author: Weant, J.,

text:
    ROBERT MICHAEL WILSON a/k/a Peter Wilson a/k/a Richard Wilson v. STATE OF MARYLAND
    [No. 246,
    September Term, 1979.]

      Decided December 7, 1979.

      The cause was submitted on briefs to Lowe, Liss and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Martha Weisheit, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Thomas P. Barbera, Assistant Attorney General, Sidney S. Campen, Jr., State’s Attorney for Talbot County, Jane Tolar O’Connor, Assistant State’s Attorney for Talbot County, and Thomas Hickman, State’s Attorney for Carroll County, for appellee.
   Weant, J.,

delivered the opinion of the Court.

On January 19,1979, Robert Michael Wilson, the appellant, was convicted by a jury in the Circuit Court for Talbot County (Clark, J.), of the armed robbery of Calvin Scott, the armed robbery of Elsie Scott, burglary, conspiracy to commit burglary, and the use of a handgun in the commission of a crime of violence. At the conclusion of the trial he was committed to the custody of the Division of Correction for a period of fifteen years for the Calvin Scott robbery with consecutive sentences of fifteen years for the Elsie Scott robbery, ten for the burglary, five for the conspiracy, and five for the handgun offense; a total of fifty years consecutive to any sentences he was already serving in other jurisdictions. On appeal he contends:

1. The court erred in failing to adequately instruct the jury on the standard of proof beyond a reasonable doubt;
2. the court erred in refusing to allow him to make his own closing argument to the jury;
3. the jury’s verdicts were coerced by the time limit imposed by the court on its deliberations;
4. the burglary verdict was coerced by the court’s supplemental instruction to the jury that it was “absolutely necessary” to return a verdict on this count;
5. a motel registration card was improperly admitted as a business record;
6. he was denied a fair and impartial trial by virtue of 1) the circumstances of his pre-trial detention, 2) his extradition to Maryland without a hearing, and 3) the court’s refusal to grant him a continuance.

The record before us shows that at about 9:00 P.M. on Saturday, February 5, 1977, two masked men, armed with guns, broke into the home of Calvin Scott, a used car dealer, by firing a shot through the doorway as Calvin Scott was putting on the night latch. Calvin Scott was escorted upstairs where he and Mrs. Scott were robbed. The house was searched and the intruders discovered a safe. The Scotts were next brought downstairs and beaten until Calvin Scott opened the safe from which the intruders took approximately $70,000.00 in cash. Thereafter the Scotts were taken back upstairs and handcuffed to their iron frame bed where they remained until they were found the next afternoon by their granddaughter.

Investigation by the police revealed that at the time of the robbery a 1970 Chrysler had been seen parked near the Scott residence with an unidentified woman slumped down in the seat. The bullet that had been fired was recovered and determined to have come from a German Luger pistol.

On May 18,1977, James Harkum, another used car dealer, gave a statement to the State’s Attorney for Talbot County which was read into evidence during the trial. In this statement Harkum admitted that he had told one of his free-lance salesmen, Heinz Peter Cable, that Calvin Scott kept large sums of money at his house. Harkum said that on Saturday, February 5,1977, Cable had advised him that Scott was to be robbed. Early the next morning Harkum said that he had received a call from Cable that the robbery had been accomplished and that later the same day Cable had given Harkum $2,000 as Harkum’s share of the proceeds. Thereafter, on the following Monday, Harkum stated that Cable admitted to having a 1970 Chrysler that belonged to Harkum; the car was returned the same day.

Harkum described Cable as a man of violent propensities who subsequently proposed that Harkum join him in other criminal adventures. Harkum added that he was afraid of Cable. He said he did not know any more about the robbery than what he read in the newspapers. He said that Cable’s confederate was a park policeman named Wayne Morris. He also said that Larry Mears, another car salesman friend of Cable’s, had suddenly shown up with $25,000 in cash to buy a boat.

While testifying for the State Harkum said that he was to receive probation and jail time; he also indicated that the police “wired” him for sound so that they could monitor his conversations with Cable. The record does not reveal any follow-up investigation by the State of Morris who died prior to the trial.

Heinz Peter Cable, a bouncer at a night club in the Annapolis area, also testified for the State in exchange for a five year sentence and the nol prossing of some unrelated charges. He said that while in Florida in the fall of 1976 he had met with William Gary Reynolds in order to plan a robbery of Scott. Thereafter, “at the beginning of February,” Cable said that he had met Reynolds and the appellant at a bar in Glen Burnie. Then on Saturday, February 5, 1977, Reynolds, the appellant, and a young woman named “Tammy” had come to his boat. The group drove over to Easton where Cable said he had pointed out the Scott residence before returning to the Annapolis area. Late that night Cable said he met with the trio again and was advised that the robbery had been accomplished. At this time he was given his share of the proceeds.

There is nothing in the record concerning the further investigation of Reynolds although his physical build was similar to one of the masked men who robbed the Scotts. Although “Tammy” had testified before the grand jury, she could not be located by the State at the time of trial. However, in its case-in-chief and on rebuttal the State introduced evidence that “Tammy” had registered for two rooms with a party of two at an Annapolis motel the night of the robbery.

The appellant, who was acquainted with the Maryland area, presented testimony that in late January or early February of 1977 he had met Reynolds and Cable at a bar in Glen Burnie. This testimony showed he had sold his German Luger pistol, on credit, to Cable who was interested in and collected Second World War guns. Allegedly, this was the only contact he had had with Cable. Members of the appellant’s family testified that on the night of February 5, 1977, he was at a party in Boston in honor of his niece.

On his own behalf, the appellant testified that in mid-February of 1977, while driving to Florida to sell certain paintings, he stopped in Baltimore and recovered his German Luger from Gary Reynolds. In addition he explained in detail that he was an expert safe cracker and that, if he had done the robbery, he would have popped the safe open in two or three minutes. He said that his modus operandi did not involve beating elderly people like the Scotts just to get a safe open. He admitted committing many crimes but steadfastly denied robbing the Scotts. At allocution he reiterated his innocence and cautioned the court that the Scott robber was still at large.

1.

The appellant first contends that the court inadequately instructed the jury as to the law regarding the meaning of the term “beyond a reasonable doubt.”

After the jury was empaneled the court gave a series of preliminary instructions wherein it explained the term “beyond a reasonable doubt” as follows:

The test of the evidence is, as I have said, one of reasonable doubt. And reasonable doubt is a doubt based on reason and common sense, the kind of doubt that would cause a reasonable person to hesitate to act. Proof beyond any reasonable doubt is therefore that proof which is of such a character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. Thus, the State is not required to prove the defendant guilty beyond all possible doubt, or to a mathematical certainty, nor is the State required to negate or deny the existence or truth of every conceivable circumstance of innocence. The defendant is entitled to every favorable inference which can reasonably be drawn from the evidence. The jury will remember that the defendant is never to be convicted on mere suspicion, conjecture, or guesswork. The burden is always upon the State to prove guilt beyond a reasonable doubt. This burden of proof never shifts to the defendant. The law does not impose upon the defendant the duty of calling any witnesses or producing any evidence at all.
So, if the jury, after careful consideration of all the evidence, has any reasonable doubt that the defendant is guilty, it must acquit. If the jury views the evidence as reasonably permitting either of two conclusions, one of innocence and one of guilt, the jury should adopt the one of innocence.

Furthermore, instructions delivered at the close of all the evidence covered twenty four pages of transcript and contained at least ten references to the phrase “beyond a reasonable doubt.” At the conclusion of the latter instructions, the appellant objected to the wording of one of the instructions in which the term “beyond a reasonable doubt” was used. He did not however make any objection which can be read as raising the contention now before us, i.e., that because the term “beyond a reasonable doubt” was explained to the jury before the presentation of evidence but not afterwards, the court’s instructions were inadequate.

As stated in Maryland Rule 757.L:

If a party has an objection to any instructions, to any omission therefrom, or to the failure to give an instruction he shall make the objection on the record before the jury retires to consider its verdict and shall state distinctly the matter or omission, or failure to instruct to which he objects and the grounds of his objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. [Emphasis added].

We therefore find that the issue now being considered was not preserved for appeal. Maryland Rule 1085. See also Brown v. State, 203 Md. 126, 100 A.2d 7 (1953); Patterson v. State, 22 Md. App. 13, 321 A.2d 544 (1974), aff’d, 275 Md. 563, 342 A.2d 660 (1975); Law v. State, 21 Md. App. 13, 318 A.2d 859 (1974), cert. denied, 272 Md. 744 (1974) and 272 Md. 749 (1974).

We are nevertheless cognizant of Maryland Rule 757.h. which provides that

[a]n objection is not reviewable as of right unless it is made in compliance with section f of this Rule. An appellate court, either upon its own motion or upon the suggestion of a party, may take cognizance of and correct any plain error in the instructions, material to the rights of the defendant even though the error was not objected to as provided by section f of this Rule. [Emphasis added].

We, however, are unable to find “any plain error in the instructions, material to the rights of the [appellant].” Maryland Rule 757.b. provides in part that “[t]he court need not grant any requested instruction if the matter is fairly covered by the instructions actually given,” (emphasis added). That the instruction, given at the beginning of the trial but not at the close of the evidence, was an “appropriate” one in a criminal case is clear. In Lambert v. State, 193 Md. 551, 559, 69 A.2d 461, 464 (1949), the Court of Appeals said:

In more recent years some of the courts have expressed the opinion that the English language is not adequate to give a specific definition of “reasonable doubt” that would simplify its meaning, for the rule requiring that the jury must be satisfied beyond a reasonable doubt is generally as simple and intelligible as a guide for the jury as any rule that could be formulated. In fact, it is recognized that the rule is quite frequently made obscure by attempts at definition, which serve to create doubts instead of removing them. This danger of confusing the minds of the jurors in attempting to define “reasonable doubt” has prompted some of the trial judges to refuse to attempt to give any definition. Of course, a definition is not reversible error unless, by reason of peculiar circumstances or phraseology, such an instruction misleads or confuses the jury. State v. Craft, 131 W. Va. 195, 47 S.E.2d 681, 687. Nevertheless, it has been the general practice of the overwhelming majority of the courts of this country to offer the jury some explanation of the term.

We therefore believe that even if the appellant had requested the court to repeat its explanation of the term “proof beyond a reasonable doubt,” it would not have been compelled to do so. Jones v. Jones, 38 Md. App. 288, 380 A.2d 659 (1977), rev’d on other grounds, 283 Md. 709, 393 A.2d 1372 (1978); Raley v. State, 32 Md. App. 515, 363 A.2d 261 (1976), cert. denied, 278 Md. 731 (1976) and 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1060 (1977); England v. State, 21 Md. App. 412, 320 A.2d 66 (1974), aff'd, 274 Md. 264, 334 A.2d 98 (1975).

Moreover, in light of the language of Maryland Rule 757.d. which provides that

• [t]he court may give its instructions at any time after the close of the evidence. If, however, the court’s charge is not delivered until after the argument of counsel to the jury, the court shall, in advance of such argument, advise counsel of its proposed action on the request for instructions and the substance of the instructions which it proposes to give, [emphasis added]

we are unable to say that the court’s failure to repeat the preliminary instructions concerning reasonable doubt warrants reversal of the judgments of conviction in the instant case. The language of Maryland Rule 757.d. is not mandatory, i.e., it does not state that the court shall “give its instructions ... after the close of evidence.” Furthermore, one purpose of the rule, as stated, is, apparently, to give counsel the opportunity to reflect upon the court’s instructions in their argument to the jury. Such an opportunity is clearly present in a situation where instructions are given to the jury before any evidence is presented, as was the situation in the instant case. Therefore, the court below did not commit plain error in giving instructions in the sequence that it did.

2.

The appellant next argues that the trial court erred in failing to allow him to make his own closing argument to the jury.

Having arrived at that point in the case where all of the proof was in and the time had come when counsel ordinarily present their arguments to the jury, the prophetic words of Justice Blackmun in the case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), were again brought to surface by the request of the appellant to argue his case to the jury, these words having previously been noted in the case of Snead v. State, 286 Md. 122 (1979), in the Court of Appeals of Maryland.

In our case the appellant raised the problem with the following:

[DEFENSE COUNSEL]: Your Honor, before the jury comes in, Mr. Wilson has requested me to ask Your Honor to permit the argument to the jury to be bifurcated; that is, that I argue to the jury, and that he would argue to the jury those points that I have not raised. I assume the Court has made a ruling on that.
[STATE’S ATTORNEY]: We would, of course, object, Your Honor.
[THE COURT]: Yes, I’ll sustain the objection.

Relying on the implied constitutional right to self-representation discovered by the Supreme Court in the sixth amendment in the case of Faretta, supra, the Court of Appeals in Snead suggests that Rule 723 of the Maryland Rules of Procedure be used to determine whether or not a defendant has effectively waived the assistance of counsel and has thus established the right to self-representation. That case, however, involved an instance where the defendant indicated a desire to represent himself at the very beginning of the proceedings. Anticipating our problem, but without considering same, the Court observed in footnote 7 of Snead that “the question whether a defendant may assert the right to self-representation after the trial has begun is not before us, and we do not consider it.”

The problem entertained by Snead is a procedural one, i.e., the determination of how the right to self-representation should be asserted at the beginning of trial. That case held that, when a defendant indicates a desire to defend himself, the court must determine whether his desire to do so is clear and unequivocal. Thereafter, it becomes the duty of the court to ascertain whether the defendant has effectively waived the assistance of counsel. Our problem is one of determining whether a defendant has a right to “switch in midtrial” and ascribe to himself the job of co-counsel. As mentioned, neither Faretta nor Snead has broached this facet of self-representation.

This Court, in the case of Beard v. State, 42 Md. App. 276, 288, 399 A.2d 1383, 1390 (1979), dubbed this procedure as “hybrid representation” indicating that it is discretionary with the court. The case of United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976), considered this question. The court said at page 1024:

The record convinces us the request was for hybrid representation. The written motion clearly proposed hybrid representation, and most of appellant’s remarks are consistent with a hybrid representation request.
Prior to Faretta, courts had stated that a party had a right to represent himself or to be represented by counsel but did not have a right to hybrid representation. Lee v. Alabama, 406 F.2d 466 (5th Cir. 1968), cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 247 (1969); Brasier v. Jeary, 256 F.2d 474 (8th Cir.), cert. denied, 358 U.S. 867, 79 S.Ct. 97, 3 L.Ed.2d 99 (1958) (a civil case); Duke v. United States, 255 F.2d 721 (9th Cir.), cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365 (1958). See also United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); United States v. Conder, 423 F.2d 904 (6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970); Shelton v. United States, 205 F.2d 806 (5th Cir.), appeal dismissed, 346 U.S. 892, 74 S.Ct. 230, 98 L.Ed. 395 (1953). Since Faretta, at least one district court has determined that a criminal defendant already represented by counsel has no right to act as her own co-counsel. United States v. Swinton, 400 F.Supp. 805 (S.D.N.Y. 1975). These decisions do not foreclose a trial judge from allowing hybrid representation in appropriate cases; rather, they indicate no right to hybrid representation exists. Brasier v. Jeary, supra; United States v. Swinton, supra. Furthermore, we see no reason to distinguish between this case where retained counsel is involved in the request for hybrid representation and cases where appointed counsel is involved in such requests. See Duke v. United States, supra.
We believe Faretta does not alter the established rules concerning hybrid representation. As noted in Swinton,
... Faretta ratified a consensus within the federal judiciary favoring a constitutional right to pro se status; that consensus has existed side by side with another finding that a defendant’s appearance as co-counsel lies within the discretion of the trial court.
The Sixth Amendment does not give any indication that hybrid representation is a right of constitutional dimensions.

In the case of United States v. Lang, 527 F.2d 1264 (4th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 328 (1976), the United States Court of Appeals for the Fourth Circuit indicated that it was not error to deny a motion made by a criminal defendant to appear as co-counsel, absent an indication of some special need, relying on United States v. Shea, 508 F.2d 82 (5th Cir. 1975), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975); Duke v. United States, 255 F.2d 721 (9th Cir. 1958), cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 365 (1958); United States v. Swinton, 400 F.Supp. 805 (S.D.N.Y. 1975).

In the case of United States v. Sacco, 571 F.2d 791, 793 (4th Cir. 1978), cert. denied, 435 U.S. 999, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978), the court made the following comment in considering whether to allow a defendant to serve as co-counsel:

Faretta held that a criminal defendant has a constitutional right to represent himself pro se if he voluntarily and intelligently elects to do so. But Faretta, which emphasized the element of coercion in forcing unwanted counsel upon a defendant, 422 U.S. at 820-21, 833-34, 95 S.Ct. 2525, does not speak to the question of joint representation, and the federal courts have uniformly held that there is no correlative right to serve as co-counsel. E.g., United States v. Hill, 526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976). We have stated that a district court need not permit a defendant to appear as co-counsel unless there is a showing of special need. United States v. Lang, 527 F. 1264, 1265 (4th Cir. 1975).
Defendant claims that a special need existed here because his greater familiarity with the facts would have enabled him to cross-examine more effectively than his attorney. We do not think that this amounts to the type of special need envisioned in Lang, however, for defendant could have sufficiently informed his counsel about the facts to allow him to perform adequately.

It seems clear then that the hybrid representation is, at best, in the discretion of the court to be allowed only on the indication of some special need. Since this is not a constitutional right, we see no necessity for any special catechismic exercise to be followed by the court. In the case sub judice the premise of the attorney’s request for the defendant is “that he [the defendant] would argue to the jury those points that I [counsel] have not raised.” We certainly can find no special need in this argument.

3.

The appellant’s third contention is that the court, by imposing a time limitation on the jury’s deliberations, coerced the jury’s verdicts.

The jury began its deliberations at 8:38 P.M., Friday, January 19,1979. Around midnight the court asked the bailiff to inquire of the foreman whether the jury was “near a verdict.” The following colloquy then occurred:

THE BAILIFF: Your Honor, they said they would like to have another hour.
THE COURT: All right.
THE BAILIFF: The Foreman says, if possible, he would like to speak to you privately.
THE COURT: I don’t believe that’s possible.
THE BAILIFF: He said they’d rather be another hour and finish, rather than be put up.
THE COURT: They understand that we are going to lodge them for the night if they can’t arrive at their verdicts within an hour?
THE BAILIFF: That’s correct.
THE COURT: They understand that?
THE BAILIFF: Yes, sir.
THE COURT: Very well, we will give them an hour.
THE BAILIFF: Very well, sir.
THE COURT: To continue their deliberations.
(Off the record.)
THE BAILIFF: They will work on it for an hour, Your Honor.
THE COURT: I’ll be in my chambers subject to call.

No objection to this interlocution was made. Accordingly the issue has not been preserved for appeal. Maryland Rule 1085.

4.

The appellant contends the jury’s verdict on the burglary charge was coerced by the court.

The record shows that at 12:46 A.M. the jury sent a message to the court stating that it had reached guilty verdicts on the two robberies and one handgun count and asked whether it should consider any other counts. The court discussed the matter with counsel and it was agreed that the jury should also return verdicts on the burglary and conspiracy to commit burglary charges. As a result the jury was called in and the following instruction was given:

[THE COURT]: In view of those verdicts, it is absolutely necessary to return a verdict on the 11th count charging burglary, one way or the other. Irregardless [sic] of how you decide that count, it will likewise be necessary for you to return a verdict on the 12th count, which is conspiring to commit burglary.
However, if you find him not guilty on conspiring to commit burglary, then you must consider the third count, which is conspiring to commit armed robbery.
If you find him not guilty of the third count, then you must consider the sixth count, and return a verdict on that, which is conspiring to commit simple robbery, or just plain robbery.
Is that clear, ladies and gentlemen?
THE FOREMAN: Thank you, Your Honor.
THE COURT: You may retire to your jury room to complete your deliberations.

Based upon the foregoing, the appellant argues that his burglary conviction should be reversed because the court’s instruction, that “it was absolutely necessary to return a verdict,” amounted to impermissible coercion. The appellant however seems to disregard the jury’s response to this instruction, which was as follows:

THE FOREMAN: We are prepared to make a report at this time. We have made some progress in our deliberations, pending your reply. And I’m prepared to give you an account on all points.
THE COURT: On all points?
THE FOREMAN: Yes, sir.

In light of the absence of any objection by the appellant with regard to the court’s supplemental instruction, this issue was not preserved for appeal. Maryland Rule 1085. Nevertheless, it is clear from the jury’s response that it had already reached a decision as to the appellant’s guilt on the burglary count when it inquired of the court whether it should consider any counts other than those pertaining to the robberies and the handgun violation; therefore, we find that this verdict was not coerced.

5.

The appellant’s fifth contention is that the court erred in admitting into evidence a motel registration card since such constituted hearsay.

Inasmuch as the State did not have an eyewitness, other than an admitted accomplice, that could identify the appellant as being in the Annapolis area at the time of the robbery, the State resorted to circumstantial evidence to imply the appellant’s presence. It introduced a motel registration card that indicated that the appellant’s girlfriend “Tammy” had taken two rooms in an Annapolis motel the night before the robbery occurred. The court admitted the card as a business record under the business record exception to the hearsay rule. [Courts and Judicial Proceedings Article, § 10-101].

In Hyman v. State, 4 Md. App. 636, 641, 244 A.2d 616, 618 (1968), cert. denied, 252 Md. 731 (1969), we said:

We think it clear that the statute contemplates the introduction of the record itself in evidence as a prerequisite to the admissibility of testimonial assertions relative to its contents by a witness having no personal knowledge of the truth of the matters contained in the record. A proper foundation must therefore be laid showing when the record was made, that it was made in the regular course of business, and it was the regular course of business to make such record. [Citations omitted].

At trial in the instant case, the motel proprietor testified that she operated the motel. She explained that when anyone registered for a room she required them to complete a registration card, which she then kept as a matter of routine business procedure. The proprietor identified the card as one that had been made on February 4, 1977, in the conduct of her regular course of business. All of the elements constituting a proper foundation were established; there was no error in the court’s admitting the registration card.

6.

Under his argument that he was denied a fair and impartial trial, the appellant presents three unrelated reasons why his trial lacked fairness.

First, he complains that he suffered numerous “abuses and restrictions” during his pre-trial confinement which prevented him from effectively communicating with both his trial lawyer and an investigator. He argues that his right to effective counsel was therefore directly restricted.

Our review of the record shows that when any such complaint was brought to the court’s attention, the court promptly and personally intervened to have it corrected. Moreover, since the appellant in his brief has not presented us with the facts he relies upon to support his claim, we deem his argument concerning “abuse and restriction” to be waived. Van Meter v. State, 30 Md. App. 406, 352 A.2d 850 (1976), cert. denied, 278 Md. 737 (1976). Maryland Rule 1085.

Next he complains that the Interstate Detainer Act was violated because he was extradited to Maryland without a hearing. Section 616 E of Article 27 (The Interstate Detainer Act) does not provide a prisoner with such a right. Accordingly, we find no error.

Lastly he complains that the court erred in not granting his request for a postponement. A pre-trial hearing was held on January 9,1979, one week before the trial began, to consider the request for a postponement. It was denied. As the appellant correctly notes: “The granting of a continuance,... is within the sound discretion of the trial court.” Johnson v. State, 237 Md. 283, 288, 206 A.2d 138, 141 (1964). See also McKenzie v. State, 236 Md. 597, 204 A.2d 678 (1964); Mazer v. State, 231 Md. 40, 188 A.2d 552 (1962). Our independent review of the record indicates that this discretion was not abused by the court below.

Judgments affirmed.

Costs to be paid by appellant.

      . This statement implies that Harkum did not know that Cable had possession of this 1970 Chrysler until two days after the Scott robbery. At trial, however, Harkum testified that he lent his 1970 Chrysler to Cable the afternoon of February 5, 1977.
      For purposes of clarification, the facts as they relate to Harkum, unless indicated otherwise, are taken from the statement he gave to the State’s Attorney.

      . Unbeknown to the appellant, he was dealing with undercover FBI Agents who on March 11, 1977, arrested the appellant and his two companions. Among the weapons taken from the men was a German Luger pistol from which the bullet recovered from the Scott residence had been fired. The appellant explained that when he was arrested word had been sent out that he needed money. Some $13,000 was sent to him in care of “Tammy” who was with him at the time. Thereafter “Tammy” had decamped with the money and the appellant’s car.

      . Although we are unable to say that the court below plainly erred in failing to repeat its preliminary instruction, we believe that the better practice is to repeat the instruction, thereby leaving no room for controversy on the subject.

      . Justice Blackmun commented in his dissent that “[i]n conclusion, I note briefly the procedural problems that, I suspect, today’s decision will visit upon trial courts in the future____How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial? ...” Faretta v. State, 422 U.S. at 852, 95 S.Ct. at 2549, 45 L.Ed.2d at 591-92.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    SUBURBAN TRUST COMPANY v. MAURICE WALLER
    [No. 274,
    September Term, 1979.]

      Decided December 7, 1979.

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

      Francis J. Ford for appellant.

      David J. Frantz, with whom were David B. Lamb and Lamb, Halleck & Keats on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Street and Smith would have probably entitled this case as, “The Bank That Talked Too Much.” The matter presents us with a novel question of the existence and scope of a bank’s duty of confidentiality concerning the affairs of its depositors.

The appellee, Maurice Waller (Waller) deposited $800 in his account at the Suburban Trust Company (Bank). Because of the actions of a security official, Waller was arrested on a charge of robbery with a dangerous and deadly weapon. The facts surrounding the deposit led a jury in the Circuit Court for Montgomery County to withdraw, in the form of a verdict in favor of Waller, $50,000 from the Bank’s coffers and transfer it to Waller’s treasury. Understandably upset by the judgment entered on the jury’s verdict, the Bank has appealed in an effort to divest itself of what it apparently sees as an unjust liability.

THE FACTS.

Waller, in February 1976, opened an account at the Bank’s Langley Park branch. About a month later, March 16, 1976, he attempted to have an income tax refund check cashed there, but that attempt was rebuffed because the balance in his account was insufficient to “cover” the check. He, along with Marvin Turner, a fellow employee of Waller who also wanted a check cashed, went to the United States Treasury Department in the District of Columbia. The checks were cashed, and Waller and his companion returned to the Bank, where Waller made a deposit of $800. Simultaneously, Turner deposited an identical amount in a new account. The money was in fifty and one hundred dollar bills, and the serial numbers printed thereon were sequential.

The employee who handled Waller’s deposit was a teller-trainee. Believing the transaction involving large sequentially numbered bills to be of an unusual nature, he called the matter to the attention of Mrs. Bane, who, together with her duties at her own teller station, was charged with supervising the trainees’ work. Mrs. Bane, in turn, notified the assistant manager, James Jones, who contacted the security department. Jones spoke to William Brandt, an assistant security officer for the Bank. Brandt was asked if the serial numbers on the bills were on any of the “warning lists that the Bank receives periodically.” The security officer told Jones that he would check out the matter. Pending information from Brandt, Assistant Manager Jones instructed Mrs. Bane to withhold the bills from circulation.

Brandt first contacted the Federal Bureau of Investigation in order to ascertain whether the serial numbers had appeared on that agency’s “N.C.L register.” The reply, we infer, was in the negative. Brandt, seemingly unsatisfied with stopping at that point, began to call the local law enforcement agencies. When he contacted the Montgomery County Police Department, he spoke to Corporal Howell. The police officer testified that Brandt asked him if there had been any large cash robberies recently. Howell replied that in a recent “residential robbery” $3,000 in fifty and one hundred dollar bills had been taken. He then read the descriptions of the suspects to Brandt, who replied that they were “similar to two individuals who had come in the Suburban Trust Bank, the branch at Langley Park.” Brandt then disclosed to Howell Waller’s name, address, description, and employment, as well as the information concerning his deposit of that morning. Subsequently, the Bank’s surveillance photographs were also made available to the police.

Howell turned over the information that had been furnished by Brandt to Detective Ingels, who was the person who obtained Waller’s photographs from Brandt. The pictures were shown to the victim of the residential robbery, one Brody, who tentatively identified Waller as one of the perpetrators of the crime. The police then acquired a different photograph from Waller’s employer. Brody then positively identified Waller as one of the robbers. Waller was arrested and criminally processed. Ultimately, the victim retracted the identification, and the charges against Waller were dropped.

He then filed suit alleging that the bank had (1) invaded his privacy and (2) breached an implied condition of their contract, i.e., the obligation of confidentiality. The case proceeded to trial, where, at the close of Waller’s evidence, the trial judge directed a verdict against him on the count for invasion of privacy and on the matter of punitive damages. Following the presentation of the Bank’s defense, the court directed a verdict in favor of Waller on the issue of liability, leaving the assessment of damages to the jury.

Attempting to cancel the “withdrawal” made by the jury, the appellant impugns the judgment on three grounds:

I. The trial court erred in failing to rule as a matter of law that the Bank’s limited disclosure to the police was reasonable.
II. The trial court erred in failing to rule as a matter of law that the Bank’s actions were not the proximate cause of Waller’s alleged damages.
III. The trial court erred in instructing the jury that it could award damages for loss of reputation where there was no adequate evidence presented on the issue.

THE LAW.

I.

At common law, the relationship of a bank to its customer was not considered to be fiduciary in nature, but rather as that of a debtor and his creditor, Foley v. Hill, 2 H.L. Cas. 28 (1848); Watts v. Christie, 11 Beav. 546 (1849); 1 Morse, A Treatise on the Law of Banks and Banking § 289 (6th ed. 1928), “the rights of the depositor and the liability of the bank being contractual.” Taylor v. Equitable Trust Co., 269 Md. 149, 155, 304 A.2d 838, 842 (1973). The appellate decisions of this State have consistently followed that view. See University National Bank v. Wolfe, 279 Md. 512, 514, 369 A.2d 570, 571 (1977); Keller v. Frederickstown Savings Institution, supra, 193 Md. at 296, 66 A.2d at 925-26; Pritchard v. Myers, 174 Md. 66, 76, 197 A. 620, 625 (1938); Hardy v. Chesapeake Bank, 51 Md. 562, 585, 34 A.R. 325, 328 (1879); Horwitz v. Ellinger, 31 Md. 492, 503 (1869); 5 A, Michie, Banks and Banking § 1 (1973).

Modern society virtually demands that one maintain a bank account of some sort. “In a sense a person is defined by the checks he writes. By examining them... [one] get[s] to know his doctors, lawyers, creditors, political allies, social connections, religious affiliation, educational interests, the papers and magazines he reads, and so on ad infinitum.” California Bankers Association v. Shultz, 416 U.S. 21, 85, 94 S.Ct. 1494, 1529, 39 L.Ed.2d 812, 854 (1974) (Douglas, J., dissenting). The message of Mr. Justice Douglas in Shultz is clear: If it is true that a man is known by the company he keeps, then his soul is almost laid bare to the examiner of his checking account. More recently, these revelations have been recorded and preserved under compulsion of law. See 12 U.S.C. § 1829(b); 31 C.F.R. 103.31-103.34 (1978). Patently, the vital information placed within the bank’s control presents potential sources of use as well as abuse.

Courts have recognized the special considerations inherent in the bank-depositor relationship and have not hesitated to find that a bank implicitly warrants to maintain, in strict confidence, information regarding its depositor’s affairs.

The seminal case with respect to a bank’s obligation of “strict confidence” appears to be Tournier v. National Provincial and Union Bank of England, 1 K.B. 461 (1923). In that case the plaintiff overdrew his account and after agreeing to make good the overdraft, failed to perform. The bank called Tournier’s employer and in the course of the conversation, disclosed that “one cheque [coming through the bank payable to the plaintiff] ... [had] gone to the credit of a bookmaker’s account.” As a result of the bank’s garrulity, Tournier found himself without employment.

A three-judge panel of the English Court of Appeal held that the bank had breached its implied contractual duty of nondisclosure. Lord Justice Scrutton explained:

“The contract is alleged in the claim as ‘implied’ and ... implied terms are a question of law for the Court. ... The Court will only imply terms which must necessarily have been in the contemplation of the parties in making the contract. Applying this principle to such knowledge of life as a judge is allowed to have, I have no doubt that it is an implied term of a banker’s contract with his customer that the banker shall not disclose the account or, transactions relating thereto, of his customer----”() Id. at 480.

The decisions of appellate courts in this country are generally in accord with Tournier. The Supreme Court of Idaho, in Peterson v. Idaho First National Bank, 83 Idaho 578, 588, 367 P.2d 284, 290 (1961), opined:

“It is inconceivable that a bank would at any time consider itself at liberty to disclose the intimate details of its depositors’ accounts. Inviolate secrecy is one of the inherent and fundamental precepts of the relationship of the bank and its customers or depositors. This high ethical standard is recognized by the defendant bank in the instant case, as outlined in the manager’s deposition.
It is implicit in the contract of the bank with its customer or depositor that no information may be disclosed by the bank or its employees concerning the customer’s or depositor’s account. . . .”

5 A, Michie, Banks and Banking § 1 (1973) states, “Bank depositors have the right of secrecy and a bank is under an implied obligation to keep secret its records of accounts, deposits and withdrawals.” See also Burrows v. Superior Court of San Bernardino County, 13 Cal. 3rd 238, 118 Cal. Rptr. 166, 529 P.2d 590 (1974); Milohnich v. First National Bank of Miami Springs, 224 So.2d 759 (Fla. Dist. Ct. App. 1969); Richfield Bank and Trust Co. v. Sjogren, 309 Minn. 362, 244 N.W.2d 648 (1976); Brex v. Smith, 104 N.J.Eq. 386, 146 A. 34 (1929); 5 Zollman, Banks and Banking § 3413 (Per. Ed., 1943); 10 Am. Jur. 2d Banks § 332 (1963).

The appellant readily concedes that it was under such a duty, but attempts to execute a “Green Bay sweep” around its obligation. Specifically, the Bank avers that the duty imposed upon it by the contract is qualified in nature. The Bank posits that it was required only “under reasonable circumstances” not to' disclose “unnecessarily, promiscuously, or maliciously... such information,” and that “as a matter of law it acted reasonably under the circumstances.” We have an entirely different view.

Although the courts, without exception, have implied a warranty of confidentiality they have diverged in their outlook as to the circumstances under which the bank is released from its obligation. Lord Justice Atkins, in Tournier, classified the qualification of the contractual duty of secrecy under four headings:

“(a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer.”() 1 K.B. at 473.

The statement is made in 10 Am. Jur. 2d Banks § 332 (1963) that the bank is under a duty of nondisclosure “unless the banker is compelled to do so by court order, the circumstances give rise to a public duty of disclosure, or the protection of the banker’s own interest require [disclosure].”

Notwithstanding what is written in 10 Am. Jur. 2d Banks § 332, the American cases generally are more restrictive with respect to the exceptions from the obligation of confidentiality. In Brex v. Smith, supra, 104 N.J. Eq. at 390, 146 A. at 36, the chancellor declared that “there is an implied obligation ... to keep these [depositors’ bank records] from scrutiny until compelled by a court of competent jurisdiction to do otherwise. ” (Emphasis supplied.)

The Idaho Court, in Peterson, stated that “no information may be disclosed ... unless authorized by law or by the customer or depositor....” 83 Idaho at 588, 367 P.2d at 290.

Justice Mosk, speaking for the California Supreme Court in Burrows v. Superior Court of San Bernardino County, supra, 113 Cal. 3rd at 243, 118 Cal. Rptr. at 169, 529 P.2d at 593, said that “[a] bank customer’s reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes.” (Emphasis supplied.)

We specifically reject both the Tournier fourfold classification of qualifications to the implied contractual obligation of confidentiality owed by a bank to its depositors and the 10 Am. Jur. 2d Banks § 332 grouping. We so do because we believe that those two authorities confer upon a bank entirely too much discretion. Were we to follow Tournier or 10 Am. Jur. 2d Banks § 332, we would permit a bank to decide what is or is not in the public interest to disclose, and what is or is not in the best interest of the bank to disclose. That vast area of discretion, it seems to us, transmogrifies confidentiality to the point that it bears little, if any, resemblance to its original meaning. Moreover, Tournier and 10 Am. Jur. 2d, Banks § 332, appear to be a potential source of numerous law suits in order to establish the fixed perimeters of the bank’s discretion.

The necessity of ascertaining the scope of the discretion that Tournier and 10 Am. Jur. 2d, Banks § 332 would vest in a bank is totally removed by the more rigid standards of Brex, Peterson, and Burrows. We are persuaded that Brex, Peterson, and Burrows have mapped the better route for us to travel.

We think that a bank depositor in this State has a right to expect that the bank will, to the extent permitted by law, treat as confidential, all information regarding his account and any transaction relating thereto. Accordingly, we hold that, absent compulsion by law, a bank may not make any disclosures concerning a depositor’s account without the express or implied consent of the depositor.

Our conclusion is buttressed by the action taken by the General Assembly in enacting Laws 1976, ch. 252.

Apparently disturbed by what it believed to be the trend, out of all scotch and notch, among banks and other fiduciary institutions to furnish information without compulsion to governmental agencies, the Legislature in its preamble to Laws 1976, ch. 252 said:

“(a) The General Assembly of Maryland finds and declares that:
(1) procedures and policies governing the relationship between fiduciary institutions and government agencies have in some cases developed without due regard to the constitutional rights of customers of those institutions; and
(2) the confidential relationships between fiduciary institutions and their customers must be preserved and protected.
(b) It is the purpose of this Act to protect and preserve the confidential relationship between fiduciary institutions and their customers and to promote commerce by prescribing policies and procedures applicable to the disclosure of customer records by fiduciary institutions.”

By the enactment of Laws 1976, ch. 252, the people of Maryland, through their duly elected representatives, made explicit what had theretofore been implicit — banks may not, absent legal compulsion or express or implied authorization from the depositor concerned, reveal any information to any one, including police and other government agencies, about the depositor’s dealings with the bank. To underscore their deep concern over the right of a depositor in a bank to confidentiality as regards his dealings with the bank, chapter 252 mandates that “any officer or employee of a fiduciary institution ... who knowingly and willfully furnishes financial records in violation of this subtitle is guilty of a misdemeanor....” Md. Ann. Code art. 11, § 227(a). A similar provision with specific reference to “[a]ny person who knowingly and willfully induces or attempts to induce” any bank officer or employee to violate art. 11, § 227(a) is found in section 227(b).

The purpose of the Act having been made crystal clear, the Legislature then declared:

“A fiduciary institution may not disclose to any person, except to the customer or his duly authorized agent, any financial records relating to that customer of that fiduciary institution unless:
(a) The customer has authorized disclosure to the person; or
(b) The financial records are disclosed in response to a lawful subpoena, summons, warrant or court order which meets the requirements of § 226 (a).” () Laws 1976, ch. 252, § 1; Md. Ann. Code art. 11, § 225.

The trial judge, in directing the verdict in Waller’s favor, employed a standard that was more favorable to the Bank than that we espouse. He told the jury as a matter of law the conduct of the Bank amounted “to a breach of contract.” The judge grounded his instruction upon the Bank’s duty “not to release confidential information unless it was a matter of public necessity or under ... court order....” (Emphasis supplied.) We believe the court to have been partially right, and partially wrong. Nevertheless, that portion that was incorrect afforded the Bank more protection than it was entitled to receive. This is so because, as we have seen, the only times that a bank may disclose a depositor’s financial records are in response to a lawful court order, Md. Ann. Code art. 11, § 225, or upon authorization of the depositor. Id. When the court “cranked in” another reason for disclosure, it erred, but that error was to the advantage rather than detriment of the Bank.

II.

The Bank next asserts that the trial judge erred in failing to find as a matter of law that Brandt’s actions were not the proximate cause of Waller’s damages. His injuries, the Bank avers, were occasioned by the arrest following the police department’s independent investigation. That investigation, the Bank says, was a superseding cause of the alleged harm to Waller.

Ordinarily, a question of proximate or “responsible,” as opposed to superseding causation is a matter to be resolved by the jury. Dean v. Redmiles, 280 Md. 137, 153, 374 A.2d 329, 338 (1977); Short v. Wells; (249 Md. 491, 240 A.2d 224 (1968); Palms v. Shell Oil Co., supra. It is where the evidence adduced and the inferences deducible therefrom admit of but one conclusion that the matter may be decided by the court as a matter of law. Caroline v. Reicher, 269 Md. 125, 304 A.2d 831 (1973); Katz v. Holsinger, 264 Md. 307, 286 A.2d 115 (1972); Farley v. Yerman, 231 Md. 444, 190 A.2d 773 (1963); Kemp v. Armstrong, 40 Md. App. 542, 392 A.2d 1161 (1978); Iager v. Rogers, 27 Md. App. 556, 341 A.2d 827, cert. denied, 276 Md. 745 (1975); Palms v. Shell Oil, supra.

The Court of Appeals has held that “ ‘negligence is not actionable unless it, without the intervention of any independent factor, causes the harm complained of. It involves of course the idea of continuity, that the negligent act continuously extends through every event, fact, act, and occurrence related to the tortious conduct of the defendant, and is itself the logical and natural cause of the injury complained of.’ ” Owens v. Simon, 245 Md. 404, 412, 226 A.2d 548, 552 (1966), citing Holler v. Lowery, 175 Md. 149, 161, 200 A. 353, 358 (1938).

An intervening causative factor, in order to be a superseding cause must “alone, without... [the defendant’s] negligence contributing thereto in the slightest degree, ... [produce] the injury.” Schiller v. Hecht Co., 165 Md. 415, 421, 169 A. 311, 313 (1933).

The evidence adduced at trial of the instant case disclosed that the report by Brandt caused the police to focus their investigation upon Waller. Detective Ingel’s testimony established that the information divulged by the Bank through Brandt was listed in the probable cause section of the application for an arrest warrant for Waller. Additionally, the photographs supplied by the Bank were those from which Brody, the residential robbery victim, made his initial identification of Waller as one of the culprits involved.

We think the evidence was such that reasoning minds could conclude only that the bank’s action was the proximate cause of Waller’s damages.

III.

The appellant makes one final sortie against the judgment of the circuit court. The Bank asseverates that the evidence adduced at trial was insufficient to permit the issue of damage to Waller’s reputation to go to the jury.

To obtain compensatory damages in this State, they must be proven with reasonable certainty and may not be based on speculation or conjecture. Lazorcak v. Feuerstein, 273 Md. 69, 327 A.2d 477 (1974); Charles County Broadcasting Co. v. Meares, 270 Md. 321, 311 A.2d 27 (1973); Asibem Associates, Limited v. Rill, 264 Md. 272, 286 A.2d 160 (1972).

The record in the case now before us discloses no evidence that Waller’s reputation was damaged. He suggests that the damage is established by inference from the fact that his neighbors and family saw him being arrested. To draw that inference, we would have to engage in the very sort of speculation that is prohibited by the decisions of the Court of Appeals.

We think that the trial judge erred in submitting the issue to the jury, and we must, therefore, reverse the judgment, but only as to damages. All is not lost for Waller because he lives to fight another day. When the case is retried on the question of damages, Waller is, of course, free to produce such witnesses as he may in order to support his claim.

Judgment as to liability affirmed, but reversed as to damages and remanded for further proceedings consistent with this opinion.

Costs to be paid 2/3 by appellant and 1/3 by appellee.

      . Former publishers of so-called “pulp magazines.” “Pulps,” descendants of dime novels, originated in 1896 when Frank Munsey changed his Argosy to an all fiction magazine and printed it on a rough wood pulp paper to save money. The subjects of the publications fell into four main categories: adventure, love, detective, and western stories. Street and Smith were successful publishers of pulps, pioneering the latter three categories with Love Story, Detective Story, ana Western Story. In the middle of the 1940’s, however, rising production costs caused Street and Smith to abandon pulps as unprofitable. Peterson, Magazines in the Twentieth Century283-86 (1968).

      . “Banks,” Jim Oigan used to say, “are like people. Some are big, some are small; some are secretive; others tell all.” See Anderson v. Associated Professors of Loyola College, 39 Md. App. 345, 346, 385 A.2d 1203, 1203, cert. denied, 283 Md. 729 (1978).

      . Unfortunately, as it turned out for the Bank, this was not the same teller Who had handled Waller on his first visit to the Bank.

      . “N.C.L,” we infer, is a computer print-out of the known serial numbers of stolen bills, maintained by the National Crime Information Center.

      . Brandt testified that he remembered little or nothing of his conversation with Corporal Howell. As a result, the testimony of the officer on what transpired was uncontradicted.

      . This was the last contact, until this suit, that the Bank had with the matter.

      . Waller’s original declaration alleged only an invasion of privacy, but was later amended to add the ex contractu claim.

      . Waller did not cross-appeal, and we; therefore, express no opinion as to the propriety of the trial judge’s rulings with respect to the directed verdicts on invasion of privacy and punitive damages.

      . “[TJhe money deposited in ... [the bank] is regarded as a loan to the bank by the depositor, with the right of the depositor to draw on it to the extent of the deposit.” Keller v. Frederickstown Sav. Inst., 193 Md. 292, 296, 66 A.2d 924, 925 (1949).

      . See also Union Trust Co. v. Soble, 192 Md. 427, 430-31, 64 A.2d 744, 745 (1949); Magness v. Trust Co., 176 Md. 528, 531, 6 A.2d 241, 243 (1939); Terminals Co. v. Hospelhorn, 172 Md. 291, 298, 191 A. 707, 710 (1937); Dunlop Sand & Gravel Corp. v. Hospelhorn, 172 Md. 279, 287, 191 A. 701, 705 (1937); First Denton Nat. Bank v. Kenney, 116 Md. 24, 29-30, 81 A. 227, 229 (1911); Colton v. Drovers’ Bldg. Assn., 90 Md. 85, 89, 45 A. 23, 24 (1899); Note, Negotiable Instruments: Payment of Materially Altered Checks: Bank Not Liable to Depositor in Tort, 40 Cornell L.Q. 795 (1955).

      . We observe that this potential for dissemination of the privileged information is increased where all employees of the bank are not fully infonned as to bank policy on confidentiality. Brandt testified that he received no formal training in such matters, although he understood that “no account information” was to be disclosed. In the instant case, Brandt felt that the disclosure of account information was justified by the unusual nature of Waller’s transaction. It appears to us that “bank policy” thus would be determined largely by Brandt’s discretion as to what was or was not an unusual transaction.

      . Although Lord Justice Scrutton would have limited the duty to information concerning “the account or transactions relating thereto,” the remaining justices would have extended it to all information acquired by the banker during the currency of the account and in his character as the banker.

      . See Security Construction Co. v. Maietta, 25 Md. App. 303, 308, 334 A.2d 133, 136 (1975).

      . The remaining two justices reached the same conclusion as did Lord Justice Atkins.

      . While the California court took this position where the bank was a “neutral” party, Justice Mosk would have permitted the bank a broader latitude of disclosure where it was placed in an adversarial position vis-a-vis the depositor.

      . See also 12 U.S.C. § 3401 et seq. Laws 1976, ch. 252, was not effective until July 1, 1976, a period of approximately 120 days after the onset of the events in the instant case.

      . The expression comes from the child’s game of hopscotch. It means “beyond all bounds” and refers to the boundary lines (scotches) and corners (notches) used in the game. Morris, Dictionary oí Word and Phrase Origins 425 (1977).

      . Upon conviction of the offense, a maximum fine of $1,000 may be imposed! Md. Ann. Code art. 11, § 227(a).

      . The prescribed punishment is the same as that in n. 18, supra. Md. Ann. Code art. 11, § 227(b).

      . Lest there be any doubt that it meant to tighten bank security so as to protect the people of this State from unauthorized disclosures of the financial records of individual customers by bank officers or employees, the General Assembly imposed stringent conditions as to the issuance of the court order and the procedure that must be followed after the order is obtained and before it is effective. Md. Ann. Code art. 11, § 226(a) provides:
      “A fiduciary institution shall disclose financial records under § 225 of this article pursuant to a lawful subpoena, summons, warrant or court order only if the subpoena, summons, warrant or court order is served upon the customer and upon the fiduciary institution; however, the court for good cause may waive service of the subpoena, summons, warrant or court order upon the customer.”

      . See Palms v. Shell Oil Co., 24 Md. App. 540, 543, 332 A.2d 300, 302 (1975).


author: Lowe, J.,

text:
    BANK OF BETHESDA v. ROBERT F. KOCH et al.
    [No. 288,
    September Term, 1979.]

      Decided December 7, 1979.

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

      Leonard M. Murphy for appellant.

      Hyman Shapiro for appellees.
   Lowe, J.,

delivered the opinion of the Court.

In a letter “To Number 1365” declining once more to sanction a dramatization of “Tom Sawyer”, Mark Twain once wrote of a fictitious experience as a western college professor, whereupon a Piute squaw intending to honor him named her baby for him, “a voluntary compliment” which pleased him greatly but brought about devastating and unforeseen consequences. Such an honor the Bank of Bethesda seeks to have us bestow upon a statutory “Injun”, legislatively referred to as a “charging order”, which the Bank would have us redenominate a “judicial assignment”.

Because a limited partner’s interest in a partnership is declared by the Limited Partnership Act to be personal property, Md. Code, Corps. & Assns. Art., § 10-117, presumably in the nature of shares in a corporation, he has no rights in specific partnership property subject to attachment or execution. See also Uniform Partnership Act, Corps. & Assns. Art., § 9-502 (b) (3). To compensate for the protection of specific partnership property against claims by individual partner’s creditors, both the Uniform Partnership Act, § 9-505, and the Limited Partnership Act, § 10-121, provide that a court may charge the interest of a debtor-partner in the partnership with payment of the unsatisfied amount of a judgment.

“§ 10-121. Rights of creditors of limited partner.
(a) On due application to a court of competent jurisdiction by any judgment creditor of a limited partner, the court may charge the interest of the indebted limited partner with payment of the unsatisfied amount of the judgment debt; and may appoint a receiver, and make all other orders, directions, and inquiries which the circumstances of the case may require.
(b) The interest may be redeemed with the separate property of any general partner, but may not be redeemed with partnership property.
(c) The remedies conferred by subsection (a) of this section shall not be deemed exclusive of others which may exist.
(d) Nothing in this title shall be held to deprive a limited partner of his statutory exemption.” (Emphasis added).

This remedy was sought and obtained by the Bank of Bethesda against Robert F. and Evelyn Carmen Koch who owed it $120,262.50. The Bank’s problem is that although it had its judgment while Mr. Koch still owned some interest in the Holly Hills Associates Limited Partnership, his entire interest was assigned away before it obtained its charging order. Thus when it obtained an order that “the interests of Robert F. Koch in the Holly Hills Associates Limited Partnership be charged with the judgment debt of the Bank of Bethesda in the amount of $120,262.50 ...”, Koch held no financial interest which would support the charging order.

Until April Fool’s day in 1975, Robert F. Koch had owned a 22% interest in the Holly Hills Associates Limited Partnership. Along with his wife, Evelyn Carmen Koch, he was also indebted to the Bank of Bethesda upon a $130,000 confessed judgment note. Between April 1, 1975 and November 24,1976, for adequate considerations, he assigned his interests in the limited partnership in varying proportions to Henry H. Vechery and James C. Broderick. Until the summer of 1976 when the partnership was notified about some of the assignments, none but the participants in those transactions knew of the assignments.

There should be noted here the distinction between an assignment of a limited partner’s interest and a substitution of a limited partner. The distinction is implicit in § 10-118 of the Maryland Uniform Limited Partnership Act. That section makes it clear that a limited partner’s interest is assignable, but unless he becomes a substituted limited partner “he is only entitled to receive the share of the profits or other compensation by way of income or the return of his contribution, to which his assignor would otherwise be entitled.” § 10-118 (a) and (c). An assignee, to become a limited partner, must first obtain the consent of all of the other members of the limited partnership, unless the limited partnership certificate authorizes substitution. However, in either case, the assignee will not secure the rights of a limited partner until the original certificate filed pursuant to § 10-102 is appropriately amended (pursuant to § 10-124) to indicate the substitution. § 10-118 (e).

Implicit is a significant feature of limited partnerships, i.e., that a mere assignment of partnership interests need not be recorded nor notice given publicly or to anyone other than the participants. It is a transaction strictly between assignee and assignor, questionable by others only as to bona fides of the transaction if and when subsequently disclosed. It may very well be that it is this facility of concealment of fiduciary interests which makes limited partnerships so attractive to those who not only wish to limit their liability in investing, but prefer anonymity in doing so.

Secrecy was not necessarily sought in this case, however, but neither were the assignments publicized, perhaps because none of us desire to advertise financial adversity. Koch and his wife had become delinquent in paying the $120,262.50 balance on their note to the Bank, and on January 12, 1976, a judgment was confessed against them in the Bank’s favor and, over a year and a half later on September 29, 1977, the Bank sought to satisfy its judgment by obtaining the charging order against what it thought was Koch’s interest in the Holly Hills Associates Limited Partnership, and an order to sell that interest. But there was no such interest to sell and this first became apparent when Yechery and Broderick were permitted to intervene and move to set aside the charging order and the order to sell. Upon considering the recommendation of a special master, and after hearing the cause himself, Judge H. Ralph Miller, of the Circuit Court for Montgomery County, finding Koch had previously assigned his pecuniary interest in Holly Hills, vacated and set aside the order to charge and to sell the limited partnership interest of Koch to satisfy the Bank’s judgment debt.

The initial questions raised by the Bank here are predicated upon our deciding “whether a statutory charging order ... is a form of judicial assignment or a form of attachment.” Assuming we decide the former, the Bank then contends that its “assignment” should be treated as a commercial transaction which would provide priority as to some of the actual assignments by reason of its prior notice (inappositely citing Lambert v. Morgan, 110 Md. 1 (1909)).

Neither alternative description is necessary nor particularly desirable. A § 10-121 charging order is nothing more than a legislative means of providing a creditor some means of getting at a debtor’s ill-defined interest in a statutory bastard, surnamed “partnership”, but corporately protecting participants by limiting their liability as are corporate shareholders. While limited partnerships were not created to assist creditors, but to enable persons to invest their money without being liable for partnership debts for more than their contribution, Gilman Paint & Varnish Co. v. Legum, 197 Md. 665, 670 (1951), neither were they intended to protect a partner’s interest in the partnership against legitimate personal creditors. Since the statutory offspring is unique, the rights of creditors against partnerships were necessarily peculiar as well; hence, the charging order — which like the limited partner to which it applies — is neither fish nor fowl. It is neither an assignment nor an attachment. But, like many such questionable offspring, it resembles both progenitors in some of their characteristics.

The order permitted by § 10-121 serves only the precise purpose statutorily indicated, i.e., to “charge” an interest with a debt. Since appellant does not question the bona fides of the prior assignments, there was no interest in Holly Hills held by Koch to be “charged” with the debt. We decline appellant’s invitation to expand a limited statutory right given creditors by judicial baptism with a pseudonym. We will not call that “Injun” somethin’ it ain’t.

The final question raised by the Bank contains a touch of irony. The Bank — which waited 20 months from the obtention of the judgment to ask for the charging order — now contends that Yechery and Broderick should not have been permitted to intervene because they did not do so within the same term of court that the charging order was obtained. To so argue, it now treats its charging order as “a form of attachment”, and relies upon McDowell, Pyle & Co. v. Hopfield, 148 Md. 84 (1925) stating:

“McDowell Pyle dealt with the issue of the priority between an assignee of accounts receivable who had not given notice to the debtor and a subsequent creditor of the assignor who attached the accounts receivable in the hands of the debtor. A judgment of condemnation absolute had been issued in favor of the creditor but on the last day of the same term of Court the prior assignee moved to intervene and to set aside the judgment. The Court found that if it had not been for the fact of the attachment, the prior assignee’s assignment would have been valid and prior; but in its discussion of the case, the Court indicated that if the Motion to Intervene had not been timely filed, then the judgment of condemnation would have been absolute and given priority to the creditor. The Court went on to hold that because the motion was timely filed and because the assignment was specific to a particular asset while the creditor’s lien was general, not looking to any particular asset, that it would find for the assignee over the creditor.”

McDowell, even as so interpreted, is not apposite to this case. Assuming, without deciding, that a charging order is “a form of attachment” (and we did not so decide), a levy upon a judgment against Koch permits attachment only of Koch’s property. By the time the charging order (attachment) was obtained, Koch had sold all of his Holly Hills interest. As we have already indicated that there was nothing left for the order to “charge”, so there is nothing to which the charging order could “attach”. We fail to see how the interest of bona fide purchasers could be either attached or charged with the debt of another unless obtained after the order or in an effort to defraud before it was obtained.

Beyond that, we are not convinced that McDowell stands for the principle that intervention in the succeeding term of court would have precluded recovery by operation of law. Timeliness of intervention is to be determined from all circumstances in the exercise of the court’s sound discretion. Montgomery Co. v. Ian Corp., 282 Md. 459, 465 (1978). Nothing in the record extract indicates circumstantial untimeliness sufficient to warrant a finding that the court below abused its discretion.

Judgment affirmed.

Costs to be paid by the appellant.

APPENDIX:

“Twenty-four years ago, I was strangely handsome. The remains of it are still visible through the rifts of time. I was so handsome that human activities ceased as if spellbound when I came in view, and even inanimate things stopped to look — like locomotives, and district messenger boys and so-on. In San Francisco, in rainy season I was often mistaken for fair weather. Upon one occasion I was traveling in the Sonora region, and stopped for an hour’s nooning, to rest my horse and myself. All the town came out to look. A. Piute squaw named her baby for me, — a voluntary compliment which pleased me greatly.

Other attentions were paid me. Last of all arrived the president and faculty of Sonora University and offered me the post of Professor of Moral Culture and Dogmatic Humanities; which I accepted gratefully, and entered at once upon my duties. But my name had pleased the Indians, and in the deadly kindness of their hearts they went on naming their babies after me. I tried to stop it, but the Indians could not understand why I should object to so manifest a compliment. The thing grew and grew and spread and spread and became exceedingly embarrassing. The University stood it a couple of years; but then for the sake of the college they felt obliged to call a halt, although I had the sympathy of the whole faculty.

The president himself said to me, ‘I am as sorry as I can be for you, and would still hold out if there were any hope ahead; but you see how it is: there are a hundred and thirty-two of them already, and fourteen precincts to hear from. The circumstance has brought your name into most wide and unfortunate renown. It causes much comment — I believe that that is not an overstatement. Some of this comment is palliative, but some of it — by patrons at a distance, who only know the statistics without the explanation, — is offensive, and in some cases even violent. Nine students have been called home. The trustees of the college have been growing more and more uneasy all these last months — steadily along with the implacable increase in your census — and I will not conceal from you that more than once they have touched upon the expediency of a change in the Professorship of Moral Culture. The coarsely sarcastic editorial in yesterday’s Alta, — headed Give the Moral Acrobat a Rest — has brought things to a crisis, and I am charged with the unpleasant duty of receiving your resignation.’

I know you only mean me a kindness, dear 1365, but it is a most deadly mistake. Please do not name your Injun for me. Truly yours.”

      . The letter, in pertinent part, is appended.

      . Appellant would also have us proclaim a charging order to be a judicial assignment because a revision of the Uniform Limited Partnership Act by the Uniform Law Commissioners provides that to the extent a court charges the partnership interest of a limited partner with payment of a judgment, the judgment creditor

        “has only the rights of an assignee of the partnership interest."

      Even if we agreed with appellant’s interpretation from that proposed addition that such language provides a judgment creditor with all the rights of an assignee (which we do not), the Maryland Legislature has never seen fit to adopt such change and we would certainly not impose upon an unambiguous statute so drastic a policy consideration that it clearly does not by any of its language appear remotely to have intended.


author:
Gilbert, C. J.,
      Lowe, J.,

text:
    JOHN K. MACY v. FRANK HEVERIN et al.
    [No. 306,
    September Term, 1979.]

      Decided December 7, 1979.

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

      Willard C. Parker, II, with whom were Miller, Wheeler, Thompson & Thompson on the brief, for appellant.

      David A. Vorhis, with whom were W. Newton Jackson, III and Webb, Burnett & Duvall on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court. Lowe, J., filed a concurring opinion at page 365 infra.

This is yet another appeal invoking the antediluvian dogma of sovereign immunity. Our founding fathers apparently had a higher regard for property than they did for human life. This conclusion is permitted by observing that the Constitution of the United States proscribes the State’s taking of property from its citizens without due process of law. The Constitution, however, is silent as to the State’s taking of life as a result of negligence and with or without due process of law. Property rights are constitutionally safeguarded, but the negligent taking of human life is disregarded. To be certain that it is not responsible for loss of human life, even as a direct result of the State’s negligence or wilfulness, the State has inoculated itself with sovereign immunity. In the case sub judice, the Circuit Court for Caroline County (Rasin, J.) ruled that a volunteer member of a fire company who drove an ambulance solely for the purpose of “air-drying” it after it had just been washed, and who collided with another vehicle, was “not immune from being sued for damages arising from ... [the] accident.”

The immunity defense, having been pulled from under him like the proverbial rug, the appellant stood almost defenseless before a jury which returned verdicts against the ambulance driver, appellant, John K. Macy, for $20,663.63. Following the entry of judgment absolute on the verdict, Macy appealed. The appeal presents one question videlicet:

Is a volunteer fire department ambulance driver, in the course of his duties for a sovereign, a public officer and, thus, entitled to invoke the defense of governmental immunity?

The matter is before us on an agreed statement of facts. Because of its relative brevity, we quote the entire statement:

“On the afternoon of Tuesday, June 28, 1977, Appellant, John K. Macy, a volunteer member of the Greensboro Volunteer Fire Company, Inc., had finished washing one of the Fire Company’s ambulances and, together with a friend, Jeffrey Riddleberger, who was not a member of the Fire Company, but a prospect for membership, set out to “blow dry” or “spin dry” the ambulance by driving it a few miles down the road and then back to the fire house. John Kirk Macy was a 19 year old volunteer member of the Fire Company, a trained emergency medical technician, who had also been elected to the post of ambulance secretary, a position which he held on June 28, 1977. According to the testimony of Macy and the Chief of the Fire Company, it was a standard operating procedure to drive the ambulances on a short run after they had been washed to allow the rushing air passing over the moving ambulance to blow out any excessive accumulation of water on the flat top of the ambulance and in and around its emergency lighting equipment. They further testified that this provided an opportunity to inspect the emergency lighting and audio systems of the ambulance to ensure that water had not caused any short in these electrical systems. The parties stipulated that Macy was acting as the agent, servant and employee of the Fire Company at the time of the accident, and within the scope of his ‘employment
While Macy was operating the ambulance in a westerly direction on Maryland Route 480 between Greensboro and Ridgely in Caroline County, an accident occurred when he attempted to make a left turn into a parking lot adjacent to the highway, to turn around and return to the fire house, and collided with a tractor-trailer truck driven by Leroy Francis Hayman, and owned by Norris Wilson Hayman. Both vehicles suffered extensive damage, as did a vehicle parked near the point of impact which was owned by Frank Heverin.” (Emphasis supplied.)

Governmental immunity, in this State, precludes recovery in tort from public officials for nonmalicious acts performed in the course of their discretionary capacity, Duncan v. Koustenis, 260 Md. 98, 104, 271 A.2d 547, 550 (1970), although they may be liable for the negligent performance of purely ministerial acts. Clark v. Ferling, 220 Md. 109, 114, 151 A.2d 137, 139 (1959). Public employees, however, are not protected by the shield of the sovereign. Duncan v. Koustenis, 260 Md. at 104, 271 A.2d at 550. Having determined that immunity applies to public officials, at least in most instances, but not to public employees, we are confronted with the question of whether a fireman, volunteer or otherwise, is a public official. If he is, then obviously, he, in the performance of his duties, is cloaked with immunity to the extent allowed by law. On the other hand, if he or she is a public employee, he or she is answerable personally for his or her negligent wrongdoing.

A public official, it may be said, is a person who, upon being issued a commission, taking the required official oath, enters upon, for a fixed tenure, a position called an office where he or she exercises, in his or her own right, some of the attributes of the sovereign he or she serves, for the benefit of the public. Duncan v. Koustenis, 260 Md. at 105, 271 A.2d at 550; Gary v. Board of Trustees, 223 Md. 446, 165 A.2d 475 (1960).

A person need not satisfy each part of the general definition in order to be considered a public official. The circumstances of each and every case must be separately sorted and weighed, so that, a party who does not have a fixed tenure may, nevertheless, be a public official if he or she meets the other aspects of the public official. For example, a police officer has been held to be a public official even though the officer does not generally serve for a fixed term, nor do all employees of State agencies or departments of political subdivisions receive a “commission.” The police officer does, however, take an oath, exercise on a daily, if not minute-to-minute basis, some of the powers of the State and subdivision, and exercises those powers for the benefit of the public. These duties, the Court has held, are sufficient to qualify the police officer as a public official, so long as the officer acts “within the scope of his law enforcement function.” Karangelen v. Snyder, 40 Md. App. 393, 395, 391 A.2d 474, 475 (1978). See also Robinson v. Board of County Commissioners, 262 Md. 342, 278 A.2d 71 (1971); Wilkerson v. Baltimore County, 218 Md. 271, 146 A.2d 28 (1958); Harris v. Mayor of Baltimore, 151 Md. 11, 133 A. 888 (1926).

The following are not public officials: a public school teacher, Duncan v. Koustenis, supra; Chief of Right-of-Way Department of the State Roads Commission, Howard County Metropolitan Commission v. Westphal, 232 Md. 334, 193 A.2d 56 (1963); Deputy State Auditor, Gary v. Board of Trustees, supra; Special Assistant Attorney General, Hammond v. Lancaster, 194 Md. 462, 71 A.2d 474 (1950); General Counsel of State Tax Commission, State Tax Commission v. Harrington, 126 Md. 157, 94 A. 537 (1915); Members of Racing Commission, Clark v. Harford Agricultural and Breeders’ Association 118 Md. 608, 85 A. 503 (1912); Superintendent of Public Instruction, Mayor of Baltimore v. Lyman, 92 Md. 591, 48 A. 145 (1901).

The appellant, in the case before us, seeks to liken himself to a police officer, a public official, and thus immune from suit for nonmalicious torts. Karangelen v. Snyder, 40 Md. App. at 395, 391 A.2d at 475. Aware of the fact that Maryland does not seem to have passed upon this particular issue, Macy urges us to adopt the view that “firemen, both paid and volunteer,... are ‘public officers,’ like policemen.” He asserts that there is “no logical reason why he, as a volunteer fireman with an agency or instrumentality of the government of Caroline County, should not be accorded the same status [as a policeman].” “Policemen,” he reasons, “are charged with protection of life and property, keeping of peace and order, and énforcement of the laws of the State. Firemen are charged with the important public duties and responsibilities of fire extinguishment and prevention, and the protection of life and property. Like policemen, firemen may exercise a large portion of the sovereign power of government.” To bolster his position, Macy cites us to five cases decided in three different States, ranging from coast to coast. See Mercadante v. City of Paterson, 111 N.J. Super. 35, 266 A.2d 611 (1970), aff’d 58 N.J. 112, 275 A.2d 440 (1971), Guth v. Township of North Bergen, 35 N.J. Super. 24, 113 A.2d 50 (1955), Johnston v. City of Grants Pass, 120 Ore. 364, 251 P. 713 (1926), rehearing denied, 120 Ore. 364, 252 P. 1118 (1927), Benefiel v. Eagle Brass Foundry, 154 Wash. 330, 282 P. 213 (1929), and Beck v. Carter, 2 Wash. App. 974, 471 P.2d 127 (1970), all of which flatly hold that a fireman is a public official. We think them inapposite, however, for the reason that each of them is concerned with a municipally paid fire department, a situation far different than that of Macy, a volunteer ambulance driver in a volunteer fire company. When a fireman is a paid employee, the municipality has the opportunity to select those persons it desires to employ, and exercises, subject to whatever civil service regulations there may be, the authority to terminate the employment. In addition, the municipality is able to regulate the hours that firemen work. No such control is present in the case of a volunteer. The municipality may not even know that the volunteer exists much less is performing services in the fire company, and it cannot compel the volunteer to act.

Volunteer firemen are of necessity highly motivated in the performance of acts tending to alleviate the physical pain and suffering of their fellow man, as well as to protect his property from ravage and destruction by fire. Notwithstanding their lofty motivation, they remain volunteers and are not subject to direction or control of the sovereign. They are not public officers or public employees.

Volunteer firemen are not the only persons who donate their time and services. There are many kinds of gratuitous services that may be rendered to a municipality by its citizens. Volunteers often come forth to assist in parades, craft shows, exhibitions, ethnic festivals, concerts, conventions, entertainment of foreign visitors, and the like. All of them contribute toward the betterment of the municipality and, thus, help to make it a better place in which to reside. The giving by the citizens of their time and effort does not, however, make them public officers or public employees. Shindledecker v. Borough of New Bethlehem, 145 Pa. Super. 77, 20 A.2d 867 (1941); Steffy v. City of Reading, 353 Pa. 539, 46 A.2d 182 (1946).

Volunteer fire companies and ambulance drivers are not supervised and controlled by a municipality, but rather by their own elected officers. The municipality has no voice in deciding who will or will not be accepted as a volunteer, nor are they consulted as to the particular duties to which the volunteer is assigned. For us to hold that a municipality automatically assumes responsibility for the negligent acts of those rendering gratuitous services to the municipality would either subject the municipality to continual, if not continuous, litigation or deter the municipality’s acceptance of any gratuitous services from its citizens.

As we see it, the Legislature was aware of the possibility of negligent acts being performed or committed by volunteer firemen and ambulance drivers. To encourage volunteers to perform such services, but at the same time protect others from the volunteer’s negligence, the General Assembly exempted the volunteer from liability under specified circumstances. Md. Ann. Code art. 43, § 132(b). We believe the carefully delineated qualifications, that must be present before the application of immunity, are a backhanded, but clear expression by the Legislature that such immunity is not, in other circumstances, applicable.

We decline to be the instrument that extends, under the circumstances of this case, the harsh doctrine of sovereign immunity to volunteer ambulance drivers. Accordingly, we hold that Judge Rasin did not err in rejecting Macy’s motion for summary judgment.

Judgment affirmed.

Costs to be paid by appellant.

Lowe, J.,

concurring.

There is little about governmental immunity that is fair or just, but to immunize a volunteer fire company (as was done below and not appealed), but hold its volunteers liable as individuals, is so unjust that my sense of fair play compels a comment. I concur with the majority because it is the law, but my reaction to such law brings me in sympathy with Mr. Bumble’s reflections in Charles Dickens’ Oliver Twist.

I am also offended by the fact that here once again is an insurance company insuring an immune agency and I adopt here my reflections concurring in Jackson v. Housing Opportunities Commission of Montgomery County, 44 Md. App. 304 (1979), in that regard.

But in the result here, as there, concur I must.

      . The Court of Appeals and this Court have, on several occasions, indicated that if the doctrine of sovereign immunity is to be changed, that alteration, modification, or repeal must be by legislative action, not judicial fiat. See Austin v. Mayor of Baltimore, 286 Md. 51, 405 A.2d 255 (1979); Bradshaw v. Prince George’s County, 284 Md. 294, 396 A.2d 255 (1979); Board of Trustees v. John K. Ruff, Inc., 278 Md. 580, 366 A.2d 360 (1976); Jekofsky v. State Roads Comm’n, 264 Md. 471, 287 A.2d 40 (1972); Herilla v. Mayor of Baltimore, 37 Md. App. 481, 378 A.2d 162 (1977); Ramsey v. Prince George’s Co., 18 Md. App. 385, 308 A.2d 217, cert. denied, 269 Md. 765 (1973).

        . Judge Rasin limited his ruling to the facts of this particular case, expressing “no opinion as to what... [the trial court’s] ruling might be with respect to a fireman on his way to or from a fire or an ambulance driver transporting a patient or on his way to pick up a patient or returning after having delivered a patient.”

      . Sometimes a bond is required as a condition prerequisite to the entrance into the office, the bond inuring to the benefit of the people. Earlier opinions have utilized the “bond” as a requirement for a public official. There are, however, far too many such offices that require no bond and far too many public employees who are required to be bonded for the bond requirement to be considered a valid test.

      . The use of the terra “firemen” in the American language became popular in the 1830’s, according to S. B. Flexner, I Hear America Talking. 399 (1976).

      . That section provides:
      "(b) A member of any State, county, municipal or volunteer fire department, ambulance and rescue squad, ... or law enforcement agency who has completed an American Red Cross course in advanced first aid or its equivalent and possesses a current card indicating that status as determined by the Secretary of Health and Mental Hygiene, or is certified by tne State of Mainland as an emergency medical technician or cardiac rescue technician has the same immunity provided in subsection (a). A volunteer fire department or ambulance and rescue squad has the same immunity as its members.”
      Subsection (a) provides immunity from personal liability provided the claim against them arises from “medical aid, care, or assistance” rendered “(1) at the scene of an emergency; (2) in transit to medical facilities; or (3) through communications with personnel rendering medical assistance,” and the injury complained of is not the result of any “act or omission ... amounting to gross negligence.”