Shockey v. McCauley

• Decision Date: 20 June 1905
• Citation: 61 A. 583,101 Md. 461
• Parties: SHOCKEY v. McCAULEY.
• Court: Maryland Court of Appeals

61 A. 583

101 Md. 461

SHOCKEY v. McCAULEY.

Court of Appeals of Maryland

June 20, 1905

Appeal from Circuit Court, Carroll County; Wm.H. Thomas, Judge.

Action by Jacob S. McCauley against Abram H. Shockey. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE, and SCHMUCKER, JJ.

J Clarence Lane and Charles A. Little, for appellant.

James A.C. Bond and Charles D. Wagaman, for appellee.

PAGE J.

This is an action of slander, brought by the appellee against the appellant, for words spoken by the latter of the former. The words alleged to have been spoken are, "He [meaning the appellee] stole them pulleys," "he stole them pulleys and trip rope." and "he stole the pulleys and rope." There is no inducement, showing the connection in which the words were used, nor innuendo or colloquium, set out in the declaration. The plea was the general issue. Judgment was for the appellee, and the defendant has appealed.

There can be no dispute that the words set out in the narr according to their usual meaning, are actionable per se. Unexplained, they import that the appellee was guilty of larceny. The first prayer of the appellee was therefore properly granted.

Exception was taken by the appellant to the granting of the appellee's third prayer, by which the jury was instructed that, if they found for the appellee, they were at liberty in their discretion, to award punitive as well as compensatory damages. It is difficult to assign any substantial reason why it should not have been granted. If the words were uttered in the presence of other persons, they are actionable per se, and carry with them the legal imputation of malice. Long v. Eakle, 4 Md. 458. There was no evidence tending to rebut this imputation. This court, in Fresh v. Cutter, 73 Md. 95, 20 A. 774, 10 L.R.A. 67, 25 Am.St.Rep. 575, referred to the case of Padgett v. Sweeting, 65 Md. 404, 4 A. 887, where an instruction like the one here was approved. It then said: "Under the conditions in Padgett's Case, the instructions were proper, but would not be in a case when there was evidence which tended to show that the libel was honestly made." Coffin v. Brown, 94 Md. 195, 50 A. 567, 55 L.R.A. 732, 89 Am.St.Rep. 422.

The appellant offered four prayers, of which the first was conceded, and the second, third, and fourth were rejected. The second was that if the jury find the words were spoken solely with reference to the removal of the pulleys and ropes from the defendant's barn, and were not intended by the defendant and were not understood by the bystanders to charge the plaintiff with committing felony, then the plaintiff is not entitled to recover more than nominal damages. The fourth prayer was that if the jury found that the words were spoken solely with reference to the pulleys and rope belonging to the barn, and were not intended by the defendant and not understood by the bystanders to charge the plaintiff with having committed a felony or other crime punishable corporally, the plaintiff was not entitled to recover at all. The facts of the case, as disclosed by the evidence contained in the record, show: That the appellee was a tenant of the appellant, and had been notified by the latter to leave the farm in March. On the 31st of that month, when the appellee was getting ready to leave the farm on the following day, the appellant and his brother, with one other man, were at the farmhouse to collect a bill for "ropes, pulleys, and hay." The parties had previously had "considerable trouble," and "several lawsuits before magistrates." The appellee asked to see the bill, and declined to pay until it was shown him; but the appellant refused to permit him to look at it. That the appellant wanted the appellee to step outside, and said, if the appellee would not come out, he would come in. The appellee told him not to come in, and put his foot against the door to prevent him and those with him from coming in, "and said, if they came in, he would hit them. Defendant stepped up on door, and the appellee stepped back and picked up a window blind roll." The appellant then said "Don't talk to a fool. Come on! we will make him pay for it," etc. The appellant did some cursing, and after quarreling started off, saying as he went, in the hearing of the others, "Jake stole them ropes and pulleys," and his brother Samuel said, "Yes, he did." The appellant testified that the bill contained a charge for "ropes and pulleys" belonging to the "hay fixtures" in the barn. There was also evidence that they were "fast property"; but there was no explanation as to what was meant by "fast property." There was no proof that the words were uttered solely with reference to the hay fork and pulleys, while attached to the barn, or that anything was said from which the bystanders could or did so understand them. ...