author: Powers, J.,

text:
    OWEN MAXIE RAY et al. v. MARGARET JANE BASSIL
    [No. 141,
    September Term, 1975.]

      Decided March 4, 1976.

      The cause was argued before Powers, Davidson and Moore, JJ.

      Patrick A. O’Doherty for appellant Owen Maxie Ray.

      William S. Barton, with whom were George L. Huber, Jr., and Arnold, Beauchemin & Huber, P.A. on the brief, for appellant North Carolina Mutual Life Insurance Company.

      Harry Goldman, Jr., for appellee.
   Powers, J.,

delivered the opinion of the Court.

In considering a directed verdict motion in a negligence case, the standard laid down by the cases for measuring the sufficiency of evidence requires the court to reject any evidence which is not credible.

The standard was stated by the Court of Appeals in Curley v. General Valet Service, 270 Md. 248, 264, 311 A. 2d 231 (1973), to be:

“ * * * that before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn; that ‘Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury;’ that the rule requires submission of the case to the jury if there be any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury; that to meet the test of legal sufficiency, the party having the burden of proving another party guilty of negligence cannot sustain this burden ‘by offering a mere scintilla of evidence amounting to no more than a surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value.’ ” (Emphasis supplied).

We expressed the rule in general but comprehensive form in Buchanan v. Galliher, 11 Md. App. 83, 272 A. 2d 814, cert. denied, 261 Md. 722 (1971), when we said, at 87:

“When a trial court is called upon by a motion for a directed verdict to rule upon the legal sufficiency of the evidence to require submission of any issue to a jury, the court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made, and if such evidence and inferences lead to conclusions from which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury.” (Emphasis supplied).

It is to the requirement that in order to enter the equation of sufficiency, evidence'must be credible, 2that we turn our attention. It has often been held by the Court of Appeals that the testimony given by a witness at a trial is “ * * * too inconclusive, uncertain, vague, and contradictory to furnish a rational basis for a finding of negligence.” Olney v. Carmichael 202 Md. 226, 231-32, 96 A. 2d 37 (1953). The cases cited and quoted there include Bond v. Forthuber, 198 Md. 476, 84 A. 2d 886 (1951); Kaufman v. Baltimore Transit Co., 197 Md. 141, 78 A. 2d 464 (1951); Eisenhower v. Baltimore Transit Co., 190 Md. 528, 59 A. 2d 313 (1948); U.S.F. & G. Co. v. Continental Baking Co., 172 Md. 24, 190 A. 768 (1937); and Slacum v. Jolley, 153 Md. 343, 138 A. 244 (1927).

In Olney v. Carmichael, supra, the Court, after discussing the self-contradiction by a witness at the trial, said, at 232-33:

“This is not a case where the jury is entitled to decide between testimony given at the trial and testimony given at prior trial, or between present testimony and the truth of a prior conflicting statement. It is a ease, assuming, as we have, that the prior statements were in evidence at the trial, where the testimony of the witness from the stand is in hopeless conflict and without probative force.”

The Court went on to discuss the question of sufficiency of evidence, and said, at 233-34:

“The evidence in a case is legally sufficient if It rises above speculation or conjecture, and so affords the rational basis needed for a determination that the defendant was guilty of negligence which produced the accident. Shafer v. State, 171 Md. 506, 509, 189 A. 273. In Maas v. Sevick, 179 Md. 491,492, 20 A. 2d 159, a girl of five was struck by a truck passing along an alley in Baltimore 'City. As the opinion puts It: ‘Mo witness saw the truck strike the child, but she was injured, and a charge of negligent cause in the driving is based upon estimates of her position and th at of the truck just before and after the accident.’ The Court refused to permit the jury to pass on ¡the question of negligence and Judge Bond said: ‘To permit submission of a case to a jury for its finding, there must be evidence of the cause of action beyond conjecture and speculation, not as we think this testimony is, “of so slight and inconclusive a nature as to be wholly insufficient to be made the basis of a verdict”.’ ”

In Eisenhower v. Baltimore Transit Co., supra, the Court of Appeals said, at 537-38:

“We have quoted the testimony of this witness at such length so that we might properly evaluate its probative force. The various statements of the witness as to the position of the street car at the time the light turned green in the witness’ favor are clearly contradictory. It was said in the case of Slacum v. Jolley, 153 Md. 343, at page 351, 138 A. 244, at page 248, that ‘when a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory, and uncertain to be the basis of a legal conclusion.’ This rule was applied in the cases of Oberfeld v. Eilers, 171 Md. 332, 189 A. 203, and Askin v. Long, 176 Md. 545, 6 A. 2d 246. In applying the rule in the case of United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, at page 33, 190 A. 768, at page 772, the Court says: ‘The first answer that the light was changing to amber as he entered the intersection is cancelled by his answer that it changed back at the safety zone, 40 to 70 feet away. Such testimony has no probative force or evidential value.’ The last application of the rule by this Court was in the case of Butler v. Reed-Avery Co., 186 Md. 686, 48 A. 2d 436, where many of the cases are reviewed. Tested in the light of these authorities, it is our conclusion that the testimony of the witness, Metcalf, is too vague, indefinite and speculative to constitute a basis from which the jury could arrive at a rational conclusion.”

The cases we have just cited and discussed have involved a judicial finding that certain evidence is not credible by reason of self-contradiction at the trial by the witness who is the source of the evidence. But self-contradiction is not the only reason for holding that a part or all of the evidence given by a particular witness is not credible. His evidence taken as a whole may contain inconsistencies short of express self-contradiction; it may show that the witness himself was engaging in speculation and conjecture; it may demonstrate that it was impossible for him to see what he says he saw; it may consist of adjectival descriptions which are subjective and not factual; it may be the witness’s own inference from other facts when more than one inference may be drawn; or it may be direct and purport to be factual, but physically or legally impossible because of other conceded or incontrovertible facts. When it is any of these, it is the duty of the court to determine whether the evidence exceeds the limits of credibility. If it does, the court will not permit the jury to consider it.

After distinguishing direct evidence of a fact from circumstantial evidence which permits more than one rational inference, the Court of Appeals, in Short v. Wells, 249 Md. 491, 240 A. 2d 224 (1968), said, at 496-97:

“But that is not the case here where there is more than conflicting inferences. Here there is direct as well as circumstantial evidence of negligence. It was therefore a question of fact for the jury and not mere speculation or conjecture as to what to infer. Bavis v. Fonte, 241 Md. 123, 215 A. 2d 739 (1966); Ferguson v. Wootten, 240 Md. 186, 213 A. 2d 498 (1965). This is not to say that in every case where the plaintiff has introduced some direct evidence of negligence, it should go to the jury. If the direct evidence approaches the outer limit of credibility or, if in some situations, the direct evidence is merely adjectival, it would be insufficient. See Harper and James, op. cit, supra, § 19.2; Miller v. Robinson, 241 Md. 335, 216 A. 2d 743 (1966).”

See 2 Harper and James, The Law of Torts, § 19.2 (1956), where the authors, in discussing direct evidence with respect to its sufficiency to prove a fact, point out that, “ * * * here as elsewhere the courts retain the power to set the limits of what is credible evidence.”, and they refer further to “ * * * the power generally retained by courts to set the outer limits of credibility * * * .”

This Court held in Tippett v. Quade, 19 Md. App. 49, 309 A, 2d 481 (1973) that certain evidence in the case was not credible under the circumstances, although not directly contradicted by the same witness. We excluded it from a determination of sufficiency, as against a motion for a directed verdict.

The Present Case And The Issues

On 9 May 1970, at about 4:40 P.M., Margaret Jane Bassil was walking from west to east across Barclay Street, in Baltimore. Owen Maxie Ray was driving his automobile south on Barclay. The automobile hit Miss Bassil and caused serious injuries. Miss Bassil filed suit in the Baltimore City Court against Mr. Ray as well as his employer, North Carolina Mutual Life Insurance Company, alleging that Ray was negligent, and that he was on the business of his employer at the time of the accident. The case was tried before Judge Albert L. Sklar and a jury in January, 1975. The jury returned a verdict in favor of the plaintiff against both defendants. After motions were heard and denied in February, 1975, judgment was entered on the verdicts, and both defendants appealed.

Appellants contend here that their motions for a directed verdict should have been granted because, (a) the evidence was not legally sufficient to permit the jury to find that Mr. Ray was negligent, and (b) the evidence showed that as a matter of law the plaintiff was guilty of negligence which directly caused or contributed to her injuries. Mr. Ray also contends that the court erred in instructing the jury that, “From the fact that Mr. Ray did not testify concerning speed, you may infer that if he had taken the stand his testimony would have been unfavorable to him in that regard.”

Appellant North Carolina Mutual Life Insurance Company contends additionally that a verdict should have been directed in its favor because the evidence failed to establish a master-servant relationship between it and Ray.

The Evidence Of The Happening Of The Accident

Miss Bassil, in her middle fifties, had suffered a stroke, unrelated to the accident, about three years before the trial. She was present at the trial, but did not testify. Both sides agreed that she was not competent to do so. Her sister, Mrs. Bernice Dent, described her physical condition before and after the accident. She said that Miss Bassil had been half blind and hard of hearing “ever since I can remember”, but that she had no previous trouble with her legs or with walking. After the accident and before the stroke Miss Bassil, when walking, rocked from side to side, and sometimes lost her balance.

There was evidence that at the scene and at the hospital, Miss Bassil smelled of alcohol, but was not toxic. A blood sample taken at the hospital between two and three hours after the accident showed the presence of .085 milligrams of alcohol, below the .150 level of intoxication.

Appellee’s evidence relating to the happening of the accident is found principally in the testimony of William Logan. Albert Coston also testified, and appellee introduced exhibits consisting of a plat and three photographs of the area, and answers given by appellant Ray to questions propounded to him in the course of pretrial discovery. Mrs. Patsy Jackson and Officer Harry Sizelove, the investigating policeman, were called by the appellants to testify. Appellants also offered evidence for the purpose of impeaching the testimony of Mr. Logan. We do not, of course, consider the evidence which sought to impeach a witness, but we do consider the whole of the testimony given by that witness at the trial.

The plat, drawn to scale, shows Barclay Street, which runs north and south, and two intersecting east-west streets, 23rd Street, 31 feet from curb to curb and 65 feet from building to building, and 22 V2 Street, which has no curbs, 22 feet from building to building. Barclay Street is projected on the plat north of 23rd Street and south of 22 V2 Street. Mr. Logan testified that he operated a store at the northwest corner of 23rd and Barclay, and was standing in front of the store talking to Mr. Coston and a woman named Virginia. According to the plat, he was about 270 feet north of the intersection of 22 V2 and Barclay. Evidence given by Mr. Logan, which appellee says supports a finding that Ray was negligent, was that when the car passed where Mr. Logan was standing, it was going fast, approximately 48 to 55 miles per hour, and that the car struck Miss Bassil in the crosswalk of the intersection of Barclay and 22 V2 Streets. Mr. Logan saw something in the air over the top of the car. He did not know what it was, but went down to see. It was Miss Bassil.

Mr. Logan marked on the plat a circle in blue, indicating the place where Mr. Ray’s car was standing when Mr. Logan reached the scene. The car was on the west, or southbound side of Barclay Street, and was completely within the area formed by projections of the building lines of 22 V2 Street.

Mr. Logan did indeed testify several times that the lady was in the crosswalk when she was hit by the car. He also testified that he “never saw the lady in the street before she was struck”, and when he was asked:

“Is it fair to say, sir, that what you did was, you heard the screeching of brakes in that area and when you looked the first time, you saw the plaintiff, she was in the air?”,

he responded:

“That is exactly what I said.”

With respect to speed, Mr. Logan was asked:

“What I am saying is, you have testified here that you thought it was going at an excessive rate of speed when it passed you and you assumed that it was going at an excessive rate of speed down the next block because the lady’s body went up in the air, is that correct?”,

and answered:

“Yeah, yeah.”

There was uncontroverted evidence that Miss Bassil was lying in the street directly in front of Mr. Ray’s car at a distance, as marked on the plat, which appears to be about five feet. The front of the hood on the car was damaged. The car left skid marks, but there was no evidence of their length. Barclay Street was wide enough for cars to be parked at the curb on each side and still leave a lane for southbound and a lane for northbound travel. Cars were parked at the curb on the west side.

Appellee placed in evidence excerpts from pretrial discovery in which Mr. Ray had stated that he did not see Miss Bassil until the instant he struck her. Mr. Ray told the police officer at the scene that Miss Bassil stepped from behind a parked vehicle, when he was 25 feet from the intersection, and that he put on his brakes but that he struck her, throwing her on the hood of his vehicle.

A defense witness, Mrs. Patsy Jackson, testified that she was standing on the west sidewalk of Barclay Street. She marked her location on the plat. It was about 120 feet from 22 Vz Street. She said she saw Miss Bassil, carrying a bag containing some bottles, walk out of 22 Vz Street to Barclay Street. She said Miss Bassil paused, then proceeded, without looking, beyond the line of parked cars into Barclay Street and into the path of Mr. Ray’s car. Mrs. Jackson marked on the plat the course she saw Miss Bassil take. The line was along the imaginary center of 22 V2 Street and projected into the traveled southbound lane of Barclay Street.

There Was Not Sufficient Credible Evidence of Primary Negligence

We have carefully searched the testimony of Mr. Logan for credible evidence of facts which, with inferences of fact fairly deducible therefrom, could lead reasonable minds to conclude that Mr. Ray was negligent in the operation of his automobile, and that such negligence was a proximate cause of Miss Bassil’s injuries.

Mr. Logan’s estimate of speed in miles per hour at a point 270 feet away from the accident would not be enough to show that the same speed was maintained, or, in any event, that speed, whatever it may have been, was a proximate cause of the injury. The Court of Appeals said in Spence v. Wiles, 255 Md. 98, 257 A. 2d 164 (1969), at 105:

“To show merely excessive speed is ordinarily not enough to support an inference of negligence unless there is some further showing that this excessive speed is a direct and proximate cause of the injury.”

The testimony of Mr. Coston adds nothing. He gave an adjectival description of the speed of the car as it went by where he was standing, 270 feet away, as “fast”. He said it caused him to exclaim “wow”. He went to the scene after the accident happened. He marked on the plat where Miss Bassil was lying in the street.

No evidence of negligence is to be found in the asserted conflict in the pretrial statements of Mr. Ray: that he did not see Miss Bassil until he struck her; and that when he saw her it was too late to avoid striking her.

We regard the key to the sufficiency of the evidence in this case to be Mr. Logan’s testimony that Miss Bassil was in a crosswalk when she was struck. The term “Crosswalk” is defined in Code, Art. 66 ‘A, § 1-117, which says:

“Crosswalk means,
(1) Any portion of a roadway distinctly indicated for pedestrian crossing by lines or other marking on the surface;
(2) That portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections.”

Section 1-185 defines sidewalk. It says:

“Sidewalk means that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use of pedestrians.”

The Court of Appeals in Harris v. Bowie, 249 Md. 465, 240 A. 2d 242 (1968), said, at 468:

“From these definitions it will be seen that if a crosswalk is not indicated by lines or markings on the roadway that its existence is dependent on the presence of sidewalks, the prolongation of which would form the crosswalk. It is not necessary that the walkway be paved, Lipphard v. Hanes, Admr’x, 232 Md. 405, 194 A. 2d 93, but it is necessary that there be an area, apart from the ‘roadway’, that is intended for pedestrian use.”

The photographs of 22 V2 Street show that the pavement extends from building to building, with no sidewalks, and with no space between the lateral lines of the roadway and the adjacent property lines. There is no visually discernible crosswalk indicated by lines or other marking on the surface of Barclay Street. There are no sidewalks in 22 V2 Street which could be' prolonged across Barclay Street. The sidewalk on the west side of Barclay Street extends approximately three feet south of the building on the north side of 22 V2 Street, making the vehicular entrance onto Barclay Street somewhat less than the full width of 22 V2 Street. That extension of the Barclay Street sidewalk cannot be considered as a sidewalk in 22 V2 Street.

We hold that as a matter of law there was no crosswalk in Barclay Street at or near 22 V2 Street. Mr. Logan’s testimony that Miss Bassil was in the crosswalk when she was hit must be rejected as not credible because it was legally impossible. It is not necessary to decide whether we find it not credible for other reasons.

We hold that the evidence was not legally sufficient to support a finding by the jury that Mr. Ray was negligent. The motion for a directed verdict on that ground should have been granted. Since we also conclude that the alternate ground of the motion, contributory negligence as a matter of law, was well taken, we shall discuss that aspect of the case.

Contributory Negligence

The only witness who observed what Miss Bassil did before the accident was Mrs. Jackson. She testified, on direct examination:

“I saw the woman come out of 22nd, 22 V2, which is a small street, and she paused for a minute. Then she started crossing the street. That is when Mr. Ray hit her.”

On cross examination the transcript records:

“Q Yes, before the car hit the lady, did you hear any noise of any kind, coming from the automobile of any kind?

A No, how could that be possible?

Q You heard neither blowing of the horn or skidding of brakes, did you, skidding of wheels, did you?

A Of course, he blew the horn and he tried to put on his brakes because there was skid marks on the street, but I didn’t measure them. I don’t know.

Q You say he blew the horn?

A Yes, he did.

Q If he were to testify that he never saw the lady until he struck her, it would still be your testimony that he blew the horn, is that right?

A Look, it was no way possible for her — she was standing behind the parked car when he was coming down the street. She wasn’t looking and darted right out.”

There was simply no other evidence to show directly or by inference, Miss Bassil’s movements before the accident. The presumption, or inference, that a pedestrian exercises due care for his own safety, referred to in Gresham v. Comm. of Motor Vehicles, 256 Md. 500, 260 A. 2d 649 (1970), Nizer v. Phelps, 252 Md. 185, 249 A. 2d 112 (1969), and other cases, does not survive the countervailing direct evidence of negligence on the part of Miss Bassil. The law requires no further discussion. See Nizer v. Phelps, supra; Harris v. Bowie, 249 Md. 465, 240 A. 2d 242 (1968); Lewis v. Hammond, 247 Md. 297, 231 A. 2d 32 (1967); and Brown v. Rogers, 19 Md. App. 562, 313 A. 2d 547 (1974).

We hold that the evidence showed as a matter of law that Miss Bassil caused or contributed to her injury by her own negligence, and that a verdict should have been directed in favor-of the appellants.

The conclusions we have reached make it unnecessary, and indeed superfluous, that we discuss the other issues raised.

Judgment reversed.

Appellee to pay costs.

      . The Century Dictionary and Cyclopedia (1897) gives two principal definitions of the adjective “credible”. They are:
      1. Worthy of credit or belief, because of known or obvious veracity, integrity, or competence: applied to persons.
      2. Capable of being credited or believed, because involving no contradiction, absurdity, or impossibility; believable: applied to things.
      Webster’s New International Dictionary, Second Edition (1950) defines “incredible”:
      Not credible; surpassing belief; too extraordinary and improbable to admit of belief.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    BETTY L. VERNON v. RAYMOND M. VERNON
    [No. 246,
    September Term, 1975.]

      Decided March 24, 1976.

    The cause was argued before Orth, C. J., and Powers and Mason, JJ.

      Nelson M. Oneglia for appellant-cross-appellee.

      Morris Topf, with whom were Stanbury & Topf on the brief, for appellee-cross-appellant.
   Mason, J.,

delivered the opinion of the Court.

This case concerns the custody of Charles (Chipper) Vernon who is presently fourteen years old. His parents, Betty L. Vernon, (mother) and Raymond M. Vernon (father) were married in 1951. This marriage produced three children, two of whom have now reached the age of majority. The parties were separated in 1971 and in 1973 the husband obtained a divorce on the grounds of his wife’s adultery. At the time the divorce was granted, August 20, 1973, the chancellor found that the wife’s transgressions had not continued and that she was a fit and proper person to continue custody of the children.

In less than a year, May, 1974, the father petitioned for a modification of custody. The hearing was held in the Circuit Court for Prince George’s County in August, 1974, before a different chancellor than the one who had heard the divorce proceedings and had made the original award of custody to the wife. At the conclusion of this hearing, the chancellor reserved judgment and directed the Department of Juvenile Services and a staff psychologist of the court to submit reports on the fitness of the parents. Both reports recommended that the mother retain custody of the children, although they stated that either parent was capable of providing a good home.

At the disposition hearing, held in February, 1975, the chancellor denied the husband’s motions, (1) that the psychologist’s report not be received and (2) that an evidentiary hearing be held in order that the psychologist could be cross-examined. The chancellor, contrary to the recommendations of the submitted reports, awarded custody of the child to the father. From this order, the mother filed an appeal and the father filed a cross-appeal on the basis that the chancellor erred in denying his motion ne recipiatur and his motion for an evidentiary hearing. Since the decision of the chancellor was contrary to the recommendation of the psychologist’s report, and the custody of the child was awarded to the father, it is not necessary to answer the issues raised on cross-appeal by the father.

We next consider whether there was sufficient evidence to justify the change of custody of the child from his mother to his father. In Maryland, the overriding and determinative factor regarding the custody of minor children is the best interest of the child. Kauten v. Kauten, 257 Md. 10, 261 A. 2d 759 (1970); Hild v. Hild, 221 Md. 349, 157 A. 2d 442 (1959); Cooke v. Cooke, 21 Md. App. 376, 319 A. 2d 841 (1974). It is also an established principle that the custody of children should not be disturbed unless there is a strong reason which affects the welfare of the child. Krebs v. Krebs, 255 Md. 264, 257 A. 2d 428 (1969); Winter v. Crowley, 231 Md. 323, 190 A. 2d 87 (1963); Kramer v. Kramer, 26 Md. App. 620, 339 A. 2d 328 (1975); Sullivan v. Auslaender, 12 Md. App. 1, 276 A. 2d 698 (1971). “To justify a change in custody, the change in conditions upon which it is based must be one affecting the welfare of the child and not of the parent. . . . Custody should usually be changed only where ... it appears advisable for the good of the child.” Winter v. Crowley, supra, 331. A determination of custody should emphasize changes in the circumstances of the child which have occurred since the last hearing. Hardisty v. Salerno, 255 Md. 436, 258 A. 2d 209 (1969); Cornwell v. Cornwell, 244 Md. 674, 224 A. 2d 870 (1966).

In custody cases this Court is not restricted to the “clearly erroneous” standard set forth in Maryland Rule 1086, but will exercise “its own sound discretion” in determining whether the conclusion of the chancellor was in the best interest of the child. Kramer v. Kramer, supra; Cooke v. Cooke, supra; Kirstukas v. Kirstukas, 14 Md. App. 190, 286 A. 2d 535 (1972).

As previously stated, the custody of a child should not be disturbed except for strong reasons which affect the child’s welfare. The father, as moving party, had the burden of persuasion to show that such reasons existed. A review of the record fails to establish the existence of such a change in circumstances.

The father alleged and sought to prove that the environment provided by the mother was detrimental to Charles because: (1) Charles was permitted to drink beer and was in the habit of drinking beer during his school lunch hour; (2) Charles was involved in fights with his brothers; (3) the mother encouraged the boy to sneak into sporting events and concerts without paying; (4) Charles had been truant from school; (5) Charles had been involved in a shoplifting incident; (6) Charles had been rowdy in his neighborhood by throwing snowballs and shooting his BB rifle at a neighbor’s house; and (7) the mother often left the boy unsupervised late at night and for extended periods of time.

The evidence presented at the hearing did not support these allegations in any substantial way. First, the evidence showed that the mother did not drink, and that the beer drinking itself consisted of isolated instances of experimentation, i.e., taking a couple sips of beer. As to fights with his brothers, the only fighting occurred when Mike, the oldest brother, struck Charles for misbehaving, causing his nose to bleed. Regarding the claim that the mother encouraged Charles to sneak into sporting events without paying, there was evidence that Charles was admitted into the Bullet basketball games without paying with the tacit approval of an employee of the arena. This resulted after the mother was unsuccessful in obtaining an additional season ticket for Charles. As to truancy, Charles was truant from school only one day for which he was suspended, reprimanded and given counseling. In regard to the shoplifting incident, there was no evidence that Charles was anything but an innocent bystander. As to the snowball throwing incident, all of the boys in the neighborhood were involved, and for his part in it, Charles was reprimanded. Additionally, the witness who complained that someone had shot at his house with a BB rifle did not identify Charles as the person who had done the shooting. Finally, when the mother was not at home, Charles was supervised by the oldest brother, Mike, or a neighbor.

It is manifest that the incidents relied on to prove that the environment provided by the mother was detrimental to Charles were insubstantial. In addition, these incidents were not so related to each other as to indicate a pattern of delinquent behavior. Even a model parent could hardly prevent the occurrence of similar happenings. Under the circumstances, we do not think that the combined weight of these incidents reflects so negatively upon Charles’s welfare as to justify an uprooting from the home environment he has known since infancy.

We are aware that appellate courts must give weight to the findings of fact reached by the chancellor, for it is he who had the opportunity to view the parties and the witnesses in the flesh and to judge their demeanor and credibility. Kauten v. Kauten, supra. While we are not bound by Rule 1086 in regard to the chancellor’s conclusion as to custody, the “clearly erroneous” standard does apply to findings of fact below. Winter v. Crowley, supra. Significantly, the chancellor below entered no formal findings of fact. In reaching his decision, the chancellor did state:

I have struggled with the case. However, on balance, and despite what the Court psychologist and Juvenile Services have recommended, I have a feeling in my heart, where it comes from, that Chipper would be better off with his father. Accordingly, the Court will grant the relief prayed for in the petition. That is to say that the custody of Chipper will be given to his father with all reasonable visitation rights granted to the mother.

With due regard for the chancellor’s discretion, we cannot agree that a feeling from the heart, in the absence of supporting evidence, is a legally sufficient reason for ordering a change in custody.

Therefore, we hold that the decision below to grant custody to the father was not in the best interests of Charles. The judgment below is hereby reversed and the case is remanded for an order awarding custody to the mother with all reasonable visitation rights to the father.

Order reversed.

Case remanded for an order in accordance with this opinion.

Costs to be paid by appellee and cross-appellant.

      . The chancellor did not consider the psychologist’s report in reaching his decision and neither shall we.


text:
    ALBERT BRODSKY and SAMUEL SLAVIN, t/a Elmwood Venture, etc. v. PRINCEMONT CONSTRUCTION CO.
    [No. 252,
    September Term, 1975.]

      Decided March 24, 1976.

      The cause was argued before Orth, C. J., and Powers and Mason, JJ.

      Samuel S. Smalkin, with whom was Edwin F. Nikirk on the brief, for appellants.

      Howard G. Goldberg, with whom were Phillips L. Goldsborough, III, and Smith, Somerville & Case on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

A skunk trapped in the wall of an apartment building In Frederick started this case. A summary judgment in the Circuit Court for Frederick County ended it. We are not disposed to disturb either one.

The plaintiffs below, appellants here, were named in the declaration as Albert Brodsky and Samuel Slavin, trading as Elmwood Venture, to their own use and to the use of Public Service Mutual Insurance Company. The sole defendant named was Prineemont Construction Co.,' which is the appellee here.

After a general issue plea, and limited discovery, Princemont filed a motion for summary judgment, supported by affidavits and documentary evidence, and by a memorandum. Elmwood and Public Service Mutual filed an answer to the motion, two memoranda in support of the answer, and a supplemental answer. The Circuit Court for Frederick County, Barrick, J., granted the motion and entered judgment for Princemont with costs to be paid by the plaintiffs. This appeal is from that judgment.

Facts which were properly before the court for summary judgment purposes, Maryland Rule 610, Vanhook v. Merchants Mutual Ins. Co., 22 Md. App. 22, 321 A. 2d 540 (1974), may be summarized as follows: On 15 June 1971 Elmwood, as Owner, and Princemont, as Contractor, entered into a construction contract on the standard form of agreement provided by the American Institute of Architects. The contract provided for the performance by Princemont of the “Work”, described as construction of 191 garden apartment building units known as Waverly Gardens, in Frederick, Maryland, according to plans and specifications, consisting of five apartment buildings and certain accessory buildings, and parking lots with curb and gutter, sidewalks, paving, and storm drainage. The work was to be commenced within ten days and completed within twelve months. The contract sum to be paid was $1,847,301.87.

From the provisions of the contract we quote paragraphs 21.1 and 21.4, which appear under “Article 21 Property Insurance”:

“21.1 Unless otherwise provided, the Owner shall purchase and maintain property insurance upon the entire Work at the site to the full insurable value thereof. The insurance shall include the interests of the Owner, the Contractor, Subcontractors and Sub-subcontractors in the Work and shall insure against the perils of Fire, Extended Coverage, Vandalism and Malicious Mischief.
“21.4 The Owner and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under this paragraph. The Contractor shall require similar waivers by Subcontractors and Sub-subcontractors.”

By March of 1972 some, but not all, of the apartment units in Building Four were available for occupancy and were occupied by tenants. On 13 March 1972 Robert L. Stonesifer, construction superintendent for Princemont, caused a fire in wing F of Building Four which caused extensive damage and resulted in the loss which is involved in this suit. The events which led up to the fire were related in an answer by Princemont to an interrogatory propounded to it. We quote the answer:

“On March 12, 1972, Robert L. Stonesifer was instructed by Louise Roland, Manager of Waverly Management Company, to remove a skunk from an interior partition wall in wing F, building 4, Section 1, Waverly Apartments. On that day Robert L. Stonesifer attempted to bait the skunk but was unsuccessful. He contacted private and public agencies, who were unable to lend assistance. On March 13, 1972, he attempted to remove the skunk by inserting propane gas into the partition wall from his location in the utility room. An explosion subsequently occurred.”

Under the fire insurance policy carried by Elmwood with Public Service Mutual, the insurance company paid Elm-wood the sum of $40,979.00 for the loss sustained by reason of the fire which followed the explosion. Public Service Mutual, as assignee or subrogee of Elmwood, claims damages from Princemont for the loss, which it alleges was caused by the negligence of Princemont’s employee.

These facts are not disputed. They seem to us to be all that are material to the determination of the legal question raised by the motion for summary judgment. Neither Elm-wood nor Public Service Mutual placed the insurance policy itself before the court, but it is obvious that the very foundation of Public Service Mutual’s claim is that the policy covered this loss.

It was Elmwood’s contractual obligation to “maintain property insurance [against the perils of Fire] upon the entire Work at the site.” That insurance was provided and maintained. The policy was issued by Public Service Mutual. A part of the Work was damaged by fire. Public Service Mutual paid Elmwood for the loss, as it was obligated to do.

Appellants argue here, as they did below, that because a portion of one building was complete enough so that apartments in it could be occupied by tenants, that portion was no longer part of the Work under the contract and, therefore, was not entitled to the insurance coverage provided for in the construction contract. The state of partial completion is not disputed, and therefore the issue is not one of fact, but of the legal effect of the undisputed fact.

Under the contract between Elmwood and Princemont, Princemont was clearly responsible for the entire Work until it was completed and, under Article 23, Princemont was further obligated to remedy any defects due to faulty materials, equipment, or workmanship which appeared within one year of the date of substantial completion. There is no showing that the date of substantial completion had been reached; there is no showing that there had been an acceptance or partial acceptance which relieved Princemont from further responsibility as to any part of the Work.

Appellants assert that the policy did not cover Princemont’s negligence. This seems to be irrelevant. Fire insurance covers the property loss sustained regardless, generally speaking, of its cause. Insurance against negligence indemnifies the negligent person as to his liability to another. The appellants also say that the policy did not name Princemont as an insured. We shall assume that it did not because, in our view, it makes no difference. Obviously the policy covered Elmwood, because it is the payment to Elmwood by Public Service Mutual which gave rise to the assignment upon which the use plaintiff, Public Service Mutual Insurance Company, bases its right of action against Princemont.

The question which was decided below and, as we see it, the only question that requires determination here, is the effect of that part of the contract in which the Owner and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under that paragraph.

The claim of Public Service Mutual, as use plaintiff, is asserted in the names of its assignors, the partners constituting the Elmwood Venture. The assignment was not before the court, but it was not necessary because Public Service Mutual is entitled to make the same claim as subrogee by operation of law.

But the law does not give a subrogee, and an assignment cannot give an assignee, a right greater than the right of the person from whom it is derived. As authority for this principle, appellee appropriately cites Packham v. German Fire Ins. Co., 91 Md. 515, 46 A. 1066 (1900), in which the Court quotes the following, at 526:

“The right of subrogation is derivative, and comes solely from the assured, and can only be enforced in his right. If the assured has no right which he can transfer to the insurer, then the insurer can have no subrogation and, cannot take the place of the assured for the purpose of enforcing the liability of the wrong-doer for the loss.”

The Court of Appeals applied the same rule in Poe v. Philadelphia Casualty Co., 118 Md. 347, 84 A. 476 (1912), where the Court said, at 353:

“In 27 Amer. & Eng. Enc. of Law 212, the author of that article, says: ‘The surety is entitled to all the rights of the person to whose place he is subrogated, but to no greater rights;’ and again, on page 206, he says: ‘The rights acquired by a party entitled to subrogation, cannot be extended beyond the rights of the party under whom subrogation is claimed. Subrogation contemplates some original privilege on the part of him to whose place substitution is claimed, and where no such privilege exists, or where it has been waived by the creditor, there Is nothing on which the right can be based. While a surety who pays the debt of his principal is subrogated to the rights of the holder of the claim, he takes such rights subject to all disqualifications and limitations which attached to them in the hands of his predecessor.’
“It is clear from these accepted definitions that the only element of substitution in subrogation is of one person in the place of another, and that the person so substituted can exercise no right not possessed by his predecessor, and can only exercise such right under the same conditions and limitations as wmre binding on his predecessor.”

In legal effect, Elmwood’s waiver was Public Service Mutual’s waiver. A similar waiver was before the United States District Court for the District of Maryland in General Cigar Co. v. Lancaster Leaf Tobacco Co., 323 F. Supp. 931 (1971). The loss in that case was 7,526 bales of tobacco which were destroyed in a warehouse fire. Two insurance companies paid to General Cigar Co., Inc., the owner of the tobacco, the sum of $429,086. As subrogees of General Cigar’s rights, the insurance companies sued Lancaster Leaf Tobacco Company, which, as General Cigar’s agent, had purchased the tobacco and arranged for its storage, and Farmer’s Warehouse, Inc., owner and operator of the warehouse in which the tobacco was stored.

The facts in General Cigar were before the court in the form of discovery depositions and exhibits, and were not in dispute. The case was submitted and decided on motions for summary judgment. Among the facts was this arrangement, set forth in a letter from Lancaster Leaf to General Cigar:

“The tobacco in this purchase will be insured by us, or our suppliers, from the time it is purchased until it is packed * * *. We are moving the tobacco -as it is packed into our storages at which time you will cover with insurance.”

General Cigar did in fact provide the coverage.

In granting summary judgment for the defendants, Judge Harvey preliminarily stated the Maryland law in this way, at 935:

“Suing here as subrogees, the insurance company plaintiffs possess only those rights against a third party which their insured might have, and any action taken by such insured which would bar its recovery against a third party would also be binding on the insurers.”

The opinion went on to say, at 935:

“Any conditions or limitations to General Cigar’s rights against the defendants, resulting from agreements to which General Cigar was a party or otherwise, must necessarily attach to the claims being asserted here by the insurance company plaintiffs.”

Disposing of the contention that the loss was recoverable because it was occasioned by the defendants’ negligence or breach of contract, Judge Harvey said, at 941:

“It has been recognized by numerous authorities that where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain, such agreement must be construed as providing mutual exculpation to the bargaining parties who must be deemed to have agreed to look solely to the insurance in the event of . loss and not to liability on the part of the opposing party.”

Other courts generally take the same view. Among the cases are Independent School District v. Loberg Plumbing & Heating Co., 123 N.W.2d 793 (Minn. 1963); Mayfair Fabrics v. Henley, 234 A. 2d 503 (N.J. Sup. 1967); Smith v. Ryan, 142 So. 2d 139 (Fla. App. 1962).

We hold that the contract between Elmwood and Princemont contemplated that the risk of damage to the property by fire would be covered by insurance, and not by either of the parties.

Summary judgment -was correctly entered for Princemont, and will be affirmed.

Judgment affirmed.

Appellants to pay costs.

      . It appears elsewhere in the record that the defendant was a corporation, and that its correct name was Prineemont Construction Corporation. It also appears that its president was Sanford Slavin, who was also a general partner in the Elmwood Venture, and that the names Samuel Slavin and Sanford Slavin refer to the same person.


author:
Lowe, J.,

      Davidson, J.,

text:
    DAVID LEE POWERS et al. v. VALERIE McGLOTHIN POWERS HADDEN
    [No. 269,
    September Term, 1975.]

      Decided March 24. 1976.

      The cause was submitted on briefs to Orth, C. J., and Davidson and Lowe, JJ.
    Submitted by Harry D. Barnes and Norman F. Summers for appellants.
    Submitted by Leonard E. Wilson for appellee.
   Lowe, J.,

delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 589 infra.

On April 21, 1975, in the Circuit Court for Cecil County, Judge J. Albert Roney, Jr. entered an order which awarded custody of a minor child, Stephanie Lee Powers, to her mother, Valerie McGlothin Powers Hadden, appellee. It is from this order that the father, David Lee Powers, the paternal grandfather, Ralph J. Powers, and his wife, Charlotte J. Powers (the paternal stepgrandmother, of Stephanie) have appealed.

The record shows that on August 10, 1968, the mother, then 15 years old, married the father, then also a minor. On March 9, 1969, about one week after the father had joined the Marines, Stephanie Lee Powers was born. Six months later, the mother and the father separated. Stephanie, then six months old, continued to reside with her mother. On December 10, 1971, a month before her divorce, a child was born to the mother, sired by Kenneth Hadden whom she married within a month after her divorce.

The divorce was granted on January 7, 1972 in the Circuit Court for Cecil County by Judge H. Kenneth Mackey who awarded Stephanie’s father, David Lee Powers, a divorce on the ground of adultery. The court found that the adulterous mother was not a fit and proper person to care for the child; that because the father was in the military service, he was unable to care for the child; and that the award of custody to the mother's parents would be to a large extent an award of custody to the mother herself. Therefore, he awarded custody of Stephanie to her paternal grandparents “subject to further order of this Court, the Court retaining jurisdiction in the premises.” Reasonable rights of visitation were reserved for the mother and the maternal grandparents. As noted, on January 29, 1972, the mother (then about I8-V2 years old) married Kenneth Hadden, the father of her second child, and thereafter lived with him and their son in Norfolk, Virginia.

Less than a year elapsed before the mother filed a petition seeking, among other things, custody of Stephanie Lee Powers. After a hearing on November 13, 1972, Judge Mackey found that the petition was “premature”; however, in reaching that conclusion the court anticipated “the very real possibility” that custody would be restored to the mother “if the mother continues in her present direction.” Custody of Stephanie remained with the paternal grandparents. In July, 1973, the mother, her husband and their son moved to Southwick, Massachusetts where they had purchased a home near the naval station at which her husband was assigned as an instructor in the nuclear power program.

On January 22, 1974, the mother again petitioned for custody. The reason is not clear from the record why an answer was not filed by the appellants until December 13th, 1974. On April 21, 1975, after a two day hearing, Judge J. Albert Roney, Jr. transferred custody of Stephanie to the mother. Reasonable visitation rights were reserved to the father and the paternal grandparents. In an opinion filed April 23, 1975, the chancellor found the mother to be a fit and proper person to care for the child, notwithstanding her previous adultery. He quoted at length from Cornwell v. Cornwell, 244 Md. 674, 679 concluding that:

“ ‘However, the fact that the mother may have committed adultery is not an absolute and inflexible bar to her being awarded custody, for when the adulterous relationship has ceased for a reasonable period of time so as to render it unlikely that it will be revived, and the mother has changed her way of living and has demonstrated that she is a fit and proper person to raise her children in a clean and moral atmosphere, then her past indiscretion may be overlooked in considering the award of custody.’ ”

After recognizing that:

“The burden is on the Petitioner here to demonstrate that things have changed in her life and that she is living a proper life and that she’s a fit and proper person to raise her children in a clean and moral environment.”;

the chancellor found:

“From what the Court has seen from her in this case, with the witnesses, the Court believes that she has changed her way of life; that she is a fit and proper person at this time to raise her children, and I believe that she can raise them in a healthy and proper environment.”

The chancellor addressed in his opinion the most pertinent factors for determining what is' in “the best interest of the child.” Initially he recognized the trauma for Stephanie of changing homes, after living for three years with her paternal grandparents. He evaluated the effect of this change on the child:

“Now then, you have to consider next whether or not a change at this time would have any traumatic effect on the child. This child is six years old, just started in kindergarten. It’s a healthy child; everyone agrees that it adjusts well to situations. It adjusted to a change in homes when it was two and a half years old and was taken from its mother and placed with the grandparents. I have no doubt that the child can adjust readily to a new community. The child is at an age when it can make friends with others of its age. I see no problem as far as adjustment is concerned.”

Having dealt with the problem of adjustment and after observing the child as well as hearing witnesses describe her, the chancellor then placed upon the scale an auncel weight that cannot be ignored — the presumption that a child’s welfare will best be served in the custody of its natural parents rather than in the custody of others. Rosa v. Pick, 199 Md. 341, 351; Barnard v. Godfrey, 157 Md. 264. In concluding his opinion, the chancellor added:

“Furthermore, I believe that, as stated in the cases, a young child, unless the mother is shown to be unfit as a mother, should be with its mother. I think it is wrong to separate children from their natural parents if it can be demonstrated that the parents are fit and proper persons to have them and raise them.
In this case, the natural father, who is in the service, is constantly away from home. He cannot take care of this child himself, but the natural mother can.
For these reasons, the Court will sign a decree transferring custody o'f this child from Mr. and Mrs. Powers to its natural mother, Mrs. Hadden.”

In assigning error to the chancellor’s award of custody to the child’s mother, the appellants do not deny that the child’s father cannot care for her, nor do they question the chancellor’s analysis from which he concluded that the mother’s adultery had been purged and that she is now a fit and proper custodian. They do not concede that the effect of change on Stephanie would be minimal. They simply question whether:

“ . . . sufficient time [has] passed for the court to conclude that the mother has rehabilitated herself.”

The misleading simplicity of that question may be answered with equally terse simplicity. The testimony indicated an affirmative answer and the chancellor so concluded as indicated above. There is no specified minimum time period that need lapse as a prerequisite to purge one’s meretricious misconduct.

But appellants’ arguments go well beyond the apparent simplicity of their questions and we will endeavor to meet all of the issues raised whether asked or argued.

The Best Interest of the Child

In responding to the question raised by this appeal, as in deciding the ultimate question of whose custody will be in the child’s best interest, it is all too easy to overemphasize any one of the many criteria to be considered, especially since many of these criteria are in conflict. For example, the “reasonable time” we must wait to determine whether a mother is absolved of misconduct, Cornwell, supra, at 679, adds to the length of time the child is away from its parent, which is “another guide in these cases.” Melton v. Connolly, 219 Md. 184, 189. “It is an obvious fact, that ties of blood weaken, and ties of companionship strengthen, by lapse of time. . . .” Dietrich v. Anderson, 185 Md. 103, 119. Consequently, the longer the period of time required for a parent to prove reformation, the less chance he or she has to reclaim a lost child.

Add to that a burden to show a change in the conditions of the custody affecting the child’s welfare, Winter v. Crowley, Jr,, 231 Md. 323, 331, and it may become all but impossible to reverse the status quo. The presumption that a child’s interests are best served in the custody of a natural parent eases the burden on a parent attempting to regain custody of his or her child. It is this presumption upon which the chancellor relied as the determining factor in awarding custody to 1he mother.

The Presumption Favoring Parental Custody

The presumption that a parent should have custody of his or her child is not based upon sympathetic concern for the parent nor upon parental rights. This presumption is a judicial device which shifts the burden of proof to the non-parent seeking custody and recognizes that the child’s best interest is usually served in the custody of its natural parents:

“Where parents claim the custody of a child, there is a prima facie presumption that the child’s welfare will be best subserved in the care and custody of its parents rather than in the custody of others, and the burden is then cast upon the parties opposing them to show the contrary.” Ross v. Pick, 199 Md. 341, 351.

That presumption has been reaffirmed by the Court of Appeals, McClary v. Follett, Jr., 226 Md. 436, 441-442, even when custody has been denied to natural parents. DeGrange v. Kline, 254 Md. 240, 242-243; Trenton v. Christ, 216 Md. 418, 420; Piotrowski v. State, 179 Md. 377, 381.

When custody is denied a natural parent, that denial inevitably results from custodial unfitness amounting to forfeiture, as by failing to support the child, Dietrich v. Anderson, 185 Md. 103, 116,

“ . .. or where some exceptional circumstances render such custody detrimental to the best interests of the child.” Ross v. Pick, 199 Md. at 351; Trenton v. Christ, 216 Md. at 420. (Emphasis added).

The Exceptional Circumstance

The lone “exceptional circumstance” relied upon in this case to overcome the presumption favoring custody in the natural parents, is the length of the period of separation of parent .and child. Appellants also argue that the child has been .away from her mother for so long that she will suffer from -the move to a new environment and disruption of her three-year relationship with her surrogate parents; however, .a long period of separation serves merely to rebut the presumption in favor of parental custody. It does not require that custody not be awarded the parent.

The legal authorities for using a long period of separation to overcome the presumption of parental custody uniformly emphasize that parental custody is preferred.

There is little support for the proposition that a three-year separation is so exceptional a circumstance as to abrogate the parental custody presumption. The voluntary surrender of custody by the natural parent is an additional factor which has been given substantial weight as an element of forfeiture in these cases.

In Melton v. Connolly, 219 Md. 184, the parents surrendered a four month old child (due to illness of the mother) to the mother’s sister and her husband. After the mother’s death, the father, who was “unstable . . . weak . . . prone ... to misfortune and ineptness . . . [with] ethical and moral standards . . . rated below par”, waited four and, a half years to reclaim, custody, asking to take the child from an “attractively and comfortably furnished [home] . . . clean and well cared for,” to his mother’s home which was “miserably dirty both inside and out” and where “[tjhe stench of dogs which permeates the house is overwhelming.”

Apropos to the case before us, where reclamation was sought persistently throughout the three-year separation, the Melton Court said:

“Another guide in these cases is the length of time the child has been away from the parent. If reclamation is sought soon after custody has been given another and the parent is not clearly unfit, the Court will recognize the strength of the parental feelings and the sincerity of the desire to do the best for the child and return the infant.” Melton, 219 Md. at i89.

In Ross v. Pick, supra, the Court held that parents who had completely surrendered custody of an eleven-year-old child for nearly ten of the child’s eleven years subordinated their rights to the cnild to the rights of those who performed the parental duties. However, once again, the Court’s prefatory language is most significant:

“Where a child has been left by its parents in the care and. custody of others, but the parents reclaim it soon afterwards, and the parents are competent to have its custody, the court gives more weight to the law of nature, which recognizes the force of parental affection, than to the probability of benefit to the child by leaving it where it is, even the probability of advantages which wealth and social position might bestow.” Id. at 351-352.

The child’s father in Dietrich v. Anderson, supra, made no protest when his wife surrendered custody of their ten month old child to another, nor when a court proceeding later established that custody legally, but appeared four years later “out of a clear sky,” against even the mother’s wishes, to attempt to vaeate the four-year-old custody award. The Court of Appeals held that:

“While a father is generally entitled to custody of his infant child, this right is derived from his duty to support and maintain it, and may be forfeited or suspended by his failure to do so .’’Id. at 116.

In Piotrowski v. State, 179 Md. 377, the Court of Appeals continued custody of an eight year old girl in the maternal grandparents who had kept the child since she was four months old. The holding in this case is more precedentially persuasive of the proposition that the time away from the natural parent should overcome the parental presumption since it appears to have been the controlling factor in the court’s determination. The father and his wife, whom he married after the child’s mother died during the child’s infancy, were “well behaved, industrious, law abiding people” as were the grandparents who had custody. Without expressly so stating, the Court seemed to have decided to continue custody in the grandparents because it was doubtful that a change in custody would improve the child’s environment and that, due to the substantial time away from her father, it was possible that it would be detrimental to her. That period of time, however, was nearly eight years, running continuously from infancy to the date of trial. Once again the voluntary surrender of custody was a factor which was also considered by the Court. By quoting previous cases, the Court made it clear, however, that it did not abandon the parental presumption:

“ ‘There can be no binding, and very little helpful, precedent found in the decisions of the courts on this subject, because essentially each case must depend upon its peculiar circumstances,’ but courts are bound, in determining the fate of children, and in fixing the environment which is thereafter to direct the course of their lives, to recognize the natural right of parents to the custody of their children, and unless convinced that it would be injurious to their welfare, to maintain the relationship which society has always recognized as the one most to be desired.” (Emphasis added). Id. at 381.

Sufficiency of the Record

A supplemental argument presented by appellants is that, because the chancellor had not ordered a social services investigative report, the record was not sufficient for his conclusion or our review. We do not agree. While it is preferable to have such a report in most instances, Ouellette v. Ouellette, 246 Md. 604, 608; Jester v. Jester, 246 Md. 162, 171; Shanbarker v. Dalton, 251 Md. 252, 259; we know of no requirement that such investigation be made. We have at times included a recommendation for such investigation as has the Court of Appeals, when, in a divorce case, we were not provided with sufficient facts to indicate why the chancellor decided custody as he did. Deckman v. Deckman, 15 Md. App. 553, 564-565. See also Krebs v. Krebs, 255 Md. 264.

In the case at bar there was no dearth of facts. The testimony was abundant and visual evidence was also introduced. Salaries, present and prospective, were discussed. The homes owned by each of the parties were depicted photographically and plans for the future espoused by appellee. The evidence revealed that both parties were fit and proper custodians. The benefit to Stephanie of the grandparents’ maturity was balanced by the presence of a half brother very near her age in the mother’s home. (This latter factor is, of course, insufficient inducement in itself to warrant change of environment. Melton, supra, 219 Md. at 190). On balance, however, we cannot disagree with the chancellor who seemed to view all other factors as equal and tipped the scales in the mother’s favor using the presumption that the child’s welfare would best be served by a natural parent. The “burden then cast upon the parties opposing ... to show the contrary”, Ross v. Pick, supra, at 351, was not met merely by showing the three years’ separation of mother and child.

While we recognize that our review of custody awards is not confined by the “clearly erroneous rule”, Sullivan v. Auslaender, 12 Md. App. 1, 3-4, neither should we be oblivious to the fact that the chancellor had the opportunity to view each witness’s demeanor, hear their expressive intonations, and to judge them — to some degree — on their deportment and attitude while testifying. We, on the contrary, are limited to the printed words of a cold record.

“Ordinarily the court or judge who has had the parties before him, has the best opportunity to observe their temper, temperament, and demeanor, and so decide what would be for the child’s best interest, and unless there is some sound reason to the contrary his findings ought not to be disturbed.” Piotrowski v. State, 179 Md. at 381.

Order affirmed.

Costs to be paid by appellants.

Davidson, J.,

dissenting:

In concluding that custody of Stephanie Lee Powers should be transferred from her paternal grandparents to her natural mother, the majority has relied upon a court-made presumption that the child’s welfare will best be served in the care and custody of her mother. They maintain that custody may be denied to a natural parent only when such parent is unfit or there are other exceptional circumstances. They conclude that the natural mother here is fit, and that no other exceptional circumstance exists.

I believe that in assessing what constitutes the best interests and welfare of Stephanie Lee Powers, the majority has become involved with concern for a natural mother faced with the possible loss of a child, and has focused on her rights, needs, and conduct rather than on the interests of the child. Such a focus is common in contests between natural parents and custodial parents. For example, custody will be awarded to the natural parents if they have lost custody of their children involuntarily as a result of circumstances beyond their control, on the theory that such parents do not deserve to suffer. In contrast, custody will be awarded to the custodial parents where the natural parents have relinquished control over the children as a result of their own actions, on the theory that they are responsible for the consequences. Because the impact on the child of separation from its natural parent is the same whether custody was voluntarily or involuntarily surrendered, such considerations are totally irrelevant to the central issue in a custody case, namely what constitutes the best interests of the child.

Here the majority implicitly characterizes the adulterous mother’s surrender of custody as “involuntary,” and therefore as a factor militating in favor of a return of the child to her custody. In so doing, they fail to consider the fact that the mother voluntarily engaged in adulterous conduct, which inevitably caused her loss of custody. The majority’s inaccurate characterization demonstrates that underlying their opinion is the unarticulated feeling that, notwithstanding Maryland law, the natural mother should not have lost custody of her child as a result of her adulterous conduct. When all is said and done, the majority here has determined that solely because the adulterous mother has “repented,” and has thereby been converted, under Maryland law, from an “unfit” to a “fit” parent, six-year old Stephanie should be removed from a stable and successful environment. This determination is based upon no more than an unsupported finding that she will not be traumatized and an unsubstantiated presumption that some intangible force derived from natural parental love will provide her an environment superior to that which she has enjoyed during the previous three years of her life. Such a view is not consonant with Maryland law, which recognizes that if the best interests of the child are to be preserved, such outmoded, irrelevant and unfounded notions must be discarded. Accordingly, I respectfully dissent.

The custody of children should not be disturbed unless there is some strong reason affecting the welfare of the children. To justify a change in the custody of a child, a change in conditions must have occurred which affects the welfare of the child and not of the parent. In accord with this principle it has been held that, where a parent surrenders complete custody of an infant for such a long time that its interests and affections attach to the persons who have filled the place of the parent, and where the infant develops into a healthy and happy child, then, if the parent seeks to reclaim the child by judicial decree, the court should place the right of the parent subordinate to the right of those who have performed the parental duties. This is done to protect the welfare of the child which largely depends upon the ties of companionship formed over the course of the years.

Primary reliance upon parental rights which have not intentionally been abandoned or forfeited may well be appropriate in an adoption case *** or in a custody case in which the children have not long been separated from the parents, but such emphasis is not proper in a custody case where the best interests of a child, long separated from a parent, must govern. The strength of the family ties formed by a child with persons who fill the place of its natural parents, and the healthy and happy development of such a child, are regarded as being of such paramount importance that neither the age of the parental replacements, nor the fact that the child would be united with a sibling if returned to the natural parent, has been considered sufficient to justify a change in custody and the return of the child to a natural parent.

Here the record shows that Stephanie has been in the care and custody of her paternal grandparents from the age of two years and nine months, in January, 1972, to the time of the hearing on the present petition, in April, 1975, a period of three years and three months. During the last two of these three years, the natural mother had visited her on only three occasions. The paternal grandfather, age 49, and grandmother, age 44, are fit and proper custodians. The mother herself testified that Stephanie has been well cared for and loved by the paternal grandparents, and that she is “pretty normal.” Stephanie’s kindergarten teacher testified that the child is an “above average” student, is well-mannered, gets along well with other children, and is well-adjusted and secure.

In the absence of any evidence to show that the paternal grandparents are unfit to care for this child, and that she is experiencing any kind of difficulty, there is nothing in this record which justifies a change in custody. The stability to be provided by a continued relationship with two good and loving grandparents far outweighs any disadvantages to the child which might come from not living with her mother and her half-brother. There is absolutely no reason to expose the child to the risks inherent in uprooting her and moving her to a new environment.

The Court of Appeals has recognized that custody will not be awarded merely to gratify the natural maternal affection. This Court has said that “custody is not a prize to be handed by the court to the innocent or unerrant parent solely on the basis of his or her innocence or unerring ways.” In my view, the fact that the natural mother has become a fit and proper custodian is insufficient in and of itself to justify a change in custody. Accordingly, I would reverse the chancellor’s determination with respect to the custody of Stephanie Lee Powers.

      . The testimony reveals that Charlotte J. Powers is not the mother, but the stepmother, of David Lee Powers, having married David’s father in 1969.

      . “We do not know what the future holds either for this mother or for this father. We do know that the mother is only 19 now and we do know from the testimony in the first hearing that after approximately a year and a half to two years of marriage she did become quite unfaithful. We hope that this would not happen again, but we think it is too soon to be certain of that. We also note a certain amount of transience as to the present husband of the mother. We think that there is relative stability in the home of the paternal grandparents and that this would be another reason we would not change custody at this time.
      I think we should not foreclose from our mind the very real possibility that eventually this child, if the mother continues in her present direction, is going to go back to the mother, I think this is a very real possibility that we ought to think about. Therefore, we ought not be alienating the child from the mother and neither should the mother alienate the child from the father or from the grandparents. I say this is a very real possibility because I say again, we do not know what the future holds and we will just have to wait and see.
      Anyway, as far as the change of custody today is concerned we think it is premature and we do not find sufficient reason to change the visitation schedule at this time. We think that there is enough of a history of this case today and at a previous hearing that we do not need a social services investigation to determine that. The primary thing that concerns me is the brief period of time that has elapsed since the young lady stopped living in adultery.”

      . Appellants’ arguments begin:
      “It is quite obvious that the Chancellor in arriving at his decision concluded that Appellee had rehabilitated herself from the adultery which had resulted in the original decision that she was unfit to have custody. In concluding this, the Chancellor cited the reasoning set forth in Cornwell v. Cornwell, 244 Md. 674. The Chancellor went on to conclude that Appellee is now a fit and proper person to have custody of the child, and that the traumatic affect [sic] of such a change would be minimal. All of the Chancellor’s reasoning is set forth in his verbal opinion at the conclusion of the case.

        Although Appellants do not disagree that strongly with the logic utilized by the Chancellor in reaching his conclusions, we submit that there is a basis of judicial error because the Chancellor failed to consider all the various factors that should be considered in a child, custody case.” (Emphasis added).

      . 'These-cases .point up the judicial phenomenon that a rule is often most clearly expressed in cases where an exception to it is about to be made.

      . .Ironically, that -consideration now can be argued against appellants since Stephanie has already moved to her mother’s home pursuant to the decision 'below and would have to be “uprooted” again if we reverse that award made-nearly -a year ago.

      . Appellants cite and argue an unreported per curiam opinion which is factually inapposite. We note that unreported cases are not acceptable authority.

      . Krebs v. Krebs, 255 Md. 264, 266, 257 A. 2d 428, 429 (1969); Kramer v. Kramer, 26 Md. App. 620, 623, 339 A. 2d 328, 331 (1975); Sullivan v. Auslaender, 12 Md. App. 1, 5, 276 A. 2d 698, 701 (1971).

      . Winter v. Crowley, 231 Md. 323, 331, 190 A. 2d 87, 91 (1963); Kramer, supra, 26 Md. App. at 623, 339 A. 2d at 331; Peterman v. Peterman, 14 Md. App. 310, 320-21, 286 A. 2d 812, 819 (1972); Sullivan, supra, 12 Md. App. at 5, 276 A. 2d at 701.

      . Melton v. Connolly, 219 Md. 184, 188-89, 148 A. 2d 387, 389-90 (1959); Ross v. Pick, 199 Md. 341, 352, 86 A. 2d 463, 469 (1952); Dietrich v. Anderson, 185 Md. 103, 119-20, 43 A. 2d 186, 192-93 (1945); Piotrowski v. State, 179 Md. 377, 383, 18 A. 2d 199, 201-02 (1941).
      The validity of the Court of Appeals’ policy recently has been substantiated in J. Goldstein, A. Freud and A. Solnit, Beyond the Best Interests of the Child (1973). The authors demonstrate that because of the law’s inability to make long-range predictions, child placement should provide the least detrimental alternative for protecting the child’s development. They functionally define and contrast tifie biological parent-child relationship and the psychological parent-child relationship. They establish that the emotional well-being of the child requires that placement decisions safeguard the child’s need for continuity of relationship with the psychological parents. They conclude that in terms of the child’s well-being, the rights of the biological parents are irrelevant and must be subordinated to the child’s right to an uninterrupted relationship with its psychological parents.

      . See Dawson v. Eversberg, 257 Md. 308, 313, 262 A. 2d 729, 732 (1970); Walker v. Gardner, 221 Md. 280, 284, 157 A. 2d 273, 275 (1960); Lloyd v. Schutes, 24 Md. App. 515, 521-22, 332 A. 2d 338, 341-42 (1975).

      . Trenton v. Christ, 216 Md. 418, 422-23, 140 A. 2d 660, 662 (1958); Piotrowski, supra, 179 Md. at 380, 18 A. 2d at 200.

      . Lippy v. Breidenstein, 249 Md. 415, 420, 240 A. 2d 251, 254 (1968); Melton, supra, 219 Md. at 190, 148 A. 2d at 390.

      . Goldstein, Freud and Solnit, supra, describe the risk inherent in disturbing the continuity of relationships of a school-age child, at 33-34:
      “For school-age children, the breaks in their relationships with their psychological parents affect above all those achievements which are based on identification with the parents’ demands, prohibitions, and social ideals. Such'identifications develop only where attachments are stable and tend'to be abandoned by the child if he feels abandoned by the adults in question. Thus, where children are made to wander from one environment to another, they may cease to identify with any set of substitute parents. Resentment toward the adults who have disappointed them in the past makes them adopt the attitude of not caring for anybody; or of making the new parent the scapegoat for the shortcomings of the former one. In any case, multiple placement at these ages puts many children beyond the reach of educational influence, and becomes the direct cause of behavior which the schools experience as disrupting and the courts label as dissocial, delinquent, or even criminal.” (Footnote omitted. Emphasis in original.)

      . Townsend v. Townsend, 205 Md. 591, 596, 109 A. 2d 765, 767 (1954); Carter v. Carter, 156 Md. 500, 506, 144 A. 490, 492 (1929); see Atkins v. Gose, 189 Md. 542, 551, 56 A. 2d 697, 701 (1948).

      . Mullinix v. Mullinix, 12 Md. App. 402, 411, 278 A. 2d 674, 679 (1971).


author: Morton, J.,

text:
    RONALD SIGISMONA CAREY, LEON EDISON CLARK, MOMOLU J. S. SIRLEAF, CHARLES ALEXANDER SNETTER and RICHARD JAPPAL SNETTER v. STATE OF MARYLAND
    [No. 323,
    September Term, 1975.]

      Decided March 24, 1976.

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

      Michael Bowen Mitchell, with whom was Harry A. E. Taylor on the brief, for appellants.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Daniel Cassidy, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellants, charged with disorderly conduct and related offenses, were being tried before a jury in the Circuit Court for Prince George’s County on February 26, 1975. After two police officers had testified at length for the State, the presiding judge recessed the trial for lunch. Upon reconvening court, the judge called respective counsel to the bench and announced for the record:

“THE COURT: I want to get this on the record that during the noon recess Mrs. Montcalm [deputy clerk of court] sent a member of the jury over to my chambers. I did not see him. He talked to my secretary. We checked back with Mrs. Montcalm and what he stated to her was that having heard this much of the case he had already concluded because of some previous experience that he had had that he would not be able to believe the police witnesses in this case.

When I first heard about this I called counsel to my chambers and informed them of the situation. I did not know the full particulars but without telling counsel which position he was taking I told them if under the circumstances they would be willing to go ahead with 11 jurors. Mr. Mitchell [counsel for appellants] conferred with his clients and said that he would not be willing to go ahead with 11 jurors and has a perfect right to take that position, and what that leaves is a situation where one of the 12 jurors has already expressed an opinion without having heard the entire case or instructions or argument.

Under those circumstances my conclusion is that one of the most important functions of the Court is to see that a fair trial is afforded everyone concerned, that this could not be a fair trial from this point on.

Therefore, I propose to declare a mistrial and have the matter set for a later time.

“THE COURT: Do you want to correct any statement that I have made on the record?

MR. MITCHELL: Just with one respect to the — well, I was just leading up to a request that we are only going on hearsay, number one, at this point of what, if anything, this juror said, because it comes by way of Mrs. Montcalm through His Honor. Mrs. Montcalm I respectfully request be allowed to put this on the record and also the juror if necessary, and I am not trying to be hypertechnical, but I think that Mrs. Montcalm’s talking with a juror who has already been sworn about a case was in violation of the sequestration, number one, and also —

THE COURT: Maybe so, but jurors talk to them about getting excused and they are not feeling well and they are sick.

MR. MITCHELL: But with respect to matters —

THE COURT: A whole lot of things like that you would not know until he blurted out what it was, but she certainly does not. She never says anything about any pending case to the jury.

“MR. MITCHELL: I would just like to add one thing to Mrs. Montcalm’s statement. In His Honor’s office she said he thinks that it is a possibility and at this point he thinks. There was nothing definite made he could not reach a decision.”

A mistrial was then declared and the jury was dismissed.

Sometime later appellants filed a motion to dismiss the charges against them on the ground that a retrial of the charges would violate their Fifth Amendment constitutional right against double jeopardy. Benton v. Maryland, 395 U. S. 784 (1969). The presiding judge denied the motion to dismiss and this appeal followed.

At the outset it is clear that jeopardy had attached to the appellants at their trial on February 26, 1975, for the jury had been impanelled, sworn and two witnesses had testified. See Jourdan v. State, 275 Md. 495 (1975). Secondly, it is equally clear that the appellants did not consent to the declaration of the mistrial. The trial judge acted sua sponte. See Cornish v. State, 272 Md. 312 (1974). Thus, we are confronted with the determination of whether the Fifth Amendment’s prohibition against double jeopardy bars a retrial of the charges against appellants and this, in turn, “depends upon the reasons for and circumstances surrounding the mistrial declaration.” Jourdan, supra, at 508.

Judge Eldridge, writing for the Court in Jourdan after referring to Cornish, supra, stated at 510:

“We pointed out that since the opinion of Mr. Justice Story, in United States v. Perez, 9 Wheat. 579, 580, 6 L. Ed. 165 (1824), it has been settled that the constitutional prohibition against double jeopardy permitted a retrial following a mistrial only if there was ‘manifest necessity’ for the mistrial, and that the discretionary power of a court to declare a mistrial ‘ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.’ ”

See also U.S. v. Dinitz, 44 U.S.L.W. 4309 (U.S., March 8, 1976).

Here, we think it is apparent that there was no demonstration of “manifest necessity” for the mistrial. The trial judge had before him only the statement of a deputy clerk of court that a juror had told her that he would not be able to believe the police witnesses in the case. We do not have before us what the clerk actually related to the judge. We have only the judge’s interpretation of what she told him. The deputy. clerk directed the juror to the judge’s chambers but, apparently, he was permitted to talk only with the judge’s secretary. No one, including the judge, knew the actual attitude, position or alleged bias of the juror in appraising the evidence or whether he could or could not, in fact, render an impartial and objective verdict in the case. There was no sworn testimony on the issue. All of the evidence was pure hearsay. The judge himself stated “I did not know the full particulars * * * ” and we are left to conjecture and speculation.

Under the circumstances, we think that the judge acted precipitously and without a sufficient foundation of facts upon which to formulate a judgment that the declaration of a mistrial was manifestly necessary. Otherwise stated, the judge violated the admonition of the Supreme Court in United States v. Perez, 9 Wheat. 579 (1824) that the discretionary authority to declare a mistrial “ought to be used with the greatest caution, under urgent circumstances and for very plain and obvious causes.” Subjecting these appellants to a retrial of the charges for which they went to trial on February 26, 1975, would place them twice in jeopardy in violation of their constitutional right against being placed in double jeopardy. Their motion to dismiss the charges should have been granted.

Judgment reversed; costs to be paid by Prince George’s County.