author:
Liss, J.,
      Melvin J.,

text:
    RONALD M. KELCH et ux. v. MASS TRANSIT ADMINISTRATION et al.
    [No. 806,
    September Term, 1978.]

      Decided April 18, 1979.

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

      Harry Goldman, Jr., with whom were Norman Hochberg and Alex S. Katzenberg, III, on the brief, for appellants.

      Patrick A. O’Doherty, with whom was H. Jerome Fenzel on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court. Melvin, J., concurs and filed a concurring opinion at page 305 infra.

This is an appeal by Ronald M. Kelch and Carol Kelch, his wife, appellants, from a judgment returned in favor of the Mass Transit Administration, appellee, after a lengthy trial in the Superior Court of Baltimore City.

Appellant, Ronald Kelch, on September 18, 1974 was operating a motorcycle in Baltimore City in a northerly direction on Pulaski Street at its intersection with Ramsay Street. The appellant’s version of the facts stated that a bus belonging to the M.T.A., appellee, was being operated in a southerly direction on Pulaski Street and that its driver attempted to make a left turn, onto Ramsay Street, into the path of the appellant’s vehicle. The bus driver testified that his view of the road was partially blocked by the contour of the area which included a curve in the road approaching the intersection of Pulaski and Ramsay Streets; that he had begun his turn; that the front of his vehicle had barely crossed the center line when he saw the motorcycle and stopped the bus; and that his bus was stationary for several seconds when it was hit by the motorcycle. The appellee presented as a witness a passenger on the bus who estimated that the bus had been at a standstill about four seconds when it was struck by the motorcycle.

The testimony presented by the appellant indicated that he had sustained serious and disabling injuries causing him to incur substantial medical bills. Appellant testified that he sustained serious monetary losses because of his inability to return to work as a result of his injuries. The case was submitted to the jury which returned a verdict for the defendants-appellees, and it is from this judgment that this appeal was taken.

Appellants raise three issues, the first of which is divided into three sub issues. Those issues are stated by the appellants as follows:

1. Were the appellants denied the right to have their case tried by a fair and impartial jury?

A. Did the court err in failing to grant appellants’ requested voir dire question No. 11 concerning co-equal rights of motorcycles and other vehicles lawfully using the highway?

B. Did the court err in failing to grant appellants’ motion in limine concerning mention of Social Security disability benefits as a collateral source?

C. Did the court err in failing to grant appellants’ requested mistrial motions and taking remedial action after numerous instances of misconduct of appellees’ counsel?

2. Whether the lower court committed prejudical error in denying appellants’ discovery of appellees’ accident reports prior to trial.

3. Whether the trial court erred in failing to grant a directed verdict in favor of the appellants on the issue of negligence.

ISSUE 1A

Prior to the impaneling of the jury appellants requested the trial court (Dyer, J.) to propound its voir dire question No. 11. That question stated: This case involves a collision between the plaintiff’s motorcycle and a Mass Transit Administration bus. Do you understand that a motorcycle is, by law, a licensed motor vehicle which has the same rights, and is subject to the same obligations and duties as any other motor vehicle driven on the streets? The trial judge refused to propound this question, but during the course of voir dire questioning did ask if any of the prospective jurors had any feelings, prejudices or fixed opinions which would prevent them from rendering a fair and impartial verdict in this case. One of the prospective jurors stated to the judge, in the presence of the other members of the jury panel, that her father had been killed on a motorcycle and she considered them dangerous. That prospective juror as well as several others were discharged for cause; none of the remaining members of the prospective jury panel expressed any prejudice or admitted an inability to render an impartial verdict. Appellants contend the refusal of the trial court to propound voir dire question No. 11 amounted to an abuse of the trial judge’s discretion. We do not agree. We suggest that the appellants have misconstrued the purpose of voir dire questioning. Voir dire is not an appropriate vehicle for instructing the jury in the law of the case. The sole purpose of voir dire is to ascertain the existence of cause, if any, to disqualify a juror from participating in consideration of a case. Casey v. Roman Catholic Archbishop, 217 Md. 595, 605, 143 A. 2d 627 (1957); Grossfeld v. Braverman, 203 Md. 498, 101 A. 2d 824 (1954); Adams v. State, 200 Md. 133, 88 A. 2d 556 (1952). Either party in a jury trial has a right to have questions propounded to prospective jurors on their voir dire which are directed to a specific cause for disqualification, and the failure to allow such questions is an abuse of discretion constituting reversible error. Alexander v. R.D. Crier & Sons Co., 181 Md. 415, 30 A. 2d 757 (1943); Cohen v. State, 173 Md. 216, 196 A. 819 (1937). The scope of questions propounded to jurors is in the discretion of the trial court. In exercising that discretion, the Court of Appeals said, in Bryant v. State, 207 Md. 565, 583, 115 A. 2d 502 (1955):

In the exercise of ... discretion, the trial judge should adapt the questions to the needs of each case in the effort to secure an impartial jury. Any circumstances that may reasonably be regarded as rendering a person unfitted for jury service may be made the subject of questions and a challenge for cause. Accordingly an examination of a juror on his voir dire is proper as long as it is conducted within the right to discover the juror’s state of mind in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.

We find no basis for holding that the trial court was arbitrary or that it abused its discretion in refusing to propound the general proposition of law encompassed in voir dire question No. 11. This is particularly true when it is considered that the trial judge did ask the voir dire question which required the prospective jurors to answer whether they had any feelings or prejudices concerning people who owned or operated motorcycles which would prevent the juror from returning a fair and impartial verdict. The statement of the law contained in voir dire question No. 11 was appropriately given to the jury at the conclusion of the evidence before the case was submitted to the jury. Finally, we note that at one point in the proceedings, .counsel for the appellants complimented the trial judge for making available to the litigants a fair and impartial jury panel. We must conclude under the circumstances that the complaint concerning the court’s abuse of its discretion is an afterthought occasioned by the unsatisfactory verdict. We find no abuse of discretion by the trial court.

ISSUE IB

Appellants next urge that the trial court erred in failing to grant appellants’ motion in limine restricting the appellees from mentioning social security disability benefits being paid to the appellant, Kelch, since they were funds paid to Kelch from a collateral source and the appellee was entitled to no credit in determining the jury’s assessment of damages because of such collateral funds. Again we disagree. The trial judge denied the motion in limine but ruled that the relevance of the social security benefits was to be restricted only to the issue of whether the payment of these benefits had any effect on the appellant’s statement that he was unable to work. The trial judge very carefully instructed the jury of that in assessing damages:

... you are not to consider the social security benefits which have been paid to Ronald Kelch and his family in the past, and which may be paid to him in the future, for the reason that the law considers that Mr. Kelch has earned such social security payments by his labor, and that such earnings should not benefit the person whose negligence caused this accident, if you find such negligence. You are therefore instructed that you should not reduce the amount of your verdict either by reason of social security benefits or the fact that certain medical or hospital bills may have been paid by medical assistance, or from some other collateral source. However, you may consider the collateral source of money in judging the motivation of the plaintiff to return to work, and for those same reasons you should not reduce your verdict, if any such you find, by the amount of any income tax considerations or any estimated tax.

We consider this a fair statement of the law. The Court of Appeals, in Leizear v. Butler; 226 Md. 171, 172 A. 2d 518 (1961), approved the admission of evidence that a plaintiff had been paid his wages by his employer during his absence from work, allegedly as a result of injuries sustained in an accident but ruled that the amount of damages was not to be reduced because of payment of these funds from a collateral source. In Leizear, supra, the Court of Appeals noted with approval that the evidence of collateral payments is admissible if there is evidence in the case of malingering or exaggeration of injury (McElwain v. Capotosto, 122 N.E.2d 901 (1954); Union Transports, Inc. v. Braun, 318 S.W.2d 927 (1958); cf. Ridilla v. Kerns, 155 A. 2d 517 (1959)) but evidence as to collateral payments is inadmissible in the absence of evidence of malingering or exaggeration or where the real purpose of the evidence offered as to collateral sources is the mitigation of liability for damages of the defendant. R. E. Dumas Milner Chevrolet Co. v. Morphis, 337 S.W.2d 185 (1960); McElwain v. Capotosto, supra; Hellmueller Baking Co. v. Risen, 174 S.W.2d 134 (1943). In the case sub judice, the appellee raised the issue of exaggeration of the plaintiffs injuries by the appellees’ cross-examination of the attending physician during which the physician conceded that there was, at least, a suggestion that the appellant was unwilling to seek employment possibly because the social security benefits the appellant received were greater than he might have earned if he were employed. We find no error in the trial court’s rulings on this issue.

ISSUE 1C

We find no merit in appellants’ contention that the trial court erred in refusing to grant their motion for a mistrial by reason of the misconduct of appellees’ counsel. In spite of the appellants’ suggestion to the contrary, we perceive no appeal to racial prejudice. The decision to grant or to deny a mistrial rests in the sound discretion of the trial judge, and in the absence of proof of abuse of that discretion his decision will not be disturbed on appeal. Generally, the choice of measures to protect the fair, unprejudiced workings of the trial court’s proceedings is left to the discretion of the court, and only in exceptional cases will its choice be reviewed by the appellate courts. Nelson v. Seiler; 154 Md. 63, 139 A. 564 (1927).

In Ferry v. Cicero, 12 Md. App. 502, 280 A. 2d 37 (1971), quoting from the opinion of Chief Judge Hammond in DeMay v. Carper, 247 Md. 535, 233 A. 2d 765 (1967), we adopted the following rule:

These rules are that improper or prejudicial statements, remarks or arguments of counsel generally are cured by reproof by the trial judge; to his discretion customarily is left the choice of methods to protect the fair and unprejudiced workings of the judicial proceedings and his decision as to the effect of that choice upon the jury and only in the exceptional case, the blatant case, will his choice of cure and his decision as to its effect be reversed on appeal. 12 Md. App. at 508.

We have carefully read and considered the extensive record extract in this case and conclude that the trial judge was in complete command of the trial and that there is nothing in the record which would indicate that the conduct of appellee’s counsel required the court to grant a mistrial. On the contrary, we find that the trial court’s rulings in this hard fought case provided a fair and unprejudicial trial for both sides.

ISSUE 2

The appellants next assert that the discovery judge committed prejudical error when he denied appellants access to certain reports, prior to trial, concerning the accident which were in the appellees’ possession. On March 28, 1978, appellants sent a notice of deposition to appellees’ counsel which required attendance at a deposition, scheduled for April 7,1978, of certain employees of the M.T.A. including the bus driver. The notice further required M.T.A. to produce the person who investigated the accident, as well as Edward Brizendine, who signed M.T.A.’s answer to interrogatories. The deponents were instructed to bring with them statements, diagrams, photographs and M.E.15 and M.E.18 reports prepared by employees of M.T.A. The deponents failed to appear at the deposition and appellants filed a motion to compel the discovery proceeding and attached to this motion a statement of points and authorities. Appellees filed an answer in opposition to the appellants’ motion and the matter came up for hearing before Judge David Ross, sitting as Discovery Judge for the Supreme Bench of Baltimore City. Judge Ross denied the motion.

Maryland Rule 400 d. provides as follows:

d. Trial Preparation Materials.

Subject to the provisions of sections e (Party’s or Witness’ Own Statement) and f (Information From Experts Who Are Expected to Testify at Trial) of this Rule, a party may not obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) except upon a showing that
(i) the materials are otherwise discoverable under section c of this Rule, and
(ii) the party seeking discovery has substantial need of the materials in the preparation of his case, and
(iii) he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.

The provisions of Rule 400 d. are substantially similar to the requirements of Federal Rule 26(b)(3) which places the burden on a party who seeks discovery to show a "substantial need” in order to be entitled to discovery. “Substantial need” requires a showing of (1) importance of the material to be discovered, (2) an inadequate alternative means of discovery, and (3) a lack of documents substantially equivalent to the documents sought. Kennedy v. Senyo, 52 F.R.D. 34 (D.C. Pa. 1971).

Appellants rely heavily on McDougall v. Dunn, 468 F. 2d 468 (4th Cir. 1972), as authority for their contention that the ruling of the discovery judge refusing discovery was reversible error. In that case, a plaintiff injured in an automobile accident sought to require the defendant to produce statements, and to permit the plaintiff to copy those statements which the defendant and a third occupant of the car made to an insurance adjuster. The defendant objected to the demand on the basis that the statements were part of the defendant’s work product and argued that the demand was not supported by good cause. The lower court refused to require the defendant to comply with the plaintiff’s motion. The Fourth Circuit, in reversing, found that the insurance adjuster had obtained the statements more than two and a half years before the plaintiff made a claim, retained counsel, or filed suit. The court held that the statements had been obtained in the regular course of the adjuster’s duties and presumably were incorporated in the files of the company.

The Fourth Circuit, relying on Thomas Organ Co. v. Judranska Soblodna Plovidta, 54 F.R.D. 367, 372 (D.C. Ill. 1972), said:

This trend which was followed in the framing of Rule 26(b)(3) compels the Court to conclude that any report or statement made by or to a party’s agent (other than to an attorney acting in the role of counsellor), which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment of an attorney’s legal expertise must be conclusively presumed to have been made in the ordinary course of business and thus not within the purview of the limited privilege of new Rule 26(b)(3) and (b)(4).
If, in line with this construction of Rule 26(b)(3), it be assumed that the statements herein do not fall within the definition of materials, the production of which is controlled by such subdivision of the Rule, then the only applicable requirement for their production under the other subdivision of the Rule was relevance---- On that there could be no dispute and the statements should have been ordered produced. [Footnotes omitted]

The Court went on to say at 472-74:

Even if, however, this view not be accepted and the statements be considered materials [sic], the production of which was controlled by Section 26(b)(3), the statements would still have been discoverable if it appeared that the party seeking discovery met the conditions of that subdivision that he “has (had) substantial need of the materials” and “he is (was) unable without undue hardship to obtain the substantial equivalent of the materials by other means.” A lawsuit, it has been well said, “is not a sporting event, and discovery is founded upon the policy that the search for truth should be aided.” Tiedman v. American Pigment Corporation (4th Cir. 1958) 253 F.2d 803, 808. Statements of either the parties or witnesses, taken immediately after the accident and involving a material issue in an action arising out of that accident, constitute “unique catalysts in the search for truth” in the judicial process; and where the party seeking their discovery was disabled from making his own investigation at the time, there is sufficient showing under the amended Rule to warrant discovery. Southern Railway Company v. Lanham (5th Cir. 1968) 403 F.2d 119, 128, reh. den. 408 F.2d 348; Goosman v. A. Duie Pyle, Inc. (4th Cir. 1963) 320 F.2d 45, 50-53; Southern Railway Company v. Campbell (5th Cir. 1962) 309 F.2d 569, 572; De Bruce v. Pennsylvania R. Co. (D.C. Pa. 1947) 6 F.R.D. 403, 406; Kennedy v. Senyo (D.C. Pa. 1971) 52 F.R.D. 34, 36-37; Clower v. Walters (D.C. Ala. 1970) 51 F.R.D. 288, 289. The reason for such result was stated by this Court in New York Central Railroad Company v. Carr (4th Cir. 1957) 251 F.2d 433, 435, where it was observed that “... the lapse of many months and the dimming of memory provides much reason for his counsel to examine any substantially contemporaneous declarations or admissions. Aside from what assistance it may be in the preparation of a case for trial, the production of such a statement, after the lapse of time, permits a more realistic appraisal of cases and should stimulate the disposition of controversies without trials.”
This conclusion, as expressed in Carr, is in line with the comments of the Advisory Committee in connection with the 1970 amendments of Rule 26. In this comment, the Committee suggested that a liberal attitude be adopted in the application of the Rule as it relates to “witness statements taken by an investigator” as distinguished from “other parts of the investigative file” and indicated that a special showing warranting discovery of such statements existed when the witness had “given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter.” 48 F.R.D. 501. The Advisory Note cites Guilford National Bank v. Southern Ry. Co. (4th Cir. 1962) 297 F.2d 921, 926 and Goosman, supra, though decided before the 1970 amendment of Rule 26, as illustrative of the circumstances when discovery of witnesses’ statements should be granted and when it should be denied under the 1970 Amended Rules. Thus, in Guilford, the Court said that .. it appears that the courts are unanimous in holding that a showing that the statements were made at the time of the accident satisfies the good cause requirement of Rule 34,” if the party seeking discovery “had no opportunity to question the witnesses until weeks or months later,.. . .” Discovery, however, was denied in that case because the party seeking discovery'had taken statements from the same witnesses beginning “six days after the accident” and concluding “three days later”; in short, because the party seeking discovery had himself been able to take roughly contemporaneous statements, his motion was denied. [Footnotes omitted.]

However, we think this case is distinguishable from the case sub judice, as the appellant employed counsel almost immediately after the accident. The accident occurred on September 18, 1974, suit was filed on October 4, 1974, and trial was scheduled for May 1, 1978. Appellants’ motion to compel discovery was not filed until March 28, 1978 with depositions to be held on April 7,1978. There was no showing that there had been any effort whatsoever during that four-year period to discover the information sought by the appellants or their counsel.

In denying appellant’s motion, Judge Ross was correct in stating that our trial courts had for a number of years routinely denied motions to compel production of documents which were prepared by employees of an assured at the request of, and for, their liability carriers. Judge Ross noted that:

The critical point is that the purpose of making the report, the purpose of giving this data, the purpose of collecting the data, is to supply it to the liability carrier whose only possible interest in obtaining such information is in anticipation of litigation. The rule very clearly says that such information, such documents prepared by a party, his attorney, his assured, his agent and so forth and so on is not discoverable unless you meet the several criteria establishing a substantial need.

See also Mendels v. Mercantile Trust Co. (Sup. Ct. of Baltimore City, Niles, C.J.), Daily Record, September 16, 1944, where it was held that although a party has a right to inform himself before trial of the facts and contentions forming his opponent’s case, he has no right through discovery to obtain copies of statements procured by his opponent from witnesses in preparation for trial. He has the right only to obtain the names of persons having knowledge of the facts and to take their depositions himself. Admittedly the practice under the Rules 400 series is much less liberal than that contemplated by the McDougall case, supra, but we perceive this to be a legislative matter to be addressed by the Rules Committee or the Maryland Legislature if any change in the longstanding interpretation of Rule 400(d) is to be affected.

The record of the hearing before Judge Ross fails to disclose the laying of any factual foundation from which such “substantial need” or “undue hardship” could be established as would require the granting of the appellants’ motion.

The Court of Appeals has stated on several occasions that trial judges who are called upon to administer the discovery rules are vested with a reasonably sound discretion which will not be disturbed in the absence of an abuse of that discretion. Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 174 A. 2d 768 (1961); Hirsch v. Yaker, 226 Md. 580, 174 A. 2d 728 (1961).

Appellants additionally rely for support of their position on a decision by Judge Niles in the case of Bledsoe v. Baltimore Transit Company, Daily Record, June 13, 1955, which involved an accident report made to a superior by a subordinate employee. In Bledsoe, the plaintiff, who was injured in a trolley accident, obtained the deposition of the operator of the trolley and sought to inspect a report that the operator had submitted to his employer. The Court relied on then Discovery Rule 4, “Discovery of Documents and Property,” which provided:

Upon motion of any party showing good cause therefore and upon notice to all other parties,’ the court may, at any time in any proceeding,
(1) order any party to produce and permit the inspection ... of ... objects or tangible things not privileged ..., which may constitute or contain evidence material to any matter involved in the proceeding and which are in his possession, custody, or control.

The adoption of the 400 Rules has changed the language of Rule 4. Rule 400 d retains the exclusion of those things that are prepared in anticipation of litigation but extends the protection from production to documents and tangible things prepared by or for another party, or by or for that other party’s representative including his attorney, consultant, surety, indemnitor, insurer or agent. Thus, the test stated in Bledsoe, supra, with regard to litigation preparation has been substantially altered. In addition, the “good cause” standard involving a lawyer’s work product has been changed. Where the former test was designed to protect only the attorney’s mental impressions, opinions, conclusions, or legal theories, Rule 400 d specifically clothes any other representative of a party with the same protection. This change represents a significant modification in the standard for production as measured against the Bledsoe formulation as evidenced by the comments of Judge Ross.

ISSUE 3

Finally, appellants state that the trial court erred in denying their motion that the alleged violation of Section 21-402 of the Transportation Article of the Annotated Code of Maryland (1957, 1977 Repl. Vol.) was sufficient to require a directed verdict in their favor on the issue of negligence. The above stated section of the Code is the Maryland Left Turn Statute. The testimony in this case generated the issue of whether the driver of the bus had seen the approaching motorcycle and had stopped his vehicle in a position where there remained ample room for the motorcycle to clear the intersection, thereby exercising his right of way without striking the bus. Appellants would have been entitled to a directed verdict only if “there was in evidence a prominent and decisive act susceptible of but one interpretation in the determination of which ordinary minds would find it impossible to differ.” Raff v. Acme Markets, Inc., 247 Md. 591, 233 A. 2d 786 (1967); Freudenberger v. Copeland, 15 Md. App. 169, 289 A. 2d 604 (1972); Mazer v. Stedding, 10 Md. App. 505, 271 A. 2d 381 (1970).

The testimony of the bus driver was sufficient to raise an issue of contributory negligence which was required to be submitted to the jury for its determination as triers of the facts.

Judgments affirmed.

Costs to be paid by appellants.

Melvin J.,

concurring:

Although I agree that the judgment below should be affirmed, I cannot agree with the analysis of the discovery issue discussed under the heading of “Issue 2” in the majority opinion.

I agree that //there had been evidence before the hearing judge that the documents sought by the plaintiffs were “prepared in anticipation of litigation or for trial”, it could not be said that the hearing judge abused his discretion in denying the plaintiffs’ motion to compel discovery. The difficulty I have with agreeing that there was no error in denying the motion is that at the hearing there was no evidence presented by either side concerning the purpose of preparing the documents sought to be discovered. Absent such evidence, I am at a loss to understand how the judge could conclude, in vacuo, that “... the purpose of making the report, the purpose of giving this data, the purpose of collecting the data, is to supply it to the liability carrier, whose only possible interest in obtaining such information is in anticipation of litigation.”

Where, as in this case, the plaintiffs’ request for discovery of documents is refused by the defendant on the ground that the documents were prepared in anticipation of litigation and are therefore immune from discovery, and a hearing is thereafter held on a motion to compel discovery, the burden is on the party refusing discovery to establish the grounds of the claimed immunity, i.e., that the documents sought were in fact prepared in anticipation of litigation. In my opinion, the defendant failed to meet that burden. At the hearing the plaintiffs’ counsel asserted that the reports he sought were “routine reports” “done in the regular course of Mass Transit Administration’s business in the year 1974 [the year of the accident] ....” The defendant’s counsel, on the other hand, asserted that the documents sought “are all documents in anticipation of litigation”. Statements of counsel, of course, are not evidence.

It is apparent from the record that the principal document sought by the plaintiffs was an accident report made by the M.T.A.’s Transportation Supervisor, Mr. Lee Harvin. As later revealed by his testimony at trial, Mr. Harvin arrived at the scene of the accident within 15 minutes after it happened, made a diagram of the scene, got a list of the witnesses, and took a statement from the bus driver. All this information was embodied in a report to his employer, M.T.A. On the report form was a space to indicate “motion of company vehicle”. Mr. Harvin had written opposite this printed notation the word “moving”. The record indicates that the accident report, or a copy of it, was given to plaintiffs’ counsel at trial just prior to Mr. Harvin’s taking the stand to testify for the defendant. On cross-examination by plaintiffs’ counsel, Mr. Harvin was fully questioned concerning the entire report, including the “moving” notation.

On appeal, the plaintiffs contend they were prejudiced by not having the report before trial. — “that if Harvin’s report had been ordered produced on Discovery at Deposition, the driver’s lie could have been nailed before trial and the case won by the Plaintiffs____” I think this argument is specious. The alleged “lie” was the driver’s testimony at trial that the bus had been stopped for 4-5 seconds in the intersection before the defendant’s motorcycle ran into it. The plaintiff argues that this is inconsistent with Harvin’s notation on the accident report that the bus was “moving”. Harvin testified, however, that the “moving” notation was not meant to indicate that the bus was moving “at the time of impact”. He further testified on direct examination, quoting from the accident report, without objection, that the driver had told him at the scene that, “He came to a complete stop in the intersection. The motorcycle ran into the left front of the Coach.” This is consistent with the driver’s answers to interrogatories propounded by the plaintiffs, some three years before the trial, in which he said: “[Defendant started to make a left turn, the plaintiff was coming northbound at a high rate of speed; the bus stopped and the [plaintiff] continued in a straight path without slowing down or trying to go around the bus and ran into the left side of the bus”. The plaintiffs could therefore hardly claim they were surprised by the bus driver’s testimony at trial. Regardless of the inferences that may be drawn from the accident report and the driver’s testimony, it seems clear in the circumstances of this case that the plaintiffs have failed to show they were prejudiced by any error that may have been made by the hearing judge in not allowing pre-trial discovery of the accident report. I would therefore hold that it is not necessary to determine the correctness of the hearing judge’s ruling on the motion to compel discovery, for even assuming him to be wrong, the error would not warrant reversal of the final judgment.

As the majority opinion now stands, however, there being no evidence presented on the issue at the pre-trial hearing, I can only conclude that the opinion is authority for the proposition that any relevant accident report made by an employee of a common carrier must automatically be regarded as “prepared in anticipation of litigation or for trial” and therefore not discoverable, absent a showing of “substantial need” or “undue hardship” pursuant to Md. Rule 400 d (ii) (iii). I cannot agree with such a proposition. I think it flies in the face of the basic philosophy and purpose of the discovery rules. “Modern discovery statutes or rules are intended to facilitate discovery, not to stimulate the ingenuity of lawyers and judges to make the pursuit of discovery an obstacle race” (Barnes v. Lednum, 197 Md. 398, 406-407 (1951)) and “are to be liberally construed”. (Balto. Transit v. Mezzanotti, 227 Md. 8, 13 (1961)). “No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying her opponent’s case”. (Hickman v. Taylor, 329 U. S. 495, 507, quoted with approval in Hallman v. Gross, 190 Md. 563, 574 (1948)).

That accident reports are not automatically regarded as “prepared in anticipation of litigation or for trial” is shown by the many cases and text writers holding to the contrary. See 8 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2024 at 198-199 (1970) and cases cited in footnote 25 thereof and the 1978 Pocket Part thereto. The noted authors discuss at length Federal Rule 26 (b) (3), adopted in 1970, that was followed by Maryland in adopting, in 1973, Md. Rule 400 d in almost identical terms.

      . Moreover, the offer of defendants’ counsel to allow the judge to inspect the documents in camera was refused by the judge.


source: Caselaw Access Project

author: MacDaniel, J.,

license: Public Domain

text:
    ROBERT E. SIMS v. FIRST NATIONAL BANK OF MARYLAND et al.
    [No. 904,
    September Term, 1978.]

      Decided April 18, 1979.

    The cause was argued before Melvin, Couch and MacDaniel, JJ.

      Darrel L. Longest for appellant.

      Michael A. Pretl, with whom were M. King Hill, Jr., Ronald G. Dawson and Smith, Somerville & Case on the brief, for appellees.
   MacDaniel, J.,

delivered the opinion of the Court.

This appeal is from the entry of summary judgment against the appellant, Robert E. Sims, in the Circuit Court for Montgomery County.

On November 2,1976, the appellant, who worked for First National Bank of Maryland, one of the appellees, suffered a back injury. He filed a claim for compensation benefits with the Workmen’s Compensation Commission of Maryland, On March 1, 1977, the Commission completely disallowed the claim, stating that “the claimant did not sustain an accidental injury arising out of and in the course of employment----”

On June 24, 1977, the appellant, the First National Bank of Maryland, and Maryland Casualty Company, the bank’s insurer under the Workmen’s Compensation Laws of Maryland, entered into an “Agreement of Final Compromise and Settlement,” which provided, in part:

“WHEREAS, the Claimant has filed a claim with the Workmen’s Compensation Commission of Maryland, hereinafter called the Commission, to recover workmen’s compensation benefits for alleged disability resulting from accidental personal injury or disablement from occupational disease, arising out of and in the course of his or her employment with the Employer, which injury or disablement is alleged to have occurred on or about the 2nd day of November 1976; and
“WHEREAS, the Employer and Insurer deny the allegations of the Claimant, either in whole or in part, so that there now exists a dispute between the Claimant on the one hand, and the Employer and Insurer on the other, as to whether the Claimant is entitled to any workmen’s compensation benefits and/or, if so entitled, as to the nature and extent of disability involved and the benefits or additional benefits to be paid Ox’ provided; and
“WHEREAS, irrespective of and notwithstanding the divergent views held by the parties ... the said parties have reached an agreement providing, subject to the approval of the Commission, for a final compromise and settlement of any and all claims which the Claimant or his or her personal representative or beneficiaries might now or could hereafter have under the provisions of the said Workmen’s Compensation Law against the Employer and/or the Insurer:
“2. The Claimant hereby accepts the said agreement and the aforesaid payment(s) in final compromise and settlement of any and all Claims which the Claimant, his or her personal representative, dependents, wife and children or any other parties who might become beneficiaries under the said Workmen’s Compensation Law, might now or could hereafter have under the provisions of the said Law, arising out of the aforesaid injury or disablement or the disability resulting therefrom, and does hereby, on behalf of himself or herself and all of said other parties, release and forever discharge the Employer and Insurer, their personal representatives, heirs, successors and assigns, from all other claims of whatsoever kind which might or could hereafter arise under the said Law from the said injury, disablement or disability.
“3. This Agreement is made subject to the approval of the Commission, and when so approved shall immediately become effective and binding upon all of the parties hereto.”

The agreement was approved by the Workmen’s Compensation Commission on June 28, 1977.

At the time of the injury, First National Bank provided for its employees a “Long Term Salary Continuance Accident and Sickness Policy” through the Insurance Company of North America, an appellee in this case. The policy entitled employees to monthly disability payments based on a percentage of the employee’s base monthly salary. A stipulation of the policy was that:

“The Monthly disability benefit shall be reduced by the Monthly pro-rata portion of any benefits payable under any applicable Workmen’s Compensation Act....”

After the June 24, 1977, agreement and settlement, the appellees discontinued the payments to the appellant under the above insurance policy. Thereupon, the appellant brought an action for specific performance under the policy. The appellees moved for summary judgment in their favor. They cited § 52 of Article 101 of the Annotated Code of Maryland, which provides:

“§ 52. Compromise and settlement.

At any time after a claim for compensation under this article has been filed with the Workmen’s Compensation Commission by any claimant, and said claimant and/or his or her dependents may, with the approval of the Commission, enter into an agreement with the employer or insurer of such employer or with the Subsequent Injury Fund providing for a final compromise and settlement of any and all claims which the said employee or his or her dependents might then or thereafter have under the provisions of this article, upon such terms and conditions as the Commission shall, in its discretion, deem proper. Any such settlement when approved by the Commission shall be binding upon all parties thereto, and no such settlement shall be effective unless approved by the Commission____”

The appellees argued that the monies received by the appellant pursuant to the June 24, 1977, settlement were “benefits payable under any applicable Workmen’s Compensation Act.” After a hearing, the lower court granted the appellees’ motion for summary judgment. We will affirm that decision.

The outcome of this case is determined by the construction given to the words in the June 24,1977 settlement in light of § 52 of Article 101, supra.

We hold that the June 24, 1977 agreement and settlement concerned Workmen’s Compensation benefits. The agreement specifically provided that the payments were in “final compromise and settlement of any and all Claims ... under the said Workmen’s Compensation .Law____” In addition, the agreement was approved and signed by the Commission pursuant to § 52 of Article 101.

The appellant argues that the payments received were not pursuant to the Workmen’s Compensation Law because the settlement was made after the Commission adjudicated his claim as having no merit. We do not find this argument persuasive for two reasons. First, § 52 provides that a settlement may be entered into “at any time after & claim for compensation under this article has been filed with the Workmen’s Compensation Commission....” (emphasis added). That section does not state that the settlement must be reached before the claim is adjudicated. In addition, the appellant himself states in his brief:

“... the settlement was entered into for the purpose of the insurer avoiding further litigation on appellate review.”

Clearly, both parties considered the settlement to be a direct result of the Workmen’s Compensation claim that had been filed.

The appellant relies on Rich v. Dyna Technology, Inc., 204 N.W.2d 867 (1973), in support of his argument. That case, however, is not binding precedent in Maryland, nor is it factually apposite. In that case, the Workmen’s Compensation Law provision on “compensation agreements,” the agreement, and the insurance policy stipulation materially differed from those in the present case. The same result is not mandated in the two cases.

Therefore, the lower court did not err in granting summary judgment to the appellees. Maryland Rule 610.

Judgment affirmed.

Costs to be paid by appellant.


author: Lowe, J.,

text:
    WILLIAM T. BOGLEY v. MIDDLETON TAVERN, INC. ET AL.
    [No. 951,
    September Term, 1978.]

      Decided April 18, 1979.

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

      William M. Nickerson for appellant.

      Richard R. Beauchemin, with whom were Joel G. Fradin and Arnold & Beauchemin, P.A. on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

The novel presentation of this case beclouds the narrow issue of whether a negligent insurance agent may be held personally liable for the loss caused by his negligence. The trial took place in the Circuit Court for Anne Arundel County. The principal players were:

William T. Bogley of Bogley and Harting, Inc. (Bogley) — an insurance agent for, among others,
Aetna Casualty and Surety Company (Aetna) — which provided a limited business interruption fire insurance policy, through Bogley, to
Middleton Tavern, Inc. (Middleton) — an Annapolis restaurant owned and operated by members of the Hardesty family, which suffered a fire loss, only half of which was covered under the business interruption provision of the policy due to a 50% co-insurance clause for which it had neither bargained, nor of which it had been informed.

Middleton sued Bogley individually as its agent for breach of his agreement and negligence in failing to obtain proper insurance protection. Middleton also sued Aetna, claiming Bogley acted as an agent of Aetna in the transaction, and that Aetna was liable for its agent’s negligence and breach of agreement. A jury was called upon to decide those questions.

Aetna cross-claimed against Bogley and Bogley against Aetna, each alleging that if Middleton was entitled to recompense, the sole responsibility therefor should fall upon the other. By stipulation, the cross-claims were not submitted to the jury, but were to be decided by the court in the event of a jury verdict against both Aetna and Bogley. The jury did find against both defendants, and the bifurcation of factfinders appears to have contributed to the concerns expressed on appeal.

Under the jury’s view of the facts, both Bogley and Aetna were liable. Presumably, in anticipation of deciding the cross-claims, the trial judge determined unprecedentedly, by inquiry of the foreman, that the jury had decided not only that

“Bogley was acting as an agent for [Aetna],”

but also that its verdict was arrived at on the basis of both the negligence and the contract counts.

To the extent divulged, the jury’s findings of fact were adopted by the trial judge as his own when deciding the cross-claims. As interpreted by him:

“... the jury found Bogley negligent and to be the agent of Aetna, with the result that Aetna became liable for its agent’s wrongful conduct. There was not and could not be any other theory under the facts and Court’s instructions for the jury to find Aetna liable, and in finding Bogley negligent and also the agent of Aetna the jury quite correctly under the Court’s instructions found Aetna liable. This is the posture of the case in which the Cross-Claim for indemnity must be decided.”

He then entered judgment in favor of Aetna against Bogley on both cross-claims.

Bogley has appealed, not contesting Middleton’s right to recover, but submitting that such recovery should have been solely against Aetna. His attack is twofold. He contends first that Middleton’s contract count against him should not have been submitted to the jury and, secondly, that because he was Aetna’s agent, his tort liability inured solely to Aetna, as his principal.

— contractual liability to Middleton —

Contending that there was no evidence supporting contractual responsibility of Bogley to Middleton, Bogley recites a rule set forth in Burkhouse v. Duke, 190 Md. 44, 46-47 (1948):

“ . Whenever, upon the face of an agreement, a party contracting plainly appears to be acting as the agent of another, the stipulations of the contract are to be considered as solely to bind the principal, unless it manifestly appears by the terms of the instrument that the agent intended to superadd or substitute his own responsibility for that of the principal.’ ”

This is more succinctly stated in 16 Appleman, Insurance Law and Practice, § 8832:

“An insurance agent is not liable as an insurer where his principal is disclosed.”

Looking to the evidence here, appellant then points out the evidence of his agency agreement and the insurance contract itself, resulting in an express jury finding that he acted as agent for Aetna.

Based upon such substantial evidence, and an expressed factual finding by the jury, appellant argues that he, as agent, is entitled to insulation from contractual liability to the insured because of the binding nature of his breach on his principal. Accepting appellant’s premise that the principal-agent relationship must focus on Aetna and Bogley, appellant nonetheless loses. Analyzing that premise, we find that Aetna was a disclosed principal bound to the underlying contract transaction by the act of its agent. The injured party to a breach of agreement by the agent has a direct action against the principal. Appellant ends the liability chain at that point, failing to recognize that Aetna as principal may subsequently recover from him the losses incurred due to Bogley’s negligent performance of his duties as an agent.

The general duties owed by an agent to his principal apply in the insurance agent-insurer context:

“Insofar as the insurance company is concerned, an insurance agent must act in good faith, confine his acts within the scope of his actual authority, obey his principal’s instructions, and use due care and reasonable diligence in the transaction of the business entrusted to him. The agent is, as a general rule, liable to the company for the losses resulting approximately from a failure in or departure from such duties. Although an insurance agent may within his apparent or ostensible authority bind the company to risks which his instructions forbid him to assume, he is liable to the company if he issues a policy in violation of his instructions and thereby subjects the company to a liability which it has forbidden him to assume for it.” 43 Am. Jur. 2d Insurance § 169 (footnotes omitted, emphasis added).

The jury’s finding of Bogley’s negligence in carrying out his duties as an agent in the questioned transaction, translate into a breach of his duty of care to his principal. Thus, Bogley may have set forth a correct analysis of the general principal-agent responsibility in a contractual breach with a third party, but he overlooks his personal liability to his principal occasioned by his breach of the agency relationship. Arguing the sole liability of Aetna as principal under the underlying contract, simply leaves Bogley paying Aetna on its cross-claim.

Bogley loses for similar reasons when the premise changes from Bogley as agent to the insurer Aetna, to Bogley as agent to the insured Middleton. See Reserve Ins. Co. v. Duckett, 240 Md. 591 (1965), appeal after remand, 249 Md. 108 (1968); Medical Mut. Liab. v. Mutual Fire, 37 Md. App. 706, 712-713 (1977). Maryland has held a broker or agent of insurance directly liable to an insured. In Patterson Agency, Inc. v. Turner, 35 Md. App. 651, 657 (1977), our Court recognized:

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

Though not explicitly stated, the cases following this rule generally follow an agent-principal analysis between the person seeking insurance and the broker or agent undertaking to procure the policy. The Patterson case typifies this:

“When, as here, the agent or broker fails to procure the insurance, and an intervening casualty occurs before the agent or broker can notify his principal of non-availability so that insurance might be obtained from another, the agent or broker is liable to the insured, his estate, or those claiming under him in the amount that would have been due under the policy had it been obtained.” Id. at 657 (citations omitted; emphasis added).

The principal referred to is the insured in whose behalf the agent is acting.

In the present case, Mr. Hardesty testified that Bogley had first disclosed to him the possibility of purchasing business interruption insurance. After selling Mr. Hardesty on the idea, Hardesty left it with Bogley to handle the details of providing him coverage of $10,000 a month for six months.

“Q Did there ever come a time when you and he discussed insurance?
A Yes, there was.
Q When was that?
A Approximately late summer in 1971. We were fishing, and I had found out after the fire that, in fact, there were other insurances available to cover business losses and that was business interruption.
We discussed it on the boat and arranged to meet at a later time to determine what.. .how much business interruption insurance was needed at Middleton Tavern.
Q Just how, then, did you decide on how much you needed to be insured for? What happened then?
A Mr. Bogley handled it at that point.
Q Well, what were your instructions to him at that point?
A That we needed coverage for ‘$10,000.00 a month for up to six months. Those were the continuing expenses that we would incur. There was no profit, you know. We weren’t... we weren’t able to, as far as I knew, cover profit, but we were satisfied to at least be able to stay even and be able to meet our expenses.
Q Did there come a time when a policy was.. .let me show you this letter. Do you recognize that letter,
Mr. Hardesty?
A Yes, I do.
Q And who sent it to you?
A Mr. Bogley.”

Bogley’s own testimony would in part, also support an adequate inference that he was, as alleged, acting as Middleton’s agent to obtain a business interruption policy. Included in that testimony was the inference that Bogley had sought to place the insurance with companies other than Aetna but

“[t]he only company that I talked to that would accept the risk was Aetna.”

In short, the evidence was inferentially sufficient from which the jury could have found that Bogley was first a broker and agent for Middleton to provide it the insurance protection it required. See Sun Ins. Office v. Mallick, 160 Md. 71, 82 (1931). As discussed in the Aetna-Bogley agency context, an agent owes his principal a duty of reasonable care and diligence in transacting his business. Middleton relied upon Bogley’s recommendation to place it with Aetna for whom Bogley also operated as an agent under a written agreement. The evidence was clearly sufficient to permit a consideration of contractual liability of Bogley — as agent for Middleton — to provide proper insurance coverage and to place it with a reliable company. It was equally sufficient to warrant a finding that he had breached the terms of that agreement by negligently failing to procure proper insurance coverage to protect Middleton as it required.

An annotation dealing with a broker’s failure to procure insurance, in 64 A.L.R.3d 398, 404, et seq., makes it abundantly clear that nearly all cases deciding the issue have held that an insurance agent or broker may be the agent of a proposed insured for the purpose of causing a policy to be issued, and owes his principal a duty to exercise reasonable skill, care and diligence in effecting the insurance. Such an agent or broker who undertakes to procure insurance with a view to compensation for his services, will be liable for damages resulting from his fault and neglect in failing to do so. Every case in the annotation supports implicitly, if not explicitly, that general rule, id. at 410-411; Maryland proves no exception.

In Lowitt v. Pearsall Chemical, 242 Md. 245, 254-255 (1966), facing a similar issue, id. at 248, the Court of Appeals assessed the sufficiency of the evidence required to hold an agent responsible for failure to procure a policy. It established a substantial and defined degree of care and skill. The Court made it clear that an insurance agent who undertakes to provide a specified coverage is liable in damages for negligently failing to procure such insurance.

“We shall accept the degree of care and skill

suggested by Cohen in its brief, wherein it cites Couch, Insurance 2d, § 25:37, as follows:

‘An agent, employed to effect insurance, must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his proféssion 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.’

However, we add thereto, the same author’s section 481 of Couch, Insurance, wherein he states:

‘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.’

Judge Watkins stated the rule thus:

‘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.’ Hampton Roads v. Boston Ins. Co., 150 F. Supp. 338 (D. C. Md.).”

Id. at 254-255.

This is an obvious recognition of the duty of one who sells insurance to the public to provide coverage that he had led his customer to believe he will provide, or has obtained, for him.

The jury could properly consider whether Bogley’s negligent performance of his duties resulted in a failure to provide adequate coverage to Middleton. The “breach” Middleton could recover for was Bogley’s duty of care in transacting Middleton’s business. Under this theory, Middleton could have a direct action against Bogley. It follows that if the evidence warrants it, the jury may consider it.

Appellant argues that if he is held liable, his liability can extend only to the loss approximately caused by his conduct. He contends that Aetna would have accepted a policy correctly assessing Middleton’s needs, and that he can only be held for the price difference between the premium of the policy issued and the policy needed to provide adequate coverage. He reasons that Aetna would have had the damage loss regardless, and is only injured by receiving the lower premium from the policy issued. Bogley’s argument presupposes Aetna’s willing acceptance of any policy, but the evidence presented was not so conclusive of the point.

Once the prima facie case of negligence has been made out, the burden shifts to the agent to defend. If so proven, the causal relation between the loss and his negligence is broken but for the premium difference. But the evidence that the policy would have been issued must be sufficient to overcome the empirically understood and judicially established premise, that an insurance company is under no obligation to accept an agent’s application. Edelstein v. Nationwide Mut. Ins., 252 Md. 455, 461-462 (1969); American Casualty Co. v. Ricas, 179 Md. 627 (1941).

There is in evidence Bogley’s testimony that fire insurance was hard to obtain on restaurants, and that Aetna was the only company who agreed to take even the limited risk. This implies that Aetna would not have taken the higher risk. To overcome the inference that his negligence proximately caused Aetna the loss sustained, Bogley had the burden of proving that the higher risk policy would have been accepted. He failed to meet the burden of convincing either factfinder.

— tort liability to Middleton —

Appellant argued that

“when an insured brings suit against an agent and insurer for loss under an insurance contract, combining theories of contract and tort, the agent’s exposure to personal liability to the insured is not altered by special attention to the tortious nature of the contractual breach.”

Appellant correctly recognized that where questions of contract and negligence causing a breach of that contract arise, the better analysis focuses on the contract question, i.e., whether an agency relationship existed, whether the principal was disclosed, partially disclosed or undisclosed in the questioned transaction, and what authority was vested in the agent. When these elements are addressed in the cause of action, the breach of contract commands our attention once the causal negligence of the agent is ascertained.

If the parties wished to address the agent’s negligent conduct under a tort theory, the proper focus would have been whether the Aetna-Bogley agency relationship constituted that of master-servant or independent contractor, and whether Bogley’s conduct fell within the scope of his employment. New England Ins. Co. v. Swain, 100 Md. 558, 576-578 (1905). Bogley plainly remains on center stage under a tort cause of action, because traditional tort principles apply. The agency relationship simply adds the possibility of an extra defendant, the principal. If the principal alone is sued for an agent’s tortious conduct, the same duties of an agent to his principal discussed earlier, would provide the employer with a vehicle for recompense.

Bogley bears the final liability for his conduct. He breached his duty of care to each principal in the negligent performance of his duties. While he asserted a mitigating defense to alleviate a portion of that loss, he failed in his burden of proof. The judgment of the court below will stand.

Judgment affirmed.

Costs to be paid by appellant.

      . The negligence alleged by Middleton (and presumably found by the jury), was the breach of a duty to properly advise Middleton as to the terms of Aetna’s “Business Interruption” fire insurance policy:
      “particularly the requirements of insurance to proper value and the existence of a pro rata penalty or deduction m the amount to be paid in the event of loss for failure to insure to value as required by the policy.”

      2
      ‘December 7, 1971
      Messrs. Bernard & Jerry Hardesty Middleton Tavern Annapolis, Md.
      Dear Bo and Jerry:
      , Based on the info you gave me, I have obtained a quotation from the Aetna Life and Casualty for $60,000 Business Interruption Coverage with a $367 annual premium.
      I would like to further our discussion of this type of coverage and will give you a call next week'. If this is not convenient or you want to do it sooner, please give me a call at the above number.
      Best wishes for the Holiday Season.
      Cordially
      William T. Bogley
      WTB:mt”


text:
    WILLIAM MICHAEL MacCUBBIN et ux. v. FRANCIS XAVIER WALLACE et al.
    [No. 955,
    September Term, 1978.]

      Decided April 19, 1979.

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

      Bernard Brager for appellants.

      Robert L. Simmons, with whom were C. Russell Fields and Simmons & Fields on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Appellants appeal from judgments in their favor for damages resulting from an automobile accident. The claims are that the jury in the Baltimore City Court provided inadequate compensation generally, and no damages for loss of consortium specifically. Appellants also complain that evidence of recompense from a collateral source was introduced; however, the issue was not preserved for our review, either by objection, Md. Rule 522, or by request for instruction. Md. Rule 554.

The Court of Appeals reiterated in Rephann v. Armstrong, 217 Md. 90, 93 (1958) and subsequent cases, that the size of the verdict is almost never a matter for review by the Court. See Leizear v. Butler, 226 Md. 171, 177-179 (1961), and cases cited and discussed therein; Johnson v. Zerivitz, 234 Md. 113, 118 (1964); Abraham v. Moler, 253 Md. 215, 219 (1969). Nothing in the present case suggests an exception to the rule.

If the adequacy of the verdict were subject to our review, we could say no more than that the declination of the jury to compensate for loss of consortium in any dollar amount, in the face of evidence of apparent incapacity during hospitalization, is peculiar perhaps, but not error. Nor can we say that the jury disregarded the consortium instructions, the propriety of which we note appellants do not question.

To the contrary, however, (although not noted by appellant) is the Florida appellate court’s ruling in Kinne v. Burgin, 311 So. 2d 695 (Fla. App. 1975), where the woman’s husband had also been injured in an automobile accident. The court held that the jury’s zero award to the wife’s consortium claim was improper and susceptible to an objective conclusion that the jury had not considered the wife’s damages as instructed by the court. The consortium portion of the case was severed and remanded for consideration by a jury of the competent and uncontradicted testimony of the impact that the injury had had upon the couple’s marital relations, and specifically of the wife’s consortium loss. See Annot., 74 A.L.R.3d 805, 830 (1976). We wonder, however, what the appellate court would do if the second jury also returned a zero verdict.

Whatever the rule is elsewhere, in Maryland the policy of seldom reviewing damages in jury verdicts extends to a monetary award of zero for one element of an injury (e.g., for pain and suffering), despite the jury’s acknowledgment of the

injury by awarding medical and special damages for it. Leizear v. Butler, supra. The adequacy of such a verdict is not reviewable on appeal under the decisions of the Court of Appeals, even where it includes no compensation upon a specific claim of damage. Id. at 179.

Loss of consortium, as used in Maryland, means the loss of society, affection, assistance and conjugal fellowship. Deems v. Western Maryland Ry., 247 Md. 95, 100 (1967). It “includes” the loss or impairment of sexual relations. Id. Appellants contend that the husband’s hospitalization for nearly three weeks conclusively proves their lack of access to each other. They argue that the wife was obviously deprived of sexual relations for at least that period of time, and is ipso facto entitled to monetary compensation.

Appellants’ argument requires that all jurors must value the sexual element of consortium pecuniarily. We would be compelled to rule so — as a matter of law — if we accept appellants’ argument. But we cannot preclude the possibility that twelve jurors may consider marital sexual relations so valuable as to transcend dollar evaluation, or, on the contrary, so insignificant as to be monetarily valueless for the period of deprivation. Indeed, they may have felt that the other elements of consortium — affection and platonic society — were enhanced by the hospitalization, offsetting the impairment of sexual relations. Whatever may have been their reasons, “verdicts cannot be upset by speculation or inquiry into such matters.” Dunn v. United States, 284 U. S. 390, 394; Ledbetter v. State, 224 Md. 271, 273 (1961). It is enough that the question was considered, and the record is clear in that regard:

“As to the claim of William M. MacCubbin, the plaintiff, versus Francis X. Wallace, the defendant, do you find for the plaintiff or for the defendant?
THE FORELADY: Plaintiff.
THE CLERK: At what amount do you assess damages?
THE FORELADY: $20,000.
THE CLERK: As to the claim of William M. MacCubbin and Margaret MacCubbin, the plaintiffs, and Francis X. Wallace, the defendant, do you find for the plaintiff or for the defendant?
THE FORELADY: Nothing awarded.
THE COURT: Question is whether you found in favor of the plaintiff or the defendant. I suppose you are saying it was in favor of the plaintiff but you are not awarding any damages, is that it?
THE FORELADY: That's right.
THE COURT: Plaintiffs verdict but no damages.”

Although the result reached was not error, the judicial jargon chosen by the judge to interpret the jury’s verdict was somewhat misleading. The effect of a finding of “no damages” in a negligence case is not compatible with a “plaintiff’s verdict”. Damage (or injury) is an essential element of actionable negligence just as are “duty” and “breach” essential elements of a negligence plaintiff’s proof. When there is a finding by a jury that one or more of these elements is missing the cause of action fails. Richardson v. Boato, 207 Md. 301, 305 (1955); accord, Peroti v. Williams, 258 Md. 663, 668-669 (1970).

The correct interpretation of the jury’s finding was that they had found the defendant at fault (or to have been the cause of the accident), but that the proof of any loss of consortium was wanting. The verdict as to that count was in reality a defendant’s verdict. A negligence case is in sharp contrast with the cases of the intentional tort which carry with them a presumption of injury, upon proof of which, at least nominal damages must be awarded. See, e.g., Mason v. Wrightson, 205 Md. 481, 489 (1954). The jury has found no damage and we will not gainsay its finding.

Judgment affirmed.

Costs to be paid by appellants.


author: Gilbert, C. J.,

text:
    RICHARD D. HOHENSEE v. STATE OF MARYLAND
    [No. 956,
    September Term, 1978.]

      Decided April 19, 1979.

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

      Bradford C. Peabody, Assistant Public Defender\ with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and DeLawrence Beard, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

We are here called upon to decide whether the evidence adduced at a criminal trial in the Circuit Court for Montgomery County for violating Maryland Corporations and Associations Code Annotated, Title 11, Maryland Securities Act, Subtitle 4, § 11-401 was sufficient to sustain the conviction. As a prelude to discussing the matter now before us, a brief review of some historical data relative to the Maryland Blue Sky legislation is in order.

HISTORY OF THE MARYLAND SECURITIES ACT.

According to D.H. Miller, 23 Md. L. Rev. 289 (1963), A PROSPECTUS ON THE MARYLAND SECURITIES ACT, the first Maryland law dealing with “Blue Sky” was enacted in 1920. It conferred upon “the Attorney General the power to investigate and deal with frauds in the offering and sale of securities....” Id. Following the economic disaster that befell the nation in the early 1930’s, the federal government put itself into the regulation of securities by the enactment of the Securities Act of 1933. Apparently, the federal authorities’ entry into security regulation led to a minimum of activity in the area on the part of the State. The situation seems to have remained static in Maryland until the National Conference of Commissioners on Uniform Laws and the American Bar Association approved the Uniform Securities Act in 1956.

A Joint Resolution of the General Assembly in 1961 led to the appointment of a committee “to study the Maryland situation and to report on the adequacy of the Maryland Blue Sky Law.” The Committee concluded that the Maryland law was inadequate and recommended the adoption of a version of the Uniform Securities Act. With only minor amendments, the matter passed both Houses of the Legislature and became law on July 1, 1962.

Mr. Miller states in his article that:

“The Maryland Securities Act is an attempt to do four things. First, it imposes a standard of honesty and truthfulness upon every transaction involving an offer to buy or sell a security, regardless of the size of the transaction or the sophistication (or lack of it) of the parties. This standard is implicit in the anti-fraud provisions. Secondly, it provides for the regulation of those engaged in the business of buying and selling securities. Thirdly, it regulates certain offerings of securities with the principal purpose of assuring that full disclosure of the material facts will be made to every prospective investor. Finally, it provides administrative, civil, and criminal remedies in cases where the standards prescribed by the Act are not met. In sum, the Act roughly approximates locally the coverage of the two principal federal securities laws: the Securities Act of 1933 and the Securities Exchange Act of 1934.” (Footnotes omitted.) 23 Md. L. Rev. at 291-92.

The Maryland Act was codified as Maryland Annotated Code art. 32A. A security was defined in then section 25 (1) in broad and flexible terms. Ibid. The entire Act revolved around the meaning of three words, scilicet: 1) security; 2) offer; and 3) sale. The thrust of the Act, through the registration and regulation of the offer or sale of securities, is to prevent the perpetration of fraud on the citizenry. Offers and sales generally were to be made by a “broker-dealer,” a “person engaged in the business of effecting transactions in securities for the account of others or his own account.” An “agent” was any person “other than a broker-dealer who represents a broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities.” * As with many regulatory laws, there were exceptions which took the ' form of “exempt securities” or “exempt transactions.” Among the transactions that were exempt from the ambit of the Act were:

“Any transaction pursuant to an offer directed by the offeror to not more than twenty-five persons (other than those designated in paragraph (8)) in this State during any period of twelve consecutive months, whether or not the offeror or any of the offerees is then present in this State, if the seller reasonably believes that all the buyers in this State, other than those designated in paragraph (8), are purchasing for investment; but the Commissioner may by rule or order, as to any security or transaction or any type of security or transaction, withdraw or further condition this exemption, or increase or decrease the number of offerees permitted, or waive the condition relating to their investment intent....” (Emphasis supplied.)

So much for the history of the Act. We turn now to the statute under which the prosecution was brought in the instant case.

THE LAW.

The current Maryland Securities Act, codified in Maryland Corporations and Associations Code Annotated, Title 11 tracks to a great extent its predecessor, Article 32A. It is safe to say, but for very few substantive changes, the recodification under Title 11 produced only stylistic alterations. Thus, for all intents and purposes, the 1962 Act remains intact.

Corporations Art. § 11-101 (o) defines “Security” in 141 words, a net decrease of five (5) words since the original Act of 1962. See n. 7, supra. Section 11-101 (o) now reads:

“(o) Security. — (1) “Security” means any:
(i) Note;
(ii) Stock;
(iii) Treasury stock;
(iv) Bond;
(v) Debenture;
(vi) Evidence of indebtedness;
(vii) Certificate of interest or participation in any profit-sharing agreement;
(viii) Collateral-trust certificate;
(ix) Preorganization certificate or subscription;
(x) Transferable share;
(xi) Investment contract;
(xii) Voting-trust certificate;
(xiii) Certificate of deposit for a security;
(xiv) Certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under the title or lease; or
(xv) In general, interest or instrument commonly known as a “security”; or
(xvi) Certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the preceding.
(2) “Security” does not include any insurance or endowment policy or annuity contract under which an insurance company promises to pay money either in a lump sum, periodically for life, or some other specified period.”

The appellant, Richard D. Hohensee, was charged in an eight count indictment with violating the Maryland Securities Act. Although the indictment was handed down in June 1976, the matter did not proceed to trial until April 1978. Hohensee was convicted of violating Corporations art. § 11-402. That section provides:

“It is unlawful for any broker-dealer or issuer to employ an agent unless the agent is registered. When an agent terminates a connection with a broker-dealer or issuer or terminates those activities which make him an agent, the agent and the broker-dealer or issuer shall promptly notify the Commissioner.”

An “agent,” according to section 11-101 (b) (1), is “an individual other than a broker-dealer who represents a broker-dealer or issuer in effecting or attempting to effect the purchase or sale of securities,” but the meaning of “agent” does not “include an individual who represents an issuer in: ... (ii) Effecting a transaction exempted by § 11-602 of this title....” § 11-101 (b) (3).

The statute, as did its predecessor, contains a section that exempts certain transactions from the breadth of the Securities Act. Current Title 11, § 11-602 declares in pertinent part that:

“The following transactions are exempted from §§ 11-205 and 11-501 of this title:
(9) Any transaction under an offer directed by the offeror to not more than 25 persons, other than those designated in item (8) of this section, in this State during any period of 12 consecutive months, whether or not the offeror or any offeree is then present in this State, if the seller reasonably believes that all the buyers in this State, other than those designated in Item (8) of this section, are purchasing for investment, but the Commissioner by rule or order, as to any security or transaction or any type of security or transaction, may withdraw or further condition this exemption, increase or decrease the number of offerees permitted, or waive the condition relating to their investment intent....”

Subsection 8 of section 11-602 is identical to that contained in the old law. See n. 15, supra.

Sections 11-205 and 11-501 provide:

§ 11-205:

“The Commissioner by rule or order may require the filing of any prospectus, pamphlet, circular, form letter, advertisement, or other sales literature or advertising communication addressed or intended for distribution to prospective investors, including clients or prospective clients of an investment adviser, unless the security or transaction is exempted by Subtitle 6 of this title.”

§ 11-501:

“It is unlawful for any person to offer or sell any security in the State unless:
(1) It is registered under this title; or
(2) The security or transaction is exempted under Subtitle 6 of this title.”

The penalty prescribed for violating any provision of the Act is “a fine not exceeding $5,000 or imprisonment not exceeding three years or both.” § 11-705 (a).

THE FACTS

In 1968, the appellant and his wife purchased approximately 130 acres of land near Winchester, Virginia and began to operate a trailer camp under the name of Magic Mountain. Appellant was an incorporator and director of the Virginia corporation, Magic Mountain Recreation Area, Inc. Four years later, the appellant formed a limited partnership to sell investment shares in his trailer camp. The partnership was known as Magic Mountain Park Limited Partnership. Appellant selected one James K. Brewer to sell the shares for appellant. Brewer, however, did not register with the Maryland Securities Commission as an agent for Magic Mountain Limited Partnership.

Fred G. O’Fiesh, the Assistant Securities Commissioner for Maryland, told the jury in the circuit court that the records of the State Securities Division had “no records of any registration of Magic Mountain, Inc. as a limited partnership----” Moreover, Brewer “was never registered as an agent by the Division for Magic Mountain.” The records of the Division were also negative as to appellant’s registration. The sale of limited partnership shares required registration. An inference may be drawn from the transcript of O’Fiesh’s testimony that he referred the matter of the sale of the unregistered limited partnership shares by an unregistered agent to the Montgomery County State’s Attorney’s office.

When O’Fiesh was interrogated relative to section 11-602 (9), he explained that the limitation to twenty-five offerees meant that the offering was a small closed one “without any public solicitation. They want to permit... [a] man to raise his additional capital to expand his business without the necessity of registration which requires time, effort and expense.” The witnesss further said, “That section [11-602 (9)] has been supplemented by a rule which now has a thirty-five purchaser concept____” He added, “[I]f one of the offerees can be determined not to be sophisticated and knowledgable [s/e] with respect to the venture, that also knocks out the possibility of exemption,”

Brewer identified himself at trial as an “independent insurance agent.” He acknowledged that he had pleaded guilty to a felony charge in 1977 in Montgomery County. The charge was “selling a security without a license.” As part of the disposition in that case, Brewer agreed to testify in the case sub judice.

Brewer told the jury that he met appellant “through” a Quentin Adams. Adams advised Brewer that appellant was “interested in developing a park.” A meeting occurred “in the fall of 1972” with appellant. It was agreed that Brewer and his then partner were to receive “ten percent” commission on each sale of a limited partnership interest, in addition to “a small ownership” of the business.

Brewer testified that he, his partner and four salesmen did sell limited partnership shares in Magic Mountain. He said that he, personally, made “twelve to fourteen” offerings. The four salesmen made “not more than half a dozen” offerings. There may have been three sales in addition to those made by Brewer, and they were separate from the “half dozen offers.” Brewer sold six to eight interests to individuals in Maryland. The sales were for three thousand dollars ($3,000) each, “of which fifteen hundred was to be put up in cash.” A note was taken for the balance. The total dollar value of the shares sold by Brewer, his partner and the salesmen “was in the neighborhood of a little over $43,000.00.”

During cross-examination, Brewer said that while shares in the limited partnership originally sold for $3,000 each, they were “raised to forty-five hundred”: three thousand dollars ($3,000) cash and a note for fifteen hundred dollars ($1,500). Brewer never told appellant that he, Brewer, was not a registered agent in Maryland for the purpose of selling securities. In fact, he related that because of a prior registration with a broker-dealer he thought he was permitted lawfully to sell the limited partnership interest. Moreover, he believed it was “a private placement,” and that it did not “have to be registered.” Brewer stated there were not more than “twenty-eight, thirty investors,... [so as to stay] within the framework of what we thought to be the law.” Brewer testified that thirty-five to forty would be an accurate figure as to the total number of offerees.

When asked how many offers were made outside of Maryland, Brewer replied, “Percentage-wise, maybe half; fifty percent of the offers were made outside of the State of Maryland.” The trial judge then asked, “Fifty percent in the State and fifty percent outside of the State?” Brewer answered, “Right. Outside the State does not include the District of Columbia.” (Emphasis supplied.)

Later on, in response to the questions “How many offers did you make in the State of Maryland? Do you have any way of telling?” Brewer admitted, “Not really.”

Because appellant did not “register the limited partnership” by filing it in the appropriate courthouse, Brewer and his group “called a halt to ... [the] selling.”

The record indicates that the appellant proposed to file the limited partnership agreement when all the shares available for sale were sold. Matters never reached that point, however, because with the exit of Brewer and his crew, the “Magic” was gone and the “Mountain,” figuratively speaking, fell on appellant Hohensee in the form of an indictment.

In this Court, the appellant strongly contends that the evidence is insufficient to sustain the conviction.

It is apparent from the testimony that the sale of the limited partnership shares fell within the exemption set out in section 11-602 (9) in that offers were made, according to the evidence produced by the State, to thirty-five to forty persons, half of whom were outside the State of Maryland. No more than 17 to 20 offers were made within Maryland. Moreover, Brewer treated the District of Columbia as being part of the State of Maryland in arriving at the 17 to 20 figure. Thus, Brewer’s estimate is grounded on a false premise. Nevertheless, if we accept it as true, arguendo, the number of offerings is still less than the twenty-five permitted by section 11-602 (9).

The employment of Brewer as an agent, by the appellant, was for the purpose of making offers of sale of an exempt transaction. That being the situation, it was immaterial that the agent was not registered with the Securities Commissioner.

The count of the indictment upon which appellant was convicted specifically charged that the appellant unlawfully employed an unregistered agent, but as we have seen the evidence shows that there was no need for the agent to be registered because the offering was exempted from the ambit of the Maryland Securities Act by section 11-602 (9).

In our view, the evidence failed to demonstrate that the appellant was guilty of the offense charged. In fact, the evidence clearly established that he was not guilty of the offense charged because of the exemption conferred by section 11-602 (9). The motion for judgment of acquittal as to Count I should have been granted.

Judgment reversed.

Costs to be paid by Montgomery County.

      . Mr. Miller was the Securities Couipiissioner for the State of Maryland at the time he wrote the article. An excellent article on the subject of deceit in securities transactions may be found in H.M. Bruñe, RULE 10b-5 AND THE GENERAL LA WAS TO DECEIT IN SECURITIES TRANSA CTIONS IN MARYLAND, 33 Md. L. Rev. 129 (1973).

      . In Hall v. Geiger-Jones Co., 242 U. S. 539, 550, 37 S. Ct. 217, 220-21, 61 L. Ed. 480, 489 (1917), “Blue Sky” refers to a “security” which may be far from secure, if indeed not actually “insecure.” It means that the “security” has no more basis than “so many feet of blue sky.” See also D.H. Miller, 23 Md. L. Rev. 289, n. 2.

      . D.H. Miller, 23 Md. L. Rev. 289 (1963), supra, at 290-91.

      . Id at 291.

      . REPORT OF COMMITTEE TO STUDY THE ADMINISTRATION OF THE BLUE SKY LAW OF MARYLAND, 1961. See also 23 Md. L. Rev. at 291

      . 23 Md. L. Rev. at 291.

      . Former Md. Ann. Code art. 32A, § 25 (1) defined “security” as:
      “any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; or, in general, any interest or instrument commonly known as a “security, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. “Security” does not include any insurance or endowment policy or annuity contract under which an insurance company promises to pay money either in a lump sum or periodically for life or some other specified period.”

      . See Md. Ann. Code (1957 ed.) art. 32A, § 25 (j) (2).

      . Supra, n. 8, § 25 (j) (1).

      . Aid. Ann. Code (1957 ed.) art. 32A, § 25 (b).

      . Supra, n. 10, § 25 (a).

      . Ma. Ann. Code (1957 ed.) art. 32A, § 26 (a).

      . Supra, n. 12, § 26 (b).

      . Ibid., § 26 (b) (9).

      15. Md. Ann. Code (1957 ed.) art. 32A, § 26 (b) (8), not applicable here, provided:
      “Any offer or sale to a bank, savings institution, trust company, insurance company, investment company as defined in the Investment Company Act of 1940, pension or profit-sharing trust, or other financial institution or institutional buyer, or to a broker-dealer, whether the purchaser is acting for itself or in some fiduciary capacity....”

      . At the close of the State’s case, the trial judge granted a judgment of acquittal as to five counts of the indictment. The case went to the jury on the remaining three counts. Appellant was convicted on Count I, but found not guilty on the other two charges.

      17. The changes between the present statute and the former one, quoted above, are stylistic only. We do note that there is nothing in the record to indicate any rule or order on the part of the Commissioner that withdrew or conditioned the exemption, but the Code of Maryland Regulations, Title 02 of the Law Department, Subtitle 02, Division of Securities, Chapter 02, Section .07, does set forth the Commissioner’s rule relative to transactional exemptions. The content of the rule, however, was not made known to the trier of fact in the instant case, nor is there any evidence to indicate a violation of the rule had it been made known.

      18. The Revisor’s note states:
      “This section formerly appeared as Article 32A, § 27. The only changes are technical changes in style.”

      . The statute provides in section 11-604 that:
      “In any proceeding under this title, the burden of proving an exemption or an exception from a definition is on the person claiming it.”
      The constitutionality of the burden of proof proviso is not raised on appeal. We do not decide it. But see Evans v. State, 28 Md. App. 640, 349 A. 2d 300, aff’d, 278 Md. 197, 362 A. 2d 629 (1976).

      . Regardless of whether the appellant carried the “burden” of proving that the transactions in the instant case were exempted from the Securities Act, the evidence clearly demonstrates that the “burden” was met. See n. 19, supra.

      . If we had not reached this result today, we, nonetheless, would be constrained to vacate the sentence and remand for resentencing. The record clearly shows that the trial judge imposed a two-year sentence, which he then suspended, thereafter imposing a two-year term of probation, subject to the special condition that Hohensee pay the Public Defender’s fee. After determining what amount the appellant was able to pay, the court increased the term of probation to three years. While conditioning probation on payment of the Public Defender’s fee is permissible, Md. Ann. Code art. 27A, § 7 (g), c.f., Haynes v. State, 26 Md. App. 43, 337 A. 2d 130 (1975), the increase in the term of probation violated Rule 774 (b). That rule gives the trial court broad revisory power over the sentence for a period of ninety days. However, the rule patently lorbids any increase m the sentence, consequently, the increase m the term of probation was impermissible.