text:
    WAYNE COURTENEY MURRAY v. STATE OF MARYLAND
    [No. 829,
    September Term, 1976.]

      Decided April 13, 1977.

    The cause was argued before Gilbert C. J., and Moylan and Liss, JJ.

      Andrew Jay Graham, with whom were Kramon & Graham, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Denholm, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This appeal raises an interesting question of first impression. Does one codefendant in a joint trial, by resting his case without putting on a defense after the State has rested its case, acquire a vested right in foreclosing any other evidence being received against him for any other purpose? May he, by his act of resting, freeze the status quo of proof? For reasons to be discussed, the answer is, “No.”

The appellant, Wayne Courteney Murray, was convicted by Judge Martin B. Greenfeld, sitting without a jury, in the Criminal Court of Baltimore of possession of narcotics and possession of narcotics paraphernalia. Upon this appeal, he raises four contentions:

(1) That his motion for a judgment of acquittal at the conclusion of the State’s case was erroneously denied;

(2) That the evidence was not legally sufficient to sustain the convictions;

(3) That his motion for severance was erroneously denied; and

(4) That no evidence should have been received against him after he had rested his case.

The Denial of the Motion for Judgment of Acquittal

The State’s case consisted of the testimony of Detective Robert Murray, a former officer of the Baltimore City Police Department. On July 18, 1975, Detective Murray went to 1903 N. Forest Park Avenue, in Baltimore, to execute a search and seizure warrant for narcotics. The place to be searched was the apartment of Charles Jeter. Using a steel battering ram to crash through the heavy barricades, Detective Murray and the searching party entered the apartment.

James Cromer, a codefendant, was standing in the middle of the kitchen. He held in his hand a plastic-coated playing card which Detective Murray testified was customarily used for purposes of processing heroin. Jeter, clad in pajamas, was seen coming out of one bedroom. The appellant was found in that bedroom, lying across the foot of the bed fully clothed. The time was 5:45 a.m.

From the kitchen, where Cromer was observed, were recovered brown powder which was found to be heroin, a sifter, the plastic-coated playing card, four measuring spoons and a Scotch Tape dispenser. More heroin was found in a pair of pants lying across one of the chairs in the dining room area.

On top of a dresser in the room where the appellant was apprehended was a paper towel containing three tinfoil packets of heroin. From a dresser drawer in that room was recovered one cardboard box containing empty glassine bags and another box containing 247 glassine bags full of heroin. From the top of a shelf in the bedroom closet were recovered spoons, more glassine bags, playing cards, sifters, rubber bands, four rolls of Scotch Tape and more heroin. Detective Murray testified that the heroin seized from the apartment was of a strength of 14.6%, whereas the usual percentage for the heroin sold upon the street was from 3 to 5%.

Under the guidelines of Folk v. State, 11 Md. App. 508, 275 A. 2d 184, we have no difficulty in concluding that sufficient evidence of joint, exclusive control had beén presented to justify the denial of the motion for a judgment of acquittal.

The Legal Sufficiency of the Evidence

As we look at the evidence of guilt under the microscope of Maryland Rule 1086 which permits us to set aside the verdict of the court if it was clearly erroneous, it follows that if the trial judge was correct in not granting the motion for a judgment of acquittal at the end of the State’s case, he, ipso facto, was not clearly erroneous in arriving at a verdict of guilty. The proof which was adequate at the earlier stage was still present at the later stage. Where, as here, the defense rested immediately following the ruling upon the motion, nothing was added to or subtracted from the proof following that moment. The quantitative and qualitative measurement is, therefore, the same and the establishment of legal sufficiency for one purpose is the establishment of legal sufficiency for all purposes. Williams v. State, 5 Md. App. 450, 459, 247 A. 2d 731; Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331.

The Denial of a Severance

The appellant does not seriously contend that under Maryland Rule 734, there was not a proper joinder of trial in the first instance. A single State’s witness, now no longer with the force and testifying at some personal inconvenience, was describing a single search and seizure implicating codefendants charged with the same offenses. The joinder was proper in all regards. Lewis v. State, 235 Md. 588, 202 A. 2d 370; Mason v. State, 12 Md. App. 655, 280 A. 2d 753; Peterson v. State, 15 Md. App. 478, 292 A. 2d 714. He rather urges upon us the proposition that a mistrial should have been declared because prejudice became manifest when he elected not to put on a defense and his codefendant Jeter elected to go forward with a defense. His claim of prejudice is without substance for the testimony of Jeter, which exculpated in part but also inculpated in part the appellant, was, in the last analysis, competent testimony. There was no problem under Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968), since Jeter testified under oath and was available to his codefendants and to the State alike for full and probing cross-examination. Although under other trial sequences, the appellant might have been lucky enough to have Jeter invoke the privilege against compulsory self-incrimination and not testify, the appellant has no vested right in keeping out competent testimony. The prejudice which he claims was manifest was not manifest at all.

Jeter could theoretically have been called to the stand during the State’s case in chief and could theoretically have elected not to invoke the privilege against compulsory self-incrimination. Jeter’s testimony would certainly have been competent against the appellant. Alternatively, the State could have nol-prossed all charges against Jeter and elected to use him as a State’s witness against the appellant. Again, his testimony would have been indisputably competent. Alternatively, the State could have tried Jeter first and convicted him and waited until the appellate process was finally concluded before calling him to the stand at the appellant’s later trial. Again, his testimony would have been competent. That the indisputably competent testimony happened to come through the medium of defense testimony at a joint trial has no influence upon the overriding consideration that the testimony was competent and that the appellant had no right to be shielded from it. Poff v. State, 3 Md. App. 289, 292, 239 A. 2d 121.

The Resting of the Appellant’s Case

The appellant’s most novel point is his suggestion that when the State rested and he then rested without putting on a defense, the proof against him was frozen. Following the appellant’s announcement that he had rested, Jeter testified in his own defense. Although in large measure exculpating the appellant from any participation in the narcotics traffic, Jeter did testify that the appellant had a preexisting relationship with Cromer. In announcing his verdict, the judge took the evidence of that prior relationship into consideration. The appellant assails this as evidence of the prejudice he was erroneously subjected to.

In the precise procedural posture of this case, the situation is without apparent precedent. By analogy to cognate precedents and by the exercise of pure reason, however, we have no difficulty whatsoever in resolving this issue against the appellant.

The Court of Appeals dealt with a somewhat similar situation in Kinnard v. State, 183 Md. 377, 38 A. 2d 92. In that case, distinguishing it slightly from this one, each of two codefendants testified in his own defense. Kinnard proceeded first and then rested. Following that, his codefendant Evans took the stand and his testimony damaged Kinnard. Kinnard contended that the testimony of Evans came in after Kinnard’s case had been concluded and should not, therefore, have been received. The Court of Appeals rejected the contention, saying at 183 Md. 383:

“The trial court, in its opinion, says that the State closed its case. Then the evidence on behalf of Kinnard was offered, and when concluded, counsel for Kinnard closed his case. The evidence on behalf of Evans was then produced. It is contended, when Kinnard closed his case, the proceeding as to him was ended. With this conclusion we do not agree. These traversers were jointly indicted. Manifestly, the State proceeded with the prosecution and when its evidence was in, closed its case. Each traverser had a right to testify on his own behalf and to produce witnesses. This the prisoners did. The case, therefore, was not concluded until Evans offered testimony on his behalf. As we.have observed, there was no objection or motion of any kind interposed by counsel for Kinnard and the judge was free to consider all of this testimony in determining the guilt or innocence oí"the accused. Even had Kinnard objected to the testimony of Evans the objection should have been overruled.” (Emphasis supplied)

Fundamental rights will not turn upon so random and fortuitous a circumstance as that of who goes first. If a series of codefendants testify, each exculpating himself as much as possible and shifting the burden of guilt to his brethren, it would work an absurdity to say that each is subject to the testimonial perils that preceded his own testimony but is shielded from all proof which follows from the lips of codefendants. What would follow would be a race to the witness stand and all but the winner would claim prejudice. Such is obviously not the case, for the trial of codefendants, properly joined, is an indivisible unit. The trial is not over until all parties have finally rested. The present appellant’s claim of double jeopardy is not well taken for what is involved is not double jeopardy at all but only the prolongation of the initial jeopardy. That is the issue and, for reasons now being discussed, that prolongation of initial jeopardy is not improper.

The situation is not different when one or more codefendants rest without putting on a defense. The appellant’s position, if valid, would work the random absurdity that if Jeter had put on his defense first and then the appellant had rested, the appellant could be properly pinioned by the testimony of Jeter but that the situation would be reversed if their order of presenting defenses (or resting, as the case may be) had been reversed. The same absurdity would exist if Defendant A rests, Defendant B testifies and then Defendant C rests. The appellant’s position would have B’s testimony properly receivable against Codefendant C, who rested late, but not receivable against Codefendant A who rested early.

By resting without putting on a defense, the appellant was entitled to one right and one right alone. He was entitled to have the ruling on his motion for a judgment of acquittal measured according to the evidence then down upon the table. If that evidence had happened to be insufficient, the appellant would be entitled to a reversal notwithstanding later evidence which might have shored up the defects. As we have already held, however, the evidence of guilt at that stage was sufficient for the trial judge to have denied the motion. For purposes of what evidence could properly be considered by the fact finder in arriving at the ultimate verdict, each codefendant at a trial properly joined is susceptible to all of the evidence properly received before the ultimate closing of the entire case and as to all parties.

Judgments affirmed; costs to be paid by appellant.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    DONALD WINSTON FLAGE v. JOYCE T. FLAGE
    [No. 850,
    September Term, 1976.]

      Decide April 13, 1977.

    The cause was argued before Moylan, Powers and Lowe JJ.

      Melvin G. Bergman for appellant-cross-appellee.

      Steven R. Migdal, with whom were Noel G. Wilkinson and Manis, Wilkinson & Snider on the brief, for appelleecross-appellant.
   Lowe, J.,

delivered the opinion of the Court.

Seeking an a vinculo divorce from appellant, with its customarily concomitant relief, appellee filed a bill of complaint in the Circuit Court for Anne Arundel County. Appellant filed a cross-complaint for an a vinculo divorce, praying a division of property and other general relief. During the course of the trial a “Property Agreement” between the parties was entered into evidence, which provided (among other things) that the parties had agreed to divide a jointly owned house and lot in Anne Arundel County.

The chancellor granted appellee an a vinculo divorce, dismissed appellant’s cross-complaint, ordered appellant to reimburse appellee one-half the amount she had spent in mortgage payments since their separation on the house the parties owned as tenants by the entireties, and denied appellee’s prayer for counsel fees. Both parties have appealed, each raising a single contention.

Reimbursed Payments

Appellant contends that the chancellor erred in ordering him to contribute to the past mortgage payments which appellee had made on the property owned by the parties as tenants by the entireties. Although three reasons are assigned to support the argument, we need look to but one — the lack of jurisdiction.

An equity court, sitting as a divorce court, does not sit in exercise of its ordinary chancery jurisdiction, and is without power to determine the parties’ ownership of property, to apportion it, or to otherwise deal with it in the absence of statutory authority. Blumenthal v. Monumental Sec., 271 Md. 298, 303. The Legislature has granted divorce courts only limited power to deal with property. Md. Code, Cts. Art., § 3-603 provides:

“(a) In general. — A court of equity has jurisdiction in an action for divorce, alimony, or annulment of marriage. The court shall hear and determine a case of alimony in as full and ample manner as such case could be heard and determined by the Ecclesiastical Courts of England.
(b) Determination or division of personal property. — A court granting a limited or absolute divorce may determine the ownership of personal property, other than chattels real, held, possessed, or claimed by a party to the divorce proceedings, and in accordance with that determination may:
(1) Make a division of personal property between the parties;
(2) Order a sale of personal property and a division of proceeds; or
(3) Make any other disposition of personal property it deems proper.”

Cognizant of its jurisdictional limitations when sitting as a divorce court, the court below presumably recognized that it could not divide or sell the realty or otherwise change the parties’ rights or estates in it absent express statutory authority to do so, Dougherty v. Dougherty, 187 Md. 21, 32, except insofar as the fact of the divorce itself operates to change the tenancy by the entireties to a tenancy in common. McCally v. McCally, 250 Md. 541, 542. The chancellor instead attempted to apportion a part of the previously paid mortgage debt by ordering appellant to reimburse appellee for one-half the amount she had paid since the parties’ separation.

Being a chose in action, a mortgage debt is “property”, and by its association with the mortgage, which is recognized to be “personal” property, Galeano v. Galeano, 21 Md. App. 208, 211, may in some instances be regarded as personalty. But the Court of Appeals has expressly held that orders dealing with prospective mortgage payments in domestic relations cases are orders dealing with realty and are thus beyond the court’s jurisdiction when sitting as a divorce court. Smith v. Smith, 227 Md. 355, 362; cf. Bailey v. Bailey, 218 Md. 527, 529.

Even if we assume that because the order was for reimbursement rather than prospective payments it relates to personalty, we find that it was still not authorized by § 3-603 (b). In Brucker v. Benson, 209 Md. 247, a wife who had been awarded a divorce petitioned the court for a monetary decree against her former husband, seeking the amount she had contributed after marriage to a fund which had been used to buy personal property for the parties’ joint use. The petition was grounded upon Md. Code, Art. 16, § 38. That provision, which differed little from current § 3-603 (b), provided:

“ ‘Whenever a Court shall grant a divorce a mensa et thoro or a divorce a vinculo matrimonii, it shall have the power to hear and determine all questions which may arise between the parties to such proceeding in connection with the ownership of personal property (except chattels real) held, possessed or claimed by either or both of them, and shall have the power to make a division of such property between them, or order a sale thereof and a division of the proceeds of such sale, or make such other disposition thereof as the Court may deem proper.’ ” 209 Md. at 251.

Noting that the wife sought money and not “tangible property”, the Court of Appeals held that the cláim for division of funds was not warranted by § 38. Id. at 252-253. The relief granted in the instant case was strikingly similar to the relief denied in Brucker. Upon that authority, if not upon Smith, supra, we hold that the court below, sitting as a divorce court, was without jurisdiction to order appellant to reimburse appellee for a portion of the sum she had expended on mortgage payments. See generally Kapneck v. Kapneck, 31 Md. App. 410. Appellee’s claims for contribution may be considered only in an appropriate equity proceeding, not in a divorce proceeding.

Counsel Fees

Upon cross-appeal, the wife contends that she is entitled to an award of counsel fees “as a matter of law” and that the lower court therefore erred in failing to make such an award. Characterizing the award “as a matter of law”, however, is not sufficient to enable cross-appellant to escape the heavy burden she shoulders when asking us to set aside a lower court’s judgment upon the evidence. Md. Rule 1086; DWS Holdings, Inc. v. Hyde Park Assoc., 33 Md. App. 667, 672-673.

The obligation to pay the wife’s counsel fees, like the obligation to pay alimony, arises from the marital relation, Peterman v. Peterman, 14 Md. App. 310, 311, and is thus imposed by law. However, the question of the spouse’s sufficiency of income to meet her need to pay counsel fees is left to the discretion of the chancellor, who is proscribed from doing so “unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs.” Md. Code, Art. 16, . § 5 (a). We cannot reverse his decision unless we find that it was clearly wrong. Danziger v. Danziger, 208 Md. 469, 475-476; Foster v. Foster, 33 Md. App. 73, 76.

Because the chancellor did not render an opinion, we have nothing to guide us in determining if he was clearly erroneous when he denied cross-appellant’s prayer for counsel fees. The test he should have applied is clear and relatively simple. In Lopez v. Lopez, 206 Md. 509, 520-521, the Court of Appeals pointed out that in determining the amount of counsel fee to be paid by the husband to the wife’s solicitor,

“ ... the court should take into consideration the financial circumstances of the parties, and determine the amount in accordance with the wife’s necessities and the husband’s financial ability, and allow an amount that will afford the wife an efficient presentation of her side of the controversy.”

The test is the same for alimony determination. See Flanagan v. Flanagan, 270 Md. 335, 339.

In addition to the absence of a court opinion, the record as submitted to us by extract is severely limited, but such as it is, it clearly indicates that cross-appellee’s resources are substantially greater than cross-appellants, which consist almost entirely of his support payments to her. This factor is not wholly determinative, but it is entitled to some weight. Stein v. Stein, 251 Md. 300, 303. The extracts further tend to show that after the parties separated the cross-appellant’s legitimate expenses resulted in weekly deficits, while cross-appellee’s net worth appears to have increased. There appears but a de minimis income to the wife beyond something paid to her by the husband, and that in an amount less than that which was provided for as support in the property agreement, which was incorporated by the chancellor in the decree. Even with the support provided by her husband, her income failed to meet her expenses. There is also evidence of cross-appellant’s poor physical condition and limited ability to work.

The statute (Art. 16, § 5) only proscribes alimony and counsel fees where the wife’s “income” is sufficient to care for her needs. Therefore, what assets cross-appellant may have, such as stock and savings, need be considered only to the limited extent that they produce income. Foster, supra, 33 Md. App. at 78. The record extract clearly evidences that her independent income is insufficient to meet her needs. If there is additional income not reflected in the record extract which may tend to support the chancellor’s denial of any counsel fee, it was the responsibility of cross-appellee to place it before us, either by way of inclusion in the joint record extract pursuant to Md. Rule 1028 b., or by an appendix permitted by Md. Rule 1028 e. In light of the evidence that cross-appellant’s income is derived solely from cross-appellee’s beneficence as subsequently compelled by the decree, it may well have been unreasonable to deny the wife any amount of counsel fees.

Mandate

We will affirm the decree in so far as it granted Joyce T. Flage an a vinculo divorce and dismissed the cross-bill of complaint by Donald Winston Flage (paragraphs 1 and 2 of the decree). We will also affirm that portion of the decree which incorporated the “Separation Agreement” of the parties in the decree, and assessed costs of the proceeding to Mr. Flage (paragraphs 4 and 6). We will reverse so much of the decree as purported to reimburse Mrs. Flage for half of the mortgage payments made by her from the date of separation (paragraph 3); and we will reverse and remand the denial of counsel fees to Joyce T. Flage for further consideration (paragraph 5). Upon remand the chancellor will decide the issue of counsel fees for Mrs. Flage’s counsel from the entire record if it contains evidence to his satisfaction, or he may require the parties to provide such additional evidence on the issue as he deems necessary. Montagna v. Marston, 24 Md. App. 354, 362; see Md. Rule 1071.

Judgment affirmed in part; reversed in part.

Case remanded for consideration of the issue of counsel fees as set forth in this opinion.

Costs to be paid by appellant cross-appellee.

      . We are impelled to note in passing that the limited extract of the testimony prepared in conjunction with the briefs seems to indicate that some, if not all of the mortgage payments had come from a joint savings account converted by Mrs. Flage to her personal use:
      “Q Okay. Now, let’s talk about the savings account for a moment. Which savings account are you referring to?
      A There was one savings account that was in joint name at Government Services Savings and Loan. At the advice of my lawyer, I put that into my name.
      MR. BOEHM: Objection.
      Q And what was the balance in that account, approximately, at the time. Do you recall?
      A Approximately $16,000.00.
      Q $16,000.00?
      A Y gs
      Q Do you still have that $16,000.00?
      A Much of that was spent on mortgage payments, thousands of it were spent on legal fees, and another thousand or more was spent on the lease of an apartment and various other necessary expenses.”
      Because we next look to the issue of counsel fees for Mrs. Flage’s solicitor,_ the reference to “thousands” spent for “legal fees” stimulates our curiosity. We note these matters for the consideration of the chancellor who may review this record on remand or he who may participate in a partition or contribution proceeding hereafter. We do not consider them in arriving at our decision.

      . Pertinent amendments to this section, effective subsequent to the decision of the lower court in this matter, changed “wife” to “spouse” and “her needs” to “his or her needs”.

      . It may be appropriate to consider the effect, if any, of the separation agreement upon this question as well.


author: Love, J.,

text:
    THE CITY OF FREDERICK v. HARRY L. QUINN et al.
    [No. 854,
    September Term, 1976.]

      Decided April 13, 1977.

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

      Clater W. Smith, Jr., with whom was W. Milnor Roberts on the brief, for appellant.

      William L. Corbin and Ann M. Fligsten, with whom were Corbin, Heller & Warfield, Chartered on the brief, for appellees.
   Love, J.,

delivered the opinion of the Court.

The issue decided by the Circuit Court for Montgomery County, from which this appeal arose, was whether The City of Frederick could unilaterally repeal a noncontributory police pension plan, retroactively divesting the interest of the employees who chose not to participate in a substituted contributory plan offered by the City. The court below recognized that the issue turned upon whether Maryland views a public employee pension system as a mere gratuity, representing the graciousness of a sovereign to its servants, or as a part of the earnings of an employee which was offered as an inducement to his employment and for which he has contracted. The court chose the contract theory and held that the appellees,

"... by virtue of their service to the City of Frederick prior to the repeal of Article XVI, Section 196 of the City Charter, had vested pension rights as set forth therein which still remain in effect and cannot be modified, repealed or defeated by the City’s unilateral acts.”

While we agree in principle, we find that holding far too rigid and a step beyond that which we believe to be the law in this State.

The five appellees brought suit against the City of Frederick, a municipal corporation, asking, for a declaratory judgment to the effect that they are entitled to pension benefits under Article XVI, Section 196 of the Charter of the City of Frederick, and for damages for breach of contract. The parties agreed by stipulation that the appellees were employed as police officers by The City of Frederick at various times dating from September 12, 1942 until the present or the recent past. After 1951, the appellees were covered by a noncontributory retirement and disability benefit plan which provided by Article XVI, Section 196 of the Charter of The City of Frederick, that:

“Any policeman, including the Chief of Police, who is in good standing and who has served on the force for a period of 20 consecutive years, including the years of service of any policeman now on the force, provided they are consecutive, and who has been retired from active service as provided in Section 196 shall be paid, for life, a sum of money equal to one-half of a prevailing salary, payable in semi-monthly installments. Any policeman retired as provided in Section 196 who shall not have served on the force for a period of 20 years shall be paid, for life, a sum of money prorated in the proportion that the years he has served as a policeman bears to the whole period of 20 years.”

It was further stipulated that Section 196 was repealed on May 18, 1961 by resolution of the Board of Aldermen of The City of Frederick. Thereafter, the officers on the police force were offered a contributory commercial insurance pension plan to take the place of the noncontributory plan. The appellees neither consented to the change nor enrolled in the new plan.

Tracing the evolution of theories in the decisional law of public employee statutory pension rights leaves one with the same sense of disturbing disbelief we feel when we see caricatures of our neanderthal forebears. The unfortunate result revealed by such research is that the majority of the states have not evolved from this prehistoric immaturity.

The prevailing view in the majority of the states is that public employee pension “rights” are simply gratuities which a gracious and beneficent governmental employer may confer, withhold, modify or repeal as the whim of an omniscient sovereign dictates. Annot. Vested right of pensioner to pension, 52 A.L.R.2d 437; Dillon, Municipal Corporations § 431 (5th ed. 1911). The minority jurisdictions adopt a basic concept of contractual rights that vest at time of employment, but are divided upon the extent to which the rights vest in the employee.

The court below followed the strict contract theory, holding that when the pension rights vested upon employment or adoption of the plan those rights were immune from prospective legislative impairment. The court’s opinion relied heavily upon Yeazell v. Copins, 402 P. 2d 541, which epitomizes the strict contract concept, i.e., that the “contract” cannot be unilaterally modified.

Although we think that holding goes too far, we agree that a pension is more contractual than gratuitous. Having barely concluded the 200th anniversary of our experiment in a democracy that wrenched itself from monarchical rule, it is absurd to speak of a pension as “a bounty springing from the appreciation and graciousness of the sovereign”. Ballurio v. Castellini, 29 N.J.S. 383, 102 A. 2d 662. The medieval or even colonial concepts of a compassionate and generous sovereign rewarding his humble, devoted subjects is completely alien to our modern views of a democratic government’s obligations to its citizens.

Only slightly less bemusing, on the other hand, is the picture of a citizen whose contractual strength is so formidable that the government which employs him can neither terminate nor vary the terms of the employment contract which is the essence of the strict constructionists’ views explicated by Yeazell, supra. Such rigid interpretation is the inevitable pitfall of seeking pigeonholes with labels as substitutes for logic and common sense. See generally Spina v. Consolidated Police, etc., Pension Fund Com., 41 N. J. 391, 197 A. 2d 169.

It is reasonable to assume, as the court below found factually, that appellees were induced, at least in part, to their employment by the pension benefits held out at the time, just as they were induced by the salary then offered. See Lucas v. Seagrave Corporation, 277 F. Supp. 338. The future benefits vested as they were proratedly earned, just as the employees’ rights to their salary vested as it was earned. Momentarily assuming for argument that the City could terminate either or both of these benefits at its option, by doing so it would have no more right to withdraw retroactively the pro rata pension benefits that had accrued than it could demand repayment of the salary the employees had earned and had been paid. To that extent at least, especially in view of the proportionate prorating provision of Section 196, the pension rights vested absolutely. The provision acts as an express assurance to the employees that pension benefits they have earned by satisfactory service cannot be divested.

But the analogy of earned salary and vested pension does not withstand prospective comparison. The pension plan is not immutable and the government-employer need not keep its provisions precisely intact. As government grows in size and complexity and as more employees draw from the fund, changes must often be made to assure the soundness of the fund and permit its growth commensurate with its prospective needs. The contractual or vested rights of the employee in Maryland are subject to a reserved legislative power to make reasonable modifications in the plan, or indeed to modify benefits if there is a simultaneous offsetting new benefit or liberalized qualifying condition. Each case where a changed plan is substituted must be analyzed on its record to determine whether the change was reasonably intended to preserve the integrity of the pension system by enhancing its actuarial soundness, as a reasonable change promoting a paramount interest of the State without serious detriment to the employee. In short, the employee must have available substantially the program he bargained for and any diminution thereof must be balanced by other benefits or justified by countervailing equities for the public’s welfare. This seems to be the substance of the majority of cases which have found municipal pension plans contractual in nature and it is the view we expressly adopt here. It was perhaps most succinctly stated in City of Downey v. Board of Admin. Pub. Emp. Retire. Sys., 47 Cal. App. 3d 621:

“Such modifications must be reasonable, and it is for the courts to determine upon the facts of each case what constitutes a permissible change. To be sustained as reasonable, alteration of employees’ pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.”

If reasonable substitution is offered by an employer and it is declined by the employee, he is barred prospectively from further claims upon the rejected plan and is obviously not eligible to claim under the substitute plan. But the rights which have accrued under the terminated plan may not be retrospectively withdrawn from him.

While we have no authority in Maryland directly explicating the precise nature of noncontributory public pension plans and the manner in which they may be unilaterally modified, the language of the Court of Appeals in recent related cases reflects the thinking of an eighth decade — twentieth century court rather than the feudal views of a surrogate beneficent monarch. The City prognosticates to the contrary from its reading of two of the Maryland cases. It points out that in Employees’ Retirement v. Comes, 247 Md. 182, the Court held that the right, even to a contributory pension, was subject to an implied condition of faithful performance and that a finding by the pension Board to the effect that the employee’s service had been less than faithful, precludes entitlement to such benefits. The City points especially to a sentence included in a lengthy quote from the New Jersey case of Ballurio v. Castellini, supra, which espoused the bounty-springing-from-a-gracious-sovereign theory, and it deduces that this decision would support a holding that Maryland has adopted the gratuity concept.

We do not agree. The reasoning of the case and the holding itself are founded upon “faithful performance” by the employee. That is language of contract law. It does not comport with the arbitrary right of unilateral withdrawal upon which the gratuity principle is founded. Had the Court adopted that theory, one arbitrary paragraph would have sufficed in place of the nine pages of reasoning concluding that faithful performance is a prerequisite to benefits.

The City also relies upon Saxton v. Board of Trustees, 266 Md. 690. There a Baltimore City fireman died after retirement. The original retirement plan, to which the employee had contributed for sixteen years, provided death benefits to the widow regardless of whether the employee was working or retired. Twelve years before the employee’s retirement the plan was changed to preclude benefits if an employee had retired before he died. The widow was denied recovery

It is difficult to see where the City draws sustenance from this case since the Court clearly stated that it was not argued that the prior provisions were applicable to Saxton. Id. at 693. Lieut. Saxton had become injured during service and was paid for a full year although disabled throughout that period. Thereafter, a special disability benefit act was ordained by the City under which he was retired, albeit involuntarily. Judge Singley, speaking for the Court, pointed out that:

“The ground rules here, to put it quite simply, were changed prior to the date when Lieut. Saxton sustained his injuries. In all states municipal corporations may make reasonable modifications of a pension plan at any time before the happening of the defined contingencies . . . .” Id. at 694.

Although the issue we now face was not before the Court of Appeals, its language is the bottom line of the conclusion we reach. Furthermore, the Court’s result did not conflict with any of the Anglo-Saxon concepts of justice and fair play upon which the contract concept is founded, i.e., rules may not be changed in the middle of game although substitutes are permitted within reason. See Hickey v. Pension Bd., 378 Pa. 300, 310, 106 A. 2d 233.

Finally, and most persuasively to us, is the case of Food Fair Stores v. Greeley, 264 Md. 105. Although the employer there was a private one, the Court treated the pension plan provided as a contractual right and one that could be judicially enforced notwithstanding a provision in the plan to the contrary. Adopting language from Siegel v. First Pennsylvania Banking and Trust Co., 201 F. Supp. 664, 670, the Court stated that:

“ ‘Were we to adopt defendants’ construction ..., we would, in effect, set at naught our conclusion that the Plan is a contract and not a gratuity. To hold (as we do) that plaintiff has contractual rights but has no means of enforcing them would not only be inconsistent but futile. A right without a remedy is no right at all... .’ ” (emphasis added). 264 Md. at 113.

Surely if the Court of Appeals considers a private pension plan a contractual right, as it does in Greeley, the Court would do no less for public employees’ pension systems. It is inconceivable that it would view one as fish and the other fowl.

Assured, as we are, that the Court of Appeals would have us follow the contract theory, we have but to decide if it would bind the City to a strict interpretation or allow reasonable modifications and substitutions. As indicated, Judge Singley has pointed the way in Saxton and once again we find ourselves in accord with our overseers.

In the case before us the stipulation disclosed that a substitute contributory plan was offered to appellees at the time of the repeal of the original plan; but the plan that was offered is not presented in the record. We will remand, therefore, in order for the trial judge to obtain and review the substituted plan to determine factually whether it was either necessary or reasonable when substituted.

A further question must be decided on remand, especially if the trial judge is not convinced of the reasonableness or necessity of the substituted program. The appellees met the City head-on with the issue of gratuity versus contract theory of public pensions, but they also struck from the flank with the procedural complaint that the repeal of the original plan did not conform to the publication requirement of a “fair summary” of the act being repealed, which they contend was mandated by Md. Code, Art. 23A, § 13. Commenting that “it appears that the plaintiffs contention is correct”, the court did not find it necessary to decide that question- in light of its holding on the more substantive issue. The issue must now be decided. Regardless of the result reached upon the reasonableness-necessity issue, the trial judge should decide the procedural validity of the attempted statutory repeal. By doing so, he may save a third hearing in the event of a second appeal. This admonition to the court to act on the side of prudence should in no way be construed as indicating any view by this Court on the questi ons to be decided on remand.

The court will be free to hear further argument or receive further evidence if such is needed to assist its deliberations. Montagna v. Marston, 24 Md. App. 354, 362; Md. Rule 1071.

Judgment vacated.

Case remanded for further proceedings in accordance with this opinion.

Costs to abide the result.

      . The breach of contract was dismissed and is not before us.

      . We were aided in our research by two commendable law review articles: Cohn, Public Employee Retirement Plans — The Nature of the Employee’s Rights, 1968 U. of Ill. L. P. 32, and Lehman, Yeazell v. Copins, 70 Dick.L.Rev. 524 (1966).

      . But see Antieau, Municipal Corporation Law § 22.120 (1976); McQuillin, Municipal Corporations § 12.144 (3rd ed. 1973); and Rhyne, Municipal Law § 8-51 (1957), which indicate that the trend is now toward adopting some form of contract theory.

      . Appellant also argues on appeal that appellees waived all rights under Section 196 and are estopped from denying that it was properly repealed. Although in its plea to the declaration appellant alleged that appellees’ claims are barred by laches and the statute of limitations, the record does not reveal that any argument on waiver, laches or estoppel was made. The trial court, without discussion, found that appellees had not waived their rights. Because there was no argument below on waiver and no decision below on estoppel, those issues are not properly before us. Md. Rule 1085. We note, for the benefit of the parties, that appellant’s contentions are without merit in that there is no evidence either that it was appellees’ conduct which caused the City in any manner to move to its detriment nor indeed that the City did so. It was the City’s past acts, not appellees’, which created the issue.


text:
    IN RE APPEAL NO. 857, September Term, 1976 from the Circuit Court for Howard County
    [No. 857,
    September Term, 1976.]

      Decided April 13, 1977.

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

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Wehland, State’s Attorney for Howard County, and Gary

      Stewart Peklo, Assistant State’s Attorney for Howard County, on the brief, for appellant.

      Dennis M. Henderson, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Appellee, barely 16 years of age, was charged with robbery with a deadly weapon and related offenses. In light of his age, the juvenile court would have had original jurisdiction over him but for Md. Code, Cts. Art., § 3-804 (d) (4), which provides that the juvenile court does not have jurisdiction when the charge is robbery with a deadly weapon. However, the circuit court, exercising its general criminal jurisdiction, is permitted to waive the youth to juvenile jurisdiction if a waiver is believed to be in the best interest of the child or society. Md. Code, Art. 27, § 594A. Judge Morris Turk, sitting as the Circuit Court for Howard County, so concluded, and waived the circuit court’s criminal jurisdiction over appellee, thus giving the juvenile court jurisdiction.

The State seeks to appeal that waiver. It argues that the action constituted a “final judgment” against it, relying upon our recent opinion in an appeal by a juvenile in another awkwardly named case. In Re Appeal No. 507, Term 1976, 34 Md. App. 440.

We find it unnecessary to reach the question of finality because the State has overlooked the fact that it has no right to appeal, regardless of the finality of the action or the State’s aggrieved posture.

Appellate jurisdiction in Maryland is dependent upon a statutory grant of power. Lohss and Sprenkle v. State, 272 Md. 113, 116. That grant of power is set forth in Md. Code, Cts. Art., § 12-301:

“Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended.”

One of the exceptions in § 12-302 (c) severely limited the State’s right to appeal:

“In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case.”

Under that statute, which was in effect at the time of the commission of the crimes with which appellee is charged, it is abundantly clear that the only right of the State to appeal is within those narrow confines.

In State v. Wooten, 277 Md. 114, 115-116, we are told that the law regulating the State’s right to appeal is that which was in effect at the time of the commission of the offense charged:

“Preliminarily we must consider a jurisdictional matter, Wooten’s contention that the petitioner, the State, has no right to initiate this appeal. While recognizing that this Court, in State ex rel. Sonner v. Shearin, 272 Md. 502, 526, 325 A. 2d 573 (1974), decided that under Maryland Code (1957, 1968 Repl. Vol.), Art. 5, § 14 the State was permitted to appeal from a trial court’s denial of a motion to correct an illegal sentence, the respondent asserts that such appeals were prohibited when that provision was reworded at the time it was reenacted as Code (1974), Courts and Judicial Proceedings Article, §§ 12-301 and 12-302. However, because the crime in this case, as in Sonner, was committed prior to January 1, 1974, the effective date of the Courts and Judicial Proceedings Article, Laws of Maryland 1973, First Extraordinary Session, ch. 2, §§ 18 and 21, the applicable law in this casé is Art. 5, § 14. State ex rel. Sonner v. Shearin, supra, 272 Md. at 525-26. Consequently, we are not required to interpret §§ 12-301 and 12-302, but only hold that under Art. 5, § 14 this appeal is proper. Id. at 526 & n. 6.” (footnotes omitted and emphasis added).

In light of Wooten, we could rest here, and simply hold that because the State cannot come within the provisions of § 12-302 (c), it has no right of appeal. But in Matter of Anderson, 272 Md. 85, where the Court of Appeals also, with terse clarity, spoke upon the subject of which law must apply when the State attempts to appeal, a different rule was set forth:

“The right of appeal must be determined under the law in effect at the time of the appeals.” Id. at 88.

This conflict is of note because, by Laws 1976, Ch. 49, § 1, effective July 1, 1976, the Legislature modified the State’s right to appeal. Except for form and style, the 1976 change had only two meaningful aspects — the removal of a word (which we will bracket) and the addition of a sentence (which we will print in capital letters):

“§ 12-302.
(c) In a criminal case, the State may ¿ppeal [only]:
(1) from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition [in a criminal case]; AND
(2) FROM A FINAL JUDGMENT IF THE STATE ALLEGES THAT THE TRIAL JUDGE FAILED TO IMPOSE THE SENTENCE SPECIFICALLY MANDATED BY THE CODE.”

The appeal in the case before us was entered on August 12, 1976, a little over one month after the effective date of the statutory change. Since in both Wooten and Anderson the holdings were necessary to the assumption of appellate jurisdiction by the Court of Appeals, neither can be dismissed as “dicta”, and one case controlled by the other’s holding. Nor can we distinguish them because Wooten was criminal while Anderson was juvenile, since here the appeal was from the waiver of a juvenile from the criminal court to a juvenile court. Our dilemma is avoided, however, by looking to the result we would reach in either instance. Under neither version do we find that the State was given the right to appeal a waiver by a circuit court of its criminal jurisdiction.

While we are unable easily to explain why the Legislature deleted the restrictive adverb “only”, we find no legislative intent to give the State an absolute right of appeal in doing so. Common sense indicates that if such were the intent, the Legislature would have easily accomplished its purpose by simply repealing § 12-302 (c) instead of adding one more limited ground of appeal permitted the State. If a statute is to be read so that no word, phrase, clause or sentence is rendered surplusage or meaningless, Prince George’s Co. v. White, 275 Md. 314, 319, surely we cannot read into the deletion of one word that which would render the reenacted statute meaningless.

In the Rules of Interpretation set forth in Md. Code, Art. 1, § 17, we are told that:

“If two or more amendments to the same section or subsection of the Code are enacted at the same or different sessions of the General Assembly, and one of them makes no reference to and takes no account of the other or others, the amendments shall be construed together, and each shall be given effect, if possible and with due regard to the wording of their titles. If the amendments are irreconcilable and it is not possible to construe them together, the latest in date of final enactment shall prevail.”

It follows that where two or more changes are effected by the same amendment, these changes should be construed together and “each ... given'effect... with due regard to the wording of their titles.” The title of the amending law, Laws 1976, Ch. 49, § 1, expresses the purpose to be effected:

“For the purpose of extending the right of the State to appeal in certain criminal cases;....” (emphasis added).

The extended right given was expressly to provide an appeal to the State from those “certain cases” in which there was a failure to impose mandatory sentences. (See, e.g., Sonner, supra). Nothing in the title indicates an intent to provide an unlimited right of appeal to the State.

The State is still confined to the expressly stated grounds of appeal set forth in § 12-302 (c). We find no statutory ground which would even arguably provide a right to appeal a waiver of criminal jurisdiction to juvenile jurisdiction.

Appeal dismissed.

Costs to be paid by Howard County.

      . We can only assume that “only” was deleted because it had been used in the initial sense of “Alone in kind or class” as defined by The American Heritage Dictionary of the English Language. We note that each of the grounds of appeal by the State spoken of by the former statute was a pretrial “kind or class” of dismissal, but when the post trial appeal was added (for failure to impose a mandatory sentence) the State’s limited rights to appeal were no longer confined to the original pretrial kind or class. The intended change may have been an effort by a diligent draftsman to protect the grammatical integrity of the Legislature, but the deletion carried no interpretable intent beyond that purpose. Such speculation would indeed be slender support for a statutory interpretation holding that the deletion of that one word was intended to serve as a repeal of the strict limitations upon the State’s right to appeal, by leaving no purpose to the reenacted provisions of § 12-302 (c). We are chastened to avoid interpretative absurdities. Fairchild v. Maritime Air Serv., 274 Md. 181, 186.


text:
    LENDRO BAKER v. STATE OF MARYLAND
    [No. 866,
    September Term, 1976.]

      Decided April 14, 1977.

    The cause was submitted on briefs to Moylan, Powers and Lowe, JJ.
    Submitted by Richard W. Moore, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Leroy Handwerger, Assistant Attorney General, William A. Stoisher, State’s Attorney for Baltimore City, and Leonard Eiswert, Assistant State’s Attorney for Baltimore City, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The appellant was convicted by a jury in the Criminal Court of Baltimore of assault with intent to murder, use of a handgun in the commission of a crime of violence, and a number of related charges. His principal contention upon appeal was that the trial court erred in not allowing him to be represented by the attorney of his choice.

On February 2, 1976, the appearance of William H. Murphy, Jr., Esquire was filed on behalf of the appellant as privately retained counsel. On the trial date, May 25, 1976, Edward Smith, Esquire, an associate in Mr. Murphy’s law office, entered his appearance and undertook representation without Mr. Murphy’s presence. After the' jury had been impaneled on the following day, the appellant objected to being represented by anyone except his privately retained counsel, Murphy, and a continuance was requested. The trial court denied the request, and upon appeal appellant argues that this refusal was an abuse of discretion, relying on English v. State, 8 Md. App. 330.

In English, the accused became aware that he would be represented by the son of the attorney he had employed only 15 minutes prior to trial. The Court found that, under the circumstances, the failure of the trial court to postpone trial to allow the accused to secure counsel of his choice was an abuse of discretion. By contrast, in the case at bar, substantial judicial proceedings were had with appellant represented by Mr. Smith before the former raised any objection. The record shows that Mr. Smith entered his appearance, represented appellant in attempting to have the latter examined by a physician of his own choice, •represented appellant at pretrial hearings on competence, sanity, and suppression of evidence, represented appellant during the reading of the charges and the pleas of not guilty, prayed a jury trial and assisted in the voir dire, all without objection to the fact that he instead of Mr. Murphy was representing appellant. Appellant’s acquiescence in Mr. Smith’s representation of him until after jeopardy had attached constituted a waiver of his right to be represented by Mr. Murphy. See State v. Renshaw, 276 Md. 259, 270; English v. State, supra, 8 Md. App. at 336. To hold otherwise would open the door to inordinate possibilities of manipulative abuse of the judicial system. The trial court did not abuse its discretion when it denied appellant’s motion for a continuance. See State v. Jones, 270 Md. 388; Jennings v. State, 8 Md. App. 321.

Our conclusion that the trial court properly denied appellant’s request for a continuance is strengthened by the manner in which Mr. Smith represented appellant at trial. The record reveals that the trial court ordered Mr. Smith to assist appellant, and that Mr. Smith performed all the duties of a defense attorney, including objecting, cross-examining the witnesses and arguing to the jury. Indeed, no objection to the efficiency of Mr. Smith’s assistance has been made upon appeal. Accordingly, it is clear that appellant was not denied the effective assistance of counsel. See State v. Renshaw, supra.

Appellant’s remaining contentions are directed to the charge, evidence and verdict with regard to the offense of malicious destruction of property. Inasmuch as the record clearly shows that the jury acquitted appellant of this offense, and that he was not sentenced for this offense, we need not discuss these assertions.

Judgments affirmed.

Costs to be paid by appellant.


author: Thompson, J.,

text:
    MARCIA HURT v. STILLMAN & DOLAN, INC. FRANCIS X. BOSSLE, JR. v. STILLMAN & DOLAN, INC.
    [No. 871,
    [No. 872,
    September Term, 1976.]
    September Term, 1976.]

      Decided April 14, 1977.

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

      William T. Glasgow, for appellants.

      William M. Hesson, Jr., with whom were Nolan, Plumhoff & Williams on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

This appeal is from summary judgments entered in the Circuit Court for Howard County, in favor of the appellee, Stillman & Dolan, Inc. and from orders denying motions to strike out the judgments. The appellants, Marcia Hurt and Francis X. Bossle, Jr., contend that the trial court erred because there was a dispute as to material facts.

The appellants are former employees of Stillman & Dolan, Inc., a Maryland corporation, which performs telephone auditing and communication consulting services. Each was employed on a salary plus commission basis. The commissions were paid to the employees when the company collected its fee from the clients for whom the employees had performed the service. At the termination of the appellants’ employment, several commissions which were due had not been collected. Suits were filed to collect these commissions. The appellee in its motions for summary judgment attached alleged commission agreement contracts, which stated in the pertinent part that “[commissions for work performed will be payable for a period of ninety days after termination based on cash receipts.” These agreements were signed and dated by the appellants. The appellants answered these motions for summary judgment with the general assertion that there was a genuine dispute between the parties over the fact that the alleged contracts had never been put into effect and that there was never any contract or agreement- that limited the payment of commissions to ninety days from the termination of employment. These allegations were supported by affidavits of the appellants.

The law is well settled that a summary judgment is properly granted under Maryland Rule 610 “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Dietz v. Moore, 277 Md. 1, 4, 351 A. 2d 428 (1976). “The function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not there is an issue of fact to be tried and if there is none, to cause judgment to be rendered accordingly.” Lynx, Inc. v. Ordnance Products, 273 Md. 1, 7, 327 A. 2d 502 (1974).

In the case at bar we must determine what facts were properly before the court. Neither bare allegations that there is a dispute as to a material fact nor general allegations which do not show facts in detail and with precision are sufficient to prevent the entry of a summary judgment. Lynx, Inc. v. Ordnance Products, supra at 7-8. An unsupported conclusion is not the proper way to show an issue of a material fact. Carter v. Baltimore Gas & Electric Co., 25 Md. App. 717, 724, 336 A. 2d 790 (1975).

In Guerassio v. American Bankers Corp., 236 Md. 500, 204 A. 2d 568 (1964), the Court of Appeals stated how facts are to be put before the trial court:

“Appellee's pleadings and affidavits set out prima facie the elements necessary to entitle it to a summary judgment as a matter of law. Thereupon, appellants were required either to discredit appellee’s averments as untrue or to specify evidence which would give rise to a triable issue of material fact. Appellants’ pleadings and affidavits do not discredit appellee’s averments as untrue. The only issue, therefore, is whether appellants have specified some opposing evidence which would raise a triable issue of material fact. Such evidence must be indicated to the court in the form of an affidavit or deposition in support of the answer to the motion stating a fact or facts which would negative the appellee’s right to a summary judgment. Maryland Rule 610 a 3; Molesworth v. Schmidt, 196 Md. 15, 20, 75 A. 2d 100.” Id. at 503.

The only evidence submitted to defeat the motions for summary judgment were the denials of the appellants that the contract ever came into being. There was no denial that the appellants had signed the agreement, nor was the agreement otherwise explained. The burden was on them, once the appellee had established prima fade the necessary elements for a summary judgment, to set forth the facts in support of the dispute. Hill v. Lewis, 21 Md. App. 121, 134, 318 A. 2d 850 (1974). This general denial was merely an unsupported conclusion. The reasoning behind this was stated with clarity in Wyand v. Patterson Agency, Inc., 266 Md. 456, 295 A. 2d 773 (1972):

“This is necessary so that summary judgment procedure may retain its vitality. If general statements or bald assertions were sufficient to obtain a summary judgment the rule would serve no useful purpose. Cf. Tri-State v. Middleman, supra. Conversely, if a general denial could be relied on to prevent the granting of summary judgment, a motion for such a judgment would be an exercise in futility since it could always be successfully resisted. For these reasons, an affidavit is required, with the expectation that if it is established that no genuine dispute exists as to material facts the expense and delay caused by more extensive litigation can be avoided.” Id. at 460.

While we feel that the summary judgments were properly entered, the denials of the motions to strike the judgments create a new question. Within thirty days after the trial judge entered the summary judgments, the appellants filed motions to strike out the unenrolled judgments under Maryland Rule 625 a. To support the motions, they submitted two additional affidavits, one by John Quigley which stated in part as follows:

“I am aware of the claim by Stillman & Dolan, Inc., that there was an agreement to terminate commission 90 days from termination of employment. This is absolutely untrue. There was some limited discussion about changing the method of charging the clients for services rendered. We had used one year contracts. The discussion revolved around 5 year contracts which would increase the employee commission rate by 2 and 1/2 times the former commission rate. However, the 5 year contract arrangement was never accepted by our clients, or Stillman & Dolan, Inc., and the program was never put into effect. That fact was clearly understood by all employees and Stillman & Dolan, Inc.
“Employees were told by Karen Fink that ‘there was no change in the commission arrangement; that she never thought this new idea would work and in fact to forget it.’ As a former employee I did forget it until Mr. Bossle informed me that Stillman & Dolan, Inc., was now attempting to avoid payment of his commissions and those of Marcia Hurt.
“To express it differently there was never a policy, or a valid contract to limit employees commissions. It was clearly understood that employees would be entitled to all commissions collected on their accounts whenever collected.”

The other affidavit by Marcia Hurt stated in part:

“I am aware of the claim by Stillman & Dolan, Inc., the Defendants, that there was an agreement to terminate commissions 90 days from termination of employment. This (is) absolutely untrue. There was some limited discussion about changing the method of chaining clients. Previously clients had executed what was referred to as one year contracts. A new arrangement was to be instituted where clients would enter into 60 month contingency contracts and the sales employee would be entitled to much larger commissions.
“Office procedures were started for this new arrangement, however, the clients resisted it. Karen Fink then informed the employees, including the Plaintiff that ‘the 60 month contingency contract would be abandoned, because Stillman & Dolan, Inc., didn’t agree to it, ‘she’ never thought it would work,’ and further there would be no change in the commission arrangement. There was never a valid contract in writing executed by the parties in this action. The inducement for me to sign the agreement was the payment of larger commissions and that never materialized. There was no 90 day limitation to commissions as claimed by the defendant; that is false and completely untrue. There was no limitation what so-ever. The matters and facts which I have stated herein are based on my own personal knowledge.”

As opposed to the prior affidavits, submitted by the appellants, these affidavits set out specific admissible facts in support of their conclusion that the contract never went into effect. These facts are material and are in direct conflict with the appellee’s allegations that a binding contract controls this question. The rule we are to follow in cases involving the vacating of a summary judgment has been set out by the Court of Appeals most clearly in the case of Brewer v. Mele, 267 Md. 437, 441, 298 A. 2d 156 (1972):

“In reviewing the granting of the summary judgment itself, we are concerned with whether the trial judge was legally correct. In reviewing the denial of a motion to strike a summary judgment, on the other hand, we are concerned only with whether the trial judge abused his discretion. Clarke Baridon v. Union Co., 218 Md. 480, 147 A. 2d 221 (1958). These are distinct types of decision. The critical question for the trial court vis-a-vis the Leard summary judgment was whether there existed a genuine dispute as to a material fact and, if not, what the ruling of law should be upon those undisputed facts. The critical question for the trial court vis-a-vis the Mele motion [to vacate the summary judgment] was whether the appellant had shown a reasonable indication of a meritorious defense to the motion or other equitable circumstances that would justify striking the judgment — that is, whether the court entertained a reasonable doubt that justice had been done in the earlier granting of the summary judgment.”

It seems apparent to us, assuming the affidavits to be accurate, there is a reasonable doubt as to whether justice has been done in granting the earlier motions for summary judgment. We think the trial judge abused his discretion in denying the motions to strike the summary judgments.

Judgments reversed.

Cases remanded for new trials.

Costs to abide final results.

      . By order of the Court of Special Appeals dated December 9, 1976, the two cases were consolidated for appellate purposes.

      . Partial summary judgments were granted in favor of the appellants for commissions on fees which were collected within ninety days of their termination of employment.

      . In the Bossle case a similar affidavit was submitted by Bossle.


author: Gilbert, C. J.,

text:
    THE PATTERSON AGENCY, INC. et al. v. ROSALIE L. TURNER
    [No. 885,
    September Term, 1976.]

      Decided April 14, 1977.

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

      John H. Umer, with whom were Byron, Moylan & Umer on the brief, for appellants.

      Omer T. Kay for, Jr. and William C. Wantz, with whom were Kayfor & Spence on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

A judgment was entered on a jury verdict against John C. Patterson, Sr. (Patterson) and the Patterson Agency, Inc., (Agency) for the sum of fifty thousand dollars ($50,000) in the Circuit Court for Washington County on an action of negligence brought by Rosalie L. Turner (Mrs. Turner). Aggrieved by the judgment, Patterson and Agency have both appealed to this Court charging that Judge Irvine H. Rutledge erred in: 1) admitting evidence of a telephone conversation between Irvin Turner (Turner), the deceased husband of Rosalie L. Turner, and Patterson concerning a travel insurance policy; 2) failing to require Mrs. Turner to prove that an insurance policy covering a single trip on a private plane could have been procured; and 3) failing to require Mrs. Turner to prove that her husband had flown in a private plane.

We perceive no merit in any of the three allegations of error, and we shall affirm. We explain our reasons.

There was evidence showing that on March 28, 1974, Turner, in the presence of Mrs. Turner, his foster daughter, and his foster daughter’s mother-in-law, telephoned Patterson and requested flight insurance. The witnesses, except Patterson, all testified that Turner made it clear in his part of the telephone conversation, which they could all plainly hear, that he was flying in a private plane with Paul Erickson to Las Vegas, Nevada. In fact, there was some testimony that Patterson was invited to go along on the trip as there was an extra seat on the plane. Patterson, himself, completed the application for the insurance and signed Turner’s name to it. The policy issued by Patterson, a broker, was a General Accident Fire and Life Assurance, Limited (General) policy which specifically excluded coverage for flights on private planes.

Patterson asserted that he was led to believe that the flight was on a commercial liner and not on a private plane.

Tragedy struck the next day when the plane crashed and all aboard were killed. General refunded Mrs. Turner’s check of $20.45 for the premium and denied coverage by virtue of the exclusionary provision of its policy.

Mrs. Turner sued Patterson, his son, Raymond, and the Agency. Those three impleaded General as a third party defendant. At the conclusion of the evidence, Judge Rutledge granted directed verdicts for Raymond and General. Neither is involved in this appeal.

I.

“The lower court erred in admitting hearsay testimony regarding the telephone conversation held between Irvin Turner and John Patterson, Sr.”

McCormick’s Handbook of the Law of Evidence § 246 (2d ed. E. Cleary 1972) defines hearsay as

“[T]estimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” (Footnote omitted.) (Emphasis omitted.)

Patterson and Agency contend that the statements of Mrs. Turner and her foster daughter’s mother-in-law, with respect to what they heard of the conversation between Turner and Patterson, were inadmissible hearsay because they were offered to “show the truth of matters asserted” by Turner as to the type of airplane to be used. Mrs. Turner, on the other hand, suggests that the testimony was admissible because it was offered not to show the truth of the matters asserted but rather to show that Patterson and, through him, Agency were put on notice that the risk to be covered was a flight in a private aircraft.

This Court, in Sun Cab Co. v. Walston, 15 Md. App. 113, 132, 289 A. 2d 804, 815 (1972), aff'd, 267 Md. 559, 298 A. 2d 391 (1973), held that a statement made by a police officer that he was told a cab had been struck in the rear was not hearsay. We relied on McCormick, Handbook of the Law of Evidence § 226 (1954), where it is said, “... ‘hearsay’ [should be limited] to situations where the out-of-court assertion is offered as equivalent to testimony to the facts so asserted by a witness on the stand. Only then does the want of such safeguards as cross-examination become material.” See also Arundel Corp. v. Jasper, 219 Md. 519, 150 A. 2d 415 (1959); Bowie v. Martin, 199 Md. 58, 85 A. 2d 786 (1952); Borza v. State, 25 Md. App. 391, 335 A. 2d 142 (1975); 2 B. Jones, The Law of Evidence § 271 (5th rev. ed. S. Gard 1958). Testimony concerning the telephone conversation was not admitted to show the truth of whether Turner flew on a private plane but rather whether Turner told Patterson he was going to fly on a private plane. Such testimony is admissible according to Creaghe v. Iowa Home Mutual Casualty Co., 323 F. 2d 981, 984 (10th Cir. 1963):

“The hearsay rule does not exclude relevant testimony as to what the contracting parties said with respect to the making or the terms of an oral agreement. The presence or absence of such words and statements of themselves are part of the issues in the case. The use of such testimony does not require a reliance by the jury or the judge upon the competency of the person who originally made the statements for the truth of their content. Neither the truth of the statements nor their accuracy are then involved.”

Willner v. Silverman, 109 Md. 341, 71 A. 962 (1909), relied upon by Patterson and Agency, is factually inapposite. In that case, the Court of Appeals held that a witness, who was in an office when a telephone conversation was conducted by a participant, cannot testify as to the conversation because the participant repeated the conversation to the witness.

The challenged testimony in the instant case was not hearsay. It was properly admitted evidence. There is no error.

II.

“The lower court erred in not requiring ... [Mrs. Turner] to prove that a policy of single trip, private plane passenger life insurance could be procured and that ... [Patterson’s and Agency’s] negligence was the proximate cause of damages in the amount of $50,000.”

At trial, Mrs. Turner presented no evidence as to the availability of flight insurance on trips on private planes. Patterson, however, testified that he could not have secured such insurance. After the trial, but within the time permitted by Md. Rule 563, Patterson and Agency moved for a judgment N.O.V. on the ground that Mrs. Turner had not carried her burden of proof. They reasoned that her failure to demonstrate the availability of insurance on private plane flights precluded recovery. Judge Rutledge disagreed, and so do we.

Annot., 64 A.L.R.3d 398, 407 (1975), indicates that a split of authority exists as to who bears the burden of proof on the availability of insurance:

“In addition to being required to establish the existence of a duty to procure insurance and its breach, the plaintiff in an action against an agent or broker for failure to procure insurance has often been required to show that there was a casual [sic][] relationship between the negligence of the agent and the loss suffered by the client. In several jurisdictions, the causation requirement has been a formidable barrier to recovery, which has prevented a finding of liability against the agent or broker unless the client is able to clearly show that were it not for the agent’s negligence, he would have been issued a valid policy which would have protected him against the loss which he suffered.” (Footnote omitted.)

MacDonald v. Carpenter & Pelton, Inc., 31 App. Div. 2d 952, 298 N.Y.S.2d 780 (1969); Pacific Dredging Co. v. Hurley, 65 Wash. 2d 394, 397 P. 2d 819 (1964).

“However, a few courts, recognizing that the question of whether a valid policy would have been issued is a matter peculiarly within the knowledge of the agent or broker, have concluded that causation need not be proved by the client and will only enter the case if the issue is raised by the agent as an affirmative defense.” Annot., 64 A.L.R.3d 398, 407 (1975).

Hans Coiffures International, Inc. v. Hejna, 469 S.W.2d 38 (Mo. App. 1971); Scott v. Conner, 403 S.W.2d 453 (Tex. Civ. App. 1966).

We have not been directed to, nor have we found, any Maryland appellate decisions which have heretofore considered whether the claimant or the insurer carries the burden of proving the availability vel non of the insurance coverage.

It is suggested in Note, Burden of Proof of Excepted Causes in Insurance Policies, 46 Colum. L. Rev. 802 (1946), that the majority view is that proof of a loss which is due to an excepted cause is in the nature of an affirmative defense to be proved by the insurer. 6 Baylor L. Rev. 238 (1954) states that, when concurring causes of damage appear, and one loss is covered but the other is not, the burden of proving that the loss insured against is not within the coverage rests upon the insurer.

We think that burden of proving the non-availability should be shouldered by the insurer, in the nature of an affirmative defense.

In the instant case, not only was that burden not met, but the only evidence offered by Patterson and Agency is that Patterson could not provide the private plane flight insurance. At no time was it ever shown that such insurance was not available. Testimony by Patterson that he could not supply the particular insurance is a far cry from evidence demonstrating that such insurance is not elsewhere available.

Annot., 18 A.L.R. 1214 (1922), declares:

“It may be laid down as a general rule that a broker or agent who, with a view to compensation for his services, undertakes to procure insurance on the property of another, and who fails to do so, will be held liable for any damage resulting therefrom.”

The same rule applies to a broker or agent who undertakes for compensation to procure flight insurance on the life of another.

When, as here, the agent or broker fails to procure the insurance, and an intervening casualty occurs before the agent or broker can notify his principal of non-availability so that insurance might be obtained from another, the agent or broker is liable to the insured, his estate, or those claiming under him in the amount that would have been due under the policy had it been obtained. See generally Annot., 18 A.L.R. 1214, 1219 (1922); 4 J. Appleman, Insurance Law and Practice § 2269 (1969); 12 J. Appleman, Insurance Law and Practice § 7203 (1943).

III.

“The lower court erred in failing to require ... [Mrs. Turner] to prove that Mr. Turner had flown in a private plane.”

The record discloses that Patterson was asked on cross-examination, “Did he [Turner], in fact, fly by private flight?” Patterson replied, “I understand he did." We believe this response allowed the jury to draw a rational inference that Turner had indeed flown in Paul Erickson’s private plane. We perceive no error.

Judgment affirmed.

Costs to be paid by appellants.

      . The author of this annotation must have intended this word to be “causal.”

      . We repeat what Mr. Justice Stone stated in Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U. S. 80, 84-85, 54 S. Ct. 590, 592, 78 L. Ed. 1137, 1140 (1934):
      “The phraseology of contracts of insurance is that chosen by the insurer and the contract in fixed form is tendered to the prospective policy holder who is often without technical training, and who rarely accepts it with a lawyer at his elbow.”

        See Insurance Company of North America v. State Farm Mutual Automobile Insurance Co., 35 Md. App. 402 (1977).