author: Lowe, J.,

text:
    RICHARD E. HARRIS et ux. v. THE STEFANOWICZ CORPORATION
    [No. 858,
    September Term, 1974.]

      Decided May 8, 1975.

    The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.

      Wilson K. Barnes, with whom was Marvin H. Schein on the brief, for appellants.

      James J. Dawson, with whom were Morton A. Sacks and Cable, McDaniel, Bowie & Bond on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Our knowledge of the facts is limited, as was the chancellor’s, to what we learn from the pleadings in this case.

Mr. and Mrs. Richard Harris, appellants, (Harris) contracted with the Stefanowicz . Corporation, appellee (Corporation) to purchase a certain lot to be improved by a designated dwelling. Settlement was to take place within 10 days after completion of the improvements and was “expected to be on or before June 30, 1972,” less than 5 months after the contract date. Harris deposited $3,000.00 with the Corporation.

The contract contained a cancellation or default clause which the chancellor depicted as “being the type of clause that no prudent buyer should allow to be in a contract. . . .” Its very presence caused the chancellor to “confess a certain feeling of sympathy toward the buyer in this case.” The clause read:

“(8) Should Buyers cancel or default hereunder for any reason all monies paid by Buyers including the cost of all change orders, will remain the property of the Seller and Seller shall be entitled to recover from Buyers all damages sustained as a consequence of such cancellation or default in excess of said monies. Should Seller cancel or default hereunder for any reason all monies paid by Buyers shall be returned by Seller, with no further liability on the part of one to the other.”

Because appellee had made no effort even to commence construction well beyond the settlement date, and indeed had removed the top soil to be used elsewhere, appellants attempted first, to negotiate, then, being met with silence, to cancel the contract because of appellee’s breach. The cancellation was in the form of a letter dated May 16, 1972. Receiving no reply, appellants sued for specific performance and other relief on September 11, 1972. Their Bill elicited an Answer (although belatedly filed). Apparently, it also persuaded appellee to begin communicating.

On November 9, 1972 the Corporation’s counsel wrote Harris, ignoring the prior cancellation letter, and informed Harris that the “Stefanowicz Corporation has decided to cancel. . . .” It enclosed a check for $3,000.00, pointed out its escape clause in paragraph 8, and offered an additional $1,000.00 conditioned upon dismissal of the pending suit. Presumably too little and too late (suit having been filed), the check was returned and the offer declined. Sometime in December, 1973, appellee commenced construction, a year and a half after the “expected settlement date.” The Corporation then sought and received leave to amend its Answer. It also supplemented its Interrogatories. To its original answer it added a paragraph:

“15. That further answering said Complaint, Defendant avers that
(a) Plaintiffs breached the contract between the parties when, on July 7, 1972, they communicated with Defendant through their authorized agent and attorney a demand for refund of their $3,000.00 deposit, which demand was not authorized by either the contract or by law. A copy of said demand letter is attached hereto and made a part hereof as Answer Exhibit No. 1;
(b) Plaintiffs cancelled the subject contract by letter dated July 7, 1972, copy of which is attached hereto and made a part hereof as Answer Exhibit No. 2; and
(c) Notwithstanding said breach and cancellation, Defendant is presently constructing on the subject premises a Queen Anne dwelling house in substantial accordance with the provisions of the Contract of Sale between the parties on February 3, 1972 and Defendant stands ready, willing and able to convey said premises, upon completion, (approximately April 1, 1974) to the Plaintiffs at and for the contract price, with such adjustments therefrom as may be appropriate for minor variations from contract specifications.”

Thereafter on two separate occ? the case was set for trial, subpoenas issued and served but no trial held — for what reasons the record does not reflect. Indeed the record reflects nothing more than what is recited here, other than discovery procedures including interrogatories, demands for admissions, etc.

Finally, trial was set for October the 3rd and 4th, 1974. Subpoenas were again issued and served, and on October 3, 1974 all parties and witnesses were present.

The record then leapfrogs to an Order dismissing the Bill of Complaint followed by a transcribed oral opinion which sheds some light on the chancellor’s decision to dismiss and the vehicle he chose to reach that result. At no time was testimony taken or evidence introduced. The opinion reads, in part:

“THE COURT: As I have said, there has been no motion for a summary judgment or decree filed in this case so that the matter can not be disposed of under the summary judgment rules because that requires ten days’ notice of a hearing, but the summary judgment rule provides that the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavit, if any, show there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law.
Now, Maryland Rule 502 says that,
‘At any stage of the action, the court may, on application of any party or of its own motion if it shall appear that there is a question of law which it would be convenient to have decided before going further, direct such question to be raised for the court’s decision in such manner as the court may deem expedient. All such further proceedings as may be rendered unnecessary by the decision of such question shall upon the decision be stayed. Such proceedings as show the questions so decided and the decision thereon shall form a part of the record and be reviewable upon appeal after final judgment.’
Now, the complainant here is ready to prove damages as a result of the position he is now in, which damages would encompass a great deal of disputed testimony and I believe, therefore, that it is convenient to have the question of responsibility or liability determined before going further. As the Rule specifically permits, the Court does that here today of its own motion.
I have heard arguments of counsel on this question of liability and it seems to me that we are in the exact position as if the defendants had filed a motion for summary decree. The Court’s use of Section 502 merely eliminates the requirement of ten days’ notice before hearing on motion for summary judgment or summary decree and it seems clear to the Court that the pleading, the admission and, all of the exhibits filed and admissions lead to an inevitable and inescapable conclusion that the complainants, Mr. and Mrs. Harris, can not recover, and this Court doesn’t believe there’s any dispute as to any material fact, to wit, facts that deal with the issue of liability. There are areas of dispute as to just what transpired between these parties, but, it is the opinion of the Court that they are not material.”

— The ende good, doeth not by and by make the meanes good —

The Chancellor used Rule 502 to bypass the procedure required in Rule 610, summary judgment, saying that “The Court’s use of Section 502 merely eliminates the requirement of ten days’ notice before hearing on motion for summary judgment or summary decree. . . .” Notwithstanding the hybrid development of Rule 502, it is as different from summary judgment in purpose and effect as is an apple from an orange. It is inconceivable that the Court of Appeals intended to permit a chancellor, on his own motion, to dispose of a case without hearing evidence, when the decision required him to draw factual conclusions from allegations in pleadings, some of which were not even under oath. In the absence of affidavits, the conclusion effected by the chancellor here was more reminiscent of the old Hearing on Bill and Answer, than Summary Judgment which replaced it. However, neither of those procedures ever contemplated proceedings by a court’s peremptory action initiated sua sponte. A Summary Judgment is initiated by motion of a party, Md. Rule 610 a; while the initiator of a final hearing on bill and answer had to be by the plaintiff, Somerville v. Marbury, 7 G & J 275, 281; Miller, Equity Procedure, § § 255, 256.

The purpose of the Summary Judgment procedure is to dispose of cases where there is no genuine factual controversy. The dispute here involved: first, appellants’ claim that appellee breached; and second, appellee’s claim that appellants breached and/or cancelled the contract, while it continued ready, willing and able to perform. Although each issue raised involved factual questions and could have required application of a different remedy, the chancellor decided in essence, that paragraph 8 of the contract limited appellants to what he regarded as an adequate remedy at law, an issue ordinarily raised and decided on demurrer.

When there is no demurrer or motion for summary decree, but there is an issue the court considers convenient to decide before going further, it may choose to invoke Rule 502. The authority given is limited, however. The rule states that “the court may . . . direct such question to be raised for the court’s decision in such manner as the court may deem expedient.” [Emphasis added].

In addition to court directive, the rule’s operation may be triggered by application of a party or stipulation of the parties “in advance of a determination of the main issue.” Cf. Cambridge v. Eastern Shore Public Service Co., 192 Md. 333, 341, (giving as an example “by special case stated or otherwise.”).

Md. Rule 502 is a patchwork of “lifted language” amalgamated from two nineteenth century statutes and given impetus by a third unrelated act. It was meant to fuse an equity procedure with a legal one which had been originally designed to clear away preliminary or extraneous issues before trial. Although the editor’s notes indicate no substantive change was intended by the rewriting of Art. 75, § 134 and Art. 16, § 237 as one rule, certain language which had been in the equity act (originally Acts of 1886, Ch. 334) was omitted to facilitate the revision. The omitted language included a phrase more clearly conveying the procedural safeguard to be followed when it appeared to the chancellor that there was a question of law that it would be convenient to decide. “ . . . the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court.”

Properly invoked, the rule unquestionably enables a chancellor to decide a purely legal issue as a preliminary matter. In the usual case, application of the rule will result in a bifurcated proceeding, where resolution of certain legal questions precedes resolution of issues which must be tried. On the other hand, there are circumstances where invocation of Rule 502 will, upon resolution of the legal issue, conclude the case, e.g., Irvine v. Montgomery County, 239 Md. 113, where grant of a Motion Raising Preliminary Objection on the basis of governmental immunity foreclosed further proceedings. Significantly, however, in none of the cases relied upon by appellee was the decision rendered without some warning and opportunity to prepare whether it be in the form of an anticipatory question by either a party or parties, preliminary court directive, or acquiescence or stipulation at or during trial. The isolated instances when Rule 502 was utilized and that was not the case are unusual if not extraordinary. In Scheihing v. B. & O. R. R. Co., 180 Md. 168, the 502 procedure was followed by the court because, after twice being called to trial and found unprepared, the plaintiff on the third occasion was “not able to make a satisfactory offer of proof. . . .” The Court of Appeals said, that under the circumstances “[she] can hardly be heard to complain that she has not had her day in court.” In discussing the procedure which was then found in Md. Code 1939, Art. 16, § 226, the Court said:

“Such a proceeding is not a demurrer but is intended to be rid of irrelevant questions which have no part in a controversy, so as to leave the decision to the point of the case.” Scheihing, 180 Md. at 172.

Notwithstanding its diverse origins and the recent inclusion of “language . . . lifted” from Article 26, § 16, Rule 502 was never meant to be a device for summarily dismissing cases. We now make explicit what was implicit in Scheihing, viz., Rule 502 may not be used as a judicial demurrer nor as a chancellor’s motion for a summary judgment.

In light of this result, we need not reach other questions raised.

Decree dismissing bill of complaint reversed; case remanded for trial.

Costs to be paid by appellee.

      . The chancellor, whose hypothesis was not unreasonable, said:
      “No matter from whose point of view you look at this case the result comes out the same as far as the claim that is asserted in this bill of complaint is concerned because you either have a cancellation of the contract by the buyer under the letter of July the 7th and, having canceled, the buyer would not be entitled to sue for breach or, if it’s the seller who has canceled or breached he has legally and effectively limited his liability to the return of the deposit. Having tendered the same he has discharged his liability.”

      . If the court below complied with this portion of the rule, such compliance is indicated neither by record nor by the parties. The reference by the chancellor to “arguments of counsel on this question of liability” indicates counsel may have had some advance notice of the opinion that followed; however, the record otherwise gives us no indication that the opinion rendered came as anything but a complete surprise to both parties.

      . Subsection (b) of Md. Rule 502 contains language which permits the court to draw “all inferences of fact or law that the court or jury could haye drawn from the facts agreed or shown as if the same had been offered in evidence upon a trial before the court or before the court and a jury.” The editor’s note to the Rule tells us that this “language was lifted from Article 26, § 16, 1951 Code, dealing with agreed statements of fact, special cases stated and special verdicts.”

      . Although the question of law was decided from the pleadings, the use of Rule 502 was justified by the Court of Appeals in Irvine on the principle that governmental immunity must be raised by motion before any pleading. Md. Rule 323 b. The Court said “The purpose of Rule 323 is to have a legal question, such as this, decided before trial of the action on its merits. .. . Compliance with procedural regulations is essential to the fair and efficient administration of justice, but it is the substance of compliance and the fair treatment of the parties, which are determinative.” Irvine, 239 Md. at 117.

      . While it is unnecessary to reach the issue as raised, we cannot help but wonder why the chancellor felt he did not have “jurisdiction” to order the return of the down payment in light of his finding:
      “Now, it’s quite obvious that the Court’s ruling establishes the right as between these parties to the return of the deposit, but, I don’t believe that the Court has any jurisdiction in this case to enter a judgment against Stefanowicz for the $3000, that would have to be a suit at law, but, it seems to me that the right to recover, that would be automatic upon the filing of suit. A motion for summary decree or summary judgment for the $3000 could be supported by assertion of a res judicata principle, but, I’ll leave that for another day.”


source: Caselaw Access Project

license: Public Domain

text:
    ARVIN QUEEN v. STATE OF MARYLAND
    [No. 864,
    September Term, 1974.]

      Decided May 8, 1975.

      The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.

      Arthur D. Condon, Assigned, Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, State’s Attorney for Anne Arundel County and James W. Dryden, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Arvin Queen was indicted for escape, convicted in the Circuit Court for Anne Arundel County and sentenced to one year. His conviction rests entirely upon a “base file” which is an institutional record “kept in the regular course of business of every inmate in every institution in the Division of Correction.”

The base file in question showed that one Arvin Queen had been convicted of assault on December 24, 1970 and sentenced two months later to serve five years in prison. The file also contained a “Notice of Escape” indicating the “Details Relating to Inmate’s Escape:” to be “Walked off from work assignment.” That in itself is sufficient to form the corpus delicti of escape, outlined by Judge Menchine in Robinson v. State, 18 Md. App. 438, 441-442:

“§ 139 is a broadly based statute embracing within its purview all escapes from lawful confinement, whether the escape was initiated from within or without the walls or other boundaries of a penal facility; whether the confinement was actual or constructive; whether it was effected with or without force, and without regard to the circumstances of confinement if the detention was under color of law/’

Accord, Fabian v. State, 3 Md. App. 270, cert. denied 250 Md. 731.

The State, however, made even better use of that record. Apparently having no one available who could personally identify appellant, the State called upon the record custodian to compare the photograph in the record with the appellant, who had been arrested some two and one-half years after his departure. The State then asked the custodian:

“Using that photo are you able to identify Mr. Arvin Queen? ”
To which the custodian replied,
“Yes, I am.”
The following colloquy ensued:
“Is he present in the courtroom today?
A Yes, he is.
MR. LOWMAN: Objection, Your Honor.
A Sitting at the defense table.
COURT: Well, is this of your personal knowledge you can identify the defendant?
A I wasn’t asked personal. I was to identify him from the picture.
COURT: Is that your objection?
MR. LOWMAN: That’s my objection, Your Honor. The witness has no personal knowledge of who Mr. Queen is, and—
COURT: Well if he has a picture of Mr. Queen in the file he can identify him from that. It might be a misidentification but he can identify him.”

After that identification appellant questioned the custodian on cross-examination as to his personal knowledge of Queen’s identity:

“Officer Cunningham, at the time of this alleged escape were you in direct supervisory control of Mr. Queen?
A No, I was not.
At that time did you know Mr. Queen?
A No, I did not.
Did you know him personally now?
A No, I do not.
Now the entries that have been introduced into evidence over objection did you make any of those yourself?
A No, I did not.”

Apparently recognizing some weakness in identification the State called the officer who had “participated in returning . . . Arvin Queen to the Maryland House of Correction.” The officer had gone with another to pick up Mr. Queen at the jail. He was asked:

“Did there ever come a time that Mr. Queen identified himself to you?
A No, he didn’t identify himself to me because I stayed outside and Kershaw went inside and made the identification and took custody of him.”

It was also brought out that the officer at a later date returned to the detention center to assure himself that he could identify appellant:

“And do you recall what the purpose of calling Mr. Queen to Center Hall was for?
A Yes, I do.
Will you tell His Honor why you called Mr. Queen to Center Hall?
A To put a name with a face.
In other words so that you could see him to identify him today?
A By name.
Prior to October the 7th, 1974, did you know Mr. Queen personally?
A No, sir.
And on the day that you say you were in Annapolis you could not, or you did not make any identification of Mr. Queen on that day, did you?
A No, sir.
He did — he was not identified to you on that day, was he?
A No, sir.
So you really don’t know who you picked up In Annapolis, do you?
A We picked up Arvin Queen.
Well is that based on the identification you made at the Maryland House of Correction on October the 7th?
A Based on the identification of the man I brought back from Annapolis who I was assigned to go get.
But you find it necessary to have a meeting with him so that you could see prior to this morning, earlier this month?
A To affiliate the name with the face, yes, sir.
Well prior to October the 7th could you have identified Arvin Queen?
A To October 7th?
Prior to the meeting in Center Hall?
A I could identify him by the face, not by name, no.”

Upon objection the court ruled:

“COURT: Well, I don’t think whether he identifies his face here today is even relevant because he has testified that he picked up one Arvin Queen and returned him to the Institution in May of 1974 and whether he points him out on the stand today is really not too significant. But if it would make you feel better I’ll strike the visual identification since I don’t think he really had the visual identification based on what he saw on May the 26th, 1974 but rather on what he saw in the Institution.”
“MR. DRYDEN: Your Honor, just for clarity then, the testimony in which he identified him that he picked up a person named Arvin Queen in Annapolis —
“COURT: No, that is not stricken. That is still admissible. That is not stricken.”

As its ultimate effort the State now argues that Queen’s appearance in court served as sufficient identification:

“ . . . the identity of the individual at trial was established prior to the taking of any testimony when appellant’s case was called for trial.”

Treating the identity contentions inversely, we find precious little merit in any, but no merit in the latter. Appellant was present in court when his case was called because he was brought to court still in the custody of gaolers. His attorney’s plea of “not guilty” placed in issue every element of the crime including appellant’s identity as the “Arvin Queen” who had escaped from custody two years prior. The issue of identity must be settled before that of guilt becomes relevant. United States v. Hecht, 22 F. 2d 264, 265. Certainly the “not guilty” plea may not be said to waive the State’s burden of proving a defendant’s identity, Cf. Jones v. State, 10 Md. App. 420, cert. denied 260 Md. 721. Had appellant stood mute the court would undoubtedly have interposed such a plea. Md. Rule 721. Accord, Hochheimer’s Criminal Law, (2nd Ed.) § 113.

This leaves the State with but two sources of identification: the police officer who transported appellant from one jail to another and the custodian who compared appellant to a picture in a record.

The police officer admitted that he did not know Arvin Queen; however, the judge permitted him to testify that “he picked up a person named Arvin Queen in Annapolis . . . .” This was clearly insufficient as attested by his responses:

“And on the day that you say you were in Annapolis you could not, or you did not make any identification of Mr. Queen on that day, did you?
A No, sir.
He did — he was not identified to you on that day, was he?
A No, sir.”

Thus we are left with the custodian’s opinion that appellant and the base file photograph are one and the same person. However that opinion, expressed without a foundation properly laid, usurped the function of the trier of fact by precluding the factfinder from testing the opinion by its own comparison.

The base file record, identified as made in the course of business, was not offered pursuant to Cts. Art., § 10-101 (formerly Art. 35, § 59) but was dissected and submitted sheet by sheet as the State deemed relevant. These sheets included the commitment of Arvin Queen, dated February 25, 1973, and Mr. Queen’s “Employee’s Initial Escape Report,” dated December 14, 1971. The State did not introduce the “base files . . . photo[s] of the records to whom [it] pertainfed],” from which the custodian expressed his identification opinion by comparison.

In Goodman v. State, 2 Md. App. 473 [Chief] Judge Orth faced similar testimony of a conclusion drawn by a custodian witness from business records of a telephone company. Ironically, there the State attempted “to prove that James R. Barton, M.D. did not exist. . . .” [Emphasis added].

Judge Orth wrote:

“Md. Code, (1965 Repl. Vol.), Art. 35, § 59 provides that any writing or record made as record of any act, transaction, occurrence or event in the regular course of any business shall be admissible in evidence in proof of said act, transaction, occurrence or event. All circumstances of the making of such record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight but not the admissibility thereof. The rule applies in criminal as well as civil cases. Lauder v. State, 233 Md. 142; Dunn v. State, 226 Md. 463. The statute permits the introduction of business records even though hearsay in nature, when the entry meets the test of ‘necessity and circumstantial guaranty of trustworthiness.’ Morrow v. State, 190 Md. 559, 562. Summaries or compilations made from such records may be admissible, when a proper foundation has been laid by a qualified witness on the stand. O’Donnell v. State, 188 Md. 693. A witness called to the stand and qualified, after records have been put into evidence, may testify as to his conclusion therefrom. Smith v. Jones, 236 Md. 305. In the instant case, however, the records were not in evidence. The witness was asked, ‘(W)hat do your records show about this telephone? ’ and his reply indicated his conclusion as to what they showed. It does not appear that he lead directly from the records. We do not think that the exception to the hearsay rule, permitted by the statute, goes this far. See Jones v. State, 205 Md. 528. We feel that the trial court erred in allowing the testimony in evidence, although the records themselves may have been admissible. Once admitted, the witness, if properly qualified, could have testified as to his conclusion ' therefrom.” [Emphasis added], Goodman, 2 Md. App. at 476-477.

We apply the same rule here. Had the State introduced the base file containing the photograph into evidence the conclusion from the comparison would have been subject to further comparison by the trier of the facts. That not having been done, the custodian’s comparison opinion was clearly inadmissible and other evidence of identity was so sparse as to hardly justify the term minimal.

While an escape trial is often an uncomplicated proceeding, we think it not too much to ask that the State identify the defendant as the escapee. The far better practice, of course, is to have the identification made by one who knows him to be the person accused.

Judgment reversed.

Case remanded for retrial.

      . The State refers to appellant’s appearance in court and his appointed attorney’s response when Queen’s case was called:
      “MR. DRYDEN: Next, Your Honor, the State would call Criminal No. 15,968, Arvin Queen.
      COURT: Alright, Mr. Queen, are you familiar with the charge?
      MR. LOWMAN: Yes, Your Honor, Mr. Queen is familiar with the charge and he understands he is charged with escape. He is aware of his right to a jury trial and elects to be tried before this court, waiving the right to a jury trial, and at this time, Your Honor, we would enter a plea of Not Guilty to the charge.”

      . When a prisoner obstinately stood mute as opposed to ex visitatio7ie Dei (by the visitation of God) the old courts of England were less understanding in their proceedings:
      “Penalty for obstinately standing mute. — If he be found to be obstinately mute (which a prisoner hath been held to be that hath cut out his own tongue), (k) then if it be on an indictment of high treason, it hath long been clearly settled, that standing mute is an equivalent to a conviction, and he shall receive the same judgment and execution. (1) And as in this the highest crime, so also in the lowest species of felony, viz.: in petit larceny, and in all misdemeanors, standing mute hath always been equivalent to conviction. But upon appeals and indictments for other felonies, or petit treason, the prisoner was not, by the ancient law, looked upon as convicted, so as to receive judgment for the felony; but should, for his obstinancy, have received the terrible sentence of penance or peiTTe (which, as will appear presently, was probably nothing more than a corrupted abbreviation of prisone) forte et dure (strong and hard).
      Before this was pronounced the prisoner had not only trina admonitio (a third warning), but also a respite of a few hours, and the sentence was distinctly read to him, that he might know his danger; (m) and, after all, if he continued obstinate, and his offence was clergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it. (n) Thus tender was the law of inflicting this dreadful punishment; but if no other means could prevail, and the prisoner (when charged with a capital felony) continued stubbornly mute, the judgment was then given against him without any distinction of sex or degree. A judgment, which was purposely ordained to be exquisitely severe, that by that very means it might rarely be put in execution.
      .... The English judgment of penance for standing (u) mute was as follows: that the prisoner be remanded to the prison from whence he came, and put into a low, dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids: that there be placed upon his body as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day, three morsels of the worst bread; and on the second day, three draughts of standing water, that should be nearest to the prison door; and in this situation this should be alternately his daily diet till he died, or (as anciently the judgment ran) till he answered, (v)” II Cooley’s Blackstone, (4th Ed.) at 1473-1475.


author: Gilbert, J.,

text:
    JEROME EDGAR THOMAS v. STATE OF MARYLAND
    [No. 882,
    September Term, 1974.]

      Decided May 8, 1975.

      The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.

      Henry J. Monahan, Assigned Public Defender, for appellant.

      David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County and Stephen A. Shaw, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

In this appeal, we are asked whether conviction in the District Court of Maryland for violation of Md. Ann. Code art. 66V2, § 4-102 (a) (Driving a motor vehicle without the consent of the owner) precludes a subsequent conviction for violation of Md. Ann. Code art. 27, § 349 (Unauthorized use of a vehicle), when both charges arose from the same occurrence. We conclude that the second trial was not barred by the doctrine of double jeopardy, and we hereinafter state our reasons.

Sometime between January 31,1973 and February 6, 1973, Jerome Edgar Thomas, appellant, appropriated to his own use the 1968 Ford stationwagon of Stephen Sziarto. The vehicle had been in a repair shop in Montgomery County when it was taken. Thomas was apprehended at the toll gate to the Baltimore City Harbor Tunnel on February 6, 1973. He came to the attention of the tunnel authorities because he was driving in a suspicious manner. As a result of Thomas’s having been stopped and questioned, it was determined that he was violating Md. Ann. Code art. 66V2, § 6-101.1 in that he did not have a license, and § 4-102 (a). Thomas was issued two “Maryland Uniform Complaint and Summons” forms. Trial was had on the summons before Judge Carl W. Bacharach on March 1, 1973, in the District Court of Maryland, Division 1, Baltimore City. Thomas was adjudged guilty of both motor vehicle offenses and sentenced to two consecutive 60 day terms.

On June 7, 1973, Thomas was indicted by the Grand Jury for Montgomery County on three counts. He was charged with “Larceny of Motor Vehicle”, “Unauthorized Use of Motor Vehicle” and “Receiving Stolen property of the Value of One Hundred Dollars or More.” Thomas’s counsel filed a motion to dismiss on the ground, inter alia, of double jeopardy. The motion was denied. When the case was called to trial, the motion was renewed and once again denied. At the conclusion of the State’s case the trial judge granted judgments of acquittal with respect to the larceny and receiving counts. Thomas, at the close of the evidence, was convicted of unauthorized use and sentenced to two years imprisonment, with credit for the time served in the Baltimore City Jail, upon the two traffic offense sentences, and the time spent in the Montgomery County Jail while awaiting trial in the instant case.

The Fifth Amendment to the Constitution of the United States provides in pertinent part:

“. . . [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . .”

This clause has been held to be applicable to the several States through the Fourteenth Amendment. Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970); Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969); North Carolina v. Pearce, 395 U. S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969). Maryland has no State Constitutional provision proscribing double jeopardy, but had, prior to Benton v. Maryland, supra, provided such protection through the common law. See Matter of Anderson, 20 Md. App. 31, 43, n. 19, 315 A. 2d 540 (1974), aff'd 272 Md. 85, 321 A. 2d 516 (1974), cert. denied, 95 S. Ct. 21 (1974).

According to one text writer, “double jeopardy” had its origin in law long before the common law of England. J. Sigler, Double Jeopardy, The Development of a Legal and Social Policy 3 (1969). “In early church law . . . there arose the principle that God does not punish twice for the same transgression.” F. Pollock & F. Maitland, A History of English Law 448-49 (2d ed. 1899).

Sir William Blackstone, in Volume 4 of his Commentaries of the Law of England (Lewis ed. 1902), said at *336:

“. . . [T]he plea of autrefoits convict, or a former conviction for the same identical crime, ... is a good plea in bar to an indictment. And this depends upon the . . . principle . . . that no man ought to be twice brought in danger of his life for one and the same crime .... It is to be observed that the plea of autrefoits acquit or autrefoits convict, or a former acquittal and former conviction, must be for the same identical act and crime.” (Footnotes omitted).

1 Wharton’s Criminal Law and Procedure § 144 (Anderson ed. 1957) states:

“The ‘same offense’ within the meaning of double jeopardy includes not only the offense charged in the first indictment but also any offense of which the defendant could properly have been convicted on the trial of the first indictment. Thus, when the accused killed two animals belonging to the same owner as part of one transaction, a conviction as to one animal will be a bar to a proceeding as to the other. . . .” (Footnote omitted). (Emphasis supplied).

Wharton further states at § 147:

“In many jurisdictions if a minor offense is embraced within a higher crime as a constituent element or component part, and on trial of the higher offense there could be a conviction of a minor offense, a conviction of the minor offense will bar a prosecution for the higher crime.” (Footnote omitted). (Emphasis supplied).

Justice Buller in Rex v. Vandercomb 2 Leach 707,168 Eng. Rep. 455 (1796) declared,

“Unless the first indictment were such as the prisoner might have been convicted by proof of the facts contained in the second indictment, an acquittal of the first indictment can be no bar to the second.”

This test, known as “Buller’s rule”, is the one that is most commonly followed. J. Sigler, supra at 100.

In Gilpin v. State, 142 Md. 464, 121 A. 354 (1923) the Court of Appeals, speaking of the rule relative to double jeopardy, said:

“The rule, though a simple one, is sometimes difficult in its application. The difficulty arises in determining whether the charge against the accused is the same offense, within the meaning of the rule, as that for which he has already been tried.
The offenses are not the same though growing out of the same transaction, when one differs in all its elements from the other, or when the evidence adequate to one, does not relate to, or support the other. Bishop on Criminal Law, 1 § 1051.” (Emphasis supplied).

Three months later, the Court in Kaefer v. State, 143 Md. 151, 157, 122 A. 30 (1923) said that the person raising the plea of autrefois convict carries the burden of proving that the prior and subsequent indictments arose from an “identity of the offenses.”

Identity of offenses continued to be the law. See Rouse v. State, 202 Md. 481, 97 A. 2d 285 (1953), cert. denied, 346 U. S. 865, 74 S. Ct. 104, 98 L. Ed. 376 (1953), wherein Judge Hammond (later Chief Judge) writing for the Court declared:

. . [Former jeopardy] can be invoked only when the crimes are the same in law and in fact. . . .”

Very recently, however, the Court seemingly departed from its identity of offenses or sameness standard and appears to have injected a new test into the double jeopardy arena. Without specifically overruling or discussing Gilpin, Kaefer, or Rouse, all supra, and their ancestors or decendants, the Court articulated a “substantially the same” test. In Matter of Anderson, 272 Md. 85, 321 A. 2d 516 (1974), aff'g 20 Md. App. 31, 315 A. 2d 540 (1974), cert. denied, 95 S. Ct. 21 (1974), the Court of Appeals stated at 97:

“Two basic questions arise when the defense of double jeopardy is raised, [1] whether the defendant was ‘in jeopardy’ in the prior proceeding and [2] whether the previous charge is substantially the same as that which he faces when the defense is raised. This is what constitutes ‘jeopardy’ and ‘sameness’ in an offense.” (Emphasis supplied).

We construe the reference to “substantially the same” as meaning that the prosecution for each offense requires proof of the same facts. We note that the Anderson Court did not allude to, discuss or distinguish its own precedents, and we do not believe that it intended to depart from them. In any event we think it could not validly do so. See Oregon v. Hass, 420 U. S. 714 (1975), No. 73-1452, decided March 19, 1975. In Hass, Mr. Justice Blackmun, in footnote 4, observed that the Supreme Court of Oregon had stated in State v. Florence, Ore., 527 P. 2d 1202, 1208 (1974), a search and seizure case,

“ ‘If we choose we can continue to apply this interpretation. We can do so by interpreting Article 1, § 9 of the Oregon constitutional prohibition of unreasonable searches and seizures as being more restrictive than the Fourth Amendment of the federal constitution. Or we can interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court’ (footnote omitted).”

Mr. Justice Blackmun stated:

“The second sentence of this quoted excerpt is, of course, good law. The last sentence, unsupported by any cited authority, is not the law and surely must be an inadvertent error; in any event, we reject it.”

We have previously noted that Maryland has no State Constitutional proscription against “double jeopardy”. See Matter of Anderson, supra, 20 Md. App. 31, at 43, n. 19. Inasmuch as Benton v. Maryland, supra, mandates that the federal double jeopardy provision of the Fifth Amendment is applicable to the several States through the Fourteenth Amendment, it follows that in those States that have no constitutional safeguards, or less restrictive common law prohibitions against double jeopardy, the federal standards “must be applied in accordance with the Supreme Court’s constitutional constructions and interpretations”, Matter of Anderson, 20 Md. App. 43, n. 19, supra. Maryland is not at liberty to interpret the Fifth Amendment more restrictively than the Supreme Court of the United States. Under Benton and Hass, both supra, we are bound in interpreting former or double jeopardy to utilize the interpretation of this country’s highest court, and we^ are not free to interpret the Fifth Amendment in a manner more restrictive than that august body has done. See also Ianelli v. United States, 420 U. S. 770, n. 17 (1975), No. 73-64, decided March 25, 1975.

The question that then arises is what has the Supreme Court said regarding double jeopardy? That question is answered in Blockburger v. United States, 284 U. S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). A unanimous Court, speaking through Mr. Justice Sutherland, said:

“. . . [T]he test to be applied to determine whether there are two offenses or only one, is whether each prosecution requires proof of a fact which the other does not.”

The Court quoted with approval the language of the Supreme Judicial Court of Massachusetts, in Morey v. Commonwealth, 108 Mass. 433 (1871), wherein it is said:

“A single act may be an offense against two statutes; and if each act requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. ” (Emphasis supplied).

Thus, Blockburger, supra, revitalized in Gore v. United States, 357 U. S. 386, 78 S. Ct. 1280, 2 L.Ed.2d 1405 (1958), made it transpicuous that one may successfully interpose the defense of double jeopardy only if the two or more charged offenses require proof of the same facts. If the offenses necessitate a proving of a fact or facts not necessary to conviction in the prior charge, a plea of double jeopardy does not lie.

We shall now examine the statutes involved in this appeal. Md. Ann. Code art. 66V2, § 4-102 (a) provides:

“Any person who drives a vehicle, not his own, without the consent of the owner thereof, and with intent temporarily to deprive the owner of his possession of such vehicle, without intent to steal it, is guilty of a misdemeanor.”

With respect to unauthorized use of a vehicle, the legislature has mandated in Md. Ann. Code art. 27, § 349:

“Any person or persons, his or their aiders or abettors who shall enter, or being upon the premises of any other person, body corporate or politic in the State, shall, against the will and consent of said person or persons ... or their agents, wilfully take and carry away any . . . motor vehicle as defined in the laws of this State relating to such, or property whatsoever, or take and carry away out of the custody of use of any person ... or his or their agents, any . . . [motor vehicle] at whatsoever place the same may be found, shall upon conviction thereof in any of the courts of this State having criminal jurisdiction be adjudged guilty of a misdemeanor. . . although it may appear from the evidence that such person . . . took and carried away the . .. [vehicle] . . . for his . . . present use, and not with the intent of appropriating or converting the same.”

The Court of Appeals in Wright v. Sas, 187 Md. 507, 50 A. 2d 809 (1947) discussed the history of Laws 1943, Ch. 1007, § 154 (The Motor Vehicle Code) and § 397 of the then Criminal Code. The sections treated of in Wright are the same as those now codified as Md. Ann. Code art. 66V2, § 4-102 (a) and as Md. Ann. Code art. 27, § 349, respectively. Wright states that although the two sections are “very similar offenses”, they are not “the same.” An analysis of those two statutes reveals that there is at least one element, viz., “entry”, that is required to be proved when an unauthorized use violation is alleged which is not essential to a conviction for operating a motor vehicle without the owner’s permission. Md. Ann. Code art. 66V2, § 4-102 (a). Furthermore, proof of “driving” is required under the motor vehicle code violation, but is not a factor in unauthorized use. Md. Ann. Code art. 27, § 349.

The offense for which the appellant stood trial in the District Court was not the same, within the meaning of Blockburger, Gilpin, Kaefer or Rouse, all supra, as that for which he was subsequently brought to Bar before Judge John F. McAuliffe in the Circuit Court for Montgomery County. Judge McAuliffe correctly denied the appellant’s motions to dismiss the indictment, as well as the appellant’s subsequent motion for judgment of acquittal.

Appellant also argues that the State failed to prove all of the elements of the offense of unauthorized use. He asserts that the statute requires an affirmative showing that the accused entered “upon the premises from which the vehicle was taken.”

The evidence showed that the vehicle in which appellant was apprehended had been taken without consent of the owner or the bailee from a repair garage in Montgomery County. Neither the owner nor the bailee knew the appellant, and both expressly denied giving permission to appellant to drive the vehicle. That appellant was arrested while driving the vehicle of another, without the permission of the owner or the owner’s agent, gives rise to a rational inference that the operator of the vehicle was the person who unlawfully entered upon the premises where the vehicle was garaged, and unlawfully took the car from the possession of the owner or the owner’s agent. Consequently, the evidence was sufficient to support an inference of “entry”, and we are unable to state that the trial judge’s finding of guilt as a result thereof was clearly erroneous. Md. Rule 1086.

Judgment affirmed.

      . The summons were issued to “Robert N.M.I. Matthews”, but at the trial, in the District Court, it was established that “Matthews” was an alias.


author: Moylan, J.,

text:
    COYAL GERRITT REDMAN v. STATE OF MARYLAND THOMAS MARSHALL JOHNSON v. STATE OF MARYLAND
    [No. 615,
    September Term, 1974.]
    [No. 812,
    September Term, 1974.]

      Decided May 9, 1975.

      The cause was argued before Moylan, Gilbert and Mason, JJ.

      George E. Meng, Assigned Public Defender, for appellants.

      Martin M. Mrozinski, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, John C. Hancock, State’s Attorney for Charles County and T. Myron Loyd, Assistant State’s Attorney for Charles County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This case involves the requirement that a defendant be present when testimony is taken at a pretrial suppression hearing. Article 5 of the Maryland Declaration of Rights established the requirement that an accused be present at his trial. Duffy v. State, 151 Md. 456, 135 A. 189; Plump v. Warden, 220 Md. 662, 153 A. 2d 269; Grohman v. State, 248 Md. 552, 267 A. 2d 193; Young v. State, 5 Md. App. 383, 247 A. 2d 751. In implementing this common law provision, enshrined in our Declaration of Rights, Maryland Rule 775 provides:'

“The accused shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided in this Rule. The accused shall have the right to be present at the taking of a deposition taken at the instance of the prosecution. In a prosecution for an offense not punishable by death the defendant’s voluntary absence after the trial has commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. The defendant’s presence is not required at a reduction of sentence under Rule 764 (Revisory Power of Court), fixing of the date of execution in a capital case, or at a proceeding in an appellate court.”

In fleshing out what is and what is not a “stage of the trial,” a consistent theme has run through the cases. On the one hand, it has been held that an accused has no right to be present while counsel are arguing proposed instructions to the judge in chambers, Brown v. State, 225 Md. 349, 170 A. 2d 300; when counsel are discussing the delivery of a copy of a statute in response to the jury’s request, State v, Saul, 258 Md. 100, 265 A. 2d 178; at argument on a motion for a directed verdict, Martin v. State, 228 Md. 311, 179 A. 2d 865; at a pretrial chambers conference between the judge and counsel concerning scheduling and other procedural matters, Veney v. Warden, 259 Md. 437, 453-454, 271 A. 2d 133; or at a bench conference involving simply legal discussion on the admissibility of evidence, State v. Tumminello, 16 Md. App. 421, 298 A. 2d 202. The common denominator is that purely legal discussions and argument are transpiring between court and counsel.

On the other hand, it has been held that a defendant must be present when the court actually delivers a copy of a statute to the jury in response to their request, Saul v. State, 6 Md. App. 540, 252 A. 2d 282, affirmed in State v. Saul, swpra,; when instructions are given to a jury initially, including instructions on the form of the verdict; when a charge or instruction is being repeated in whole or in part; when the court communicates with the jury in answer to questions propounded by the jury, Midgett v. State, 216 Md. 26, 139 A. 2d 209; when additional instructions are given to a jury, Young v. State, 5 Md. App. 383, 247 A. 2d 751. The accused also has the right to be present when a deposition is taken which is ultimately used at the trial, Collins v. State, 12 Md. App. 239, 278 A. 2d 311, affirmed in State v. Collins, 265 Md. 70, 288 A. 2d 163. The common denominator is that the trial is actually in progress and is moving forward through one of its necessary stages or that testimony which will ultimately become a part of the trial (as in Collins) is being perpetuated.

The Present Case

The appellants, Coyal Gerritt Redman and Thomas Marshall Johnson, were convicted in the Circuit Court for Charles County by a jury, presided over by Judge James C. Mitchell, of grand larceny and of the possession of controlled paraphernalia. Immediately prior to the selection of a jury, a pretrial hearing was held on the appellants’ motion to suppress physical evidence and motion to suppress the in-court identification question was whether the State’s witness had an independent source of knowledge. The key to this question was his opportunity to converse with the two appellants face to face immediately prior to the commission of the crime. At issue on the question of suppressing the physical evidence was the close question of probable cause for the warrantless arrests of the appellants, for the warrantless search of the automobile they had been driving and the exigent circumstances for the warrantless automobile search that may or may not have prevailed after the appellants had been taken into custody.

The suppression hearing ran for 92 pages of transcript. In the course of it, the State produced seven separate witnesses, all of whom were both examined and cross-examined. Their testimony dealt with matters as to which the appellants had personal knowledge. The rulings made at the suppression hearing were dispositive of the two issues involved at the trial upon the merits.

The State’s first witness at the suppression hearing was Sgt. James Attick. It was Sgt. Attick who received a report of a larceny from a Peoples Drugstore in Waldorf, Maryland, who received the description of the thieves and of the automobile they were driving, who placed the information on his dispatcher’s desk, who set up an observátion post on Route 301, who ultimately stopped the appellants’ vehicle and who arrested the appellants. His testimony was clearly critical.

At the end of his direct examination, the Assistant State’s Attorney was the first to notice that the appellants were not present in the courtroom. The following exchange took place:

“MR. LOYD: If Your Honor please, is his client here?
MR. GRIEFZU: My client is not here.
MR. FLYNN: My client is not here at this point.
MR. LOYD: I don’t know if we can go — I don’t know if we can go forward without the clients here.
THE COURT: I think — I thought they were here.
MR. GRIEFZU: No, sir.
MR. FLYNN: They are not here, Your Honor.
MR. CONROY: This is just a preliminary motion.
THE COURT: I think this is a preliminary motion.
The trial has not actually started.
Sometimes we take these matters up in the course of the trial and the Defendant would have to be present — This is a legal matter, preliminary to the trial.”

The hearing proceeded with the cross-examination of Sgt. Attick. At the conclusion of that cross-examination, the court reverted to the subject of the missing defendants:

“THE COURT: Senator Conroy, have you heard from your client?
MR. CONROY: Not at this point, Your Honor. We got a call yesterday at 5:30 in the afternoon. They know about the trial this morning and they should be here, but they are not here in this room.
MR. FLYNN: May it please the Court, as to my client, I was with him from 5:00 p.m. until 8:00 p.m. last night. He is well aware of the fact he was to meet me.
THE COURT: They may be outside. If they are, Mr. Starkey, let the Defendants in.
MR. STARKEY: Yes, Your Honor.”

There is no indication in the record of when the appellants finally arrived in the courtroom until page 52 of the transcript at a point well into the testimony of the sixth of the seven State’s witnesses. At that point, the State’s witness identified for the record the two appellants. In the meantime, Trooper Louis L. Dick testified. He participated in the arrest of the appellants. Trooper David Franklin testified. He took the appellants’ automobile into custody. Trooper Henry Rockel testified. He searched the appellant’s automobile and recovered the stolen goods, which formed the basis for the grand larceny conviction, and the controlled paraphernalia, which was the gravamen of the possession conviction. Trooper Walter Currence testified. He questioned the two civilians who had had contact with the appellants, obtaining their physical descriptions and a report of their activities. Richard Depenbrock began his testimony. He was a salesman present in the Peoples Drugstore when he noticed the appellants, on two occasions, carrying out boxes. He described his observation of them and his conversation with them. At that point in his testimony, he identified them. Only at this point does the record establish the presence in the courtroom of the two appellants.

Their presence for any appreciable time prior to that moment cannot be presumed. What we said in Collins v. State, supra, at 12 Md. App. 243-244, with respect to waiver applies with equal force to the non-presumption of the appellants’ arrival in the courtroom following their demonstrated absence in this case:

“[S]ince the right is constitutional, an effective waiver by the accused must be within the rule articulated in Johnson v. Zerbst, 304 U. S. 458, that is, an intentional relinquishment or abandonment of a known right or privilege. This must be clearly established. Presuming waiver from a silent record is ordinarily impermissible for acquiescence in the loss of fundamental rights may not be presumed. On the contrary every reasonable presumption against waiver must be indulged. Moore a/k/a Smith v. State, 7 Md. App. 330, 334, citing Brookhart v. Janis, 384 U. S. 1, Johnson v. Zerbst, supra, and Wayne v. State, 4 Md. App. 424.”

Our result would not be different, of course, had the appellants been absent only for the testimony of the first State’s witness and not, presumptively, for the five and one-half State’s witnesses who followed him to the stand.

The State, before us, argues only half-heartedly that the suppression hearing here was not “a stage of the trial,” and seeks to rely rather upon waiver, inferring that waiver from the acquiescence of the appellants’ counsel. It is, however, axiomatic that the right “to be present at every stage of . . . trial” is “an absolute right which is personal to the accused and cannot be waived by his counsel.” Saul v. State, 6 Md. App. at 545; Young v. State, 5 Md. App. at 389; Midgett v. State, 216 Md. at 37.

The precise question of whether a suppression hearing is “a stage of the trial” has not heretofore been before us. We have no difficulty in concluding, however, that it is, certainly in circumstances such as these, most definitely “a stage of the trial.” A dictum in Collins v. State, supra, at 12 Md. App. 243, n. 6, foretold the result we reach today:

“It is certainly as much a stage of the trial as, for example, is a pretrial hearing to suppress tangible evidence because obtained by an unreasonable search or to suppress evidence of identification because tainted by an illegal confrontation. Clearly, to conduct such a hearing in the absence of an accused, unless his presence was effectively waived, would violate his constitutional right of confrontation.”

Just as we draw direct support from the dictum of Collins, we draw indirect support (by way of very close analogy) from the holding of Collins. It was there held that the taking of a deposition which was ultimately used at the trial was, by virtue of that fact, a stage of the trial. Chief Judge Orth there said, at 12 Md. App. 243:

“Further, we think that the right to presence by the accused at the taking of a deposition arises also from his right to be present at every stage of his trial. This was a fundamental right at common law preserved in this State by Article 5 of the Declaration of Rights and stated with particularity by another provision of Rule 775. When the deposition is used at the trial proper as contemplated, the only opportunity for the accused to be confronted with the witness is at the taking of the deposition. Thus it is patent that the taking of the deposition must be considered to be a stage of the trial.”

We also find very persuasive the opinion of People v. Anderson, 16 N.Y.2d 282, 266 N.Y.S.2d 110, 213 N.E.2d 445, wherein the Court of Appeals of New York was faced with the question of whether “a hearing ... at which testimony is taken relative to evidence to be later used ... at trial, is in reality a part of the ‘trial’.” They held that it was. They there said, at 266 N.Y.S:2d 112-114:

“There is no justification for distinguishing between the defendant’s right to ‘be present’ in connection with testimony elicited at a trial on the propriety of a search and seizure and this same right in connection with testimony taken at a suppression hearing. ‘The statute’s purposes are two: to prevent the ancient evil of secret trials . . . and to guarantee the defendant’s right to be present at all important stages of his trial.’ . . . The significance of the suppression hearing is such that the rationale for requiring the defendant’s presence at the trial applies with equal force to require his presence at the suppression hearing. ‘[A] denial of a motion to suppress evidence is a crucial step in a criminal prosecution: it may often spell the difference between conviction or acquittal’ . . . The distinctions suggested by respondent, between the actual trial and the hearing required by the new statute, ignore the reasons underlying the enforcement of the right to be present whenever testimony is to be taken relating to evidence which is to be used against a defendant. In fact such distinctions lack support in the principles of practice and are equally lacking in reality or logic. The right of the accused to be present as a procedural safeguard at the trial is absolute. Expediency may not dictate procedural changes so as to take from a defendant the right to be present at the taking of testimony, even at a pretrial suppression hearing. At such a hearing the facts of the search and seizure are established for the purposes of the trial and the ruling of the hearing Judge is determinative of the issue of the legality of the search. For this reason the right of a defendant to be present at this hearing is collateral and analogous to his right to be present at the trial. It is hardly necessary to add that the defendant alone may be able to inform his attorney of inconsistencies, errors and falsities in the testimony of the officers or other witnesses. In such a circumstance to hold that his presence is not essential is to deprive him of the opportunity to defend — a denial of due process — since the determination of the motion to suppress often determines the ultimate question of guilt.”

In view of our disposition of the case on these grounds, it is unnecessary to deal with the other contentions raised by the appellants.

Judgments reversed; cases remanded for a new trial.

      . The appellants were tried together but took separate appeals. Because of the identity of the issues presented, and of the facts supporting those issues, we ordered the appeals to be argued and considered together.


author: Orth, C. J.,

text:
    WALTER J. RUSNACK v. GIANT FOOD, INC.
    [No. 896,
    September Term, 1974.]

      Decided May 9, 1975.

      The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.

      Charles W. Bell, with whom were Michael J. Ragland and Bell & Ragland, P.A. on the brief, for appellant.

      James P. Salmon, with whom were Sasscer, Clagett, Charming & Bucher on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

The only issue on this appeal is the propriety of the grant at the close of all the evidence of a directed verdict in favor of Giant Food, Inc., appellee, the defendant in a tort action brought by Walter J. Rusnack, appellant, in the Circuit Court for Montgomery County.

CASE SUMMARY

On 5 September 1972 Rusnack filed a declaration in the Circuit Court for Montgomery County against Giant, C. Dale Steinhauer and Leonard Davis. We are concerned with the action only as it affected Giant, the only defendant against whom trial proceeded. Damages were sought from Giant in count two for assault and battery, in count four for false arrest and in count five for malicious prosecution. The case went to trial before a jury on 22 July 1974. Giant’s motion for a directed verdict was granted at the close of all the evidence and on 29 July 1974 judgment was entered in favor of Giant for costs. Maryland Rule 552. Rusnack noted a timely appeal from the judgment.

THE FACTS

The rule of law prevails that where the court directs a verdict in favor of one of the parties, we must assume the truth of all credible evidence in the case tending to sustain the contentions of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom. Durante v. Braun, 263 Md. 685, 689, and cases therein cited. Thus, in determining whether a plaintiff has produced sufficient evidence to go to the jury, the evidence produced, as well as all legally permissible inferences drawable therefrom, must be considered in the light most favorable to the plaintiff. Wood v. Abell, 268 Md. 214, 231. We narrate the evidence adduced accordingly.

Rusnack, 59 years of age, lived with his wife and son in Rockville, Maryland. He was a chemical engineer by profession and had been employed for about 10 years by the Department of Commerce as a branch chief. He had no criminal record, and, in fact, before the incident here considered, had never before been arrested or charged with a crime. He had shopped many times in the past at the Giant Store on North Washington Street in Rockville, designated by Giant as its Store No. 105. On 9 May 1972, shortly before 7:00 p.m., he was in that store to get some ice cream, crackers and milk. He put those items in a shopping cart and went to the express checkout counter to pay for them. We recount what happened in his words:

“I was in this line waiting to get checked out. I did notice that there wasn’t anyone at the counter next to me. I stepped out of line and went to this counter and found that there were a number of groceries on the counter and I stepped back in line again.
The woman who was directly behind me took the place where I had been and I moved into line directly behind her. We were in that particular position for maybe two minutes or so, and then this man, who is to be identified as Leonard Davis, approached the counter, the checkout counter. . . . I had never seen him before. . . .
Well, this lady in front of me moved up to take her groceries out of her cart, which she did, and she moved her cart out of the road; and just as she did that, I started my cart moving up to take the place where she had been to wait my position in the line. Just as I moved my cart up, Leonard Davis jumped in front of me. He was with his back towards me. At that particular moment my cart contacted the back of his legs. . . . [The degree of force was] just the ordinary force that you use to actually push a cart into position. . . .
Well, then as soon as that occurred, he turned around and said something unintelligible to me. And he charged me. He charged me so viciously that I went down backwards and slammed the back of my head on the floor. And he came down on top of me. I was dazed and I was endeavoring to get up on my feet when I discovered that he had handcuffs. . . .
It went through my mind as to what was the matter with this man, what was he trying to do to me. He started to try to put these handcuffs on me and I started to struggle with him, of course. . . .
Well, I kept struggling, and I got up, partly up on my feet, and I turned around to the crowd to ask them if someone would go and get the police, that I was being manhandled there. Well, in the meantime, another man actually appeared on the scene and while Leonard Davis went and twisted my arm around my back and up. It felt like my arm was being pulled out of the socket.
Another man took hold of me on the right side. In the meantime, the handcuffs were put on my left arm and when I went down the second time, that’s when the other handcuff was put on me. My other arm was pulled behind me and I was struggling, in the meantime to get free. I had no reason to submit to this kind of treatment. . . .
When I went down the second time I asked him, ‘Are you a store guard?’ And he said, ‘Yes’, and he pulled this thing out of his pocket; and he pulled something out part way and then he pushed it back in again. I said, ‘Let me see that again.’ In fact, I asked him this four or five times to let me see that again. He wouldn’t show it to me anymore. I was so exhausted by that time with the struggling that had gone on; and, finally, they lifted me up because I couldn’t get up myself. They lifted me up and I saw Mr. Gill, I didn’t know his name at the time, but who he had been. I had seen him in the store previously. That I presumed that he was a store manager. I asked him, in particular, ‘Is this man a store guard?’ And he replied in one word, ‘Yes’ .... [Gill was] the manager or assistant manager. He seemed to be in charge that particular night. . . .
I was taken through the counters and I was standing there in front of the store. When the handcuffs were put on me before I got that far, Leonard Davis actually rammed this one handcuff down my left arm so tight that I was in such excruciating pain. . . .
First, he went and took my arm, pulled it clear up like this. He was trying — twisting my arm clear over my shoulder. . . .
Yes, on my left arm. As soon as he got m.y arm down behind me, that’s when they put the cuff on. When I went down that second time, that’s when the other arm was pulled behind me. I was struggling to get free in the meantime. That’s when he put the other handcuff on me behind my back. Before I got up, he give this handcuff a real squeeze on my arm which made it very, very tight and it dug into the skin. It felt like my arm was broken. ...
After I was handcuffed, I was taken in the front of the store and I was standing there. They followed me. I had to wait there until the police came and I was reflecting on the fact that, here, I just had gone in for a few articles and all of a sudden I find myself bleeding and beaten and handcuffed and humiliated in the way I was in waiting to be picked up by the police. . . .
I had my face lacerated or cut like — on the side of my face here. I had my forehead very much bruised and my nose bridge was bloody. The fact is, my face was very bloody while I was standing there. . . .
Well, I had my right ankle twisted. I felt like I had a sprained ankle. Later, I noticed I had other black and blue marks on my legs. ... I was taken outside after I was standing in front of the cash registers. Then, the County Police arrived and took me outside and, actually, placed me in their automobile. . . .
I lost my glasses. I lost my wrist watch. ... In the scuffle my glasses came off and they were badly twisted. My wrist watch was torn from my left arm and both of them I lost. I didn’t realize this until after when I was taken over to the police station. . . .
I went back to the Giant Store, after I was processed over at the police station, and I asked for my glasses; and I went to this man that was the manager, a Mr. Gill, I learned his name at that particular time from the name card that he had on his blouse, on his shirt, and he said he would help me find them. He told me my glasses were on the time clock and we went to search for the wrist watch. The only thing we could find of the wrist watch was the band. The watch was gone. I never did see.it afterwards. . . .
[Davis] showed up at the police station a little bit later; and while he was in the police station, I sat there for quite a long period of time. I guess they got the key from him and what not. That’s when they removed the handcuffs from my arms; and it was at that particular time that I held my arm up and said to the men that t .‘ought me there that they could testify as to the severe damage that was done to my left arm by those handcuffs. The skin had almost broken through and felt like the arm was broken, actually ... It was something of the order of an hour before I finally got out of there. . . .
First, I sat there for some time while they talked to Leonard Davis, or he was contacted — or he contacted somebody, I believe, and then someone asked him if he was going to prefer charges against me and he said, ‘Yes’.
Then these handcuffs were taken off me and I was brought into the police commissioner. When I went into the police commissioner’s office, Corporal Schwartzel brought me some wet paper towels and I started to take some of the blood off my face. He told me my face was very, very bloody and that I could clean it up. This is what I started to do. I then related the incident that had occurred to me to the police commissioner, and it was then that I was finally allowed to go back to the store and hunt for my glasses and for my wrist watch.”

A summons was issued in the District Court of Maryland for Montgomery County charging Rusnack with the assault and battery of Davis. He was released on his own recognizance. He was tried on 29 June 1972 and found not guilty.

Davis was described by Rusnack and eyewitnesses to the incident as a man in his early thirties, about 5 feet 10 inches tall, of medium build and “fairly muscular,” and dressed in civilian clothes. Information about him came into evidence primarily through Leonard Abelman, employed by Giant as an Internal Security Employment Investigator in the Department of Watch Prevention, formerly called the Security Department. Abelman was a store detective for Giant when Davis was first employed by Giant as a store detective. They both worked at Store 69 until Abelman was promoted to the position of Investigator. While they were together Abelman worked with him on the floor for about two weeks “showing him the ways that we operate as store detectives and so forth.” Abelman was not familiar with the training Davis may have had before and after that time. All security personnel were issued an identification card with a photograph of the employee, his name, height, weight, and thumb print and the title of his position. Security officers are not issued handcuffs. Abelman did not know whether Davis was authorized to use them or not. “That is really up to the District Security Superintendent who is there, the District Supervisor, or whatever policy he would decide on for his particular area.” If authorized to carry handcuffs, the employee must himself furnish them. Security officers were not allowed to carry other accessories such as revolvers and blackjacks, “[m]eaning we don’t supply and we don’t allow our people to use that type of equipment.” A security officer was authorized to swear out warrants in the course of his duties. “When he was on duty and in his assigned store, then he was allowed to make apprehensions of people and to swear out warrants against them.” Abelman later explained: “[H]e technically could not make an arrest. He could detain the person for the police to come and make the arrest.” In the past Davis had “apprehended people and detained them at the store for the police to come so they can arrest people.”

A security officer who saw someone shoplifting or disorderly or breaching the peace could on his own initiative — “he would be acting on his own” — detain the offender and have the police make the arrest. Evidence adduced was equivocal with respect to the authority of a security officer to detain suspects and swear out warrants for their arrest while not in a store to which he had been assigned or while off duty. The matter came up during the examination of Abelman. The transcript reads:

“Q. Is there any requirement or any restriction or was there any requirement or any restriction on Mr. Davis on May 9, 1972 that he could not make an arrest in any Giant Food, Inc. store if he saw, in fact, if he was on duty and, in fact, saw a violation of law?
A. Well, if Mr. Davis had been on duty on that day and had been working in the store that he was assigned to, then he would have been able to act in his capacity as a store detective as he would in any store when he was on duty and is working.
Q. If Mr. Davis had been in a store to which he was not assigned on that day and had his identification and equipment with him and saw what he thought was a violation, would he have been authorized by his employer to make an arrest?
A. No, sir, bécause if he is not in the store to which he is assigned, then I would have to say he must be off duty;' and we have never delegated any authority to our security people to make an arrest when they are off duty.
Q. But you never told them they couldn’t if they observed a violation of law while in any Giant Store, have you?
A. Sir, it has never come up. And as I said, we never delegated the authority to our people to make an arrest and certainly not in a personal situation. . . .
Q. Have they been actually given any authority to what they can or cannot do? I am speaking now of the security personnel including Mr, Davis when in other stores to which assigned or to stores other than those to which they are directly assigned?
A. We have, as I have said, the subject has never come up, to my knowledge; and we just have never delegated the authority or told our people that they can make an arrest whenever they are in one of the stores and happen to see something. It has just never come up, and we have never delegated the authority to do something like that.
Q. On the same hand, you never told them they are not to do so, have you?
A. Not to my knowledge, no, sir.
Q. Have they been told they are to leave their handcuffs, badges, or identification at home when they are not in the store working, specifically, in the store to which they are assigned?
A. No, sir.”

It was clear that Davis was not on duty on 9 May 1972 in Giant Store No. 105 on North Washington Street. The payroll records showed that he had worked there for 38 hours about a month before the incident with Rusnack. For the week ending 13 May, which included 9 May, Davis worked only one day and that day he worked at Store No. 69 on the Rockville Pike. It was the practice of the security personnel to identify themselves to the manager when they came on duty. Davis had not done so on 9 May 1972 and Franklin Gill, the manager on duty said flatly that Davis was not on duty at the time of the Rusnack incident. It was apparent that Davis was in the store shopping. Gill knew that Davis was a security officer because of the incident of the employee and the cream. Davis shopped in the store “twice a week.” Gill had seen him there “numerous times during the week.”

Although there were no witnesses who saw what precipitated the incident, there were several who saw Davis assault Rusnack and their version was not in substantial conflict with that given by Rusnack. Gill told one of them, Steinhauer, a customer, that Davis “was making an arrest. He was the store detective.” It was then that Steinhauer grabbed Rusnack and held him while Davis put on the handcuffs. “I assumed he was doing his job and that, you know, he needed help in getting Rusnack.” Margaret Sullivan, another customer, ran to Gill when she saw two men on the floor struggling, and asked if the police had been called. Someone told her Davis was “a security man.” Someone also asked Davis for identification. She may have done so or it may have been Rusnack. Davis did not identify himself. At the police station Davis signed the application he made for a summons as “Security Officer Leonard Davis, 12051 Rockville Pike, Rockville Md.” The address was that of Giant Store No. 69. In the application, received in evidence as part of Rusnack’s exhibit No. 5, Davis set out his version of what happened:

“I got in line behind a lady and stood in line for five minutes and the lady in front of me put her merchandise on the counter, and I move the cart and went to put the merchandise on the counter, I felt a hard blow on my leg, I dropped the merchandise in my hand and I got hit again, the third time I grabbed the cart and pushed the cart away from me and he hit at me and I grab his arm to keep from being hit, and we fell to the floor. The second time we fell, I put my handcuff on him, with the assist of another fellow.”

THE LAW

The doctrine of respondeat superior arises from the principle that the liability of the master for the tortious acts of the servant rests at last upon the existence of authority, that the act must have been done in the course of employment which the master has authorized, and that, unless such authority can be shown, there is no liability. In other words, “[w]here the relationship between the employer and employee is that of master and servant and an attempt is made to hold the master liable for the tortious acts of the servant, the master is liable only for those acts of the servant which have been committed while in the exercise of those acts expressly or impliedly authorized by the master.” East Coast Lines v. M. & C. C. of Balto., 190 Md. 256, 284. See A. & P. Co. v. Noppenberger, 171 Md. 378, 392. “The fact that the servant is in the general employment of the master does not create an inference that a certain act done by him was in the scope of his employment. To be within the scope of the employment the conduct must be of the kind the servant is employed to perform and must occur during the period not unreasonably disconnected from the authorized period of employment in a locality not unreasonably distant from the authorized area, and actuated at least in part by a purpose to serve the master.” East Coast Lines, at 285, paraphrasing Noppenberger at 390. Restatement (Second) of Agency § 229 (1958) discusses the kind of conduct which is within the scope of employment:

“(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between different servants;
(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.”

See Noppenberger at 390-391. An act may be within the scope of employment although forbidden or done in a forbidden manner, id., § 230; although consciously criminal or tortious, id., § 231; although done in part to serve the purposes of the servant or a third person, id., § 236. On the other hand, the conduct of a servant is within the scope of employment only during a period which has a reasonable connection with the authorized period, id., § 233, and only in the authorized area or in a locality not unreasonably distant from it, id., § 234. An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed, id., § 235. Comment b to § 235 states:

“The servant may be within the scope of employment, although his departure from instructions in the performance of his work is for his own purposes, if his act is done with the intent to serve his employer.”

Comment c to the section reads:

“The fact that an act is done in an outrageous or abnormal manner has value in indicating that the servant is not actuated by an intent to perform the employer’s business. ... In such cases, the facts may indicate that the servant is merely using the opportunity afforded by the circumstances to do the harm. Hence, unless the principal has violated a personal duty to the person injured, or unless he becomes liable because of the nature of the instrumentality entrusted to the servant . . ., he is not liable for such acts.”

Also, a master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant’s employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant. Id., § 245. In Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 214, the Court of Appeals gave a capsule statement of the test, as it was set out in Wood on Master and Servant, § 279, and quoted in Sawyer v. Railroad, 142 N. C. 7, 54 S. E. 793:

“The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By ‘authorized’ is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.”

This was quoted with approval in Lewis v. Accelerated Express, 219 Md. 252, 255, and LePore v. Gulf Oil Corp., 237 Md. 591, 595. The first sentence was iterated in Drug Fair v. Smith, 263 Md. 341, 350, and emphasis added to the phrase “furtherance thereof, and were such as may fairly be said to be authorized by him.” Wood v. Abell, 268 Md. 214, 227, repeated it as it was set out in Drug Fair. It is clear that it is the present law of this State. Concisely stated the test is whether the servant was advancing his master’s interests in doing what he did at the time he did it.

It was early settled in Maryland that whether the act of the servant complained of is within the scope of his duty while acting in furtherance of his master’s business is generally to be determined by the jury as a matter of fact and not by the court as a matter of law. Consolidated Ry. Co. v. Pierce, 89 Md. 495, 503, cited in Deck v. Balto. & Ohio R. Co., 100 Md. 168, 182. There is a proviso, however. In Drug Fair v. Smith, supra, at 346-347, the Court of Appeals recognizing that “the issue of whether a servant is acting within the scope of his employment is ordinarily a question for the jury”, added, “but this is so, only if there is a factual dispute.” See D. C. Transit System v. Brooks, 264 Md. 578, 586. Where there is no conflict in the evidence relating to the question and but one inference can be drawn therefrom, the question is one of law for the court. Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 585.

DECISION

There was manifestly no dispute as to certain of the facts. Davis was employed by Giant in the status of its servant. He was not assigned to the store in which the incident occurred nor was he on duty at the time it occurred. That Davis and Rusnack fought, the salient features of the struggle and the outcome were not in conflict, and, indeed, Rusnack’s version was corroborated by other customers and the store manager. There are two areas in which it may be said a factual dispute existed, (1) Davis’s authority while off duty to perform the services for which he was hired, and (2) what precipitated the fight. But no matter how a jury resolved those factual disputes, the evidence would still be legally insufficient to establish Giant’s liability. Even if Davis were authorized to guard his employer’s property and keep the peace while off duty in a store to which he was not assigned to work, and no matter which version of the circumstances leading to the fight is accepted as true, the evidence was not sufficient in law to permit a jury to find that Davis’s presence in the store and his acts with respect to Rusnack were in any way actuated by a purpose to serve his master. The only reasonable inference from the evidence is that he was in the store on personal business — as a customer to make some purchases. He had made them and was in the process of getting in the checkout line to pay for them. Whether Davis was then bumped inadvertently by Rusnack and immediately assaulted and beat Rusnack, as Rusnack said, or whether Davis upon being purposely bumped and struck by Rusnack, acted in self-defense, as Davis indicated, the result is the same. No matter which version is accepted as correct, it cannot be fairly said that Davis was advancing Giant’s interests in doing what he did at the time he did it. In short, the evidence was not legally sufficient to show that his acts were within the scope of his employment, done while prosecuting Giant’s business in furtherance thereof so as fairly to be said to have been authorized by Giant. There was nothing to show that the actions of Davis were incident to the performance of the duties entrusted to him by Giant. The only reasonable inference from the evidence is that Davis’s motivation was. solely and exclusively personal, not related to his position as an employee of Giant. His act was unexpectable in view of his duties. If it was done as Rusnack said, it was outrageous, indicating that Davis merely used the opportunity afforded by the circumstances to do harm. If it was done as Davis said, it was not even tortious. In neither case was there evidence of an intent on Davis’s part to serve his employer. Giant violated no personal duty to Rusnack and was not liable in the circumstances for Davis’s act.

We hold that the trial court did not err in directing a verdict in favor of Giant at the close of all the evidence.

Judgment affirmed; costs to be paid by appellant.

      . On 17 May 1973 Rusnack dismissed with prejudice the cause as to Steinhauer. Davis was never served, and on 21 November 1974 Rusnack dismissed without prejudice the cause as to him.

      . As such Investigator, Abelman worked out of the main office as a “troubleshooter”, going to any store in which a problem arose.

      . Abelman said that “store detective”, “security detective”, and “security officer”, are synonymous as those terms are used within the Giant organization.

      . It appeared that Davis did not hold a special police commission. See Code, Art. 41, §§ 60-70, subtitle “Special Policeman.” According to Abelman, Davis had such a commission when he worked for the Hecht Company, “and when he left the Hecht Company that commission was cancelled.”

      . Franklin E. Gill, the night manager of the Giant store in Rockville, told of a previous occasion when Davis, not on duty, had brought to his attention an incident involving another employee. “[Davis] was shopping in the store one night at closing time. We had a grocery crew that came in around twelve, I believe. He came up to the office and told me that he had — he identified himself and showed me his identification from Giant Food and said that one of the grocery crew had taken a pint of cream off the shelf and put something in his coffee and set it over on the counter.”

      . For the week ending 8 April Davis worked at Store No. 54, a Super Giant on East-West Highway and Colesville Road, and at No. 69. The weeks ending 15 April, 22 April, 29 April, and 6 May, he worked only at No. 69. The week following the incident he worked 6V2 hours at No. 69 and received 24 hours sick leave. He was “terminated” on 24 May 1972. Abelman explained: “Whenever anyone leaves our company, resigns or is fired or leaves for any reason, the terminology we use, we say he was terminated from the company.” It seems that Davis resigned.

      . Noppenberger points out, at 389-390, that the doctrine of apparent authority is applicable only where the relation of employer and employee is that of principal and agent. “In the case of a servant, whose acts do not create, but violate, primary rights, and give rise to secondary obligations and remedial rights, appearances are of less importance because ordinarily the third party is not misled by the master’s representations of the servant’s authority. . . In such a case the course of employment is said to be the basis of liability.” Id., at 390.

      . The source of these statements was given in Noppenberger as “A.L.Inst., Restatement, Agency”, secs. 228, 229, 233, 234, 235, 236. Restatement (Second) of Agency § 228 (1958) reads:
      “(1) Conduct of a servant is within the scope of employment if, but only if:
      (a) it is of the kind he is employed to perform;
      (b) it occurs substantially within the authorized time and space limits;
      (c) it is actuated, at least in part, by a purpose to serve the master, and
      (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
      (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.”

      .- Comment c to § 245 states:
      “Whether or not an employment involves or is likely to lead to the use of force against the person of another is a question to be decided upon the facts of the individual case. To create liability for a battery by a servant upon a third person, the employment must be one which is likely to bring the servant into conflict with others. The making of contracts, or the' compromise, settlement, or collection of accounts, does not ordinarily have this tendency. On the other hand, the employment of servants to guard or to recapture property, to take possession of land, or to deal with chattels which are in the possession of another, is likely to lead to altercations, and the master may become liable, in spite of instructions that no force shall be exerted against the person of the possessor.”

      . That the manager told a customer during the altercation that Davis was a store detective making an arrest, and that someone told another customer that Davis was a “security man” did not put liability for Davis’s act on Giant. As we have indicated, the manager did not know what precipitated the fight, but did know that Davis was in Giant’s employ as a security officer. This in no sense was a ratification of Davis’s act so as to b¡nd Giant. See Restatement (Second) of Agency § 218 (1958); Globe Indemnity Co. v. Victill, supra.