Vernon v. Tucker

• Decision Date: 15 April 1869
• Parties: GEORGE W. F. VERNON v. LAURA V. TUCKER, by EDWARD F. TUCKER, her next friend.
• Court: Maryland Court of Appeals

30 Md. 456

GEORGE W. F. VERNON v. LAURA V. TUCKER, by EDWARD F. TUCKER, her next friend.

Court of Appeals of Maryland

April 15, 1869

APPEAL from the Circuit Court for Frederick County.

This was action of assault and battery brought by Laura V. Tucker, an infant, against the appellant.

The defendant having been summoned, and his appearance entered by the Court, under sec. 85, Art. 75, of the Code of Public General Laws, the plaintiff, by her attorney, moved to prosecute said suit by Edward F. Tucker, as her prochein ami. Without any order of Court being passed on said motion, the declaration was filed in the name of Laura V Tucker, by Edward F. Tucker, her next friend.

Pleas were filed to this nar., upon which issue was joined, and the cause tried. A verdict was rendered in favor of the plaintiff, whereupon the defendant filed a motion in arrest of judgment, based upon the fact of the writ having been issued in the name of Laura V. Tucker, and the declaration (to which the subsequent pleadings and the verdict conformed,) being in the name of Laura, as suing by her next friend.

The Court overruled this motion, and this appeal was taken by the defendant from the action of the Court in this respect, and also in regard to certain questions of evidence raised at the trial, and presented by two bills of exceptions, the nature of which is stated in the opinion of this Court.

The cause was argued before STEWART, GRASON, MILLER, ALVEY and ROBINSON, J.

William P. Maulsby, for the appellant:

Contradiction among witnesses examined in Court, supplies no ground for admitting general evidence as to character. 1 Greenleaf's Evidence, sec. 469; Russell vs Coffin, 8 Pick., 143, 154.

Evidence of general character for truth, is not admissible, until the general character of the witness shall have been first impeached. Dodd vs. Norris, 3 Campbell, 518; The People vs. Hulse, 3 Hill, 309, 313; Starks vs. The People, 5 Denio, 106, 108; The People vs. Rector, 19 Wendell, 569, 579; Werty vs. May, 21 Penn., 274, 279; The People vs. Gay, 3 Selden, 378; Hamilton vs. Conyers, 28 Georgia, 276.

The question presented by the second exception, is as to the competency of the evidence offered by Josiah Ramsburg. The plaintiff had been permitted to prove general character for truth, &c. The defendant then produced Ramsburg, and asked whether he knew the general character of the plaintiff, Laura V., for truth, &c., from what people of the neighborhood said of her general character? He answered that, as a general thing, he avoided the subject of his neighbors' characters, and he could not say that he had heard the neighbors generally speak of her general character, but that he had heard several of the neighbors speak of her character for truth and veracity. The defendant then proposed to prove by him the general character for truth, &c., of said Laura V., from what the several neighbors had said of it, but the Court rejected the proof.

It is manifest that the witness, Ramsburg, was only more careful than witnesses frequently are, to state fully the foundation of his knowledge, before he was willing to state the result. But nevertheless, the foundation was sufficient. It consisted in what several of the neighbors had said,-- all of the neighbors whom he had heard speak on the subject. On cross-examination, it may have been competent for the plaintiff so to have narrowed the foundation of the witness' proof as to have excluded it for want of sufficient foundation; but, as shewn by the Record, the only question now is, whether the foundation was prima facie sufficient? 1 Greenleaf's Ev., sec. 461; Phillips vs. Kingfield, 19 Maine, 375.

The rule is, that character for truth must be proved as a fact to go, with other facts and circumstances in evidence, to the jury, to enable it to form an opinion on the credit due to the witness. The fact of the existence of the character whether universal amongst all the neighbors of the witness, or more or less contracted in its dimensions--whether discussed by all, by many, or by fewer, so only that it be not by two or three merely, but partakes of the nature of general reputation, ought to be given to the jury as a fact tending to the point in question, and aiding the jury to arrive at a correct opinion. Dare vs. The State, 22 Alabama, 23-36; Hadjo vs. Gooden, 13 Alabama, 718-721; Martin's Ex'r. vs. Martin, 25 Alabama, 201-211; Boone vs. Weathered, 23 Texas 675-680, &c.

After verdict for the plaintiff, a motion was made in arrest of judgment, on the ground that the suit was brought by the infant, and the nar. was filed by a next friend named therein, and consequently that Laura V., the infant, could not have judgment, because she had not declared, and Edward F. could not have judgment, because there was no writ on which it could be supported.

By 21 Jac. I., Ch. 13, sec. 2, it is provided that judgment shall not be arrested by reason that the plaintiff, being an infant, did appear by attorney.

In this case Laura, the plaintiff, appeared by attorney, and sued out the writ. It may be that if she had conducted her suit by attorney, and no plea in abatement had been pleaded, and recovered verdict, a judgment thereon would have been good. But in the next necessary stage of her action, filing a nar., she appeared by next friend, and by the nar. her infancy was disclosed. An infant must sue by prochein ami or guardian. 1 Tidd's Pr., 99; Evans' Pr., 133, (old ed.)

William P. Maulsby, for the appellant:

In Maryland practice no appointment by Judge or Court is required. But in any case, the suit must be brought in the name of the next friend; that is, the writ must be so issued; and it is not competent to the Court even to appoint a next friend after writ issued. Under our Statute, the writ might perhaps have been amended, by inserting the name of a next friend, but that was not done in this case. After compulsory appearance of the defendant, a motion was made to the Court for the appointment of a next friend to prosecute the suit, and no action appears to have been had on the motion, but the effect would be the same, whether the Court did or did not act on the motion. As the record stands, Laura V. sued out the writ, and Edward F. declared, and a judgment cannot be entered in favor of either the one or the other.

John Ritchie and Frederick J. Nelson, for the appellee:

In reply to the appellant's first point: While conceding that mere contradictions among witnesses may not be ground for offering evidence as to general character, and as a foundation for doing so, the general character of the witness must first have been impeached; it is submitted, that this impeachment may be effected without directly and professedly assailing it; and that whenever the character or credit of the witness is substantially put in issue, and is in fact the real point of attack, whether avowedly or covertly, general evidence in its support may be offered in reply. Starkie on Evid., (Sharswood,) 252; 1 Greenleaf on Evid., 461, 469; Rex vs. Clark, 2 Stark, 241; Paine vs. Tilden, 20 Verm., 554; Hadjo vs. Gooden, 13 Ala., 718; Sweet vs. Sherman, 21 Verm., 23; The People vs. Rector, 19 Wendell, 569.

With the appellant's proposition, qualified as above, most of his authorities are not irreconcilable with those just cited.

The real inquiry is,...