Eschbach v. Hurtt ex rel. Applegarth , 47 Md. 61 ( 1877 )

Miller, J.,

delivered the opinion of the Court.

This is an action for malicious prosecution, brought by the appellee against the appellant. The declaration avers in substance, that the defendant falsely and maliciously and without any reasonable or probable cause, charged the plaintiff with having obtained from him four dollars under false pretences, and on this charge, caused him to he arrested, and brought before a justice of the peace, and detained and imprisoned until he was discharged by the magistrate. It then in its allegations respecting damages, avers and charges that by reason of the premises, the plaintiff hath been, and is greatly injured in his credit and reputation, and brought into public scandal, infamy and disgrace ; that he has suffered great anxiety and pain of body and mind; that he has been forced to expend large sums of money in defending himself from this accusation and manifesting his innocence ; that he has been greatly hindered and prevented from following and transacting his lawful necessary affairs and business, and hath been and is otherwise greatly injured in his credit and circumstances.' The plea was non cul., and at the trial, a single exception was taken to the rejection of evidence, which was offered on the part of the defendant. ¡

The question which the defendant’s counsel insist that this exception presents, and which they have argued with great ability is, whether under the declaration in this case, and the issue joined on the plea of not guilty, evidence of the had reputation of the plaintiff for honesty and integrity is admissible, either as tending to show probable cause, or in mitigation of damages ? The exact question thus discussed, has never been expressly adjudicated in this State, and it must be conceded that elsewhere there is much conflict of authority upon the subject. But we do not propose to review the numerous cases that have been cited in argument, nor to express any opinion as to the admissibility of such evidence, because in our judgment, that question is not presented by the ruling of the Superior Court, to which the defendant excepted. We may observe, however, that the present state of the English adjudications on this subject, is thus laid down in Addison on Torts, (4th Eng. Ed.,) 767 ; “ when the plaintiff in his declaration avers that up to the time of the prosecution by the defendant, he had borne a good character, and claims damages for injury to Ms character, it may be shown on cross-examination of the plaintiff’s witnesses, that he was at the time a man of notoriously bad character. But where the plaintiff does not in his declaration claim damages in respect of injury to reputation, general evidence of the plaintiff’s character is inadmissible. Such general evidence affords no proof of probable cause for a prosecution.”

But as we have said the question is not raised by the exception, and this we shall proceed to show. The record states that the plaintiff, to sustain the issue joined on his part, offered testimony tending to prove that he carried on the business of selling wood and coal by taking orders at No. 2 North street, in Baltimore City, but owned no wood and coal of his own, and that he had been engaged in the business for some ten years : he then offered testimony tending to prove the allegations of the declaration but offered no testimony as to his general reputation. After the plaintiff had closed, the defendant offered to produce testimony tending to prove that the plaintiff’s reputation for credit was bad, and that his reputation for honesty was bad before the said charge was made against him by the defendant, and for this purpose called James Diggs as a witness, and put to him this question, “ Do you know the standing of George W. Hurtt for credit and honesty among the men and parties in the same business with him in this community ?” To this question the plaintiff’s counsel objected and the Court sustained the objection. The Judge then proceeded to give his reasons for this ruling sustaining the objection to this question, and said the “ gravamen of the action was the false imprisonment of the plaintiff with malice and without probable cause, and that the averment in the narr. with reference to his good repute, was matter of inducement and not traversable; the question of charaoter therefore was not inJüsjisq-a.nd the.jsvidence proposed to be given was inadmissible. ’ ’ The defendant then (as the exception states) through his counsel excepted to the Court’s ruling, and the exception was duly signed. Now whether the reasons which the Court gave in support of the ruling ejpcepted to were erroneous or not is wholly immaterial. /What this Court must determine is whether the testimony offered was admissible, and not whether a right or wrong reaáon~was- assigned for its rejection^ What then was the testimony actually offered and rejected? It was simply an offer to prove hy the witness, Diggs, then on the stand, (if he could have so testified,) that the plaintiff’s reputation for credit and honesty among those in the same business with him in the City of Baltimore was bad. To the question hy which it was sought to elicit from the witness this testimony the plaintiff objected, and it was this objection which the Court sustained. ^íhe sustaining of this objection and the refusal to allow this question to be put to the witness was the ruling which the Couq’t was called upon to make and did make, and to which the defendant excepted and which alone is before us for review^ But it is clear that evidence of the plaintiff’s bad reputation among a particular class of persons is not admissible in such an action. No case can be found to sustain the admission of such testimony. None of the decisions go further than to say that the general bad reputation or the notoriously bad cKaracter of the plaintiff may he admitted.

We must therefore affirm this judgment whatever may be our opinion upon the general question argued at bar. If the defendant had at the trial witnesses who could have proved the plaintiff’s general bad repute or notoriously bad character, for honesty or integrity before he made the criminal charge against him, it was his duty to have called them,mr one of them, to the stand and propounded appropriate questions for the purpose of eliciting such proof, and then upon objection made and sustained by the Court and an exception taken, the question would have been presented for review in this Court, and it would have been a real and substantial question in the cause. But if he had no witnesses -really so to testify he was not injured by the ojnnion the Court expressed, even though it were erroneous and the subject of an exception. It was not competent for him simply to make an offer of proof which he had no witnesses to sustain, and insist upon the Court deciding the question which that offer raised, for that -would be invoking from the Court below and from this Court a decision upon a mere moot question. If such a practice were allowed it would be quite possible for a party without, having any witnesses at all to the point, to raise any controverted or difficult question as to the admissibility of evidence, which the cause on trial admitted of, and obtain a reversal of the judgment against him, if the Court below should, in the opinion of this Court have ruled erroneously on such a question. Nor was it competent for the defendant, as the exception shows was the case, to make an offer of proof, without stating he could sustain it by a competent witness, and for the purpose of sustaining it, produce a witness who could only prove quite a different thing and whose testimony was clearly inadmissible, and then because the Court rejected the testimony of such a witness, complain that besides rejecting it the Court expressed an opinion-that the proof contained in such general offer would be inadmissible even if witnesses should be called who could support it by their testimony. We should therefore be compelled to affirm this judgment, even if we were of opinion that under this declaration, and on the issue joined on the plea of not guilty, evidence of the general bad reputation of the plaintiff was admissible.

(Decided June 15th, 1877.)

Judgment affirmed.