Martin v. Moore , 99 Md. 41 ( 1904 )

The appellant on the 25th day of October, 1902, brought an action to recover damages for an alleged assault and battery against the appellee, and others, in the Circuit Court for Anne Arundel County. The suit was instituted against the Board of Managers of the Maryland House of Correction, J. Jesse Moore, its Superintendent, and George T. Mitchell, W. Randolph Cunningham and Thomas Gehr, employees of the institution.

On the 23rd of October, 1903, a demurrer to the declaration was sustained and the narr. was amended by striking out the Board of Managers of the Maryland House of Correction as a party defendant. Mitchell and Gehr, two of the defendants, were returned non sunt, and the case proceeded to trial against the appellees. The judgment being for the defendants, the plaintiff has appealed.

Four exceptions were reserved by the plaintiff during the trial of the case. Three of these were to the admissibility of testimony and the fourth as to the ruling of the Court upon the prayer, granted at the conclusion of the plaintiff's case, which instructed the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover against the defendants.

The principal question presented by the appellant in his brief, and urged in argument in this Court, is whether or not the Court committed an error in granting the prayer which withdrew the case from the jury.

The facts of the case, as set out in the record, are as follows: The plaintiff, a minor, had been committed to the Maryland House of Correction by a Justice of the Peace of the State for a period of thirty days. On the 2nd day of September, 1902, he was brought before Mr. Moore, the superintendent, charged with disorderly conduct in his cell at night, and was directed to be punished for the offence, as prescribed by the rules of the institution. According to the plaintiff's testimony, as stated in the record, "I was taken at seven o'clock in the morning, before the defendants and the two men named Mitchell and Gehr (I think), and was accused of yelling out in the cell during the preceding night. Mr. Moore told Mitchell and Gehr to take me back an "punish me and beat me." I protested that I was not guilty of making the noise in the night, but Mr. Jesse Moore directed his subordinates Mitchell and Gehr to take me back and punish me and beat me. Mr. Moore then went to his breakfast in the next room. He further testified that he was taken in a room, stripped of his clothing and given five lashes with a cat-o'-nine tails, each lash made nine welts; that the punishment was administered in a cruel and brutal manner by a man named Gehr, and that he sustained severe and permament in juries from the punishment.

There are other facts contained in the record but these appear to us all that are material to dispose of the questions presented in the case.

As to the defendant Cunningham, the record contains no testimony whatever tending to show that he was present or was in any way connected with the alleged assault, and we do not understand that it is seriously contended that there can be a recovery against him.

The appellant, however, insists that the Court below committed an error in withdrawing the case from the jury, because according to the evidence, Moore, the Superintendent, not only directed the punishment of the plaintiff, but was present aiding and abetting the assault. The testimony, however, fails to support this claim. Conceding the truth of the whole testimony on the part of the plaintiff, we do not think it was legally sufficient to entitle the plaintiff to recover.

The plaintiff testified that the punishment was inflicted by a man named Gehr, and the direction of the Superintendent was that he should be taken back and punished for a violation of the rules. And that after giving the order, the defendant (Moore) went to his breakfast in an adjoining room. There is nothing in the evidence in this case to show, even if it be admitted that the punishment was inflicted in a willful, malicious and excessive manner, that the defendant (Moore) was responsible for the wrongful act.

The theory of the appellant's case is that the relation of master and servant existed between Gehr, and the defendant, Moore, and not withstanding the fact that the latter did not direct or witness the alleged assault, being in an adjoining room, he is liable for the tortious acts of his agent. We fail to perceive upon what ground, it can be urged, that the relation of master and servant existed between these persons. But the answer to this contention is that there is nothing in the evidence here tending to show that the defendant either authorized or sanctioned an assault, as charged in the case.

The principle enunciated by our predecessors in the case ofPerry v. The House of Refuge, 63 Md. 21, and relied upon by the appellant has no application to the facts of this case. In that case it was held that the House of Refuge, being a corporation instituted for charitable purposes, cannot be made liable in an action for damages for an assault committed by one of its officers, on one of its inmates, but they must be recovered from the wrong-doer. In this case there is no evidence that an assault was committed by either of the defendants, or was authorized by them, and the Court below committed no error in withdrawing the case from the jury. It is well settled by all the cases that whenever the testimony adduced by the plaintiff is so light and inconclusive that no rational mind can infer from it the fact which it is offered to establish, it is the duty of the Court to withdraw the case from the consideration of the jury.

Nor do we find any reversible error in the rulings of the Court embraced in the first, second and third bills of exception. These exceptions were not pressed in the argument of the case and are not alluded to at all in the appellant's brief.

There was no proof of the correctness of the photograph taken of the plaintiff on the day of the alleged assault, and which was offered as evidence on the part of the plaintiff. This constitutes the first exception, and there was no error in the ruling of the Court in sustaining the objection. Dederichs v.Salt Lake City R.R. Co., 35 L.R.A. 802, and cases there cited.

The second and third exceptions were taken to the following questions asked the plaintiff on cross-examination: "What were you doing in the House of Correction on September 2d 1902 and how long had you been there?" The Court overruled these objections and allowed the questions to be answered, and the witness replied, "I was taken to the House of Correction by a detective on a commitment of a Justice of the Peace, and was there thirty-four days."

It appears that the plaintiff had testified in his examination in chief, that he was in the House of Correction on the 2nd of September, 1902, and had been released after the whipping on a writ of habeas corpus. The answers to the questions objected to could not in any way have injured his case. Besides this, they were proper questions on cross-examination.

It follows from what we have said, that the judgment will be affirmed.

Judgment affirmed with costs.

(Decided March 23rd, 1904.)