McNamara v. Pabst

• Decision Date: 12 January 1921
• Docket Number: 49.
• Citation: 112 A. 812,137 Md. 468
• Parties: McNAMARA et al. v. PABST.
• Court: Maryland Court of Appeals

112 A. 812

137 Md. 468

McNAMARA et al. v. PABST.

No. 49.

Court of Appeals of Maryland

January 12, 1921

Appeal from Court of Common Pleas of Baltimore City; Chas. W Heuisler, Judge.

"To be officially reported."

Suit for malicious prosecution by Richard Pabst against Annie McNamara and Edward Hildebrand. Judgment for plaintiff against both defendants, and defendants appeal. Reversed as to Edward Hildebrand without a new trial, and affirmed as to Annie McNamara.

Argued before BOYD, C.J., and THOMAS, PATTISON, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.

Eugene Frederick, of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellants.

Harry W. Nice and Edwin T. Dickerson, both of Baltimore (Dickerson & Nice, J. Calvin Carney, and C. Milton Dickerson, all of Baltimore, on the brief), for appellee.

THOMAS J.

This appeal is from a judgment in favor of the plaintiff in a suit for malicious prosecution, and the only exception in the record is to the ruling of the court below on the prayers.

The plaintiff, who states that he was a "first-class automobile mechanic," in May, 1918, owned a "Powerplus Indian" motorcycle of the 1907 model for which, according to his testimony, he had paid $350, and which he had used for 13 months. The plaintiff further testified that on Saturday evening, May 14, 1918, about 7 o'clock, he sold the motorcycle at his home to Edward Hildebrand, a young man about 20 years of age, and one of the appellants in this case, for $175; that he told Hildebrand that the motorcycle was "in absolute first-class condition," and agreed to give him instructions at 11 o'clock Sunday morning; that after Hildebrand agreed to take it he took Hildebrand and his friend for a ride on it that night, and then took Hildebrand to his home, where he left the machine, and where Hildebrand paid him $160 on account of the purchase price, and agreed to pay the balance of $15 in the next two weeks; that the following Tuesday Hildebrand and his mother, Mrs. McNamara, came to his house to see him; that Mrs. McNamara told him that the machine was not in good condition, that some parts of it were broken etc., and asked him to give her son back the money, as he was dissatisfied with it; that when he told Mrs. McNamara that he would not "give the money back," she started to cry, and said she thought it was a dirty trick, and "that she was either going to get her money back or have" him "sent to jail," and that he told her she could help herself; that he saw Mrs. McNamara again the following day at his home, and that she again made the same statement to him; that he was arrested the following Friday and taken to the Northeastern Police Station, and that after a hearing, at which Mrs. McNamara, Hildebrand, and Joseph Suzan testified, he was sent to the courthouse, and from there to the Baltimore City jail, where he remained until he was released on bail about 1 o'clock on the same day; that he did not testify before the police justice, who told him "that he would have to hold the case for court." The plaintiff also proved that he was "charged on the oath of Annie McNamara with obtaining $160 *** from Edward Hildebrand by means of false pretense on the 4th of May, 1918"; that Annie McNamara and Officer John Patterson were the names of the witnesses for the state on the commitment; that Hildebrand and Joseph Suzan were by order of the state's attorney subsequently summoned as state's witnesses before the grand jury; and that the case was dismissed by the grand jury.

According to the testimony of the defendants, Joseph Suzan told Hildebrand on the first Saturday in May, 1918, that the plaintiff wanted to sell his motorcycle, and Hildebrand went to the plaintiff's house that night with Suzan to buy it. The motorcycle was in the plaintiff's yard, and it was too dark for Hildebrand to examine it carefully that night. The plaintiff told Hildebrand that it was in a first-class condition, and that if it was not in that condition he would give Hildebrand "the money back." On Sunday morning Hildebrand discovered that the machine was not in good condition, and that it could not be ridden, and on the same day he told the plaintiff that it was not in good condition, and asked him to give him back the money, and the plaintiff said he had spent it-bought a suit of clothes with it-and that he would not give it back. Mrs. McNamara did not see the motorcycle until Sunday morning, and after she saw it she and her son went to see the plaintiff at his home, and she asked the plaintiff to live up to his bargain, but he refused to return any of the money. After going to see the plaintiff and the plaintiff's mother, and after the plaintiff refused to return any of the money, Mrs. McNamara, according to her testimony, concluded not to bother about it any more, but her "insurance man, Mr. Wagner," happened to come in the next day, and she told him about it, and he advised her to go and see the squire at the station house and have a talk with him. She further testified that she accordingly went to the station house to see Justice Dawkins on Wednesday, and explained the matter to him, and that he said he would issue a warrant; that she never made the threat testified to by the plaintiff; that she appeared before the justice of the peace on the day of the hearing, and that she was summoned to appear, but was not called, before the grand jury. On cross-examination she said that she told the plaintiff's mother that if the plaintiff would return $100 he could have the motorcycle and keep the other $60, and that when she first saw the motorcycle that Sunday morning she told her son that it looked "like it was all broke." It further appears from the evidence that Hildebrand did not go to the station house with his mother on the day she swore out the warrant; that he was there on the day of the hearing because he "was summoned up there because" he bought the motor, and that he was not in the grand jury room. The testimony of Hildebrand as to the terms of the contract of purchase was fully corroborated by Joseph Suzan, who testified that he told Hildebrand that the motorcycle was for sale, and went with him to the plaintiff's house Saturday night to purchase it. He said further that the plaintiff represented the machine to be in good condition, and told Hildebrand if he was not satisfied with it he would give him back the money. Officer Patterson, who arrested the plaintiff, testified that the plaintiff asked him if he could do anything for him, and that when he replied that it would depend upon "how he made the deal," the plaintiff said that the price was a "little stiff," and that he would have given some of the money back if they had not had him arrested.

The suit was brought against both Mrs. McNamara and Hildebrand, and at the conclusion of the testimony the plaintiff offered three prayers, which were granted, and the defendants offered three, only one of which, the third, was granted.

Plaintiff's first prayer was approved by this court in Torsch v Dell, 88 Md. 459, 41 A. 903, Mertens v. Mueller, ...