author: Thompson, J.,

text:
    JOSEPH F. TRIONFO & SONS, INC. v. BOARD OF EDUCATION OF HARFORD COUNTY
    [No. 358,
    September Term, 1978.]

      Decided January 10, 1979.

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

      S. Leonard Rottman, with whom were Tabor & Rottman on the brief, for appellant.

      William O. Carr for appellee.
   Thompson, J.,

delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court for Harford County (Higinbothom, J.) granting a motion for summary judgment. Joseph F. Trionfo & Sons, Inc., appellant, urges us to reverse the decision below on the grounds that there are genuine disputes of material facts, the resolution of which demand a trial, and that appellee, Board of Education of Harford County, was not entitled to a judgment as a matter of law.

In December of 1973, appellee invited bids for the construction of the North Harford Middle School. Various drawings, specifications and other documents relating to the project were made available to interested contractors for the purpose of computing their bids. Appellant, a general contractor, submitted the low bid of $6,695,200.00 and was awarded the contract. During the course of site clearing and excavation, appellant’s subcontractor encountered a substantial quantity of rocks in the subsurface. The subcontractor claimed, and recovered from appellant, extra compensation for the unanticipated difficulty in excavating this material from the site. Appellant then brought this action against appellee claiming compensation for the additional expenses allegedly due to inaccurate and misleading representations made by appellee concerning the nature of the subsurface conditions on the site.

The contract specifications contained the following provisions relative to excavation work and subsurface conditions:

“BASIS OF CONTRACT
Excavation work under this contract is unclassified, and includes (without limitation thereto) excavation and removal of all soil, shale, rock, boulders, existing foundations, fill, and every kind of subsurface condition encountered in contract area.
No extra or additional compensation for excavation will be paid under this contract for work included in .Bid Proposal at time of bidding.
Subsurface Soil Data: Data concerning subsurface materials or conditions which is based upon soundings, test pits, or test borings, has been obtained by Architect for his own use in designing project. Its accuracy or completeness is not guaranteed by Owner or Architect and in no event is it to be considered as part of contract plans or specifications. Contractor must assume all responsibility in excavating for this project and shall not rely on subsurface information obtained from Architect, or indirectly from Owner. Bidders shall make their own investigation of existing subsurface conditions; neither Owner or Architect will be responsible in any way for additional compensation for excavation work performed under the Contract due to Contractor’s assumptions based on sub-soil data prepared solely for Architect’s use.”

Test boring data was not provided with or among the specifications or other contract documents, but appellee did make the data available for review by bidding contractors upon written request. Such requests were required to be in the following form:

“Please forward copies of test boring data sheets for the subject project. The contracting firm herein named releases the Owner and Architect from any responsibility or obligation as to its accuracy or completeness or for any additional compensation for work performed under the contract due to assumptions based on use of such furnished information.”

Appellant obtained the test boring data by making a request in the required form.

Appellant’s essential contention is that it was entitled to rely on the subsurface soil data furnished by appellee, despite the specific release which appellant executed as a prerequisite to obtaining the information and despite the contract provisions excluding such information from the specifications and disclaiming any guarantee of its accuracy. Finding no Maryland authority specifically controlling this situation, appellant turns to cases in other jurisdictions which it contends represent a majority view that general exculpatory clauses disclaiming responsibility for the accuracy of subsurface soil data are of no effect when the positive representations made by the landowner are obviously intended to be used by bidding contractors for formulating their bids. A careful review of the cases cited by appellant reveals that the factual situations involved were different from that presented here, and that the principles there relied upon are not applicable to the instant case.

Appellant first cites Hollerbach v. United States, 233 U. S. 165, 34 S. Ct. 553, 58 L. Ed. 898 (1914), as the leading case on this subject. The factual situation in Hollerbach, however, is easily distinguishable from that present here. The case arose out of a contract for the repair of a dam. The specifications made a positive representation as to the nature of the material behind the dam. In another portion of the contract the following exculpatory clause was found.

“20. It is understood and agreed that the quantities given are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders, or their authorized agents, are expected to examine the maps and drawings in this office, which are open to their inspection, to visit the locality of the work, and to make their own estimates of the facilities and difficulties attending the execution of the proposed contract, including local conditions, uncertainty or weather, and all other contingencies.” 233 U. S. at 167.

The Court refused to hold that this general exculpatory language was sufficient to overcome the specific and .unequivocal representation concerning the material behind the dam.

“We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specifications furnished by the Government as a basis of the contract left in no doubt. If the Government wished to leave the matter open to the independent investigation of the claimants it might easily have omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.” 233 U. S. at 172. (Emphasis added.)

In the instant case the exculpatory and disclaimer clauses are specifically directed at the subsurface soil conditions. In addition, the nature of the release required to be executed before obtaining the test boring data in this case makes it clear that appellees did not expect the bidding contractors to rely on any of the information contained therein. Under these circumstances we do not find Hollerbach applicable.

Appellant next cites Robert E. McKee, Inc. v. City of Atlanta, 414 F. Supp. 957 (N.D. Ga. 1976). The Court in that case recognized that the owner does not become an insurer merely by providing certain information to bidders. There, the results of test borings were gratuitously provided to bidders along with the specifications and other contract documents. The contract provided that the owner would not be responsible for the accuracy of the test results or for any conclusions drawn from them. It further provided that the test boring data was not to be considered a part of the contract. The court held that the contractor could recover for misrepresentation if two criteria were met. First, the bidder must not have been reasonably able to discover the true facts for himself. The Court pointed out in this regard that the appropriateness of a site inspection by the bidder depends on the facts of each case and the central question in each case is whether the bidder placed justified reliance on data provided by the owner. Even if we were to apply this criterion in the present case its application would be of no avail to appellant.' It is quite clear from the contract documents and the release executed by appellant that the bidders were not justified in relying on the test boring data. Appellant contends in its brief that because the time span between the date when bidders could first obtain drawings, specifications and other documents until the bid opening date was only three weeks, they were precluded from obtaining independent test boring data. There is no indication in appellant’s affidavit in opposition to the motion for summary judgment that this was true. Neither the affidavit nor anything else in the record indicates that independent test boring data could not have been obtained within that period.

Assuming that three weeks was an insufficient time within which to make the necessary tests, the contract documents clearly prohibited reliance on any of the subsurface soil information obtained by the appellee for its own use. Here, unlike McKee, supra, no such information was gratuitously supplied to contract bidders but, on the contrary, it was made available to them only upon the execution of an express written agreement by the contractor to release the appellee from any responsibility for the accuracy or completeness of the information. To hold that appellant might have been justified in relying on the test boring data simply because it had insufficient time within which to conduct its own tests would require us to ignore not only all the language in the contract documents disallowing any such reliance but also the clear import of the release executed by the appellant. Instead of ignoring the contract documents and the terms of the release, appellant, if it wished to submit a bid without conducting its own tests, could have adjusted its bid to cover the risk which any reasonable bidder would have known it was encountering.

In Al Johnson Construction Co. v. Missouri Pacific Railroad Co., 426 F. Supp. 639 (E.D. Ark. 1976), also relied upon by appellant, there was proof sufficient to convince the trial judge that the owner did not really expect bidders to make their own subsurface tests and did expect them to rely on its test data. The contract in that case involved a “changed conditions” clause providing for an equitable adjustment in compensation where actual conditions were discovered to be different from those depicted in the specifications. The Court stated that “the presence of the changed conditions clause works to reassure bidders that they may confidently rely on the [test boringl logs and need not include a contingency element in their bids.” 426 F. Supp. at 647. The contingency element referred to by the Court was an element of costs, likely to be included in bids, generally representing the expense of independent test borings or the risk of embarking on a project without being able to rely on the owner’s subsurface data.

Appellant also relies on Condon-Cunningham, Inc. v. Day, 22 Ohio Misc. 71, 258 N.E.2d 264 (Cuyahoga County Ct. C.P. 1969). There, elaborate soil and subsurface investigation reports were made available to contract bidders as a source of supplementary information and not as part of the contract documents. The Court held that the contractor had a right to rely on this information regardless of whether it constituted part of the contract documents. It should be noted that case involved no disclaimers, exculpatory clauses or releases from liability such as exist in the present case. The Court in Condon, as have other courts, discussed the economic efficiency of permitting contractors to rely on test boring data furnished by the owner. It is said to be less expensive for the owner to supply one set of such data rather than for each contractor to go to the expense of making independent tests not knowing whether it would be awarded the contract. It has been pointed out that requiring each and every contractor to incur such an expense or to assume the risk of meeting unexpected subsurface conditions, would unnecessarily increase the bids in general and, in the end, create greater expenses for the owner. Economic efficiency, however, does not justify disregarding the clear terms of a contract, such as that involved here, which has been entered into freely and understanding^ by competent parties. See, e.g., Automatic Retailers of America, Inc. v. Evans Cigarette Service Co., 269 Md. 101, 304 A. 2d 581 (1973); Compania De Astral, S.A. v. Boston Metals Co., 205 Md. 237, 107 A. 2d 357 (1954); cert. denied, 348 U. S. 943, 75 S. Ct. 365, 99 L. Ed. 738 (1955); Great United Realty Co., Inc. v. Lewis, 203 Md. 442, 101 A. 2d 881 (1954).

The remaining cases cited by appellant are likewise distinguishable on their facts. See Fattore Co., Inc. v. Metropolitan Sewerage Commission of the County of Milwaukee, 505 F. 2d 1 (7th Cir. 1974) (Broad exculpatory clause not permitted to render changed condition clause meaningless.); Woodcrest Construction Co., Inc. v. United States, 408 F. 2d 406 (Court of Claims 1969), cert. denied, 398 U. S. 958, 90 S. Ct. 2164 (1970) (Government core boring logs in bidding documents failed to indicate ground water shown by borings.); Robert E. Lee & Co., Inc. v. Commission of Public Works of the City of Greenville, 248 S. C. 84, 149 S.E.2d 55 (1966) (Exculpatory clause did not exonerate owner who showed subsurface conditions on plans but excluded unfavorable conditions revealed by test borings.); Metropolitan Sewerage Commission v. R. W. Construction, Inc., 72 Wis. 2d 365, 241 N.W.2d 371 (1976) (Where plans for sewer construction purported to show subsurface condition but did not indicate unfavorable conditions revealed by test borings, court refused to abrogate changed conditions clause on basis of exculpatory provision.).

As has been mentioned above, many of the cases relied on by appellant involve contracts which contain “changed conditions” clauses. Such clauses have been recognized as useful devices for avoiding both unnecessary losses and windfall profits. By assuring that a contractor will be compensated for unanticipated conditions, such clauses make it unnecessary for the contractor to inflate his bid to cover the risk of encountering unforeseen difficulties. Owners benefit by being spared the unnecessary expense of meeting this risk factor. Because changed conditions clauses have this laudatory effect courts have been understandably reluctant to abrogate them by giving effect to exculpatory clauses. While such devices make economic sense, there is no requirement that public contracts employ them. The parties here embarked upon this project without the benefit of such a provision. The specifications clearly provided that “no extra or additional compensation for excavation will be paid under this contract for work included in bid proposal at time of bidding.”

Aside from the absence of a changed conditions clause, this case has one other crucial aspect which distinguishes it from those cited by appellant as well as from all other such cases which our research has revealed. Here the alleged misinformation, upon which appellant claims to have relied, was made available to appellant only upon the execution of an express written release. In exchange for the privilege of obtaining the subsurface soil data, compiled by appellee for its own use, appellant expressly released appellee from any responsibility for the accuracy of the information and from any liability for work which was unanticipated due to assumptions based on that information. There is no indication that the release is illegal or contrary to any public policy. Nor is there any suggestion that it is the product of fraud, mistake, undue influence, overreaching or the like. It represents an understanding between the parties which we cannot ignore and which is entitled to be enforced according to its terms. See Winterstein v. Wilcom, 16 Md. App. 130, 134, 293 A. 2d 821, cert. denied, 266 Md. 744 (1972).

We do not hold that an exculpatory clause disclaiming any responsibility for the accuracy of information provided by an owner to a contract bidder will always relieve such an owner from the consequences of a misrepresentation. As in any case based on a theory of misrepresentation, in order to recover appellant must establish a right to rely on the information furnished by the owner. We hold as a matter of law that under the circumstances of this case no such reliance was warranted. This conclusion is based on the following undisputed facts:

a) The excavation work under the contract was unclassified and included the excavation, without limitation, of every kind of subsurface material encountered in the contract area;
b) There was no representation in the contract documents as to subsoil conditions;
c) The test boring data obtained by the architect and owner for their own use was specifically excluded from the contract documents;
d) The test boring data could be obtained by contract bidders only in exchange for a release of the owner from any responsibility or obligation as to its accuracy or completeness or for any additional compensation for work performed under the contract due to assumptions based on the use of such data;
e) The contract documents specified that the contractor would assume all responsibility for the excavation of the project;
f) The specifications further provided that the contractor was not to rely on subsurface information obtained from the architect or the owner and that neither the owner nor the architect would be responsible in any way for additional compensation for excavation work performed under the contract due to the contractor’s assumptions based on subsoil data.

In addition, there is no allegation or indication in the record that this contract was not entered into freely, voluntarily, and .understanding^ by both parties. To hold under these .circumstances that appellant is entitled to recover would be to hold that the owner furnishing test results merely as an accommodation to bidders is an insurer of their accuracy and would require us to ignore the explicit language in the contract documents and in the release executed by appellant as a prerequisite to obtaining the test boring data. As pointed out by the Supreme Court of California in Wunderlich v. State, 65 Cal. 2d 777, 56 Cal. Rptr. 473, 423 P. 2d 545 (1967), such a result is not called for even under cases such as Hollerbach, supra and those which have followed it. Such cases “do not stand for the proposition that the government may never effectively disclaim the intention to warrant conditions.” 423 P. 2d at 550.

Our conclusion that appellant had no right to rely on the test boring data renders its contention that there is an actual dispute as to the accuracy of that data immaterial. Nevertheless, we note that appellant’s allegation in its affidavit that the test boring data sheets were inaccurate and misleading is insufficient to raise a genuine dispute on that issue. General allegations which do not show facts in detail and with precision are insufficient to prevent the entry of a summary judgment. Hurt v. Stillman & Dolan, Inc., 35 Md. App. 644, 371 A. 2d 1137 (1977). The pertinent allegation in the affidavit is as follows:

“11. Based on the test boring data sheets provided by the’ Defendant, Plaintiff had not anticipated encountering substantial amounts of rock in the subsurface at the site, and the fact that substantial amounts of rocks were encountered was a surprise to the Plaintiff. Because the test boring data sheets were inaccurate and misleading in failing to disclose the substantial amount of rocks in the subsurface at the site, Plaintiff materially underestimated the cost of construction for the Project and suffered damage and loss on account thereof.” (Emphasis added.)

There is no allegation here that the results of the tests themselves were misrepresented or that the test did not accurately reflect the soil conditions at the points where they were taken. In the absence of such specific allegations, appellant’s statement that “the test boring data sheets were inaccurate and misleading in failing to disclose the substantial amount of rocks in the subsurface at the site” is merely an unsupported conclusion.

Appellant finally contends that the motion for summary judgment should have been denied because of appellee’s failure to submit a statement of points and citation of main authorities with the motion as required by Md. Rule 319. There is no indication in the record that this procedural matter was raised below and therefore it has not been preserved for appellate review. Md. Rule 1085.

Judgment affirmed.

Appellant to pay the costs.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    EUROPO BOOKS, INC. t/a Sweden Book Store v. DONALD D. POMERLEAU et al.
    [Nos. 1033, 1034, 1035, 1036 and 1037,
    September Term, 1978.]

      Per Curiam Order November 24, 1978.

      Opinion Filed January 10, 1979.

    The cause was argued before Gilbert, C. J., and Morton and Couch, JJ.

      Arnold M. Weiner and Richard V Falcon, with whom were Gerard P. Martin and Ira C. Cooke on the brief for appellants Europo Books, Inc. t/a Sweden Book Store et al. Burton W. Sandler for appellants 400 East Baltimore Street, Inc. t/a Troc Pleasure Palace et al. and Denten Corporation t/a Follies Books et al.

      Jon F. Oster, Deputy Attorney General, and F. Todd Taylor, Jr., Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Francis X. Pugh, Assistant Attorney General, and John C. Themelis, Assistant State’s Attorney for Baltimore City, on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

PER CURIAM ORDER

“These causes having come before this court on argument after an order of consolidation and advancement it is this 24th day of November, 1978, by the Court of Special Appeals of Maryland, ORDERED, that the judgments hereinbefore entered by the Circuit Court of Baltimore City be, and they are hereby, reversed, and it is further, ORDERED, that the causes be remanded to the Circuit Court of Baltimore City with instructions to the Chancellor to issue forthwith permanent injunctions restraining the appellees from seizing motion picture projectors belonging to the appellants if the appellants surrender films allegedly being shown in violation of Maryland Code Article 66A, upon demand, after legal arrest or the production of a valid search and seizure warrant.

The reasons for this per curiam order to be stated in an opinion to be filed at a later date. Costs to be paid by appellees. The Mandate shall issue forthwith.”

We now explain why we issued the above-quoted per curiam order.

On October 31, 1978, Europo Books, Inc., trading as Sweden Book Store, filed in the Circuit Court of Baltimore County a petition for an ex parte injunction to restrain Donald D. Pomerleau, Commissioner of the Baltimore City Police Department and four named individuals who were members of the police department’s Vice Squad, from seizing motion picture film projectors that were used to display a film that had not been licensed by the Maryland State Board of Censors. Md. Ann. Code art. 66A § 2. The same day a temporary injunction was issued which directed the defendants “not to seize any film projectors during the execution of any search and seizure warrants at the premises of Sweden Book Store....” The injunction, by its own terms was to expire on November 8, 1978.

After a hearing, the issuing judge terminated the temporary injunctions, sustained the defendants’ preliminary objections and dismissed the petition. An immediate appeal was taken to this Court. We advanced the case and heard oral argument on November 24,1978. The same day we issued the per curiam order reversing the circuit court.

Europo and others are engaged in the business of selling, distributing and exhibiting books, magazines and motion picture films. At the core of the instant appeal is the alleged practice of the appellants of showing in their so-called “Peep Shows” motion picture film that has not been licensed by the State. Any question as to whether the film shown at “Peep Shows” is within the ambit of the Board of Motion Picture Censors was resolved in Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A. 2d 317 (1967), and underscored in Marques v. State, 267 Md. 542, 298 A. 2d 408 (1973), the latter stating “that the films used for the ‘peep shows’ ” are subject to the review mandated by Md. Ann. Code art. 66A. See also Star v. Preller, 375 F. Supp. 1093 (D. Md.) aff’d, 419 U. S. 956, 95 S. Ct. 217, 42 L.Ed.2d 173 (1974). Appellants do not attack the constitutionality of Article 66A, nor do they challenge the seizure of the unlicensed film. They do, however, vigorously oppose the practice of seizing the projectors into which the unlicensed film is fed for the purpose of viewing.

We are informed that on successive days in the month of October 1978, vice squad officers entered the business establishments of each of the appellants, and after inserting the necessary sum of money into a coin operated device supposedly to observe whether the film bore the seal of approval by the Censor Board, titles of the films were noted and subsequently compared with the records of the Censor Board in order to ascertain whether these particular films had been licensed. Following the comparison, which apparently revealed the film had not been licensed, search and seizure warrants were obtained in the Circuit Court of Baltimore and in the District Court, First District.

According to the appellants, and not disputed by the appellees, the warrants authorized the “seizure of two specifically named movies and ‘other movies offered for viewing not having previously been submitted to the ... Board.’ ” Notwithstanding the language of the warrant, “200 projectors were seized from premises owned and operated by the” appellants. On oral argument the State conceded that the question of whether the Censor’s seal has been affixed to the film can be ascertained by merely looking at the film, without its having to be shown on screen by a projector. Police officers testified that the “seizure of the projectors was necessitated by their lack of training in operating motion picture projectors and their fear that they would damage the films if they attempted to remove them.” The projectors appear to be standard 8 mm and 16 mm projectors similar in kind to those used in individual homes for the purpose of showing so-called “home movies.” There has been a modification to the projectors that were seized in the instant case which allows the projector to be cassette loaded, and which should make removal of the film easier.

Appellants suggest that “difficulty” in removing the film is but “eyewash” to cover the economic sanctions that the police are inflicting upon the appellants. We observe that prior to the seizures in the instant case, the projectors were not seized by the police, but that film was removed from the projector by an employee of the business concerned, and it was then turned over to the police.

The theory advanced by the State for the seizure of the projectors is that they are “evidence of the crime” of showing unlicensed motion picture film. Why the film, itself, coupled with the testimony of the officer that it had been exhibited, would not suffice is unexplained. Neither is there an explanation as to how the projector adds to the State’s proof or in any manner strengthens the State’s case.

We believe the State had no more right to seize the projector because the film was unlicensed than it would to seize a motor vehicle because the driver was unlicensed, or to seize the printing presses because the newspaper contains patently obscene matter.

It is important to bear in mind that we are here dealing not with a question of obscenity, but solely with a licensing statute. Confiscation of personal property has not been sanctioned by the Legislature as an acceptable punishment for violating such a licensing statute. The tactics used in the case now before us, if judicially approved, could lead to other seizures in other licensing cases. For example:

1) The unlicensed plumber could have his tools seized as evidence that he performed plumbing work without a license.
2) A person practicing law without having been licensed could have his law library seized as evidence.
3) Much the same could be said of the person practicing medicine without having been authorized to do so.

One can imagine the hue and cry if depositors’ money in an unlicensed bank was seized as evidence that the bank was doing business while unlicensed.

The appellees, however, aver that they are perfectly willing to return the properties as soon as the criminal proceeding has terminated. That ordinarily means following acquittal or, if there be a conviction, when the time for appeal to a higher tribunal has expired without the noting of an appeal. Perhaps overlooked or ignored in the appellees’ willingness to return the projectors is the chilling effect the offer has on the right of appeal. It is very much a “damned if you do and damned if you don’t” proposition. The appellant is forced either to pay the penalty meted in the first instance or pay what could prove to be a larger penalty taking the form of an economic setback occasioned by the loss of the equipment during the appellate process. The end result is that the appellant is placed in a no-win position.

A case similar to that before us was decided by the Court of Appeals, Second District, Division 4 of California. That Court, in Porno, Inc. v. Municipal Court, Los Angeles Judicial District, 33 Cal. App. 3d 122, 108 Cal. Rptr. 797 (1973), upheld the judgment of the Superior Court of Los Angeles County which had overturned the municipal court and directed that motion picture projectors which had been seized pursuant to search warrants be returned to Porno.

The appellate court observed that “[t]he reels of film were not permanently attached to the machines. Any standard 16 millimeter film could be inserted or removed from these projectors in a matter of seconds.” 33 Cal. App. 3d at 124, 108 Cal. Rptr. at 799. They went on to note that:

“It is theoretically possible that in a prosecution ... the prosecutor might offer in evidence a film projector as corroboration of the officer’s testimony that he saw the offending films projected on a screen. But while possible, it seems most unlikely that such an exhibit would be offered, and appellants have made no contention in the superior court or here that the projectors were seized for that purpose.
Although the projectors may have been used in the commission of a misdemeanor, they were designed for and capable of use for lawful purposes. The alleged guilt of the owner had not been judicially determined.” 33 Cal. App. 3d 125-26, 108 Cal. Rptr. at 799-800.

The State, in the case sub judice, did argue in the circuit court and here that the projectors would be used as evidence. We think it clear that such an assertion was carefully designed and advanced in order to avoid being successfully accused of overreaching. Notwithstanding the State’s contention, it is crystalline that its aim was not to offer hundreds of projectors into evidence but to strike at the appellants’ pocketbooks and, thus, make it unprofitable for “peep shows” to continue to exhibit unlicensed film. One difficulty with that attempted solution is that, as in Porno, the cassettes are not permanently attached to the projectors and the projectors may be used for the purpose of showing licensed films.

What has actually occurred in the instant case is that the appellees are imposing a form of punishment upon the appellants that has not been authorized by the Legislature. The seizure of the projectors not only precludes the displaying of unlicensed film, but also prevents the lawful use of the projector as a means of expression that is protected by the First Amendment to the Constitution of the United States and by Article 40 of the Constitution of Maryland, Declaration of Rights. Porno, Inc. v. Municipal Court, Los Angeles Judicial District, 33 Cal. App. 3d at 126, 108 Cal. Rptr. at 800. See also United States v. Polak, 312 F. Supp. 112 (1970); Bongiovanni v. Hogan, 309 F. Supp. 1364 (1970); Interstate Circuit, Inc. v. Dallas, 247 F. Supp. 906 (1965). The Supreme Court has said:

“[A] State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible conse - quences for constitutionally protected speech.” Marcus v. Search Warrants, 367 U. S. 717, 731, 81A S. Ct. 1708, 1716, 6 L.Ed.2d 1127, 1136 (1961).

Certainly no less restriction is imposed upon the State when it deals with mere unlicensing, a subject not as offensive as obscenity.

We hold that the seizure of the projectors was unlawful and unconstitutional. It was in sum unreasonable and amounted to a taking of property without due process of law. Thus, the seizure violated the First and Fifth Amendments of the federal constitution and Articles 23 and 40 of the Maryland Constitution, Declaration of Rights.

In so holding, we are not without understanding of the discomfiture that the appellees encounter in their day-to-day efforts to enforce licensing statutes, as well as those directed against obscenity, but paraphrasing Judge Thompson, speaking for this Court in Meyer v. McDonnell, 41 Md. App. 13, 392 A. 2d 1129 (1978). the solution does not lie in the pollution of the stream of justice. No justification exists for the employment by law enforcement officers of an unlawful act to counter the illegal deed of the lawbreaker. That the appellants may have broken the law does not permit police to depart from their licit purpose and emulate the offenders.

Under our system of criminal justice, it is the function of law enforcement officers, a division of the executive branch of government, to detect crime, ferret out the wrongdoer, and to charge him, her, or it with a particular offense or offenses. The matter of punishment is specified by the Legislature but imposed by the judiciary.

We deem it advisable to comment upon the motion raising preliminary objection as filed by the State and granted by the trial court. The motion asserted that the circuit court should “decline jurisdiction over the subject matter ... due to the pendency of several criminal trials before the District Court of Maryland where the same issues can be raised and decided.” The motion was apparently grounded on Md. Rule 323 a 6. That rule permits the filing of such a motion if there is a “Pendency of another action between the same parties for the same cause.”

The District Court is not empowered to issue injunctions. Consequently, even though there may have been criminal charges pending before that court against the appellants, the injunctive relief sought by appellants was not within the power of the District Court to grant, even had it been so inclined.

The trial judge did not set forth any reason for the granting of the motion raising prelininary objection, so that we are left to guess as to why that action was taken. If the reason was because of Rule 323 a 6, it was incorrect and the motion should have been denied. In any event, it was patently not applicable to three of the cases.

      . There are other appellants and other appellees as a result of several eases having been consolidated for trial in the circuit court. We also consolidated the cases for purposes of this appeal because they involve the same issue.

      . An equity court has the power to restrain police authorities from unwarranted and illegal interference with the property rights of an individual. Gaither v. Cate, 156 Md. 254, 257, 144 A. 239, 240 (1929).

      . We are unable to find within the records of Europo Books, Ellwest Stereo Theatres, or Fayette News Center, Inc., any motion raising preliminary objection.

      . See n. 1.

      . All motion picture films are required to be “duly approved and licensed by the” Maryland Board of Censors. Md. Ann. Code art. 66A § 2.

      . The coin receptacle or “slot” is not part of the projector. As best we understand it, the insertion of the coin causes an electrical impulse that turns on the projector which then operates for an interval of time. A number of coins must be inserted before the entire film may be viewed.

      . The only basis for disapproving a film is on the ground that it is obscene. Sanza v. Maryland Bd. of Censors, 245 Md. at 339, 226 A. 2d at 328. There is nothing in the record to indicate that the films were ever submitted to the Board.

      . As we indicated in n. 3, supra, no such motion appears to have been filed in Europo, Fayette News or Ellwest Stereo Theatres. Nevertheless, the order of the circuit court granted the motion with respect to all cases now before us.

      . See n. 3 and n. 8, supra.


author: Moore, J.,

text:
    ROGER ANDREW BROOKS v. STATE OF MARYLAND
    [No. 365,
    September Term, 1978.]

      Decided January 11, 1979.

    The cause was submitted on briefs to Moore, Mason and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Bradford C. Peabody, Assistant Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Diane G. Goldsmith, Assistant Attorney General, and George R. Sparling, State’s Attorney for St. Mary’s County, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Roger Andrew Brooks, the appellant, was convicted by a jury in the Circuit Court for St. Mary’s County (Mattingly, J.) of two motor vehicle violations: 1) driving while ability impaired by alcohol, Md. [Transp.] Code Ann. § 21-902 (b) (1977); and 2) speeding, Md. [Transp.] Code Ann. § 21-801 (1977). He was fined $500 for each offense and was sentenced to a two-month term in the St. Mary’s County Jail for the driving while impaired conviction. On appeal, he contends that his conviction for driving while impaired should be reversed because subsections (a) and (b) of Section 21-902 of the Transportation Article are unconstitutionally vague. With this contention, we do not agree.

I

Officer Louis H. Dick, Jr., of the Maryland State Police, the State’s sole witness, testified to the events culminating in appellant’s arrest. On December 17, 1977, at approximately 8:20 p.m., Officer Dick was driving an unmarked police car in a procession of vehicles traveling northbound in the right lane of Maryland Route 5 in St. Mary’s County. Route 5, a two-lane highway with a posted speed limit of 55 m.p.h., was extremely wet and slick because of rain. The appellant, driving alone in the outside lane, passed him at a high rate of speed. Officer Dick immediately pulled out from the slow lane and gave pursuit. During the ensuing chase, the appellant swerved back and forth between and within lanes. Aware that the appellant was exceeding the speed limit, the officer “paced” the appellant for over two miles, establishing that he was traveling at 70 m.p.h. Dick, realizing the danger of appellant’s speed and erratic driving, activated his siren, portable dome light, and four-way flashing grill lights as signals for the appellant to stop. However, the appellant did not stop until after a four-mile pursuit.

Officer Dick described appellant’s behavior and condition as follows:

• “The Defendant stepped from his vehicle. When he did this, he stepped into the roadway. I had to close his car door. I had to ask the Defendant and help the Defendant off the roadway back to the area of my police car. The Defendant, while standing there next to my police car, leaned over against it. The Defendant had a strong odor of alcohol beverage on his breath at this time. The Defendant, when I asked him to stand there for a few seconds, he leaned over against the police car again, and this was to maintain his balance.
The Defendant was transported to Leonardtown, St. Mary’s County, and Defendant was in a handcuffed position at this time. While entering the Control Center at Leonardtown Post, the Defendant stumbled over the curbing. Defendant had to be assisted down the steps at the Leonardtown Control Center.
His eyes were very red, his clothes were soiled, disarranged, his shirttails were out of his pants. His attitude was very cocky at first and then complete quiet. His speech was slurred at the beginning when I first stopped him and then he became silent.”

It was Officer Dick’s conclusion, based upon all his observations, that the appellant was intoxicated at the time of his arrest. According to the two traffic citations, appellant was charged with driving while intoxicated or impaired by alcohol and with speeding. A chemical analysis of the appellant’s alcohol blood count was not performed but three empty 12-ounce beer bottles were found by the officer in appellant’s car. Appellant, 35 years old and the father of six children, testified in his own behalf. He admitted drinking three beers shortly before being stopped by Officer Dick. Agnes Marie Nelson, a defense witness, age 20 and a friend of appellant, testified that she and appellant shared a six-pack of beer and that they ate some fried chicken at a place in Leonardtown. Appellant drank three beers. According to Nelson, the appellant was sober but also appeared to have been drinking prior to his consumption of the three bottles of beer. Although the jury determined this evidence was insufficient to sustain a driving while intoxicated charge, it returned a conviction of driving while impaired pursuant to section 21-902 (b) of the Transportation Article.

II

It has long been recognized that a basic due process tenet in lawmaking, especially in the area of criminal law, is that the individual should be able to ascertain clearly what the law requires or forbids. If, because of vagueness, persons “of common intelligence must necessarily guess at [the] meaning [of a law] and differ as to its application, [the statute] violates the first essential of due process of law.” Connally v. General Construction Co., 269 U. S. 385, 391 (1926). See Cramp v. Board of Public Instruction of Orange County, 368 U. S. 278, 287 (1961); Lashley v. State, 10 Md. App. 136, 142, 268 A. 2d 502 (1970). Clarity in language and guidelines is also imperative to prevent discriminatory law enforcement particularly when a statute, uninterpreted by state court decisions, affects First Amendment guarantees. Smith v. Goguen, 415 U. S. 566, 573 (1974).

Transportation Article, Section 21-902 (a)-(b), the criminal provision at issue, was enacted in the interest of public safety to deter individuals who have consumed alcohol from driving on the highways of Maryland. Major v. State, 31 Md. App. 590, 591, 358 A. 2d 609 (1976). It states:

“§ 21-902. Driving while intoxicated, ability impaired, or under the influence.
(a) Driving while intoxicated. — A person may not drive or attempt to drive any vehicle while intoxicated.
(b) Driving while ability impaired by alcohol. — A person may not drive or attempt to drive any vehicle while his driving ability is impaired by the consumption of alcohol.”

Appellant contends that subsections (a) and (b), under which he was disjunctively charged, are unconstitutionally vague because they do not set forth with adequate specificity the standards for determining culpability. According to appellant, the terms “intoxicated” and “impaired by the consumption of alcohol,” are insufficient to inform the individual of the threshold of culpable conduct. Moreover, he claims that although case law, delineating the standard, may cure the deficiency, no case law exists to rectify the definitional defect in this statute. The absence of definitional specificity, although a recurrent problem, is not necessarily an unconstitutional infirmity mandating invalidation of a statute. As the Court of Appeals recognized in Blake v. State:

“Penal statutes should be expressed in language as specific as the subject matter will permit, but it is obviously impossible to define some types of crime by a detailed description of all possible cases that may arise.... The words of a statute must be accorded the meaning naturally given them in ordinary usage.” (Emphasis added.)

210 Md. 459, 462, 124 A. 2d 273 (1956). It must be recognized, therefore, that an element of imprecision may be inherent in many statutory terms since “ ‘[i]n most English words and phrases there lurk uncertainties.’ ” Rose v. Locke, 423 U. S. 48, 49-50 (1975) citing Robinson v. United States, 324 U. S. 282, 286 (1945).

“Intoxication” and “impairment by alcohol” are two terms difficult to define with precision, yet not difficult to understand. Courts have been able to fashion interpretations of these terms. Instructive in this respect is the approach employed by an Oklahoma court in Synnott v. State where the appellant made an identical due process challenge. 515 P. 2d 1154 (Okla. Crim. App. 1973). The court, in upholding an analogous provision, held that the phrase “under the influence of intoxicating liquor” must be given its “commonly understood meaning which does not leave a person of ordinary intelligence in doubt.” Because the state is one of general knowledge, it must be given a sensible interpretation. Id. at 1157. Therefore, ascribing to the word “impaired” its common meaning, we believe it is generally viewed as a state less than intoxication where consumption of alcohol has affected one’s normal coordination.

It remains ultimately a question for the jury whether an accused was intoxicated, impaired, or under the influence of alcohol in accordance with the common meaning of those terms. Singleton v. Roman, 195 Md. 241, 247, 72 A. 2d 705 (1950). In making this determination, chemical evidence of alcohol consumption may be available pursuant to Md. [Cts. & Jud. Proc.] Code Ann. §§ 10-302, 10-307 (Supp. 1978) and is probative, but it is unnecessary for conviction. Other evidence, particularly the personal observations by a witness of the individual’s behavior, may be sufficient. Md. [Cts. & Jud. Proc.] Code Ann. § 10-308 (Supp. 1978); Major v. State, 31 Md. App. at 595-96. In this respect, we find apposite the holding in United States v. Channel, 423 F. Supp. 1017 (D. Md. 1976). In Channel, the appellant challenged his conviction of driving while intoxicated based solely upon the observations of his behavior by an officer and other witnesses. In upholding the conviction and sustaining Article 66 ¥2, Section 11-902 (a) [the predecessor of section 21-902] against a charge of unconstitutionality on the ground of vagueness, the Court said:

“While it is seemingly true that the standard ‘intoxicated’ is capable of more precise definition, the failure of the Maryland legislature and courts so to define the term is not a denial of due process in this case in which the evidence discloses beyond a reasonable doubt that defendant was highly intoxicated, according to the generally accepted meaning of those words.” (Emphasis added.)

423 F. Supp. at 1026. We find this statement equally applicable to the word “impaired” when, as here, there was evidence that established, beyond a reasonable doubt, the existence of this condition in accordance with its commonly accepted meaning.

In this case, Officer Dick’s uncontradicted testimony provided ample evidence of behavior indicative of high alcohol consumption. Id. at 1021; Thompson v. State, 26 Md. App. 442, 450-51, 338 A. 2d 411 (1975). Appellant argues, however, that he had no way of knowing that three beers would impair his driving to such an extent as to violate the statute. Such an argument is disingenuous especially when the evidence disclosed that the beers were consumed within a relatively short period and the appellant, according to Agnes Nelson, appeared to have been drinking prior to consuming them.

We find, therefore, that the statute is not violative, on grounds of vagueness, of the due process of law clause of the Fourteenth Amendment to the United States Constitution and that the evidence was sufficient to sustain a conviction of the offense prescribed by Transportation Article, Section 21-902.

Judgments affirmed; costs to be paid by appellant.

      . Black’s Law Dictionary (4th ed. 1968) defines “intoxicated” as “[ajffected by an intoxicant, under the influence of an intoxicating liquor”, id. at 957, and “impair” as “[t]o weaken, to make worse, or lessen in power, dimmish, or relax, or otherwise affect in an injurious manner.” Id. at 885.

      . The case law seems to indicate that the phrases “under the influence of alcohol” and “ability impaired by alcohol” are synonomous. Croom v. Fiedler, 341, F. 2d 909, 911 (6th Cir. 1965); City of Farmington v. Joseph, 575 P. 2d 104, 107, 91 N. M. 414 (N.M. Ct. App. 1978). For example, to be under the influence of alcohol pursuant to California law,
      “[T]he intoxicating drug must so far affect the nervous system, the brain or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties, using care and under like conditions.” (Emphasis added.)
      Gilbert v. Municipal Court of North Orange County, 140 Cal. Rptr. 897, 899-900, 73 Cal.App.3d 723 (1977). But cf. Government of Virgin Islands v. Brown, 571 F. 2d 773, 777 (3d Cir. 1978) (“under the terms of the statute, a persons’s ability to operate a vehicle [could] be presumed to be impaired by alcohol, yet that person could not be presumed intoxicated”).

      . In Clay v. State, 211 Md. 577, 128 A. 2d 634 (1957), the Court of Appeals examined the gross negligence standard of the manslaughter by automobile statute. One of the factors considered in ascertaining gross negligence was the appellant’s drinking. In commenting upon whether the appellant’s consumption of alcohol amounted to a “ ‘wanton or reckless disregard for human life,’ ” the court said that the following conduct would be within the purview of culpable conduct:
      “[Djriving while drinking to the extent of probably affecting one’s judgment and discretion or probably affecting one’s nervous system to the extent that there is a failure of normal coordination, although not amounting to intoxication. ...” (Emphasis added.)

        Id. at 584. Although this standard was formulated for another statutory provision, we believe that it may, by analogy, provide a definition for the “ability impaired by alcohol” provision here at issue.


text:
    MURIEL GWENDOLYN VANCE v. ARNOLD LEONARD VANCE
    [No. 384,
    September Term, 1978.]

      Decided January 11, 1979.

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

      Bernard F Goldberg, with whom was Michael D. Rexroad on the brief, for appellant.

      Thomas C. Gentner; with whom were Timothy E. Welsh, Robert W Fox and Rollins, Smalkin, Weston, Richards & Mackie on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The facts of this case would appear to be more at home in a plot of a “soap opera” than in a court of law because a recitation of them should begin with “Once upon a time____” Yet, there is evidence demonstrating that they are true, and truth, as Lord Byron said, “is always strange; Stranger than fiction.”

We are here concerned with a civil suit by a woman against a man for fraud, negligent misrepresentation, assault and battery, and the intentional infliction of emotional distress, grounded on their ostensible relationship as husband and wife and growing out of a petition by the man to set aside an alimony and support decree because it was based on a “marriage” that never was. The petition was later withdrawn but by that time the fact that the “marriage” was invalid had been clearly established.

Before embarking on a discussion of the legal issues involved in this appeal, we shall endeavor to unravel the mare’s nest in which the parties, Muriel Gwendolyn Vance, appellant, and Arnold Leonard Vance, appellee, find themselves entangled. To so do we shall attack the problem sequentially.

The appellee, during his residency at University Hospital in Baltimore City, separated from his then wife, Elizabeth Vance in “July or August” of 1954. In “September or October” of that same year, Dr. Vance met the appellant who was a registered nurse “working in OB at the time.” The relationship between the parties intensified to the point where marriage was discussed. Dr. Vance reached an agreement with Elizabeth Vance. A hearing on the bill of divorce and cross-bill was held before an examiner bn September 12, 1956. Additional testimony was taken on October 3, 1956. While Dr. Vance attended the September hearing, he was not present for the presentation of the additional testimony.

According to the appellant and her mother, the doctor appeared at their residence in “maybe the middle of September” 1956 and told appellant and her parents “that he had finally gotten his divorce from ... [Elizabeth], and that he was free, and that we [appellant and Dr. Vance] could plan our marriage at the end of the month.” Arrangements were made for the couple to be wedded in Arlington, Virginia. Just who arranged for the “marriage” to take place in Virginia was disputed. Appellant testified that the doctor made the arrangements through a lawyer friend of his from Washington, D.C. Dr. Vance presented an entirely different version. He said all the arrangements were made by appellant.

In any event, the parties went through a religious ceremony before a Methodist minister on September 29,1956. They had previously applied for and received a marriage license. The information on the application for the license was written by appellant who testified that she wrote “Divorced” “under the groom’s information” because that is what Dr. Vance told her.

The decree of divorce was signed by a judge of the Circuit Court of Baltimore City on October 16, 1956 and sent to Dr. Vance by his then lawyer on November 6,1956. It was mailed to the doctor’s address at the hospital. Patently, Dr. Vance was not divorced from Elizabeth Vance at the time he entered into a “marriage” with the appellant. The impediment of a prior, valid, existing marriage blocked a valid marriage to appellant. Dr. Vance stated that the appellant knew that his divorce from Elizabeth Vance was not final, but she, nevertheless, insisted upon going through with the ceremony. Appellant steadfastly denied knowing that the doctor was legally incapable of entering into a valid marriage when the two were supposedly wed. Appellant learned that they were not in fact and in law married when the doctor’s petition to set aside the alimony and support decree was filed.

Muriel Vance’s reaction to the news of the invalidity of her marriage is the foundation of the matter before us. This litigation began in the Circuit Court for Howard County, Maryland, on August 2, 1976, when appellant filed a four-count declaration against Dr. Arnold Vance, alleging, as we have previously stated, fraud, negligent misrepresentation^ assault and battery,, and intentional infliction of emotional distress.

Upon the close of evidence, but prior to submitting the case to the jury, Judge James Macgill granted Dr. Vance’s motion for a directed verdict on the count alleging intentional infliction of emotional distress. The remaining counts were submitted to the jury which returned a verdict for appellant on the negligent misrepresentation, awarding her fifty-thousand dollars ($50,000) in compensatory damages.

The trial judge thereafter granted Dr. Vance’s motion for a judgment N.O.V. Subsequently, the court stayed its action and granted a rehearing, after which the judgment N.O.V. was reinstated.

In her appeal to this Court, the appellant does not contest the jury’s verdict on the fraud and assault and battery counts, thus abandoning those claims. The appellant does, however, level a barrage against the trial judge’s granting of the motion non obstante veredicto as well as the directed verdict on her allegation of the intentional infliction of emotional distress. We conclude that the appellant is justified in asserting that the rulings call for reversal and remand for a new trial. We shall now explain why we so believe.

THE JUDGMENT N O. V.

It is settled law that in reviewing a trial court’s grant of a motion for a judgment N.O.V., the evidence and all reasonable inferences which can be drawn from it must be considered in the manner most favorable to the party against whom the ruling was made. Menish v. Polinger Co., 277 Md. 553, 567, 356 A. 2d 233, 240 (1976); Wesko v. G.E.M., Inc., 272 Md. 192, 200, 321 A. 2d 529, 534 (1974); Gill v. Computer Equipment Corp., 266 Md. 170, 173, 292 A. 2d 54, 55 (1972); Lusby v. First National Bank, 263 Md. 492, 499, 283 A. 2d 570, 573 (1971); Wheeler Transportation Co. v. Katzoff, 242 Md. 431, 435, 219 A. 2d 250, 252-53 (1966); Safeway Stores, Inc. v. Bolton, 229 Md. 321, 326, 182 A. 2d 828, 830 (1962); Smith v. Bernfeld, 226 Md. 400, 405, 174 A. 2d 53, 55 (1961); Zeamer v. Reeves, 225 Md. 526, 530, 171 A. 2d 488, 490 (1961); Hess v. Frazier, 27 Md. App. 150, 169, 340 A. 2d 313, 323, cert. denied, 276 Md. 745 (1975); Cluster v. Cole, 21 Md. App. 242, 249, 319 A. 2d 320, 324-25 (1974); Hagen v. Washington Suburban Sanitary Commission, 20 Md. App. 192, 195, 314 A. 2d 699, 700 (1974). We view the evidence and all reasonable inferences which can be drawn from it as supporting compensation for the emotional distress suffered by appellant as a result of her belatedly learning that her ostensible marriage to Dr. Vance was a sham.

The trial judge, in granting the judgment N.O.V., bottomed his decision on the reasoning “that damages consisting solely of mental distress are not recoverable in an action for negligent misrepresentation.” The underlying determination of negligent misrepresentation was not questioned, with the result that we shall do no more with respect thereto than note that we have reviewed the record and ascertained therefrom that a finding of negligent misrepresentation was supported by the evidence presented.

The record reveals the following facts and rational inferences deducible therefrom concerning recovery for mental distress. Dr. Arnold Vance was not free to marry appellant in September 1956 because his divorce a vinculo matrimonii from Elizabeth Vance was not final until October 16,1956. Accounting at a minimum from November 1956, the appellee was aware of the discrepancy in dates among his statements to appellant that he was free to marry, the “marriage” date, and the decree of divorce.

Appellant, on the other hand, disavowed all knowledge of the bigamous nature of her “marriage” to Dr. Vance until 1976 when he filed the motion to annul the marriage and strike the decree awarding her alimony and child support. Appellant’s asserted lack of knowledge was supported by evidence that the decree of divorce between Arnold and Elizabeth Vance had been received by the doctor at his place of business, not at the home he shared with the appellant. It was not likely that appellant would have seen the divorce decree unless Dr. Vance took it home and showed it to her. Although the parties disagree as to whether the doctor ever showed appellant the decree, the testimony of Mitchell Vance, their son, underpinned his mother’s statement that she had not seen the decree before 1976.

Furthermore, appellant testified to her emotional reaction to the news of the invalidity of her marriage. She said:

“I just — I couldn’t function, I couldn’t sleep, I was totally embarrassed by the fact that he had filed this and it became public knowledge, once it’s filed. I consider it defamation of my character. I was too embarrassed to go out and socialize with people that tried to be kind to me. And I just couldn’t function. I really thought I was going to have a nervous breakdown. And I even now have symptoms of an ulcer.”

Her testimony was corroborated by that of both her mother, Mrs. Hewell, who stated that after March 26, 1976 her daughter was in a state of emotional collapse, and Walter Hess, appellant’s son by a previous marriage, who testified that his mother was in such a state of emotional depression that it scared him. He specifically related that:

“I’ve been told that my mother is an attractive woman, and during this period of time, there was, there was absolutely no beauty or life to her. The hair was unkept (sic), the cheeks were sunken, the eyes were dark. She was a wreck____
“... When my mother needed me, she called me. I either went to her home, or we had long, long discussions on the telephone. And during the periods that, you know, long periods of sobbing and crying and so on and so forth where I felt that I wasn’t even communicating with my mother, I felt that she was totally detached from the situation, and really was unware of, of her own presence.”

We think such evidence demonstrated that the appellant suffered from emotional distress as a result of learning that her “marriage” of almost 20 years was no marriage at all.

It is well established in Maryland that there is a right of recovery for emotional distress if it results in physical injury. Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933); Great Atlantic & Pacific Tea Co. v. Roch, 160 Md. 189, 153 A. 22 (1931).

Bowman permits recovery for emotional distress “resulting in some clearly apparent and substantial physical injury, as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” The trial judge in the instant case opined that:

“[BJefore recovery can be had for nervous shock, it must be shown that such shock caused a physical or mental condition in the nature of an ailment or illness as distinguished from emotional distress or mental anguish in the nature of embarrassment or depression. There was nothing in the evidence in the instant case to indicate that the plaintiff suffered a physical or mental illness or injury as a result of her shock on learning that her marriage was invalid.”

We have a different view. As we see it, the evidence, considered in the light most favorable to appellant, was sufficient to support a jury’s finding that appellant was “physically injured” as a result of learning that her marriage to Dr. Vance was invalid.

According to Bowman, the physical injury may be manifested either by an “external condition” or “by symptoms clearly indicative of a resultant pathological, physiological or mental state.” We think the evidence in the case sub judice supports a finding by the jury of physical injury from the appellant’s “external condition.” Appellant’s nervousness, spontaneous crying, hollowed appearance, and inability to relate to the present, all constituted evidence of an external condition.

We digress to consider, as an aside, the resultant physical injury rule.

Recovery is generally denied for negligently inflicted mental disturbance when there is no accompanying physical injury or physical consequences. Prosser, The Law of Torts 328-29 (4th ed. 1971). There is, in other jurisdictions, a clear exception to the general rule. The exception permits recovery when there is no essential reason to deny it, in that the circumstances of the case present “an especial likelihood of genuine and serious mental distress ... which serves as a guarantee that the claim is not spurious.” Prosser, supra at 330. The law protects a person’s property, physical composition of his body and his mental well-being.

Two objections voiced against permitting recovery for damage to the mental health, unaccompanied by physical injury are the ever present possibility of vexatious or fictitious claims and an increase in the number of law suits. The former, as we see it, is no more valid in such claims than in other types of litigation, and the latter is not the slightest justification for denying a forum in which to seek redress.

We believe it is time that courts unbind themselves from the outmoded belief that there can be no injury to the mind without overt manifestations of bodily harm. We should recognize what the health professionals already know, that the psyche is as susceptible of injury as the body, and that the absence of apparent physical damage does not serve to lessen the extent of the mental injury. See Howard v. Lecher, 42 N.Y.2d 109, 111-12, 366 N.E.2d 64 (1977); Johnson v. State, 37 N.Y.2d 378, 381-84, 334 N.E.2d 590 (1975); Battalla v. State, 10 N.Y.2d 237, 239-42, 176 N.E.2d 729 (1961).

THE DIRECTED VERDICT

The appellant asserts that the trial judge should not have directed a verdict on her claim for damages resulting from the intentional infliction of emotional distress.

The judge, in granting the motion for the directed verdict, said:

“The reasons for my action on this count is, first of all, I find no legally sufficient evidence to indicate, assuming that there was a fraudulent representation as to the marital status of Dr. Vance at that time, that it was done ... with the intention of the infliction of emotional distress upon ... [appellant].”

The judge went on to explain that in his opinion the count was no more than a duplication of the count charging fraud.

Perhaps the trial judge was misled by the name given to the “new tort,” first recognized in this State in Harris v. Jones, 35 Md. App. 556, 371 A. 2d 1104 (1977), aff’d 281 Md. 560, 380 A. 2d 611 (1977). Despite the characterization of the tort as the intentional infliction of emotional distress, and notwithstanding the use of the adjective intentional in its title, the tort need not be intentional. The actor is responsible if the injury is inflicted by extreme and outrageous recklessness.

Before there can be a justiciable infliction of emotional distress, four elements must fuse. They are:

(1) Intentional or reckless conduct;
(2) Extreme and outrageous conduct;
(3) A causal connection between such conduct and the emotional distress;
(4) Emotional distress of a severe nature.

Harris v. Jones, 281 Md. at 566, 380 A. 2d at 614; Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974).

It is to be noted that the actionable conduct is not limited to its being intentionally inflicted. Harris and Womack made pellucid that when one “acts recklessly in deliberate disregard of a high degree of probability that... emotional distress will follow,” 281 Md. at 567, 380 A. 2d at 614, he is as accountable as if he had acted intentionally. In short, reckless disregard in a given factual situation may be equated to intentional infliction, but not be so considered when viewed in different circumstances. The Restatement (Second) of Torts, ch. 2, § 46 (1965), Comment f explains that the “extreme and outrageous” nature of the actor’s conduct may arise from his knowledge “that the ... [victim] is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.” Conduct may be adjudged to be “heartless, flagrant and outrageous” when, notwithstanding the actor’s knowledge of what it will likely occasion, he nevertheless perpetrates it, while, if he lacked that knowledge, his conduct would not be so considered. “[MJajor outrage is essential to the tort----” Id.

Chief Judge Murphy, for the Court of Appeals in Harris, illustrated the importance of the circumstances in which such conduct takes place. He said:

“In determining whether conduct is extreme and outrageous, it should not be considered in a sterile setting, detached from the surroundings in which it occurred. Pakos v. Clark, 253 Or. 113, 453 P. 2d 682 (1969). The personality of the individual to whom the misconduct is directed is also a factor. ‘There is a difference between violent and vile profanity addressed to a lady, and the same language to a Butte miner and a United States marine.’ Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874, 887 (1939).” 281 Md. at 568, 380 A. 2d at 615.

There is, as can be readily seen by the four elements articulated in Harris and iterated above, no need for fraud to be demonstrated. Hence, the judge erred in equating the fraud count with the intentional or reckless infliction of an emotional injury count. The finding of fraud may establish the element of intent but hardly recklessness. Indeed, fraud usually arises from a preconceived plan rather than any reckless conduct. Recklessness and fraud appear to be almost incompatible.

We agree, however, with the trial judge that the evidence does not establish that Dr. Vance intentionally inflicted emotional injury upon the appellant, but whether he did so with extreme and outrageously reckless conduct is another matter. If there was evidence, however slight, when considered most favorable to the appellant, of the four fused elements of Harris, the count should have gone to the jury. Mass Transit Administration v. Miller, 271 Md. 256, 315 A. 2d 772 (1974); C.S. Bower Co. v. Maryland National Bank, 36 Md. App. 26, 373 A. 2d 30 (1977). We think the evidence as recounted in the facts heretofore stated is of such a nature that the trial judge should not have invaded the province of the jury, but should have left to them the determination of whether Dr. Vance’s conduct was reckless to the point of being extreme and outrageous. The directed verdict was erroneously granted.

There can, of course, be only one recovery, i.e., appellant may not recover for negligent misrepresentation and at the same time successfully assert that appellee inflicted an intentional tort upon her by his extreme reckless and outrageous conduct, inasmuch as the two torts are mutually exclusive.

We shall reverse the matter and remand it to the trial court where the appellant may elect either to accept the verdict rendered by the jury on the negligent misrepresentation count or retry the case on the two counts we have here considered. If appellant opts to accept the verdict of the jury for negligent misrepresentation resulting in emotional distress, the trial judge shall reinstate the jury verdict and enter judgment thereon.

Judgment reversed.

Case remanded for further proceedings consistent with this opinion.

Costs to be paid by appellee.

      . George Noel Gordon, Lord Byron, 1788-1824, in Don Juan, Canto XIV [1823] St. 101.

      . See Jones v. Harris, 35 Md. App. 556, 371 A. 2d 1104 (1977), aff’d 281 Md. 560, 380 A. 2d 611 (1977).

      . In 1956 the practice in Baltimore City was that testimony in an uncontested divorce was heard by an examiner. The testimony was typed and sent to a Master who made a recommendation, based thereon, to the chancellor. That practice was abandoned in favor of the current Master-Examiner’s role being filled by the same person.

      . Md. Ann. Code art. 16, § 24; Clayton v. Clayton, 231 Md. 74, 188 A. 2d 550 (1963); Townsend v. Morgan, 192 Md. 168, 63 A. 2d 743 (1949). “A second marriage contracted while a first marriage exists undissolved is a nullity without the passage of any judicial decree declaring it void.” Id. at 173, 63 A. 2d at 745.

      . See n. 4, supra.

      . But see Clayton v. Clayton, supra, and Dackman v. Dackman, 252 Md. 331, 250 A. 2d 6() (1969).

      . See e.g., Md. Ann. Code art. 43; 42 U.S.C. §§ 242a, 2661, and 2681, and generally, libel, slander, and other rights of privacy actions.

      . The inappropriateness of placing expediency before justice was recognized in Green v. Shoemaker & Co., 111 Md. 69, 81, 73 A. 688 (1909). The Court, in awarding damages for nervous injury caused by fright, without physical impact, stated: “The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases, because in some a fictitious injury may be urged as a real one.” Id. at 81, 73 A. at 692.

      . See generally “Testimony by the American Psychological Association, The Council for the Advancement of the Psychological Professions and Sciences and the Association for the Advancement of Psychology to the Committee on Ways and Means, U.S. House of Representatives: Subcommittee on Health — on the subject of National Health Insurance,” November 14, 1975. References therein demonstrate the growing acknowledgment that mental health services deserve recognition on a parity basis with physical services. This trend is reflected by the number of major health insurance carriers that have voluntarily added psychologists as autonomous providers of services. Legislation on both the state and federal levels has in many instances eliminated the need for physician referral or supervision as a prerequisite to obtaining coverage for the costs of mental health services. The Maryland Legislature has mandated that medical health insurance plans incorporate the change. Md. Ann. Code art. 48A, § 477E. See also, “Testimony of The American Psychological Association on the subject of Mental Health Services Under Medicare and Medicaid,” August 18,1978.

      . Judge Menchine, who authored Harris for this Court observed that while the case was “one of first impression in Maryland,” it is recognized favorably by a “majority of the States.” 35 Md. App. at 558, 371 A. 2d at 1106.

      . We infer that Prosser used the noun “lady” to mean a refined, gentle woman possessing those characteristics often associated with culture, breeding, and high station, and not as a mere synonym for “female." Why he implies a “Butte miner anda United States marine” would be less offended by the language is unexplained. In any event, we think it the height of reckless and extreme folly to address “violent and vile profanity” to a Butte miner and, a marine, while such remarks to the miner or the marine require only courage.

      . Md. Rule 552 requires that all facts and inferences reasonably deducible therefrom must be considered in the light most favorable to the party against whom the motion for a directed verdict is made. Only when the facts or inferences drawn therefrom lead to but one conclusion is a court justified in directing a verdict.

      . ‘TTjhere can be but one recovery for a single wrong....” Pemrock, Inc. v. Essco Co., 252 Md. 374, 379 (1969).


author: MacDaniel, J.,

text:
    JEROME B. KATZ v. EVA KATZ
    [No. 401,
    September Term, 1978.]

      Decided January 11, 1979.

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

      Stanley R. Jacobs for appellant.

      Howard L. Stern for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

On June 5, 1972, Jerome B. Katz, the appellant, and Eva Katz, the appellee, were awarded a divorce in the State of Virginia. The decree required the appellant to pay $275 every two weeks in support of the three minor children “until they are emancipated.” At that time, the children were 14,11, and 9 years of age. Effective July 1, 1972, the Virginia General Assembly lowered the age of majority from 21 years to 18 years.

On January 2, 1976, the appellee filed a petition in the Circuit Court for Montgomery County for an increase in the amount of child support. On November 20, 1976, the appellant filed a petition in the same court to decrease the amount of child support because one of the three children was then over 18 years of age.

A hearing on the merits was held on March 17, 1978. The evidence showed that there had been no written separation agreement and that, at the time of the divorce decree, the appellant and appellee had conflicting understandings as to whether the appellant’s financial responsibility ended when the children reached 18 or 21 years. Evidence was also introduced regarding the financial situation of the parties.

On April 10, 1978, the chancellor filed a Memorandum and Order increasing the amount of child support and requiring the appellant to pay the increased amount “until the youngest child is emancipated or until further order.” At the time of the order, the children were 20, 18 and 15 years respectively. The chancellor based his order on the following understanding of Virginia law:

“In Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974), the Supreme Court of Virginia held that the words ‘otherwise emancipated’ found in a property settlement agreement entered into prior to July 1, 1972 which required a former husband to support his three children until they were 21 or ‘otherwise emancipated’ did not include emancipation by law, and that the reduction in age of majority from 21 to 18 did not effect [sic] his obligation to pay child support until his children reached the age of 21. This Court believes that the word ‘emancipated’ found in a divorce decree should be given the same interpretation.”

The chancellor also stated:

“... a unitary child support payment including more than one child is not severable and should not be mechanically reduced as each child is emancipated.”

The appellant contends that the chancellor incorrectly interpreted the law applicable to this case, and we agree.

I

Both parties concede that Virginia law must be applied in the interpretation of the divorce decree and the determination of whether the appellant’s financial responsibility ends when his children reach 18 or 21.

The Virginia courts, to date, have not directly addressed the issue now before this Court, that is, the effect of legislation lowering the age of emancipation to 18 on the interpretation of an earlier divorce decree which provides for child support payments until emancipation and which does not incorporate any settlement agreement between the parties. We believe, however, that language in related Virginia cases, coupled with the Virginia Supreme Court’s approval of the approach taken by the courts in North Carolina, indicates that a parent’s duty to make support payments, under the above facts, terminates when a child reaches 18.

In Eaton v. Eaton, 215 Va. 824, 826, 213 S.E.2d 789, 791 (1975), the Supreme Court of Virginia stated:

“Jurisdiction in divorce suits is controlled entirely by statute. Jackson v. Jackson, 211 Va. 718, 719, 180 S.E.2d 500 (1971). Our divorce laws give the court authority to provide for the maintenance and support of ‘minor children.’ Code §§ 20-103, -107.”

The Eaton case involved the interpretation of a child support order, which did not incorporate any previous settlement agreement, in light of the legislation lowering the age of emancipation. The support order did not pre-date the new legislation. The Court said: “... the divorce court’s jurisdiction is eliminated ipso facto when the child reaches his majority.” Id. at 827, 213 S.E.2d at 792. Because the divorce court had no jurisdiction, it could not make further provision for the child.

In Meredith v. Meredith, 216 Va. 636, 222 S.E.2d 511 (1976), the Virginia Court addressed the question of the effect of the new legislation on a divorce decree pre-dating the legislation. That decree incorporated a stipulation and agreement between the parties and provided for support “... until such child shall reach his majority ...The Court held that the duty to support ended when the child reached 18 and said,

“. . . we conclude that the parties intended not to extend Meredith’s duty of child support beyond the period within which, in the absence of an agreement, he would have been liable under Virginia law for such support.” (Emphasis added.) 216 Va. at 638, 222 S.E.2d at 512.

Although the issue was not directly before it, the Court implied that, in the absence of a support agreement specifying otherwise, the effect of the new legislation on earlier divorce decrees would be to stop the duty to provide financial support when a child reaches 18. To the same effect is Mack v. Mack, 217 Va. 534, 537, 229 S.E.2d 895, 897 (1976), in which the Court explained the result as follows:

“. . . minority is a legal status subject to change by the legislature rather than a vested right. . . .”

The Court in Meredith, supra, approved of the North Carolina Supreme Court’s approach to the problem in Shoaf v. Shoaf, 282 N. C. 287, 192 S.E.2d 299 (1972), a case practically identical, factually, to the one now before this Court. It involved the interpretation of a consent judgment for child support which was not preceded by a settlement agreement. Of the Shoaf case, the Virginia Court said:

“There, child support payments were required until the child reached his majority. Subsequently, the age of majority was lowered from 21 to 18. The North Carolina Supreme Court held that majority or minority is a status rather than a vested right and is subject to change by the legislature, and that the court had no power to require child support beyond the age of 18, the age precisely fixed by law for the emancipation of children and the termination of parental liability for their support. (Emphasis added.) 216 Va. at 638, 222 S.E.2d at 512.

In a subsequent North Carolina case, Cason v. Cason, N. C., 247 S.E.2d 673, 676 (1978), (which is relevant because of the approval which the Virginia Court has expressed of the North Carolina approach in Shoaf, supra), the Court said:

“If the legislature had intended to continue pre-existing child support orders beyond the reduced age of majority (18), it would have been very simple to do so. Certainly, the effect of the change in the age of majority upon the hundreds of existing child support decrees or orders was not overlooked. The failure to specifically refer to existing obligations for child support under court orders is persuasive that no intent existed to legislate as to the effect of the change in the age of majority on such child support obligations.”

In light of the above, the Virginia case of Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974), relied upon by the chancellor below, is inapposite. In that case the divorce decree incorporated a property settlement agreement which, according to the Court, clearly bound the parent to support his children beyond the age of legal emancipation. As the above cases make clear, however, when there is no agreement clearly binding the parent, a new statutory age of emancipation will terminate the parent’s duty to support at that earlier age.

We hold, therefore, that under Virginia law, the effect of a statute changing the age of emancipation, or majority, from 21 to 18 upon a duty under a divorce decree pre-dating the new law to provide support “until emancipation” is to terminate the duty at the new age of emancipation, subject to the limitation in Section II, below.

II

The appellant argues, next, that the chancellor erred in ruling that the unitary child support payment must continue until the youngest child is emancipated. We agree.

The recent Maryland case of Becker v. Becker, 39 Md. App. 630, 387 A. 2d 317 (1978), addressed the question of the divisibility of unitary child support awards. In that case, we held that there could be no automatic pro rata reduction in payments based upon one child’s attaining the age of majority. We said:

“... [the] appellant’s obligation to pay child support as provided for in the 1971 divorce decree was not automatically affected by the elder child’s having attained his majority. While the elder child’s having attained his majority may have been grounds, upon proper application by appellant for an order from the circuit court modifying the 1971 decree, appellant made no such application.” 39 Md. App. at 634, 387 A. 2d at 320.

In the case now before this Court, however, there was a proper application to the circuit court by the appellant for a reduction in child support because of emancipation of two of the children. We hold that the chancellor below should have considered the possibility of a reduction in child support payments because of the termination of the father’s duty to support two of the three children. In determining what amount should now be paid by the father, he should apply the criteria set forth in Becker, supra.

Judgment reversed.

Case remanded for further proceedings consistent with this opinion.

Costs to be paid by appellee.

      . The Code of Virginia provides:
      “§ 1-13.42. Age of majority. — (a) Unless a different meaning appears from the context:
      (1) The words ‘infant,’ ‘child/ ‘minor/ ‘juvenile’ or any combination thereof shall be construed to mean a person under eighteen years of age.
      (2) When used to mean or include disability because of age, the term ‘person under disability’ shall be construed to mean or include a person under eighteen years of age.
      (3) The word ‘adult’ shall be construed to mean a person eighteen years of age or over.
      (4) The word ‘infancy’ shall be construed to mean the state of being under eighteen years of age.
      (b) For the purposes of all laws of the Commonwealth including common law, case law and statutory law, unless an exception is specifically provided in this Code, a person shall be an adult, shall be of full age and shall reach the age of majority when he becomes eighteen years of age. (1972, cc. 824, 825.)”

      . Because both parties are residents of Montgomery County, jurisdiction of the Circuit Court for Montgomery County was properly invoked.

      . The termination of the duty to make child support payments is subject to the limitation set forth in Section II of this opinion, below.

      . Although the original divorce decree pre-dated the new legislation, a new support order, subsequent to the new legislation, had been entered. The Court said:
      “This order was a ‘new decree’ for child support. Code § 20-108. This order, and not the prior order of March, 1972, which was entered before the change in law, controlled the father’s duty to pay support.” Eaton v. Eaton, 215 Va. 824, 826, 213 S.E.2d 789, 791 (1975).