text:
    THEODORE R. VERKOUTEREN et al. v. SUPERVISOR OF ASSESSMENTS, MONTGOMERY COUNTY, MARYLAND et al.
    [No. 236,
    September Term, 1977.]

      Decided December 8, 1977.

      The cause was argued before Morton, Thompson and Liss, JJ.

      Daniel N. Steven, with whom were Goldberg, Waldman, Days & Jones on the brief, for appellants.

      Kaye T. Brooks, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee Supervisor of Assessments. H. Christopher Malone, Assistant County Attorney, with whom was Richard S. McKemon, County Attorney for Montgomery County, on the brief, for appellee Montgomery County, Maryland.
   Thompson, J.,

delivered the opinion of the Court.

Theodore and Marguerite Verkouteren, the appellants, appeal from an order of the Circuit Court for Montgomery County signed by Judge Richard B. Latham sustaining a demurrer to their bill for declaratory relief without leave to amend. On appeal we are presented with the question whether the appellants were required to exhaust their statutory remedy before resorting to the courts to challenge the method of determining the assessed value of brick homes in Montgomery County. As we believe exhaustion was required, we shall affirm the order of the Circuit Court.

The appellants are the owners of three brick houses in Montgomery County. In February of 1975 they were notified of the final assessment against their properties for the assessment year 1975. Dissatisfied with the assessment, the appellants filed an appeal with the Property Tax Assessment Appeal Board attacking the method of depreciation used by the Supervisor of Assessments in computing the assessed value of their houses. The Board affirmed the assessments by an equally divided vote and an appeal was taken to the Maryland Tax Court under Md. Code, Art. 81, § 256. Prior to determination by the Tax Court the appellants filed this class action suit in the Circuit Court for Montgomery County against the Supervisor of Assessments on behalf of themselves and all other similarly situated homeowners seeking a declaration that the assessment method used in computing the 1975 assessments was improper. They also sought a declaration of the method’s invalidity for all future assessment years. Montgomery County filed a motion for leave to intervene pursuant to Md. Rule 208 and the motion was granted.

The specific allegations contained in the bill charged that the Supervisor of Assessments was improperly computing depreciation under a 1948 directive issued by the State Department of Assessments and Taxation. The 1948 directive mandated that the straight line method of depreciation be used to value homes and provided that the useful life of masonry houses was two hundred years while it limited the useful life of frame houses to one hundred years. According to the bill the 1948 directive was superseded by guidelines adopting the Boeckh Manual of Appraisal which were issued in 1958 and amended in 1970 and 1973. Under the Boeckh Manual the useful life of masonry homes was reduced substantially.

The appellants urged that use of the superseded 1948 directive in computing depreciation violated Md. Code, Art. 81, § 244 which provides:

“The State Department of Assessments and Taxation from time to time shall formulate a uniform plan for the assessment of property, which shall be followed strictly by the county commissioners of the several counties, in the State, and by the appeal tax court and by all courity and city assessors, for all subsequent reassessments and reviewals of assessments authorized by this article.”

The appellants also alleged that the use of the 1948 directive in Montgomery County and use of the Boeckh method in other counties impaired the uniformity of assessments in contravention of Art. 15 of the Maryland Declaration of Rights.

Montgomery County and the Supervisor of Assessments demurred stating in essence: (1) declaratory relief could not be granted because the appellants had not exhausted their administrative remedies, (2) a class action could not be maintained to attack assessments, (3) the depreciation guidelines were not a “plan” within the meaning of Md. Code, Art. 81, § 244, (4) the appellants are barred by laches, and (5) no actual controversy exists between the parties concerning future assessments. The only point considered by the trial judge was the exhaustion of remedies. He ruled that the declaratory judgment suit was inappropriate as those remedies had not been exhausted and dismissed the suit. On appeal the appellants argue exhaustion of their statutory remedies was not required because a constitutional issue was raised and the statutory remedy was inadequate.

Generally, when a remedy is provided by statute that remedy is exclusive and must be exhausted before relief can be sought by declaratory judgment. State Department of Assessments and Taxation v. Clark, 281 Md. 385, 380 A. 2d 28 (1977); Md.-Nat’l C.P. & P. Com. v. Wash. Nat’l Arena, 37 Md. App. 346, 377 A. 2d 545 (1977), cert. granted, November 22, 1977. This concept of exhaustion was embodied in the Declaratory Judgment Act by the legislature. Md. Code, Courts & Judicial Proceedings Art. § 3-409 (b) provides:

“If a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle.”

This statutory rule of exhaustion is not absolute. Two notable exceptions have been recognized. Declaratory relief may be sought where: (1) the constitutionality of a statute, in its entirety, is involved and there is no by-passing of the expertise of the administrative agency. State Department of Assessments and Taxation v. Clark, supra; Poe v. Mayor of Baltimore, 241 Md. 303, 216 A. 2d 707 (1966); Pressman v. State Tax Commission, 204 Md. 78, 102 A. 2d 821 (1954), and (2) the special form of remedy is inadequate or does not provide for judicial review. See Poe v. Mayor of Baltimore, supra.

The appellants argue they fit within both these exceptions when, in fact, they do not fit within either. The appellants urge that a declaratory judgment action may be maintained anytime a constitutional issue is involved citing Pressman v. State Tax Commission, supra, and Kracke v. Weinberg, 197 Md. 339, 79 A. 2d 387 (1951). This contention was rejected by the Court of Appeals in Poe v. Mayor of Baltimore, supra, and State Department of Assessments and Taxation v. Clark, supra. In Clark, Judge Orth writing for the Court stated:

“There are general statements in past opinions of this Court, which taken apart from the actual decisions involved, appear to support the claim that even though there be an administrative remedy, a court of equity may intervene and act when a constitutional question is involved. See Schneider v. Pullen, 198 Md. 64, 68, 81 A. 2d 266 (1951); Kracke v. Weinberg, 197 Md. 339, 343, 79 A. 2d 387 (1951). The law on the matter was made clear in Poe. It declared that where there is full opportunity for a property owner to protest an assessment to administrative agencies and adequate provisions for judicial review of the agencies’ action, a court shall not take jurisdiction unless the administrative remedies have been exhausted. This is so even though a constitutional issue has been raised, when that issue goes to the application of a general statute to a particular situation, as contrasted with a constitutional attack upon the validity of a general enactment as a whole, which is reviewable in any event. Id. at 308-309. The Poe rule was fully in accord with prior decisions of this Court, and has since been affirmed and consistently applied.” [Footnotes omitted].

Although the appellants do not challenge the validity of any statute, either in its entirety or as applied, they point out that they are attacking an entire method of assessment and not just the assessment of their particular houses. Apparently they would have us hold that anytime the constitutionality of an assessment method is challenged in its entirety it presents an analogous situation to a facial attack on a statute and declaratory relief may be sought. This argument ignores the reason behind the exception to the requirement of exhaustion. Adjudication of the constitutionality of an entire statute is essentially a judicial function and it is generally desirable to secure a prompt determination of the statute’s constitutionality thereby avoiding unnecessary expense and delay to both individuals and public officials alike. See Pressman v. State Tax Commission, supra; Commissioners of Cambridge v. Eastern Shore Public Service Co., 192 Md. 333, 64 A. 2d 151 (1949). The validity of the application of a statute, however, usually involves factual issues which have been committed to the expertise of administrative agencies by the legislature and in many instances the constitutional issue may never arise if the administrative remedy is exhausted. See Poe v. Mayor of Baltimore, supra.

In the instant case the determination of the propriety of the assessment method is clearly within the expertise of the administrative agencies provided and is inappropriate for declaratory relief. The constitutional issue presented in this case revolves around Article 15 of the Maryland Declaration of Rights which provides in part:

“[T]he General Assembly shall, by uniform rules, provide for the separate assessment, classification and sub-classification of land, improvements on land and personal property, as it may deem proper; and all taxes thereafter provided to be levied by the State for the support of the general State Government, and by the Counties and by the City of Baltimore for their respective purposes, shall be uniform within each class or sub-class of land . . . .”

The legislature has provided for the uniform method of assessment mandated in Md. Code, Art. 81, § 14 (b) (1) which states:

“All real property directed in this article to be assessed, shall be assessed at its full cash value on the date of finality. The term full cash value as used in this subsection means current value less an allowance for inflation .. ..”

The issue raised goes to the question whether the failure to apply a non-uniform depreciation method results in something other than a uniform assessment. No constitutional violation occurs just because the assessment method is not the same for all property in the state. It is firmly established that in valuing property assessors have reasonable latitude in selecting a method of valuation, so long as they assess the property at its full cash value. See Weil v. Supervisor of Assessments, 266 Md. 238, 292 A. 2d 68 (1972); Macht v. Department of Assessments, 266 Md. 602, 296 A. 2d 162 (1972). Hence, in order for the method used to result in a non-uniform rate of tax the property must be assessed at some figure other than its full cash value. Determining whether the method of depreciation causes the appellant’s property to be assessed at something other than full cash value is basically a factual question involving the expertise of the administrative agencies established under Art. 81. In deciding this factual issue it might turn out that the depreciation method used does not create a discrepancy in the valuation of real property and the constitutional issue would never arise. It is for these reasons that declaratory relief is inappropriate.

The appellant also contends the statutory remedy is inadequate because the tax court could do no more than reverse the individual assessment for 1975; it could not prohibit use of the assessment in 1976 nor could it invalidate the assessments for all taxpayers. Although the tax court cannot reverse all assessments for a given year in one suit, each individual taxpayer who is aggrieved by his assessment can use the statutory remedy provided. This remedy affords adequate protection of their rights. Each taxpayer is required to be notified of the final assessment under Md. Code, Art. 81, § 29 and that assessment can be appealed to the Property Tax Assessments Appeal Board under § 255. If the taxpayer is still not satisfied, an appeal can be taken to the Maryland Tax Court under § 256 and its decision is reviewable by the Circuit Court. See § 229. The decision of the Circuit Court can then be appealed to this Court and ultimately the taxpayer can seek review by the Court of Appeals through a writ of certiorari. See Md. Code, Courts & Judicial Proceedings Art. § 12-201.

The remedy is not inadequate merely because only the assessment for a given year can be reviewed. There is no reason to believe the Supervisor of Assessments would ignore any final court determination that the method of assessment employed by Montgomery County was impermissible and continue to use the same method in the future.

Order affirmed.

Appellants to pay the costs.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    IN RE APPEAL NO. 267, September Term, 1977 from the District Court of Montgomery County, Maryland, sitting as a Juvenile Court
    [No. 267,
    September Term, 1977.]

      Decided December 9, 1977.

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

      Frank J. Coviello, Assigned Public Defender, for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Michael Masin, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On January 19, 1977, Dwayne Dyson (appellant) was convicted in the District Court of Maryland for Montgomery County, sitting as a Juvenile Court, of contributing to the delinquency of a minor. He presents two questions for our review:

“1. Did the trial judge err by failing to grant appellant’s motion for judgment of acquittal at the close of all of the evidence, since the State failed to prove that the accused was an adult, this being an essential element of the crime charged?
“2. Did the State’s proof concerning the corporate status of the store contained in the charging petition fail to correspond with the allegations in said petition wherein no corporate status was mentioned?”

The record indicates that on October 20, 1976, appellant met a fourteen year old minor outside a pool hall in Washington, D. C. The minor then accompanied appellant and a third party to Howard University where they stole an automobile. The three eventually drove to the Super Giant store at 12051 Rockville Pike in Montgomery County, Maryland. Inside the store, appellant and the third party forced open a watch display case and removed five watches, while the minor occupied the attention of the jewelry clerk. This action was detected, however, by the store’s security guards, and all three were apprehended when they left the store without paying for the watches. On December 15,1976, the minor was tried in a juvenile proceeding for his participation in the shoplifting and was adjudicated a delinquent.

I

The offense of which appellant was convicted is set out in Md. Ann. Code, Cts. & J. Proc. Art., § 3-831 (1976 cum. supp.) as follows:

“§ 3-831. Contributing to certain conditions of child.
(a) It is unlawful for an adult wilfully to contribute to, encourage, cause or tend to cause any act, omission, or condition which renders a child delinquent, in need of supervision, or in need of assistance.
(b) A person may not be convicted under this section unless the child has been adjudicated delinquent, in need of supervision, or in need of assistance. However, the court may expunge the adjudication from the child’s record and enter it as a finding in the adult’s case.” (Emphasis supplied.)

Md. Ann. Code, Cts. & J. Proc. Art., § 3-801 (c) defines “adult” as “a person who is 18 years old or older.”

There is nothing in the record to support a finding that appellant was 18 years old or older at the time of the alleged offense. The issue before us is whether appellant’s conviction can stand absent such evidence.

In denying appellant’s motion for judgment of acquittal the trial judge stated:

“In regard to your motion, I will not grant the motion for a judgment of acquittal, certainly not because this court by looking at Dwayne can make a determination whether he is or is not over the age of eighteen.
The petition before the court alleges that he is an adult, it further alleges that he was born on the 4th day of September of 1958. That aspect is the ruling of this court as to whether or not he is an adult or whether or not he is a child does not have to be proven unless, however, there is some question as to the age. So therefore I will deny the motion for a judgment of acquittal. Anything further?”

It is thus apparent that the trial judge concluded that under the statute minority is a defense which must first be raised by the defendant before the prosecution is required to prove that he was an adult at the time he committed the offense. We hold, however, that adulthood is an essential element of the statutory offense and that under the general rule applicable in criminal cases the burden was upon the State to prove it beyond a reasonable doubt. In re Winship, 397 U. S. 358, 364, 90 S. Ct. 1068, 25 L.Ed.2d 368, 375 (1970). Under the statute, minority is not a matter that must first be raised by the defense. Where as here the evidence fails to show the accused is an adult, a judgment of conviction cannot be sustained. The judgment will therefore be reversed and a new trial awarded. Gray v. State, 254 Md. 385, 397, 255 A. 2d 5 (1969), cert. denied, 397 U. S. 944 (1970).

The State relies upon Foxwell v. State, 146 Md. 90, 125 A. 893 (1924), to support its contention that it was not necessary for it to prove affirmatively the appellant’s adulthood. The reliance is misplaced. In Foxwell the Court of Appeals construed Md. Ann. Code, Art. 27, § 422 (1912), and held:

“The Code section just cited concludes with a proviso that it shall not apply to male persons under the age of eighteen years. It was argued that the indictment should have alleged the appellant’s age to have been beyond the limit which the proviso specified. This was not a necessary averment. The restriction by the proviso as to the application of the statute, according to the age of the accused, afforded a possible ground of defense which the indictment was not required to anticipate and negative. The provision was not incorporated in the description of the offense with which the statute was concerned. It was an exemption provided in a subsequent clause and available to the accused only in the event of the existence of a fact peculiarly unthin his own knowledge.” (Emphasis added.)

Thus, where the legislature intends that age be a possible ground of defense, rather than an element of the offense, it so indicates by providing an exemption in a clause subsequent to that containing the substantive offense. In the instant case, the provision dealing with age (i.e. the use of the term “adult”) is contained not in a subsequent clause as an exemption but rather is inseparably incorporated in the description of the offense. We think the legislature clearly intended, therefore, that adulthood be an element of the offense and not that the lack thereof be a possible defense which must first be raised by the defendant. See Kiefer v. State, 87 Md. 562, 40 A. 377 (1898). See also Howes v. State, 141 Md. 532, 119 A. 297 (1922); State v. Jenkins, 124 Md. 376, 92 A. 773 (1914); Stearns v. State, 81 Md. 341, 32 A. 282 (1895).

Our decision is supported by the weight of authority in other jurisdictions that have construed statutes similar to the one at hand. For example, in People v. Mantalvo, 4 Cal. 3d 328, 93 Cal. Rptr. 581, 482 P. 2d 205 (1971), the Supreme Court of California said:

“Section 11502 provides that every ‘person of the age of 21 years or over’ who commits any of the proscribed acts is guilty of a criminal offense. There is nothing whatever in that language to suggest that majority is not an element of the crime that the prosecution must prove or that minority is a defense that the defendant must assert. The Legislature is fully cognizant of the rules placing on the prosecution the burden of proving every element of the offense charged and guaranteeing the defendant a jury trial on every such element regardless of the state of the evidence.” 482 P. 2d at 208.

In Rich v. State, 266 P. 2d 476 (Okla. Crim. 1954), the Criminal Court of Appeals of Oklahoma was faced with the issue of whether there was sufficient evidence to convict the appellant of child molesting, in violation of 21 O.S. § 1123 (1951). That statute provided, in pertinent part, as follows:

“Any adult person who shall knowingly and intentionally make any oral or written lewd or indecent proposal to any child under the age of fourteen (14) years . .. .”

In Rich the Court stated:

“In connection with the first assignment of error, it is clear that the statute provides that the act of intentionally or designedly molesting the body of a child under the age of 14 years can only be committed by an ‘adult person’. Adult persons are defined by statute as being males 21 years of age and females 18 years of age. 15 O.S. 1951, § § 13,14.
“It is true that there is no direct evidence in the record as to the age of the accused. He did not testify and offered no evidence in his behalf. However, this is a material element of the offense and may be proved by circumstantial evidence the same as by direct evidence.” (Emphasis added.) 266 P. 2d at 478.

And further on:

“The jury was correctly instructed that the burden was upon the state to prove the elements of the offense including that the alleged offense was committed by an adult person.”

In Brooks v. State, 435 S.W.2d 523 (Tex. Crim. 1968), the Criminal Court of Appeals of Texas reversed a conviction for aggravated assault under a statute [Article 1147 (9), Vernon’s Ann. P.C.] which provided that assault becomes aggravated, “When committed by an adult male upon the person of a female or child. ...” The Court in Brooks stated:

“In a prosecution under the provisions of Article 1147 (9), Vernon’s Ann. P.C., the prosecution is required to allege and bound to prove that the accused is an adult male person. 6 Tex.Jur.2d, Assault and Battery, § 73, p. 307, § 80, p. 313. Where the evidence fails to show the accused is an adult male, a judgment of conviction for aggravated assault cannot be sustained. Bennett v. State, 79 Tex.Cr.R. 380, 185 S.W. 14, 15.” Id. at 524.

The Court in Brooks also noted that there can be no presumption “against the appellant relating to his age”. Id. See also Graham v. State, 46 S.W.2d 709, 710 (Tex. Crim. 1932) (where the evidence fails to show that the accused is an adult, a judgment of conviction for aggravated assault cannot be sustained).

And finally, in Stone v. State, 41 N.E.2d 609 (Ind. 1942), the Supreme Court of Indiana reversed a conviction of contributing to the delinquency of a minor under a statute [Section 18, chapter 233, Acts 1941] which provided that:

“It shall be unlawful for any adult to commit any act or omission which would in any way encourage or tend to cause any child to come within the provisions of this act or to counsel or encourage any child to commit any of the acts specified in Sec. 5, subsection A of this Act.”

By section 3 of the Act, “The word ‘adult’ means a person eighteen years of age or older.”

In Stone, the Court stated:

“The age of the appellant is not disclosed by the evidence, although it may be surmised that she was a young girl* and of the approximate age of eighteen years. The statute, if it is valid, applies only to adults. The affidavit would not state an offense unless it alleged, as it does, that the defendant is an adult. What must be alleged must be proven, and there is no proof of appellant’s age. The appellee contends that this was a matter of defense, but it is not, and no authority is cited to sustain the contention.” 41 N.E.2d at 611. (Emphasis supplied.)

II

Appellant contends that there was a fatal variance between that which was alleged in the charging document and that which was proven at trial. The “Juvenile Petition — Adult” under which appellant was charged alleges that “respondent encouraged and tended to cause Preston Bennett, a juvenile, to shoplift 5 watches from the Super Giant Department Store, Rockville, Maryland”. The evidence produced at trial established that the watches were owned by “Giant of Maryland, Incorporated”, located in Rockville, Maryland. While we doubt that the allegation of ownership of the watches was “essential and material to the offense charged”, Benjamin v. State, 9 Md. App. 373, 375, 264 A. 2d 490 (1970), we need not decide that issue today. The Petition may be amended on remand to reflect the true owner of the watches “at any time before verdict”. Md. Rule 713; Wilkins v. State, 4 Md. App. 334, 242 A. 2d 808 (1968).

Judgment reversed.

Case remanded for a new trial.

Costs to be paid by Montgomery County.

      . “If any person shall carnally know any female not his wife, between the ages of fourteen and sixteen years, such carnal knowledge shall be deemed a misdemeanor and the offender being convicted thereof shall be punished by imprisonment in the house of correction for a term not exceeding two years, or be fined in a sum not exceeding five hundred dollars, or be both fined and imprisoned in the discretion of the court; provided, that nothing in this section contained shall be construed to affect or interfere with the law relating to the crime of rape as now in force in this State; and provided farther, that this section shall not apply to male persons under the age of eighteen years.” (Emphasis added.)

      . But see Scott v. State, 2 Md. App. 709, 712, 237 A. 2d 61 (1968), which indicated in dicta that majority was a fact “necessary to be proved to convict the appellant of the offense of carnal knowledge----”


author: Gilbert, C. J.,

text:
    BANKERS AND SHIPPERS INSURANCE COMPANY OF NEW YORK v. MARIE ROGERS URIE et al.
    [No. 286,
    September Term, 1977.]

      Decided December 9, 1977.

      The cause was argued before Gilbert, C. J., and Morton and Couch, JJ.

      SamuelS. Smalkin, with whom was Joseph H. Urner on the brief, for appellant.

      Donald L. DeVries, Jr., with whom were Charles E. Iliff, Jr., and Semmes, Bowen & Semmes on the brief, for appellee Electro Enterprises, Inc.
   Gilbert, C. J.,

delivered the opinion of the Court.

Stripped bare of rhetoric, legal niceties, and the like, this appeal boils down to what is meant by the conjunction “and” as used in a policy of aircraft liability insurance.

The particular clause of the policy upon which our attention is focused reads:

“PILOTS: The coverage afforded by this policy shall not apply while the [insured] aircraft is operated in flight by other than the following pilots:
PAUL ERICKSON AND WILFORD GOLDMAN” (Emphasis supplied.)

The appellant-insurer, Bankers and Shippers Insurance Company of New York (Bankers), quotes from three out-of-state opinions which rely upon Black's Law Dictionary 112 (4th ed. 1968); 3A C.J.S. And450-51 (1973); and Century Dictionary (1911). All three authorities share common definitions of “and” as “along with,” “also,” “besides,” “moreover,” “in addition to,” and “together with.”

The various appellees assign a different meaning to “and” and support it by similarly impressive authority including Kennedy v. Haskel, 67 Kan. 612, 617, 73 P. 913, 914 (1903); Fidelity & Deposit Co. v. Mattingly Lumber Co., 176 Md. 217, 226, 4 A. 2d 447, 452 (1939); and Webster’s Third New International Dictionary 80 (1976).

There are, to be sure, other issues involved in this matter,. but the overriding one is the meaning of the conjunction “and” as used in the above quoted portion of the aviation insurance policy. “Words,” Rudyard Kipling observed, “are ... the most powerful drug used by mankind.” Speech, February 14, 1923. Accepting Kipling’s pronouncement as true arguendo, the question becomes who received the “fatal overdose,” Bankers or the appellees?

For the reasons stated infra, we conclude that Bankers’ appeal must fail, and, accordingly, we affirm the judgment of the Circuit Court for Washington County.

THE FACTS

Effective April 30,1973, Bankers issued an aircraft liability policy to Electro Enterprises, Inc. (Electro) of Hagerstown, Maryland. The policy provided for bodily injury coverage limits in the amount of $1,000,000 for each occurrence and $100,000 for each person. Item No. 7 of the policy contained the pilot limitation set out above ipsissimis verbis.

On March 29,1974, Electro owned a Cessna Model 421 dual control aircraft. The plane left Hagerstown on that date for Scottsdale, Arizona where a business meeting was to take place. There were five persons aboard including Paul Erickson, president of Electro, who was a pilot with a private plane license, Earl G. Bittle, a pilot who held a commercial license, Joseph Urie, Caswell Nuger and Irvin G. Turner. A transcript of a recorded conversation between the pilot of the Cessna and the Air Route Traffic Control Center, Olathe, Kansas revealed that on the evening of March 29, 1974, at 7:19 p.m., the pilot reported:

“[Wje’re picking up very heavy icing we’d like to start a route around this please.”

The route around the icing conditions was granted by the Control Center. Three minutes later a “May day may day” transmission was heard by Control and other aircraft in the area. The distress call was followed by — “Three one (unintelligible) spinning.” No more was heard by the Control Center from the Cessna, but an Ozark Airlines flight radioed that he heard an aircraft report “out of control and spinning in heavy icing....” A ground search was initiated, and shortly thereafter the wreckage of the Cessna was found where it had crashed, in Clark National Forest, near Bunker, Missouri. There were no survivors.

All the appellees, except Electro, brought suit against the corporate owner of the aircraft. Demand was made by Electro that Bankers defend the actions. Bankers disclaimed coverage on the ground that “at the time of the alleged fatal accident [the plane] was being piloted by Earl G. Bittle, and second pilot, Paul C. Erickson, in direct violation of the .policy contract.”

Bankers, on December 13, 1974, filed, in the circuit court, a declaration for declaratory judgment and petition for injunction as ancillary relief. The declaration was subsequently amended. The matter went to trial before Judge Irvine H. Rutledge and a jury on July 28,1976. A single issue, videlicet, “Do you find that Earl Bittle was actually manipulating the controls of the airplane at the time of the' crash?”, was submitted to the jury on the third day of the trial. The jury answered the issue by the single word, “No.” Thus, the jury implicitly found that Paul Erickson was the pilot of the ill-fated aircraft at the time of the crash.

Following the jury’s factual finding, Judge Rutledge ruled:

“(1) The words “Goldman and Erickson mean “Goldman or Erickson”, so as to afford coverage if either was the pilot at the time of the ... accident. (2)... [Bankers] is not relieved from defending [the] cases filed against it in related proceedings arising
out of the ... accident. (3) No stay in [the related] proceedings is granted____” (Emphasis supplied.)

THE LAW

The application for Electro’s aircraft insurance policy was signed on behalf of the company by Paul C. Erickson, its president. Immediately preceding Mr. Erickson’s signature appeared the legend:

“All particulars herein are warranted true and complete to the best of my/our knowledge and no information has been withheld or suppressed and I/we agree that this Application and the terms and conditions of the policy in use by the insurer shall be the basis of any contract between me/us and the Insurer. I hereby authorize this Company to investigate all or any qualifications or statements contained herein.”

The application contained a statement that the aircraft was for “Corporate — Executive” purposes and would be “flown by professional pilots employed for this purpose.” Additionally, “[o]ther [u]ses not indicated above” were explained by the wording, “Paul Erickson, Pres. — Student Pilot,” thus clearly showing that Mr. Erickson would also pilot the plane. The application made manifest that “INA declined to write policy with Paul Erickson as a student pilot.”

During the course of the three-day trial involving this matter, Bankers sought to introduce the application into evidence. Following a bench conference, which is not recorded in the transcript, an objection to the admission of the application was sustained. It is the declination by Judge Rutledge to admit the application into evidence that Bankers perceives to be reversible error, but, as we have previously indicated, we do not share that point of view.

Maryland has unflinchingly adhered to the theory of the objective law of contracts at least since McKeever v. Washington Heights Realty Corp., 183 Md. 216, 220, 37 A. 2d 305, 308 (1944). See also, e.g., Orkin v. Jacobson, 274 Md. 124, 128, 332 A. 2d 901, 903-04 (1975); Little v. First Federated Life Ins. Co., 267 Md. 1, 5, 296 A. 2d 372, 375 (1972); Slice v. Carozza Properties, Inc., 215 Md. 357, 368, 137 A. 2d 687, 693 (1958); Ray v. Eurice, 201 Md. 115, 126-27, 93 A. 2d 272, 279 (1952). By “objective law of contracts,” wé mean that the written language of the contract will be determinative of the liabilities and rights of the parties thereto, regardless of the contemplation of the parties, exclusive of fraud, duress or mutual mistake, at the time they entered into the agreement, unless the written language is not open to an unqualified understanding. Orkin v. Jacobson, supra, 274 Md. at 128, 332 A. 2d at 903-04; Slice v. Carozza Properties, Inc., supra, 215 Md. at 368; 137 A. 2d at 693; Ray v. Eurice, supra, 201 Md. at 127, 93 A. 2d at 279.

The objective law rule was trenchantly explicated by Judge Levine in Fasten Constr. Co. v. Rod Enterprises, Inc., 268 Md. 318, 301 A. 2d 12 (1973), when he penned for the Court:

“The cardinal rule in the construction and interpretation of contracts is that effect must be given to the intention of the parties, unless it is inconsistent with some established principle of law, Hardy v. Brookhart, 259 Md. 317, 270 A. 2d 119 (1970); Cadem v. Nanna, 243 Md. 536, 221 A. 2d 703 (1966); Schapiro v. Jefferson, 203 Md. 372, 100 A. 2d 794 (1953). But, where a contract is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed, Little v. First Federated Life, 267 Md. 1, 296 A. 2d 372 (1972); Kermisch v. Savings Bank, 266 Md. 557, 295 A. 2d 776 (1972); Devereux v. Berger, 253 Md. 264, 252 A. 2d 469 (1969). And, when the language of a contract is clear, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. U.S.I.F. Triangle v. Rockwood Dev. Co., ... [261 Md. 379, 275 A. 2d 487 (1971)]; Seldeen v. Canby, 259 Md. 526, 270 A. 2d 485 (1970); Katz v. Pratt Street Realty, 257 Md. 103, 262 A. 2d 540 (1970).” 268 Md. at 328-29, 301 A. 2d at 18.

The contract in the case sub judice was integrated in the form of the aircraft liability policy issued by Bankers to Electro. Of course, by integrated we mean that the parties adopted the written policy “as the final and complete expression of the agreement. An integration is the writing or writings so adopted.” 1 Restatement of Contracts § 228 (1932). Ray v. Eurice, supra, 201 Md. at 127, 93 A. 2d at 279, states: “... [W]here there has been an integration of an agreement, those who executed it will not be allowed to place their own interpretation on what it means or was intended to mean. The test in such case is objective and not subjective.” Thus, “[i]t follows that the test of the true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.” (Footnote omitted.) 1 Williston on Contracts § 94 (3rd ed. 1957).

The insurance policy in the case now before us contained the following integration clause:

“25: Declarations. By acceptance of this Policy the Named Insured agrees that the statements in the Declarations are his agreements and representations, that this Policy is issued in reliance upon the truth of such representations and that this Policy embodies all agreements existing between himself and the Company or any of its agents relating to this insurance.”

When, as here, the language employed in a contract is clear and unambiguous, it is the province of the court rather than the jury to construe the contract. H & R Block, Inc. v. Garland, 278 Md. 91, 97, 359 A. 2d 130, 133 (1976); Masano v. Albritton, 245 Md. 423, 431, 226 A. 2d 299, 303 (1967); Rothman v. Silver, 245 Md. 292, 296, 226 A. 2d 308, 310 (1967); Keyworth v. Indus. Sales Co., 241 Md. 453, 456, 217 A. 2d 253, 255 (1966); Ebert v. Millers Mut. Fire Ins. Co., 220 Md. 602, 610, 155 A. 2d 484, 488 (1959). In construing an insurance contract, the court must read the policy as a single document and construe it as a whole. Fed. Ins. Co. v. Allstate Ins. Co., 275 Md. 460, 473, 341 A. 2d 399, 407 (1975). Words are to be given their customary and normal meaning in the interpretation of insurance contracts. C & H Plumbing and Heating, Inc. v. Employers Mut. Cas. Co., 264 Md. 510, 511-12, 287 A. 2d 238, 239 (1972); Gov’t Employees Ins. Co. v. DeJames, 256 Md. 717, 720, 261 A. 2d 747, 749 (1970).

Having set out the principles of construction and interpretation applicable to the instant case, we now turn our attention to the first contention raised in this appeal by appellant. Bankers argues that “the application [for the insurance policy] should have been admitted in evidence [as] ... it was a material means of determining the meaning of words in the policy.”

We have already seen that the insurance policy provides that the aircraft was to be piloted by “PAUL ERICKSON AND WILFORD GOLDMAN.” (Emphasis supplied.) Bankers would have us construe the conjunction “and” as necessitating that both Erickson and Goldman be at the controls of the plane whenever it was in use in order for coverage under the policy to apply. Bankers then proceeds one more step by asserting that inasmuch as there is doubt, as to the meaning of the insurance contract, the application was properly admissible to explain the intent of the parties. We, however, are unable to trod the same path of reasoning as Bankers. In our view, there is no ambiguity in the insurance contract, either as a whole or in the use of the conjunction “and” in the clause relative to pilots.

Where the court finds no ambiguity in the language of a contract, there is no need to resort to outside aids to its construction. Walker v. Associated Dry Goods Corp., 231 Md. 168, 178-79, 189 A. 2d 91,96 (1963); Coopersmith v. Isherwood, 219 Md. 455, 460, 150 A. 2d 243, 246 (1959). See also Rice v. Rice, 246 Md. 212, 217-18, 227 A. 2d 742, 744-45 (1967); Ensor v. Wehland, 243 Md. 485, 492, 221 A. 2d 699, 703 (1966).

Neither Judge Rutledge nor this Court perceive any ambiguity in the insurance policy so as to require the admission into evidence of the proffered application.

The conjunction “and” as used in the insurance policy has only one clear and unambiguous meaning to any reasonable person, and that is that “and” was used in the disjunctive sense to mean “or.” The reasoning of Judge Rutledge, we think, is most apropos:

“If the interpretation of the plaintiff is correct, then both Erickson and Goldman would have had to be flying the plane. Although there are dual controls, for two to attempt to fly it would at once spell disaster. If one pilot tried to go right and the other left, the stronger might prevail or simply impede the other. Two persons in a plane with dual controls are like two persons in a car with dual controls. One or the other can operate, but not both. And the Court will not attempt to intuit what the framers of the policy may have had in mind.
But if the policy meant that Goldman ... had to be in the plane with Erickson for the policy to afford coverage, the policy completely fails to say so.”

In construing “and” to mean “or” under the circumstances of the particular facts presented by this case, we follow the lead of the Court of Appeals in Fidelity & Deposit Co. v. Mattingly Lumber Co., 176 Md. 217, 4 A. 2d 447 (1939), wherein the word “and” in a contractor’s bond was interpreted to be in the disjunctive as “or,” so as to effectuate • the intent of the parties to provide indemnity protection to both the labor and the material man, where the surety had agreed to satisfy claims against the contractor “for all material furnished, installed, erected and incorporated in” the buildings.

Violating the old military cliché “Never reinforce a failure,” Bankers makes one final sortie. It advocates that “[t]he same strict view of coverage,” which Bankers contends was “taken” by the Court of Appeals in Aetna Cas. and Sur. Co. v. Urner, 264 Md. 660, 287 A. 2d 764 (1972), should be applied “with respect to the policy here.” Aetna Cas. and Sur. Co. v. Urner, supra, dealt with an aviation policy which covered an aircraft piloted by “Gerald E. Weikel holding an FAA Private Pilot Certificate____” When Diane Twigg, a passenger in a plane piloted by Weikel, was killed as a result of an aircraft crash near Fort Ritchie, Maryland on October 10, 1968, Aetna denied coverage. One reason for the denial was that Weikel did not and apparently never had held an “FAA Private Pilot Certificate” or higher. In short, the basic requirement of coverage, the Private Pilot license, was the missing ingredient that voided coveragé. We believe Urner to be inapposite to the case at bar. If, however, Urner can be said to apply to the instant case, it is by way of strengthening the position of the appellees. Rather than traveling the route of Urner, i.e., private license to student pilot, Erickson went from student pilot to licensed private pilot.

We hold that the Circuit Court for Washington County properly construed the aircraft policy issued by Bankers to Electro.

Judgment affirmed.

Costs to be paid by appellant.

      . Stuart Berg Flexner’s, I Hear America Talking 190 (1976), reports that the conjunction used most often by Americans is “and.”

      . In re Rapid Film Service Inc. 181 Neb. 1, 4-5, 146 N.W.2d 563, 565-66 (1966); Cincinnati Enquirer, Inc. v. Am. Security & Trust Co., 107 Ohio App. 526, 533, 160 N.E.2d 392, 397 (1958); and Heald v. City of Cleveland, 19 Ohio N.P. (n.s.) 305, 323 (1916).

      . The appellees are: Marie Rogers Urie, individually and as pother and next friend of Jackson Rogers Urie, a minor, Electro Enterprises, Inc., a corporation, Sandra E. Mose, co-executrix of the estate of Paul C. Erickson, deceased, Deborah E. Gigeous, co-executrix of the estate of Paul C. Erickson, deceased, Lillian Nuger, Marc G. Nuger, Ronn N. Nuger, Lillian Nuger, mother and next friend of Laurie S. Nuger, infant, Pennsylvania Manufacturers Association Insurance Company, Juanita C. Bittle, personal representative of the estate of Earl G. Bittlé, deceased, Cessna Aircraft Company, Inc., a corporation, and Rosalie L. Turner, individually, and Rosalie L. Turner as mother and next friend of Lori Jean Turner, Steven Wayne Turner and Roma Ragina Turner.

      . The problem one experiences in explaining the meaning of words is that at some later time one may be called upon to explain one’s explanation.

      . In Patterson Agency Inc. v. Turner, 35 Md. App. 651, 652, 372 A. 2d 258, 259 (1977), we were told that Irvin Turner “was flying in a private plane with Paul Erickson to Las Vegas, Nevada.” Apparently, the five men wore going on to Las Vegas after the Scottsdale, Arizona meeting.

      . See n. 5, supra.

      . “Three one” were the first two digits of the aircraft’s identification number.

      . This Court also, in 1976, declined to stay the related proceedings.

      . There is in the record what appears to be the court reporter’s summary of a hearing held before Judge Rutledge on October 18,1976. The summary-reads:
      “[T]he Plaintiff [Bankers], proffered that the question before the Court is not what happened the night of the accident, but what type

        of contract was entered into in May of 1973, between the parties and what type of policy did the company issue. Mr. Smalkin [Bankers’ attorney] offered the Application for Insurance into evidence, which Application he had objected to in the former hearing. All attorneys for the Defendants [appellees] objected to the admission of the Application at this time. Court took the matter under advisement after arguments____”
      Our review of the record indicates that the summary is partially incorrect. It was one of appellees’ counsel who objected to the admission of the application. Indeed, Mr. Smalkin endeavored to put the application into evidence.

      . To obtain his private pilot’s license, F.A.A. regulations required Erickson, as a student pilot, to fly an airplane alone for at least twenty hours. 14 C.F.R. § 61.109 (1977). The regulation was in effect, without revision, during 1973-74.
      As appellee points out, if Bankers’ position were correct,
      “Erickson would not have been covered by the policy for the solo flights required by Federal regulations or which Bankers ..., an aviation insurer, must have been aware, nor for any flight after he received a private or more advanced license. To accept... [Bankers’] argument would be to inject into the policy a requirement that Erickson, who had obtained a student license for the purpose of attaining more advanced qualifications, was prohibited from pursuing the higher levels of skill and certification for which he was training and studying.”
      Such a result would, we think, be not only agonistic but patently contrary to the manifest intention of the parties.

      . John Keegan, The Face of Battle (1976).


text:
    ISABEL B. MOORE et al. v. GERDINE R. PRESNELL, Ind. and as Personal Representative of the Estate of Helen E. Presnell
    [No. 287,
    September Term, 1977.]

      Decided December 9, 1977.

      The cause was argued before Gilbert, C. J., and Morton and Couch, JJ.

      Robert C. Verderaime and A. Freeborn Brown, with whom were T. Carroll Brown, Verderaime & DuBois, P.A. and Brown, Brown & Lanahan on the brief, for appellants.

      Robert F. Cadigan, with whom were Smith, Somerville & Case on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This case demonstrates the truth of the old saw, “[tjhere is a point, easily reached, where the simplest facts end in mystery----” * The litigation had its onset on March 1, 1975, when an automobile operated by Mrs. Helen Presnell crossed over from the westbound lane of Maryland Route 22 into the eastbound lane, where it collided with a vehicle driven by one of the appellants, Nathan Moore. The collision resulted in the death of Mrs. Presnell sometime after the impact, and severe injury to Mr. Moore and the other two appellants, Isabel Moore and Mark Katz, who were passengers in the Moore car at the time of the incident.

“Now comes the mystery.” What sets this case apart from the voluminous annals of commonplace, albeit tragic, highway accidents is the inexplicable nature of the collision. An inspection by the State Police of Mrs. Presnell’s battered' car revealed no mechanical defects which would have caused or contributed to the happening. Eyewitnesses’ versions varied in certain particulars, but seemed to agree unequivocally that Mrs. Presnell had been driving erratically immediately prior to the accident, and that she made no effort to avoid the impact. The witness who was following behind Mrs. Presnell just before her vehicle crossed the center line and met its fate testified that he saw Mrs. Presnell’s head fall to the right side, “just like she just passed out.”

The explanation offered by appellee for Mrs. Presnell’s actions was that she suffered a sudden and unexpected lapse of consciousness. To substantiate that theory, Mrs. Presnell’s hospital records were put into evidence in order to show that the decedent had a history of cardiac problems, hypertension, and swelling of the feet. Mrs. Presnell’s daughter testified that her mother had frequently complained of swelling of the feet and aching arms. Three vials of medication were found in the purse that the deceased had with her at the time of the motor vehicle collision. One vial contained “Aldomet,” an antihypertensive agent, the second contained “Pyridium,” an analgesic, and the third contained an unspecified drug.

Following presentation of the evidence in the Circuit Court for Harford County, Judge Edward D. Higinbothom denied both parties’ motions for directed verdict and submitted the “mystery” to the jury. Those twelve tried and true citizens were instructed that the appellants had established a prima facie case of negligence on the part of Mrs. Presnell. The jury was further informed that the burden of proving by a preponderance of the evidence that Mrs. Presnell was justified in entering the lane of traffic flowing in the opposite direction rested squarely upon the appellee. Apparently, the jury felt that Mrs. Presnell’s Personal Representative had met that burden inasmuch as they returned a verdict in favor of the defendant-appellee.

In their appeal to this Court, the appellants ask, “Was there legally sufficient evidence to justify the granting of an instruction that if the jury found the decedent was suddenly struck by an unexpected and unforeseeable illness which rendered it impossible for her to control her car, they were to find for the defendant?”

According to the overwhelming weight of authority, where the driver of a motor vehicle suddenly and unforseeably becomes physically or mentally incapacitated, he is not liable for injury resulting from the operation of the vehicle while so incapacitated. See, e.g., Shirks Motor Express v. Oxenham, 204 Md. 626, 634, 106 A. 2d 46, 49 (1954); Watts v. Smith, 226 A. 2d 160, 162 (D.C. Ct. of App. 1967); Pacific Employers Insurance Co. v. Morris, 78 Ariz. 24, 275 P. 2d 389 (1954); People v. Freeman, 61 Cal. App. 2d 110, 142 P. 2d 435 (1943); Cole v. Layrite Prods. Co., 439 F. 2d 958, 960 (9th Cir. 1971); Freifield v. Hennessy, 353 F. 2d 97, 98 (3rd Cir. 1965); Annot., 28 A.L.R.2d 12 (1952). An exception to the general rule exists where a person knows that he is suffering from an illness which will likely cause his loss of consciousness.* ** Annot., 28 A.L.R.2d 12, 40 (1952). Where, as here, a prima facie case of negligence has been established by the plaintiff, the burden of proof shifts to the defendant to demonstrate that a sudden illness or attack occurred, and that it could not have been anticipated. Beahm v. Shortall, 279 Md. 321, 340-41, 368 A. 2d 1005, 1006 (1977); Cole v. Layrite Prods. Co., supra.

The rationale behind the defense of unanticipated unconsciousness is that the driver was suddenly deprived of his senses by “blacking out” so that he could not comprehend the nature and quality of his act, and thusly, is not responsible therefor. F. Harper & F. James, 2 The Law of Torts § 16.7 (1956); Annot, 28 A.L.R.2d 12 (1952).

“He must have done that which he ought not to have done, or omitted that which he ought to have done, as a conscious being endowed with a will.... Nowhere in cases dealing with the subject of torts do we find the suggestion that a person should be held responsible for injuries inflicted during periods of unconsciousness.” Lobert v. Pack, 337 Pa. 103, 107, 9 A. 2d 365, 367 (1939). (Citations omitted.)

The draftsmen of the Restatement of Torts concur with the prevailing theory and declare that “[i]f the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability.” 2 Restatement (Second) of Torts § 283C (1965). The comments to Section 283C highlight the problem in the case of cardiac attacks as follows:

“[A]n automobile driver who suddenly and quite unexpectedly suffers a heart attack does not become negligent when he loses control of his car and drives it in a manner which would otherwise be unreasonable____” Id. at § 283C, Comment c.

In Watts v. Smith, supra, the District of Columbia Court of Appeals determined that “[o]ne who, while driving his automobile, is stricken by a sudden illness which he had no reason to expect and which rendered it impossible for him to control his car is not chargeable with negligence.” 226 A. 2d at 162.

Appellee’s burden in the trial court was twofold. First, appellee had to show loss of consciousness and second, that the loss of consciousness was unforeseen. There was, in the instant case, sufficient evidence of a lapse of consciousness to carry the case to the jury for its consideration. Appellee did not establish “beyond a reasonable doubt” that Mrs. Presnell suffered a sudden loss of consciousness, however, such is not required by Maryland law. It is enough that appellee’s proof generated a jury issue, and that the jury was persuaded by a preponderance of the evidence of the validity thereof.

“The appellee is not required, for purposes of meeting a motion for a directed verdict, to have proved its defense by showing the specific cause of the presumptively wrongful act, but need only adduce evidence sufficient to raise a fact issue for the jury.” Cole v. Layrite Prods. Co., 439 F. 2d at 960.

See Rafferty v. Weimer, 36 Md. App. 98, 373 A. 2d 64 (1977). Moreover, appellee was entitled to rely on circumstantial evidence and needed only to establish a reasonable certainty that the decedent was unconscious at the time of the accident. Id. at 102, 373 A. 2d at 67.

Appellee, as we have stated, successfully raised a jury question through the testimony of Leon Anderson, who, driving his automobile behind Mrs. Presnell’s car, said that she, immediately prior to the impact, appeared as if she “just passed out.” The evidence clearly established that Mrs. Presnell did not react, when confronted with an imminent collision, as a conscious person would. She made no attempt to avert the accident, and there was no visible braking action.

The medical history of Mrs. Presnell revealed that she was not an unlikely candidate for sudden lapses of consciousness. She had a history of cardiovascular disease and hypertension that could have caused her to “black out.” Examination of the contents of her purse, as we have seen, disclosed three vials of medicine, one of which contained “Aldomet.” The only medical testimony with respect to “Aldomet” was that it was “a blood pressure medicine.” That evidence, standing alone, as it did, was obviously insufficient in the minds of the jurors to outweigh the theory of the sudden, unexpected loss of consciousness.

Mrs. Presnell had no apparent history of fainting spells, nor does the fact that she was receiving medication for hypertension make her loss of consciousness foreseeable. Annot, 28 A.L.R.2d 12, 23 (1952).

In sum, we think the evidence of the sudden, unexpected loss of consciousness was sufficient to entitle the jury to find as a fact that the automobile collision was the result of such a loss of consciousness, and that Mrs. Presnell’s estate was not liable to the appellants.

Judgment affirmed.

Costs to be paid by appellants.

      . Robert James Turnbull (January 1775 - June 15, 1833), attorney and publicist.

      . Henry Ward Beecher (1813-1887), Last Words, March 8, 1887.

      . The appellants also raised two (2) other questions, namely:
      “2. Did the Court err in its failure to grant plaintiffs’ motion for directed verdict?”, and
      “3. Did the Court abuse its discretion in failing to grant plaintiffs’ request for a voir dire question which sought to elicit the jury’s preconceived dislike for i suit which sought damages for pain and suffering?”
      In view of our disposition of the first issue, we need not consider the remaining matters.

      . See Annot., 28 A.L.R.2d 12, 23 (1952), where it is said:
      “If the driver of the vehicle knew that he was subject to attacks in the course of which he was likely to lose consciousness, and an accident occurs because of the fact that the driver suffered a fainting spell, such loss of consciousness does not constitute a defense in an action brought by the injured person. Such foreseeability has been held to exist in cases where the driver suffered from epileptic seizures or from dizzy spells, where he knew from prior experience that he was liable to such disturbances. Of course, no fixed rule can be established to determine when or under what circumstances the driver must desist from driving a vehicle because of the danger of his losing consciousness, but it seems that the courts are rather lenient in this respect, and it can certainly not be stated as a general rule that a person who knows that he is suffering from a heart condition or another illness which may cause his loss of consciousness at some future time is automatically at fault if he drives an automobile and, while doing so, loses consciousness, thereby causing an accident.” (Footnotes omitted.)

      5. See also n. 4, supra.

      . Aldomet is a commercial name for the chemical compound, Methyldopa, an antihypertensive agent. Modern Drug Encyclopedia & Therapeutic Index 490 (12tn ed. 1973). Following oral administration, Methyldopa’s effects become apparent within four (4) to six (6) hours and linger for eight (8) to twelve (12) hours. Id. The drug can cause a variety of adverse reactions, among which are sedation, headache, dizziness, asthenia (want of strength), mental depression, light-headedness, and symptoms associated with reduction of blood pressure and cerebrovascular insufficiency. Id:, The Merck Index 684 (8th ed. 1968). Clearly, had the jury been advised of the nature and effect of the medication, it would not have been unreasonable for it to conclude that Mrs. Presnell passed out prior to the accident.

      . See n. 4, supra.


author: Morton, J.,

text:
    MORRIS EDWIN ANGLIN, JR. v. STATE OF MARYLAND
    [No. 291,
    September Term, 1977.]

      Decided December 9, 1977.

      The cause was argued before Gilbert, C. J., and Morton and Melvin, JJ.

      Geraldine Kenney Sweeney Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and David Rumsey, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Following the entering of guilty pleas, appellant was convicted in the Circuit Court for Prince George’s County (Woods, J., presiding) of larceny and receiving stolen goods. Concurrent 10 year terms were imposed.

In this appeal it is contended that the trial judge’s acceptance of appellant’s guilty pleas was a “nullity” because the court had lost jurisdiction as a result of the State’s noncompliance with the Intrastate Detainers Act. Maryland Code, art. 27, § 616S.

The record reveals that on November 14, 1974, appellant was convicted in the Circuit Court for Prince George’s County of housebreaking, larceny and receiving stolen goods and sentenced to a total of 25 years imprisonment. The convictions were affirmed on direct appeal, Anglin v. State, 28 Md. App. 150 (1975), cert. denied, 276 Md. 737 (1976).

On September 22, 1976, appellant’s petition for post conviction relief was granted and he was awarded a new trial on the convictions. Both parties filed applications with this Court for leave to appeal that decision. On December 1,1976, we remanded the case to the trial court for findings of fact which were subsequently filed with this Court on January 31, 1977. On February 17,1977, this Court denied the applications for leave to appeal in an unreported per curiam opinion, State v. Anglin and Anglin v. State, Post Conviction Docket, No. 125, September Term, 1976, thus leaving undisturbed the trial court’s order granting a new trial. The convictions which presently are being appealed were entered on March 3,1977, pursuant to the new trial'order.

At the time appellant was awarded a new trial he was serving a 10 year sentence on an unrelated conviction. The state’s attorney filed a detainer against him with the Maryland Penitentiary. Appellant received, notice of the detainer on October 27, 1976, and on October 28, 1976, filed his demand for a speedy trial in accordance with the provisions of the Intrastate Detainers Act. The motion was received by the appropriate court and state’s attorney’s office on November 1,, 1976. On February 18, 1977, a hearing was held before Judge Woods on the State’s petition to extend the 120 day period within which appellant was required to be given a trial under the terms of the act. Appellant and his counsel participated in the hearing. The State pointed out that the 120 day period expired on February 28, 1977, and that because of the pending post conviction proceedings in this Court, appellant could not be tried within the 120 day period. It turned out that the State learned during the course of the hearing that the post conviction proceedings in this Court had just terminated. The State argued, however, that since the Circuit Court for Prince George’s County had no jurisdiction over appellant during at least 110 days of the 120 day period, i.e., the time during which the matter was pending in this Court, “good cause,” within the meaning of the act, to grant an extension of the 120 day period was thus demonstrated. The act provides, inter alia:

“For good cause shown in open court, with the prisoner or his counsel present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”

Judge Woods, after listening to arguments from both the State and appellant, concluded that the State’s request to enlarge the 120 day period was reasonable and scheduled the trial of appellant for March 3, 1977, on which date the trial was held.

As the State points out, this Court apparently has never been called upon to make an appraisal of what constitutes “good cause” for the granting of a continuance as provided for in the Intrastate Detainers Act. Determining what constitutes “good cause” is, of course, a judgment call and initially it is made by the trial judge before whom the request for a continuance is pending. In this respect, the Court of Appeals has said: “Speaking generally there can be no doubt that the disposition of petitions for a continuance are within the sound discretion of the trial judge and his rulings in this regard will not be disturbed absent an abuse of that discretion.” Hoss v. State, 266 Md. 136, 144 (1972). It is true that this assertion by the Court was addressed to a case involving the Interstate Agreement on Detainers (Maryland Code, art. 27, §§ 616A-616R). Judge Thompson, however, in speaking for this Court in Barnes v. State, 20 Md. App. 262 (1974), declared, at 268: “We find the Intrastate Act and the Interstate Agreement to be identical as to purpose and rationale.” Moreover, the Court of Appeals, in State v. Barnes, 273 Md. 195, 207 (1974), stated that “[t]he provisions of § 616S were obviously intended to be supplementary to the provisions of the interstate act and being component parts of the same general system they should be construed together to the extent possible.” Thus, we have no compunction in looking to cases involving the interstate act for guidance in interpreting what constitutes “good cause” in the intrastate act since the language in each act in this respect is substantially identical.

In Dennett v. State, 19 Md. App. 376 (1973), we had occasion to consider what amounted to “good cause” under the terms of the interstate act and found, at page 384, “that since the defense requested time for discovery, the court did have adequate reason to delay the trial for a period of 23 days beyond the statutory period” of 180 days. And the Court of Appeals indicated by way of a footnote in State v. Barnes, supra, at 211, n. 13, “that the failure to assign counsel as requested by the respondent [indigent accused] may have constituted ‘good cause’ — within the interval for granting a ‘necessary or reasonable continuance.’ ”

Accordingly, in the absence of bad faith, which we do not find to be present here, we conclude that the pendency of the applications of the State and appellant for post conviction appeal in this Court temporarily deprived the trial court of its jurisdiction over this case and, as such, constituted “good cause” for it to grant a continuance within the meaning of the act.

In reaching this conclusion, we have no intention of deviating from the following admonition to prosecutors which we stated in Dennett, supra, at 383:

“We cannot agree that a general statement that the State was not ready for trial, as opposed for example to a statement that a crucial witness was presently hospitalized, can be considered as good cause.”

In the factual posture in which this case reaches us, however, we cannot say that the trial judge abused his discretion in finding that the State had made a showing of “good cause” to extend the 120 day period by a period of 3 days and we cannot say that the 3 day extension constituted an unnecessary or unreasonable continuance under the circumstances.

Finally, we find no merit in appellant’s contention that the trial judge’s granting of a continuance was legally ineffective because Maryland Code, art. 27, § 591 provides that continuances may be granted “only with the permission of the administrative judge of the court where the matter is pending” and that Judge Woods was not the administrative judge. Aside from the fact that we have held that the provisions of § 591 are directory and not mandatory, State v. Hunter, 16 Md. App. 306 (1972), Young v. State, 15 Md. App. 707 (1972), § 616S expressly provides that a continuance arising out of an intrastate detainer may be granted by “the court having jurisdiction of the matter.” Judge Woods was the presiding judge in the court having jurisdiction of appellant and clearly was empowered to grant the continuance.

Judgments affirmed; costs to be paid by appellant.

      . In Gardner v. Stale, 29 Md. App. 314 (1975), however, we suggested, by way of dicta, that appellant’s motion to dismiss the indictment due to the alleged unconstitutionality of the Juvenile Waiver Law, the ruling on which was deferred pending an awaited decision on this issue by the Court of Appeals, might have constituted good cause had the State asserted this position via a request for a § 616S continuance. See also Davis v. State, 24 Md. App. 567 (1975).

      . Affirmed in State v. Barnes, 273 Md. 195 (1974).


author: Liss, J.,

text:
    KENNETH EDWARD GATLING v. STATE OF MARYLAND
    [No. 326,
    September Term, 1977.]

      Decided December 12, 1977.

      The cause was argued before Menchine, Moore and Liss, JJ.

      Howard Margulies, Assigned Public Defender, for appellant.

      W Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Lawrence Rosenberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, Kenneth Edward Gatling, was convicted in a court trial in the Criminal Court of Baltimore of possession of heroin and illegal possession and transportation of a handgun. Sentences were imposed and it is from these judgments that this appeal was filed.

Appellant made a motion to suppress and exclude certain evidence seized from his automobile at the time of arrest. After a hearing the trial court denied the motion and appellant raises three issues arising out of that denial. They are:

(1) Did the trial court err in denying appellant’s motion to suppress and exclude evidence where the police officer did not have probable cause to believe that the vehicle contained fruits or instrumentalities of a crime and the evidence seized was not within the area of search incident to a lawful arrest?
(2) Was the search of appellant’s automobile unreasonable because of the officers’ failure to obtain a search warrant?
(3) Did the police officers who executed the search have probable cause because their informant lacked the veracity required under Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964)?

At the hearing to suppress, the State first produced Officer Finkinbinder who testified that on May 31st, 1976 he and his partner, Officer Tomak, were called to the Maryland General Hospital to see one Prentiss Benjamin who told them that shortly after he had won some money in a crap game he was accosted by a man he knew as Kenny who shot him twice and robbed him of his money. Benjamin had been drinking but according to the officers was not intoxicated. He described his assailant, the clothes he was wearing and stated that the gunman was operating a 1976 maroon Ford LTD with a black vinyl top and Maryland license tags. He did not know the tag numbers. The officers went to the scene of the crime but were unable to find any relevant evidence. Four days later at about 3:15 a.m. while on routine patrol in the area where the robbery had taken place, the police officers spotted a Ford LTD which matched the description of the car driven by Benjamin’s assailant. The operator of the automobile also matched the description of the gunman given to the police by Benjamin. The officers pulled the car over and requested identification from the driver. The appellant, Kenneth Gatling, presented a registration card in the name of Gatling and a driver’s license in the name of Kenneth Hawkins. He stated that he was Hawkins and that he had borrowed the car from his friend Gatling. The officer, suspicious of the automobile operator, requested him to give the date of birth specified on the operator’s license. Appellant gave a date which differed from that on the license. While the officers were engaged in questioning Gatling, a passerby called to him, “Kenny can I help you? Shall I call your mother?” On the basis of the totality of the information that the officers then had, they advised the appellant that he was under arrest for assaulting and robbing Prentiss Benjamin. Appellant was placed in a position with his hands on the car above the rear door and Officer Finkinbinder looked into the vehicle and noticed a “gray rag” protruding from under the driver’s seat. He pulled the rag out and found wrapped in it a fully loaded handgun and five bags of heroin. A search of the glove compartment disclosed three additional bullets and an aluminum foil package containing six additional bags of heroin.

(1) (3)

At issue in this case is the validity of the search of the automobile and the seizure of the contraband found therein by the officers. The warrantless search in this ease can be justified, if at all, only under the “automobile exception,” first enunciated by the Supreme Court in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), or because the search was incident to a lawful arrest under Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969).

The general rule is that a warrantless search is per se unreasonable under the 4th Amendment subject only to a few specifically established and well delineated exceptions. Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967).

The Carroll exception states that a motor vehicle, unlike a home, may be searched without a warrant under appropriate circumstances when the officer has probable cause in the constitutional context to believe that the vehicle contains the fruits, instrumentalities or other evidence of a crime. Mobley and King v. State, 16 Md. App. 546, 298 A. 2d 446, aff’d, 270 Md. 76, 310 A. 2d 803 (1973), cert. denied, 416 U. S. 975 (1974). In addition to probable cause, the existence of exigent circumstances must be shown in order to justify the failure to obtain a warrant and to validate the warrantless search. Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L.Ed.2d 419 (1970).

In Mobley and King, supra, the Court of Appeals stated that:

“Probable cause to conduct a warrantless search of an automobile under Carroll and its progeny exists in the constitutional sense where the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information, are such as would warrant a man of reasonable caution in believing that the vehicle contained articles lawfully subject to seizure. [Citations omitted].... To satisfy the probable cause requirement, therefore, an officer is not required to have actual knowledge that the vehicle contains fruits, instrumentalities or other evidence of a crime at the time he undertakes his warrantless search. ‘... [o]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause ...’ Spinelli v. United States, 393 U. S. 410, 419, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969).” 270 Md. at 81.

We think it is evident from the factual recitation we have heretofore set forth that there was ample probable cause for the officers to arrest the appellant as the perpetrator of the armed robbery alleged to have been committed in this case. The two pronged test of Aguilar v. Texas, supra, which requires a sufficient “basis of knowledge” for the information furnished to the police, was obviously met by the statement of the victim himself. The “veracity” prong requires that the arresting officer have some reason to believe that his source was credible or his information reliable. Thompson v. State, 16 Md. App. 560, 298 A. 2d 458, cert. denied, 268 Md. 753 (1973). As Judge Moylan noted in Thompson, the relevant inquiry is, “was the information furnished under reasonable assurances of trustworthiness?” Here, the informant, at the hospital receiving treatment for a gunshot wound, gave a detailed description of the incident describing the assailant and his automobile. While he had been drinking, he was apparently in full control of his faculties. We find no reason to doubt that the information supplied by Benjamin to the police officers was sufficient to supply the probable cause for the apprehension of the appellant.

Appellant urges, however, that even if, arguendo, there was probable cause to arrest the appellant, there was not sufficient probable cause to believe that the vehicle contained the fruits, instrumentalities or other evidence of the crime and that therefore the warrantless search of the car was an unconstitutional intrusion and any evidence seized should have been suppressed. He relies principally on Howell v. State, 18 Md. App. 429, 306 A. 2d 554 (1973), rev'd, 271 Md. 378, 318 A. 2d 189 (1974). In Howell, the appellant had broken into a house and robbed and assaulted the owner. Two days later the victim selected a photograph of the appellant from a photo array and an arrest warrant was obtained. On the third day following the crime, the appellant was arrested, his car was searched and contraband was found. Appellant argues that Howell held that on the facts before the Court, the probable cause under Carroll was so attenuated over the intervening three days that it was diluted to the point of no return and that therefore Carroll did not apply. In this case, the intervening period is four days and obviously if Howell was decided as appellant suggests, it might well be dispositive of the issue here. The problem for appellant, unfortunately, is that we find no such discussion in Howell. The ultimate decision in Howell rested upon a discussion of Chimel, supra. The basis for reversal was the Court of Appeals’ conclusion that the State had failed to meet its burden of establishing that the search and seizure was permissible under the standards enunciated in Chimel. The sole reference to Carroll in the original Howell case, before this Court is the statement that:

“the search of the automobile cannot be predicated upon the ‘automobile exception’ because of the failure of Corporal Raymon to establish probable cause to believe that the automobile contained evidence of crime, one of the two necessary preconditions for the invocation of this exception to the basic proposition that all searches carried out without a warrant are per se unreasonable. Carroll v. United States, supra; Chambers v. Maroney, [supra]) Coolidge v. New Hampshire, [supra].18 Md. App. at 431-32.

On appeal to the Court of Appeals, the Court treated cursorily the Carroll doctrine as it applied to the appellant Howell, stating that:

“after examining the applicability of these two exceptions [Carroll and Chimel] to the facts of this case [the Court of Special Appeals] concluded that while the record did not contain sufficient evidence to demonstrate the existence of probable cause to justify the search of the vehicle under the ‘automobile exception’, the seizure of the marijuana was proper as being within the dictates of Chimel.” (Citations omitted, footnotes omitted.) 271 Md. at 381.

At no point in either of the Howell cases is there a discussion of the issue of the staleness of probable cause. The exact factual issue in this case, i.e., whether the probable cause to conduct a warrantless search may be vitiated by the remoteness of the information upon which probable cause is based, has not heretofore been presented to this Court. In the recent case of Peterson v. State, 281 Md. 309, 379 A. 2d 164 (1977), Judge Orth, of the Court of Appeals, gave a thorough analysis of the cases which have considered the dissipation of probable cause for the issuance and execution of a search and seizure warrant where it was contended that remoteness in time of the facts set forth in the affidavit had attenuated the probable cause necessary for the issuance of the warrant. Judge Orth in enunciating the criteria to be considered, quoted from this Court’s opinion in Andresen v. State, 24 Md. App. 128, 172, 331 A. 2d 78, cert. denied, 274 Md. 725 (1975), aff’d, 427 U. S. 463, 96 S. Ct. 2737, 49 L.Ed.2d 627 (1976), as follows:

“ ‘The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.’ ” 281 Md. at 317.

He went on to observe that:

“When Andresen went before the Supreme Court of the United States, Andresen vs. Maryland, 427 U. S. 463, 96 S. Ct. 2737 (1976), one of the bases of Andresen’s argument that the affidavits failed to establish probable cause was that the information on which they were based was so stale that there was no reason to believe that the documents sought were still in his possession. He argued that there was a three-month delay between the completion of the transactions on which the warrants were based, and the ensuing searches, and that this time lapse precluded a determination that there was probable cause to believe that petitioner’s offices contained evidence of the crime. Id. at 478 n. 9. The Court found that the contention was belied by the particular facts of the case, which it thought amply supported the belief that Andresen retained the sought-for records. Id. at 478-479 n. 9.” 281 Md. at 317. See State v. Edwards, 266 Md. 515, 295 A. 2d 465 (1972); Washburn v. State, 19 Md. App. 187, 310 A. 2d 176 (1973); Johnson v. State, 14 Md. App. 721, 288 A. 2d 622, cert. denied, 266 Md. 738, cert. denied, 409 U. S. 1039 (1972); Clayton v. State, 1 Md. App. 500, 231 A. 2d 717 (1967).

We are persuaded that the same tests which are to be applied in determining the staleness of probable cause in the execution of a warrant should be applicable to a warrantless search of an automobile under the Carroll doctrine.

The question to be determined in this case is whether under the facts and circumstances known to the police officers at the time of the arrest and search, a reasonable and prudent man would be led to believe that the automobile contained either the fruits or instrumentalities of the alleged shooting and robbery of Prentiss Benjamin. Our own independent appraisal of these facts and circumstances convinces us that there was no constitutional infirmity in this search and seizure under the Carroll doctrine. The appellant’s vehicle was similar to that described in detail by the victim. It was stopped in the general vicinity of the occurrence of the crime. The operator of the vehicle matched the physical description of the assailant given by the victim. The name “Kenneth” on the vehicle registration matched the “Kenny” given by the victim as the name of the person who robbed him. The operator gave the police reason to believe that the operator’s license he displayed was a false one.

At this point it was obvious that the man the police had stopped was the assailant. The only remaining problem to be resolved was whether the police had probable cause to believe that the vehicle contained at that time either the fruits or instrumentalities of the crime. Four days had elapsed since the original information had been received by the police from the victim. We think it evident that it was unlikely that the fruits of the crime were still in the car. The money robbed from Prentiss Benjamin was not likely to be secreted in the vehicle. A different situation, however, existed concerning the weapon. The accused had used a gun in robbing Benjamin and in the course of the robbery had shot Benjamin twice. A prudent and reasonable man might well have had reasonable cause to believe that the gun was being transported in the automobile, particularly when the officer’s pat down revealed no weapon on the accused. An experienced police officer would surely have reason to know that it was not unusual for a robber to carry his gun either in the glove compartment or under the seat of his car. Nor would the expiration of the four days make it likely that the accused had removed the instrumentality of the crime from the vehicle. Applying the tests suggested by Andresen, supra, it is clear that the gun was of enduring utility to its owner, and that the automobile provided the appellant with a secure operational base for its secretion. We hold then that the trial court’s ruling on this issue was correct.

(2)

Appellant contends finally that the trial court erred in denying his motion to suppress because the officers failed to secure a search and seizure warrant during the four-day period between the time they received the information from Benjamin and the date of the arrest. We find no merit to this contention. No warrant was necessary to arrest the appellant so long as the officers had probable cause to believe he had committed a felony. Appellant relies on Coolidge v. New Hampshire, supra, but that case is factually dissimilar from the case at bar. In Coolidge, the car that was ultimately searched was regularly parked in the defendant’s driveway for more than three weeks after the time that the defendant was first questioned by the police and the police were well aware of the car’s probable role in the crime. At the time of defendant’s arrest, the car was impounded and removed to the police lot where it was subsequently searched on three different occasions. The warrant which authorized the action of the police was later found to be fatally defective, and, in rejecting the government’s contention that the search was justified under the Carroll exception, the Court stated there was “no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile.” 403 U. S. at 462. The facts before us in this case are readily distinguishable in that the appellant was driving a car in which the police had probable cause to believe that a weapon was being transported and to secure a warrant under these circumstances would be totally impractical.

We conclude the search and seizure in this case was constitutionally permissible under the Carroll exception.

Judgments affirmed; costs to be paid by appellant.

      . These charges were later nol prossed because the victim failed to appear for the trial.

      . No question of exigency is raised in this appeal and it is obvious that exigency, under thé circumstances of the arrest, did in fact exist.