Pugaczewska v. Maszko

• Decision Date: 30 November 1932
• Docket Number: 25.
• Citation: 163 A. 205,163 Md. 355
• Parties: PUGACZEWSKA ET UX. v. MASZKO.
• Court: Maryland Court of Appeals

163 A. 205

163 Md. 355

PUGACZEWSKA ET UX. v. MASZKO.

No. 25.

Court of Appeals of Maryland

November 30, 1932

Appeal from Superior Court of Baltimore City; Walter I. Dawkins Judge.

Action by Mary Maszko against Michael Pugaczewska and Leokadya Pugaczewska, his wife. Judgment for plaintiff, and last-named defendant appeals.

Reversed and remanded for a new trial.

DIGGES J., dissenting.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Marion A. Figinski, of Baltimore, for appellant.

Jere J Santry, of Baltimore, for appellee.

OFFUTT J.

This is an appeal from a judgment of the superior court of Baltimore City entered on a verdict for the plaintiff in an action for assault and battery.

There was in the case evidence tending to prove these facts: Mary Maszko, Michael Pugaczewska and Leokadya Pugaczewska, his wife, all live in the Locust Point section of Baltimore City. On May 16, 1931, as the result of a quarrel between their children, Mrs. Maszko approached Mrs. Pugaczewska and complained to her of the conduct of her little boy. A quarrel followed, hard words were exchanged, which were followed by an earnest and spirited physical encounter in which Mrs. Pugaczewska, who had a child in her arms, appears to have suffered most. After that conflict was ended, Mr. Pugaczewska, who had been told that Mrs. Maszko was "killing" his wife, came running up and at once assaulted and beat Mrs. Maszko. Pugaczewska was arrested and fined, and in the following month Mrs. Maszko brought this action against him and his wife. The trial resulted in a verdict and judgment against both defendants, and from that judgment Leokadya Pugaczewska has appealed.

The record submits three exceptions: (1) To the action of the trial court in refusing to withdraw a juror and continue the case because a witness, a police officer, had stated that he had arrested Michael and that he had been fined $10 and costs; (2) to the action of the trial court in overruling a prayer for a directed verdict in favor of Leokadya Pugaczewska; and (3) to the action of the trial court in overruling appellant's motion for a new trial.

The first exception involves these facts: Sergeant Harry Earnest, a witness for the plaintiff, after testifying that the combatants had been separated when he arrived at the scene, said, "I placed him," meaning Pugaczewska, "under arrest and took him to the Southern Police Station, and he was tried that afternoon and fined ten dollars and costs." Thereupon counsel for both defendants asked "for the withdrawal of a juror for a mistrial." The testimony was obviously inadmissible as substantive evidence in chief, and would no doubt upon a proper motion have been stricken out, B. & O. R. Co. v. Strube, 111 Md. 126, 73 A. 697; but no such motion was made, and the question before us is whether the court abused its discretion in refusing under those circumstances to withdraw a juror and continue the case. The question is not wholly free from difficulty because of the form in which it is presented. The testimony of Earnest preceding and including that statement is given in narrative form, and fails to show whether the statement was made in answer to a question to which the appellant might have objected, or whether it was a mere voluntary contribution by the witness. The orderly procedure in the latter case would have been for the appellant to move that the statement be stricken out, but no such motion was made. Nevertheless as soon as the objectionable character of the statement was called to the attention of the trial judge, he should have cautioned the jury to disregard it. No such caution was given, and the question therefore is whether in refusing to withdraw a juror and continue the case under those circumstances the trial court committed reversible error. Before considering the law relating to that question, a brief reference to the evidence and the issues in the case to which the law must be applied is necessary.

The declaration is against Michael and Leokadya Pugaczewska as for a joint tort. There was evidence in the case to support the hypothesis that Michael and Leokadya had each been guilty of a several and independent assault and battery upon Mrs Maszko, but no evidence of any kind that they had committed a joint assault upon her. On the contrary, all the evidence in the case proved that the first fight, that between the two women, had ended, and that Mrs. Maszko was returning to her home before Michael Pugaczewska appeared at all. And when he did appear it was not in answer to any appeal from his wife, but as the result of a statement by a neighbor that Mrs. Maszko was "killing his wife." Nor does it appear that Mrs. Pugaczewska took any part in her husband's attack on Mrs. Maszko, or that she instigated, advised, incited, or consented to...