text:
    THE SUBSEQUENT INJURY FUND v. DOROTHY J. BAKER
    [No. 1008,
    September Term, 1977.]

      Decided October 11, 1978.

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

      E. George Bendos, Assistant Attorney General, with whom was Francis Bill Burch, Attorney General, on the brief, for appellant.

      Joel H. Pachino, with whom were Friedman, Pachino & Friedman on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The sole issue we are concerned with on this appeal is whether the doctrine of res judicata precluded the Workmen’s Compensation Commission (Commission) from reopening and modifying its award to Appellee, Dorothy J. Baker, against the Subsequent Injury Fund (Fund), Appellant.

On October 4, 1973, Carlton Baker sustained a fracture of his right arm in the course of his employment. While in the hospital for treatment of this injury it was discovered that he had multiple myeloma, a form of bone cancer, which antedated the accidental injury. As a result of this pre-existing condition the Fund was impleaded and made a party to the case. On September 3, 1974, the Commission found that Baker was permanently and totally disabled and awarded him benefits in the amount of $45,000. The employer-insurer was ordered to pay $6,667 of this amount based on a finding by the Commission that the accidental injury caused Baker to sustain a 40% loss of use of his right' hand. The Fund was ordered to pay the balance, $38,333. The employer-insurer filed an appeal to the Circuit Court for Baltimore County from this decision; the Fund, however, did not appeal.

On October 20, 1975, a hearing was held on the employer-insurer’s motion for summary judgment based on the case of Gillespie v. R & J Construction Co., 275 Md. 454 decided July 8, 1975. That case held that the Workmen’s Compensation Commission .cannot award a greater disability for the loss of an eye than the: highest medical rating. In this case :the highest medical rating was 20% loss of use of the arm whereas the Commission awarded Baker 40% loss of use of' the hand. Judge Turnbull in ruling on the motion for: summary judgment said:

“Gentlemen, I think in the light of the Gillespie case, the matter must be remanded so that the Workmen’s Compensation Commission can pass an order in light of the decision of the Court of Appeals. I will sign an Order remanding this case to the Workmen’s Compensation Commission for further proceedings in light of the decision of the Court of Appeals of Maryland in Gillespie v, R. & J. Construction Company.”

On remand of the case to the Commission, the Fund filed additional issues and requested the Commission to modify its prior award against the Fund on the basis of the case of Subsequent Injury Fund v. Thomas, 275 Md. 628, decided August 6,1975. In Thomas, supra, the Court held, in essence, that the Fund is not liable for a disability caused by the deterioration of a pre-existing impairment which arises after a subsequent compensable injury and is neither aggravated nor accelerated by the subsequent compensable injury. Based on Thomas, supra, the Commission modified its prior order by eliminating the $38,333 it had awarded to Baker against the Fund, but it affirmed the award of $6,667 against the employer-insurer. From this decision the employer-insurer and claimant appealed. After a hearing Judge Land passed an order restoring the claimant’s award of $45,000. The employer-insurer was directed to pay $2,100 which represented a 20% loss of use of the hand, and the Fund was ordered to pay the balance, $42,900. In reaching this decision the lower court reasoned that because the Fund did not appeal the original order of the Commission directing it to pay Baker $39,990, that order was res judicata and the Commission exceeded its authority on remand by reopening the case and hearing issues that were previously determined. We disagree.

In Alvey v. Alvey, 225 Md. 386, 390 (1961) the Court of Appeals, in explicating the doctrine of res judicata stated: “The doctrine of res judicata is that 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, . . . .” Accord, MPC, Inc. v. Kennedy, 279 Md. 29, 32 (1977); Frontier Van Lines v. Maryland Bank & Trust Co., 274 Md. 621, 623 (1975).

The extent to which the doctrine of res judicata applies to determinations of administrative agencies in this state is still unclear. In White v. Prince George’s County, 282 Md. 641, 658 (1978) the Court said:

“Although early cases often made the sweeping statement that decisions of administrative agencies can never be res judicata, this Court later came to recognize that the principles of public policy underlying the rule of res judicata were applicable to some administrative agencies performing quasi-judicial functions.
“The Tax Court is an administrative agency performing a quasi judicial function, as opposed to a court performing a judicial function, because of the limitations in the Maryland Constitution concerning the establishment of courts and the performance of judicial functions. Shell Oil Co. v. Supervisor, supra. Nevertheless, under the provisions of Art. 81, §§ 224-231, it functions in many respects as a court. Among other things, the Tax Court has the power to issue subpoenas to compel the attendance of witnesses and the production of documents (§ 231); it is directed to conduct its proceedings ‘in a manner similar to proceedings in courts of equity in this State’ (§ 229 (c)); and its ‘order is final and conclusive’ unless an appeal to the courts is taken (§ 229 (i)). Particularly in light of this latter provision, we believe that the decisions of the Tax Court have res judicata effect.”

See also Cecil County Commissioners v. Racine, 24 Md. App. 435 (1975) where the doctrine of res judicata and its application to determinations of administrative agencies was comprehensively reviewed. There, as here, we were urged to apply the doctrine of res judicata not to a factual finding by an administrative agency, but to a mistaken interpretation of the law. In refusing we held:

“... the principle of res judicata should not apply to an erroneous determination of law by an administrative body.
“We are guided to our conclusion by the language used in a very recent decision of the Court of Appeals of Maryland. Criminal Injuries Compensation Board v. Joseph D. Gould, 273 Md. 486, 331 A. 2d 55 (1975), where it was said at 521 [76]:
‘Mistaken interpretation of law, however honestly arrived at, are held not to be within the exercise of sound administrative discretion and the legislative prerogative, but to be arbitrary and illegal.’
“Perpetuation of illegality by an administrative body by inflexible application of the principle of res judicata is impermissible.” Id., at 452.

See Davis, Administrative Law, § 18.03 at 566 (1958) where it is said:

“The desire for repose on which res judicata rests relates primarily to findings of fact; repose on lively problems of law may even be affirmatively objectionable. A tribunal ought not to be barred from using trial-and-error methods of feeling its way into an undeveloped frontier of law and policy. Even when the principle of res judicata should be rigidly applied to findings of fact, some relaxation of its application to rulings of law may be indicated. Many factors may argue against conclusive effect of an administrative decision of a question of law — the function may be somewhat non-judicial, law, and policy may be in a state of flux, substantive reasons may require that the agency’s authority to protect the public interest should remain unfettered, the administrative procedure may not have been geared to a careful consideration of the question of law, the agency may have been poorly staffed for deciding the question, or the legislative intent may have been that the agency’s decisions of law should not be binding.”

The general rule in other states is that the doctrine of res judicata applies to decisions of compensation boards and commissions no less than to the decisions of a court. A. Larson, 3 The Law of Workmen’s Compensation Acts, Section 79.071 at 15-307-324 (1976). See also Annotation, Res Judicata as Regards Decisions of Awards to Workmen’s Compensation Commission Acts, 122 A.L.R., 550 et seq. Whether the doctrine of res judicata applies to workmen’s compensation decisions in this state has never been directly answered other than in a collateral proceeding.

In Criminal Injuries Compensation Board v. Gould, 273 Md. 486 (1975) after the Workmen’s Compensation Commission had determined that Gould, a cab driver and victim of a robbery, was not entitled to compensation because he was an independent contractor, the Criminal Injuries Compensation Board, in denying his claim, re-determined his status and ruled that he was an employee rather than an independent contractor. The Court of Appeals held:

“Since the Commission had jurisdiction over Gould’s status and did, upon the undisputed facts, determine as a matter of law that he was an ‘independent contractor,’ that decision was subject only to appellate review in the courts as provided by Art. 101, § 56; when no appeal was taken, the decision was final and not subject to being controverted in a collateral proceeding. See Taylor v. Ramsay Co., 139 Md. 113, 124, 114 A. 830, 834 (1921). See also Cogley v. Schnaper & Koren Constr. Co., 14 Md. App. 322, 327-28, 286 A. 2d 819, 822-23 (1972).
“Although the doctrine of res judicata has been held not to apply to decisions of administrative agencies, see Gaywood Ass’n. v. M.T.A., 246 Md. 93, 99, 227 A. 2d 735, 738 (1967); see also L. Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1, 20-24 (1964), we here conclude that the decision by the Commission that Gould was an ‘independent contractor’ was conclusive and not subject to collateral attack by the Board upon its own initiative.”

In any event, as we perceive it, the doctrine of res judicata even if applicable to decisions of the Workmen’s Compensation Commission is necessarily limited in its effect by Maryland Code, Article 101, Section 40 (c) (1978 Cum. Supp.) which provides:

“(c) Modifications or changes. — The powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified; provided, however, that no modification or change of any award of compensation shall be made by the Commission unless application therefor shall be made to the Commission within five years next following the last payment of compensation.”

The power of Workmen’s Compensation Commissions to re-open and modify awards is statutorily permitted in most states. Some statutes limit re-opening to change in conditions, others to mistake, fraud, error or newly discovered evidence. Maryland, which has one of the broadest re-opening statutes, not only gives the Commission continuing jurisdiction over each case, it also invests the Commission with blanket power to make such changes as in its opinion may be justified. See, generally, A. Larson, 3 The Law of Workmen’s Compensation, Sections 81-30 to 81-53. See also Annotation, Res Judicata As Regards Decisions of A wards to Workmen’s Compensation Acts, 122 A.L.R. 550-557. It is settled law in this State that the Commission has the power to re-open a case even for consideration of questions previously decided. E.g., Stevenson v. Hill, 170 Md. 676, 681-84 (1936); Subsequent Injury Fund v. Compton, 28 Md. App. 526, 533 (1975), aff'd. Anchor Motor Freight, Inc. v. Subsequent Injury Fund, 278 Md. 320, 328 (1976). See also M. J. Pressman, Workmen's Compensation in Maryland, 482-89 (2d ed. 1977).

Nothing in Section 40 (c) supra, limits, as urged by the Appellee, the re-opening of a case to instances where there is a change of facts or newly discovered evidence. Nor does the statute preclude the Commission from re-opening a case in which it has mistakenly interpreted the law. In Bartlett Hayward Co. v. Industrial Accident Commission, 265 P. 195 (1928), the claimant, who was blind in his left eye, lost the sight of his other eye in a work-related accident. In 1923, the California Industrial Accident Commission awarded him a 25% disability for the loss of sight in his right eye. No appeal from this decision was taken. In 1926, the California Supreme Court ruled in a case with identical facts that the Petitioner was entitled to a permanent total disability award. In 1927, the claimant requested the Commission to amend its findings and award him a rating of 100% disability. The Commission amended the award as requested. The employer-insurer appealed contending that the Commission did not have the power to increase the award.

The relevant statutory section on the power of the Commission to re-open provided:

“The commission shall have continuing jurisdiction over all its orders, decisions and awards made and entered under the provisions ... of this act and may at any time ... rescind, alter or amend any such order, decision or award made by it upon good cause appearing therefor....” Id. at 197.

The Supreme Court of California held that the continuing jurisdiction granted to the Commission by this section was:

“Not limited to the consideration of changes in the physical condition of the workman, but is extended to the right to rescind, alter or amend the orders, decisions, or awards upon good cause appearing therefor. What constitutes ‘good cause’ depends largely upon the circumstances of each case. The term is relative. It may be assumed that the determination of the commission as to what constitutes ‘good cause,’ while entitled to great weight, would not be conclusive. Certainly it may be said, so far as the facts in the present case are concerned, that the mistake or inadvertence of the commission in giving the injured workman, ... a rating of 25 per cent, permanent disability, when as a matter of law on the undisputed facts he was entitled to a rating of 100 per cent, permanent disability, would constitute ‘good cause’ for the exercise of continuing jurisdiction of the commission.” Id. at 199.

Accord, State Compensation Insurance Fund v. Industrial Accident Commission, 166 P. 2d 310, 313-15 (1946).

In Stearns Coal & Lumber Co. v. Vanover, 91 S.W.2d 518 (1936), the statute permitted reopening for “a showing of change of conditions, mistake or fraud. . . .’’The employer sought to reopen the case on the ground of a mistake of law. The claimant argued that the statute was limited to mistakes of fact. The Court of Appeals of Kentucky after noting with approval that Bartlett Hayward Co., supra had held that a mistake of law constituted good cause for the exercise of the Commission’s continuing jurisdiction, stated:

“Clearly, if a mistake of law is ‘good cause’ for review of an order or decision of the board, it is not perceived why our statute authorizing a review on the ground of mistake should not include mistakes of law as well as fact. Indeed, the plain purpose of the statute is to enable the board to deal with the situation in such a way as to prevent an injustice being done. We therefore conclude that, unless the case has been passed on by the court on appeal, the board may at any time within the period for which compensation is allowed change or revoke any order on the ground of mistake of law.” Id. at 519.

Cf. United Dredging Co. v. Industrial Accident Commission, 284 P. 922 (1930). There it was held that the continuing jurisdiction of the Commission to alter its award for “good cause” does not apply if the Commission’s decision on the legal issues involved in the case has been upheld by a court.

Regarding the contention of Appellee that the original award of the Commission was res judicata because the Fund failed to appeal, we think the case of Freeland v. Couplin, 211 Md. 160 (1956), is dispositive of that contention. There the claimant filed a claim for compensation because of the death of her husband while in the employ of Charles Freeland and Sons, Inc. The Commission dismissed her claim on the grounds that the deceased was an independent contractor. The claimant filed an appeal from this decision to the wrong court and by the time the error was discovered, it was too late for her to appeal to the proper court. Months later claimant’s petition to the Commission to re-open the case was granted. After a hearing, the Commission reaffirmed its prior decision rejecting the claim. An appeal to the proper court was taken, where a jury rendered a verdict in favor of the claimant. The Court of Appeals in affirming held, that the Commission had the power to re-open the case by virtue of Article 101, Section 53 (now Section 40 (c)).

Finally, in the absence of an explicit ruling by Judge Turnbull on the legal issues involved in the case, we do not think his remand “for further proceedings in the light of the decision of the Court of Appeals of Maryland in Gillespie v. R. & J. Construction Company, ...” foreclosed the Commission from exercising its continuing jurisdiction in re-opening the case and rescinding its prior award to Appellee.

Judgment reversed.

Appellant to pay .costs.

      . Appellee is the widow of Carlton Baker, deceased claimant, who died on or about February 4, 1976.

      . The issue as to whether the Fund was an automatic party to the prior appeal was not argued and is not decided.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    JOHN HENRY HALEY v. STATE OF MARYLAND
    [No. 1081,
    September Term, 1977.]

      Decided October 11, 1978.

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

      Owen M. Taylor; Assigned Public Defender; with whom was David L. Prestemon on the brief, for appellant.

      Ray E. Stokes, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Andrew L.

      Sonner, State’s Attorney for Montgomery County, and Irma S. Raker, Assistant State’s Attorney for Montgomery County, on thé brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

John Henry Haley, the appellant, was convicted in a jury trial, in the Circuit Court for Montgomery County, on various counts of armed robbery, assault and battery, the use of a handgun in the commission of a felony, and unlawfully carrying a handgun. A sentence of twenty years was imposed on the armed robbery conviction together with concurrent lesser sentences on the other convictions. Thereafter, appellant noted this appeal and has raised the following issues for our determination.

I. Whether the trial court erred by conducting a portion of the voir dire examination at a bench conference while the appellant remained at the counsel table.

II. Whether the trial court erred in refusing to ask certain questions during examination of the prospective jury panel on voir dire.

III. Whether the trial court erred by completing the trial when the appellant failed to appear on the second day of trial.

I. The Exclusion of Appellant from Bench Conferences at Which a Portion of the Voir Dire was Conducted

During the course of the examination of the prospective jurors on voir dire, several bench conferences took place at which the court examined individual veniremen in the presence of counsel while the defendant apparently remained at the counsel table. Eleven prospective jurors were so examined, with three being excused for cause by the court. Six were later challenged by the State and two by the defendant during the peremptory challenge phase of the jury selection. Accordingly, none of the persons examined at the various bench conferences actually served on the jury which convicted appellant.

Appellant cites Maryland Rule 724 a and Bunch v. State, 281 Md. 680, 381 A. 2d 1142 (1978) to support his argument that the absence of the appellant from those bench conferences violated his right to be present at every stage of his trial. To sustain this contention it must be shown (a) that the bench conferences were stages of the trial at which appellant had a right to be present, (b) that the appellant was not, in fact, present, and (c) that the appellant did not waive his right to be present.

A. The Bench Conferences as a Stage of the Trial

Maryland Rule 724 a states:

“The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by these Rules.”

The phrase “impaneling the jury” as used in Rule 724, and formerly in Rule 775, must be taken to include more than simply the swearing of the twelve individuals who are to try the case. It is, of course, fundamental to the right of trial by a jury that the members of that body be impartial and unbiased. The purpose of examination on voir dire is to help meet this basic tenet of a jury trial by separating from the panel those prospective jurors who cannot render a fair and impartial verdict based solely upon the law and the evidence. Accordingly, the voir dire examination is perhaps the most important step in the selection of a jury. Unless the phrase “impaneling the jury,” as used in Rule 724, includes the voir dire examination the right of the defendant to be present, which that Rule guarantees, is empty and useless. It is only during such steps of jury selection as the voir dire and peremptory challenges that the defendant’s presence has any substantial meaning, for only then is he able to participate in the selection of the men and women who will try his case.

Several cases have recognized either explicitly or implicitly that the process of culling out possibly biased prospective jurors is part and parcel of the process of impaneling a jury. Most recently, in Bunch v. State, supra, the Court of Appeals held that a bench conference concerned with the possible prejudice of a juror and conducted after the trial had commenced, but in the absence of the defendant, violated the defendant’s right to be present at every stage of his trial. While the case is not factually identical to the one here under consideration, the Court provided guidance for the resolution of the present question:

“Long ago the Supreme Court held that proceedings during the impaneling of the jury, and involving challenges to prospective jurors on the ground of bias, constituted a stage of the trial at which the defendant had a right to be personally present, Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884). Mr. Justice Harlan for the Court there explained, in language fully applicable to any proceeding involving a question of who should be on the jury (110 U. S. at 578):
‘The prisoner is entitled to an impartial jury composed of persons not disqualified..., and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court ... in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, ... the trial commences at least from the time when the work of impaneling the jury begins.’
“The holding in Hopt was reiterated by the Court a few years later in Lewis v. United States, 146 U. S. 370, 13 S. Ct. 136, 36 L. Ed. 1011 (1892).
“The provision in Maryland Rule 724, and its predecessor Rule 775, specifically including the impaneling of the jury as a stage of the trial at which the defendant’s presence is required, embodies the holding of the Supreme Court in Hopt v. Utah, supra, and Lewis v. United States, supra. The reason for the provision, as set forth by the Supreme Court in Hopt, is that the defendant, being entitled to an impartial jury, may give aid to his counsel and the court in the selection of who should be on the jury.” 281 Md. at 686-87. (Footnote omitted).

See also, Impaneling or Selection of Jury in Accused’s Absence, 26 A.L.R.2d 762 (1952).

There can be no doubt, therefore, that examination of prospective jurors on their voir dire is a stage of the trial at which the defendant has a right to be present. The bench conferences here in question were clearly a significant part of the voir dire examination. They were conducted for the purpose of further, semi-confidential, questioning of prospective jurors on the issue of whether those so questioned would be able to return a fair and impartial verdict. Consequently, those conferences did constitute a stage of the trial at which the appellant was entitled to be present by virtue of Rule 724.

We recognize that a criminal defendant does not have the right to be present at every bench or chambers conference that may be conducted during the course of the trial. There are occasions when such conferences constitute not a stage of the trial but rather a suspension of the trial while the court takes up collateral matters or questions of law which must be resolved before the case can continue. See, e.g., Brown v. State, 272 Md. 450, 325 A. 2d 557 (1974) (chambers and bench conferences concerning the admissibility of evidence and the violation of a sequestration order held not material stages of the trial); Veney v. Warden, 259 Md. 437, 271 A. 2d 133 (1970) (discussion in chambers of proposed procedures concerning sequestration of the jury); Martin v. State, 228 Md. 311, 179 A. 2d 865 (1962) (chambers hearing on motion for judgment of acquittal); Brown v. State, 225 Md. 349, 170 A. 2d 300 (1961), cert. denied, 372 U. S. 960 (1963) (proposed jury instructions and arguments relating thereto considered by judge and counsel in chambers); Sewell v. State, 34 Md. App. 691, 368 A. 2d 1111 (1977) (conference concerning disclosure of informant); State v. Tumminello, 16 Md. App. 421, 298 A. 2d 202 (1972) (conferences on the admissibility of evidence). A bench conference at which the court actually conducts a portion of the voir dire, however, does not fall within the category of a collateral matter. It is an integral and substantial part of the process of impaneling the jury and, therefore, of the trial itself. A defendant, facing the possibility of a criminal conviction, ought to be able to participate in the selection of those who will determine his guilt or innocence. Rule 724 guarantees him the right to do so.

The State argues only that under Hunt v. State, 12 Md. App. 286, 278 A. 2d 637, cert. denied, 263 Md. 715 (1971), voir dire examination is not a part of the trial. To the extent that Hunt v. State can be said to support such a ruling it was overruled by Bunch v. State, supra. See also, Redman v. State, 26 Md. App. 241, 337 A. 2d 441 (1975) and State v. McKenzie, 17 Md. App. 563, 303 A. 2d 406 (1973). .

B. The Presence of the Appellant

Although the appellant was present in the courtroom when the subject bench conferences took place, the record does not show whether or not he was present at the bench during those discussions. We cannot and do not presume he was present from a silent record, but we can and do require, as a matter of state procedure, that the complete facts be brought out in post conviction procedures. We followed this procedure in Green v. State, 23 Md. App. 680, 683, 329 A. 2d 731 (1974), cert. denied, 274 Md. 728 (1975). Compare Bunch v. State, supra, and Redman v. State, supra, where the records on direct appeal were clear that the accused was not present at critical times. See also, State v. Zimmerman, 261 Md. 11, 273 A. 2d 156 (1971).

C. Waiver

The right of a criminal defendant to be present at every critical stage of his trial is personal to the defendant and cannot be waived by counsel. Bunch v. State, supra; Brown v. State, supra; Midgett v. State, 216 Md. 26, 139 A. 2d 209 (1958). The record does not indicate whether or not the appellant waived his rights under Rule 724. This, too, can be determined in post conviction procedures as set out above, if it is first determined that appellant was not present at the bench conferences.

II. The Omitted Voir Dire Questions

Appellant submitted the following questions, among others, to the court for the purpose of having them asked during examination of the prospective jurors on voir dire.

“10. Is there any member of the prospective jury panel who has ever been the victim of a crime?
“11. Does any member of the prospective jury panel have a relative or a close personal friend who has been the victim of a crime?
“12. Does any member of the prospective jury panel know anyone personally who has been the victim of a robbery?”

The trial judge declined to ask the questions as thus submitted but, instead, made the following inquiry:

“Is there any member of the prospective panel, or any member of your immediate family, who has ever been a victim of a crime? That’s the first part, and as a result of that experience, either of yourself or a member of your family, it would be difficult or impossible for you to render a fair and impartial verdict in this case? Now, ladies and gentlemen, stand or raise your hand only if your answer is yes to both parts, that you or a member of your family has been a victim of a crime and by reason of such prior experience you believe it may be difficult for you to render a fair and impartial verdict in this case----”
“Does any member of the prospective jury panel have such opinion or belief concerning the crime of robbery, or concerning the use of handguns in criminal offenses of any kind, as would make it difficult or impossible for him to render a fair and impartial verdict in a case such as this and involving these allegations?”

Defense counsel took exception to the modification and requested that the original questions numbered 10, 11, and 12, as quoted above, be put to the prospective jurors. This request was denied.

Appellant contends that the effect of the court’s refusal to ask the above questions “was to deny the defense information concerning the experiences of jurors which might affect their attitudes towards the pending case,” thereby denying him the opportunity to make full use of his peremptory challenges.

The following passage from Couser v. State, 282 Md. 125, 138-39, 383 A. 2d 389 (1978) disposes of this question:

“The constitutional right to an impartial jury is basically protected by questioning on voir dire examination aimed at exposing the existence of cause for disqualification and the law of this State accordingly so limits the scope of the information which may be obtained as a matter of right; it does not encompass asking questions designed to elicit information in aid of deciding on peremptory challenges. Mason v. State, 242 Md. 707, 218 A. 2d 682 (1966); McGee v. State, 219 Md. 53, 146 A. 2d 194 (1959); Curtis v. State, 4 Md. App. 499, 243 A. 2d 656 (1968).”

III. Appellant’s Failure to Appear on the Second Day of Trial

The trial of this case commenced on November 30,1976. At the conclusion of the presentation of evidence on that day the court excused the jury until the following morning. After the jurors had left the courtroom the court then raised sua sponte the matter of the appropriateness of the appellant’s bond. The court made the following observations before hearing from counsel on the matter: the defendant had been late for his appearance on the date originally set for the start of the trial (November 29); he had been late on the day the trial actually began (i.e., November 30,1976); the defendant resided in the District of Columbia and did not have a telephone at his residence; defense counsel had filed a motion to strike his appearance based on the defendant’s failure to cooperate in the preparation of the case; and the evidence so far presented “had ... changed the posture of the case.” The evidence referred to by the court was extremely damaging to appellant and included an in-court identification of the appellant as the perpetrator of the crimes charged.

Defense counsel attempted to minimize the appellant’s previous tardiness, citing extenuating circumstances such as the weather and appellant’s lack of familiarity with the jurisdiction in which he was being tried, and pointed out that appellant had been in court when prior motions were being heard even though his presence then was not required. Counsel also stated that he had a telephone number through which appellant could be reached and this was confirmed by the appellant himself. There was some indication that the appellant might have been due for trial the next day in the District of Columbia but this was never made certain one way or another.

The court initially determined to increase the amount of the appellant’s recognizance by imposing a twenty per cent cash bond as opposed to the previous ten per cent. The court recanted, however, after further argument by defense counsel and, instead of increasing the recognizance, issued a stern and explicit warning to the appellant that he must appear on time the following morning and that if he failed to do so the trial would continue without him. Further, the trial judge instructed appellant that if he appeared to be detained in the District of Columbia court, to inform that court that he was in trial in Montgomery County and that if the judge in the District of Columbia had any questions he should telephone the trial judge directly.

At 9:30 a.m. on December 1, the appellant failed to appear as scheduled. Thereupon the following discussion took place between the court and defense counsel:

“The Court: Mr. Bours, is your client here?
Mr. Bours: I am afraid I have to report he is not, Your Honor.
I would like to ask for a brief recess to confer with the State about a couple of matters before we proceed.
The Court: I had bad feelings about your client last night, Mr. Bours.
All right, we will take a few minutes for you to talk to the State. Tell me what attempt you made to get in touch with your client. When did you last see your client last evening?
Mr. Bours: After we left the court room we went to my office and he and his wife were there until about 8:30, perhaps a little later than that. We also called the attorney who was representing him in the proceedings in the District of Columbia. This morning we reached him and took care of that and gave him all of the information on this case.
The Court: Did he understand that his client was to come here and not there?
Mr. Bours: Yes, and he also had your name and telephone number at the court house.
The Court: Was he scheduled for the Superior Court or the District Court?
Mr. Bours: I cannot say that I am certain that it was the Superior Court. But we talked for quite some time about the case and I quite frankly expected the defendant to be here.
The Court: What time did you tell him to be here this morning?
Mr. Bours: 8:45.
The Court: It is now 10:07. Have you made a call to the number that you have down?
Mr. Bours: I left my telephone number in the court room. I did not want to disrupt the proceedings.”

The court then instructed the Assistant State’s Attorney to undertake an investigation as to the appellant’s whereabouts and a short recess was taken.

The court reconvened at 11:02 a.m. at which time it inquired whether the appellant had been located. Defense counsel stated that his efforts to contact the appellant through two different telephone numbers, which the appellant had furnished, were unsuccessful. He further reported that his office had received no calls from the appellant and that an inquiry to the District of Columbia jail also had proven fruitless.

The State then called upon one Detective Howell to relate the efforts made by it to locate the appellant:

“Detective Howell: I talked to Mr. Johnson, an employee for D.C. Police Department, and they have a teletype system which shows all records of any injured subjects being transported by the D.C. Police Department or by any ambulance service; and as of 9:00 p.m. last night until 10:34 a.m. this morning, they have no record of a John Henry Haley being transported by D.C. Police or ambulance service.
I also had conversation with Miss McBride who is the receptionist at the Admitting Office of Howard University Hospital in D.C.[]
She advises that since 9:00 p.m. and to 10:40 a.m. this morning, no one by the name of John Henry Haley has received any emergency treatment or has been admitted.
I also talked with Detective/Sergeant Robert of the Fourth Precinct of the District Police Department, Metropolitan Police, and as of 10:54 a.m., he has not received any reply from his uniformed officers who are responding to 810 Otis Street, Northeast and also 911 Monroe Street.
Mr. Bours: I don’t have 810 O Street, Southeast.
Detective Howell: Excuse me?
Mr. Raker: 911 Monroe Street
Mr. Bours: Are you certain you said Northeast?
Detective Howell: Yes. He advised he would be a few more minutes before he gets reply from his uniformed officer, correct.
Your Honor, that is Third District, not Fourth.
The Court: All right, thank you.
Detective Howell: Yes, sir.”

Thereafter, the court forfeited the appellant’s bond and proceeded with the trial to its conclusion, denying defense counsel’s motion for a mistrial based on the absence of the defendant.

On June 6, 1977, the appellant was sentenced by Judge McAuliffe. At that hearing it was revealed that the appellant had been apprehended in the District of Columbia on December 13 or 15,1976, two weeks after his failure to appear for the concluding day of his trial. During its remarks the court twice referred to the appellant’s failure to appear on December 1,1976. After the sentences were imposed defense counsel then took up the matter of the forfeiture of the bond. At no point in any of the proceedings was any explanation offered concerning the appellant’s absence on the second day of his trial.

Maryland Rule 724 c provides: “A defendant initially at trial waives his right to be present when: 1. He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his right to remain during trial;----”

Appellant cites Collins v. State, 12 Md. App. 239, 278 A. 2d 311 (1971), aff’d., State v. Collins, 265 Md. 70, 288 A. 2d 163 (1972) for the proposition that a waiver of the right to be present at every stage of the trial may not be presumed and that every reasonable presumption against waiver must be indulged. It is true, as appellant contends, that voluntary absence must be clearly established and will not be presumed from a silent record. State v. Collins, supra. Here, however, there is ample support in the record for the conclusion that appellant’s absence on December 1, 1976 was voluntary. The court was not required to discover appellant’s actual whereabouts before concluding that his absence was voluntary. After maldng reasonable efforts to assure itself that appellant had not been arrested or hospitalized in the District of Columbia and after learning that he had not contacted either the court or his attorney concerning his whereabouts and that defense counsel had been unable to reach the appellant, the court was justified in concluding that appellant’s failure to appear was voluntary. This conclusion was further confirmed by the appellant’s lack of any explanation for his absence when he next appeared before the court for sentencing. Finally, the transcript of the sentencing hearing shows that appellant was arrested on either December 13 or December 15 of 1976. There is no indication that in the two week period between the final day of his trial and the date of his arrest he made any effort to either contact the court or his attorney to explain his disappearance. Under these circumstances we must conclude that the record shows with sufficient clarity that the appellant’s absence was voluntary.

Federal Rule of Criminal Procedure 43 is the federal counterpart to Md. Rule 724. Several decisions by the federal courts under F.R. Crim. Procedure 43 lend support to our conclusion. Annot., 21 A.L.R. Fed. 906 (1974).

In Gaither v. United States, 413 F. 2d 1061 (D.C. Cir. 1969), the Court mentioned four specific circumstances which led it to conclude “with fair certainty” that the accused had voluntarily absented himself on the last day of his trial. He had been late the day before and the trial judge issued a strong warning to him to be present the next morning or face revocation of bail; his counsel did not object to continuation of the trial thus indicating, the court felt, that counsel regarded the defendant’s absence to be voluntary; he was not taken into custody until three weeks after the end of his trial; and, finally, no explanation of his absence was ever given. In the instant case appellant’s trial counsel did object to the continuance of the trial in appellant’s absence but we do not think this circumstance prevented a finding that appellant’s absence was voluntary in light of the other circumstances bearing on the question.

United States v. Cureton, 302 F. Supp. 1065 (D. D.C. 1968) aff’d., 413 F. 2d 418 (D.C. Cir. 1969) is another case in which facts similar to the instant case justified a finding that the accused’s absence was voluntary. It was found that the trial had commenced on a Thursday with the impaneling of the jury and then was recessed until the following Monday. Defense counsel told his client to be in court on Monday and cautioned him to make daily reports to a police precinct station in accordance with the conditions of his release. On Monday the accused failed to appear and a search of the courthouse failed to locate him. Defense counsel made two telephone calls and reported to the court that he had no knowledge of the accused’s whereabouts and that he had failed to report to the police precinct station as required. Defense counsel objected to continuing the trial without the accused but the trial court found his absence to be voluntary and concluded the trial. The court also pointed out that the accused failed to contact his attorney prior to his rearrest or to give a satisfactory explanation of his failure to report to the police precinct station. It was held that the accused had absented himself voluntarily and this finding was affirmed on appeal. To the same effect see United States v. Garcia-Turino, 458 F. 2d 1345 (9th Cir.), cert. denied, 409 U. S. 951 (1972) and United States v. Partlow, 428 F. 2d 814 (2d. Cir. 1970).

The holdings in these and other cases cited in 21 A.L.R. Fed. supra at 921-24, make it clear that a trial court should make reasonable efforts to determine the reason for an accused’s absence after trial has commenced. There is no requirement that the court or the state actually locate the party or discover the reason for his absence. To impose such a requirement would permit a criminal to frustrate the process of justice simply by making himself unavailable. Moreover, when such an accused is finally brought back before the court, as was the appellant in this case, and fails to raise the question of the voluntariness of his absence, let alone offer any explanation, the unmistakable inference is that his absence was in fact voluntary.

Judgments affirmed.

Appellant to pay the costs.

      . Former Rule 775, in effect at the time of the trial, is controlling but for purposes of this case there is no substantial difference between the two rules.

      . The record shows that at sometime previous to his trial the appellant may have been a patient at Freedman’s Hospital of Howard University in the District of Columbia. It was also proffered that he left the hospital without authorization.


author: Davidson, J.,

text:
    ALVIN SNYDER, HERBERT THALER and HAROLD CRONE, Co-Partners t/a Twin Lakes Partnership v. STATE DEPARTMENT OF HEALTH AND MENTAL HYGIENE et al.
    [No. 1377,
    September Term, 1977.]

      Decided October 11, 1978.

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

      Daniel W. Cagan for appellants.

      Standish McCleary, III, for appellee State Department of Health and Mental Hygiene. John A. Austin, Assistant County Solicitor, with whom was J. Carroll Holzer, County Solicitor, on the brief, for other appellee.
   Davidson, J.,

delivered the opinion of the Court.

In the Circuit Court for Baltimore County, Twin Lakes Partnership (Developer) sued, insofar as here relevant, Baltimore County (County) for damages which occurred when the County refused to allow the Developer to “hook up” to the County’s sewer system. In its declaration, the Developer alleged that on 4 November 1968 it acquired a parcel of land lying within the Gwynns Falls Drainage Basin in an area serviced by the County’s sewer system. On 27 March 1969, the Developer received tentative approval of a plan to build 606 apartment units, on that land. A 172 unit highrise apartment building was constructed. Thereafter, the Developer changed its plans and sought approval of a preliminary plan to construct 109 townhouses instead of two highrise apartment buildings containing a total of 344 units. In July, 1973, the Baltimore County Office of Planning, the Department of Public Works, and the Deputy State and County Health Officers approved the preliminary plan. Other plats and plans for the project were approved by various State and County agencies. In February, 1974, on-site utility permits and a grading permit were issued and excavation began. By 30 April 1974, building permits for the 109 townhouses were issued. All charges relating to those permits were paid.

In the declaration it was further alleged:

“That as of May 14, 1974, the said project had progressed to a point where the plumbing contractor (Burgemeister-Bell) was to commence the sewerage hook-ups on that date. That on May 14, 1974, Neil Solomon, M.D. Secretary of Health and Mental Hygiene for the State of Maryland, signed an Order directing as follows:
‘7. From and after the effective date of this Order, Baltimore City and Baltimore County shall not issue or grant or cause to be issued or granted , any connections contributary to the Gwynns Falls sewer system and the Baltimore Street Overflow Chamber at Baltimore Street and Ellicott Drive, except as provided in 8 below. Connection shall mean the physical pipe connecting the plumbing in the building to the public sewer in the street or right-of-way. Likewise, plumbing connected to private sewers which would empty into the public system also are included in this definition.’
“On May 24,1974, the Defendant Solomon, issued a Supplemental Order directing:
‘... from and after May 14, 1974, whether or not the permits of any kind whatsoever were then issued and outstanding, Baltimore City and Baltimore County shall not make, permit, or allow, or suffer to be made, permitted, or allowed, any physical connection from and to any pipe which connects or contributes to the Gwynns Falls sewer system.’
“That as of May 14, 1974, the Plaintiff had fully and completely complied with, including the payment of all charges, surcharges, taxes and fees, all administrative requirements of the above named Defendants for the progression, development and construction of the Twin Lakes Project.
“That suddenly and without any prior warning to the Plaintiffs, the said Defendants, refused, as of May 14, 1974, to allow the Plaintiffs to hook up to the public sewerage system.
“[T]hat it was the responsibility of said Defendants to maintain the sewerage system within their jurisdiction in such condition as to accommodate the hook-up of the Plaintiffs’ project in as much as the Defendants knew and approved Plaintiffs’ project well in advance of the May 14, 1974, date. The Plaintiffs aver that the Defendants failed in this duty which they owed to the Plaintiffs.”

Finally it was alleged that the County’s action caused the Developer to suffer financial injury, including diminution in value of its property, costs and expenses of construction preceding the order, costs and expenses of legal counsel and lost profits.

The County filed a motion raising preliminary objection on the ground of governmental immunity. Judge H. Kemp MacDaniel entered an order sustaining the County’s motion. We shall affirm.

I

The novel question here presented is whether the defense of governmental immunity is available to a municipality which allegedly failed in its duty to maintain its sewers in such condition as to permit a property owner with a previously issued sewer connection permit to hook up to the municipality’s sewer system. Because, in Maryland, in tort actions, the defense of governmental immunity is available to municipalities if the alleged tortious conduct occurred while the political subdivision was performing a “governmental” function, but is not available if the conduct occurred while it was performing a “proprietary” function, we must decide whether the County was performing a governmental or proprietary function when it allegedly failed in its duty to maintain its sewer system so as to permit the Developer to hook up.

The Court of Appeals, in a number of cases, has held that a municipality is liable in tort for a direct physical injury to property resulting from a failure to maintain its sewers. In only two of those cases, however, did that Court consider the nature of the functions a municipality performs when it is engaged in matters relating to sewer service. In those two cases, the Court recognized that the nature of the function being performed differs depending upon whether the municipality is engaged in the process of determining whether to provide sewer service or is engaged in the process of constructing or operating a sewer system.

In Hitehins Brothers v. Mayor of Frostburg; a property owner sued a municipality to recover for flood damage to his property caused by negligent maintenance of the public sewers. The Court said:

"[T]here is a class of powers defined as discretionary or quasi judicial, which the corporate authorities cannot be compelled to execute. As, for instance, the opening, widening or extension of streets, the adoption of a particular grade, or the adoption of any particular plan for improvement, and the like, unless the terms of the statute are imperative. But any particular plan that may be adopted must be a reasonable one, and the manner of its execution thence becomes, with respect to the right of the citizen, a mere ministerial duty; and for any negligence or unskillfulness in the execution or construction of the work, whereby injury is inflicted upon private right, the municipality will be held responsible.”

In a similar case, Mayor of Frostburg v. Hitchins, the Court said:

“The power under its charter to grade streets and build culverts and sewers, is a discretionary power, to be exercised by the city authorities whenever in their judgment the public good required it. For the non-exercise of such a power no action it is true will lie, but if they undertake to build a culvert or sewer for the purpose of carrying off the surface water and drainage, they are bound to exercise reasonable care in the execution of the work. And if by reason of the negligent construction of a sewer, the drainage instead of being able to flow through it, dams up at its mouth, and is discharged with destructive force upon the property of an adjacent owner, the corporation is answerable for the injury.”

Hitchins Brothers and Mayor of Frostburg establish that after a municipality has determined to provide sewer service, it has a duty to exercise reasonable care in the construction and maintenance of the system. When engaged in those activities, the municipality is performing a proprietary function and is liable for its negligence.

While these cases hold that a municipality is liable for a direct physical injury to property resulting from a failure to maintain its sewers, they also indicate that a municipality has no duty to provide sewer service. Decisions as to whether, when or where to provide sewer service, like other plans for public improvements, are matters of discretion. Accordingly, we conclude that when a municipality decides whether to provide such service, it is performing a governmental function, and is not liable for failing to provide sewer service. Courts in other States and the authorities agree.

In an analogous situation, some few courts and authorities have recognized that a determination to abandon or discontinue sewer service, like a determination to provide such service, is a matter of municipal discretion. They conclude that a municipality is not liable for direct physical injury to property resulting from an abandonment or discontinuance of sewer service, if the property is left in no worse condition than before the sewer was provided. As stated by the Supreme Court of New Mexico in Martinez v. Cook:

“It seems to be a settled principle of law that the establishment of a drain by a municipal corporation is the exercise of a legislative or quasi-judicial power, and the legislative body of the municipality is the sole judge of the necessity therefor....
“It seems to be equally well settled that the abandonment or discontinuance of a drain constructed by a municipal corporation will not render the municipality liable for injuries to property resulting from the abandonment if the property was not left in any worse condition than it was before the sewer or drain was constructed.”

Finally, in Maryland, the Court of Appeals has held that in determining whether to issue or revoke a permit, a municipality is performing a governmental function and, therefore, is not liable in tort. For example, in Carey v. Baltimore County, a property owner alleged that he was damaged because, after he had been issued a building permit to construct a house, and had made arrangements for construction and had invested substantial sums of money, the permit was revoked. The Court determined that in revoking the permit the County was performing a governmental function. In reaching this result, the Court, quoting from the case of Irvine v. Montgomery County, said:

“[I]n issuing permits for construction, a municipality is only exercising its governmental authority and is immune from action against it.”

It quoted also from 18 E. McQuillin, Municipal Corporations, saying:

“Granting or refusing a municipal license is the exercise of governmental power and a municipality is not liable in damages for the wrongful issuance or refusal of a license * * *. So a municipality is not liable in damages for revoking a license, even where without any just cause, especially where the revocation is void.”

The rationale underlying these decisions would appear to be that because a municipality has no duty to issue permits, the granting or revocation of a permit is a matter of discretion and, consequently, a governmental function.

Applying these principles to the instant case produces a clear result. Here it was alleged that the municipality was negligent because it failed in its duty to maintain the sewer system “in such condition as to accommodate the hook-up of [the Developer’s] project.” The alleged damage was an inability to develop the property as planned. The gravamen of the alleged wrong was not that the Developer suffered a direct physical injury to its property resulting from the County’s negligence in failing to maintain its sewers. Rather it was that the Developer became unable to develop its property as a result of a County action, which might be characterized alternatively as a failure to provide sewer service, a discontinuance of sewer service or a revocation of a sewer connection permit. Because the County, when determining whether to provide sewer service, discontinue sewer service or revoke a permit, was performing a governmental function, it is not liable in tort. The defense of governmental immunity is available to the County.

II

The Developer’s contention that the County breached a contract to provide sewer service will not be considered. In its declaration, the Developer did not allege a breach of contract. The trial court did not decide whether there was a contract that was breached. The issue is not properly before us,

III

The Developer’s contention that the defense of governmental immunity is not available because “there is insurance coverage applicable to the acts complained of” is without merit. In the absence of a statute, a County does not become liable for torts because it carries insurance. There being no applicable statutory provision, the County did not waive the defense of governmental immunity by carrying insurance.

Judgment affirmed.

Costs to be paid by appellants.

      . The Developer concedes that its suits against Neil Solomon, M.D., Secretary of Health and Mental Hygiene, and certain individuals in their capacity as officials of the Baltimore County government were properly dismissed.

      . The declaration does not specifically allege that as of 14 May 1974 the Developer had received the County’s permission to connect to the sewer. The allegation that as of 14 May the Developer had complied with all “administrative requirements,” including the payment of all charges and fees, supports, however, an inference that as of that date the Developer had received such permission.

      . O & B, Inc. v. Maryland-National Capital Park & Planning Comm’n, 279 Md. 459, 462, 369 A. 2d 553, 554 (1977); Carey v. Baltimore County, 262 Md. 491, 496-97, 278 A. 2d 6, 8 (1971); Mayor of Baltimore v. State, ex rel. Blueford, 173 Md. 267, 271-72, 195 A. 571, 574 (1937); Herilla v. Mayor of Baltimore, 37 Md. App. 481, 484-86, 378 A. 2d 162, 165-66 (1977).

      . See True v. Mayor of Westernport, 196 Md. 280, 284, 76 A. 2d 135, 136 (1950); Mayor of Salisbury v. Camden Sewer Co., 141 Md. 254, 118 A. 662 (1922); Kurrle v. Mayor of Baltimore, 113 Md. 63, 77 A. 373 (1910); Guest v. Commissioners of Church Hill, 90 Md. 689, 693-94, 45 A. 882, 883-84 (1900); Mayor of Baltimore v. Schnitker, 84 Md. 34, 43, 34 A. 1132, 1132-33 (1896) (dicta); Mayor of Frostburg v. Dufty, 70 Md. 47, 54, 16 A. 642, 643 (1889) (dicta); Mayor of Frostburg v. Hitchins, 70 Md. 56, 66, 16 A. 380, 381-82 (1889); Hitchins Bros. v. Mayor of Frostburg, 68 Md. 100, 109-10, 11 A. 826, 829 (1887); Kranz v. Mayor of Baltimore, 64 Md. 491, 497, 2 A. 908, 910 (1886).

      . See Mayor of Frostburg v. Hitchins, 70 Md. 56, 16 A. 380 (1889); Hitchins Bros. v. Mayor of Frostburg, 68 Md. 100, 11 A. 826 (1887).

      . 68 Md. 100, 11 A. 826 (1887).

      . Id. at 109-10, 11 A. at 829 (emphasis added).

      . 70 Md. 56, 16 A. 380 (1889).

      . Id. at 66-67, 16 A. at 381 (emphasis added).

      . See County Comm’rs of Baltimore County v. Hunter, 207 Md. 171, 183, 113 A. 2d 910, 915 (1954) (dicta); but see Mayor of Baltimore v. Brack, 175 Md. 615, 623, 3 A. 2d 471, 475 (1938) (dicta).

      . See, e.g., Richards v. City of Tustin, 37 Cal. Rptr. 124, 125, 225 Cal.App.2d 97, 98 (1964); Elledge v. City of Des Moines, 259 Iowa 284, 288, 144 N.W.2d 283, 286 (1966); Beck v. City of New York, 199 N.Y.S.2d 584, 589 (1960).

      . See, e.g., 18 E. McQuillin, Municipal Corporations, §§ 53:22g, 53:119 (3d rev. ed. 1977); 57 Am.Jur.2d Municipal, School and State Tort Liability 201 (1971); 63 C.J.S. Municipal Corporations § 1049a (1950).

      . See, e.g., Finley v. City of Kendallville, 45 Ind. App. 430, 431, 90 N. E. 1036, 1037 (1910); Martinez v. Cook, 56 N. M. 343, 353, 244 P. 2d 134, 140 (1952); 18 E. McQuillin, supra note 12, at § 53:120.

      . 56 N. M. 343, 244 P. 2d 134 (1952).

      . Id. at 352, 244 P. 2d at 140 (citations omitted).

      . See Spriggs v. Levitt & Sons, Inc., 267 Md. 679, 685-86, 298 A. 2d 442, 445-46 (1973); Carey v. Baltimore County, 262 Md. 491, 495-97, 278 A. 2d 6, 8-9 (1971); Irvine v. Montgomery County, 239 Md. 113, 118, 210 A. 2d 359, 361 (1965); Lipsitz v. Parr, 164 Md. 222, 227, 164 A. 743, 745-46 (1933).

      . 262 Md. 491, 278 A. 2d 6 (1971).

      . 239 Md. 113, 210 A. 2d 359 (1965).

      . 262 Md. at 496, 278 A. 2d at 8 (quoting 239 Md. at 118, 210 A. 2d at 361).

      . 18 E. McQuillin, Municipal Corporations, (3d ed. 1949).

      . 262 Md. at 497, 278 A. 2d at 9 (quoting 18 E. McQuillin, Municipal Corporations, § 53:37 (3ded. 1949)).

      . See generally 18 E. McQuillin, supra note 12, at § 53:22e.

      . Md. Rule 1085.

      . Quecedo v. Montgomery County, 264 Md. 590, 594, 287 A. 2d 257, 259 (1972).


author: Gilbert, C. J.,

text:
    THOMAS F. BRADY v. THE MAYOR AND CITY COUNCIL OF LAUREL, MARYLAND
    [No. 5,
    September Term, 1978.]

      Decided October 11, 1978.

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

      C. Philip Nichols, Jr., with whom were Nichols & Hurtt on the brief, for appellant.

      Paul B. Rodbell, with whom were Alan R. Friedman and Meyers & Billingsley, P.A. on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Recognizing that “[a] policeman’s lot is not a happy one,” but that courts must deal with the law, not morals, Judge Samuel W. H. Meloy, in the Circuit Court for Prince George’s County, sustained, without leave to amend, the demurrer of the Mayor and City Council of Laurel, Maryland (Laurel) to the suit brought against them by Thomas F. Brady, a police officer for that City.

The facts of this case as pleaded, if true, cause Mr. Gilbert’s observation about a policeman’s lot to appear to be a gross understatement. Had that eminent playwright known of the matter now before us, he might well have opined that “the policeman’s lot can be a particularly pathetic plight.”

From the meager record supplied us, consisting principally of a declaration in tort, a motion raising preliminary objection, answer thereto, amended declaration, demurrer, and a .transcript of Judge Meloy’s reluctant, if not apologetic ruling, we learn that:

Brady was sued by “Ester Marie Bowen and Charles Leon Bowen as a result of the performance of his duties as a police officer for . . . Laurel. . . .” According to Brady’s brief, the Bowen’s suit was “brought against Patrolman Brady by Ms. Ester M. Bowen [because of Brady’s] . . . intentionally striking her in the face with his baton, thus breaking her nose.” The actions upon which the suit was based “were in the scope and course of his employment and not done maliciously. . . .” Notwithstanding that, even after Laurel made an investigation and determinined that Brady was acting “within the scope and course of his employment and not in any way malicious or outside the scope ... [thereof] as an employee and agent of ... [Laurel],” that city refused to pay the cost of Brady’s legal representation in the Bowens’ claim against him. Brady successfully defended against the Bowen matter, and then he brought suit in tort against Laurel asserting that as a “proximate result of ... [Laurel’s] negligence,” in failing to undertake the defense of the Bowen litigation he, Brady, sustained “severe emotional distress, discomfort, mental anguish” and he was “required to expend large sums of money for his legal defense.”

Laurel filed a preliminary objection to Brady’s declaration, averring that “as a governmental body” it was “immune from such [tort] action as a matter of law.” The motion was granted after hearing, and Brady was allowed to amend his declaration.

Subsequently, Brady filed an amended declaration grounded in contract. He maintained that “in February 1973” he entered into a “written contract” with Laurel whereby he was required to “obey and support the Constitution of the United States and the Constitution and Laws of the State of Maryland and uphold the ordinances of ... Laurel.” Notwithstanding the “written contract” which in reality was an oath administered to Brady when he entered upon his duties as a peace officer, Laurel “failed to undertake ... [his] defense in an action arising out of said employment contract____” Brady incurred expenses for his successful defense of the Bowen suit of “more than $5,000, for which ... [Laurel] has refused to reimburse him----” Brady claimed “compensatory damages in the amount of... $250,000,” thus allowing a multiple of 50 times actual out-of-pocket expenses exclusive of costs.

The ex contractu declaration was met with a demurrer which was based upon the “written contract’s” not being a contract at all but an oath which Brady swore and subscribed prior to “assuming his duties as a police officer for ... Laurel----” Judge Meloy, as we have seen, sustained the demurrer without leave to amend and this appeal followed.

In this Court, Brady puts two (2) questions to us, videlicet:

“1. Did the court err in its ruling that there was no binding contract between plaintiff and defendant which created a legal obligation on the defendant to defend plaintiff from an action brought against him, arising out of his actions in the scope and course of his employment, and not done maliciously, of which the defendant was aware?
2. Did the court err in ruling that the city was protected against a suit in tort brought by one of its law-enforcement officers arising out of his duties as a law-enforcement officer?”

For the reasons hereinafter explained, we shall confine our discussion to the first issue as it is the only one properly before us.

Brady asserts correctly that Md. Ann. Code art. 23A, § 1A has eliminated the defense of sovereign immunity in an action for breach of contract against a municipal corporation. Section 1A (a) provides:

“Unless otherwise specifically provided by the laws of Maryland, a municipal corporation, and every officer, department, agency, board, commission, or other unit of municipal government may not raise the defense of sovereign immunity in the courts of this State in an action in contract based upon a written contract executed on behalf of the municipal corporation, or its department, agency, board, commission, or unit by an official or employee acting within the scope of his authority.” (Emphasis supplied.)

Section 1A (a) was enacted by Laws 1976, ch. 450, § 7 and became effective July 1, 1976. Section 6 of ch. 450 provides that the “[a]ct shall not apply to any action based on a contract entered into or executed prior to the effective date of this Act.”

Brady ignores the fact that section 1A (a) did not become effective until July 1,1976, and has no application to contracts entered into or executed prior to that time. Brady’s employment by Laurel commenced in February 1973. While we have not been furnished with the date of the episode between Brady and Ms. Bowen, it is safe to assume that it happened before July 1,1976. We base our assumption upon the fact that the suit between Brady and the Bowens was tried in the Circuit Court for Prince George’s County on July 8, 1976. It is beyond any doubt that events complained of by the Bowens, of necessity, occurred before July 1, 1976, because it would have been impossible to have filed suit, brought the matter to issue and had a trial within the space of eight (8) days.

We think it clear that Brady’s reliance upon Md. Ann. Code art. 23A, § 1A (a) is completely misplaced as that statutory provision is, for the purposes of the instant case, non-existent. Moreover, the oath administered to Brady at the time he undertook the duties of a patrolman is not a “written contract” as that term is used in Md. Ann. Code art. 23A, § 1A (a). An oath is a solemn unilateral vow, made before a person authorized by law to administer oaths, to do or abstain from doing certain prescribed acts applicable to the office or duty being entered, the falsity of which is punishable by law by way of criminal sanctions. It is generally a condition prerequisite to the holding of public office or public trust and, in its broadest sense, is a signification that the party will well and truly discharge the office he assumes. See generally, Greenwald v. State, 221 Md. 235, 155 A. 2d 894 (1960).

As often as not, the oath is unsigned, but that factor does not affect its validity unless the statute prescribing the oath requires it to be in writing and subscribed by the jurant. In any event, it is not a contract because only one party is bound thereby, and a contractual arrangement necessitates two or more parties supported by a lawful consideration.

The oath in the instant case, not signed by Brady nor by Laurel, took the form of a question, namely:

“Do you, Thomas Ford Brady, solemnly swear that you will obey and support the Constitution of the United States and the Constitution and Laws of the State of Maryland and uphold the ordinances of the City of Laurel, and that you will fairly, honestly and impartially administer the duties of the office of police officer to which you have been appointed, to the best of your knowledge and ability?”

It was subscribed by a notary public. No other signature appears thereon. Regardless of the pathos we might feel toward persons propelled into perilous predicaments by powers beyond their control, we are not free to make a contract for the parties which they did not see fit to make, nor may we imply a “written contract.”

To bolster his theory of a contractual obligation between himself and Laurel, Brady refers us to the City Charter .§ 41. That section sets out the obligation of the mayor to appoint annually a police chief “and such other persons as may be necessary, from time to time, as policemen of said town, whose duties it shall be to preserve the peace and good order of the town----” Additionally, the mayor and city council are permitted to command that policemen shall perform such other duties as the city fathers may direct. Reports of violations of the law are supposedly transmitted by the policemen to the city council at each regular monthly meeting together with a written statement, under oath, that the policemen “have each faithfully performed their duties required by [section 41 of the charter]____” The mayor possesses the authority to remove “[a]ny policeman failing to perform the duties imposed upon him, on evidence of the fact [sib] being produced to the Mayor” and to appoint another policeman as a replacement.

Brady perceives the charter provisions, when read together with the oath administered to Brady, as a “written contract.” We have an entirely different view. Aggrieved persons are not at liberty to select various writings, read them together, and characterize them as a “written contract,” particularly when no written contract was ever intended by the parties. We see the relationship between Brady and Laurel as no more than the ordinary employer-employee tie, upon which a little glaze has been added in the form of the oath. To the extent that any hiring by an employer of a person as his employee creates a contractual obligation between the parties, the employee normally is to perform an assigned task at a specified «time and receive an agreed compensation for that service. Brady was under a contractual obligation to perform and Laurel was under a contractual obligation to pay for that performance. The contractual obligation, however, was an oral one. The administering of the oath did not convert the oral employment contract into a “written contract” any more than placing frosting on bread changes it into cake. No matter how much frosting is added, the bread remains bread. Moreover, our review of the record reveals that this novel question was not raised before Judge Meloy and is not properly before us. Md. Rule 1085.

Somewhere on the road from the circuit court to this Court, Brady conceived of other reasons why Laurel should reimburse him for his expenses incurred in defending himself. Despite the fact that his amended declaration was brought on the basis of a written contract, he now suggests that he be allowed to recover in the theory of principal and agent or of an implied contract. Neither of those two (2) matters was raised before Judge Meloy on the ex contractu action. They are not before us, and, hence, we do not consider them. Md. Rule 1085.

In an effort to snatch victory from ostensible defeat, Brady invokes a section of what has become known stylistically as “The Policeman’s Bill of Rights,” Md. Ann. Code art. 27, §§ 727-734D. Specifically, Brady argues that section 728 (b) (11) authorizes his suit against Laurel in that.it provides that “[a] statute may not abridge and a law-enforcement agency may not adopt any regulation which prohibits the right of a law-enforcement officer to bring suit arising out of his duties as a law-enforcement officer.” Once again, the issue was not raised in the circuit court and is not before us. Md. Rule 1085. Even if it were properly before us for review, we would be hard pressed to construe that section as a panacea entitling Brady to sue Laurel. Section 728 (b) is patently directed to the rights of law-enforcement officers who are “under investigation or subject to interrogation by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal.” All the subsections, including (11), quoted above, are concerned with that subject matter only. Section 728 (b) (11) may not be lifted out of section 728 (b) and considered apart from the balance of the statute as a separate statutory provision so as to elevate it to a status never intended and confer upon it a meaning wholly distinct from that given it by the Legislature. Brady’s interpretation of section 728 (b) (11), while novel, is unavailing.

Finally, Brady seeks to have us hold that if his action ex contractu must fail, he should be allowed to pursue his claim on the theory of Laurel’s negligently refusing to defend him in the Bowen matter. What Brady overlooks is that when he amended his suit from tort to contract, he did not preserve for our review the trial court’s ruling on the motion raising preliminary objection. The choice he had to make,at thát time was admittedly difficult but, nevertheless, had to be made. He could have declined to amend, suffered the dismissal of the case and appealed the final judgment. He elected, however, not to pursue that course but to amend to a different cause of action, thereby waiving objection to the ruling on the motion raising preliminary objection. Shapiro v. Sherwood, 254 Md. 235, 254 A. 2d 357 (1969).

Furthermore, Brady has not shown to us, and we are aware of no “statute” or a “regulation” adopted by the Laurel police department which prohibits his right to bring a “suit arising out of his duties as a law-enforcement officer.” Brady did, in fact, bring suit, but he was virtually pleaded out of court, not because of a statute or regulation but for the reasons herein before discussed.

Judgment affirmed.

Costs to be paid by appellant.

      . William Schwenck Gilbert (1836-1911), Pirates of Penzance, Act II (1879).

      . Mr. Justice Oliver Wendell Holmes, Jr. (1841-1935), phrased it, “[t]his is a court of law, young man, not a court of justice.” Dr. Laurence J. Peter, Peter's Quotations (1977 ed.) pg. 277.

      . Prior to Laws 1976, ch. 450, the General Assembly, by Laws 1973, ch. 287, § 2, effective July 1, 1973, had added section 1A to Article 23A, but section 1A was limited to the conferring of immunity from liability, both civil and criminal upon town councilmen or similar officials “for words spoken in debate at a town or Baltimore City Council meeting.” Former art. 23A, § 1A was repealed by Laws 1973, ch. 2, § 2,1st Sp. Sess. Former section 1A now appears, in substance, as Courts and Judicial Proceedings Article S 5-304.

      . Canaras v. Lift Truck Services, 272 Md. 337, 346, 322 A. 2d 866, 871 (1974), quoting Buffalo Pressed Steel Co. v. Kirwan, 138 Md. 60, 113 A. 628 (1921); Broaddus v. First National Bank, 161 Md. 116, 121, 155 A. 309, 311 ; 1 Williston on Contracts (3rd ed. 1957) § 18.

      . The City Charter of Laurel § 41, indicates that policemen, such as Brady, who are hired by the city “shall be entitled, in addition to the compensation fixed by the Mayor and City Council, to the fees allowed constables under the laws of this state, which shall be collected from the parties arrested and convicted. "(Emphasis added.) But constables under the laws of this State are not entitled to any fees beyond the fixed compensation prescribed by the Maryland General Assembly. Md. Const, art. IV, § 41F.

      . .The law is titled “Law Enforcement Officers’ Bill of Rights.” Laws .1974, ch. 722, § 1.