Wilms v. White ex rel. Alsip

Bowie, C. J.,

delivered the opinion of this 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.”

*386 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 alter 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 nonvitiatur,” the previous entries of the record showing she acted by attorney. Thi3 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 defence, “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 vs. Perryman, 1 H. & G., 171 . 1809, ch. 153, sec, 2. And Raborg vs. Bank of Col., 1 H. & G., 234, 238.

*387 In a O'urt of general jurisdiction, a defendant, if he wishes to avail himself of the plaintiff's incapacity to sue, an list do so by plea in abatement. Shivers vs. Wilson, 5 H. & J., 132 .

In the case of Graham vs. Fahnestock, the defendant pleaded in bar, without verification under oath, that at the time of the commencement of the action, “the plaintiff who declared by attorney, and not by guardian or next friend, was an infant,” the plaintiff moved that the plea be rejected, which was done. Upon appeal this Court held the plea was properly rejected, the subject of the plea was matter in abatement, and not in bar, and it was not verified by affidavit, without which, it could not have been received.

The error relied upon here, is not that, being in fact an infant, she sued by attorney, but being in fact an adult, the plaintiff sued by “proohein ami.” It is an objection to the form of the process, and not to the cause of action, and being in the nature of a dilatory plea, is not favored in law. If a party may pretermit the opportunity of pleading in abatement, proceed to trial, and failing in his defence on the merits, after verdict, raise objections of form, rather than substance, irreparable injury might he inflicted. Such is not the principle of pleading at the present day.

The plaintiff below, after offering evidence tending to prove the defamatory words charged in the declaration, and circumstances of aggravation, proposed to prove what were the pecuniary circumstances of the defendant below, that he was a man of wealth, with a view to exemplary -damages, to which the defendant below objected as irrelevant and inadmissible testimony, and his objection being overruled, prayed leave to except.

The ground of this exception is, if we correctly apprehend the argument of the counss 1 for the plaintiff in error, that damages in the actios of slander are merely competí» *388 satory and not punitive, and it was therefore immaterial in. estimating them, whether the defendant was poor or rich.

It would open a wide field of speculation to enter into the question “de novo,” and decide upon abstract principles what circumstances constitute the elements of injury.

This action is founded upon an Article of the Code, (89, Public General Laws,) making “all words spoken maliciously, touching the character or reputation for chastity of a feme sole, and tending to the injury thereof,” slander, and providing that “any feme sole”' may sustain an action of slander against any person defaming or traducing her. The rule or measure of damages is not prescribed, as in some statutes, but is left to be determined by the principles of the common law in other actions of tort.

Distinguished text writers on the Law of Evidence and damages, are at issue as to the principle on which adjudged cases have been determined. Pei’haps they are irreconcilable.

' Mr. Greenleae, in his law of evidence, says : “Nor are damages 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 enquire not what the defendant can pay, but what the plaintiff ought to receive. But so far as the defendant’s ranh and influence in society, and therefore the extent of the injury, are increased by his wealth, evidence of the fact ■is pertinent to the issue. 2 Greenleaf Evidence, Tit. Damages sec. 269.

Sedgewick insists, “whenever the elements of fraud, malice, gross negligence or oppression mingle in the controversy, the law, instead of adhering to the system or *389 even language of compensation, adopts a wholly different ¡rule, it gives damages not only to recompense the sufferer, hut to punish the offender.' ’ Vide Sedgwick on Dams., GGG, and authorities there cited. The testimony offered in this case was competent under either theory.

The rank and influence of the defendant in society may, in this case, have depended on his wealth. There was nothing in the offer of the plaintiff helow, to show that the wealth of the defendant was an element “per se” of damages, and if the evidence was admissible for any purpose, in the inquiry before the jury, it would have been error to exclude it as irrelevant and inadmissible under the general exception.

This. Court, in the case of Gaitker vs. Blowers, 11 Md. Rep., 553 , which was an action for assault and battery of an aggravated character, inquiring into the admissibility of evidence as to the plaintiff’s circumstances, with a view of increasing the damages, refer with approbation to' 2 Greenleaf, sec. 89, where it is said: “Nor are the jury confined to the mere corporal injury which the plaintiff has sustained, but they are at liberty to consider the malice of the defendant, the insulting character of his conduct, the rank in life of the several parties, and all the circumstances of the outrage, and thereupon to award such exemplary damages as the circumstances may, in their judgment, require.” Exemplary damages are here recognized as a right of the plaintiffs without regard to the question whether they are allowed as compensation or punishment, In the same case, this Court adopts the language of the Court in McNamara vs. King, 2 Gilman, 436 , as follows: “It is proper that the jury should he influenced by the pecuniary resources of the defendant. The more affluent, the more able he is to remunerate the party he has wantonly injured. In this class of cases, the jury may give exemplary damages, not only to compensate the plaintiff, *390 but to punish the defendant. This, like the principal case, was one of assault and battery. But in the case of McAlmont vs. McClellan, 14 Serg. & Rawle, 359 , in an action of slander, the Supreme Court of Pennsylvania" declared: “Damages are given by way of example. That which would he exemplary as to one, would not make anothér feel; would be no terror to him.'”

( Decided February 19th, 1867.)

Personal injuries accompanied by force, are subjects of prosecution and punishment by the State, as well as of compensation in damages to the injured, but verbal slander is not subject to public punishment. If the former, therefore, should be prevented or redressed by exemplary damages, defamation of character, especially the sacred and inestimable reputation for chastity of femes sole, should be vindicated by the largest allowance of pecuniary remuneration when falsely and maliciously assailed. There being no error in the action of the Court, the judgment will be affirmed.

Judgment affirmed.