Wilms v. White

• Decision Date: 19 February 1867
• Citation: 26 Md. 380
• Parties: FREDERICK C. B. WILMS v. JULIAN WHITE, by her next friend, Hezekiah Alsip.
• Court: Maryland Court of Appeals

26 Md. 380

FREDERICK C. B. WILMS v. JULIAN WHITE, by her next friend, Hezekiah Alsip.

Court of Appeals of Maryland

February 19, 1867

The cause was argued before BOWIE, C.J., and BARTOL and GOLDSBOROUGH, JJ.

R. H Alvey for the plaintiff in error.

1. The case being brought up on writ of error, the whole record is under consideration of the court, and if there be any error not cured in the process, pleadings or judgment the plaintiff in error is entitled to avail himself of it for the reversal of the judgment. Bank v. Smith, 11 Wheat. 171. 2 Bac. Abr. 187.

2. That it was error to sue and recover judgment by prochein ami, when the party was of full age, would appear to be clear. In Com. Dig. Tit. Pleader, (2 C. 1,) in speaking of actions by infants, it is said: "So he ought to appear to be an infant, for if he sues at full age by guardian or prochein ami it is error." 2 Inst. 261. Code Art. 89, sec. 3.

2. The judgment is certainly erroneous for being rendered in the name of the prochein ami, when it appeared from the declaration that the plaintiff was of full age.

3. As to the bill of exception.

The evidence, referred to in this exception, it will. be perceived, was offered and admitted without reference to the character of the plaintiff in error, or to his rank and influence in society. It was made a naked element for enhancing the damages and making them exemplary. It is said that damages are not to be assessed merely according to the defendant's ability to pay, "for whether the payment of the amount due to the plaintiff as compensation for the injury will or will not be convenient to the defendant does not at all affect the question as to the extent of the injury done, which is the only question to be determined. The jury are to inquire, not what the defendant can pay, but what the plaintiff ought to receive." 2 Greenl. Ev. sec. 269. This evidence was admitted, not for the purpose of showing the extent of the injury suffered by the plaintiff, but for a purpose over and above that, for the purpose of enhancing and rendering exemplary the damages to be awarded by the jury. It is insisted that it was not admissible.

A K. Syester for the defendant in error.

1st. The matters stated in the nar. as constituting the cause of action are not only properly and formally averred but they constitute a substantial legal ground of action, whether charged by a feme sole above or under the age of twenty-one, and, indeed, are not assailed by the causes in arrest of judgment. The defect, mispleading or omission is not in the statement of the cause of action, but affects only the mode in which the remedy is pursued, the propriety of the suit, or the legal ability of the plaintiff to sue. The cause assigned in arrest of judgment was therefore clearly within the reach of a plea of abatement.

Whatever will defeat the present proceeding or individual suit, and, at the same time, not affect the right of action, should be pleaded in abatement. Chitty's Pl. 446. Gould's Pl. ch. 2, sec. 32, 33, pp. 41, 42. As in the case of an infant suing by attorney. Chitty's Pl. 448.

Matters that can be reached by abatement are no ground for arrest of judgment, because by denying the cause of action it is admitted that the mode in which the remedy is pursued is correct, as where a party sued as administrator durante minoritate, etc., did not allege that the executor was within the age of seventeen years. Com. Dig. Pleader, C. 85, cited in Chitty's Pl. 672. Gould's Pl., ch. 5, sec. 79, page 260, citing 6 Term, 766. 2 H. Bl. 267, 299. 1 Salk. 2.

2nd. If the above position is not correct, then the mispleading, defect or omission, not being in the statement of the cause of action, but in a collateral part of the pleading relating only to the plaintiff's right to sue by her next friend, is covered by the Statutes of Jeofails. Chitty's Pl. 683. Petersdorf Abr. 668, note.

3rd. Wherever it may be presumed that anything must of necessity have been given in evidence, the want of mentioning it in the record will not vitiate it after verdict. Ragan v. Gaither, 11 G. & J. 487. Frederick v. Lookup, 4 Burr. 2018. Bank of Metropolis v. Merrick, 8 Gill, 74, 75. Chitty's Pl. 673. Code, Art. 89, sec. 3.

A general verdict cures defective statements connected with the cause or substance of the action, (a fortiori will it cure such an omission as this,) and a motion in arrest of judgment will prevail only where no cause of action is stated. Gould Plead., ch. 10, secs. 8, 11, 12, 13, pages 494, 497. Rushton v. Aspinwall, 2 Doug. 683. 3 Bl. Com. 393-395.

As to the exception, the evidence was admissible; in such cases there is no legal standard of damages. Damages are allowed, not only to compensate the plaintiff, but to punish the defendant. Gaither v. Blowers, 11 Md. 553, and authorities collected at pages 555 and 556. Sedgwick on Meas. of Dam., Appendix. Therefore, a knowledge of the situation of the plaintiff, and the pecuniary condition of the defendant, are subjects for consideration in connection with compensation on the one hand and punishment on the other. 14 Serg. & Rawle, 359. 5 Mass. 584.

Bowie C.J., delivered the opinion of the court.

Two questions are presented by the record in this case:

1st. The sufficiency of the declaration in law.

2nd. The admissibility of certain evidence offered by the plaintiff below, and excepted to by the defendant.

After verdict, the defendant moved in arrest of judgment, which motion being overruled and judgment entered for the plaintiff below, the defendant, Wilms, sued out a writ of error.

The error assigned is that the plaintiff below sued and recovered judgment by her " prochein ami, when it appears from the record she was of full age."

The writ was issued on the 11th of September, 1863, at the suit of Julian White, by her next friend, Jacob White, returnable on the 23rd of November, 1863, when it was returned "summoned."

The defendant appeared and laid the plaintiff under rule nar.

On the 29th of January, 1864, the plaintiff declared in the name of Julian White, "by her next friend, Jacob White, by James D. Bennett, her attorney."

In this nar. it is averred, "the said Julian White is of the age of twenty years and a feme sole."

At March term, 1864, it appears from the record that "Julian White, by her said attorney," prayed leave of the court to amend the writ of summons and it was granted, and thereupon on the 8th day of March, 1864, the said plaintiff, by her attorney aforesaid, declared anew against the defendant, which declaration commences, "Julian White, by her next friend, Hezekiah Alsip, by James D. Bennett, her attorney, sues Frederick C. B. Wilms, for--

1st. The said Julian White is of the age of twenty-one years and a feme sole," etc.

It thus appears that the amended declaration to which the defendant was ruled to plead last was a nar. filed after the plaintiff became of full age, and after she had appeared by attorney, and prayed leave to amend the writ of summons.

The words, "by her next friend," in the commencement of the amended nar. being followed by the other words, "by James D. Bennett, her attorney," were obviously misrecital and mere surplusage, " utile per inutile non vitiatur, " the previous entries of the record showing she acted by attorney. This commencement of the nar. is mere recital of the writ and not a necessary part of the declaration. The Code, Art. 75, declares it shall not be necessary to state any formal commencement or conclusion to any declaration or other plea.

No general demurrer shall be allowed for a mere informal statement of a cause of action or defense, " provided such statement is sufficient in substance."

If this was a case of variance between the writ and declaration it would be cured by verdict under the old forms of pleading. Giles v. Perryman, 1 H. & G. 171. Act of 1809, ch. 153, sec. 2. And Raborg v. Bank of Col., 1 H. & G. 234, 238.

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