his knowledge or consent, for a small and grossly inadequate sum, of which the plaintiff was to receive and did receive no portion whatever. The particular statements made by the defendant to Allen as set out in the third count are these: And when Allen asked, in case he should settle, what about his lawyer, the defendant answered: "That is all right." These counts also charge that the defendant committed these grievances well knowing that Allen had no property out of which the plaintiff could recover compensation for this breach of contract or for his services.
Besides non cul., the defendant interposed three special pleas, denying-- First, that he had any knowledge of the contract between Ensor and Allen at the time of the alleged conversations with Allen set out in the third count; second, denying he wrongfully persuaded or induced Allen to break this contract; and, third, averring that he did not, wrongfully or maliciously intending to injure the plaintiff, and deprive him of his fee, by means of any false and fraudulent statements and persuasions, induce Allen to break his contract as alleged in the fourth count. The case was tried upon issues joined on these pleas.
At the trial the testimony was all on the part of the plaintiff, no witness being examined for the defendant. Upon this the court instructed the jury that the plaintiff has offered no evidence of the utterance by the defendant of the actionable words alleged in the declaration, and, having produced no evidence to sustain the material allegations of the declaration, their verdict must be for the defendant. This instruction is equivalent to sustaining a general demurrer to the evidence, and raises the question whether there is any testimony legally sufficient to sustain any count either of the original or amended declaration. It has not been pretended that there was any evidence whatever to sustain the counts in slander; and the sole question is, was there any evidence legally sufficient to sustain the third and fourth counts? The gist of these counts is that Bolgiano, with knowledge of the contract between Ensor and Allen for a contingent fee in the damage suit, and with malice towards Ensor, induced Allen to compromise that case, and break his contract with Ensor. Now, what is the proof to sustain this charge?
The first witness was Allen. By putting him on the stand, the plaintiff vouched his credibility; but from the start his counsel cross-examined him as if he were unworthy of credit. He testified that when he made the compromise he did not know that the suit in the damage case had been entered; that he had never heard a word from Ensor on the subject; and to this he adhered throughout his examination. He says that Bolgiano sent him word that he wanted to see him about compromising the case; that, when he saw him, The witness reiterated again and again in his long examination the statement that the fact that he had not heard from Mr. Ensor was one of the reasons which induced him to make the compromise. With the same pertinacity he also said that, when Mr. Bolgiano spoke of his lawyers, he did not mention Mr. Ensor's name, and that he neither told him, nor did Mr. Bolgiano know anything, about the contract Ensor had made with him. To these statements he steadily adhered, and by no ingenuity of questioning could he be made to say the contrary.
It also appears that, prior to this suit, Allen had made an affidavit before Cole, a magistrate through whose agency Ensor had been employed in the damage case, as to what Bolgiano had said to him when the compromise was made. In reference to this affidavit, Cole says it was not made out by him from what Allen told him, but was sent to him written out by Mr. Ensor, and that Allen, after requiring some corrections to be made in it, swore to it after it was read over to him. It is needless to say that this affidavit was not of itself evidence. Allen, however, was examined in regard to it, and testified that he could neither read nor write, and that he told Cole when it was read to him, that there were some things wrong in it. One statement it contained was that "Bolgiano said he did not want Ensor to get one cent;" but as to this Allen testified that and the witness repeated several times that this was what Mr. Bolgiano said, and that he did not say what is contained in the affidavit on that subject.
The plaintiff then called Mr. Bolgiano as a witness, and proved by him that, in bringing about the compromise, he acted solely at the request of Allen, and in his interest endeavored to get the best terms he could for him, and did so, that, when he met Allen, he took the precaution to ask him if there were any third parties to consult, and he said, "No."
From this testimony, all of which, as we have said, was offered by the plaintiff himself, we think it plain that no rational mind could fairly deduce the inference necessary to support either the third or fourth count of this declaration. The whole effort on the part of the plaintiff seems to have been to induce the jury to believe that Allen, his own witness, was not entitled to credit in what he testified to on the stand, and to allow them to take as true the statements contained in an affidavit made out of court, the truth of which the witness denied, simply because at the time he testified he was in the employment of the turnpike company; and to discredit Bolgiano, also his own witness, in what he testified to, because at the time the compromise was made he was a stockholder of the company. The case differs radically from one where the witnesses on one side are contradicted by those on the other. In our opinion, a verdict in favor of the plaintiff under these counts could, in the face of this testimony, be based only upon vague suspicion or irrational conjecture, and in such case it is, according to all the authorities, the duty of the court to instruct the jury that there is no...
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