author: Couch, J.,

text:
    CITY OF SALISBURY et al. v. JOSEPH L. McCOY
    [No. 503,
    September Term, 1980.]

      Decided January 8, 1981.

      The cause was argued before Morton, Moylan and Couch, JJ.

      Edgar A. Baker, Jr., with whom was Sheldon B. Seidel on the brief, for appellants.

      H. Michael Hickson for appellee.
   Couch, J.,

delivered the opinion of the Court.

Joseph L. McCoy, the appellee, was injured while working for the City of Salisbury, appellant, and he subsequently filed a claim for benefits under the Maryland Workmen’s Compensation Act. After a hearing the Workmen’s Compensation Commission found that the appellee did not sustain an accidental injury arising out of and in the course of his employment. An appeal was taken and the matter was tried before a jury in the Circuit Court for Wicomico County. A verdict favorable to the appellee was returned and thereafter the employer and insurer filed the instant appeal. As we disagree with appellants’ position, we shall affirm.

The facts in this case are largely uncontradicted. The City of Salisbury employed the appellee as a dump truck driver, generally hauling construction material to job sites or trash to a treatment plant. In late October or early November of 1977 a new dump body was installed on the City truck which McCoy had been assigned to drive. Operation of the truck’s dumping mechanism required that the driver open the truck’s tailgate by pushing down on a lever located outside the driver’s compartment. To secure the tailgate after dumping, this lever was pulled back up.

A dump truck driver could usually operate a tailgate lever with one hand, by reaching out of the driver’s window. After the new dump body was installed, the appellee inspected his truck and discovered that the new lever was under abnormal tension and thus was difficult to operate. Pulling up on the lever was particularly hard, according to the appellee who had to leave his seat and use two hands to raise the new lever.

Before driving the renovated truck, McCoy advised his employer’s maintenance supervisor of the lever’s tightness. The supervisor and three other mechanics examined the mechanism, operated it using two hands, and assured the appellee that the lever would eventually loosen. The appellee then drove the truck several times without apparent incident.

On November 29, 1977, McCoy used the truck to dump a load of waste material for his employer. On that occasion the tailgate opened without much difficulty. To close the tailgate, however, the appellee had to get out of the truck and stand on the truck’s running board. McCoy testified that:

"With S-5 [the dump truck] I had to do it like that. And I bent over like this, and gave a crank to pull the tailgate lever up, and only this time instead of going up and flipping back into place, it kicked back down on me. In other words, she pulled me down. I felt a terrific pain in my back that shot down my left leg. I gave a yell, and I cussed, and I told Walter Banks [McCoy’s co-worker].”

In the afternoon of November 29, 1977, the appellee informed the maintenance supervisor of the problem with the tailgate lever and of the injury the appellee sustained. The supervisor subsequently adjusted the lever, but it continued to be tight.

The appellee sought medical attention for his injury. Initially his physician prescribed analgesics and bed rest. On March 3,1978, however, the appellee underwent surgery which included a hemilaminectomy and a bilateral-lateral fusion.

On January 24, 1980, a jury of the Circuit Court for Wicomico County found that McCoy sustained an accidental injury arising out of and in the course of employment on November 29, 1977, thus allowing his claim for workmen’s compensation.

I. Denial of Directed Verdict

The City of Salisbury and the United States Fidelity & Guaranty Company, appellants, contend that McCoy’s injury occurred while he was performing his regular work, without the existence of any unusual or extraordinary condition. Therefore, the employer and insurer argue, appellee’s injury does not constitute an "accidental injury” within the meaning of the Workmen’s Compensation Act, and the circuit court erred in not granting the appellants’ motion for a directed verdict. We do not agree.

When the circuit court ruled on the appellants’ motion for a directed verdict, the court had to consider the evidence and its inferences in the light most favorable to the appellee. Montgomery Ward and Company v. McFarland, 21 Md. App. 501, 319 A.2d 824 (1974). Before submitting the case to the jury, the court had to find that appellee’s evidence was legally relevant and competent, and a rational conclusion could be drawn which would be favorable to the appellee. Bullis School v. Justus, 37 Md. App. 423, 377 A.2d 876 (1977). The trial judge gave the appellee the "benefit of the evidence,” and ruled that the evidence and its fairly deducible inferences tended to support the appellee’s case. Specifically, the judge found in McCoy’s uncontradicted testimony, adequate justification to deny appellants’ motion for directed verdict and to allow the jury to weigh the evidence.

II. Accidental Injury

To conclude that McCoy’s injury was compensable under the Workmen’s Compensation Act, Md. Code Art. 101, § 15, the jury would have to find that his injury was "accidental.” Holbrook v. GM Assembly Division, 15 Md. App. 425, 430, 291 A.2d 171 (1972). The jury concluded that the appellee’s injury was accidental, but the appellants contend that this conclusion was premised upon evidence which "did not rise above speculation, hypothesis and conjecture.”

We do not quarrel with the requirement that an employee’s injury must be accidental in order to be compensable. We disagree with the appellants, however, in their characterization of the appellee’s evidence, for we are persuaded that the jury could infer that McCoy suffered an accidental injury.

Under Maryland law a compensable, accidental injury must result from an unusual exertion or strain or some unusual condition in the employment. Commercial Transfer v. Quasny, 245 Md. 572, 227 A.2d 20 (1967). Clarifying the use of the phrase in workmen’s compensation cases, the Court of Appeals said in State Roads Commission v. Reynolds, 164 Md. 539, 546, 165 A. 475 (1933):

" 'Accidental,’ so used, may mean any fortuitous, casual, and unexpected happening which causes personal disability or death which results from some unknown cause, or from the unexpected add unusual operation of a known cause; and an accident may be said to arise 'out of an employment’ when it results from conditions and circumstances reasonably incident to it.” [Emphasis added. ]

Applying this definition in various circumstances, the Court of Appeals has determined that an accidental injury did not occur when a worker died from chronic exposure to varnish fumes, Stancliff v. H. B. Davis Co., 208 Md. 191, 117 A.2d 577 (1955), and when a mechanic suffered a hernia while forcing a stuck wheel onto a truck axle, Jackson v. Ferree, 173 Md. 400, 196 A. 107 (1938). Citing the definition from Reynolds, supra, the Court of Appeals in Jackson, supra, noted that manual workers necessarily received jars to the body, but that consequent injuries would not be deemed "accidental injuries” in the absence of any undue strain or stress. Jackson, supra at 403.

The Court of Appeals has refused to find an injury to be accidental when that injury results from "a normal incident” of an employee’s work. Thus, in Rieger v. Washington Suburban Sanitary Commission, 211 Md. 214, 216, 126 A.2d 598 (1956), a pipefitter was denied compensation for back pain sustained while he performed the same procedure that he had used for two months prior to his injury. Similarly, a stevedore could not be compensated for a hernia resulting from his lifting of a tin plate in the ordinary course of his work. Atlantic Coast Shipping Co. v. Stasiak, 158 Md. 349, 148 A. 452 (1930).

The Stasiak decision, cited by the appellants as analogous to the present case, has been distinguished from the circumstances in which a miner attempted to move a large rock in the course of his employment, but was injured by a sudden slippage. Waddell George’s Creek Coal Co. v. Chisholm, 163 Md. 49, 161 A. 276 (1932). Interpreting the significance of this additional cause of the injury, Chief Judge Bond stated:

"The first fellow workman to reach Chisholm at the .time moved the stone apparently without difficulty. But in the further testimony that there was a slip, and the attribution of the injury to that slipping, meager as that testimony is in respect to details, there seems to this court to be sufficient to differentiate this case from that of Stasiak, and to provide the evidence of accident necessary to cause the case on the facts to be referred to the jury. The slipping, if it caused the injury, seems to constitute such an unusual happening, coming by chance or without design, and taking place unexpectedly and unintentionally in the course of the work and as a result of it, as would be the mark of an accident within the meaning of the act. Victory Sparkler Co. v. Francks, 147 Md. 368, 381, 128 A. 635 [(1925)]. And, as has been stated, it seems to us that, in the injured man’s statements, as repeated by the witnesses, the jury might find it was meant that the slipping caused the injury. Upon that occurrence, he said, the pain struck him like a knife. It was not stated that the slipping imposed an unusual strain upon him, but some such connecting fact may be inferred if the slipping did cause the injury. And, as this court has concluded, there was sufficient testimony for a jury’s finding that it did cause the injury. Prayers of the appellant for direction of a finding by the jury that there was no accident were therefore properly refused.” Id. at 55.

The harmful influence of an unusual strain, caused by a slippage, or contributing damage caused by malfunctioning machinery, may make an employee’s injury accidental. In Foble v. Knefely, 176 Md. 474, 6 A.2d 48 (1939), the improper adjustment of a worker’s sewing machine contributed to her injury, and thus the injury was deemed accidental. Likewise the unusual strain imposed upon a repairman when he attempted to disconnect a corroded pipe permitted the rational conclusion that the employee suffered an accidental injury, in Bethlehem Steel Co. v. Golombieski, 231 Md. 124, 188 A.2d 923 (1963).

In the present case, a jury could reasonably infer from the testimony that the appellee worked in an "unusual condition” during November of 1977. McCoy’s operation of a new dump truck mechanism that required him to use unique procedures, in contrast to normal methods, could constitute an unusual condition. Having been well-informed of McCoy’s working condition, the jury decided that the condition was unusual. We do not dispute their conclusion.

Additionally, the jury could and did reasonably conclude from the testimony that the appellee received an unexpected strain from the singular reaction of the tailgate lever. In Fisher Body Division v. Alston„ 252 Md. 51, 249 A.2d 130 (1969), a compensable, accidental injury was held to have occurred when an automobile worker twisted his back by exerting more than the usual amount of effort needed to loosen a clamp. Previously, the Court of Appeals in Baltimore & Ohio R.R. Co. v. Zapf, 192 Md. 403, 64 A.2d 139 (1949), affirmed a jury’s award of compensation to a rolling mill worker injured by the "mischance” of having a heavy axle strike against his hand tool. The worker had to lift the axle back onto its rollers, compounding his injury.

As in Alston and Zapf, supra, the claimant in the present case had to use extraordinary effort in wielding his employer’s equipment. Moreover, in the case at bar, and in each of its precedents, the employee’s effort presaged a unique consequence. McCoy testified that the tailgate lever "kicked back” at him as he tried to raise it, causing his injury. The jury properly attributed the appellee’s accidental injury to the lever’s recalcitrance.

Therefore we hold that the circuit court did not err in submitting the case to the jury, and there was more than adequate evidence to support its conclusion.

Decisions from other jurisdictions support our holding on the issue of accidental injury.

When a sawmill employee assisted a co-worker who operated a defective windlass, a resultant injury to the employee was held compensable under New Hampshire’s workmen’s compensation law in West v. Cheney, 190 A. 710 (N.H. 1937). Speaking for the Supreme Court • of New Hampshire, Justice Branch found:

"There was evidence to sustain the conclusion that the plaintiff was injured while endeavoring to cope with a situation caused by 'a defect or insufficiency’ in the condition of the defendant’s machinery by a method known to and sanctioned by him. If in so doing he acted within the scope of his employment and was not shown to be guilty of contributory negligence, his- right to recover under the statute would be clear. [Citation omitted.] These two issues were properly submitted to the jury.” Id. at 712.

The Florida Supreme Court reversed an order of Florida’s Industrial Commission, and awarded benefits to a dump truck driver who suffered severe back pain after pulling out the tailgate of his employer’s truck, in Strickland v. Al Lander’s Dump Trucks, Inc., 170 So. 2d 445 (Fla. 1964). Similarly, a New York intermediate appellate court held that a Mack truck driver deserved compensation for a broken wrist sustained while cranking a truck. Randazzo v. Kasten, et al., 279 N.Y.S. 631 (App. Div. 1935). More recently, Utah’s highest court granted a worker compensation for burns suffered when the worker attempted to start his employer’s truck by pouring gasoline into the carburetor. The court’s decision- in Moser v. Industrial Commission of Utah, 440 P.2d 23 (Utah 1968), reversed the commission’s denial of benefits.

These cases demonstrate the rationale of the courts in finding that the harm inflicted upon employees by malfunctions of equipment, used in exceptional circumstances, constitute accidental injuries.

III. Presumption of Correctness

The appellants also argue that the decision of the Workmen’s Compensation Commission in the present case was prima facie correct, and that the appellee did not overcome this presumption. Although a factual determination of the Commission is presumably accurate, Symons v. R. D. Grier & Sons Co., 10 Md. App. 498, 271 A.2d 398 (1970), the presumption may be rebutted by new evidence presented to the circuit court, or by persuading the trier of fact to accept a different inference from the evidence. ABC Day Care Center, Inc. v. Browne, 17 Md. App. 470, 302 A.2d 708 (1973).

By our review of the record we find sufficient evidence from which the jury could reasonably infer that the appellee sustained an accidental injury, and could responsibly reverse the Commission’s determination.

Judgment of the Circuit Court afñrmed.

Costs to be paid by appellants.

      . Maryland Code (1957, 1979 Repl. Vol., 1980 Cum. Supp.), Art. 101.

      . This English noun, meaning "defiance” and "difficulty in operating,” has an appropriate etymology for this case, being derived from the Latin verb recalcitrare, to kick back.


source: Caselaw Access Project

author: Wiener, J.,

license: Public Domain

text:
    BETHESDA ARMATURE COMPANY, INC. et al. v. PATRICIA ANNE GORMLEY SULLIVAN et al.
    [No. 510,
    September Term, 1980.]

      Decided January 8, 1981.

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

      Don F. Ryder, Jr., with whom were Andrew E. Bederman and Schroeder & Ryder on the brief, for appellants.

      William T. Wood, with whom were Wood & Rohrbaugh on the brief, for appellee Sullivan. Hugh E. Donovan, with whom were Donovan & Nash on the brief, for appellee Montgomery County, Maryland.
   Wiener, J.,

delivered the opinion of the Court.

The accident giving rise to this litigation occurred on June 21, 1977. Patricia Anne Sullivan, appellee, had brought an electric motor to appellant Bethesda Armature Company (Bethesda) to have it repaired, and was returning on the 21st to retrieve it. She parked her station wagon directly in front of Bethesda’s place of business at 6811 Reed Street, and, having transacted her business, carried the motor back to her car and placed it inside through the rear tailgate. The driver’s side of the car was next to the curb, and it was in the course of rounding the left rear of the car on her way to enter the vehicle that she slipped and fell.

The accident occurred, she said, when she stepped up on a curb and it crumbled and gave way, causing her to lose her balance. She attempted to steady herself with her other foot, but it too slipped because of the deteriorated condition of the concrete. It is clear that the area in which Ms. Sullivan fell was part of the public walkway that separated Bethesda’s building from Reed Street, but that it was a part of that walkway initially constructed by Bethesda’s lessor as a driveway/apron; and therein lies the legal issue forming the basis of this appeal.

Ms. Sullivan and two of her adult children sued Montgomery County, the local body politic responsible for maintaining the public walkways, as well as the owners, lessee, and sublessee (Bethesda) of the abutting property, alleging, alternatively, that each had a duty to maintain the area in which she fell. Various cross-claims were filed among the codefendants.

At the conclusion of the evidence, all defendants moved for directed verdict, the county and the property owners/lessees each disclaiming any responsibility to maintain the area in question. All motions were denied, and the entire claim by Ms. Sullivan against all defendants was submitted to the jury. The jury returned a plaintiffs verdict for $27,000, but only against the property owners and lessees, who are the appellants here. That verdict served, of course, to exonerate the county. When the court overruled appellants’ motion for judgment N.O.V., they appealed, claiming error in the denial of their motions for directed verdict and judgment N.O.V.

In considering such motions, of course, both the trial court (and on review this Court) must consider the evidence in a light most favorable to the party against whom the motion is made, in this case Ms. Sullivan. See Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 328 (1978). Here, although some of the evidence was in conflict, the truly relevant part of it was not. We are dealing essentially with a question of law, one that involves the interplay among three basic propositions and a determination of which of them will control.

The first proposition, well settled in the law, is that a storekeeper or property owner owes a duty to his business invitees to maintain his premises in a reasonably safe condition and to give warning of latent or concealed perils. See Lloyd v. Bowles, 260 Md. 568, 572 (1971). This duty extends not only to the store itself, but as well to such area abutting it as is under the storekeeper’s control and likely to be used by his customers. See Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md. App. 659, cert. den. 286 Md. 745 (1979).

The second proposition is equally well settled — that where the area in question is part of a public walkway, the duty of care and maintenance (and the concomitant liability arising from the negligent performance of that duty) generally rests with the local body politic and not with the abutting property owner. See, for example, Matyas v. Suburban Trust Co., 257 Md. 339 (1970); Weisner v. Mayor of Rockville, 245 Md. 225 (1967); Citizens Savings Bank v. Covington, 174 Md. 633 (1938). This is a basic common law principle that has frequently been confirmed by statute or local ordinance.

The third proposition is in the nature of an exception to the second and a reaffirmation of the first. Occasionally referred to as the "special use” doctrine, it holds that if an abutting owner, by virtue of some extraordinary use that he makes of the walkway, creates a special hazard on it, he and not the body politic is answerable for any damage caused by that special hazard. See Citizens Savings Bank v. Covington, supra, 174 Md. 633; Restatement of Torts 2d, § 350.

The precise question is whether the nature and use of the area in which Ms. Sullivan fell, as disclosed by the evidence most favorable to her, was such as to invoke the application of this "special use” doctrine. Some background is in order.

The premises in question — 6811 Reed Street — was first occupied by Bethesda in 1949. At the time, Reed Street was unpaved, and there were no sidewalks or curbs. The building, which was situate only about six feet from the street, had an overhead garage-type door allowing vehicular entry. In or about 1952 or 1953, Bethesda’s lessor, Mr. Perry, constructed a short driveway apron connecting the dirt street to the garage door. This apron, wider than it is long, is made of cement and slopes gently from the building to the street. As part of the construction of the apron, Perry installed curbs on the sides of it, running essentially perpendicular to the street but curving away at the mouth where the apron joins the street.

At some later time, but before any improvements were made to the street, the overhead garage-type door was removed and replaced with a wooden front with normal pedestrian doors. From that point — somewhere between 1953 and 1956 — the concrete apron ceased to be used as a driveway, but served instead as a pedestrian walkway from the street to the entrance to the building. After construction of the apron, someone put in curbing along Reed Street, although it is not entirely clear who installed that curbing.

In 1956 or 1957, Bethesda put in a sidewalk in front of the building. Both the curbing parallel to Reed Street and the curbing that framed the apron were, of course, in place at the time. Finally, in 1969, Reed Street, and an adjacent right-of-way extending seven feet on either side of it (and thus including the sidewalk built by Bethesda), were dedicated to and accepted by Montgomery County as part of the county road system. The record shows that this acceptance was made after an on-site inspection of the entire right-of-way by the county road maintenance department, and was in accord with the then-applicable ordinance governing the acceptance of such roads and thoroughfares.

The situation as Ms. Sullivan found it in June, 1977, was essentially as follows. A sidewalk ran the length of Reed Street, as did a curb and gutter. Directly in front of the entrance to Bethesda’s office, however, it was interrupted by the sloping apron built by Mr. Perry. At the building line, and for about two or three feet toward the street, the apron was essentially level with the sidewalk; but, because of the slope, the three- or four-foot section of the apron closest to the street was lower than the adjoining sidewalk and was separated from it by the lateral curbs installed when the apron was built. Neither the sidewalk, the lateral curbs, nor the apron were in very good condition, all showing signs of deterioration. As noted, it was on the lateral curb built as part of the apron, and upon the apron itself, that Ms. Sullivan fell.

It is with this background — the undisputed fact that the locus of appellee’s fall was within the public walkway dedicated to and accepted by the county, attenuated by the circumstances of its construction and use —- that we consider the relevance of the "special use” doctrine.

The "special use” doctrine covers a broad spectrum of circumstances, from obstructions or impediments (such as cellar doors, protruding pipes, valves, meter boxes, "manhole” or hatch covers, and the like) placed in the walkway, to alterations that in some way encourage the accumulation of ice and snow. Many of the "ice and snow” cases have involved driveways or ramps of one kind or another that intersect the public walkway — entranceways to service stations or other commercial establishments built for the special use of the establishment, its customers, or its suppliers; and the question has arisen as to whether such a driveway or ramp qualifies as a "special use” sufficient to charge the abutting owner with the duty to maintain it in safe condition.

The courts considering that question have reached different results, some concluding that such an entranceway does constitute a special use and some concluding that it does not. Maryland has not yet addressed this aspect of the .doctrine, and this is not the occasion for us to do so. Even if we were to align ourselves with the courts that have recognized the "special use” theory in terms of driveways, as urged by appellee, it would be inapplicable in this case.

Despite the parties’ continuous reference to the apron as a "driveway,” the fact is that it is not a driveway and has not been used as a driveway for more than 20 years. Notwithstanding the manner of its construction — its slope to the street and consequent difference in elevation from the abutting part of the sidewalk — since the early 1950’s, it has served as nothing more than part of the continuous pedestrian walkway paralleling Reed Street. Once the garage doors were removed, thus precluding vehicular entry to the building, and certainly since the sidewalk, curb, and gutter were installed, the apron has served no special utility to any of the appellants or their customers or suppliers. The photographic evidence makes that absolutely clear, and there is nothing in the record to contradict it.

It is apparent, therefore, that at the time of the accident and for many years before, the apron was not at all similar to the types of driveways found by other courts to constitute special uses, and did not, in fact, constitute such a special use of the sidewalk that was inconsistent with the general public use. This apron was part of the public walkway, and the duty to maintain it was committed solely to the county. It was knowingly accepted by the county with its curbs and its slope, and upon that acceptance, any duty on the part of appellants to provide routine maintenance terminated.

At oral argument, appellee offered a new theory to sustain appellants’ liability. She contended that, although the county accepted the entire 50-foot right-of-way as a public thoroughfare, it somehow did not accept the responsibility for maintaining anything beyond the street itself. We can find no basis either in the record or in the law to support such a claim. The only evidence in this regard came from the county road maintenance engineer, who acknowledged county responsibility for the abutting sidewalks and attempted to exclude only driveways and aprons. He lent no support whatever to the assertion that the county’s obligation for maintenance stopped at the curb line. Nor do we read the applicable provisions of the County Code as authorizing such a radical departure from the established common law public obligation. Section 24-21 (1965 Code), governing acceptance and maintenance of roads, speaks not only of a "street,” a defined term (§ 1-3), but of a "street, alley, road or thoroughfare”; and the word "thoroughfare” has traditionally included walkways and footpaths. See Mullen v. Fayette, 85 N.Y.S.2d 64 (App. Div. 1948), aff'd 300 N.Y. 501, drawing from 3 Kent’s Commentaries 432 (14th ed. 1896); Watts v. Colonial Sand and Stone, Inc., 316 N.Y.S.2d 482 (Sup. Ct. 1970); aff'd 329 N.Y.S.2d 1004 (App. Div. 1972), aff'd 337 N.Y.S.2d 260; and cf. Mead v. Coffeyville, 107 P.2d 711 (Kan. 1940).

For these reasons, we believe that the court erred in denying appellants’ motion for directed verdict. The evidence, viewed most favorably to appellee, failed to show any liability on appellants’ part.

Our conclusions reached with respect to the main appeal make the cross-appeal moot, and we therefore need not address the issues raised by it.

Judgment reversed; appellees to pay the costs.

      . The claim on behalf of the two adult children, set forth in Counts IV and V of the Amended Declaration, was based upon the alleged "loss of services, fellowship and companionship, both temporary and permanent, all to the detriment of their family relationship.” In effect, this was loss of family consortium. That much of the action was aborted when the court sustained demurrers to those two counts without leave to amend. The children have entered a cross-appeal from that ruling.

      . Unfortunately, this issue was not so clearly presented to the jury. The court correctly instructed the jury with respect to the first two propositions — the storekeeper’s duty to provide a safe premises and the county’s duty to maintain the public walkway. It said nothing about the third proposition, however. Instead, it (correctly) advised the jury that, despite its general duty of maintenance, the county would have no liability unless it had actual or constructive knowledge of the defect. In light of testimony as to the absence of such knowledge, it is entirely possible — indeed likely — that the favorable verdict to the county was based not upon a finding of special use or hazard but rather upon a finding that the county had no notice of the defect. That would have been a legitimate finding supported by the evidence, and thus sufficient to exonerate the county quite apart from the application vel non of the third proposition. The problem is that if the third proposition is not applicable and the area in question is part of the public walkway, appellants would have no liability either.

      . Section 24-21 of the 1965 County Code provided:
      "The [County] council, by ordinance adopted pursuant to section 2-28 of this Code, may prescribe the terms and conditions upon which any street, alley, road or thoroughfare which has been acquired by the county or dedicated to public use may be accepted, and’by resolution may authorize the county manager to accept any such street, alley, road or thoroughfare upon such terms and conditions. Upon the acceptance of any street, alley, road or thoroughfare, it shall become a part of the county road system and shall thereafter be maintained by the county at its expense....” (Emphasis supplied.)

      . See, for example, Citizens Savings Bank v. Covington, supra, 174 Md. 633; Irwin v. Sprigg, 6 Gill 200 (1847); Jankowski v. Bridgeport, 373 A.2d 1 (Conn. App. 1977); Jensen v. Johnson, 230 N.W.2d 61 (Minn. 1975); Cool v. Vesey, 499 P.2d 642 (Colo. App. 1972); Crosswhite v. Lincoln, 175 N.W.2d 908 (Neb. 1970); Cuddy v. Shell Petroleum Corp., 127 S.W.2d 24 (Mo. App. 1939), aff'd sub nom. State ex rel. Shell Petroleum Corp. v. Hostetter, 156 S.W.2d 673 (Mo. 1941); Barker v. Kroger Grocery & Baking Co., 107 F.2d 530 (7th Cir. 1939), cert. den., 309 U.S. 656 (1940).

      . Compare Repinski v. Jubilee Oil Co., 405 N.E.2d 1383 (iLL. App. 1980); Simmons v. Lake Charles, 368 So. 2d 1167 (La. App. 1979); Votsis v. Ward’s Coffee Shop, Inc., 231 S.E.2d 236 (Va. 1977); Levine v. Jale Corp., 413 S.W.2d 564 (Mo. App. 1967), and Winston v. Hansell, 325 P.2d 569 (Cal. App. 1958), with Davis v. Pecorino, 350 A.2d 51 (N.J. 1975), District of Columbia v. Texaco, Inc., 324 A.2d 690 (D.C. 1974); Herndon v. Arco Petroleum Co., 536 P.2d 1023 (Nev. 1975); O’Connell v. Roper Electric Co., Inc., 498 S.W.2d 847 (Mo. App. 1973); DeWitt v. Schuhbauer, 177 N.W.2d 790 (Minn. 1970), and Joel v. Electrical Research Products, Inc., 94 F.2d 588 (2d Cir. 1938). Cf. Kernor v. New Jersey Bell Telephone Co., 295 A.2d 356 (N.J. 1972).

      . Appellee notes the testimony of Bethesda’s owner, Mr. Edmonds, that in 1972 or 1973, observing the deteriorating condition of the apron, he mixed up some "Sakrete” and spread it around the apron. There was no evidence, however, that this somewhat informal attempt at improvement was done negligently or created any additional hazard or contributed in any way to the accident. In the absence of such evidence, it would not suffice to reimpose liability on appellants. See Roark v. Hunting, 248 N.E.2d 896 (N.Y. 1969).


text:
    COLONEL C. COLE v. WILLIAM T. GALES
    [No. 543,
    September Term, 1980.]

      Decided January 8, 1981.

    The cause was argued before Lowe, Wilner and Couch, JJ.

      Benjamin Swogell for appellant.

      William Franklin Gosnell for appellee.
   Couch, J.,

delivered the opinion of the Court.

William T. Gales, the appellee, sued the appellant, Colonel C. Cole, in the Circuit Court for Baltimore County for his share of monies received and disbursed by appellant personally, which monies actually belonged to a corporation of which both parties were stockholders. In this suit the appellant pleaded res judicata and the general issue. Following a non-jury trial the court held that res judicata did not bar the suit and found in favor of appellee. On appeal, appellant urges us to find the trial court in error as to the res judicata issue and that the evidence was insufficient to support the judgment. We shall agree with the appellant as to the first issue and thus need not address the latter issue.

This controversy stems from a business relationship between appellant and appellee whereby they formed a corporation to own and operate the "Owl Club” in the Belvedere Hotel, Baltimore City. The parties here each owned 49% of the club. The club was forced out of business when the hotel closed and through the efforts of the appellant recovered a judgment for approximately $110,000.00 against a third party claimed to be responsible for the club’s shut-down. This judgment was satisfied for some $83,000.00, the monies being received by appellant and disbursed without any payment made to appellee, who did not even know of the judgment or its satisfaction. When knowledge thereof was gained by the appellee, he sued appellant in the Superior Court of Baltimore City. During the course of a non-jury trial in that court, there was evidence of the receipt of an additional $23,516.00 by appellant on behalf of the corporation, which money again had been disbursed without including appellee as a recipient. Although appellee requested the Baltimore City court to include this additional amount in its award, which the court refused to do, no motion was made to amend his declaration. A judgment was thereafter entered in favor of appellee for his distributive share of the $83,000.00. This judgment was not appealed, and was subsequently satisfied. Thereafter, the instant case was brought in Baltimore County.

Both parties agree that the doctrine of res judicata is:

"... a judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit, where the court had jurisdiction, proceedings were regular, and his omission was due to his own negligence.”

See Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92 (1961); Tucker v. Tucker, 35 Md. App. 710, 373 A.2d 16 (1977).

The parties’ respective positions are: Appellant contends the appellee had knowledge of the additional $23,516.00 prior to the conclusion of the Superior Court case and thus could have litigated that issue in that court by amending his pleadings. Appellee claims he did not have such knowledge, nor the means to obtain it. The Baltimore County trial judge, in ruling on the res judicata issue, stated:

"I have read the entire transcript before the Superior Court of Baltimore City before the Honorable David Ross on June 22, 1978. It clearly indicates to this court that the only thing Judge Ross ruled on was the distribution of the $83,000.00. He refused to make any ruling with respect to the $23,516.00. He said that was not before him. Therefore, the matter has never been finally adjudicated as to that amount, and the Plea of Res Adjudicata is denied.”

It appears that the trial judge did not consider whether the issue of the $23,516.00 could have been litigated in the Superior Court case.

In our view, the trial court erred. It seems that information of the additional money received by appellant may have come to light by his answer to appellee’s exception to answers to interrogatories, although this is not entirely clear. Nevertheless, during that trial in Baltimore City, the appellant admitted he had received the extra money and that it was not included in the $83,000.00 settlement. Furthermore, the record clearly shows that appellee made no motion to amend his pleadings to incorporate the additional claim; had he done so we are confident the trial judge would have granted such motion. Maryland Rule 320 provides the mechanism for amendment, making clear the purpose of the rule, i.e. "so that the case may be tried on its merits.” Section c. of the Rule provides:

"c. Time for Amendment.

1. Before Trial-Trial Before Court.

In a case heard or tried before the court without a jury, any amendment may be made at any time before a final judgment or decree is entered.”

Although in the Baltimore City case appellee already had a default judgment against appellant when the fact of the extra $23,516.00 receipt came to light, this judgment would not have prevented an amendment as to the amount being claimed. The Court of Appeals has concluded that a default judgment is a final determination as to liability. See Himes v. Day, 254 Md. 197, 254 A.2d 181 (1969). This would not, in our view, constitute a "final judgment” in the context of the amendment rule and the facts of this case.

Furthermore, it has been consistently held that amendments should be freely allowed to serve the ends of justice. Crowe v. Houseworth, 272 Md. 481, 325 A.2d 592 (1974); Wright v. Trotta, 34 Md. App. 309, 367 A.2d 557 (1976). In our view appellee had the opportunity, before the Baltimore City case went to final judgment, to have the issue of the additional money litigated; he failed to take advantage of this opportunity and res judicata barred his Baltimore County suit.

Judgment reversed.

Costs to be paid by appellee.


author: Weant, J.,

text:
    NORMAN E. SELLMAN v. STATE OF MARYLAND
    [No. 544,
    September Term, 1980.]

      Decided January 8, 1981.

    The cause was submitted on briefs to Couch, MacDaniel and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender and Geraldine K. Sweeney, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, ■ Attorney General, Maureen O’Ferrall, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Frank Weathersbee, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Weant, J.,

delivered the opinion of the Court.

On 29 March 1978, in the Circuit Court for Anne Arundel County, the appellant Norman E. Sellman pleaded guilty to, and was thereafter convicted of, separate counts of burglary and larceny. On 10 May 1978, he was committed to the custody of the Division of Correction for a period of ten years for the burglary conviction, as well as for a consecutive eighteen month term for the larceny conviction. These sentences were suspended in favor of five years supervised probation, the conditions of which included completion by Mr. Sellman of the X-Cell Program and his making restitution in the amount of One Thousand, Seventy-nine Dollars ($1,079.00). No appeal was taken from these judgments of the Circuit Court for Anne Arundel County.

On 3 March 1980, a petition charging Mr. Sellman with violation of his probation was filed in the Circuit Court for Anne Arundel County by the Division of Parole and Probation. The petition alleged inter alia that the appellant had violated his probation by leaving the X-Cell Program before he had completed it. At a hearing before the court on 11 April 1980, the appellant’s probation was revoked and the original sentences reimposed.

Having noted a timely appeal from the judgment of 11 April 1980, Mr. Sellman asks this Court to answer the following questions affirmatively:

1. Did the trial judge err in reimposing the original sentence[s] on finding that Appellant had violated the conditions of his probation, without considering the statutory alternative of imposing .. . lesser sentence^]?
2. Did the trial judge err in failing to afford Appellant his right of allocution prior to sentencing?

Inasmuch as this case is being reversed on the basis of the appellant’s second contention, we need not and do not address the first issue.

At the probation revocation proceeding in the trial court, Mr. Sellman testified on his own behalf. When he later, i.e., after all the evidence had been introduced and after his counsel had been heard, but before a decision had been rendered, inquired of the trial judge whether he could say something, the court foreclosed the making of any statement by the appellant by saying: "Enter a finding of guilty. Strike the Probation, reinstitute the sentence. Alright Mr. Sheriff.”

Section d of rule 772 of the Maryland Rules of Procedure provides: "Before imposing sentence the court shall inform the defendant that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment, and the court shall afford an opportunity to exercise this right.” In Dishman v. State, 45 Md. App. 236, 413 A.2d 565 (1980), this Court had occasion to discuss the rights which obtain under this rule. In so doing, Judge Melvin, speaking for this Court, stated at page 242, 413 A.2d at 568:

It is incumbent upon the court not only to follow the Rule, but to make certain that the record clearly reflects that it has done so. Trial judges, in the words of Mr. Justice Frankfurter, should "unambiguously address themselves to the defendant” and "leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.” [Green v. United States, 365 U. S. 301, 305, 81 & Ct. 653, 655, 5 L. Ed. 2d 670, 674 (1961)]. The appropriate remedy for noncompliance with this requirement is to vacate the sentences improperly imposed and remand the case for resentencing.

Inasmuch as Maryland Annotated Code article 27, section 642 permits the court to lessen a sentence upon its reimposition, we do not agree with the State’s contention that allocution at a probation revocation hearing is a mere matter of form without substance. Therefore, in the instant case we will, pursuant to the principles set out in Dishman, vacate the reimposed sentences and remand the case for resentencing in accordance with this opinion.

Revocation of probation affirmed.

Sentences vacated and case remanded for resentencing in accordance with this opinion.

One-half costs to be paid by the appellant.

One-half costs not reallocated pursuant to Maryland Rule 1082f.

      . See Wright v. State, 24 Md. App. 309, 316, 330 A.2d 482 (1975) and Brown v. State, 11 Md. App. 27, 31-32, 272 A.2d 659 (1971), where we held that former allocution Rule 761 a was also mandatory and, when not followed, the proper remedy in the appellate court is to "remand the case for resentencing with the proper formalities.”


author: Gilbert, C. J.,

text:
    DONALD CRADDOCK v. STATE OF MARYLAND
    [No. 581,
    September Term, 1980.]

      Decided January 9, 1981.

      The cause was submitted on briefs to Gilbert, C. J., and Morton and Thompson, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Patricia A. Logan, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Ann E. Singleton, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The appellant, Donald E. Craddock, was convicted by a jury in the Circuit Court for Anne Arundel County (Childs, J.) of the crime of escape. Md. Ann. Code art. 27, § 139. On appeal to this Court, the appellant asks:

"1. Did the trial court err in ruling that Appellant could not call witnesses to testify concerning the coercive circumstances which compelled his escape?
2. Did the trial court err in refusing to allow Appellant to testify concerning threats he received immediately prior to his escape?
3. Did the trial court commit plain error in instructing the jury that the defendant has the burden of persuasion in establishing the defense of necessity?
4. Did the trial judge err in permitting the State to comment on Appellant’s prior convictions in argument?”

The issues can be reduced to one question, namely: According to the Supreme Court decision of United States v. Bailey, 444 U.S. 394, 100 S. Ct. 624, 62 L. Ed. 2d 564 (1980), did the trial judge properly exclude testimony which would have supported the appellant’s defenses of necessity and duress to the escape charge? We hold that the trial judge did not err, and we affirm the appellant’s conviction.

This Court, in Robinson v. State, 42 Md. App. 617, 402 A.2d 115 (1979), articulated the elements necessary to establish a successful defense of necessity and duress. We said:

" '(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which makes any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other "innocent” persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.’ ” Id. at 621, 402 A.2d at 117, quoting People v. Lovorcamp, 118 Cal. Rptr. 110, 115 (1975).

The Supreme Court, in United States v. Bailey, supra, addressed the element of necessity as a defense to an indictment charging escape. See 18 U.S.C. § 751 (a). The defendants in Bailey escaped from a District of Columbia jail and were recaptured a few months later. Relying on the defense of necessity, each defendant averred that the escape was motivated by intolerable conditions existent in the jail, but during the course of the trial, they were unable to offer evidence of whether they had surrendered or had attempted to surrender to the authorities. The defendants did, however, give the reasons why they did not surrender. Primarily the defendants claimed to have heard reports from unidentified sources that the authorities would shoot them upon surrender.

At the close of the evidence, the trial judge refused to instruct the jury on the defense of necessity inasmuch as one element of the defense, that of surrender to the authorities once the conditions which prompted the escape were removed, had not been adequately shown. In affirming the District Court’s decision, the Supreme Court held that a defendant accused of escape is not entitled to a jury instruction on the defense of necessity unless he proffered "testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.” 444 U.S. at 413.

In the instant case, Judge Childs excluded evidence of the defense of necessity and duress because the appellant was unable to show to the court’s satisfaction that he surrendered to the authorities once the "coercive force” was removed. The record indicates that the appellant escaped from the Maryland House of Correction and was apprehended by the authorities approximately one month later in Savannah, Georgia. During the trial, Judge Childs requested that the appellant show that he had "turned himself in as soon as the danger to which he subscribed] [was] eliminated.” The appellant’s proffer, however, fell short of the Bailey-Robinson standard. .

The appellant could give reasons why he did not surrender. Those reasons were strikingly similar to those offered in Bailey. The appellant testified that his primary concern was the fear of being shot by the authorities if he surrendered. Just as the Supreme Court refused to accept such reasons in Bailey, we reject them here.

The appellant argues that the trial court acted prematurely in prohibiting testimony to support the defense of necessity, specifically, testimony of the conditions which motivated the appellant’s escape. Instead, the appellant contends that all evidence going to the defense of necessity should have been admitted, and that the decision of whether the evidence was sufficient to warrant jury instructions on the defense should have been adjudged at the close of the appellant’s case. In light of Bailey, we disagree. While the trial court in Bailey permitted testimony relating to the necessity defense throughout the trial, despite the lack of testimony concerning the appellant’s surrender, it declined to give the jury instructions on the defense. The Supreme Court, however, disputed the efficiency of that procedure. A reason for the rationale of Bailey’s proffer requirement is to conserve the resources of the jury and dispense with unnecessary testimony which the jury would, under proper instruction, not be able to consider. By determining at the outset of a defendant’s case whether he surrendered or made an attempt to do so once the motivating force behind the escape was eliminated, a trial judge can initially discern whether the elements of the necessity defense, the guidelines of which must be strictly adhered to, have been met. The trial judge can either permit or prohibit testimony relating to the defense. If evidence of the defense is prohibited because one of the elements is lacking, the court and jury are spared having to listen to irrelevant testimony.

We adopt the words of Mr. Justice Rehnquist in United States v. Bailey, supra at 416:

"f I jt is a testament to the importance of trial by jury and the need to husband the resources necessary for that process by limiting evidence in a trial to that directed at the elements of the crime or at affirmative defenses. If, as we here hold, an affirmative defense consists of several elements and testimony supporting one element is insufficient to sustain it even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense.”

Judgment affirmed.

Costs to be paid by appellant.

      . To reiterate our statement in Robinson v. State, supra at 619,402 A.2d at 116, the legal defenses of necessity and duress are to be treated "interchangeably” for purposes of this case. See discussion of the differences between the terms in United States v. Bailey, supra at 409-10.


text:
    ELIZABETH STEUART MOORE et vir v. CHRYSLER CORPORATION et al.
    [No. 637,
    September Term, 1980.]

      Decided January 9, 1981.

    The cause was argued before Morton, Moylan and Couch, JJ.

      Thomas A. Schmutz, with whom were Morgan, Lewis & Brockius, Thomas F. Hogan and Kenary, Tietz & Hogan on the brief, for appellants.

      Peter F. Axelrad, with whom were Frank, Bernstein, Conaway & Goldman on the brief, for appellees.
   Couch, J.,

delivered the opinion of the Court.

The question involved in this appeal is whether appellants should have been allowed to intervene in an existing law suit in the Circuit Court for Montgomery County. The trial judge had denied their motion to intervene on the ground that appellants’ interests were being adequately represented at that time.

The background facts may be briefly set forth. Chrysler Corporation filed a law suit against one of its dealers, L. P. Steuart Silver Spring, Inc. (L. P. Steuart), Imperial Investment Company (Imperial), alleged sole owner of L. P. Steuart, Harry Martens, Jr., president and chief executive officer of Imperial, and his son, John C. Martens, former general manager of L. P. Steuart. Chrysler’s suit is in three counts, breach of contract, unjust enrichment, and fraud, and stems from an alleged fraudulent warranty invoice practice instituted by L. P. Steuart and the individual defendants. Harry Martens, Jr. controls 66.37 per cent of Imperial’s stock. The petitioners and appellants, minority stockholders of Imperial, sought to intervene, claiming they had an interest which was not being protected because all defendants were represented by the same attorney and that attorney had not filed a crossclaim on behalf of Imperial against the Martenses nor pleaded that the acts of the Martenses were ultra vires.

By the time the motion to intervene was heard, counsel for the defendants had filed pleas on behalf of L. P. Steuart and John C. Martens and had filed demurrers on behalf of Harry Martens, Jr. and Imperial. He had also filed requests for production of documents.

In this appeal, appellees contend that the trial court was correct in denying appellants’ petition to intervene because (1) appellants have no interest which would support their right to intervene, (2) they are not bound by any judgment in the case, and (3) in any case, their interests are being protected. As noted above, the trial judge denied the relief sought by petitioners, basing his decision on the conclusion that

"There is no evidence in the record to indicate at this stage of the proceedings the petitioners interests are 'not otherwise protected’.”

Appellants also prayed, for an alternative relief, that the court require separate representation for the corporate defendants. The trial judge also denied this relief on the basis that no Maryland authority for this request had been cited and because any conflict of interest appeared speculative at that time. He did express expectation that present counsel (for the defendants) would take "appropriate measures” when and if an actual conflict did arise.

Preliminarily, we must consider appellees’ motion to dismiss the appeal for certain violations of Rule 1028. We have reviewed the matter and shall deny the motion as we do not find the violations so serious as to warrant dismissal.

The Law

Maryland Rule 208, which is actually declaratory of Maryland common law, see, in general, Miller, Equity Procedure, §§ 77-81, now provides in pertinent part:

"Rule 208. Intervention...........Gen’l.
a. Of Right.
Upon timely application a person shall be permitted to intervene in an action: (a) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.
b. Permissive:
1. Person.
Upon timely application a person may be permitted to intervene in an action when his claim or defense has a question of law or fact in common with the action.
2. Federal Government, State or Political Subdivision.
Upon timely application the federal government, the State, a political subdivision of the State, or any officer or agency of any of them may be permitted to intervene in an action when the validity of a constitutional provision, charter provision, statute, ordinance, regulation, executive order, requirement or agreement is drawn in question in the action or when a party to an action relies for ground of claim or defense on such constitutional provision, charter provision, statute, ordinance, regulation, executive order, requirement or agreement. This subsection shall not limit the rights provided by § 3-405 of the Courts Article.”

The Court of Appeals, in Citizens Coordinating Comm. v. TKU, 276 Md. 705, 712, 713, 351 A.2d 133 (1976), had occasion to discuss the Rule and stated, in part:

"The requirement which we have imposed upon the applicant for intervention under Rule 208 a is that he have an interest for the protection of which intervention is essential and which is not otherwise protected. Shenk v. Md. Savings & Loan, 235 Md. 326, 327, 201 A.2d 498 (1964). This standard is wholly compatible with the current language of Federal Rule 24. The federal cases defining Rule 24, therefore, continue to serve as a guide to our interpretation of Rule 208 a. In sum, whether the applicant for intervention has an interest which it is essential to protect may be equated with the requirement of Rule 208 a that he 'is or may be bound by a judgment in the action.’
* * *
"We turn, then, to the requirement of Rule 208 a that the applicants for intervention show that the representation of their interest by existing parties is or may be inadequate. The inadequacy of representation requirement for intervention of right under Rule 208 a has never been considered in a Maryland decision, but cases decided under Federal Rule 24 provide ample guidance. The common thread running through them is that a positive showing of the inadequacy of existing representation is not necessary; the rule requires only that the representation 'may be inadequate,’ Kozak v. Wells, 278 F.2d 104, 110 (8th Cir. 1960), Ford Motor Company v. Bisanz Bros., Inc., 249 F.2d 22, 27-28 (8th Cir. 1957). A 'serious possibility’ that the applicant’s interest 'may not be adequately represented’ is sufficient to satisfy the rule. Nuesse v. Camp, supra, 385 F.2d [694 (D.C. Cir. 1967), at 704. It has been said that the 'most important factor in determining adequacy of representation is how the interest of the absentee compares with the interests of the present parties.’ Wright & Miller, supra, § 1909. Where the applicant’s interest is similar to, but not identical with, that of an existing party, he ordinarily should be allowed to intervene 'unless it is clear that the [existing] party will provide adequate representation for the absentee.’ Id.”

See also Maryland-National Capital Park and Planning Commission, et al. v. Washington National Arena, 30 Md. App. 712, 354 A.2d 459 (1976).

The Instant Case

While the trial judge did not explicitly address the threshold question of whether appellants had an interest which needed to be protected, his memorandum opinion makes it clear that he considered them to have such an interest. Appellees urge us to conclude there were no such interests. We disagree with appellees’ position. The precise question does not appear to have been decided in Maryland. Looking elsewhere, however, provides ample guidance. In Fletcher, Cyclopedia of Corporations, Ch. 58, Sec. 5853, the author states in part:

"When an action at law or suit in equity is brought against a corporation, it is for the corporation to defend, and the defense and management of the suit, like other matters relating to the affairs of the corporation, is within the discretion of the directors, and ordinarily stockholders cannot interfere except by electing a new board of directors. Except as hereafter stated, the stockholders cannot appear and answer or defend, either for the corporation or on their own behalf, even though the stockholder owns all the stock of the corporation. The foregoing rule does not apply, however, when suit is brought against a corporation by one who holds a majority of the stock, or otherwise controls the directors, and the suit is conducted fraudulently in his own interest, and against the interest of the corporation and the minority stockholders, or in any other case in which a corporation or its directors abuse their discretion in refusing to defend, or fail to prosecute the defense in good faith; in such a proceeding a stockholder may intervene. This is distinct from an intervention founded on his individual rights. Stated in another way, refusal to defend, where it partakes more of disregard of duty than of an error of judgment, or is a breach of trust although not involving intentional moral delinquency, warrants relief to complaining stockholders. Intervention by a stockholder ordinarily will be granted only with hesitancy and caution.” | Emphasis added.]

See also Clayton v. Mimms & Co., 68 Ill. App. 3d 443, 386 N.E.2d 452 (1979), wherein the Court stated:

"Under general principles of corporate law, stockholders may defend or intervene in an action when the corporation has a meritorious defense to a claim and through the fraudulent acts of its directors, either fails or refuses to assert it.”

See also Miller, Equity Procedure, § 79:

"Intervention; stockholders. — As a general rule it is said that in suits brought by or against a corporation, stockholders may be allowed to intervene if there is any danger of their being injured by fraud, neglect or collusion on the part of the officers; but the decided cases seem to include instances of intervention where the interest of the stockholder is the only reason assigned.

Obviously, appellants have a financial interest in the outcome of this case, i.e., the value of their stock, for if there is a judgment against either Imperial or L. P. Steuart their stock value will be affected. We believe the appellants have successfully crossed the threshold question.

The second prong needed to be met in order to give appellants the absolute right to intervene under Rule 208 a. is to satisfy the court that their interests are or may be inadequately protected. The trial judge concluded that their interests, at that time, were being protected. Appellants strenuously object to this conclusion. They contend that the fraud count can be adequately defended only if the corporations plead ultra vires acts on the part of Harry Martens, Jr. and file crossclaims against both Martenses for indemnification. These defenses have not been invoked because, the appellants contend, the corporate and individual defendants have the same counsel. Regardless of the reason for counsel not raising the proper defenses, that omission has left the appellants’ interests presently unprotected. Thus the appellants should be allowed to intervene, and the trial judge erred in denying their motion.

Alternatively, the appellants request that at least the trial judge require separate representation for the corporate defendants from the individual defendants. This the trial judge has declined to do, on the basis that he felt any conflict of interest appeared speculative "at this stage” of the proceedings. Whether the trial judge was correct on this issue is not properly before us. The Court of Appeals, in Peat & Co. v. Los Angeles Rams Football Co., 284 Md. 86, 394 A.2d 801 (1978), held that a trial court’s order refusing to require withdrawal of a party’s counsel, or disqualification of counsel, is not a final order and not, therefore, immediately appealable. Accordingly, this issue is not before us. In any event, in view of the fact that we have granted appellants relief by agreeing that they should be allowed to intervene, we need not decide this alternative issue.

Order reversed.

Case remanded for further proceedings consistent with this opinion.

Costs to be paid by appellees.

      . Story, Eq. PI. sec. 208; Beach, Eq. Pr. sec. 574; Stretch v. Stretch, 2 Tenn. Ch. 140, 142; Foster, Fed. Pr. sec. 201.”