author: Thompson, J.,

text:
    STATE OF MARYLAND v. WALTER P. RICE et ux.
    [No. 475,
    September Term, 1974.]

      Decided February 19, 1975.

    The cause was argued before Thompson, Moylan, Davidson and Mason, JJ.

      Carl Harrison Lehmann, Special Attorney, with whom were Francis B. Burch, Attorney General and Nolan H. Rogers, Special Assistant Attorney General, on the brief, for appellant.

      John C. Joyce, with whom were F. Robert Troll, Jr. and Dicckett, Orem, Christie & Beckett on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Walter P. Rice and Julia J. Rice, his wife, filed suit in the Circuit Court for Prince George’s County against the State of Maryland for trespass. They recovered a verdict of $17,500 which the State apparently considers to be excessive. The only issues before us, however, involve the construction of a statute waiving the State’s sovereign immunity and the proper measure of damages.

I Demurrer and Preliminary Motion

In their Declaration the Rices alleged:

“During the year 1972 and at present, the plaintiffs own in fee simple the improved real property described as Lot 2, Kidmore Park, Prince George’s County, Maryland, known as 6825 Patterson Street, Riverdale, Maryland; that on or about October 24 and November 7, 1972, and April 6, 1973, engineers, surveyors, assistants and other agents, servants or employees of the State of Maryland acting within the scope of their authority, came upon said property without the prior knowledge or consent of the plaintiffs, and damaged or destroyed a large number of valuable trees, shrubs and plants which had been purchased, planted, relocated and cultivated by the plaintiffs for purposes of ornament, screening and landscaping of their home property; that as a result of such trespasses and the conduct of the defendant, its agents, servants or employees, the plaintiffs have suffered substantial damages.
“Wherefore, pursuant to Article 21, Section 12-112(c) of the Maryland Code (1973 Repl. Vol.) the plaintiffs demand judgment against the defendant in the sum of $50,000.00 plus costs.”

The State responded by filing a “Motion Raising Preliminary Objection and Demurrer” which was overruled by the trial court. Both the Motion and the Demurrer were based upon a claim of sovereign immunity. Md. Code, Art. 21, § 12-112 provides as follows:

“(a) Right of entry; right to set stakes, etc. — Civil engineers, land surveyors and their assistants acting on behalf of the State or of any of its instrumentalities or of any body politic or corporate having the power of eminent domain have the right:
(1) To enter upon any private land to make surveys, to run lines or levels, or to obtain information relating to the acquisition or future public use of the property or for any governmental report, undertaking, or improvement, and
(2) To set stakes, markers, monuments, or other suitable landmarks or reference points where necessary.
(b) Order to permit entry. — If any civil engineer, surveyor, or assistant to a civil engineer or surveyor is refused permission to enter or remain upon any private land for the purposes set out in subsection (a) hereof, any such person, or the State or its instrumentality, or the body politic or corporate upon whose behalf such person is acting may apply to a law court of the county in which the property or any part thereof is located for an order directing that such person be permitted to enter upon and remain upon such land to the extent necessary to carry out the purposes authorized by this section. Any person having knowledge of such order who obstructs any civil engineer, surveyor, or assistant to a civil engineer or surveyor who is acting under authority of such order may be punished as for contempt of the court.
(c) Damage to or destruction of property. — If any civil engineer, surveyor, or assistant to a civil engineer or surveyor who has entered upon any private land under the authority of this section or of any court order passed pursuant thereto, damages or destroys any real or personal property thereon, the owner of such property shall have a cause of action for such damages against such civil engineer, surveyor, or assistant and against the State, its instrumentality, or the body politic or corporate upon whose behalf the person inflicting such damage was acting.”

The State argues that the above statute applies only in cases where the entry is made with the owner’s permission or under a court order. The argument is difficult to answer only because it is insubstantial. The statute on its face authorizes the State’s agents to enter in subsection (a) (1) and says nothing about the permission of the owner. Subsection (b) provides that upon objection by the owner, the proper authorities may obtain a court order authorizing entry for the purpose of surveying. Subsection (c) then provides that if entry is made under the “authority of this section or of any court order passed pursuant thereto,” (Emphasis added) and damages result, the landowner shall have a cause of action against the State. We hold the entry was alleged to be under § 12-112 and thus the demurrer and the preliminary objection were properly overruled.

Citing Hooper v. City of Baltimore, 12 Md. App. 464, 475 (1859) and Whitt v. Dynan, 20 Md. App. 148, 315 A. 2d 122, 130 n. 12 (1974), the State further argues that the statute is in derogation of the common law and therefore must be strictly construed. Although the statement is sound, that does not mean the plain and obvious language of the legislature is to be overlooked particularly where such a construction would lead to an absurd result. Chillum-Adelphi Volunteer Fire Department, Inc. v. Prince George’s County, 269 Md. 486, 491, 307 A. 2d 481 (1973); Blocher v. Harlow, 268 Md. 571, 584-585, 303 A. 2d 395 (1973).

II Damages

The State next argues that the trial judge committed error in admission of evidence as to replacement costs of the trees and in refusing to instruct the jury that the costs were irrelevant in determining damages.

There was evidence from which the jury could have found: The Rices purchased the property in 1944 for their personal residence. It was an open field and contained only three large trees. Mr. Rice, a nurseryman, over the years planted many trees and shrubs on the property. Initially this was done for business convenience so Mr. Rice could furnish the trees and shrubs without having to purchase them from a nursery. Approximately twenty years later an apartment complex was constructed adjacent to the Rices’ property. Mr. Rice decided he would permit the trees and shrubs in the area facing the apartments to remain undisturbed in order to screen his home from the apartments and to preclude others from using his property as a thoroughfare.

On October 24, 1972, a crew from the Maryland State Department of Transportation entered the Rices’ property and cut a path through the trees varying from 10 to 20 feet in width and 100 yards in length. On the same day the Rices determined the types of trees and shrubs that had been cut and their height and caliber. On November 7, 1972 and on April 6, 1973, a survey crew from the State of Maryland again returned to the Rice property and cut further trees and shrubbery. No prior notice was received by the Rices on any of the three occasions and they never gave the State permission to come on the property. The Rices claimed that as a result of the destruction, the screening effect was destroyed and the noise level significantly increased. An expert nurseryman (other'than Mr. Rice) testified that in his opinion the replacement costs of the destroyed trees and shrubs was $18,019.35 and the cost of replanting was $9,000 — a total replacement cost of $27,019.35. There was evidence that the large majority of the trees cut by the State Roads Commission were not native wild-growth trees but were planted.

Employees of the State Department of Transportation acknowledged that they cut down the trees and shrubs on the Rices’ property in October, 1972, without having obtained their permission, for the purpose of running a survey site line. A real estate expert testified that the difference in the fair market value of the Rices’ property before and after the cutting of the trees and shrubs was $100. He estimated that the value of the property for building lots was $56,000 both before and after the cutting and thus arbitrarily assigned a nominal difference of $100.

To support its argument that the trial court erred and failed to instruct the jury that the replacement cost should be disregarded in arriving at a verdict, the State cited two condemnation cases: Montgomery County v. Old Farm Swim Club, 270 Md. 708, 313 A. 2d 458 (1974) and Smith v. State Roads Commission, 257 Md. 153, 262 A. 2d 533 (1970) which held that in evaluation of property for the purposes of condemnation, the unit value of trees or gravel should not be admitted into evidence although those factors were, of course, relevant for the appraiser’s use in arriving at a fair value of the property. It also cites Big Pool Holstein Farms, Inc. v. State Roads Commission, 245 Md. 108, 225 A. 2d 283 (1967) and City of Baltimore v. Concord Baptist Church, 257 Md. 132, 262 A. 2d 755 (1970), which are also condemnation cases in which the State alleges that the Court strained the law in order to preclude windfall compensation to the owners of property being condemned.

We do not think condemnation cases are appropriate authorities to apply in the instant case. In the first place the State took no property from the Rices but simply inflicted damage thereon. In the second place, there is nothing to indicate that in providing that property owners could bring suit for damages in Md. Code, Real Property § 12-111 (c) the legislature intended that the State would not be liable in the same manner as a private individual. This law has been firmly settled by the Court of Appeals in two relatively recent cases: Regal Construction Company v. West Lanham Hills Citizen’s Association, Inc., 256 Md. 302, 260 A. 2d 82 (1970) and Samson Company v. Brusowankin, 218 Md. 458, 147 A. 2d 430 (1958) which were discussed and applied by this Court must recently in Withers v. Ferrero Construction Company, 21 Md. App. 550, 320 A. 2d 576 (1974). The rule is most succinctly set out in Regal Construction Company v. West Lanham, supra at 305:

“It is no longer open to question that the Maryland rule is that damages may be measured in cases of this sort at the plaintiffs election either by the loss of value which results from the harm, or by the cost of restoration, subject to the limitation that if cost of restoration is disproportionate to diminution in value, then damage will be measured by the difference in value before and after the harm unless there is a reason personal to the owner for restoring the original condition. Once a reason personal is found, the measure of damages is the cost of restoration, even though this may he greater than the entire value of the property. ” (Citations omitted. Emphasis added.)

It is apparent in the instant case there was evidence to support a finding that there was a reason personal to the owners for restoring the property to its original condition. There was testimony that it was practical to do so and thus the trial court applied the proper measure of damages even though, had the entire number of trees on the property been cut, the cost of restoration would have greatly exceeded the value of the property.

Judgment affirmed. Appellant to pay the costs.

      . Although the Motion pointed out the failure of the statute to specify the measure of damages, we do not see its relevancy on the question of preliminary objection or demurrer.

      . Now covered by Md. Code, Real Property, § 12-111.

      . The history of the statute was reviewed by the Court of Appeals in Mackie v. Mayor and Commissioners of the Town of Elkton, 265 Md. 410, 290 A. 2d 500 (1972) also cited by the State, in which it was observed that subsection (c) was added by Section 1 of Chapter 52 of The Laws of Maryland of 1963. In that case, however, the Court was concerned with the circumstances under which the Court could order the landowner to permit the entry and not with the question of a suit for damages after the entry had been made. The case does not bear upon the problem before us.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    NORTHOVER CENTER, INC. v. DART DRUG CORPORATION, NORTHOVER
    [No. 487,
    September Term, 1974.]

      Decided February 20, 1975.

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

      Warren Browning for appellant.

      James S. McAuliffe, Jr. and Joseph M. Quirk, with whom were Heeney, McAuliffe & Rowan on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Northover filed a Bill of Complaint on January 21, 1974 in the Circuit Court for Montgomery County to remove an apparent cloud from the title to real estate comprised of a Lease Agreement with the appellee, Dart Drug. The lease let the real estate described “together with the building to be erected thereon . . . for a term of 20 years commencing . . . the earlier of the thirty-first day after completion of the building' . . . and the satisfaction of other conditions of Article 5 ... or the date of the opening of the Demised Premises for business with the public . . . .” The “other conditions of Article 5” included obtention by Dart Drug of “all necessary business licenses and permits to enable it to conduct its business at the premises.”

After convenanting that the building would be commenced by June 1, 1968 and completed and delivered to Dart no later than June 1,1969, Northover agreed that

“If the building is not so commenced or is not completed . . . Tenant shall have the right, at any time after the expiration of either of such dates, to
(a) terminate this lease by giving Landlord written notice and thereupon Tenant shall be relieved and released of all obligations hereunder; or
(b) extend Landlord’s time for completion thereof and delivery of possession to Tenant.”

In its Bill of Complaint, Northover alleges that:

“Because of economic conditions beyond its control, Plaintiff has been unable, and is now unable, to. construct the aforementioned proposed building in accordance with the terms and conditions of said Lease Agreement.”

Dart Drug demurred and pursuant to Md. Rule 345 it stated “in detail the question of law or insufficiency of substance upon which the demurrer [was] founded.” Four causes were set forth as grounds for the demurrer:

“1. That the facts alleged in the Bill of Complaint do not entitle the plaintiff to the relief sought, these facts being very similar to the facts in Acme Markets, Inc. v. Dawson Enterprises, Inc., 253 Md. 76, in which the Maryland Court of Appeals held that as a matter of law a Bill to remove a cloud on the title would not lie.

2. That the Lease Agreement attached to the Bill of Complaint as “Plaintiffs Exhibit A” shows that the Lease Agreement was to run for a term of twenty (20) years commencing no later than June 1, 1969, and therefore the plaintiff as a matter of law is not entitled to the relief sought.

3. That the Bill of Complaint fails to state how, when and under what circumstances the plaintiff became the successor in interest to Lloyd Odend’hal and Evelyn Odend’hal, the parties with whom defendant contracted in the Lease Agreement, and particularly by failing to state whether the plaintiff is contractually obligated to acquire the property upon the Lease being upheld by the Court, the Bill of Complaint is deficient in failing to show a right on the part of the plaintiff to bring this suit.

4. That the Bill of Complaint fails to state facts to support the allegation that the Lease Agreement is causing the plaintiff irreparable damage, but rather the Bill of Complaint shows that the plaintiff is not and cannot be irreparably damaged by the Lease Agreement since the plaintiff contracted with Lloyd Odend’hal and Evelyn Odend’hal with full knowledge of the existence and terms of the recorded Lease Agreement.”

[Emphasis added throughout]

The chancellor sustained the demurrer without leave to amend and in a lengthy, carefully written opinion set forth his reasons. Significantly, though, he did not respond to any point raised by the demurrer. Instead, he considered the merits of four of the allegations of Northover. The chancellor’s failure to decide the questions raised in the demurrer to which he was restricted at that juncture of the proceedings, compels our reversal. Cf., Hall v. Barlow Corp., 255 Md. 28, 41.

The Chancellor’s Opinion

The opinion of the chancellor resolved four contentions of Northover in its Bill of Complaint, none of which were the “questions of law or insufficiency of substance upon which the demurrer [was] founded.” The chancellor acknowledged that they were taken from the Bill of Complaint which he paraphrased:

“Plaintiff advances four contentions:
(1) Since construction of plaintiff’s building has not even been started and plaintiff [sic] has not exercised its right to terminate the lease, nor to extend the same for completion of the demised building, plaintiff [sic] is guilty of laches.
(2) That the leasehold estate did not vest until the commencement date as defined in Paragraph 6 and that said date could be postponed beyond the time prescribed by the rule against perpetuities, a circumstance which invalidates the entire lease.
(3) That since vesting of the leasehold estate could be postponed indefinitely, the lease imposes an unreasonable restraint on alienation and is, therefore, invalid.
(4) That the lease is invalid because it lacks mutuality in that the defendant (Tenant) alone is given the power to terminate it.”
[Emphasis added throughout].

The court resolved the questions it had raised from the Bill of Complaint against Northover in a seven page opinion which when synopsized decided that:

1. Laches were inappropriate because “this litigation is proof that [Dart] declined to terminate . . .” and the extension is prescribed because the extension did not have to be in writing, only the termination;
2. The perpetuities rule was not violated because the leasehold interest vested upon execution of the agreement (September 7, 1967) and the rule applies only to vesting not to possession or enjoyment;
3. Restraint on alienation was also answered by the vesting of the leasehold estate; and
4. Acme Markets v. Dawson Enterprises, supra, was dispositive of the question of lack of mutuality.

Not only did the chancellor fail to meet the limited issues detailed in the demurrer, his opinion treated fewer than all of the contentions of the Bill of Complaint. In addition to the four issues the chancellor sua sponte elected to decide, there was a commercial frustration contention which he inexplicably did not treat. The answers he gave were not to the questions asked by the defendant, nor did they respond to all the issues raised by the plaintiff.

Although the chancellor’s opinion repeatedly speaks of the “demurrer” it is apparent that he treated it as a Motion for Summary Judgment, much as was done by the Court in Myers v. Montgomery Ward Co., 253 Md. 282. In Myers Judge Singley noted that “It is quite apparent, although the court did not so state in its memorandum, that the demurrer was treated as if it had been a motion for summary judgment filed under Rule 610, since the court addressed itself to each of the alternative legal theories advanced by the declaration.” Id. at 289. There is an important distinction between Myers and the instant case, however. Because in Myers the lower court was dealing with facts established by testimony and stipulation, and submitted an opinion on the demurrer issues as well as on the merits, the demurrer/summary judgment distinction was essentially a technical one for which the Court of Appeals chose not to reverse. The significance of the absence of fact finding here, however, is amply demonstrated by the previously mentioned commercial frustration issue. In Acme Markets, Inc. v. Dawson Enterprises, Inc., 253 Md. 76, a case quite similar factually to the case sub judice, the trial and appellate courts resolved the commercial frustration issue solely on the basis of elicited testimony. In this case, where there has been no determination of the commercial frustration contention, no indication that the facts were undisputed, no fact findings and no resolution of the demurrer issues the demurrer/summary judgment distinction assumes major importance.

We are not satisfied that justice would be served here by deviating from the Rules to avoid a remand as was appropriate in Myers. The very sparse record discloses that appellant filed with its Bill of Complaint a Motion for Summary Judgment. There had been neither a hearing nor answer filed to that Motion when the matter was set for hearing on the demurrer (filed three months after the Motion for Summary Judgment). Appellant should not have been expected at that time to defend his entire cause of action, but merely to respond to the issues specifically raised by the demurrer. Md. Rule 345 b (made applicable to demurrers in equity by Rule 373) “is a salutory rule which prevents the surprises and difficulties attendant upon the common law general demurrers.” Hall v. Barlow Corporation, 255 Md. at 41.

Appellant has already been required to argue its case on the merits at a demurrer hearing which it had every right to anticipate would deal with the demurrer. To now hold that because its Bill was accompanied by an as yet unanswered and unheard summary judgment motion we are somehow licensed to compound the chancellor’s error and rule upon the merits, would only add insult to injury.

In accordance with the preceding discussion, we are not inclined to rule in the first instance on the issues raised by Dart’s undecided demurrer. Md. Rule 1085. The judgment of the chancellor sustaining the demurrer is vacated and the cause remanded for a determination of the issues raised.

Judgment vacated.

Case remanded for determination on demurrer.

Costs to be paid by appellee.

      . Northover Center, Inc., a Maryland Corporation, appellant.

      . Dart Drug Corporation, Northover, a Maryland Corporation, appellee.

      . If the first issue raised in appellee’s demurrer, viz. that the Acme Markets’ case held, as a matter of law, that a Bill to remove a cloud on the title would not lie, were correct the demurrer would have been validly sustained. We persist in our view that the case should be remanded for appropriate rulings on the questions of law raised by demurrer, however, because we find appellee’s contention regarding Acme Markets so patently untenable. Although quite similar factually to the case sub judice, it does not espouse nor imply the concept attributed to it.

      . Docket entry shows:
      “June 7, 1974 Hearing on Defendant’s Demurrer to Bill of Complaint — ruling reserved.”


author: Gilbert, J.,

text:
    SHERMAN WOODROW DOBSON v. STATE OF MARYLAND
    [No. 490,
    September Term, 1974.]

      Decided February 20, 1975.

      The cause was argued before Thompson, Gilbert and Moore, JJ.

      Arnold M. Zendtz and Elsbeth Levy Bothe, Assistant Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Milton B. Allen, State’s Attorney for Baltimore City, and Sandra A. O’Connor, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Sherman Woodrow Dobson, appellant, was indicted by the Grand Jury of Baltimore City for a multitude of criminal offenses including the murder of James A. “Turk” Scott. Dobson was convicted, however, in the Criminal Court of Baltimore by a jury of only kidnapping, robbery with a deadly weapon, receiving stolen goods and the use of a handgun in the commission of a crime of violence. Dobson received sentences aggregating fifteen years. Lamenting his convictions, Dobson has appealed to this Court where he asks:

“1. Whether [his] convictions should be reversed since the pre-trial identification procedures were so impermissibly suggestive as to make irreparable misidentificatión a near certainty and deny [him] due process of law?
2. Whether the trial judge abused his discretion by allowing the rebuttal testimony of Carl Sylvester Washington?”

Prior to trial Dobson, through his counsel, filed a motion to suppress an in-court identification of the traverser on the ground that the identification was predicated upon an impermissibly suggestive photographic identification procedure. The motion was directed at the identification that the State expected to be made at trial by Stephen Allen Brown, an associate minister of the Manor Bible Baptist Church, manager of the “Grace Memorial Hour”, and part-time cab driver.

On June 18, 1972, Brown, while operating his taxicab, picked up two passengers at Liberty Heights Ave. and Garrison Blvd. When the passengers entered the cab they asked to be taken to Wabash and Edgewood Avenue. When they had arrived at that destination one of the passengers, later identified as Dobson, put a gun into Brown’s side. The second passenger, who was seated on the rear seat of the cab, placed a gun to the back of Brown’s head and the duo of holdup men were joined by a third person. Brown was removed from the driver’s seat and placed on the rear seat of the cab. Dobson drove the cab to a wooded area near the Lemmel Junior High School. Once there the trio of culprits accompanied Brown into the wooded area. Brown was handcuffed to a tree. Dobson remained with Brown and the other two exited the area. Brown remained in Dobson’s company for a period of two and one-half to three hours during which time he had the opportunity to observe Dobson, although Brown stated that he avoided staring directly at Dobson for fear that if he did so he might be killed. According to Brown the wooded area was near a railroad track and there was a light about fifty yards away. He knew that his assailant was wearing glasses, was brown skinned, and he was also able to determine that his abductor had a “funny-shaped nose.” When the other two men returned to the wooded area Brown observed that one of them had a submachine gun. Brown was released by the trio, found his way out of the woods and ultimately called the police. The description that he furnished the police was vague. Shortly after the robbery he was shown some photographs from which he was unable to pick any of his abductors. Brown candidly admitted that he could not recognize two of the three kidnappers. On July 14, 1973 Brown was shown a series of fifteen additional photographs from which he picked the photograph of the appellant, Sherman Dobson. Brown stated that that photograph depicted the person who put the gun in his side and who spent the two and one-half to three hours with him in the wooded area. Of the fifteen photographs submitted to Brown, only one individual is shown to be wearing glasses and that is the appellant. Dobson’s lawyers, for three days of pretrial hearing, valiantly and vigorously sought to discredit Brown and to demonstrate that the photographic identification was so impermissibly suggestive that it should be excluded. At the conclusion of the hearing the trial judge stated that during the course of the pretrial hearing he had borne in mind the test enunciated in Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968), and Smith v. State, 6 Md. App. 59, 250 A. 2d 285 (1969), cert, denied, 397 U. S. 1057, 90 S. Ct. 1402, 25 L.Ed.2d 674 (1970), as to whether “the confrontation procedures [were] so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.” The judge stated that he was “also mindful of the fact that [he] must take into consideration the totality of the confrontation and . . . the totality of the circumstances [are] significant.” The trial judge observed that Mr. Brown did spend considerable time in the woods with Dobson and that the judge had regarded Brown’s “demeanor and manner very carefully.” He interpreted Brown’s testimony as being “very honest” and that Brown was a “sincere individual” who really did not want to get involved. The judge went on to state:

“[Brown] said, 1 paid very little attention to the first man, and the second man I couldn’t see at all,’ which gives me some belief that this was a very truthful witness and that he was not trying to either get in the limelight or to falsely accuse anyone. But he said, T saw the number one man as he got in. He wore glasses, he had a funny-shaped nose, and I got a glance at him, and I estimate his weight,’ ... he said ‘a little heavier than me, and I run one hundred and sixty-five, so I would say he is around one hundred and seventy, and he was in his early twenties,’ and that convinces me he got a rather substantial look at him, and a little more than the defense argued. He also said later on he was brown-skinned. Then he brought out later that his shoes were tan, brown pants, and I gather from that that a lot of evidence had to be drawn out of this witness.
Over and apart from this it is uncontradicted that [Brown] was in the woods with [Dobson] some two to three hours; he said they talked, talked about prayer. [Brown] wasn’t comfortable so [Dobson] went and got something to make him comfortable, and what have you. I also note . . . that [Brown] said at one time that looking back, he was able to get some description. He said, now that ‘I’ve thought about it awhile and looking back and reflecting my thoughts of the past occasion,’ [Brown] gave his testimony. He said he didn’t want to jeopardize his life by being able to identify anybody, which I interpret to mean he wasn’t staring and looking for features and sayfing to himself], ‘now, when I get out of here, I’m going to really nail this guy.’ I think he was saying, T didn’t stare at him to get the guy so that I’d be able to identify him later on.’ For that reason, I don’t interpret that to mean that he got no look at him, because he was in the woods all this time, and I’ve considered all this talk that he mentioned, which is part of the record, that he did get a look at him.”

Dobson’s first attack upon the judgment of the Criminal Court is focused on the pretrial motion to suppress the in-court identification. Consequently, we are limited in our review to the evidence produced at such a hearing, because it was on that particular evidence, and that evidence alone, that the trial judge made his determination to deny the pretrial motion to suppress the identification.

Most attacks in this Court upon convictions grounded on possibly tainted photographic identification have been unsuccessful. See Sallie v. State, 24 Md. App. 468, 332 A. 2d 316 (1975); Jordan v. State, 19 Md. App. 283, 310 A. 2d 575 (1973); Cousins v. State, 18 Md. App. 552, 308 A. 2d 692 (1973), cert, denied, 270 Md. 738 (1973); Conway v. State, 15 Md. App. 198, 289 A. 2d 862 (1972), cert, denied, 266 Md. 735 (1972), cert, denied, 413 U. S. 920, 93 S. Ct. 3070, 37 L.Ed.2d 1042 (1973); Crenshaw v. State, 13 Md. App. 361, 283 A. 2d 423 (1971), cert, denied, 264 Md. 746 (1972); Jackson v. State, 13 Md. App. 31, 280 A. 2d 914 (1971); Jones v. State, 10 Md. App. 420, 270 A. 2d 827 (1970), cert, denied, 260 Md. 721 (1971); Dorsey v. State, 9 Md. App. 80, 262 A. 2d 591 (1970), cert, denied, 258 Md. 727 (1970); Mouzon v. State, 9 Md. App. 57, 262 A. 2d 588 (1970), cert, denied, 258 Md. 729 (1970); Joyner v. State, 7 Md. App. 692, 257 A. 2d 444 (1969), cert, denied, 257 Md. 734 (1970); Bailey v. State, 6 Md. App. 496, 252 A. 2d 85 (1969), cert, denied, 255 Md. 739 (1969). But see Perkins v. State, 11 Md. App. 527, 275 A. 2d 517 (1971) wherein the Smith v. State procedures were not followed. Dobson asserts, however, that none of the cases that we have heretofore considered have been so egregious as the case presently before us.

Photographic identification procedures are usually employed by the police in three separate, but not necessarily exclusive, phases of a case: the investigation phase, the in-custody phase and the charge-on-defendant phase. N. Sobel, Eye Witness Identification: Legal and Practical Problems § 45 (1972). Courts, as a general rule, have upheld the constitutionality of photographic identification at the investigation stage. N. Sobel, supra § 45.01. See e.g. United States v. Benson, 495 F. 2d 475 (5th Cir. 1974); United States v. Kirby, 427 F. 2d 610 (D.C. Cir. 1970); United States v. Hamilton, 420 F. 2d 1292 (D.C. Cir. 1969); United States v. Butler, 405 F. 2d 395 (4th Cir. 1968), cert, denied, 396 U. S. 853, 90 S. Ct. 114, 24 L.Ed.2d 102 (1969); United States v. Strouse, 375 F. Supp. 672 (D.C. Pa. 1973); People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973); State v. Nettles, 81 Wash. 2d 205, 500 P. 2d 752 (1972); State v. Royster, 57 N. J. 472, 273 A. 2d 574 (1971), cert, denied, 404 U. S. 910, 92 S. Ct. 235, 30 L.Ed.2d 182 (1971).

In the instant case it is the use of photographs in the investigation phase that is assailed by the appellant. Dobson does not assert that it is impermissible to use photographs, but rather that the method used here was constitutionally impermissible. The Supreme Court has considered the question of photographic identification in only two cases, viz., Simmons v. United States, supra, and United States v. Ash, 413 U. S. 300, 93 S. Ct. 2568, 37 L.Ed.2d 619 (1973), with the latter turning on a refusal by the Court to extend the Sixth Amendment right to counsel to the photographic identification process. Ash did not discuss the due process issue of whether the photographs employed in that particular case were impermissibly suggestive.

The Simmons Court sanctioned the use of the photographic identification technique. Speaking through the late Mr. Justice Harlan, the Court declared:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on the ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

See also Conway v. State, supra, and Crenshaw v. State, supra. This Court in Smith v. State, supra, stated in 6 Md. App. at 67:

“Thus when it is shown that a pretrial identification by photograph, on the totality of the circumstances surrounding it, was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification, the admission of such identification or an in-court identification, as substantive independent evidence of identity, is determined, as when a pretrial confrontation is shown to be illegal by denial of due process of law, pursuant to the exclusionary rules of Wade [United States v., 388 U. S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149 (1967)] and Gilbert [v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L.Ed.2d 1178 (1967)]. We note that the rules of this State relating to identification evidence existing prior to Wade and Gilbert are still effective as qualified by the exclusionary rules enunciated in these opinions.” (Footnote omitted).

In Simmons, supra, the Court held “that each case must be considered on its own facts.” We shall now examine some of the facts that have been considered by the courts and held not to be impermissibly suggestive: Only one photograph depicted a man with gray hair and the suspect had gray hair, Saville v. United States, 400 F. 2d 397 (1st Cir. 1968), cert, denied, 395 U. S. 980, 89 S. Ct. 2137, 23 L.Ed.2d 768 (1969); a witness was shown three pictures, one each day, until identification was made on the third day, McClain v. State, 247 Ark. 33, 444 S.W.2d 99 (1969); a photograph of an accused appeared by itself on a page while the other photographs were mounted two to a page, Dorsey v. State, supra; two double pictures of defendant were shown while only one set of pictures of other individuals was included in the photographic array, Commonwealth v. Geraway, 355 Mass. 433, 245 N.E.2d 423 (1969), cert, denied, 396 U. S. 911, 90 S. Ct. 226, 24 L.Ed.2d 186 (1969); two out of thirteen photographs were of the defendant, and one of the two was unlike any other picture in that it depicted the defendant in a uniform, United States v. Butler, supra; only the defendant’s photograph was used, Clemons v. United States, 408 F. 2d 1230 (D.C. Cir. 1968), cert, denied, 394 U. S. 964, 89 S. Ct. 1318, 22 L.Ed.2d 567 (1969) and State v. Matlack, 49 N. J. 491, 231 A. 2d 369 (1967), cert, denied, 389 U. S. 1009, 88 S. Ct. 572, 19 L.Ed.2d 606 (1967); two photographs were shown, and the witness was asked to pick out the person who committed the crime, State v. Fullen, 1 Ariz. App. 466, 404 P. 2d 732 (1965).

Simmons, supra, uses the term “impermissibly suggestive” while the term “unnecessarily suggestive” is used by the Court in Gilbert, Wade and Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199 (1967). Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972) uses both terms. As a result of the use of “unnecessarily suggestive” in the confrontation cases and “impermissibly suggestive” in the only photographic identification case, some question has arisen as to whether the two terms have separate and distinct meanings dependent upon the method of identification. The question is partially answered by the Court’s use interchangeably of the two terms in Biggers. It is further answered in Foster v. State, 272 Md. 273, 323 A. 2d 419 (1974) where Judge O’Donnell indicated at 304, n. 15, that “[t]he terms ‘unnecessarily suggestive’ as used in Stovall. . . and ‘impermissibly suggestive’ used in Simmons . . . represent different articulations of the same requirement and should be so applied”; accord, Stanley v. Cox, 486 F. 2d 48, 50, n. 5 (4th Cir. 1973). Cf. United States ex rel. Phipps v. Follette, 428 F. 2d 912 (2d Cir. 1970), cert, denied, 400 U. S. 908, 91 S. Ct. 151, 27 L.Ed.2d 146 (1970). See also 73 Colum. L. Rev. 1168, 1171, n. 29 (1973) which states “[t]he tests would appear to have the same meaning — lack of compelling circumstances.”

The Supreme Court has fashioned a test upon which lower courts are required to rely in determining whether, under the totality of the circumstances, a photographic identification is “impermissibly suggestive.” Mr. Justice Powell in Neil v. Biggers, supra, for the majority of the Court, enunciated five factors to be considered “in evaluating the likelihood of misidentification” under the “totality of the circumstances” as:

“[ 1 ] the opportunity of the witness to view the criminal at the time of the crime,
[ 2 ] the witness’ degree of attention [to the offender],
[ 3 ] the accuracy of the witness’ prior description of the criminal,
[ 4 ] the level of certainty demonstrated by the witness at the confrontation,
[ 5 ] the length of time between the crime and the confrontation.”

See also Foster v. State, supra; Witcher v. State, 17 Md. App. 426, 302 A. 2d 701 (1973).

The United States Court of Appeals for the Fourth Circuit, in Smith v. Coiner, 473 F. 2d 877 (4th Cir. 1973) held that Neil v. Biggers, supra, applied only to pre-Stovall cases. We do not assign to Neil such a restricted sphere of influence. We note that the Court of Appeals of Maryland in Foster, supra, applied the Biggers factors, notwithstanding that the crime in Foster occurred in 1973, six years after Stovall was decided. It is patent, then, that insofar as this State is concerned, the five factors of Biggers are regarded as having a post -Stovall application. This Court has also, heretofore, given a post-Stovall application to Biggers. See Witcher v. State, supra. Cf. 73 Colum. L. Rev. 1168, 1181 (1973).

When the testimony of Brown at the pretrial hearing is measured by the scale of the Biggers factors, we find:

(1) A two to three hour opportunity to view the appellant, Dobson, even though the lighting conditions under which that viewing occurred were minimal.
(2) The opportunity to capture a multitude of fleeting glimpses of Dobson.
(3) A matching of Dobson’s complexion, wearing of glasses and “funny-shaped nose” against the description given by Brown.
(4) An emphatic certainty of identification upon viewing the photographs.
(5) A lapse of slightly less than one month between the crime and the identification.

As a result of our constitutionally mandated independent review of the evidence concerning the photographic identification, we conclude that although the photographic identification procedure, depicting only one person wearing glasses out of fifteen photographs shown, was “impermissibly-unnecessarily suggestive”, when the total evidence surrounding that identification is weighed on the scale of Biggers, there exists substantial reliability for the identification, and the identification procedure did not give rise to a very substantial likelihood of misidentification. The trial judge, under the totality of the circumstances, properly declined to suppress the judicial identification.

The appellant’s second contention is more troublesome. We have previously observed that in addition to indictments charging kidnapping, robbery with a deadly weapon, handgun violations and receiving stolen goods, Dobson was charged with the murder of Scott. The jury convicted Dobson of the robbery and kidnapping of Stephen Brown, a handgun violation and receiving stolen goods, but he was found not guilty of the murder of Scott. During the course of the trial the appellant presented testimony concerning the execution of a search warrant at his Ellamont Avenue residence where he resided with his mother, father and two brothers. Testimony elicited from the appellant’s father, uncle and a private investigator, was manifestly designed to show that the inculpatory physical evidence found in the Dobson household had been surreptitiously planted by the police.

It appears from the record that the defense theorized that entrance to the Dobson residence had been gained through a basement door sometime immediately prior to the serving of the warrant and the subsequent search. This theory was, however, strenuously denied by the State’s witnesses. Found as a result of the search was, inter alia, a .38 caliber revolver which had been stolen from a Burns Detective Agency Security Guard, approximately one week after the kidnap-robbery of Brown. Also found were two shoulder holsters, a sawed-off shotgun, a pair of hand cuffs, .38 caliber bullets, shotgun shells, a ski mask and some militant literature. The revolver was determined by police ballistics not to have been the weapon used in the murder of Scott, and that particular shotgun could not be connected to the murder. After the Reverend Harold Dobson, appellant’s father, had testified concerning the search, the State, on cross-examination, asked him if he had ever seen either of his other sons “with a .38 gun and holster.” Reverend Dobson’s reply was in the negative. He was then asked, “And what about Sherman, have you ever seen him with a .38 gun and holster?” To which he answered, “No, I haven’t.” At the conclusion of the defense presentation of evidence, the State then called Carl Sylvester Washington as a rebuttal witness, and the witness testified that in February 1973 he had seen the appellant at 903 Druid Lake Drive. The defense objected and the following discussion occurred at the bench out of the presence of the jury.

“MR. SMITH [Defense Counsel]: Your Honor, this witness is supposed to be a rebuttal witness, and there has been nothing in the Defendant’s case about 903 Druid Park Lake Drive one way or the other, and I don’t know what she’s rebutting. I don’t see how this is rebutting anything that we put on in our case.
THE COURT: The fact that he saw him there.
MR. SMITH: Yes.
THE COURT: You want to make any proffer now?
MRS. O’CONNOR [Assistant State’s Attorney]: If the Court wants me to make a proffer, I will. I just want to establish where he was seeing him, And I had only two other questions of him, how many people was he there with and what if anything did he have on him.
THE COURT: Did who have on him?
MRS. O’CONNOR: The Defendant.
MR. SMITH: What would that be rebutting. Rebuttal of what?
MRS. O’CONNOR: We will proffer that he will testify that he had a revolver and a shoulder holster, and that the father, you directly asked if he carried a gun. He said, no. And we are entitled to put that on. [(Emphasis supplied).]
MR. SMITH: His father was asked if he had seen a gun. She asked him three questions, about three, and the father said he didn’t. That doesn’t rebut the father’s testimony. Different people see different things. This is not rebutting the father’s testimony. The only way she can rebut, if he testified to that. This is not rebuttal.
THE COURT: Let me see, the father said—
MRS. O’CONNOR: Your Honor, the whole defense is going to, you know, how in the world would someone like this get into that house, and number one, and I think we are entitled to show that this young man —
MR. SMITH: Unless she is going to establish that.
THE COURT: That goes to weight. The whole thing, the defense is that he had no gun and never had anything to do with the gun, and guns were planted. They certainly can bring in a witness to say that they had possession of it before, which tends to rebut the fact that this gun was placed there.
MR. SMITH: Possession of what?
THE COURT: Weapon. Whether it was that weapon—
MR. SMITH: She is talking about a .38 caliber revolver, the one recovered. And the witness already came in and testified it belonged to him and it was taken in July from him. So how—
THE COURT: Is he going to say he had a .38?
MRS. O’CONNOR: He is going to say revolver.
MR. SMITH: Again, if—
THE COURT: It rebuts it on several points. Rebuttal testimony, your case is that he had nothing to do, never had anything to do with any gun. And it seems to me this would be rebuttal.”

Washington was then allowed to testify that when he saw the appellant in February, 1973 at the Druid Lake Drive address, Dobson “had a revolver” and that, “It was like in a shoulder holster.”

We observe that it was not the defense that asked Reverend Dobson if he had ever seen his son Sherman with a gun, but on the contrary, the question was put to the witness by the State. Appellant argues in essence that the evidence from Washington, if it had been offered by the State in its case in chief, would have been entirely irrelevant because of its remoteness. Appellant then reasons that the same remoteness proscribes its use as rebuttal evidence.

1 Wharton’s Criminal Evidence § 152 (13th ed. C. Torcia 1972) states:

“The question whether evidence is too remote to be relevant is left to the discretion of the trial judge, and his decision will not be disturbed unless a clear abuse of that discretion has been demonstrated. If given evidence is relevant, the interval of time between the event to which the offered evidence relates and the commission of the offense is a factor for the jury to consider in evaluating the weight or probative value of the offered evidence.” (Footnotes omitted).

In State v. Meyer, 180 Iowa 210, 163 N. W. 244 (1917), two guns were found at or near the scene of an alleged uxoricide, but neither was the murder weapon. The State, through a witness, sought to show that the accused had been seen some months before with a gun in his possession, and that it was neither of the two guns that had been found at the scene of the crime. The Iowa Supreme Court in reversing stated that what relevancy this evidence possessed was too remote and not connected in any way to the crime.

The Court of Appeals in Lane v. State, 226 Md. 81, 172 A. 2d 400 (1961) said at 90:

“Any competent evidence which explains, or'is a direct reply to, or a contradiction of, material evidence introduced by the accused may be produced by the prosecution in rebuttal. Shanks v. State, 185 Md. 437, 45 A. 2d 85 [(1945)]. And what constitutes rebuttal testimony in a criminal prosecution is a matter resting in the sound discretion of the trial court.”

See also Smith v. State, 273 Md. 152, 328 A. 2d 274 (1974); Felder v. State, 6 Md. App. 212,250 A. 2d 666 (1969); Jones v. State, 2 Md. App. 371, 234 A. 2d 614 (1967). The key words of Lane are “competent evidence which explains, or is a direct reply to, or a contradiction of, material evidence introduced by the accused.” We have already seen that it was the State that introduced the fact that Reverend Dobson had not seen his son in possession of a gun. Inasmuch as the State adduced that testimony, it cannot be successfully contended that the accused produced the evidence. Washington’s testimony neither explains Reverend Dobson's recitation nor does it contradict it. The question put to appellant’s father was whether he had seen his son with a gun. We fail to see how Washington’s testimony can be construed as a rebuttal to that of Reverend Dobson unless Washington also had stated that at the time he observed appellant with a gun, the Reverend Dobson was present and saw, or should have seen the same thing. It could be argued, and the trial judge apparently concluded, that the State was seeking to rebut the defense theory of “planted” evidence. The answer to that contention is that, patently, the .38 caliber revolver recovered as the result of the July 1973 search, from the Dobson household, could not have been the weapon observed by Washington in February 1973. This is so because the person from whom it was stolen, Davis, testified that the gun was taken from him on June 25, 1973, a period of approximately four months after the alleged viewing by Washington. We have already noted the .38 caliber gun could not have been used in the holdup or kidnapping of Brown because that event occurred approximately a week before the theft of the .38 caliber gun from Davis. We think it clear that Washington’s testimony could not have been used by the State in its case in chief because it would have been irrelevant for the State to demonstrate that four months before the events giving rise to this case, the appellant was seen with a gun in his possession. State v. Meyers, supra. Possession by the appellant of a weapon four months prior to the happening of a particular event does not give rise to a rational inference that appellant, because of such possession, also possessed other weapons at a later time. Washington’s testimony did not serve to rebut anything the defense had demonstrated or implied. The evidence adduced from Washington served only to arouse the passions of the jury by showing that at some point prior to the commission of the alleged offenses the appellant was seen with a gun in his possession, and, thus, to imply that since appellant once had a gun, that prior possession connected him with the offenses charged. We think the use of Washington’s testimony obfuscated the real issues by injecting into the trial “evidence of . . . [the] defendant’s evil character” in toting a gun in order “to establish a probability of his guilt.” Michelson v. United States, 335 U. S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948). The “fundamental demand for justice and fairness which lies at the basis of our jurisprudence”, Lovely v. United States, 169 F. 2d 386, 389 (4th Cir. 1948) mandates against the admission of such irrelevant and prejudicial evidence.

The general rule is that in the trial of a criminal case, evidence showing that the accused has committed other independent crimes is not admissible for the purpose of proving guilt or of showing that because a person committed one crime, he is likely to have committed the offense charged. 1 Wharton’s Criminal Evidence, supra § 240. “Evidence of other crimes is irrelevant where it does not tend to prove some material fact in connection with the crime charged, or where it merely tends to show that the defendant is a criminal.” See also Bryant v. State, 207 Md. 565, 115 A. 2d 502 (1955); Wood v. State, 191 Md. 658, 62 A. 2d 576 (1948); Jennings v. State, 8 Md. App. 312, 259 A. 2d 543 (1969). Of course, evidence of prior criminal acts is admissible if it tends to show a common scheme, plan, design, motive, intent or identity. Wilson v. State, 8 Md. App. 653, 262 A. 2d 91 (1970). In the instant case, however, we are unable to find within this record a common scheme, plan or design or other exception to the prior acts rule. While it is true that Washington’s deposition tended to underpin the State’s case insofar as the appellant’s possession of a shoulder holster is concerned, we think that bare thread of evidence is too fine a gossamer upon which to spin the fabric of rebuttal. Washington’s perceiving of appellant with the holster was simply too remote from the time of the commission of the crimes charged against appellant. Moreover, there was no testimony from Brown that appellant used a shoulder holster or any other type of holster, nor was a holster the subject of the stolen property charge. It appears that the Washington narration was adduced for the purpose of demonstrating that appellant was a “bad man”, a criminal, and thus likely to have committed the offenses for which he was indicted. Consequently, its admission was error.

The State argues that the testimony of Washington, even if error, was harmless beyond a reasonable doubt because there was no resulting prejudice to Dobson. The State reaches this conclusion by starting with the end result, scilicet, that Dobson was acquitted of the murder of Scott, ergo, the jury was not influenced by Washington’s evidence concerning the gun he saw in February 1973. This argument overlooks all of the other charges with which Dobson was confronted and the convictions that were handed down by the jury. The argument of necessity presumes that the jury attached no credibility to Washington. It ignores the possibility that the jury, if it had any doubt about Brown’s identification testimony, might have resolved those doubts in favor of the State once it was shown that Dobson had at some point in time possessed a revolver.

We are unable to state to what extent, if any, the admission of evidence of the irrelevant, prejudicial, uncharged misconduct influenced the jury’s decision. Clearly, however, this is not a case of harmless error. There is present the very real possibility that the improperly admitted evidence contributed to Dobson’s convictions. Fahy v. Connecticut, 375 U. S. 85, 84 S. Ct. 229, 11 L.Ed.2d 171 (1963). The State’s introduction of uncharged misconduct evidence denied appellant the protection which the rules of evidence are designed to afford.

“Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard [citizens from unlawful] convictions, with resulting forfeitures of life, liberty and property.” Brinegar v. United States, 338 U. S. 160, 174, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).

We hold, therefore, that the trial court erred in allowing, over objection, Washington’s testimony, and accordingly we reverse and remand the case for a new trial.

Judgments reversed and case remanded for a new trial.

      . By prearrangement Dobson was not present in the courtroom during the pretrial hearing. He waived, in writing, his right to be present for obvious tactical reasons.

      . The appellant has interwoven in his argument various references to conflicts between the evidence produced at the pretrial hearing with that produced during the course of the trial itself. The pretrial hearing involved a question of law for the judge. The trial evidence was for the trier of fact, in this case, the jury.

      . The record indicates that Dobson was arrested on July 15, 1973 — the day after the last photographic viewing by Brown.

        . For a critique of Ash see Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?, 72 Mich. L. Rev. 717 (1974).

      . The case was decided by a five to three vote. Mr. Justice Brennan, joined by Justices Douglas and Stewart, concurred in part and dissented in part. The dissent, however, was not directed toward the quoted holding. Mr. Justice Marshall did not participate in the decision.

      . In Smith v. Coiner, supra, the majority held that in pre-Stovall cases “Neil permits admissibility of an identification resulting from suggestive confrontation only when there is substantial reliability of the identification.” 473 F. 2d at 883. Judge Murray of the United States District Court for the District of Maryland dissented.

      . See also United States v. Woods, 484 F. 2d 127 (4th Cir. 1973); Ross v. State, 24 Md. App. 246 (1975).


text:
    RICHARD A. FISHER et al. v. MAXWELL C. TYLER et al.
    [No. 491,
    September Term, 1974.]

      Decided February 20, 1975.

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

      David M. Buffington and Charles P. Goodell, Jr., for appellants.

      William A. Franch, with whom were John J. Corbley and Goldsborough & Franch on the brief, for Maryland Automobile Insurance Fund. David H. Clark, with whom were Samuel S. Smalkin and Rollins, Smalkin, Weston & Andrew and Cullen & Clark on the brief, for other appellees.
   Thompson, J.,

delivered the opinion of the Court.

On January 26, 1973, appellant, Russell A. Taylor, employed as a truck driver for appellant, Fisher Trucking Corporation, was involved in a serious highway accident with numerous individuals near Oxon Hill, Maryland. One of the individuals sued for personal and property injury. He joined appellant, Richard A. Fisher, in the suit as well as Taylor and the corporation.

At the time of the accident, the Fisher Trucking Corporation was insured by the appellee, Northland Insurance Company. The insurance policy had been arranged for Fisher by appellee, Maxwell C. Tyler, as agent for the appellee, The Hardester Corporation. When the accident was reported to Northland, it disclaimed liability and refused to defend the tort actions which arose as a result of the accident. The disclaimer was based on an exclusion in the policy for situations in which one of Fisher’s trucks was pulling a trailer belonging to someone else.

As a result of Northland’s disclaimer, appellants filed a suit at law for a Declaratory Judgment with an election of a jury trial in the Circuit Court for Worcester County. The case was later removed to the Circuit Court for Dorchester County for trial. Named as defendants were Tyler, Hardester, Northland and the individuals involved in the accident.

Due to the importance to our decision of the substance of the allegations in appellants’ declaration, we shall quote relevant parts.

COUNT I

“4. Defendant MAXWELL C. TYLER was an agent and employee of defendant THE HARDESTER CORPORATION, an insurance agency authorized to sell and write automobile liability insurance policies for defendant NORTHLAND INSURANCE COMPANY. Defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION held themselves out to the public as experts, specialists and advisors in the insurance field and habitually do business in Worcester County, Maryland.

“5. Prior to November 1971, defendant MAXWELL C. TYLER solicited the insurance business of plaintiffs RICHARD A. FISHER and FISHER TRUCKING CORPORATION. Defendant MAXWELL C. TYLER met with plaintiff RICHARD A. FISHER at the latter’s place of business in Pocomoke City, Worcester County, Maryland, and reviewed the nature of his business operation. Plaintiff RICHARD A. FISHER fully apprised defendant MAXWELL C. TYLER of the nature of his business operation, provided his existing insurance policies for review, specifically advised defendant MAXWELL C. TYLER that his tractors frequently pulled trailers owned by his customers and not owned by him or FISHER TRUCKING CORPORATION, and requested that he obtain liability insurance to provide coverage whether his tractor was pulling a trailer owned by him or FISHER TRUCKING CORPORATION or a trailer owned by any customer.

“6. Defendant MAXWELL C. TYLER represented to plaintiff RICHARD A. FISHER that he would obtain an automobile liability insurance policy containing the coverage requested by plaintiff. Pursuant thereto, defendant MAXWELL C. TYLER, on behalf of his employer, THE HARDESTER CORPORATION, caused a policy of automobile liability insurance to be issued with NORTHLAND INSURANCE COMPANY, effective November 1, 1971 through November 1, 1972. At the expiration of that policy, a renewal policy containing substantially the same coverage and designated as policy number L 07-58-93, a copy of which is attached as Exhibit 1, was issued for the period November 1, 1972 through November 1, 1973.

“7. Contrary to the representations of defendant MAXWELL C. TYLER, he negligently failed to obtain as part of the policy coverage an endorsement commonly known as a ‘hired automobile’ endorsement to provide coverage for the plaintiffs while a tractor described in the aforesaid policy was pulling a trailer owned by a customer of plaintiffs, failed to advise plaintiffs of his failure to obtain the endorsement, and failed to advise plaintiff RICHARD A. FISHER of an exclusion in the policy purporting to apply when a tractor described in the policy is pulling a nonowned trailer. Plaintiff RICHARD A. FISHER relied on the purported expertise advice and representations of defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION to obtain the coverage requested and required by the nature of plaintiff’s business operations.

“10. As a result of the aforesaid negligence of defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION and resulting disclaimer of coverage to plaintiffs, plaintiffs have incurred and will continue to incur substantial expenses and counsel fees in connection with their defense of the aforesaid claims and suit, and will suffer irreparable damage in the event judgments for damages arising out of the accident are entered against them. Plaintiffs allege that such losses are the result of negligence on the part of defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION, without any negligence on the part of the plaintiffs contributing thereto.”

COUNT II

“1. Defendant MAXWELL C. TYLER, as agent and employee of defendant THE HARDESTER CORPORATION, in consideration of the promise of plaintiffs to pay the premiums on the insurance policy, promised plaintiff RICHARD A. FISHER that he would obtain an automobile liability insurance policy which would cover plaintiffs for liability which would arise out of an automobile accident whether a tractor described in the policy was pulling a trailer described in the policy or a trailer owned by a customer.

“2. Defendants breached their agreement to obtain the policy with the coverage as promised, although the premium was paid and all conditions of the policy met by plaintiffs.”

COUNT III

“1. Defendant THE HARDESTER CORPORATION is an insurance agency representing NORTHLAND INSURANCE COMPANY, with general agency authority to solicit business from members of the public, to bind coverage, and to issue policies of NORTHLAND INSURANCE COMPANY on their behalf, and were acting on behalf of defendant NORTHLAND INSURANCE COMPANY in advising plaintiffs and obtaining the insurance policy.

“2. The negligence, misrepresentation and breach of contract by defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION are imputed to defendant NORTHLAND INSURANCE COMPANY, as their principal.”

COUNT IV

“1. Defendant NORTHLAND INSURANCE COMPANY issued policy number L 07-58-93 to FISHER TRUCKING CORPORATION effective November 1,1972 through November 1, 1973.

“2. Defendant NORTHLAND INSURANCE COMPANY breached said policy by disclaiming coverage to plaintiffs for the aforesaid accident, refusing to defend the suit filed against the plaintiffs or to pay claims asserted against them or to pay expenses and costs in connection with their defense of the aforesaid action.”

At the conclusion of each count, appellants asked the court to declare that one or all of the appellees were liable to them for any judgment rendered in conjunction with the accident to the extent of the monetary limit of the policy issued by Northland, and to stay a personal injury suit instituted by one of the nominal defendants against the appellants.

On the day before trial began, the appellees moved to transfer the case to equity. The motion was granted over the objection of the appellants.

Trial commenced on April 11, 1974 before the trial court without a jury. The trial court found for the appellees and denied all requested relief. From that decision the appellants prosecute this appeal.

We hold that the trial court erred in transferring the case from law to equity. We do not reach the question of the propriety of denying a jury trial in a declaratory judgment action properly in equity. See, however, Village Books, Inc. et al. v. State’s Attorney for Prince George’s County, 263 Md. 76, 282 A. 2d 126 (1971).

Declaratory judgments can be obtained both at law or in equity. Himes v. Day, 254 Md. 197, 254 A. 2d 181 (1969). The determination of whether the action is properly at law or in equity must be made by an examination of the nature of the claim asserted and the relief requested. In this regard see Glorius v. Watkins, 203 Md. 546, 548, 102 A. 2d 274 (1954):

“If the proceeding is of a legal nature, it does not become equitable when cast in the form of a demand for a declaratory decree; just as a remedy purely legal cannot be sought in an equity court merely by invoking Article 31 A.”

The appellees claim that appellants’ cause of action was really one for reformation of the insurance contract and that consequently the case was properly transferred to equity. A review of the declaration as quoted above however shows the fallacy of the appellees’ position. In Count I, appellants claim that the appellee, Tyler, said he would obtain insurance covering the transportation of trailers owned by other persons; that he negligently failed to do so; that he failed to notify them that the policy in fact had an exclusionary clause to cover hauling of other trailers; that the appellants relied on the expertise of Tyler and Hardester and that as a result of the appellees’ negligence, they should be held accountable to the appellants to the extent of the monetary policy limit. Count II alleges that the appellees, Tyler and Hardester, breached their contract to obtain insurance coverage as requested by appellant. Count III alleges that the “negligence, misrepresentation and breach of contract” by Tyler and Hardester should be imputed to their principal, Northland. Count IV alleges that appellee Northland breached the insurance policy by disclaiming liability to the appellants. There are no allegations of fraud in any of the counts.

Looking at these four counts it is clear to us that the appellants were not asking the court to reform the insurance contract. Counts II and IV deal exclusively with alleged breaches of contracts which have long been recognized as legal actions. Tidewater Express Lines, Inc. v. Freight Drivers & Helpers Local Union No. 557, 230 Md. 450, 187 A. 2d 685 (1963). That the counts were inconsistent is of no importance. Md. Rule 301 d. Counts I and III allege negligence on the part of Tyler and Hardester in failing to obtain the requested insurance and pray that they as well as Northland be held liable to the monetary limit on the policy. These allegations in no way request reformation of the insurance contract; they merely allege an independent cause of action for negligence as recognized in Lowitt v. Pearsall Chemical Corp., 242 Md. 245, 219 A. 2d 67 (1966). In Lowitt the court, citing Couch, Insurance 2d, § 25:37 said at 254:

“ ‘An agent, employed to effect insurance, must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his profession or situation, in doing what is necessary to effect a policy, in seeing that it effectually covers the property to be insured, in selecting the insurer and so on.’ ”

The Court, citing Couch, Insurance, § 481 further added at 254:

“ ‘As a general rule, a broker or agent who, with a view to compensation for his services undertakes to procure insurance on the property of another, but fails to do so with reasonable diligence, and in the exercise of due care, or procures a void or defective policy * * * is personally liable to his principal for any damages resulting therefrom. In fact, a broker taking money to secure insurance, who unjustifiably fails to secure the same, or to make an effort to do so, becomes liable, in case of loss, to pay as much of the same as would have been covered by the policy had it been secured.’ ”

In Lowitt, the Court also cited with approval the following passage from Hampton Roads Carriers v. Boston Insurance Co., 150 F. Supp. 338, 343 (D. Md. 1957):

“ ‘An insurance agent who undertakes to secure a specified coverage is liable in damages to the applicant for failure to procure such insurance, and this liability extends to negligence as a result of which the specified risk is not included in the policy.’ ”

The appellees also claim that the transfer of the instant case to equity was proper to prevent a multiplicity of suits. The appellants joined as nominal party defendants in the instant suit all the individuals involved in the accident and their insurance companies. Maryland has never decided that avoidance of multiplicity of suits is a ground alone sufficient to invoke equity jurisdiction. Polansky v. Orlove, 252 Md. 619, 625, 251 A. 2d 201 (1969); Bachman v. Lembach, 192 Md. 35, 41, 63 A. 2d 641 (1949). We do not need to decide the question now because we cannot see how the number of suits would be increased whether the present case proceeds at law or in equity.

The appellants asked the court to stay a pending personal injury suit filed against them pending the result of the declaratory judgment action. Such a claim is permitted at law. Md. Rule BF40. We need not and do not pass upon the propriety of granting an injunction in the instant case.

Appellees claim that the allegation of estoppel contained in appellants’ amended Bill created equity jurisdiction. We do not reach the merits of this question because the estoppel claim was not inserted by appellants until after the case had been transferred to the equity side. At that point appellants had no option but to proceed in equity. Farmers’ & Merchants’ Bank v. Harper, 153 Md. 128, 132, 137 A. 702 (1927).

Appellees finally claim that the appellants waived their right to challenge the equity jurisdiction of the lower court and their right to a jury trial. We see no evidence of waiver. The appellants seasonably objected to the transfer to equity and their prosecution of the case in equity after the transfer was not a waiver. Farmers’ & Merchants’ Bank v. Harper, supra. The appellants had no choice but to proceed in equity, which they did, until a final decree was rendered against them. This appeal followed.

Under Md. Rule 515 the transfer of a case from law to equity, or conversely, is authorized only where the relief requested cannot be granted in the particular court in which the case is brought. From our discussion it is apparent the appellants could have secured all relief requested at law, assuming their allegations are supported by the facts. Thus, there was prejudicial error in the transfer which denied the appellants their right to a jury trial.

Judgment reversed.

Case remanded for new trial.

Appellees to pay the costs.

      . Count V which sought a declaration against the Hartford Insurance Group, was eliminated by the granting of Hartford’s Motion for Summary Judgment which was not opposed by the appellants.


text:
    HENRY P. STRUZINSKI et ux. v. MARY ANGELA BUTLER HENRY P. STRUZINSKI et ux. v. ANGELA MONROE BUTLER
    [No. 493,
    [No. 578,
    September Term, 1974.]
    September Term, 1974.]

      Decided February 20, 1975.

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

      Richard C. Murray for appellants.
    No appearance or brief filed for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The appellate case load continues to increase. Here we are presented with three appeals in two cases concerning one child. The appellants are the maternal grandparents of the child who is the subject of concern. The child’s mother is the appellee.

Appeal No. 493, Facts

Appellants sought custody by petition filed in the Circuit Court for Baltimore County on December 5, 1972. Although custody of the child had been awarded to the mother by the Circuit Court of Baltimore City at the time of her divorce, the appellants’ petition noted that the child now resided with them in Baltimore County, and that both of the child’s parents’ whereabouts were unknown. Temporary custody was awarded appellants, while appellee and her estranged husband were ordered to show cause why the relief sought should not be granted. On January 7, 1974 a similar order was issued. Three weeks later appellee filed a Motion Raising Preliminary Objection attacking venue in the Baltimore County Court. She recited that custody emanated from Circuit Court No. 2 of Baltimore City. Although the petition recited facts manifestly indicating a change in residential circumstances, the Baltimore County Court granted the motion and dismissed the appellants’ petition for custody for reasons hereafter discussed. An appeal was entered.

Appeal No. 578, Facts

Appellee then filed a Petition for Contempt in Circuit Court No. 2 of Baltimore City, “for violating the Decree of Divorce of August 4, 1972.” Appellants’ answer offered among other reasons that Appeal No. 493 was pending, that appellee had abandoned the child and that there was no order of court directed against them for which they could be in contempt. That petition has been left unresolved.

Appellee then filed a Petition for Writ of Habeas Corpus. This was also filed in the Circuit Court of Baltimore City. The petition is peripherally significant due to its accompanying notarized “Statement of Facts” wherein the appellee attests to being “a resident of Baltimore County . . . .”

Following argument by counsel, apparently heard jointly, the judge said:

“I guess we have two petitions, one for contempt and one for a writ of habeas corpus. I will sign an Order when submitted.”

The order he signed was for issuance of a writ of habeas corpus.

An order for stay of execution pending appeal was obtained upon petition precipitously filed by appellants who posted the required bond. Appellee has filed an appeal from that order; however, we note parenthetically that she has neither appeared before this Court nor submitted a brief or briefs to assist us.

Resolution

We will reverse the grant by the Circuit Court for Baltimore County of the Motion Raising Preliminary Objection to venue. Our reversal of the county court’s decision on venue which precipitated the Baltimore County Appeals obviates discussion of the issues raised in No. 578, save in general terms and for factual references.

No. 493

Md. Code, Art. 16, Sec. 66 (b) which section was in effect at the time the county opinion was rendered, read as follows:

“(b) A bill or petition filed pursuant to subsection (a) of this section relating to the custody, guardianship, maintenance and support of any child or children may be filed in the county or City of Baltimore wherein the father or the putative father or the mother or the child or children reside or are found.”

Following the Legislative enactment of the Code Revision Commission’s recommendations, that section is now found under the “Subtitle 2-Venue” of the Courts and Judicial Proceedings Art., § 6-202:

“In addition to the venue provided in § § 6-201 and 6-203 the following actions may be brought in the indicated county:
(5) Action relating to custody, guardianship, maintenance, or support of a child — Where the father, putative father, or mother of the child resides, or where the child resides;”

The county chancellor noticed that the original divorce proceedings between the child’s father and mother had taken place in the Circuit Court of Baltimore City and had resulted in the award of custody to the mother (appellee in No. 493). He then dismissed the contention that the venue section quoted infra applied, saying:

“This Court is of the opinion that said section establishes venue in an original action for custody, but not in a case where a court of competent jurisdiction has passed a decree with respect to custody subject to further Order of that Court. The language in the case of Berlin v. Berlin, 239 Md. 52, at pages 56-57, is pertinent.

‘Although we recognized the domicile rule set forth in the Restatement, Conflict of Laws, §117, in Naylor v. Naylor, 217 Md. 615, 143 A. 2d 604 (1958) and in Zouck v. Zouck, 204 Md. 285, 104 A. 2d 573 (1954), we were not concerned in either of those cases, as we are here, with the modification of an award of custody made by a court which by its decree (pursuant to statute) had reserved the right to make further orders. Where we have said that jurisdiction to determine custody depends on the domicile of the child we were concerned with the power of the court to award custody in the first place.
‘The majority of courts in other states have adopted the continuing jurisdiction rule. We shall do likewise. The theory of this rule is that when a custody decree is subject to subsequent modification for any reason (either under the provisions of a statute or the terms of the decree itself), the jurisdiction of the court in the awarding state should remain notwithstanding the removal of the child to another state.’
There should not be two courts dealing with the same subject matter who might pass conflicting Orders. The Circuit Court No. 2 of Baltimore City has continuing jurisdiction over the custody of the child involved and if any change in custody is deemed appropriate, that Court and that Court alone should determine an application for such change. For the reasons stated, this Court is of the opinion that the Motion Raising Preliminary Objection filed on behalf of the natural mother of the child is meritorious and should be granted.”

Keeping in mind that venue, and not jurisdiction, is here in question we have no difficulty in holding that the Circuit Court for Baltimore County was a proper custodial arbiter for two reasons, only one of which was made clear in the record.

Although Berlin treated the question of jurisdiction, the county chancellor relied upon what he thought to be the reasoning of that case and applied it to the venue question before him. We think he misconstrued Berlin by interpreting it to mean that the first court in which jurisdiction [venue] is obtained preempts all other custody proceedings elsewhere. On the contrary, the question dealt with by the Court in Berlin was whether the Maryland court which made the original custody award retained jurisdiction to modify it even though the mother, who was awarded custody, had changed her domicile to New York. That portion of Berlin quoted by the chancellor adopting the continuing jurisdiction rule was not intended to preclude jurisdiction properly obtained elsewhere.

Just one year after the Court of Appeals decided Berlin, it had occasion to elaborate on it. The Court made it perfectly clear that Berlin was not intended to grant exclusive jurisdiction to the court deciding a custody case:

“It is perhaps incumbent upon the Court to distinguish the case at bar from our opinion in Berlin v. Berlin, supra, wherein this Court, speaking through Judge Horney, adopted the ‘continuing jurisdiction rule.’ In that case at the time of the original award of custody of the children to the mother, she was domiciled in Maryland and the children, who were never before the court, were residing in New York. The Maryland court in awarding custody did so subject to the further order of the court. ... It should be pointed out that this Court in Berlin made no attempt to rule that the courts of the state of New York did not, or would not, under proper circumstances have jurisdiction to decide custody by virtue of domicile. Indeed, Professor Stansbury in his article ‘Custody and Maintenance Law Across State Lines,’ 10 Law & Contemp. Prob., 819, 831-32 (1944), concludes:
‘A court of any state that has a substantial interest in the welfare of the child or in the preservation of the family unit of which he is a part, has jurisdiction to determine his custody, and this jurisdiction may exist in two or more states at the same time.’ ” [Emphasis added] Taylor v. Taylor, 246 Md. 616, 619-620.

The Motion should have been denied and the custody question decided in Baltimore County.

Because the chancellor mistakenly decided that Art. 16, § 66 (b) did not apply, he had no occasion to determine whether the factual prerequisites for venue in Baltimore County had been met. Nevertheless, the record revealed that the child was residing in Baltimore County with the appellants. The affidavit of the mother, which accompanied her later Petition for Writ of Habeas Corpus in No. 578, verifies that she, too, was a county resident. Her notarized Statement of Facts begins:

“1. That the Petitioner is a resident of Baltimore County, Maryland, and the natural mother of Mary Arlene Monroe, born August 11, 1965, as the result of the Petitioner’s marriage to William Wesley Monroe.”

Even if we assume, solely for purposes of deciding this issue, that the child’s physical custody by appellants was wrongful and thus eliminated the residence of the child as a sufficient basis for application of Art. 16, § 66 (b), cf., Renwick v. Renwick, 24 Md. App. 277, we are left with the principle that the child’s domicile is the same as the person to whom custody had been awarded, in this case the mother. Miller v. Miller, 247 Md. 358, 364. Since appellee’s residence was also Baltimore County, the county court had venue under Art. 16, § 66 (b). Viewed from any perspective, Baltimore County was the appropriate place to determine custody.

No. 578, Habeas Corpus and Child Custody

The custody issue having been properly posed to the Circuit Court for Baltimore County, we need only note that the order awarding temporary custody to appellants and directing appellee to show cause remains viable. Thus the child cannot be considered under any improper restraint. The granting of the Petition for Writ of Habeas Corpus by the Baltimore City Court (Appeal No. 578) was premature at best and unwarranted in any event.

The Court of Appeals in deciding a custody dispute between maternal and paternal grandparents said:

“Grandparents have no ‘right’ to custody; in these domestic tragedies they unfortunately have only burdens and responsibilities which they assume on account of the parent’s misconduct or misfortune. The proper jurisdiction over such a contest is not at law, by habeas corpus, but in equity under Art. 16, sec. 85.” [Emphasis added] Burns v. Bines, 189 Md. 157,164.

Before arriving at that conclusion the Court reviewed the history of the uses of habeas corpus especially as related to child custody. While the Court did not forbid its use in proper circumstances, it pointed out that the Legislative sanction once given to its use in custody cases by Md. Code, Art. 42, Sec. 21, was repealed in 1945, leaving conventional equity proceedings as the normal process for the determination of custody questions. “The purpose and effect of the repeal of section 21 of Article 42 was to abolish a duplicate jurisdiction, . . . .” Burns, 189 Md. at 163. Because habeas corpus will not lie in an unexceptional custody proceeding, the Circuit Court of Baltimore City erred in granting the petition.

Stay of Execution, No. 578

Although the need to treat the issues becomes progressively more remote, we will note in conclusion that the judge who granted the stay of execution of the Writ of Habeas Corpus did so properly. Since we reverse the granting of the Writ, the stay of execution has served its limited purpose.

No. 492

Order of the Circuit Court for Baltimore County dated July 16, 1974, reversed.

No. 578

Order upon Petition for Writ of Habeas Corpus by the Circuit Court No. 2 of Baltimore City dated July 31, 1974, reversed.

Costs to be paid by appellee.