author: Lowe, J.,

text:
    MACK CAMPBELL v. STATE OF MARYLAND
    [No. 1368,
    September Term, 1976.1

      Decided July 13, 1977.

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

      Henry L. Belsky, Assigned Public Defender, with whom was Jana R. Barnett on the brief, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and William M. Monfried, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

to ete a mous

“The sporting theory of justice, the ‘instinct of giving the game fair play’ ”, as Professor Wigmore has put it, “is so rooted in the profession in America that most of us take it for a fundamental legal tenet.” But the will to win, which is ordinarily a commendable attribute, has, because of society’s pressures, too often caused a disproportionate priority to be established in the order of things. Thus, when a prosecutor becomes so obsessed with catching the rats that his concern causes him to “weyveth [the] milk, and flesh” of the law (justice and fair play), either he must reorder his priorities or the judicial system will do it for him. An attorney is neither obliged nor expected to win at all costs, and as pointed out by Doctor Samuel Johnson, he is an ingenious counsel who but makes the most of his cause. When a prosecutor moves beyond that goal he infringes upon the “conveniently vague” due process limitation guaranteed an accused. It is the Fourteenth Amendment which obliges us to do what is just, not merely refrain from doing what is improper.

Because due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or essentials of fundamental rights, Wolf v. Colorado, 338 U. S. 25, 27, the questions that appear before us of what is deemed reasonable and right are as abundant as man is innovative. The device used by the prosecutor in this case was effective (at that trial at least), perhaps even innovative. But it was an affront to the Sixth and Fourteenth Amendments.

the duty of the prosecutor is to seek justice, not merely to convict

Mack Campbell was the driver of an automobile and one of four men arrested after a high speed chase following an armed robbery of the Jiffy Trailer Company. His defense was uncomplicated. He admitted that one of the other three occupants of the automobile was a friend, and that he had at his friend’s request driven the three to the Jiffy Trailer Company. However, he contended, he had done so because his companions had wanted to rent a truck there. Again at the friend’s request, he agreed to wait until they ascertained whether the company was open for business and, if it was not, to drive them to an alternative source for a truck rental.

When the three men returned, they did so in a rush. One put a gun to appellant’s head and directed him to depart post haste — which he did without hesitation notwithstanding a police car which took up pursuit. His ordeal ended abruptly when his automobile collided with another.

The defense of coerced participation obviously rested upon credibility. To bolster appellant’s story, one of the other participants, David Byrd (also known as George Jones, Jr. i, who had not been tried for the robbery in question, had agreed to testify in appellant’s behalf. Stets had been entered in Byrd’s case at the request of an Assistant State’s Attorney, whose stated reason for the requested stets was that:

“Defendant [was] currently serving 20 yr. sentence.
R. Hedeman A.S.A.”

On the day appellant was to be tried by a jury in the Criminal Court of Baltimore, Assistant State’s Attorney William M. Monfried, who was assigned to prosecute him, began his case with an announcement to the court:

“Prior to calling the Campbell case for trial, the State at this time will move to reopen stets as to Mr. David Byrd, also known as George Jones, in Indictments 57535046, 49 and 57. Mr. Byrd is present as is his counsel.”

This evoked vociferous complaints, not only from appellant, but from Byrd’s attorney as well. Presumably expecting the court to believe that the timing of the opening was coincidental, the prosecutor argued that his reason for opening the stets was totally unrelated to whether Byrd testified:

“I could care less if he testifies at all. The cases are being reopened purely and simply because Mr. Dunnigan indicated to me he felt it was a nonproductive disposition to give any more time for Mr. Byrd. I vehemently disagree with that and I fought this in our office. That is not the situation for the prosecutor to act as a judge and sentencer. If the Court feels it is enough time it will give him a concurrent sentence. I told Mr. Dunnigan that. I told Mr. Dunnigan I was reopening the trials. If Mr. Byrd says something that is inculpatory, may be used against him or not, I don’t know. The stets are not being reopened because he is a potential defense witness. They are being reopened because I don’t agree with the State’s Attorney stetting them. I know of no law, judicial decision whatsoever, in the Supreme Court or this state to reopen a stet.”

The witness’s attorney, however, pointed out that the prosecutor had previously advised him of the jeopardy in which Mr. Byrd would be placed if he did testify:

“I would like to repeat, Mr. Monfried did say to me while he is not making any promises or deals, what my client does in this trial could have an effect on what his intentions will be when the stets are reopened.”

This the prosecutor readily acknowledged:

“It depends a great deal on what Mr. Byrd testifies to. If Mr. Byrd gets on the stand and says he participated in this, darn right, I’ll go to trial on this.”

Appellant’s attorney desperately tried to overcome this sudden impediment to his client’s defense but saw his protestations to the opening of the stets go unheeded. Instead, although it was to have been appellant’s trial set for that hour, he waited while the witness Byrd was arraigned in that courtroom, immediately after which his own case was called.

After the jury had been selected, the State had put on its case-in-chief and the jury was removed from the courtroom, appellant’s counsel again sought to overcome the obstacle confronting his key witness. He renewed his opposition to the opening of the stets and, alternatively, asked the court to grant Byrd immunity. Denied both remedies, he proposed to prove before the jury that the prosecutor’s sole motive in opening the stets was to obstruct appellant’s defense in suppressing a key witness’s testimony by “intimidating, threatening and using the judicial system”. The court would only agree to hear this testimony out of the presence of the jury. Even that ruling brought the prosecutor to his feet, demanding a right “to defend” himself, which he began to do immediately from the trial table. When the defense attorney requested that he be put under oath the prosecutor told him to “Keep quiet”, and again proceeded to impress upon the court, through argument, his version of why Byrd’s stets had been opened.

be just before you are generous

During the prosecutor’s unsworn address to the court, he again explained that his opening of the stets had nothing to do with whether the witness testified. He argued that any inference of impropriety from the timing was unjustifiable because, in reality, the opening of the Byrd stets immediately prior to the Campbell trial was a manifestation of the State’s generous display of fairness to Mr. Byrd:

“I could have had Mr. Byrd walk onto the stand, inculpate himself to the fullest extent. The highest form of self-incrimination, opened up the stets and said now, Mr. Byrd, look what you did, you have yourself under oath confessing to a crime, now I’m going to reopen the stet. That would have been dirty pool. I was fair and open with Byrd and told him I was reopening the stet whether he testified or not. If he exercises his right under the Fifth Amendment, it is his choice. I want it known to him if he gets on the stand the stets are open and anything he says may be used against him. His counsel is here. To this day I don’t know whether Mr. Byrd is going to testify. If he chooses to testify, fine. If not, fine. The stets are open. It has nothing to do with the case of State versus Mack Campbell. The State is not coercing him to take the stand or not. I think any hearing is a waste of the Court’s time.”

The court rejected the prosecutor’s plea to deny a hearing out of the jury’s presence, but elected to decide later if the evidence so taken would be admissible before the jury.

The first witness called during the hearing was the attorney for Byrd. He explained how Byrd’s stets had occurred and how he had been called out of another trial by Mr. Monfried the day before the Campell case was set to be tried and told that Byrd’s stets would be opened:

“. . . I asked Mr. Monfried on what basis he wanted to reopen. He made known to me he wanted to reopen but thought to what his decision will be whether he will try my client will have to do with the way my client testifies or not in this particular matter. He did not come in and say to me for a certainty he wouldn’t try him. He said he would more or less make a decision later.
Mr. Monfried led me to believe, not in the exact words, if he didn’t testify that would have a lot to do with his determination whether or not to follow through with the prosecution. He never came out and said if he testifies I will try him and if he won’t I won’t, but all the inferences were there by way of conversation it might be favorable to Mr. Jones not to testify as to what effect that would have on a decision whether to retry him.”

On cross-examination by the prosecutor the attorney made it clear that there was no overt threat, but that the underlying message was unmistakable:

“You didn’t promise us anything but the whole conversation, taken in proper prospective, being around the courts, understanding everything, how the system works, it was given me the impression by our conversation if my client did not testify his case, the stets opened would be re-evaluated, meaning to me if he is a good boy, keep his mouth shut, he probably has nothing to worry about.”

The second person to testify was the law clerk of Mr. Byrd’s attorney. He had taken an initial call from the prosecutor and the message he was asked to convey to his boss from Mr. Monfried was somewhat less subtle:

“I said ‘What do you want me to tell him?’ He said ‘Tell him we are going to reopen the stets and if his client is willing to not take the stand I won’t reopen the stets’.
That seemed peculiar to me. I said ‘You better tell him yourself’. I gave him Mr. Sellman’s phone number and that was the end of it. After that I relayed the message to his personal secretary later.”

In answer to Mr. Monfried’s question on cross-examination, the clarity of the clerk’s recollection was unmistakable:

“Then you said ‘Tell Allen to tell his client not to testify and if he doesn’t I won’t reopen the stets’, and that sounded peculiar to me.”

Finally, David Byrd testified. After being fully warned of the potential consequences of any testimony inculpating himself, he declined to testify in the Campbell case. He did testify, however, that before the stets were opened he had agreed to testify for appellant. He said he had changed his mind on the basis of the advice his counsel had given him after the stets were opened. He also testified that during a conversation between his attorney and the prosecutor, Mr. Monfried

“ . . . told me if I testified on behalf of my co-defendant the stets would be reopened and if I didn’t they would leave it the same. They would leave them closed.”

It should again be noted at this juncture that there was no testimony or other evidence offered by the prosecutor to controvert the witnesses put on by appellant. While we are fully cognizant of the position of a prosecutor as an officer of the court as well as of the State, we decline to hold that his unsworn argument or the inference from his questions on cross-examination were sufficient to overcome the sworn testimony of appellant’s witnesses. Evidentially, the accusations of coercion or suppression stood unrebutted, which undoubtedly accounted for the fact that the trial judge assumed all of appellant’s allegations to have been true. He decided, however, that the tactical timing of the opened stets and the imputed motives of the prosecutor were of no consequence, since Byrd would have to have been fully advised of his rights and the consequences of testifying with or without the implied threat, and he would have probably declined when he found he was subject to prosecution, stet or no. The judge concluded by saying:

“I don’t see the State has done anything wrong in this case and I deny the motion.”

epilogue

Two months after Mack Campbell was convicted an entry was made in the docket of the case of David Byrd, which began:

“Mr. Clerk: Please Enter a Stet in this Case because”

and which was followed by the handwritten reason therefor and the signature of the prosecutor making the request:

“defendant is currently serving 20 yrs [s] Monfried, ASA”.

There followed the final entry initialed by the same trial judge:

“Stet ordered for the above stated reason, fs] M.M.C. Judge”

due process of law

Since the 14th century, Anglo-Saxon justice would permit “no man . . . be . . . taken nor imprisoned . . . without being brought in answer by due process of law.” Statute of Westminster, 28 Edw. Ill (1354). The phrase “due process of law” was used and the concept reavowed in the Fifth Amendment to our Constitution, and its applicability was subsequently broadened by the Fourteenth Amendment. While agreeing with Charles Hough that the “phrase is of convenient vagueness”, 32 Harv. L. Rev. 218, from time to time the Supreme Court has had occasion to bring it into better perspective. In Washington v. Texas, 388 U. S. 14, 19, the Court said:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”

That holding was the fulcrum of the decision in a later case more factually apposite than Washington to the case before us. In Webb v. Texas, 409 U. S. 95, the trial judge so frightened a witness by emphasizing to him the consequences of perjuring himself that the witness declined to testify. There, as here, the implications and circumstances denied appellant “the right to present a defense, the right to present the defendant’s version of the facts. . ..”

The reversal in Webb rested upon what might have been “the unnecessarily strong terms used by the judge [which] could well have exerted such duress on the witness’s mind as to preclude him from making a free and voluntary choice whether or not to testify.” Id. at 98. It made little difference that the witness may have declined to testify there had he been apprised of the consequences of perjury in less threatening terms. Likewise, it is of no consequence that the witness here might have declined to testify had he known that entry of a stet was not a barrier to prosecution. Here the trial judge recognized that:

“ . . . the testimony is quite clear from what Mr. Byrd stated he would have testified if he were not advised the stets would be opened.”

We know Byrd’s decision in face of the threat of prosecution. We can only speculate what might have happened had the threat not appeared.

Under the light cast upon the due process clause by Webb and Washington, it is hard to imagine a more fundamentally unfair factual predicate for a denial of due process than that which was uncontrovertifaly proven in the instant case. As Webb and Washington point out, the right of a defendant to present witnesses in his defense is a fundamental element of due process. Because appellant’s defense relied solely upon the believability of his version of the facts, a participant who would presumably inculpate himself was a key to success, and the use of the coercive procedural measures which effectually drove the witness from the stand deprived the appellant of due process.

There are fortunately few cases of denial of due process by government coercion of witnesses that have surfaced throughout the country, but these few reach results similar to that at which we now arrive. For example, in State v. Brown, 543 S.W.2d 56, the Missouri Court of Appeals held that a warning which was given a defense witness by the prosecutor, carrying the implication that the State had enough evidence to proceed against, the witness but would do so only if he testified, operated to prevent the defendant from presenting a witness crucial to his defense and, as such, was violative of due process where the warning had the effect of causing the witness to refuse to testify:

“The intimidating warning given by the prosecutor in the ease before us drove Mr. Burke from the stand and prevented the defendant from presenting a witness crucial to his defense. As in Webb, this practice must be condemned as depriving a criminal defendant of due process. We conclude that appellant’s conviction must, therefore, be reversed and appellant retried in this matter.” State v. Brown, supra, 543 S.W.2d at 59.

See also United States v. Thomas, 488 F. 2d 334; United States v. Smith, 478 F. 2d 976; Bray v. Peyton, 429 F. 2d 500; Commonwealth v. Jennings, 311 A. 2d 720. That the threat here was conveyed through and in the presence of counsel is a difference without distinction.

We too will reverse the judgment of the trial court. However, the question remains whether appellant can now obtain a fair trial if we remand. It has been said on a federal level that where similar prosecutorial misconduct caused a defendant’s principal witness to withhold testimony which would otherwise have been available to defendant, out of fear of self-incrimination, due process may demand that the government at the new trial request use immunity for that witness, United States v. Morrison, 535 F. 2d 223, 228-229, a procedure which is available under Maryland law only in a limited number of instances.

While we hesitate to intrude upon a prosecutor’s prerogatives without good reason for believing they will be abused, we are compelled to note that if the Byrd stets are again opened the State will be doing so — at least by appearance — for the purpose of obstructing justice. In light of the initial opening, allegedly done to allow the State a full review of its reasons for stetting the cases, and in light of the second entry of the stets for precisely the same reason given for entering them the first time, the State could hardly justify opening them again without a substantial showing of good cause. Although we do not rule, as a matter of law, that such a showing could not be made, we reiterate that it would have to be substantial. Accordingly, Mr. Byrd must now be apprised anew of his rights by his counsel in light of our opinion, and he may elect or decline to testify without fear of reprisal for his decision. This should provide appellant substantial justice upon retrial — and that is the best the system can offer.

Judgments reversed.

Case remanded for new trial.

Costs to be paid by Mayor and City Council of Baltimore.

      . “Lat take a cat, and foster him wel with milk,
      And tendre flesh, and make his couch of silk,
      And lat him seen a mous go by the wal;
      Anon he weyveth milk, and flesh, and al,
      And every déyntee that is in that hous,
      Swich appetyt hathe he to ete a mous.”
      Geoffrey Chaucer, Canterbury Tales — The Maunciples Tale 1.71.

      . Rosco Pound, “The Cause of Popular Dissatisfaction with the Administration of Criminal Justice”, 29 A.B.A. Rep. 395, 404.

      . ABA Standards Relating to The Administration of Criminal Justice, § 1.1 (c); see United States v. Agurs, 427 U. S. 97, 110-111.

      4. The proper name of the party referred to is Hedeman. Undoubtedly the stenographer’s notes erroneously reflected “Dunnigan”.

      A. For a discussion of history and use of stet processus see State v. Jones, 18 Md. App. 11, 33-37.

      . We deny appellant’s motion to supplement the record by appending the docket entries in the Byrd case. It is apparent, however, under these circumstances that we may judicially notice the official entries on the records of the Criminal Court of Baltimore. While we will not generally go beyond the record of a case before us and take notice of proceedings in another case, we may do so where justice demands it. Fletcher v. Flournoy, 198 Md. 53, 60-61. We hold that this is such a case. See James v. State, 31 Md. App. 666, 684-687.

      . See Md. Code, Cts. and Jud. Proc. Art., § 9-119; Art. 27, §§ 23, 24, 39, 262, 371, 400,540; Art. 33, § 26-16.


source: Caselaw Access Project

author:
Lowe, J.,
      Melvin, J.,

license: Public Domain

text:
    THOMAS A. DELOSO, SR. v. STATE OF MARYLAND
    [No. 1282,
    September Term, 1976.]

      Decided July 15, 1977.

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

      Ralph H. France, II, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Poole & France on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and John S. Hollyday, State’s Attorney for Washington County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court. Melvin, J., concurs in the result and filed a concurring opinion at page 115 infra.

The corporal punishment of students constitutionally allowed teachers, Ingraham v. Wright, 430 U. S. 651 (No. 75-6527, decided April 19, 1977), was viewed in the early cases as derived from the parental right to discipline one’s child. Id. at 651. It is unlikely that Thomas A. Deloso, Sr. foresaw the irony his actions would create when, on or about November 16, 1974, he administered corporal punishment to his daughter Jenny Jo, age five, which resulted in marks on her face and a “whelp” or bruise on her back and right hip. When she arrived at school Jenny Jo called these marks to the attention of her teacher, who told the director of the school, who told a social worker (Mrs. Broadwater), who told a doctor, who examined Jenny Jo at the hospital and found:

“Physical exam — general appearance — well developed white female with inflamed contusions on upper back and right cheek. Remainder of exam within normal limits. Good range of movement in all extremities without pain.”

The contusions occurred (as told by Jenny Jo to the director) when “her daddy had spanked her.” Neither treatment nor medication was required. The child returned to school and no legal action was taken at that time.

Nearly five months later, on or about April 8,1975, Jenny Jo was again punished by her father. This time she showed the results to two teachers, who told the director and a member of Parent Involvement Aid, who told the vice-principal, who told Mrs. Broadwater of Social Services, who again told the doctor, who again examined Jenny Jo and found:

“Contusions covering much of right buttock and right flank.”

This time, Mrs. Broadwater acted:

“Q All right, now, Mrs. Broadwater, then what else did you do after you took the child to the hospital in reference to your investigation?
A This was the second time this had occurred in four months.
Q So, what did you do?
A I telephoned the Juvenile Court and described what had happened and asked if we might have an emergency commitment...

As a result of this teacher to case worker to court communication, appellant was indicted on June 6, 1975 for abusing his daughter. On January 12, 1975 he was convicted by a jury in the Circuit Court for Washington County of two counts of child abuse.

hearsay or spontaneous declaration

For whatever reason, at trial the State chose not to call the child who was by then in the custody of foster parents (who themselves felt compelled to spank Jenny Jo during her stay), or Jenny Jo’s case worker (who, it was stipulated, would have testified that she believes Jenny Jo to be a disciplinary problem and does have to be spanked occasionally). Virtually the only testimony introduced by the State was that of the teachers, the school director, and the social worker; and, other than appellant’s alleged admission to the social worker that

“ ... he had hit Jenny on the back, because she had disobeyed him”,

all of the State’s testimony relevant to the charges was hearsay from the child, introduced over objection through the various persons and reports described. The trial judge admitted all of the hearsay under the “excited utterance” exception to the hearsay rule, relying upon Moore v. State, 26 Md. App. 556.

In Moore we held that an answer given by a 3 V2 year-old hospitalized child to an examining physician’s question “why his tummy was hurting him”, while clearly hearsay, was admissible as an excited utterance under the spontaneous declarations exception to the hearsay rule. Although we set out at some length the underlying reasoning of the foremost text writers as to why an excited utterance was more trustworthy than ordinary hearsay, the Moore case was decided on a narrow factual basis, i.e., a child in intense pain. We assumed that, when suffering, even children instinctively tell the truth to a physician.

Perhaps because we had occasion to draw upon the scholarship of Moore in Jackson v. State, 31 Md. App. 332 (where we held that statements inculpating the accused, made by a 4 year-old rape victim to her mother immediately upon arriving home after the assault, were admissible excited utterance exceptions to the hearsay rule), our holdings have been interpretively broadened by some trial judges to admit any relevant hearsay from an infant without regard to the prerequisite foundation of circumstantial probability of trustworthiness. See Jackson, supra, 31 Md. App. at 337; Moore, supra, 26 Md. App. at 562. While the writings of Professors Wigmore, McCormick, Morgan and Strahorn; from which we recited in Moore, make fascinating reading from an analytic and scholarly viewpoint, a trial judge called upon to rule during the climax of a trial may find that their digestion was not completed at the time of their consumption. However, we are reminded of a judicial purgative wherein we reiterated a most lucid res gestae test from Price v. State, 5 Md. App. 127, 131-132:

“ ‘.. . the declaration was made at such a time and under such circumstances that the exciting influence of the occurrence clearly produced a spontaneous and instinctive reaction on the part of the declarant. She was still emotionally engulfed by the situation...” Smith v. State, 6 Md. App. 581, 587.

This still seems a most practical rule of thumb for a trial judge, and an understandable test to apply on appeal as well.

The length of time between the occurrence and the declaration is a consideration in determining not only its spontaneity, but whether the declarant was “still emotionally engulfed”, although, as is obvious from Moore, time is not a conclusive factor. The utterance need not be contemporaneous or simultaneous with the principal act. While it may be subsequent to it, it must be established that the exciting influence has not lost its sway or been dissipated by meditation. Harnish v. State, 9 Md. App. 546, 551. But the crucial factor is not so much the lapse of time or change of location but the continuance of a situation which insures that what is said is, in fact, a spontaneous reaction to the occurrence, rather than an independent, preconceived expression of the speaker’s will. Reckard v. State, 2 Md. App. 312, 316-317.

Implicit in this consideration, however, is the requirement that the offerer of the hearsay statements provide the foundation upon which he asserts admissibility. See Hamish, supra, 9 Md. App. at 549-551; McCormick, Evidence § 297 (2d ed.). As we have already pointed out, the State’s entire case rested upon hearsay, but the State laid no foundation showing circumstantial probability of trustworthiness. Nor was there evidence of the relative time sequences between the alleged incidents of abuse and Jenny Jo’s statements to the various witnesses. Nothing in the evidence indicated that Jenny Jo “was still emotionally engulfed by the situation”, either inferentially from time and circumstances, or actually from the witnesses’ observations. To the contrary, Jenny Jo’s conduct and conversation appeared from the telling to have been quite casual — almost a “show and tell” depiction. Neither Moore, Jackson, nor any other case reviewed by this Court permits the admission of the hearsay of a child simply by virtue of its tender years. The element of trustworthiness is generally found in the spontaneity of the exclamation, and that is totally lacking here. The facts in Moore permitted an exception to the hearsay rule — not an expansion of the exception. Moore did not abrogate the hearsay rule for child abuse cases.

insufficient evidence, reverse or remand

Obviously then, we must reverse the judgments below. But because we are dealing primarily with the insufficiency of the evidence, the question arises whether we should remand for a new trial, reverse outright, or choose the middle course and leave that decision for the trial judge. In providing those alternatives, the Court of Appeals in Gray v. State, 254 Md. 385, 397, gave us some guidance on how to answer this question:

“We conclude that if the record before the Court of Special Appeals indicates that additional probative evidence of guilt can be adduced by the State at another trial necessitated by the insufficency of the evidence, a new trial should be awarded after a reversal if the interests of justice appear to require it. If the record indicates that no additional probative evidence can be so adduced, the entry of a judgment of acquittal should be directed. If the Court of Special Appeals cannot determine from the record whether or not additional probative evidence can be produced on a retrial, and the interests of justice appear to require it, the Court should vacate the judgment and remand the case with directions to the trial court (a) to hold a new trial if the State within a specified time can satisfy the court that it can produce additional probative evidence, or (b> to enter a judgment of acquittal if the State cannot preliminarily so satisfy the court.”

At first blush Gray may offend one’s sense of “fair play”, which, while “peculiar to Anglo-American law”, is so rooted in our theory of justice in America that most of us take it for a fundamental legal tenet. Campbell v. State, 37 Md. App. 89 (1977). Gray seems to say that the State may retry an accused if additional evidence is available, even where its first try failed for insufficiency of the evidence. Such logic appears to fly in the face of our double jeopardy concepts notwithstanding the realization that the rule of Gray rests upon firm constitutional grounds. But the Court of Appeals in Gray expressly ignored logic in favor of experience, 254 Md. at 398-399, and it subsequently admitted that Gray had “disturbed Our sense of logic.” Couser v. State, 256 Md. 393, 396. Nonetheless Gray is still recognized and adhered to by that Court, Garrison v. State, 272 Md. 123, 142, and we are bound to follow it even if we were reluctant to do so. See Tisdale v. State, 30 Md. App. 334, 345, n. 3.

However, stirred to further analysis by the warmth of the first blush of Gray, we find that the rule is not only ultimately logical, but that it also gives us a valuable judicial tool. It is not simply the availability of additional probative evidence which will compel a remand but the “interests of justice [must] appear to require it.” The “experience” of which the Gray Court spoke was based upon the protection of:

“ ‘ . the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error.’ ” Gray, supra, 254 Md. at 399, quoting United States v. Ewell, 383 U. S. 116, 121.

The appealing ring of reason in that quote was more articulately expounded by Mr. Justice Harlan in United States v. Tateo, supra, 377 U. S. at 466:

“Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.”

In short, Gray’s “interests ot justice” which must appear (along with the additional probative evidence), is, when stripped of its connotative associations, nothing more than a probability of guilt reflected by an appellate review of the trial record. This determination is exclusively an appellate one, and is to be based solely on the evidence and proffers of either party, as revealed by the trial record, indicating the presence or reasonable availability of additional evidence. Therefore, we must first determine if there is additional probative evidence and, if so, whether there is a sufficient likelihood of guilt — apparent upon retrial — to warrant that remedy.

additional probative evidence

In the case at bar it is clear that there is additional probative evidence available, at least in a technical sense, since neither the victim nor her examining physician testified. But it was their testimony reflected through less reliable sources that brought about the convictions.

The evidence available from the victim would obviously have been of the highest probative value, yet the record does not indicate that the victim was submitted as a witness nor does it show that her qualifications to testify were objected to or even examined. Speculatively, her testimony might have ranged from highly criminatory to completely exculpatory. In either event it would certainly be relevant. But since by all appearances the victim was readily available, we must assume that her testimony would have been cumulative, and that it would have added nothing of a probative nature to the State’s case. In a case where the evidence is relatively thin, we cannot assume a diligent prosecutor would have withheld additional probative evidence so readily available. It would be both improper and illogical for us to assume that a prosecutor would not “fire his best shot” at the initial trial, rather than hold anything back in anticipation of a retrial.

Nor can we discern from the record any reason for the absence of the doctor as a witness at the trial. Obviously the degree of force used by appellant in administering punishment to his daughter would have been highly relevant to the determination of whether it constituted “cruel and inhumane” treatment. Had the doctor been present, he might have more particularly described the “contusions” which he observed and if called for, perhaps given an opinion on the force necessary to so contuse. Without that opinion, or at the very least a descriptive observation, the jury was left to speculate whether the “contusions” he found were, as one witness described them, “whelps” which could arise from a less severe (though recently administered) physical chastisement, or whether they were deeper bruises which even laymen recognize as occurring from more extreme force. His testimony might have explored the ease or difficulty with which a five year old girl may be “bruised” — and he might have given an opinion as to the force necessary to so “injure without breaking the skin”, which is the broad definition of a contusion. The American Heritage Dictionary of the English Language, see “contuse”. But “what might have been” is speculative, and the record reflects no proffer or similar indication that if present the doctor would have added aught to this report. Although he, like the victim, would apparently be available to testify if we were to remand, there is nothing in the record to imply he could enhance his report, which was all the medical evidence that was admitted. Once again we cannot perceive a diligent prosecutor not having explored these possibilities if they existed. Accordingly, we must assume that the doctor’s testimony upon retrial would add nothing to his report.

We hold that there is little or no possibility that the State would be able to adduce “additional probative evidence” upon a new trial.

interests of justice

When reviewing the record we usually do so in light of the question raised on appeal of whether the evidence adduced was sufficient to sustain the conviction. In deciding whether to remand, however, we must assess the probability whether appellant might be convicted of child abuse at a new trial. Thus, we must consider all the evidence of record, the effect of the evidence in the record presently before us, the evidence the State can probably produce on retrial and whatever additional evidence the State can be expected to be able to produce.

From the evidence of record it is apparent that the degree of force administered by appellant, when reviewed most favorably to the State, was not so unreasonable in disciplining this child as to constitute “cruel or inhumane” treatment as required by the statute, Md. Code, Art. 27, § 35A, nor was the statutory alternative of malice on the father’s part in any way indicated. Moreover, even if all the hearsay evidence that was adduced below had been admissible, and even if that “additional probative evidence” which would appear to be available upon retrial were to corroborate it, we still find it insufficient to sustain the conviction.

In assessing the probability of whether appellant may be guilty of the crimes charged for purposes of remand, it is also appropriate for us to consider the defense evidence of record, which was here introduced in the form of testimony of appellant and his wife. The defense evidence may give rise to the availability of evidence theretofore unknown to the State. In this case it did not do so but rather substantiated our view that a remand is not in the interests of justice.

Appellant testified that all of his children constituted some disciplinary problems but that Jenny Jo was the worst.

“Yes sir. They do have a discipline problem, but since this, the rest of them listen pretty well, but I did have a problem with Jenny Jo especially. You tell her to do something and I’ve seen my wife tell her to do something and she’ll just stand there and backtalk and ‘No, I don’t have to,’ and, then, we make her do it, and then ‘I’m going to tell my teacher,’ and stuff like this.”

Mrs. Deloso admittedly could do nothing with Jenny Jo and testified that whenever Jenny Jo was chastised or did not “get her way”, she would threaten to tell her teacher. This unpleasant trait was also supported by appellant:

“But, for some reason or other she just has to have her own way. And, if she don’t get her way, ‘I’m gonna tell my teacher.’ So, I just told her one day, ‘Go ahead and tell the teacher, I don’t care, because the teacher don’t pay my rent and don’t clothe her.’ ”

In addition, Jenny Jo developed the embarrassing attention-getting device of publicly “dropping her pants”. While these problems gave concern, that for which she was punished occurred when she left the “court” where the family resided and to which she was restricted, to go to “Noland Court” where the traffic was dangerous and where she was at least once almost struck by a vehicle. Despite the parents’ concerned efforts, this was repeated four or five times. These instances of disobedience corroborated the social worker’s description of Jenny Jo as a disciplinary problem while in the foster home pending appellant’s trial, and the foster parents having had to whip her during that time.

Appellant admitted having struck Jenny Jo on both of the occasions for which he was charged with having abused her. The November incident arose when Jenny Jo had run off to “Noland Court” for the fifth time and appellant admitted:

“I slapped — I smacked her on the shoulder up here and told her to get on back to the house and then I made her stand in the corner.”

He denied hitting her in the face, or hitting her with a hair brush on any part of her anatomy. He explained, however, that the morning following the fifth “Noland Court” episode, the two girls, Jenny Jo and her four year old sister, were:

.. arguing about who was going to comb their hair first and who was going to brush their teeth first, so when I come down, ‘Jen,’ was crying.
Q You mean Jenny was crying.
A Jenny Jo was crying, yes, sir. I asked her ‘What happened?’ She just said ‘she fell.’ ”

Appellant also admitted having whipped Jenny Jo with his belt on the April incident, but denied pushing or throwing her against the wall:

“Q All right. On this, therefore, on April 8 or the day before April 8, did you ever use a belt on her to punish her for running away again?
A Yes, sir, I did.
Q Where did you hit her with it?
A I hit her on her backside.
Q Now, did you during that session when you were hitting her with a belt, did you push her or throw her against the wall?
A No, sir, I did not.
Q After you finished spanking her with the belt, what did she do? Where did she go?
A Well, after I got finished with her with the belt, I just sat down in the chair and started taking off my work boots and she has a little place in the kitchen underneath the table that when you whip her she’ll crawl right underneath the table and set there for a little while until her tantrum is over.”

According to Mrs. Deloso who also described that incident, the belt, without a buckle, was applied three times to the child’s posterior:

“Well, that day she also ran off. So, we went looking for her that day, so when we found her, her father told her then that he was going to smack her. So, he took her in the house, and he got out his belt, and it has no buckle, and he smacked her three times on her behind.”

Weighing the punishment inflicted, which required no treatment, against the explanation therefor, we cannot say that there is a probability of guilt; and certainly not factually that “the interests of justice appear to require” a new trial. To the contrary, our review of the evidence adduced or proffered clearly indicates that the question of child abuse should never have been, nor be, submitted to a jury.

Judgments reversed.

Costs to be paid by Washington County.

Melvin, J.,

concurring:

I concur in the result reached by the majority. I agree that the trial court erred in its ruling on the admissibility of hearsay evidence and that the error was not harmless. I also agree with the majority that the trial judge should have granted the appellant’s motion for judgment of acquittal at the close of all the evidence on the ground that the evidence, including the hearsay testimony, was legally insufficient to warrant a finding by the jury that the appellant was guilty beyond a reasonable doubt of violating the child abuse statute.

I also agree that where we reverse on the ground of insufficiency of evidence, we are bound by the Court of Appeals decision in Gray v. State, 254 Md. 385, (1969), regarding the propriety of accompanying the reversal with an award of a new trial or directions for the entry of a judgment of acquittal. I do not agree with the majority’s dictum, however, that a retrial following a reversal on the ground of insufficient evidence “rests upon firm constitutional grounds” in every case. Where the insufficiency of the evidence results from an erroneous ruling of the trial court excluding material evidence offered by the State, I would agree that the interests of justice may require a retrial to “protect... the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial.. ..” United States v. Ewell, 383 U. S. 116, 121 (1966). In the absence of such legal error, however, where the State has had full opportunity to present all the evidence it has against a citizen and has failed in its proof, it would indeed be placing him in jeopardy for the second time to allow the State to have another go at him in the hopes that this time sufficient evidence can be produced to convict him. In my opinion, such a retrial would clearly violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

In Green v. U. S., 355 U. S. 184 (1957), the Supreme Court of the United States said of the Double Jeopardy Clause, at p.-187:

“. . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

I agree with the Appellate Court of Illinois when it said in People v. Brown, 241 N.E.2d 653 (1968), at pp. 659, 663-664:

“Thus, the issue now presented is whether the State should be allowed a second chance to meet its burden of proof in a case in which (1) it had failed to adduce sufficient evidence to support a conviction at the trial, and (2) no material evidence offered by the State had been erroneously excluded or stricken. We are convinced that the State is not entitled to this kind of opportunity to rehabilitate its case at the expense of defendant’s right to acquittal on the evidence which the State did see fit to present.
“A necessary corollary to our conclusion (that the evidence was insufficient to support defendant’s conviction) is that a judgment of acquittal should have been entered by the trial court. Had such a judgment been entered after a trial on the merits, defendant would have been discharged.
“We come to the conclusion, therefore, that a second trial after reversal does constitute a second jeopardy which is, nevertheless, countenanced in some cases because required in the interest of justice. The basic concern of the criminal law in preserving the delicate and difficult balance between the security of the community and the rights of the individual accused, has dictated the rule that a criminal defendant who is successful on appeal may be retried. But this rule should not he applied to all reversals. When a conviction is set aside because of prejudicial occurrences or trial errors, the reviewing court determines only that the accused did not receive the fair trial which was his due; it does not determine that he was entitled to an acquittal. In this type of case, therefore, the security of the community requires retrial. At the same time, the new trial in such a case does not constitute an infringement of the rights of the accused because he will then receive the fair trial which had been denied him — precisely the relief to which he is entitled under the circumstances, and, with no exceptions known to us, the relief specifically requested by the appellant.
“On the other hand, when an accused is acquitted at trial, or when his conviction is reversed on appeal because of the insufficiency of the evidence, the results are the same so far as his relationship with society is concerned. He cannot reasonably be deemed a continuing danger to the community in one instance and not in the other. These extremes in result should not be left to the fortuitous circumstance of what court it is which decides that there was not enough evidence to establish his guilt. Here, therefore, the balance is seen to be tipped the opposite way, since there can be no infringement of the right to community security when the defendant is released on this ground by either court, whereas, in our opinion, his right against double jeopardy would be denied equally by a retrial order in either court.
“The reason for the reversal should thus control the decision as to whether or not there should be another trial.” (Emphasis added).

I think the reasons given for acquittal in People v. Brown, supra, apply with equal force to the case at bar and, were it not for our duty to follow the mandate of Gray v. State, supra, I would for those reasons alone vacate the judgment below and direct the entry of a judgment of acquittal.

Applying Gray to the instant case, as we are bound to do, I find that “the record indicates that no additional probative evidence can be . . . adduced” by the State. The majority appears to agree with this, for it opines that “even if all the hearsay evidence that was adduced below had been admissible, and even if that ‘additional probative evidence’ which would appear to be available upon retrial were to corroborate it, we still find it insufficient to sustain the conviction”. Although the majority refers to the “additional” evidence as “probative”, it finds such evidence “insufficient” to sustain the conviction even when added to the evidence produced at the first trial. To me this is a contradiction in terms. Black’s Law Dictionary (Revised Fourth Edition, 1968), defines “Probative” as follows:

“In the law of evidence. Having the effect of proof; tending to prove, or actually proving.
“Testimony carrying quality of proof and having fitness to induce conviction of truth, consisting of fact and reason co-operating as co-ordinate factors [Citation omitted]”.

“Probative Facts” is defined in the same work thusly:

“In the law of evidence. Facts which actually have the effect of proving facts sought; evidentiary facts. 1 Bench Ev. 18. Matters of evidence required to prove ultimate facts [Citation omitted]”.

If the “additional” evidence that the record indicates may be adduced at a retrial is “probative” (i.e., has “the effect of proof’ or “tends to prove” elements of the crime) then it would seem that such evidence is sufficient to make a jury issue of the crucial question of guilt. If the “additional” evidence is not “probative” then it is not sufficient to submit to a jury. In the present case, I agree with the majority that the “additional” evidence likely to be produced at a retrial is not sufficient to warrant submission to a jury. To repeat, “the record indicates that no additional probative evidence can be . . . adduced”. Consequently, under Gray’s mandate, “the entry of a judgment of acquittal should be directed”. Gray v. State, supra, at 397. To reach this result it is not necessary, as the majority seems to think it is, to weigh all the evidence to determine “the probability of guilt” — a process I find foreign to the appellate function.

      . The school director observed that:
      “She had red marks on her face, the right side of her face, she had blood on her gums, uh, she was bleeding in the gum area around one of her teeth, and she had marks on her back.”
      The other witnesses did not observe — or at least did not mention — the gum bleeding.

      . Mrs. Camphor who taught at the Noland Village Early Childhood Center testified:
      “Q ... Did you at that time notice anything about her?
      A No, I didn’t, Jenny called me. She said, ‘Mrs. Camphor, come here, I would like to show you something.’ And, uh, we went to another room where there weren’t any other students and she pulled down her underwear and she showed me, uh, a bruise on her right hip.
      Q Showed you what on her right hip?
      A A whelp on her. It was a bruise mark on her right hip, and I then called our director who tried to get her attention again.”
      Mrs. Camphor testified that Jenny Jo told her that “her father had hit — beat her” — and although uncertain, thought Jenny had said with a belt.
      Linda K. Dean was Jenny Jo’s kindergarten teacher who was asked:
      “Q And, what did you observe about her?
      A She had a large bruise on her right hip.
      Q And, how was this brought to your attention?
      A The child openly said T want you to see something,’ and she pulled down her pants on the one side and showed me the bruise mark.”
      Jenny Jo apparently told M’s Dean that “her father had thrown her against the wall.”

      . In addition to Mrs. Camphor’s and M’s Dean’s testimony included regarding causation in n. 2, the director testified that Jenny Jo had told her
      “that ‘her daddy had spanked her’ ”, and later that Jenny said
      “he hit her with a brush.”
      The member of Parent Involvement Aid testified that Jenny
      “ ... said her father hit her with a belt and pushed or threw her against the wall.”

        The physician’s report stated on 11-15-74:
      “Child says father struck her on mouth and back with a brush.”
      On April 9,1975 the report indicates that:
      “Child states father whipped her with his belt.”
      It is obvious from a careful reading of the record that some of the witnesses confused the dates of the incidents and the observations at each incident. Upon retrial, if that occurs, the State should more carefully interrogate its witnesses.

      . The apparent illogic is based upon the fact that if an appellate court finds that the evidence is insufficient to sustain the conviction, it is in effect holding that the accused’s motion for a judgment of acquittal should have beep granted. If such a motion had been granted at trial, that disposition of the case would have concluded the matter and barred a reprosecution for the same offense. United States v. Ball, 163 U. S. 662, 671. The logical problem is posed by the fact that there is no essential difference between the granting of a motion for a judgment of acquittal and a finding upon appeal that the evidence adduced was insufficient to sustain the conviction.

      . See Bryan v. United States, 338 U. S. 552, which, since being relied upon in Gray, has been cited with approval in Forman v. United States, 361 U. S. 416 and United States v. Tateo, 377 U. S. 463, 465-467; see also Jeffers v. United States, U. S. (No. 75-1805, decided June 16, 1977).

      . Accordingly, the interests of justice would not require a new trial if the record affirmatively shows that the accused is not guilty of the crime charged. See LaFortez v. State, 11 Md. App. 598; Marston v. State, 9 Md. App. 360.

      . Parenthetically, it follows that if the case is remanded for the purpose of determining if a new trial is warranted, only “additional probative evidence” need be shown to the trial judge on remand to warrant retrial, and not that “the interests of justice appear to require it.” If the appellate court decides to remand for the purpose of the trial level determination, it should have already decided from the record that the interests of justice require a new trial. That which is left wanting is the more practical concern of the availability of sufficient additional probative evidence to justify the retrial. We will have decided the esoterics; the trial court’s concern is the practicality.

      . No competency question seems to have been raised by virtue of the child’s age as in Jackson, supra. Indeed, the contrary is indicated because the State objected to the hearsay testimony of Jenny Jo’s younger sister (4 years old), complaining that the child was “available to testify”.

      . Although we can not state with absolute certainty that this evidentiary deficit could not be cured by evidence of which we have no inkling, the record provides nothing from which we can assume the availability of any additional probative evidence which would enhance the probability of guilt. But we are not persuaded that we must therefore remand the case to the trial court so that such remote possibilities may be explored. The rule of Gray is, as we have indicated, ultimately a rule of fairness and reason, and we must deal with probabilities rather than every speculative possibility. The “interests of justice”, in its ordinary sense, do not require us in this case to protract the appellant’s apprehension.


author: Davidson, J.,

text:
    KATHLEEN A. GERMAN v. ROBERT N. GERMAN
    [No. 900,
    September Term, 1976.]

      Decided July 28, 1977.

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

      Barry H. Helfand, with whom were Helfand & Stein, P.A. on the brief, for appellant.

      William P. Turner, with whom were Parent, Kelly & Turner on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 21 March 1975, Robert N. German, appellee (husband), and Kathleen A. German, appellant (wife), entered into a voluntary separation and property settlement agreement. The agreement stipulated, among other things, that: 1) before divorce the husband would pay $270 per month “for the maintenance and support of the [two] minor children;” and 2) after divorce he would pay “$200 per month or $100 per child.” On 5 February 1976, in the Circuit Court for Montgomery County, the husband filed a bill of complaint seeking an absolute divorce on the ground of a voluntary separation, and asking that the separation agreement be incorporated and merged into the divorce decree. On 6 April 1976, the wife filed an answer averring that the support payments provided in the separation agreement were inadequate and seeking additional child support.

On 22 July 1976, the chancellor held a hearing on the issue of child support. He determined that the children required $500 a month for their support and that the parties had an equal obligation to provide that support. On 10 August 1976, he entered a decree which, among other things, granted the husband an absolute divorce and ordered him to pay child support of $125 per child per month. This appeal is from that order.

Here, the wife contends that the court erred in finding that $500 was sufficient to support the children. Additionally, she maintains it erred in ordering the support payments to be equally apportioned between the husband and the wife.

Because we are here reviewing both the chancellor’s determination on a question of law and his ultimate conclusion in making an award for child support, his decision should be disturbed only if he has erred or he clearly abused his discretion. In making awards for child support, there are no mechanical rules, rigid formulae or statutory mandates to be followed. The amount to be awarded is governed by the circumstances of the case. The factors which the chancellor should consider include the financial circumstances of the parties, their age and physical condition, their ability to work, the family’s station in life, and the expense of educating the children. The supporting parents’ financial ability and the needs of the children are the controlling factors.

I

Amount of Child Support

The chancellor properly considered all of the relevant factors in determining the amount of child support. There was evidence to show that while the husband’s net monthly income was $885.36, his monthly expenses were $806.21, while the wife's net monthly income was $633.65, and she had monthly expenses of $512.15. The wife estimated that $940.56 a month was required to support the two children in the manner to which they were accustomed. The chancellor, recognizing that the husband “doesn’t have that much money to contribute and it’s obvious that everybody is going to have to maybe reorganize some of their priorities,” found $500 per month “sufficient to raise two youngsters.” Under these circumstances, the chancellor did not abuse his discretion.

II

Apportionment of Child Support Payments

After determining that $500 was an appropriate amount for child support, the chancellor indicated in his oral opinion that the husband would be required to pay $250 per month. His only comment with respect to that apportionment was that the wife “has the equal obligation to provide for [the children].”

Parents must share the responsibility for the support of their children. This does not mean that the amount of child support charged against each parent is to be automatically divided equally between them. Rather, the amount of each parent’s obligation varies in accordance with their respective financial resources. For this reason, determinations as to the amount of that obligation cannot be based upon mechanical rules or rigid formulae but must be governed by the circumstances of each case.

Here the chancellor’s determination that the husband pay $250 was based solely upon his view that the wife had an equal obligation to provide support. It is apparent that he automatically divided the amount of child support equally between the parents and did not consider their respective financial resources. Under these circumstances, the chancellor clearly abused his discretion. Accordingly, we shall reverse and remand for further proceedings in which he shall make appropriate findings with respect to the parties’ financial ability to contribute to their children’s support and shall then determine the proper apportionment, if any, of the child support payments.

That portion of the decree awarding child support vacated.

AU other portions of the decree affirmed.

Case remanded for further proceedinds in accordance with this opinion.

Costs to be paid by appellee.

      . See Davis v. Davis, 280 Md. 119, 125-26, 372 A. 2d 231, 234 (1977).

      . Bowis v. Bowis, 259 Md. 41, 43-44, 267 A. 2d 84, 86 (1970); Rothschild v. Strauss, 257 Md. 396, 397, 263 A. 2d 511, 512 (1970); Pet v. Pet, 238 Md. 492, 496, 209 A. 2d 572, 574 (1965); Kramer v. Kramer, 26 Md. App. 620, 636, 339 A. 2d 328, 338-39 (1975).

      . Bowis, supra, 259 Md. at 43-44, 267 A. 2d at 86; Smith v. Smith, 227 Md. 355, 361, 176 A. 2d 862, 866 (1962); Kramer, supra, 26 Md. App. at 636, 339 A. 2d at 338-39.

      . Rothschild, supra, 257 Md. at 397, 263 A. 2d at 512; Wagshal v. Wagshal, 249 Md. 143, 147-48, 238 A. 2d 903, 906 (1968); Kramer, supra, 26 Md. App. at 636, 339 A. 2d at 338-39.

      . Rand v. Rand, 280 Md. 508, 517, 374 A. 2d 900, 905. See Maryland Annotated Code, art. 72A, § 1 (1957, 1970 Repl. Vol.); Maryland Constitution, Declaration of Rights, art. 46.


author: Powers, J.,

text:
    PRINCE GEORGE’S COUNTY, MARYLAND v. KARL G. FEISSNER
    [Nos. 754 and 975,
    September Term, 1976. J

      Decided September 7, 1977.

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

      R. Roger Drechsler and Karel C. Petraitis, Associate County Attorney for Prince George’s County, with whom were James C. Chapin, County Attorney, and Lord, Whip, Coughlan & Green on the brief, for appellants.

      Robert H. Levan, with whom were Feissner, Garrity, Levan & Schimel on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

These two appeals from judgments of the Circuit Court for Prince George’s County came to this Court on separate records from two different cases decided in that court. Both cases were filed by Karl G. Feissner, a member of the bar, appellee here, against Prince George’s County, Maryland, appellant here. Although each case asserts a separate cause of action, and despite some differences in the facts and in the procedures which led to the decisions below, both require consideration of the same sections of the Workmen’s Compensation Law and both are controlled by the same authorities.

The statutes involved are § 33 and § 57 of Code, Art. 101. The question, in short, is whether the attorney for a claimant in a workmen’s compensation case may collect a fee approved under § 57 from the claimant’s governmental employer, when the compensation award is discharged in full by § 33, because benefits furnished by the employer under a pension system are better than the benefits provided in the award.

The Seger Case — No. 975

On 5 December 1975 Feissner filed a suit at law in contract against Prince George’s County. The basis of the claim, as alleged in a special count, was an order of the Workmen’s Compensation Commission entered on 3 September 1975 in the claim of Samuel T. Seger v. Prince George’s County. The order was incorporated into the pleading by reference. It approved a petition by Feissner for attorney’s fees and medical fees, and directed the employer to pay to Feissner, as counsel for the claimant, the sum of $5,659.00. The order bore the Commission’s imprint that the fees were to be paid from the final weeks of compensation due in the case.

The County filed general issue pleas. A motion for summary judgment filed by Feissner and opposed by the County was heard and denied. After further proceedings, including interrogatories and answers, the case was set for non-jury trial on 3 September 1976. On that day the case was submitted to Judge James H. Taylor upon stipulated exhibits, which the parties agreed contained the pertinent facts, and upon arguments of counsel.

The exhibits included:

(a) A Commission order dated 3 March 1975 finding Seger permanently totally disabled, and ordering the employer to pay compensation at the rate of $96.80 weekly, beginning 1 August 1973, not to exceed the sum of $45,000.00; subject to the provisions of the Workmen’s Compensation Law.

(b) Feissner’s petition to the Commission in July 1975 for attorney’s fees and medical fees.

(c) A Commission order dated. 3 September 1975 approving the petition and directing the employer to pay Feissner $5,659.00.

(d) The County’s record of compensation paid. Lump sum payments were made to Seger on 2 May 1975 in the amount of $8,905.60, bringing to date the payments accrued under the order. The record further shows that Seger was paid $193.60 every two weeks through 15 June 1976. The total paid to Seger under the award was $14,520.00, leaving $30,480.00 of the $45,000.00 award unpaid.

(e) A Commission order dated 2 June 1976. Exercising its continuing jurisdiction, the Commission made findings on several issues. It found 1) That Art. 101, § 33 was applicable in this case, 2) That the pension paid by the employer was greater than the compensation benefits, and 3) That as to the employer’s responsibility for payment of the attorney’s fee, since there were no monies to be paid to the claimant, the claim for attorney’s fee was denied.

(f) Docket entries in an appeal to the circuit court originally taken by the County from the Commission’s award of 3 March 1975, which appeal the County later dismissed on 18 November 1975.

After arguments of counsel, the judge ruled. He noted that at the time of the Commission’s award of 3 March 1975 (and the fee order of 3 September 1975) there was no Article 101, Section 33 issue before the Commission. He said, in part:

“An award had been made earlier by the Commission, monies had been paid to the claimant and yet this attorney whose work had gone into the case had. not received any monies, and according to the order was not entitled to receive any until the final weeks of payment. Well, I think that the lien attached to the right of collection of it, it just was not there at the time. Now, the Commissioner] says it’s under my continuing jurisdiction and I can come back and modify this and the Commission did issue an order to modify the earlier order. * * * They are saying, in effect, that we made an award, but because of Section 33 setoff, there was no money and inasmuch as there was no money the lien could not attach. Well, the fact is there was some money, because somebody paid the man $15,000. Now, whether or not they should have paid him is another thing. Now it seems fair, he’s going to get $15,000 plus his pension, it doesn’t seem fair then you say they ought to go against Seger. The lien as far as I am concerned, or my view is the lien attached upon the issuance of the original order in this case, in so long as there was money it ought to have been reserved for the payment of the attorney’s fees. It wasn’t done and when it was determined that the setoff was greater than the — the setoff was greater than the amount available to Mr. Seger, then his payments were terminated as far as the award of the Commission was concerned. But it still leaves the attorney in limbo, and I think we ought to construe that the lien attached and the right to the money was there, but the right to collect it wasn’t there at the time. And once a lien attached, the money ought to have been held for the payment of the award, so I think we’ll allow counsel fees in the amount of the original order by the Commission, by the order of the 3rd of September 1975.”

It was an error of law for the court to hold that Prince George’s County was liable to pay the attorney’s fee to Feissner for his representation of Seger. We must reverse.

The McCallum Case — No. 754

On 15 April 1976 Feissner filed a second suit in contract in the circuit court against Prince George’s County, Maryland, a body corporate. The declaration contained several common counts, which we need not notice further, and a special count. The basis of the cause of action asserted in the special count was an order of the Workmen’s Compensation Commission, entered on 2 March 1976, attached and incorporated into the pleading by reference. The order, on a caption showing William D. McCallum as claimant and the County as employer, said:

“ORDERED, That the Petition for Attorney’s Fees be, and the same hereby is, granted, and it is further
ORDERED, That Karl G. Feissner, Attorney for the .Claimant be awarded counsel fees in the sum of Nine Thousand [sic] Dollars ($6,100.00).”

The declaration alleged that the County had failed and refused to honor the order, and prayed for judgment for $6,100.00, with interest and costs.

With the declaration Feissner filed a motion for summary judgment, saying that there was no genuine dispute as to any material fact, and that he was entitled to judgment as a matter of law. The motion was supported by his affidavit, in which he said that he represented McCallum in three claims before the Workmen’s Compensation Commission; that as a result of those proceedings an order was entered in favor of McCallum for benefits; and that an order was entered approving the petition for attorney’s fees. The affidavit went on to say that notwithstanding the entry of the order for attorney’s fees, the County had failed and refused to pay the amount ordered.

No other evidentiary material was submitted in support of the motion for summary judgment. Maryland Rule 610. No statement of points or citation of authorities was filed. Maryland Rule 319.

Prince George’s County filed general issue pleas to the declaration and filed an unsworn pleading, signed only by counsel, entitled “Answer to Motion for Summary Judgment”. Attached to that answer was a copy of the Commission’s order of 5 February 1976, directing Prince George’s County, employer and self-insurer, to pay compensation to McCallum.

The order recites that the hearing had been held on two issues, one of which was whether the employer was entitled to credit for payments made from disability retirement against any compensation awarded in the case, in accordance with the provisions of Article 101, § 33. The Commission made a finding on that issue that the employer was entitled to the credit. Also in the order the Commission found the claimant to be permanently totally disabled and awarded compensation for permanent total disability at the rate of $96.80 weekly, beginning April 1, 1974, not to exceed the sum of $45,000.00.

The County’s answer to the motion for summary judgment amounted in substance to a statement of points in opposition, but included no citation of authorities. The significant points were that the County was not the correct defendant; that the Commission’s award of 5 February 1976 recognized the § 33 set-off; and that the Commission’s order awarding the attorney’s fee was not an award of compensation and did not call upon the County as employer and self-insurer to pay any funds to or on behalf of the claimant.

On this state of the record the motion for summary judgment was argued before Judge James H. Taylor on 9 July 1976. It does not appear that anything else in the nature of evidence was placed before the court. Arguments of counsel were not recorded. Judge Taylor granted the motion and the clerk entered judgment in favor of Feissner against Prince George’s County in the amount of $6,100.00, with interest from date and costs.

The court erred in granting summary judgment. It was not necessary for the County to supply evidence to show a genuine dispute of material facts. The undisputed facts in the pleadings, the affidavit, and the Commission orders before the court, failed as a matter of law to state a cause of action. We must reverse the judgment.

The Law — Attorneys’ Fees

It is desirable to understand the place of attorneys’ fees in our compensation law. Ordinarily, fees are a matter between attorney and client. In workmen’s compensation' cases in Maryland, the State exercises a limited control, expressed in Art. 101, § 57, which says, in pertinent part:

“* * * No person shall charge or collect any compensation for legal services in connection with any claims arising under this article, * * * unless the same be approved by the Commission. When so approved, such fee or claims shall become a lien upon the compensation awarded, but shall be paid therefrom only in the manner fixed by the Commission. Upon application of any party in interest, the Commission shall have full power to hear and determine any and all questions which may arise concerning legal services rendered in connection with any claim under this article * * *. Orders of the Commission regulating payments * * * for legal services may be enforced in the courts of this State, or may be appealed from in like manner as awards for compensation under this article.”

Rule 22 of the Commission’s Rules of Procedure provides for the filing of applications for allowance of compensation for legal services. The Rule contains this provision:

“The filing of a petition for a fee with the Commission and service of a copy on the employer and insurer, or employer-self-insurer, or the State Accident Fund, as the case may be, shall be notice to said employer and insurer or employer, self-insurer, or the State Accident Fund, to reserve in escrow the amount of fee requested in such petition until such time as the amount of the fee is determined by the Commission.”

Under the provision of § 57 that a fee, when approved, “shall be paid [from the compensation awarded] only in the manner fixed by the Commission”, it appears to be a general, if not universal, practice of the Commission to provide in a fee order that the fees are to be paid from the final weeks of compensation due in this case.

Two decisions of the Court of Appeals shed light on the question. In Hoffman v. Liberty Mutual, 232 Md. 51, 191 A. 2d 575 (1963), the insurer overpaid an award (as reduced on appeal), and then claimed that there were no funds for payment of an attorney’s fee. The fee had become a lien when it was ordered, and the insurer was required to hold enough funds in escrow to discharge the lien. The insurer in fact did so, and recognized the lien by stopping payments to the claimant when they reached a sum which, when added to the attorney’s fee and doctors’ fees, would equal the total original award.

The Court held that after the lien attached, and funds to pay it were held in escrow, the lien was not discharged by the reduction, on appeal, of the total compensation payable. The Court said, at 56-57:

“The appellee cannot set aside in escrow the original fee, prosecute an appeal resulting in a lower award, and then take the position that the attorney’s lien does not apply. This would defeat the purpose of the law and the rule adopted pursuant thereto. The fact that appellee was compelled to make payments during the pendency of the appeal was not the result of appellant’s action, but of the law, for this has been established since Branch v. Indemnity Ins. Co. (1929), 156 Md. 482, 144 Atl. 696. But for the appellant’s lien the appellee would have been compelled to pay out the full amount of the first award before the appeal was determined. Appellee is estopped from claiming there is no fund from which the lien can be satisfied. The lien of the fee attached at the time of the Commission’s original order * * *. We hold that the lien was still in effect and that appellee is deemed to be holding in escrow the amount of appellant’s fee. Appellee instituted the appeal and it can not be allowed to say now that by being successful in reducing the award, appellant’s fee is extinguished when the lien was in effect all along.”

In Chanticleer Skyline Room v. Greer, 271 Md. 693, 319 A. 2d 802 (1974) the Court of Appeals affirmed the judgment of this Court in the same case, reported at 19 Md. App. 100, 309 A. 2d 638 (1973). The issue was whether the payment of an approved attorney’s fee, for which a lien had attached and for which the funds had been held in escrow by the insurer, was a payment of compensation to the employee for the purpose of the five year bar against the continuing jurisdiction of the Commission to make modifications or changes in its findings or orders, as authorized by Art. 101, § 40(c).

In that case the original injury was sustained in 1960, and it appears that the last payment to the claimant was in 1966, but because of the pendency of an appeal, an attorney’s fee ordered in March 1966 was not paid. The appeal was long dormant, and was dismissed in March 1970. In June 1970 the insurer paid the attorney’s fee. In December 1971 the claimant applied for an additional award. The Commission held that the application was barred by the five year rule. The Superior Court of Baltimore City, this Court, and the Court of Appeals all held to the contrary. The Court of Appeals said, at 700-01:

“Clearly § 57 makes the payment of an attorney’s fee both a ‘money allowance’ and one which is ‘provided for in this article.’ Because no one here disputes these obvious answers, the focal point of the controversy has always been whether the attorney’s fee allowed under § 57 is compensation payable to the employee. The petitioners contend that it is not. Instead, they allege that the Act creates a liability on their part for a fee payable to the claimant’s counsel that is independent of the compensation which is payable to the employee. However, since the section states in clear and unambiguous language that the approved fee ‘shall become a lien upon the compensation awarded’ the employee, we think that this section serves as a complete answer to this question as well. The code does not mandate, as the petitioners contend, that there be two separate awards payable by the employer and its insurer, one to the attorney, and another to the employee. Instead, a single award of compensation is made, that which is for the benefit of the employee, and the statute then merely gives an attorney a lien upon this compensation award to the extent of his fee as approved by the Commission. This does not change the underlying relationship which exists among the petitioners, the respondent, and her attorney. Nor is the ownership of the compensation award, which is a chose in action, destroyed simply because a statutory lien has been imposed upon it. Like any other lien, this lien does not create an ownership interest in the attorney, but merely places a charge upon the fund as security for the debt which is owed to the attorney by his client. Westinghouse v. State Tax Comm., 206 Md. 392, 402, 111 A. 2d 661 (1955). The fact that no one can gain priority over this statutory attorney’s lien or that the funds which have been secured for his benefit cannot be applied to reimburse an insurer for an overpayment to a claimant, Hoffman, swpra, does not alter this in any way.”

Several principles concerning attorneys’ fees in workmen’s compensation cases emerge from the statutes, Rule, and decisions which we have discussed. Some of them are:

a. The fee is the obligation of the claimant to his attorney.

b. No fee may be charged or collected unless approved by the Commission, upon petition and order.

c. The filing of a fee petition, with service of a copy upon the employer and insurer, requires them to reserve in escrow a portion of the award payable to the claimant equal to the fee requested.

d. When approved by an order of the Commission, the fee becomes a lien upon the compensation awarded to the ■ claimant, securing the debt owed by the claimant to his attorney. No one may gain priority over this lien, not even the employer and insurer. The preceding escrow is then extinguished.

e. An approved fee shall be paid from the compensation awarded, and only in the manner fixed by the Commission.

f. A fee order may be appealed in like manner as awards of compensation, or may be enforced in the courts independently of an appeal.

g. The continuing jurisdiction of the Commission over each case to make modifications or changes with respect to former findings or orders^ under Art. 101, § 40 (c), applies to orders under Art. 101, § 57, relating to fees.

h. The Commission has power to adjudicate the propriety and reasonableness of attorneys’ fees, and the manner of their payment from the compensation awarded.

i. The Commission does not have power to adjudicate liability for attorneys’ fees, or to impose such liability upon any party. It is by operation of the statute that the Commission’s order approving a fee brings into being a lien upon the compensation awarded. Beyond this, the Commission has no power to determine the source of payment.

j. An employer and insurer are obligated to pay an approved attorney’s fee only out of compensation awarded to the claimant. They have no obligation to pay the fee of a claimant’s attorney out of their own funds, unless it be for failure to respect a lien lawfully attached.

The Law — Discharge of Compensation Benefit Liability By Governmental Pension Benefits

Since 28 May 1971, Art. 101, § 33 [later divided into Subsections, with minor style changes], has provided, in part:

“Whenever by statute, charter, ordinances, resolution, regulation or policy adopted thereunder, whether as part of a pension system or otherwise, any benefit or benefits are furnished employees of [the State, any agency thereof, or any other political subdivision] * * *, the benefit or benefits when furnished by the employer shall satisfy and discharge pro tanto or in full as the case may be, the liability or obligation of the employer for any benefit under this article. * * *
“The Commission shall have full power to determine whether any benefit provided by the employer is equal to or better than any benefit provided for in this article, and to render an award against the employers to furnish additional benefit or benefits to make up the difference between the benefit furnished by the employers and the benefits required by this article as the case may be. This section shall also be subject to the continuing powers and jurisdiction of the Commission provided for in this article.”

The quoted provisions have been construed and applied by this Court in two reported cases, Nooe v. City of Baltimore, 28 Md. App. 348, 345 A. 2d 134 (1975), cert. den. 276 Md. 748 (1976); and Mazor v. Dep’t. of Correction, 30 Md. App. 394, 352 A. 2d 918 (1976), and in one case by the Court of Appeals, affirming this Court, in Mazor v. State, Dep’t. of Correction, 279 Md. 355, 369 A. 2d 82 (1977).

In Nooe the claimant, a patrolman in the Baltimore City Police Department, was injured in the course of his employment. The Commission found that he sustained a permanent partial disability of 50%, but barred compensation benefits because his pension benefits were concededly greater. On appeal by Nooe, the Baltimore City Court affirmed. We affirmed the judgment of that court. We said, through Chief Judge Orth, at 354-55:

“The question is, therefore, whether, under the circumstances, § 33 of art. 101 was applicable, so that the payment to Nooe of the pension benefits discharged in full the obligation of the Mayor and City Council of Baltimore with respect to the workmen’s compensation benefits.
“We point out what is self-evident from the record before us. Within the contemplation of § 33, the Mayor and City Council of Baltimore was an employer and Nooe was its employee. Through a Retirement System duly established by the enactment of an ordinance, Nooe was furnished benefits by the Mayor and City Council of Baltimore as part of a pension system, and these benefits were furnished him because he was disabled due to an accidental injury arising out of and in the course of his employment so that ordinarily he was also entitled to workmen’s compensation benefits. Code, art. 101, § 21 (b) (4). As the pension benefits were more than the workmen’s compensation benefits, the liability and obligation of the Mayor and City Council for the workmen’s compensation benefits were satisfied and discharged * * *.”

We expressed our holding, at 356:

“We hold, as did the Workmen’s Compensation Commission and the court below, that the payments to Nooe of the pension satisfied and discharged in full the liability or obligation of the Mayor and City Council of Baltimore for any benefit under the Workmen’s Compensation law.”

A new question of statutory construction was raised in the Mazor case. Mazor was a penitentiary guard, injured in an inmate uprising. The Commission found that he sustained a permanent partial disability of 60%. It found also that Mazor was receiving disability pension benefits greater than the benefits under the compensation law, but held that the discharge of liability under Art. 101, § 33, applied only to the employer, and not to the insurer.

The circuit court, this Court, and the Court of Appeals all held that the discharge of liability for compensation benefits applied to both the employer and the insurer. Mazor also contended that the provisions of § 33 infringed upon his constitutional rights in three respects, in that the statute, (a) deprived him of property without just compensation, (b) deprived him of equal protection of the laws because the classification of public employees differently from private employees was arbitrarily discriminatory, and (c) impaired the State’s contractual obligation to him under the pension plan.

The Court of Appeals, fully discussing each of the contentions, held, as this Court had, that “the statute infringes on none of his rights and is thus constitutional.” At 364.

The Law As Applied To The Facts Of These Cases

It should be made clear that it is the statute, not the Commission, which discharges “the liability or obligation of the employer for any benefit” under the compensation law. If it is requested to do so, the Commission has the power to determine the factual question of whether a pension benefit is equal to or better than the compensation benefit. The law wisely does not require that such a determination be made by the Commission, for in most cases there could be no dispute about that simple mathematical fact. There was no dispute in Nooe, nor in Mazor, nor is it disputed in the present cases, that the pension benefits in fact exceed the compensation benefits.

When that fact exists — when pension benefits exceed compensation benefits — the law tells us, as we said in Nooe, “that the payment to [the employee] of the pension satisfied and discharged in full the liability or obligation of the [employer] for any benefit under the Workmen’s Compensation law.”

We include a caveat. When we have said, and when we say now, that the compensation liability is discharged, we do so with relation to the facts and the issues involved in the cases before us. The statement necessarily assumes the continuing existence of present circumstances. A subsequent change in either kind of benefits could well require reconsideration of the extent of the statutory discharge of compensation liability.

It should also be made clear that a claim for attorney’s fee, although approved by the Commission, has no existence as far as the employer is concerned, independently of the compensation award. To emphasize, we repeat a quotation from the opinion written by Judge Digges for the Court of Appeals in Chanticleer, supra:

“The code does not mandate, as the petitioners contend, that there be two separate awards payable by the employer and its insurer, one to the attorney, and another to the employee. Instead, a single award of compensation is made, that which is for the benefit of the employee, and the statute then merely gives an attorney a lien upon this compensation award to the extent of his fee as approved by the Commission.”

At the time of the award of compensation in each of the present cases, the liability of Prince George’s County to pay the award was simultaneously discharged by the provisions of § 33, subject only to a later change in one or the other of the benefits. This is so regardless of whether or not the Commission was asked to find as a fact that the pension benefits exceeded the compensation benefits.

When the Commission passed its orders approving the attorney’s fees, the County had no compensation liability to either of the claimants to which a lien could attach. Therefore, there was no lien. As we have pointed out, the County had no obligation to pay the fee out of its own funds, unless it ignored a valid lien.

In the Seger case, the County paid some $14,520.00 to the claimant before it invoked the § 33 discharge of liability. Since it had no legal liability to make those payments, it must be said that the County made them as a volunteer. Such generosity may be commendable, but it does not impose upon the County an additional obligation for which it was not legally liable, and which it did not voluntarily assume.

The County was not required to pursue appeals to the circuit court from the Commission’s fee orders, as a condition of raising the § 33 discharge. It has never questioned the amounts of the fees, or the right of the attorney to be paid those fees from the funds of his clients. It says only that it holds no funds of those clients, and that it owes no direct liability to the attorney. The County was entitled to raise those defenses in the direct court proceedings taken as authorized by § 57.

In No. 754, the McCallum case, we shall reverse the summary judgment entered in the circuit court, an action which leaves the case open for further proceedings on remand. The trial judge may deem it appropriate to “render judgment for the opposing party even though he has not filed a cross-motion for summary judgment.” Maryland Rule 610 d. 1.

In No. 975, the Seger case, the judgment was on the merits, albeit on facts submitted by stipulation. Since the judgment for Feissner was in error, we shall enter final judgment for the County.

In No. 75k, judgment reversed.

Case remanded for farther proceedings, in accordance ivith this opinion.

Appellee to pay costs.

In No. 975, judgment reversed.

Judgment entered in favor of Prince George’s County, Maryland.

Appellee to pay costs.

      . Four days later, Feissner filed a paper with the clerk, and requested that it be entered as an exhibit (to what, is not specified). The paper appears to be a copy of an order entered by the Commission on 2 July 1976 ordering that the County Commissioners for Prince George’s County pay unto Karl G. Feissner, attorney for the claimant, the attorney’s fee in the amount of $6,100.00 as ordered by the Commission on March 2, 1976; subject to the provisions of the Workmen’s Compensation Law of Maryland. We do not accept that order as being part of the record before the court when summary judgment was entered.
      We note also that on 21 July 1976 Judge Taylor signed and filed a written order granting the motion for summary judgment and ordering the defendant to pay to the plaintiff the sum of $6,100.00, with interest and costs. It is not suggested to us that the unusual wording of that order, purporting to order a defendant to pay a judgment at law entered against it, has any significance. The appeal was timely as to both orders.

      . Such a provision does not affect the liability to pay, one way or the other. We mention it because one of the County’s arguments in the Seger case is that the final weeks never arrived. If a lien attaches for an approved fee, it attaches to the whole award payable. Payment from “the final weeks of compensation” is merely an accounting device to authorize current payment of the fee without interrupting current payments of compensation to the claimant.

      . In both the Nooe and Mazor cases contentions that the discharge of _ liability to pay compensation awards applied only in death cases were rejected. That contention is not made in the cases before us.