Mertens v. Mueller
| Decision Date | 14 January 1914 |
| Citation | 89 A. 613,122 Md. 313 |
| Parties | MERTENS v. MUELLER. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.
"To be officially reported."
Action by Walter E. Mueller against John H. Mertens. From a judgment for plaintiff, defendant appeals. Affirmed.
D. L Sloan and George A. Pearre, both of Cumberland (Ferdinand Williams and David A. Robb, both of Cumberland, and Lane & Keedy, of Hagerstown, on the brief), for appellant.
Wilbur V. Wilson and F. Brooke Whiting, both of Cumberland (Whiting & Eppler, of Cumberland, and Wagaman & Wagaman, of Hagerstown, on the brief), for appellee.
This is a suit for malicious prosecution, and it is now before this court upon a second appeal; the first having resulted in a reversal of the judgment and the award of a new trial. The action is predicated upon the arrest, indictment, and acquittal of the plaintiff in a prosecution for the alleged larceny of a number of small apple tree clippings produced by the pruning of the trees for planting in the orchards belonging to the firm of F. Mertens Sons, in which the defendant was a copartner. In each instance the case has been brought to this court on appeal from a judgment in favor of the plaintiff for substantial damages. The material facts and the general principles of law governing the case, were fully and clearly stated by Judge Stockbridge in the former opinion, reported in 119 Md. 530, 87 A. 501.
The first exception is not important. It appears that the plaintiff, when testifying in chief, was asked whether he had any conversation with the defendant in reference to saving the clippings. An affirmative reply being given, he was requested to give the conversation. The defendant objected on the ground that the question as to this feature of the case was not whether the clippings were authorized to be saved but whether they were obtained by the plaintiff in pursuance of a gift, as he alleged. The answer to the interrogatory was to the effect that the suggestion was made to the defendant that the clippings be saved and used as scions in the propagation of trees for the orchards, and, upon his stating that he did not care to act upon the suggestion, the plaintiff asked and was granted permission to save the scions for his own use. It is apparent that the conversation thus narrated was pertinent to the issue as to the existence of probable cause for the prosecution of the plaintiff upon the charge stated, and the question was not objectionable merely because it identified the conversation as relating to the saving rather than to the giving of the scions.
The plaintiff testified that he and several workmen collected a number of the clippings and took them to one of the orchard camps, where they were packed in sawdust in two soap boxes and left in the basement of the barn in which the camp was located. In order to show that there was no concealment or criminal intent in this disposition of the scions, the plaintiff was allowed to testify, over the defendant's objection, that there were 75 men about the camp at the time. The admission of this testimony, which is the subject of the second exception, was clearly proper.
It was in evidence that the scions collected by the plaintiff were stored, in the manner and place described, in November, 1910, and that he left the service of the defendant's farm the next month, when the work closed for the winter, and went to his home in Wisconsin, where he remained until the following February, when he returned to Maryland. In the course of the plaintiff's testimony, he was asked what he did upon his return. The overruling of an objection to this question is the basis of the third exception. The answer was that he took options on four tracts of land. This fact in itself would seem to be immaterial, but its relevancy is made apparent by the testimony of a later witness that the defendant after the plaintiff's arrest, and before his trial, stated to the witness that the plaintiff "had some options that they wanted to get a hold of, and that they wanted to get rid of this fellow." A very important inquiry in the case was whether the defendant aided and abetted the prosecution after it was begun, even though it might be found that he did not give directions in the first instance to the employé of the firm who swore out the warrant for the arrest. The mental attitude of the defendant towards the plaintiff at the time, as indicated by the statement quoted, would be a circumstance to be considered, in connection with other evidence hereafter to be mentioned, as reflecting upon the question we have stated, and, as the expression attributed to the defendant referred to the procurement by the plaintiff of options upon land desired by the defendant's firm, it was competent to account for such a statement by proving as a preliminary fact that the plaintiff had in reality secured the options. This view applies also to the tenth exception, which relates to the same subject.
The fourth exception was taken to the admission of testimony by the plaintiff that reports of his arrest were published in the Cumberland papers. No objection is made to this evidence on the ground that copies of the papers were not produced. But the ruling is said to be opposed to the principle of the case of Garvey v. Wayson, 42 Md. 187, in which evidence that, in accordance with the usual practice, the name of the party under arrest had been entered upon the police records was held to be inadmissible to show the publicity of the accusation, unless there was some law requiring such a record to be kept, or unless the defendant could be shown to have been aware that, in consequence of the charge he was preferring, the name of the accused would be so entered. The qualifications thus imposed upon the rule applied in that case appear to support the admissibility of the evidence now being considered. There was ample reason for any one connected with the prosecution to anticipate that it would be reported in the newspapers, and we think the plaintiff was entitled to prove such publication in support of the averment of the declaration that as a result of the proceeding he was "greatly injured in his credit and reputation and brought into public scandal, infamy, and disgrace." 26 Cyc. 102; Filer v. Smith, 96 Mich. 355, 55 N.W. 999, 35 Am. St. Rep. 603; Minneapolis Threshing Machine Co. v. Regier, 51 Neb. 402, 70 N.W. 934.
The question raised in the fifth bill of exceptions is in reference to the competency of testimony by another employé at the orchard as to the directions given by the plaintiff to some of the workmen for the collection of the clippings. This was objected to as being hearsay. The effect of the testimony was to show that the plaintiff's open and public method of saving the scions for his own use was altogether inconsistent with the theory that he was preparing to secure them by committing the crime of larceny. We see no error in this ruling.
No answer appears to have been given to the question to which the sixth exception refers, and the propriety of the court's action in permitting it to be asked is therefore not reviewable. Moneyweight Scale Co. v. McCormick, 109 Md. 185, 72 A. 537.
The warrant for the arrest of the plaintiff was issued upon the affidavit of John W. George, one of the employés of the defendant's firm engaged in the development of the orchard. A witness by the name of John Bell was permitted to testify that he was employed by Mr. George to arrest the plaintiff, and that this employment had continued for several days prior to a conversation with the defendant which he had already narrated. In his testimony as to this conversation, which was stated to have occurred between the issuing of the warrant and the arrest, the defendant was quoted as inquiring of the witness whether he had seen the plaintiff yet, and, upon receiving a negative answer, remarked, "We will get him." It is evident that this declaration becomes more significant, as an item of...
To continue reading
Request your trial