text:
    EDWARD KASSAB et al. v. WILLIAM BURKHARDT et al.
    [No. 526,
    September Term, 1976.]

      Decided February 7, 1977.

    The cause was argued before Moylan, Menchine and Moore, JJ.

      Edward Kassab, with whom were Edward D. E. Rollins, Jr., and Rollins & Calvert on the brief, for appellants.

      Robert J. Carson, with whom were Thomas G. Peter, Joseph J. Mahoney and Smith, Somerville & Case on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Edward Kassab and others as co-partners (applicants) petitioned the Board of Appeals of Cecil County, Maryland for a special exception as to 174.324 acres of land in Cecil County for use as a Planned Unit Development (P.U.D.). The land in question was zoned Shoreline Recreational Zone R.R. The Board granted the special exception with restrictions.

William Burkhardt and other protestants (protestants), entered an appeal to the Circuit Court for Cecil County from the grant of the special exception. Applicants entered an appeal to that court from the restrictions placed upon the granted special exception.

The appeals were consolidated and heard together in the Circuit. Court. The grant of the special exception was affirmed. The restrictions imposed upon the grant of the special exception were sustained in part and amended in part.

Protestants have appealed from the order of the Circuit Court granting the special exception.

Applicants have appealed from the order of the Circuit Court imposing restrictions upon the granted special exception.

Because we find that the applicants failed to meet a condition precedent to the grant of a P.U.D. special exception, we shall reverse the order of the Circuit Court in its entirety.

What we conceive to be the pertinent parts of the Cecil County Zoning Ordinance provide as follows:

“Section 5. Zone Regulations
12. Planned Unit Development
It is the intent of these regulations to control the placement, design, use and density of well-planned, large scale, residential developments which will offer a variety of building types and a more efficient overall use of land and, within these limits, permit the optimum amount of freedom and variety in the design and management of such varying types of residential structures, including one and two family units, town houses and garden apartments within the areas designated.
B, Planned Unit Development Where Permitted:
Planned Unit Developments are special exceptions in the R-l, R-2, R-3, R-R, F-l, F-4, and A-R zones and are subject to approval by the Board of Appeals under the procedures specified below. In general, Planned Unit Development is contemplated in residential zones where tracts suitable for location, size, and character for the uses and structures proposed are to be planned and developed as units according to the requirements and procedures of this Ordinance. Planned Unit Development shall be approximately located with respect to the general pattern of urban development existing or proposed, and to public and private facilities and services, existing.
G. Sanitary Facilities:
Prior to accepting for approval a development plan for a Planned Unit Development, the Board of Zoning Appeals must be furnished satisfactory evidence that acceptable community water and sewerage systems will be provided and approved by the Health Department as well as by any other agency having jurisdiction over such matters. No PUD Development Plan will be approved unless the proposed development will be served by public or private water and sewerage disposal systems which shall be existing at the time the plan is first submitted for approval.” (Emphasis added.)

The position of the applicants with respect to the meaning and effect of § 5-12-G plainly appears from the testimony of the applicant Jarrell and from a stipulation made by the applicant Edward Kassab during the course of the hearing before the Board:

“Q Has the existence of adequate sanitary and water facilities been assured for the development by the existence of these facilities and the proper criteria of constructing them on the Comprehensive Water and Sewer Plan of Cecil County?
A The water and sewer plan do exist on the Comprehensive Plan of Cecil County, yes.”
“MR. KASSAB: May it please the Board? The Petitioners will stipulate that there are no plans, either sanitary or otherwise, in existence and that, therefore, the literal provisions of that section just read to this Board do not exist; have not been complied with. Petitioners address themselves specifically to that issue in his Memorandum of Law citing the decisions of the highest courts of this State. We respect the ambiguity which appears on the face of the ordinance. It is a matter of law and no longer a matter of fact, because we agree that they do not exist.”

The protestants, on the other hand, maintain that § 5-12-G, couched in plain and unambiguous language, must be literally construed.

The Board found that § 5-12-G was not required to be interpreted literally, saying in the course of its order granting the special exception:

“The Board notes in this respect the contention of the Protestants that Applicant’s have not complied with the provisions of sub-paragraph G of Section 5, paragraph 12, to the effect that no Planned Unit Development will be approved unless the proposed development will be served by public or private water and sewerage systems which shall be existing at the time that the plan is first submitted for approval. The Board notes in this regard that Chesapeake Coves has been included in the Cecil County Master Sewer and Water Plan and that permits providing for disposition of sewerage have been issued by the State of Maryland. The Board finds that this is adequate compliance with the requirements of the Section above noted; since, as pointed out in the memorandum of law submitted by the Applicant, the Board cannot seriously believe that it was intended that the Applicant for a Planned Unit Development would be required to construct and place into existence a public or private water and sewerage disposal system without some indication of prior approval of the development.”

The trial court took a similar position, saying in the course of its written opinion:

“Confronted with these two conflicting views the Board of Zoning Appeals took a position that this water and sewer requirement had been made a part of the Cecil County Master Water and Sewer Plan; that a Maryland Sewage Disposal Permit had been issued by the Department of Water Resources, and, that these two requirements fulfilled the intent of the ordinance; that the Chesapeake Coves plan for water and sewer was part of the system which existed, i.e., the Cecil County Master Water and Sewer Plan.
“The Court concludes that the two views, presented on the above proposition raise a fair debate. For this Reason the Court has no power to disturb the finding of the Board of Zoning Appeals on this point.”

We do not agree with the trial court that the interpretation of an ordinance is an issue for consideration under “fairly debatable” standards. The issue is one of law, not one of fact.

We agree with the protestants that § 5-12-G is couched in simple, clear and unambiguous language. In such circumstances, we find the case of Slate v. Zitomer, 275 Md. 534, 539-40, 341 A. 2d 789, 792-93 (1975), to be controlling:

“It is true that the primary rule in the construction of statutes is ‘to effectuate the real and actual intention of the legislature.’ Height v. State, 225 Md. 251, 257, 170 A. 2d 212 (1961). However, in ascertaining the legislative intent, ‘the words of the statute are [deemed to be] used in their ordinary and popular sense and if the face of the statute does not show some contradictory intention then we will look no further.’ Department v. Greyhound, 247 Md. 662, 669, 234 A. 2d 255 (1967); Pressman v. Barnes, 209 Md. 544, 558, 121 A. 2d 816 (1956). This Court has often stated that ‘a statute should be construed according to the ordinary and natural import of the language used, unless a different meaning is'clearly indicated by its context, without resorting to subtle or forced interpretations for the purpose of extending or limiting its operation.’ Balto. County v. White, 235 Md. 212, 218, 201 A. 2d 358 (1964); see also Grosvenor v. Supervisor of Assess., 271 Md. 232, 237-38, 315 A. 2d 758 (1974); Radio Communications, Inc. v. Public Service Commission, 271 Md. 82, 93, 314 A. 2d 118 (1974). And in Md. Medical Service v. Carver, 238 Md. 466, 478, 209 A. 2d 582 (1965), the Court said:
‘If the legislative intent is expressed in clear and unambiguous language, this will be carried into effect by this Court even if this Court might be of the opinion that the policy of the legislation is unwise, or even harsh or unjust, if no constitutional guarantees are impaired by the legislation.’
See also Schmeizl v. Schmeizl, 186 Md. 371, 375, 46 A. 2d 619 (1946).
“Moreover, courts may not ‘attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature.’ Amalgamated Insurance v. Helms, 239 Md. 529, 535-536, 212 A. 2d 311 (1965).”

Section 5-12-G clearly imposes a condition precedent to the grant of a PUD special exception. Its requirement that “No P.U.D. development plan will be approved unless the proposed development will be served by public or private water and sewerage disposal systems which shall be existing at the time the plan is first submitted for approval,” clearly and plainly on its face says what it means. We must construe it as meaning what it says. The undisputed evidence in the record shows that a condition precedent to the grant of a special exception was not met by the applicants.

Order reversed.

Costs to be paid by Edward Kassab, Eugene F. Jarrell and Gerald W. Gaster, co-partners.

      . Eugene F. Jarrell and Gerald W. Gaster.

      . This zone is defined in the zoning ordinance as follows:

        “Shoreline Recreational-Residential Zone R-R

      This zone contains recreational uses peculiarly suited to shorelines, as well as residential uses. The zone is meant to provide primarily for uses of recreational character, including some commercial recreation and seasonal dwellings. Permanent dwellings are permitted as a secondary use.”

      . Walden Pell and The Upper Chesapeake Watershed Association, Inc.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    GREAT COASTAL EXPRESS, INCORPORATED et al. v. DARLIN SUE SCHRUEFER et al.
    [No. 536,
    September Term, 1976.]

      Decided February 7, 1977.

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

      Samuel S. Smalkin, with whom was William H. Clark on the brief, for appellants.

      M. Michael Cramer, with whom were Levitan, Ezrin, Cramer, West & Weinstein, Chartered on the brief, for appellees Shasta Beverages, Inc., and Darlin Sue Schruefer, Administratriz of the Estate of George O. Schruefer, Jr. JohnF. Wiley for other appellees.
   Lowe, J.,

delivered the opinion of the Court.

The widow, children and employer of the driver of a delivery truck which rear-ended a tractor-trailer that had pulled onto the highway from the driveway of a truck stop moments before the collision, brought suit against the driver of the tractor-trailer and his employer. This is an appeal from the judgment of Judge John J. Mitchell, presiding without a jury in the Circuit Court for Montgomery County, in favor of the plaintiffs. The issue below turned on whether the tractor-trailer had entered the flow of traffic so as to excuse its driver from the rigid responsibility imposed by the “Boulevard Rule”. Judge Mitchell decided that it had not.

Appellants, who owned and operated the tractor-trailer, assign 9 errors on appeal. The first 2 appear to be little more than questions of the sufficiency of the evidence:

“I. The lower Court erred in holding that Appellees ■ were entitled to recover in this case which involved a rear end collision and a violation by the decedent, George O. Schruefer, Jr., of the duty of proper control of his truck.
II. The lower Court erred in entering judgment in favor of the Appellees against Gerald Wayne Smith on his counterclaim against Appellees”.

In reviewing such’ questions, where a court sits without a jury, we are bound by Md. Rule 1086:

“When an action has been tried by the lower court without a jury, this Court will review the case. upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”

We have reviewed the evidence submitted by record extract and the comprehensive opinion of the trial judge. We do not find him to have been clearly erroneous in his findings of fact and conclusions therefrom; to the contrary, we find his explanation so thorough and so convincing that we adopt that opinion as our own.

Because appellants raised the issue of contributory negligence in their reply brief, we will interject here that our review of the evidence does not disclose evidence of contributory negligence so conclusive that the court should — or could — have found it as a matter of law. It therefore follows that we do not view the factfinder’s disbelief of such evidence as was presented, from which an inference of contributory negligence might have been drawn, as clearly erroneous.

We cannot improve upon Judge Mitchell’s factual articulation, and therefore we shall set it forth in full before responding to the remaining issues:

“MEMORANDUM OPINION AND ORDER STATEMENT OF THE CASE

This case arises out of a motor vehicle collision that occurred on June 13, 1974. The location of the fatal accident was on Maryland State Route 3 in Anne Arundel County near Millersville, Maryland. George Schruefer was operating a truck which collided with the rear end of a tractor-trailer unit owned by the defendant, Great Coastal Express, Inc. and being operated by its employee, Gerald Wayne Smith. Schruefer was killed instantly as a result of the collision. His widow, Darlin Sue Schruefer, and two surviving infant children have brought this action seeking damages. They are joined by Travelers Insurance Company which seeks to recover certain Workmen’s Compensation benefits paid to the surviving widow, and Shasta Beverages, owner of the truck operated by the decedent, which looks to the defendant for the property damage and loss occasioned by the collision.

Gerald Wayne Smith has filed a counter-claim seeking to recoup damages for the personal injuries he sustained, the resulting medical expenses, loss of wages, and pain and suffering.

When this case came on for trial, all parties agreed to waive their prayers for a jury trial and a bench trial was conducted.

QUESTION PRESENTED

The question presents a very narrow issue. The Court must determine whether the plaintiffs are entitled to the protection of the “Boulevard Rule” or whether the defendant and counterclaimant had left the confines of the ‘Boulevard Rule’ and had joined the ‘free flow of traffic.’

FINDINGS OF FACT AND CONCLUSIONS OF LA W

The Court had the benefit of evidence presented through seventeen (17) witnesses; forty-five (45) exhibits; and two scholarly briefs of the law involved. From all of this, the following facts are found.

George Schruefer and his widow, Darlin Sue Schruefer, were married unto each other in Baltimore, Maryland on February 14, 1968. Two children were born of this union, namely: Barbara Ann, presently six years of age, and Richard Lynn, presently eight years of age. Barbara is a normal, pleasant, little girl. Richard is legally blind and is afflicted with spastic cerebral palsy and suffers a partial paralysis of the lower limbs (See Plaintiffs Exhibit No. 12). The decedent, George Schruefer, entered the employ of Shasta Beverages on April 3, 1973. After one month he became a driver-salesman and at the time of the fateful accident, he was in the course of his employment. On June 13, 1974, at approximately three o’clock in the morning, George Schruefer arose and left his home in Bel Air, Maryland. He drove to the Shasta plant in Baltimore, Maryland. He then boarded his Shasta truck to make a delivery of soft drinks to Andrews Air Force Base in southern Prince George’s County. His two-axle, 1973 Ford truck, unloaded, had a gross weight of fifteen thousand (15,000) pounds. The truck’s carrying capacity is seven hundred seventy-one (771) cases and each case weighed twenty-three (23) pounds. The total gross weight of vehicle and load on the morning of the accident was thirty-two thousand seven hundred thirty-three (32,733) pounds. Schruefer had elected to drive in a southerly direction on Maryland State Route 3.

Gerald Wayne Smith was an employee of Great Coastal Express, Inc. On June 12, 1974, he had driven a tractor-trailer unit from Richmond, Virginia to the metropolitan New York City-New York area and made certain deliveries. He took on other materials to be delivered in Richmond, Virginia and after an appropriate rest resumed his journey eventually entering Maryland State Route 3. At or near Millersville, Anne Arundel County, Maryland, there is situated, on the west [sic] side of southbound Route 3, a transit truck stop. Mr. Smith stopped at this location some time about four o’clock in the morning and had some coffee. He then checked his tractor and trailer and was satisfied that all running lights were in operation. He was operating a 1972 White Freight Line. The total overall length of his tractor and trailer was fifty-five (55) feet. The gross weight of the tractor, the trailer, and the cargo was sixty-four thousand eight hundred (64,800) pounds. The tractor had ten (10) forward speeds. Mr. Smith chose to return to the southbound lanes of Route 3 by using the southern most exit from the truck stop. At this point Route 3 is a double laned, paved highway. The posted speed limit was fifty-five (55) miles per hour. To enter this boulevard from the truck stop, a vehicle must cross a fourteen (14) foot shoulder to reach the paved road and then must turn left to enter the flow of traffic. There are no overhead lights on the roadway at this point. One June 13, 1974, the air was clear and relatively balmy and the roads were dry. Prior to entering this boulevard, a driver, looking to his right from the point entered by Smith, can see to a crest of a hill. According to the investigating police officer, that crest is “four to five tenths of a mile.” A southbound vehicle approaching that crest finds that the roadway curves to the right. Smith entered the roadway and told the police that he had gone one-half (1/2) of a mile when two tractor-trailer units passed him on his left and he was then struck in the rear end by the Shasta truck.

Police Officer Robert Short of the Anne Arundel County Police Department arrived on the scene and conducted an investigation. He concluded from the location of the vehicles involved in the accident that the point of impact was two hundred fifty-two (252) feet from the southernmost point of the driveway used by Smith. The Court finds this to be conclusive. Substantial damage was suffered by each vehicle and Schruefer was killed instantly. There were no skid marks on the road that would reflect that the brakes on the Schruefer vehicle had ever locked prior to impact. Smith said that from his vantage point in the driveway, that he could see a distance of one and on'e-half (1 1/2) miles. The Court finds that Smith could not observe this distance because of the terrain and the curve in the road. Smith also testified that he was shifting into sixth gear and had attained a speed of approximately thirty-five to forty (35-40) miles per hour. There was further received a tape from a tachometer. The tape would seemingly reflect that Smith’s vehicle had attained this speed at the time of impact.

The Court had the benefit of one Roy Smith who is a trucker and repairman of tractors and rigs. He had conducted a series of tests with a tractor and loaded rig comparable in horsepower, size, and weight to that of the Great Coastal Express vehicle being operated on the morning of the accident. He testified that the maximum speed that could be attained was fifteen (15) miles per hour. He had conducted the test a dozen times. His testimony was far more persuasive than that of the defendants and the tape from the tachometer. More will be said of this tape at a later point. The Court finds that the defendant’s rig was proceeding, at the time of the collision, at a speed of approximately fifteen (15) miles per hour.

There was evidence presented by the defense through Mr. James Frankenfeld. He was driving a tractor and flatbed on the morning of the accident and observed the Shasta truck entering Route 3. He pulled to his left to permit the truck a clear entry. He was driving his rig at a speed of fifty-five (55) miles per hour. He observed the Shasta truck approaching him from the rear and it appeared to be over the center line. He (Frankenfeld) reduced his speed to forty (40) miles per hour and moved to the right and the Shasta truck passed him at a speed of fifty-five (55) to sixty (60) miles an hour. The driver of the Shasta vehicle appeared to be slumped over. Moments later, Frankenfeld came upon the accident scene; stopped and rendered aid.

The Court finds as a fact that the Shasta truck was, at that point in time, proceeding at a speed of at least fifty-five (55) miles per hour. The proffer as to the operator being slumped over is mystifying. There was no evidence that Schruefer had consumed any alcoholic beverage prior to the accident. In fact, his wife said he had not had any and the Medical Examiner found no evidence of alcohol in Schruefer’s system (See Plaintiffs Exhibit No. 1). It is a further fact that Dr. Irwin M. Sopher found that Schruefer’s cause of death to have been head and brain injuries. There is no suggestion that death resulted from any cardiac problem that arose prior to the collision. Therefore, the Court gives no particular significance to the testimony that Sehruefer was slumped over. Such evidence simply had no probative value.

Reduced to its simplest form, had the defendant’s vehicle entered the flow of traffic?

The tachograph tape (Defendant’s Exhibit No. 16; a tachograph (Defendant’s Exhibit No. 17); and an instrument used to seal the tachograph and identified as Defendant’s Exhibit No. 18, were received into evidence over the objection of the plaintiffs. The tachograph is a mechanical instrument which is attached by wiring to the transmission of the tractor. It is a timing and measuring device which, when in operation will record, on a tape, the stops, starts, distances travelled, and speed of the tractor. Defendants offered evidence through Robert M. Williams, its traffic manager, that a new tape is inserted in the tachograph when one of Coastal’s trucks goes on a run. The unit is sealed and the tape is removed when the vehicle returns. The manager then reviews the tape to check on speeds, stops, and the like. As such, the Court concluded that the tape might be regarded as a record kept in the normal course of business (See Snyder v. Stouffer, 270 Md. 647 (1974)). As stated at trial, the tape would receive such weight as the Court would choose to give it.

The Court has been unable to locate an appellate decision in this jurisdiction dealing with the tachograph. There have been rulings concerning this device in other jurisdictions, to-wit: Villegas, et al. v. Bryson, et al., 494 P. 2d 61 (1972); Bell, et al. v. Kroger Co., et al., 323 S.W.2d 424 (1959); Hall v. Dexter Gas Company, Inc., 170 So. 2d 796 (1964); Thompson v. Chicago and Eastern Illinois Railroad Co., 148 N.E.2d 151 (1961); Johnson v. New York Central Railroad Co., 97 N.W.2d 769 (1959); Cooper v. Hoeglund, 22 N.W.2d 450 (1946); Gulf Cobrado and Santa Fe Railroad Co. v. Parmer, 389 S.W.2d 558 (1965); Texas and N. O. Railroad Co. v. Lemke, 365 S.W.2d 148 (1963); Union Transports, Inc. v. Braun, 318 S. W. 927 (1958); Biggers v. Continental Bus Systems, Inc., 303 S.W.2d 359 (1957); and Whitten v. Central of Georgia Ry. Co., 79 S.E.2d 331 (1953).

There is also a delightfully informative article on the tachograph at 8 Wayne Law Review, 287 (1962) entitled, The Tachograph As Evidence of Speed. The defendants urge that this tachograph tape corroborates their theory that their vehicle had attained a speed of thirty-eight (38) miles per hour and thus, had joined the flow of traffic as defined in Kowalewski v. Carter, 11 Md. App. 182 (1971); Grue v. Collins, 237 Md. 150 (1964); Quinn Freight Lines v. Woods, 266 Md. 381 (1971). This being so, the defendants conclude that the plaintiffs lose benefit of the “Boulevard Law” and consequently must fail in their claim for damages because of the decedent’s contributory negligence. This presumes, of course, that the recordings made by the tachograph were accurate. Maryland has long recognized that the speed of motor vehicles may be measured by radar (CJ § 10-301). The United States District Court for the District of Maryland in an Opinion by then Chief Judge Thomsen upheld the use of radar in George Dreos v. United States, 157 F. Supp. 200 (1957). In addressing the burden of proof on the government, the Court said:

‘It is sufficient to show that the equipment has been properly tested and checked, that it was manned by a competent operator, that proper operative procedures were followed, and that proper records were kept.’ at page 208

In Villegas v. Bryson, supra, the Court of Appeals of Arizona concluded that a tachographic tape is competent evidence of speed if the tape is properly identified and authenticated. However, that Court concluded at page 62 that:

‘(t)he tachograph recording must be identified and duly authenticated which should include proof that the particular instrument relied upon was in good working order and accurate at the time the recording was made.’ (Emphasis Supplied)

Plaintiffs produced evidence through the deposition of Robert M. Williams, manager for the defendant corporation, that at the time of the collision, the defendant’s tractor had attained an odometer reading of two hundred sixty-five thousand (265,000) miles. Some adjustment had been made to the tachograph at one hundred eighty-six thousand, three hundred twenty-six (186,326) miles. The tachograph was never, to the knowledge of the witness, calibrated either before or after the collision. In short, this Court concludes that the tape is not worthy of belief because it fails to meet the standards recited in Dreos and Villegas, supra.

Of more persuasion is the evidence of the trucker and repairman, Roy Smith. Over the objections of the defense, the witness was permitted to testify as to the results of certain experiments he had conducted on the site of this accident. Our Court of Appeals has said that if an experiment is conducted outside the courtroom, it must be done under circumstances and conditions similar to those of the case at hand if the experiment is to be received in evidence (Smith v. State Road Commission, 240 Md. 525, 537 (1965) and cases cited therein). The experiment conducted by Smith was with a tractor of a similar type as the Great Coastal tractor; a rig and load of similar weight; and operating from the same driveway exit used by Great Coastal on the morning of the accident. The unit was driven into the same lane as that used by Great Coastal and the only material difference was that Route 3 had a new coating of blacktop applied since the accident. The experiments were conducted for the sole purpose of showing the maximum speed and gear that could be accomplished by this unit within a distance of three hundred and seven (307) feet from the point where the Great Coastal Express rig entered Route 3.

The Court is satisfied that the Great Coastal Express rig could have attained fourth (4th) gear and a maximum speed of fifteen (15) miles per hour at the point of impact. The Court is persuaded of this fact because the experiment was conducted several times. The witness, Roy Smith, displayed a good demeanor. He gave good, conclusive reasons for his findings and the Court makes this finding as a matter of fact.

There was no explanation given in evidence to enlighten the Court as to why the deceased driver’s vehicle did not reflect any locking of brakes and wheels that would result in skidmarks on the roadway. Absent evidence the reasons would be idle speculation. This lack of evidence alone will not be of sufficient quality to find the deceased to have been contributorily negligent. The presumption of the natural instinct to guard against danger is proper to consider in this area (See Baltimore Transit Company v. Castandra, 194 Md. 421, 434 (1950)).

This then brings us to the determination of liability. I am not convinced that the defendant’s rig had, in fact, entered the flow of traffic so as to escape the restrictions of the ‘Boulevard Rule.’ While the defendant’s rig was, in fact, fifty-five (55) feet in overall length, one must surmise that the front end of the Coastal tractor had attained only five and one half (5 1/2) vehicle lengths on a road designated to expedite the flow of traffic at speeds of fifty-five (55) miles per hour. The speed of the vehicle of Shasta Beverage simply is not considered. The proximate cause of the accident was the negligence of the defendants in impeding the traffic on the boulevard [Hensel v. Beckward, 273 Md. 426 (1974), Creaser v. Owens, 267 Md. 238 (1972)]. Even as the Court of Appeals referred to the ‘Rock of Gibraltar’ in Hensel, supra, this Court finds that the mandates of the ‘Boulevard Rule’ must stand; and absent a legislative directive, it shall not be compelled to take into consideration the calculations of speed and distances. A judgment shall be entered in favor of the plaintiffs and the defendant Smith’s counter-claim shall be dismissed.

DAMAGES

Many of the damages claimed, such as the subrogation claim of the Travelers Insurance Company and Shasta Beverage are liquidated and have been stipulated. The more troublesome area lies in a fair and reasonable determination of what the defendants must pay for the ‘Piece of the Rock’ that they have purchased.

The deceased was married to the plaintiff-widow, the father of two children, and the total source of income for the family. Evidence showed him to have been a normal, healthy male with a life expectancy, at the time of his death, of forty-six (46) more years. Evidence adduced from Dr. Herman P. Miller, an economist and statistician, showed that Mr. Schruefer would have had a work-life expectancy of thirty-seven (37) years. His income for the -several months prior to his death was Seven Thousand Thirty-six Dollars ($7,036.00) and for that taxable year was projected to Fifteen Thousand Five Hundred Dollars ($15,500.00). Evidence of fringe benefits received and that would be received was received by the Court. There is then to be considered the loss of society and companionship suffered by the plaintiff, Darlin Sue Schruefer, as a result of the untimely death of her husband, George Schruefer.

The plaintiff was described as a family man. He had served with the Bel Air Rescue Squad and was recognized in the year preceding his demise as their man of the year. Closer to the family, he labored with his son seeking to strengthen that child’s afflicted body through therapy and exercise. Uncontradicted evidence showed that he devoted up to two hours per day in this endeavor. He played with his children; aided them in their homework; did simple chores and repairs about the marital home and otherwise led a wholesome, if modest, lifestyle.

Testimony showed Mr. Schruefer’s needs in material matters to be few and extravagancies to be non-existent. An occasional movie or a meal out would apparently constitute the extravagance. The deceased was a basic family man, a good husband and a loving and doting father. What award of damages can attempt to replace the life of this man in the lives of his widow and children? After extensive direct testimony and cross-examination, Dr. Miller gave evidence that an award of Three Hundred and Three Thousand, Seven Hundred Eighty-eight Dollars ($303,788.00) would fairly compensate the plaintiff, Darlin Sue Schruefer, for the income that she would lose as a result of George Schruefer’s demise. This does not take into account the loss of companionship, love, affection, and other intangibles that are to be identified as the assets of a good marriage. Again, the Court must attempt to fairly compensate the widow for this loss. The award must not be punitive since it is not a reward.

The problems occasioned by the infant plaintiffs through the death of their father, George Schruefer, are similarly complex and overreaching. His son would, undoubtedly, have been totally dependent on Mr. Schruefer for many, many years. The two hour therapy and play sessions are now gone. The widow-mother strives to give the son therapy. The results remain to be seen. Again, the value of Mr. Schruefer’s love, work, and companionship to this youngster is an intangible. The Court will strive to fairly compensate this loss.

The decedent’s infant daughter has also suffered a great loss through his death. There was evidence that this young girl was treated as a young female would enjoy being treated by her father. He loved her and had her education and training to look forward to. Redundant as it reads, this is now gone. A fair award in this regard must be made.

In making an award of damages to the infant surviving children of the deceased, one must be mindful that their cause of action arose on June 13, 1974. At that time they did not, by statute, have the benefit of a claim of companionship, comfort and the like suffered as a result of the death of a parent as contemplated in CJ § 3-904 (d), Annotated Code of Maryland. This legislative oversight was remedied by the legislature in 1975 when the aforementioned statute was amended to include ‘(o)r parent of a minor child.’ This became effective on July 1, 1975, and was prospective only. Therefore, the Court must apply the test set forth in State of Maryland v. Thomas, 173 F. Supp. 568 (1959), and followed in Cincotta v. United States, 362 F. Supp. 386 (1973).

The defendants urge that if an award is to be made in favor of the plaintiffs that the Court must consider a net income basis for recovery since any judgment is not subject to federal or state income taxes. In support of this proposition, the defendants rely on the appellate decision of the State of New Jersey, citing Tenose v. Nu Car Carriers, Inc., 341 A. 2d 613 (1975). The opinion is interesting but reflects a minority recognized in New Jersey, Rhode Island, and Connecticut. This problem has been fairly addressed by the Maryland Court of Appeals and is not, at this time, the accepted law of this State [See Hutzell v. Boyer, 252 Md. 227 (1969), and Sun Cab Company v. Walston, 15 Md. App. 113 (1972)]. For these reasons, the Court concludes that in determining damages the question of federal and state income taxes shall not be considered.

ORDER

For the foregoing findings of fact and conclusions of law, it is, by the Circuit Court for Montgomery County, Maryland, on this 26th day of March, 1976,

ORDERED, that the Clerk of the Circuit Court for Montgomery County, Maryland, shall make the following docket entries in this case:

1. Judgment for the Plaintiff, Shasta Beverages, against the Defendant, Great Coastal Express, Inc., in the sum of Eighteen Thousand One Hundred Dollars and Two Cents (18,100.02) plus costs.

2. Judgment in favor of Plaintiff, Traveler’s Insurance Company, against the Defendant, Great Coastal Express, Inc., in the sum of Fifty-four Thousand Five Hundred Dollars ($54,500.00) plus costs

3. Judgment in favor of Plaintiff, Darlin Sue Schruefer, against the Defendant, Great Coastal Express, Inc., in the sum of Three Hundred and Fifty Thousand Dollars ($350,000.00) plus costs.

4. Judgment in favor of Plaintiff, Richard Lynn Schruefer, an infant, against the Defendant, Great Coastal Express, Inc., in the sum of One Hundred Thousand Dollars ($100,000.00) plus costs.

5. Judgment in favor of Plaintiff, Barbara Ann Schruefer, an infant, against the Defendant, Great Coastal Express, Inc., in the sum of One Hundred Thousand Dollars ($100,000.00) plus costs.

6. Judgment in favor of the Counter-Defendants, Schruefers, et al., against the Counter-Plaintiffs, Gerald Wayne Smith, with costs.

s/ John J. Mitchell

JOHN J. MITCHELL

JUDGE of the Circuit Court for Montgomery County, Maryland”

Appellants’ arguments, relying on Grue v. Collins, 237 Md. 150 and Ness v. Males, 201 Md. 235, that the Boulevard Rule has no application to this case, is in error. In both cases the Court of Appeals stated that it was the function of the factfinder to determine from the evidence whether the unfavored driver had sufficiently entered the flow of traffic so as not to interfere with the rights of the favored driver. Judge Mitchell — as the factfinder — addressed that issue and arrived at his conclusion from his view of the evidence.

III.

“The lower Court erred in holding that Ronald Smith was qualified to testify as an expert as to the maximum speed capacity of the Coastal Express tractor-trailer driven by Appellant, Gerald Wayne Smith”.

One of the Court of Appeals’ most recent utterances reaffirmed the holding in Casualty Ins. Co. v. Messenger, 181 Md. 295, 298-299 that a witness- may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation, regardless of whether this special knowledge is based upon professional training, observation, actual experience or any combination of these factors. Radman v. Harold, 279 Md. 167 (1977). It is apparent from the opinion of Judge Mitchell that, as judge, he found the witness adequately qualified, and as factfinder, he found the witness most persuasive. We see no error in either instance.

IV.

“The lower Court erred in holding that the said witness, Ronald Smith could testify to the results of an experiment allegedly made with another truck”.

Our review of the record indicates that appellants did not preserve this question by proper objection at the time. Appellees had just concluded a hypothetical question regarding the speed that was attainable by appellants’ vehicle under the circumstances described. To bolster the expert opinion, appellees sought to elicit that the expert had conducted an experiment simulating the conditions that appellants had described. Where it was necessary to vary the circumstances, appellees overcompensated on the side of prudence, so that the variable factors would necessarily militate in favor of appellants.

In order to bring forth ,the circumstances of the expert’s experiment, appellees propounded questions of a leading nature. The only objection that appellants offered to any of the testimony relating to the experiment was to the nature of the questions and the absence of the time of the experiment, which the court directed should thereafter be established.

“MR. SMALKIN: If the Court please, I object to the line of questioning. Every question is leading. I object now. He is his expert. We don’t have a date when it was made or any written report from the expert.
THE COURT: All right, set the time.”

Although grounds for an objection need not be stated unless requested, Md. Rule 522 d., we have held that, if counsel volunteers his grounds at the time of the objection, he is bound on appeal to the grounds expressed, von Lusch v. State, 31 Md. App. 271, 286-287, reversed on other grounds 279 Md. 255, 368 A. 2d 468 (1977). The procedures involved in the test and the results were thereafter brought before the court by continued question and answer, without objection.

Appellants now attempt to attack the experiment testimony because the experiment was not identical to the conditions at the accident. We do not believe that appellants have preserved that issue within the meaning of Md. Rule 522 d. 1. as interpreted by von Lusch, supra.

But had appellants preserved the issue, it would have availed them naught. We are aware that:

“For evidence of experiments performed out of court to be admissible they must have been made under similar conditions and like circumstances to those existing in the case at issue.” Smith v. State Roads Comm., 240 Md. 525, 537.

However, the Court of Appeals has made it clear that:

“Trial judges are vested with a generous amount of discretion in this area and this discretion will not be disturbed on appeal unless abuse is apparent.” Id. at 538.

In view of the overcompensation of all dissimilar factors to favor appellants, we can see no abuse of discretion. The opinion of an expert witness, the grounds on which it was formed and the weight to be accorded it are for the trier of facts. See Duvall v. Potomac Electric, 234 Md. 42, 47; Bergeman v. State Roads Comm., 218 Md. 137, 142-143.

V.

“The lower Court erred in the interpretations and effect given to the tachometer admitted in evidence on behalf of the Appellants”.

As noted in the opinion, the trial judge admitted the tachometer in appellants’ truck into evidence. However, in assessing the weight to be given it, he pointed out that it had not been adjusted for at least 75,000 miles before the collision and had never, before or after the collision, been calibrated. For that reason he found the device so unpersuasive as to be unworthy of consideration.

Appellants argue that the court erred in giving the evidence no weight, contending that it was entitled to at least some weight. That, of course, is not the law. The trier of fact may believe or disbelieve, accredit or disregard, any evidence introduced. See, e.g., Phelps v. Goldberg, 270 Md. 694, 705; Gray v. Dep't of Correction, 230 Md. 508, 511-512. We may not — and obviously could not — decide upon an appeal how much weight must be given, as a minimum to each item of evidence. A machine is no more entitled to be credited than is a witness. Belief of either is a subject for the factfinder, not by an appellate court. The judge admitted it, considered it and rejected it, as he was entitled to do.

VI.

“The lower Court erred in allowing counsel for the Appellees to question Robert Milton Williams, operations manager of Great Coastal Express Co., Inc., as to the report made by him to the interstate commerce commission”.

When appellants cross-examined the manager of Coastal Express Lines, Incorporated, he was asked whether he had asked the driver what time the accident had occurred. The following controversy ensued:

“BY MR. CRAMER:
Q Did you ask him what time the accident happened?
A I can’t specifically say. I’m sure I did.
Q Did he say it happened at five a. m.?
A I can only answer that —
Q Just a yes or no. Did he say it happened at five a. m.?
A I don’t remember.
Q Would you look at your records?
MR. SMALKIN: Objection.
MR. CRAMER: I am just asking, Your Honor — the full purpose of this is to ask the witness whether or not he made a report of the main things.
MR. SMALKIN: That’s different. The question, I don’t object to. If you are going to ask him to refer to a paper, the law says it’s not admissible. I object, therefore, in reference to that particular paper.
MR. CRAMER: Just for the purpose of refreshing his recollection, Your Honor, that was all. It’s not going into evidence. The damaging material is not going in.
THE COURT: Is your memory refreshed?
THE WITNESS: Your Honor, I can’t remember what I asked Gerald Smith specifically —
THE COURT: All right.
THE WITNESS: — at the time of the accident or what his answer was.
THE COURT: Okay.
BY MR. CRAMER:
Q Mr. Williams, if he would have said other than five o’clock you would have put something down other than five o’clock, wouldn’t you?
A I would think so.
Q Will you please tell us what you put down as the time of the accident?
MR. SMALKIN: Objection, if he has to refer to the paper.
MR. CRAMER: He can just use it to refresh his recollection. It’s not damaging. I am not going to submit the report as evidence.
THE COURT: I will permit it.
BY MR. CRAMER:
Q What time did you report after your conversation with him as to the accident?
A It says on this paper, time of accident, five o’clock.”

Appellants contend that the Interstate Commerce Act proscribes the admission or use of Interstate Commerce reports, citing Blankenship v. General Motors Corporation, 428 F. 2d 1006. The pertinent statutory section reads:

“Accident reports. No report by any motor carrier of any accident arising in the course of the operations of such carrier, made pursuant to any requirement of the Commission, and no report by the Commission of any investigation of any such accident, shall be admitted as evidence, or used for any other purpose, in any suit or action for damages growing out of any matter mentioned in such report or investigation.” 49 USCA § 320 (f).

We need not decide whether the limited use at issue here is a violation of the statute. For us to reverse, even if the use of the report to refresh recollection was proscribed, we would also have to find that its use was prejudicial as well. See Blondes v. Hayes, 29 Md. App. 663. We can see no indication of prejudice. If appellants violated federal law, they must answer for their conduct before that bar of justice.

“VII. The lower Court erred in its determination of damages in this case.

VIII. The lower Court erred in admitting the testimony of the witness, Herman Miller, as to losses or damages sustained as a result of the death of George O. Schruefer, Jr.

IX. The lower Court erred in admitting the testimony of the witness, Herman Miller, as to the prospective increase in the cost of living in estimating damages”.

Appellants discussed these three issues together, and we will respond in the same manner.

The short answer to appellants’ broadside allegation of error in determination of damages is that we can no more speculate upon what amounts were attributed to what factors by the judge, than he could if the case had been tried by a jury.

Next, we find no error in admitting expert testimony regarding damages. It was said in Casualty Ins. Co. v. Messenger, supra, discussing the qualifications of an expert witness:

“ . .. that a witness, in order to qualify as an expert, should have such special knowledge of the subject on which he is to testify that he can give the jury [or factfinder] assistance in solving a problem for which their equipment of average knowledge is inadequate.” 181 Md. at 298.

If expert opinion is reasonably calculated to assist the factfinder, not to confuse him, it is admissible in the sound discretion of the court. Williams v. Dawidowicz, 209 Md. 77, 86-87. By the very fact that the judge, who was also factfinder, admitted and considered the economist’s testimony as to such factors as the work life expectancy of the decedent and reduction of future earnings to present worth, indicates that he did not feel sufficiently apprised of economic factors to make that judgment without the aid of someone specially trained and skilled in the economic world. See Langenfelder v. Thompson, 179 Md. 502. The court did not abuse its discretion in hearing the expert.

Although appellants’ assignment of error in question IX is directed expressly to the expert’s testimony of “the prospective increase in the cost of living in estimating damages”, their argument wanders afield, critically analyzing the entire testimony. We will not respond to the broader observations in the argument except to say, as we have already, such testimony is a proper field for expertise especially in the complexities of today’s economy.

The issue they expressly raised in their question is also easily answered. In the first instance, we find no testimony by Herman Miller in regard to a projected increased cost of living. The only testimony remotely relating to that was about a prospective wage rate or productivity increases:

“Q Now, what other factors did you take into consideration in attempting to establish his perspective earning loss?
A Now, in talking about the future or at least the present value of the future earnings, there are two separate factors that we have to consider. First of all, in my judgment, we cannot assume that his earnings throughout the rest of his life will be exactly what they are or what they would have been today. We know that workers have received increases. We know that there are productivity increases in the economy. We know there are historic wage rate increases in the economy and we have every reason to suspect these to continue in the future.
Q Excuse me, Mr. Miller. In your field of endeavor as you have described, is it an accepted practice to take into consideration this factor?
A Yes, it’s very much so. For example, the government, in making its own projections of real output of the economy, when the government wants to know what will be the total value of goods and services, say twenty years from now, they will invariably allow for growth and productivity and almost always will use the factor of three per cent which we would regard as a minimum. Because over the past fifty or more years, the average worker, working at the average job, and a man turning out shoes in a shoe factory, a man turning out an automobile, the cost increases of technology because of employment in health and training, this productivity is going to go up and historically it’s going up at the rate of three per cent a year. And this is something I think we can count on. We have to count on this in society. If our productivity starts going down — That I would regard as a minimum.
I might say in addition, we know that prices have gone up as far back as we can measure. We have every reason to believe that prices will continue to go up. That would have to be added on to the three per cent. In all of the calculations I have done for this project, I did not use any growth rate of more than three per cent but I did use a growth rate of three per cent.”

Appellants offered no objection to this testimony and it is, therefore, not subject to our review. Md. Rules 522 d. 1., 1085. The question posed next was objected to, but it related only to the witness’ opinion of whether the percentage he had adopted from the government’s projections was a conservative figure:

“Q Can you tell us whether or not three per cent could be conservative?
A Yes, extremely conservative.
MR. SMALKIN: Objection. If the Court please, we are getting into the field of speculation, I believe, which is to be the future trends.”

The court sustained the objection, and appellants received all of the relief to which they were entitled or for which they had asked. The issue of prospective cost of living increases was not clearly raised below and certainly was not preserved for our review by an objection.

Appellants raised a new issue by way of reply brief to which appellees were unable to respond. Notwithstanding the procedural impropriety, the issue appears to have merit.

Travelers Indemnity Company, the decedent’s employer’s insurer, was allowed to intervene as a party plaintiff because it had paid workmen’s compensation benefits to the decedent’s dependents pursuant to a Workmen’s Compensation Commission award. Md. Code, Art. 101, § 58 provides that the insurer is entitled to be reimbursed, if the dependents prevail against the tort-feasor, for the compensation paid, including amounts paid for medical, surgical and funeral expenses and any other purpose enumerated in § 36 of that article. However, as Travelers recognized in its motion to intervene, the trial judge recognized in his opinion, and, in construing § 58, numerous cases have recognized, the insurer’s right is one of subrogation. See, e.g., Gray v. State Roads Comm’n, 253 Md. 421, 424-425; Brocker Mfg. v. Mashburn, 17 Md. App. 327, 340. Accordingly, the trial judge erred in entering a separate judgment for Travelers.

Although we are empowered by Md. Rules 1070 and 1075 b. to alter or modify the judgment as to Travelers, we are unable to exercise this power in this instance. We cannot tell if the trial court reduced the amount it would have awarded the widow and children by the amount it awarded Travelers, or if the award of the latter amount was in addition to what the widow and children would have received had the insurer not intervened. Inasmuch as this case was tried to the judge and not a jury, modification of the award on remand should pose no particular difficulty.

A further reason why we are unable to modify the judgment is our confusion from the record over the proper amount due Travelers. It was awarded $54,500.00, the amount given in an interrogatory by the decedent’s employer as the total amount expended on workmen’s compensation. But the record also contains a letter from Travelers to the effect that it paid Darlin Sue Schruefer a total of $8,831.70 for funeral expenses and compensation. Whether the difference between the two sums reflects amounts paid to the deceased’s children, amounts paid for purposes specified in § 36 of Art. 101, or amounts paid for other purposes, we are unable to say. On remand the trial court should articulate the basis of the award in favor of Travelers. If necessary for clarification, the court may hear from counsel or witnesses on that limited issue. See Md. Rule 1071.

Judgment in favor of Shasta Beverages affirmed; judgments in favor of Darlin Sue Schruefer, Richard Lynn Schruefer, Barbara Ann Schruefer and Travelers Indemnity Company vacated- and remanded for modification and entry of proper judgments in accordance with this opinion.

Costs to be paid by the appellants.

      . The record does not disclose that Gerald Wayne Smith appealed. The order of appeal was signed by the attorneys who represented Great Coastal Express,' Incorporated and Smith jointly, but. those attorneys designated themselves as “Attorneys for the Defendants”. Because we affirm on the facts, it is not necessary to determine whether there is an appeal by Smith in his capacity as a counterclaimant.

      . Appellees proffered that the necessity of utilizing overcompensated equipment was due to appellants’ refusal to permit the use of its own equipment.


author: Melvin, J.,

text:
    JOSEPH BUSHMILLER v. EUNICE MYRTA SCHILLER
    [No. 544,
    September Term, 1976.]

      Decided February 8, 1977.

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

      J. Earl Plumhoff for appellant.
    No appearance for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The dispute in this case is over which of the parties to a real estate contract is entitled to a $13,000 deposit initially received by the seller (appellant) from the buyer (appellee) as part payment of the $130,000 purchase price for a residential property located in Baltimore County. By suit and counter-suit, each party sought judgment against the other for the amount of the deposit. After a bench trial in the Circuit Court for Baltimore County (Proctor, J.), the buyer and original plaintiff, Mrs. Eunice Myrta Schiller, emerged victorious with a judgment for $13,000 against the seller and original defendant, Mr. Joseph Bushmiller. Judgment was also entered against Mr. Bushmiller in his counter-suit. Aggrieved by the results, Mr. Bushmiller has appealed to us to set aright what he perceives as a wrong decision by the trial court.

The dispute over the deposit had its genesis when Mrs. Schiller won “a million dollar lottery” in the Maryland State Lottery, entitling her to receive $50,000 a year for 20 years. Not long after this fortuitous happening, she entered into a written contract with Mr. Bushmiller, dated 25 July 1975, to purchase his house for $130,000. The contract provided for the payment of a deposit of $13,000 to be applied as part payment of the purchase price. Settlement was to be within 45 days and “[i]f the Purchaser . .. failfed] to make full settlement”, the deposit was to be “forfeited at the option of the Seller, in which event the Purchaser shall be relieved from further liability . . . .”

The contract further provided that,

“This contract is subject to the ability of the Purchaser to secure [within 10 days], a written commitment for . . . [a] first mortgage secured on said premises in the amount of $100,000, for a term of Twenty (20) years, and bearing interest at the rate of prevailing per annum [sic].
“Purchaser utilizing a loan agrees to make application immediately and file all necessary papers that are required to complete processing, including resubmission and appeal where necessary, and agrees that failure so to do shall give the Seller the right to declare the deposit forfeited.....”

In her suit to recover the deposit Mrs. Schiller alleged that she “was unable to obtain the necessary financing and advised the Defendants and each of them and demanded the refund of the deposit monies and .. . Defendants have failed and refused to return said monies”. The gravamen of Mr. Bushmiller’s counter-suit was that Mrs. Schiller “was obligated under the terms of the aforesaid Contract to act in good faith in securing a written commitment for a first mortgage within ten (10) days from the date of the Contract, and said Counter-Defendant wholly failed and refused to act in good faith to secure the said mortgage commitment, notwithstanding that mortgage monies on the terms required under the contract were readily available to the Counter-Defendant”. By a “Stipulation of Counsel” filed prior to trial, Mr. Bushmiller’s damages against Mrs. Schiller were “limited to the sum of Thirteen Thousand Dollars ($13,000.00)”, the amount of the deposit that had been paid into court by Bushmiller’s agent who had originally received it from Mrs. Schiller.

The Evidence

The pertinent facts as found by the trial judge can be summarized as follows:

Mrs. Schiller became interested in buying Mr. Bushmiller’s property. Before submitting an offer she telephoned the Equitable Trust Bank on Wednesday 23 July 1975 to inquire about the possibility of a mortgage loan. She talked to a Mrs. Davis who was a mortgage loan officer for Equitable. Mrs. Davis advised her that a mortgage loan would in all probability be favorably considered on the basis of a 20-year mortgage with “ballooning” at the end of five years. Mrs. Schiller did not understand what the term “ballooning” meant and at that time made no effort to find out. The next day, 24 July, Mrs. Schiller filled out a formal application for a mortgage loan of $97,500.00, to be repaid in “300 months” (25 years). On the same day, Mrs. Schiller signed an undated contract of sale prepared by her agent, a Mr. Collins of Century 21, a real estate brokerage firm. Mrs. Schiller then left the Baltimore area to visit her sister in Connecticut.

On Friday, 25 July 1975, Mr. Collins submitted the contract offer to Mr. Bushmiller. As prepared by Mr. Collins, the contract provided that the time within which the purchaser was to secure a written commitment for the mortgage loan was 30 days. Mr. Bushmiller wanted that time period reduced to 10 days. Mr. Collins telephoned Mrs. Schiller in Connecticut and Mrs. Schiller agreed to the change by a telegram dated 25 July 1975. The change was made in the contract itself and initialed by Mr. Collins as agent for Mrs. Schiller. As thus amended, the contract was dated and executed by Mr. Bushmiller on 25 July 1975.

On Sunday 27 July, Mrs. Schiller left Connecticut and went to New Hampshire to visit her son. As found by the trial judge, “when she gets to her son’s her eyes are opened, first, as to what balloon mortgage financing means, and secondly, as to the problems involved in a large expensive house. She immediately calls off the Equitable Trust Company loan, and then does nothing more.” The record shows that Mrs. Schiller telephoned Equitable from New Hampshire on either 28 July, 29 July, or 30 July (probably 29 July) and cancelled her loan application. There is no indication in the record that she notified Mr. Bushmiller of the cancellation.

Mrs. Schiller returned to Baltimore in the late evening of 5 August, eleven days after the date the contract was executed. On 6 August, Mr. Bushmiller’s agent contacted Mrs. Schiller. The agent’s testimony (which the trial court found to be uncontradicted) concerning her conversation with Mrs. Schiller was as follows:

“Then Mrs. Schiller told me that when she was in New Hampshire and talked to her son, he told her that it was unwise for her to buy this house. She said, cannot afford it; this is ridiculous. He’s shown me that I will have to pay capital gains on my house, ^ which was not true because she was reinvesting the money; and I tried to explain this to her. She said, ^ [W]ell, it doesn’t — I just can’t afford the house; ^ and she said hi [l]t doesn’t matter. ^ And when we mentioned the means of financing that we had available and the fact that it was savings and loans money available at the terms that she wanted, she said hi [T]hat doesn’t matter, I’m not interested in buying the house; I can’t afford it; my son has advised me against it. ^ ”

It appears that on 6 August, the day after her return to Baltimore, Mrs. Schiller also contacted Mrs. Davis of Equitable and told her she did not want a “balloon” mortgage. On 7 August Mrs. Davis wrote to Mrs. Schiller as follows:

“Dear Mrs. Schiller:
Pursuant to our telephone conversation of August 6, 1975,1 must issue a letter of decline in answer to your mortgage request.
When I was first approached by Mrs. Spilman of Piper & Co. concerning financing for you, I told her that it would appear Equitable Trust would help you based on a $100,000.00 loan written for 5 years based on a 20 year payout. The interest rate would be determined when the loan was presented for approval. Since, on your application, you have specifically requested a straight 25 year mortgage loan and are not willing to consider a five year loan with a balloon payment, I must decline your loan request.
Thank you for the opportunity to be of service to you.
Very truly yours,
/s/ Verna Q. Davis Mortgage Officer”

Also on 7 August, Mrs. Schiller’s attorney wrote to Mr. Bushmiller’s agent and to Mr. Collins as follows:

“Dear Sir & Madam:
Our office represents E. Myrta Schiller and have had referred to it, for attention, the contract for the captioned property dated July 25,1975.
As both of you know, Mrs. Schiller promptly made application for a mortgage loan with The Equitable Trust Company in the amount of $100,000.00 for a term of twenty years, repayable in monthly installments of principal and interest only.
We regret to advise that The Equitable Trust Company has turned down the application and was only willing to grant a 20 year amortization plan with a 5 year balloon.
As the balloon provision is unacceptable, I must advise that the purchaser was unable to secure a written commitment for the first mortgage described in the contract within ten days from the date of the contract.
Please, therefore, promptly return the $13,000.00 being held by you to the writer.
If there are any further negotiations to be conducted under a new contract between the seller and my client, I would appreciate your clearing the same through this office. I am enclosing herewith, for your records, a copy of the letter received from The Equitable Trust Company indicating that they would only write the mortgage loan under a balloon clause.
Very truly yours,
THEODORE C. DENICK”

The record reveals no further contact between the parties until 13 October 1975. On that date Mr. Bushmiller’s attorney wrote to Mrs. Schiller’s attorney as follows:

“Dear Mr. Denick:
As you know, this office represents Joseph Bushmiller, the owner and seller of the property known as 401 Falls Road. The seller’s position remains unchanged, in that he is still ready, willing and able to convey the property to Mrs. Schiller under the contract of sale dated July 25, 1975.
It is our belief that Mrs. Schiller’s failure to consummate this contract constitutes a breach of the contract; and we intend to hold Mrs. Schiller’s deposit of $13,000.00, and we further intend to hold her liable for any damages which we sustain on resale of the property. We presently have two buyers who have offered $100,000.00 for the purchase of the property. Although we feel the property is worth more than $100,000.00, neither of the prospective buyers will offer more. Accordingly, we may be constrained to accept a $100,000.00 offer and look to Mrs. Schiller for the balance. The market conditions continue to deteriorate because of tight money and the approaching winter months. The seller has a second mortgage which falls due in early November and we have been advised that foreclosure proceedings will be instituted immediately if the entire mortgage balance is not paid when due.
If Mrs. Schiller is willing to proceed under her contract, I am confident that we can obtain financing for her at the prevailing interest rates. Please let me hear from you if Mrs. Schiller is willing to proceed with the contract; however, I shall notify you in any event of the execution of a new contract by the seller.
Very truly yours,
J. Earle Plumhoff”

Mrs. Schiller’s response to this letter was her suit, filed 24 October 1975, to recover the $13,000 deposit.

Decision

It is clear that the requirement of obtaining mortgage financing as a condition in a contract for the sale of realty must be given effect unless the condition has been altered by the parties or waived by the one for whose benefit the condition was made. Traylor v. Grafton, 273 Md. 649, 332 A. 2d 651 (1975); Barnes v. Euster, 240 Md. 603, 214 A. 2d 807 (1965). In this case, the obligations of Mrs. Schiller to buy and Mr. Bushmiller to sell were each conditioned upon Mrs. Schiller’s ability to secure within ten (10) days of the contract date (July 25, 1975) a written commitment for a mortgage loan in the amount of $100,000, for a term of twenty (20) years at the “prevailing” interest rate. The burden of satisfying this condition was placed squarely upon Mrs. Schiller. By the terms of the contract she was obligated “to make application immediately and file all necessary papers that are required to complete processing, including resubmission and appeal where necessary”. To these express requirements are added the further implied requirement that she take “bona fide, reasonable and prompt action to obtain the financing specified”. Traylor v. Grafton, supra, at 689.

The trial judge found that Mrs. Schiller did not know what “balloon” financing meant when she discussed the subject of a mortgage with Mrs. Davis of Equitable on 24 July and that it was not until Sunday 27 July when she visited her son in New Hampshire that she learned the meaning of the term. We cannot say that these factual findings were clearly erroneous. Nor do we find erroneous the judge’s finding that upon learning the meaning of a “balloon” mortgage and upon being persuaded by her son “as to the problems involved in a large expensive house, [s]he immediately calle[d] off the Equitable Trust Company loan, and then does nothing more”. We do not agree, however, that the inaction on her part satisfied the requirement of good faith efforts to obtain the financing specified by the contract. The judge felt that her inaction was justified and comported with good faith because . . even if she had probably made up her mind that she still wanted the house, it would almost certainly have been impossible for her in that very brief period of time to arrange for a written commitment for a loan in the amount of $100,000.”

While it is undoubtedly true that it may have been difficult to obtain a loan commitment within the ten-day limitation, patently it would not have been “impossible”. In any event, we cannot equate “no” efforts with “reasonable” efforts to obtain the specified financing. See also, Hickman v. U. C. J. Fund, 255 Md. 267, 257 A. 2d 426 (1969). Moreover, there is no indication in the record that' Mrs. Schiller’s failure to proceed with further efforts to obtain financing within the allotted time was due in the slightest degree to any thought or knowledge on her part that it could not be obtained within the ten-day period. The conclusion is inescapable that after talking with her son on 27 July she decided she no longer wanted Mr. Bushmiller’s “large expensive house”, that she could not afford it, and she wanted “out” of her contractual obligations, and that it was for these reasons alone that she ceased any further efforts to obtain the necessary financing. This conclusion is fortified by her refusal to even consider the offer of Mr. Bushmiller’s agent to obtain financing for her that was “available at the terms that she wanted”. It is true that this offer was made after the ten-day period, and had Mrs. Schiller made good faith efforts within the 10-day period to obtain financing and been unsuccessful, she would have been justified in not accepting the offer. Barnes v. Euster, supra. Under the circumstances here, however, we think the refusal of the offer has significance as bearing on the question of Mrs. Schiller’s good faith efforts to satisfy the condition precedent in the contract.

In the circumstances we hold that the trial judge was clearly erroneous in his finding that Mrs. Schiller’s efforts to obtain financing were made in good faith. It follows that the judgments below must be reversed and the case remanded for entry of judgment for costs in favor of Mr. Bushmiller in the original suit filed by Mrs. Schiller, and for entry of a judgment for $13,000, plus costs and interest from date of entry in his counter-suit against Mrs. Schiller.

Judgments reversed.

Case remanded for entry of judgments as directed by this opinion.

Costs to be paid by appellee.


text:
    BALANCE LIMITED, INC. et al. v. ALEXANDER C. SHORT and JOHN C. COOPER, III, Substitute Trustees
    [No. 564,
    September Term, 1976.]

      Decided February 8, 1977.

      The cause was argued before Gilbert, C. J., and Davidson and Lowe, JJ.

      Victor H. Laws, with whom were Long, Laws, Hughes & Bahen on the brief, for appellants.

      Paul V. Niemeyer for appellees.
   Lowe, J.,

We dismiss this appeal sua sponte because appellants lack standing here and below. Beyond that, the record clearly discloses that they would have been collaterally estopped from proceeding even if they had standing.

Appellants are general creditors of the mortgagor of a condominium under construction in Ocean City. The mortgage was foreclosed and the property was bought at public sale by the mortgagee for a sum insufficient to discharge the mortgage debt. Appellants excepted to the ratification of that sale and were given a full and exhaustive hearing on a plethora of issues, including the contention that a partnership existed between the mortgagor and mortgagee in fact and by estoppel. They were permitted to proceed on their exceptions because they had asserted under oath, in answers to interrogatories, that they had obtained a judgment at a specified date prior to the foreclosure sale, setting forth the court and case number. After Judge E. McMaster Duer had decided the case on its merits against appellants on every issue raised, and an appeal taken, it was discovered that the answers to the interrogatories upon which appellants’ standing hinged was false. Appellants’ pending appeal to this Court was peremptorily dismissed and • a petition for writ of certiorari to the Court of Appeals denied.

Persistently seeking to do indirectly that which they had failed to accomplish through their false statement directly, appellants then excepted to the auditor’s report, complaining that the “mortgagee is not entitled to second priority after sale expenses, because it was a partner with mortgagor, by agreement and by estoppel . . ..” Judge Daniel T. Pretty man dismissed the exception in the Circuit Court for Worcester County on the ground of res judicata.

Collateral Estoppel

Notwithstanding that His Honor overlooked appellants’ lack of standing to attack the auditor’s report, his resultant dismissal was correct. His reasons therefor were almost so. Even if appellants had had standing, it was not the doctrine or res judicata, as held below, that would have applied, but its consubstantial counterpart, collateral estoppel, which would have prevented appellants from reaching the merits of their claim. Distinguishing the two proceedings, appellants complained that it was not the ratification of the sale but the distribution of the proceeds which they now attack. Although the cause of action may be different, the determination of fact required in this attack is identical to that which they ha'd litigated under the subterfuge of a judgment creditor before, i.e., the question of partnership between mortgagor and mortgagee. In pointing out the difference between res judicata and collateral estoppel in MPC, Inc. v. Kenny, 279 Md. 29 (1977), Judge Levine quoted from Sterling v. Local 438, 207 Md. 132, 140-141:

“ ‘. .. If the second suit is between the same parties and is upon the same cause of action, a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated [res judicata]. If, in a second suit between the same parties, even though the cause of action is different, any determination of fact, which was actually litigated in the first case, is conclusive in the second case [collateral estoppel].’ (citation omitted).” (emphasis added). MPC, Inc., supra, at '¿2.

The record shows that the issue of partnership was exhaustively tried at the first case and decided by Judge Duer in a lengthy opinion. Superficially, appellants’ brief shows that they are appealing from judgments of both judges:

“Appeal from the Circuit Court for Worcester County (Hon. E. McMaster Duer and Daniel T. Prettyman, Judges)”

Their argument makes frequent references to the testimony before Judge Duer. In short, their second attempt so heavily relies upon their first as to acknowledge an attempt to relitigate the partnership issue.

Furthermore, we take umbrage that after appellants obtained a full hearing on the partnership issue by false representation, they would now ask us to let them try again because they should not have been heard the first time. We accept the contention that the incorrect response was negligently given and was not an intentional fraud on the court. For that the affiant may be forgiven, but may not be excused. The motivation behind the response is not the issue. Regardless of the affiant’s state of mind when he answered the interrogatory, the answer was in fact false, however well intended, and if clean hands are required for an equity supplicant, appellants, like MacBeth, need call upon “all great Neptune’s ocean” to cleanse their hands before submission to that court.

Standing

Not only were appellants undeserving of an adjudication on the merits the first time, but the court went too far in hearing argument on res judicata or collateral estoppel the second time. Appellants falter from insubstantial standing before they get to court.

Acknowledging (now) their status as general creditors only, appellants contend that they have a right to attack the distribution of the mortgage foreclosure proceeds notwithstanding their lack of interest in the mortgage res. They argue that they have standing to attack the distribution of the proceeds for two reasons (both previously litigated):

First, appellants assert that mortgagor and mortgagee are partners by estoppel, and that therefore, as general creditors, appellants have priority over the partners in the proceeds.
Second, they claim that the contract between mortgagor and mortgagee was contrived fraudulently, to circumvent them as general creditors.

It is hornbook law that a general creditor having no lien upon the property is not a proper party, initially or by intervention, to a foreclosure suit. Jones, Mortgages § 1826 (8th ed. 1928); see So. Maryland Oil v. Kaminetz, 260 Md. 443, 449. It is equally well settled that a claim which has not become an absolute lien upon the property cannot be considered in the disposition of any surplus, however equitable the claim may be. Jones, supra, § 2167. Appellants acknowledge and even emphasize that:

“A person who is not a party to a cause, and has not established a claim to the fund, has no standing to except to the distribution made by the auditor’s account.” (emphasis added). Miller, Equity Procedure § 544.

This is so because:

“Any money remaining after the satisfaction of the expenses of sale and the first lien would accrue to the underlying lien holders in order of priority and, if an excess still remained, to the owners of the land. See Maryland Rule W75.” McCann v. McGinnis, 257 Md. 499, 512.

Nor does the assertion of fraud extend the right to intervene in the distribution of proceeds in an equity court. Again Miller speaks directly to that point in § 730 of Equity Procedure:

“If he seeks to subject real estate to the payment of his debt, he must obtain a judgment creating a lien upon it; if he is pursuing a personal estate, he must obtain a lien by an execution on his judgment. When he has by these means acquired an interest in his debtor’s property, he will be in a condition to ask the aid of a court of equity . . . .”

See also Cts. Art., § 11-403 and Kinsey v. Drury, 141 Md. 684, 689-690.

It follows that if a general creditor has no standing to intervene in the mortgage foreclosure, and if he has no standing to demand payment from any surplus, he is certainly not entitled to attack a distribution of funds from a sale after foreclosure.

This precise issue appears never to have been decided. However, over a century ago it was held that even a judgment creditor could not except to an auditor’s report and account where the foreclosure sale funds were insufficient to satisfy a prior mortgage. In the case of Sumwalt v. Tucker, 34 Md. 89, mortgaged property was sold under a decree of foreclosure. There too the auditor reported insufficient funds to pay the mortgage debt. The petitioner was a judgment creditor of both mortgagor and mortgagee who obtained judgment after the date of the mortgage. The sheriff forbore to sell in consideration of a promise by the debtors to pay the judgment. The money not having been paid, a venditioni exponas was issued, to which the sheriff returned that the property had already been sold at a trustee’s sale on the mortgage foreclosure. The petitioner filed exceptions to the auditor’s report and account:

“ .. . the question . . . [was], whether a judgment creditor can come into a case pending in equity and have a fund, which has been audited to the mortgagee, who is the defendant in the judgment, applied in satisfaction of his judgment.” Id. at 91.

The Court of Appeals held that:

“In the case now before us, the appellant had no right to come into the case pending between the appellees and have his judgment paid out of the fund audited to Wilkinson, the mortgagee and complainant in that case, but ought to have pursued his remedy at law, by attachment, against that fund in the hands of Downs, the trustee, his right to such remedy being fully established by the cases of Cockey vs. Leister, 12 Md., 124; McPherson vs. Snowden, 19 Md., 233, and Groome vs. Lewis, 23 Md., 150. Having no standing in a Court of Equity, he consequently had no right to file exceptions to the auditor’s account, and they were properly overruled, and the order of the Court below overruling the exceptions and dismissing the petition of the appellant must be affirmed.” (emphasis added). Id. at 92.

Reasoning to that result, the Court explained that:

“Although the lien of the judgment attached upon the equity of redemption of the mortgagor and any fund remaining, after the payment of the mortgagee’s debt, might have been applied to the payment of the judgment of the appellant, yet in this case no surplus remained, and therefore the equity of redemption, upon which the judgment was a lien, proved to be of no value. The judgment was not a lien upon the interest or estate of the mortgagee in the mortgaged premises.” Id. at 91.

See also Md. Rule W75 a.

Sumwalt was recently relied upon by us in the case of Galeano v. Galeano, 21 Md. App. 208. There a judgment creditor of the mortgagees intervened in foreclosure proceedings and persuaded the chancellor to satisfy their judgment from the funds in the hands of the trustees. The result was that the mortgagors were charged with the mortgagees’ debt, for the mortgagees received the unusual benefit of having their obligation paid from the surplus funds resulting from the sale as well as receiving payment in full of the mortgage indebtedness. Noting that the interest of a mortgagee is not subject to execution prior to foreclosure although a mortgage is generally regarded as personalty, Judge (now Chief Judge) Gilbert quoted relevant passages from Sumwalt and concluded that the judgment creditor had no standing to intervene in the foreclosure proceedings and could not charge the mortgagees’ interest with its claim. If the judgment were to be satisfied, it must be by way of an action at law against the funds in the hands of the trustee.

It is clear that if a debt reduced to judgment is not a lien upon a mortgagee’s interest in the mortgaged premises sold at foreclosure, sufficient to give him standing to attack the deficient proceeds by way of exception to the auditor’s account, Sumwalt, supra, appellants here are in a far less favorable posture as general creditors. Even if the sale had produced a surplus, appellants’ claim could not be satisfied by excepting to the auditor’s report. Galeano, supra. Their debt must be sought from the surplus prodeeds which would have been payable to the owner in the absence of a judgment or other lien attaching to the owner’s equity of redemption. See Kinsey v. Drury, supra. Because appellants lack standing to except to the auditor’s report and account, we dismiss this appeal on our own motion.

Appeal dismissed.

Costs to be paid by appellants.

Appendix

Appellants provided no argument in their brief on the issues of standing and res judicata, and did not respond to the arguments on these issues in appellees’ brief, by reply brief. After titling the two issues as Argument I and II, we were informed that:

“On these points, Appellants adopt their arguments set forth in their ‘Memorandum of Exceptants Supporting Their Answer to Motion to Dismiss’, pp. 1-12, filed herein on August 3, 1976, and incorporate same herein by reference.”

This procedure is not only cumbersome and inconvenient to the Court, but in direct violation of the Md. Rule 1031. See Van Meter v. State, 30 Md. App. 406, 408. We must first seek out those briefs from the Court records, then photocopy them in sufficient number for the panel judges to consider them. After having done so, we found appellants’ arguments specious and their authority inapposite.

Appellants rely upon “the separate and consecutive nature of report and ratification of sale” in Md. Rule BR6. The BR series of the Md. Rules relate to “Sales — Judicial”. The issue here concerns the foreclosure of a mortgage and is thus controlled by the “W” series of the Md. Rules. Indeed, Md. Rule BR 1 plainly states:

“ ‘Judicial sale’ means a sale of property which is subject to ratification by a court, but does not include sales under Subtitle W (Foreclosure of Mortgages and Other Security Devices) except to the extent specifically provided therein.” (emphasis added).

Appellants’ reliance on Md. Rule 595 is equally inapposite as it relates only to the duties of a court auditor generally.

The case law and text authority cited by appellants stands for precisely the opposite principles appellants espouse, e.g., Miller, Equity Procedure § 544 and So. Maryland Oil v. Kaminetz, 260 Md. 443, 449. We found them to be such substantial authority to the contrary that we have quoted from them in the text of this opinion. The only other case cited by appellants on the issue of standing was Brown v. Thomas, 46 Md. 636, 640-642, which simply held that a claimant, whose interest in the proceeds of a partition sale was founded upon an assignment of one of the property owners, had failed to prove the assignment. It too is obviously authority for nothing relevant here.

      . See appendix at conclusion of opinion.

      . Perhaps because it is so universally accepted.