Sappington v. Fairfax

• Decision Date: 21 November 1919
• Docket Number: 21.
• Parties: SAPPINGTON v. FAIRFAX.
• Court: Maryland Court of Appeals

108 A. 575

135 Md. 186

SAPPINGTON v. FAIRFAX.

No. 21.

Court of Appeals of Maryland

November 21, 1919

Appeal from Circuit Court, Frederick County; Glenn H. Worthington and Edward C. Peter, Judges.

Action by Estella L. Fairfax against James Sappington of S. Judgment for plaintiff, and defendant appeals. Affirmed.

Defendant's rejected second prayer, referred to in the opinion, was as follows:

The defendant prays the court to instruct the jury that it is further necessary for the plaintiff to prove that the defendant acted with malice; and, if the jury find that the defendant did not act maliciously in the premises, but all that he did, tending towards the arrest and prosecution of the plaintiff, was done under the advice and direction of the state's attorney for Frederick county, and without malice on his part, then their verdict must be for the defendant.

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

Edward J. Smith, of Frederick, and Leo Weinberg, of Baltimore, for appellant.

Milton G. Urner, Jr., of Frederick (Reno S. Harp, of Frederick, on the brief), for appellee.

BOYD C.J.

The appellee sued the appellant for malicious prosecution and the trial resulted in a verdict for the plaintiff (appellee) for $800. From a judgment entered thereon this appeal was taken. The defendant procured a warrant for the plaintiff from a justice of the peace of Frederick county, charging her with the larceny of a gold watch and some other jewelry. She was arrested and taken before another justice of the peace, who required her to give bond for her appearance before the justice who issued the warrant. She gave bail, and appeared at police headquarters in Frederick to answer said charge and another justice, who was acting that day at police headquarters, after hearing, released her on bail to await the action of the grand jury, which failed to find an indictment, and dismissed the case. Eleven bills of exception were taken; the first nine relating to the admissibility of evidence and the tenth and eleventh presented rulings on the prayers.

The first, second, third, fourth, fifth, sixth, and seventh exceptions present the same question and can be considered together. It is whether a plaintiff in an action for malicious prosecution can offer testimony in chief to show that his reputation was good at the time of the prosecution in the community in which he lived, and where the offense was alleged to have been committed; such evidence being confined to reputation for honesty in a case of this kind, where the charge was larceny. Although we have not been referred to a decision in this state directly determining this question, we can have no doubt about its admissibility, either on reason or the adjudicated cases elsewhere. In order to recover in such actions it is incumbent on the plaintiff to prove the want of probable cause for instituting a criminal prosecution. It is true that in civil actions evidence of general reputation of the plaintiff is generally not admissible unless attacked, or the proceedings are such as put the reputation of the parties in issue; but a good reputation ought not only to be some protection against hasty, careless, or ill-founded charges of the commission of crimes, but it should demand more care and caution than when one of bad reputation is suspected. It is less probable that one who has a good reputation had committed a crime than one who has not. Although some courts only admit such testimony when it is proven that the defendant in such an action knew of the reputation the plaintiff bore, the great weight of authority does not even require direct proof of that knowledge. In this case, although the plaintiff was an humble colored woman, who did domestic work in the different homes of those employing her, she seemed to have possessed to an unusual degree the confidence of her employers and neighbors, and the wife of the appellant, for whom the appellee worked at times, was quite emphatic in what she had to say about her. This is in the record:

"Q. You had had Stella Fairfax to work at your house before? A. Yes, sir. Q. Did you consider her honest? A. Sure, I considered her honest. Q. Do you know whether or not your husband considered her honest? A. Certainly."

The defendant himself testified that he had known Stella Fairfax for a number of years; that she had been employed in their family, and they would employ her yet if she would come. There is then no such distinction in this case as some of the cases above referred to make. Among the many decisions holding that evidence of the good reputation of the plaintiff in such action is admissible are Thurkettle v. Frost, 137 Mich. 115, 100 N.W. 283, 4 Ann. Cas. 836; McIntire v. Lovering, 148 Mass. 546, 20 N.E. 191, 2 L. R. A. 517, 12 Am. St. Rep. 594; Woolworth v. Mills, 61 Wis. 44, 20 N.W. 728, 50 Am. Rep. 135; Shea v. Cloquet Lumber Co., 97 Minn. 41, 105 N.W. 552; Louisville, etc., R. Co. v. Owens, 164 Ky. 557, 175 S.W. 1039; Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78; Emory v. Egan, 75 Kan. 82, 88 P. 742; Pennsylvania Co. v. Weddle, 100 Ind. 138; Ross v. Innis, 35 Ill. 487, 85 Am. Dec. 373; Rosenkranz v. Barker, 115 Ill. 331, 3 N.E. 93, 56 Am. Rep. 169. See, also, notes to Thurkettle v. Frost, 4 Ann. Cas. 836, and to Calhoun v. Bell, Ann. Cas. 1916D, 1165, where the subject is discussed and cases in addition to the above are cited. Torch v. Dell, 88 Md. 459, 41 A. 903, was an action for malicious prosecution of the appellee, who was charged with the larceny of certain books, was indicted, tried, and acquitted. On page 466 of 88 Md., on page 905 of 41 Atl., the court said:

"It is true the books had been in the custody of the appellee, but appellants knew that he was a man whose character, as the evidence shows, was above reproach," etc.

-thus showing that this court recognized the value of good character in such cases.

It is clear, then, that such evidence is admissible. No point was made about it, but we do not want to pass by the forms of the questions without some comment. All of them ask the witnesses whether they knew the plaintiff's "reputation for honesty," etc. It was said in Sloan v. Edwards, 61 Md. 89, that-

"The long-settled practice, both in England and in this state, though departed from to some extent in a few of the states in this country, requires that the witness called to prove character, either good or bad, should be interrogated as to his means of knowledge of the general reputation of the person in question among his neighbors, and what that reputation is. The evidence must be confined to general reputation," etc.

Chief Judge Alvey quoted from 1 Greenl. on Evidence, § 461, that the witness "must be able to state what is generally said of the person by those amongst whom he dwells, or with whom he is chiefly conversant, for it is this only that constitutes the general reputation or character." Other authorities might be cited to the same effect, but we do not deem it necessary. As no objection seems to have been made to the form of the questions, and as the defendant and his wife testified to the good character of the plaintiff for honesty, we do not feel called upon to reverse the judgment by reason of the question not being in proper form, but they should always conform to the rules in this state.

The eighth exception was taken to the court, permitting the state's attorney for Frederick county to answer on cross-examination the following question:

"Did you or not hear Mr. Sappington say on that occasion, not under oath, and while not testifying on oath 'We will prove it or I will prove it,' or, 'I will get the evidence, or something to that effect'?"

The occasion referred to was when the plaintiff was before the justice of the peace, who held her for action of the grand jury. We can see no possible objection to that question. It reflected upon the action of the defendant in reference to the prosecution. The defendant had proved by the state's attorney that Mr. Sappington had appeared before the grand jury in pursuance of a summons that was issued. The object of such evidence could only have been to show that the defendant in further prosecution of the case was only doing what he was required to do. If the plaintiff recovered, it was important to show, if she could, that even after she had been taken before the justice the defendant asserted that they...