author: Liss, J.,

text:
    ROBERT WILLIAM TIPTON v. STATE OF MARYLAND
    [No. 1170,
    September Term, 1977.]

      Decided June 12, 1978.

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

      Ferdinand J. Mack for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Gilbert H Robinette, Assistant Attorney General, Robert C. Nalley, State's Attorney for Charles County, and Richard Starkey, Deputy State's Attorney for Charles County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, Robert William Tipton, was convicted by a jury in the Circuit Court for Charles County of the crimes of manslaughter by automobile and of operating a motor vehicle while intoxicated by the consumption of alcohol. Sentences were imposed and it is from these judgments that this appeal was filed.

The facts as presented at trial indicate that on April 12, 1977 the appellant, after having stopped at a tavern, was operating his truck along a rural road in Charles County. The appellant when he was 15 years old had sustained injuries which resulted in a bilateral shoulder disarticulation which left him with no arms or stumps of arms. The record indicates that he had been operating motor vehicles of various descriptions since he left school in the ninth grade and had had a driver’s license for about 10 years.

Appellant passed his driver’s test in a conventionally equipped automobile with automatic transmission, power brakes and power steering. The license issued to the appellant by the Department of Motor Vehicles had a restriction noted on it requiring that he only operate a vehicle equipped with foot controls. The evidence was that this equipment could be installed only on a Ford vehicle by a company in California, and because of the costs involved the appellant had not had them installed in the various vehicles which he operated. Instead, he operated his conventionally equipped truck with his feet but without the specific foot controls required by the restrictions. In addition to the truck, he operated his own car and several other vehicles in the course of his employment. During the 10 years in which he was licensed, he was involved in two minor accidents, and on neither occasion was he charged with violating the restriction on his license.

On the night of the accident the appellant had spent three and one-half hours in the bar and admitted that he consumed six drinks during that time. Testimony of the witnesses as to his sobriety when he left the bar ranged from “normal” to “not sober.” There was no evidence of excessive speed and the skid marks indicated that he was traveling at about 45 m.p.h. in a 50 m.p.h. speed zone.

The decedent, Andrew Halstead, and a companion were walking for the purpose of observing the stars, in a southbound direction in the west lane of the road known as Chapel Point Road. They saw the appellant’s truck approaching and stepped near the edge of the road with the decedent standing approximately six inches from its edge. The truck’s low beam headlights were on and the appellant was engaged in conversation with a fellow employee in the truck. The appellant’s truck veered to the wrong side of the road, and struck the decedent. The appellant stated that he did not see the decedent until after he struck him and he landed on the hood of the truck. Just before the appellant struck the decedent the other employee yelled “look out” but the warning came too late. Appellant drove to a nearby house to summon the police and an ambulance. The occupant of the house testified that when he saw the appellant he was having difficulty standing up because of intoxication. The police officer who was dispatched to the scene testified that he observed:

“[A] strong odor of alcohol on his breath. His color appeared to be normal. His clothes were mussed. His eyes were watery and moderately bloodshot. While he was standing there talking to me he was constantly swaying. His attitude was extremely polite and his speech was slurred and confused.”

The officer also testified that there were no foot controls on the floor of the appellant’s vehicle.

Appellant testified that although he is a double amputee he never had a problem operating with his feet and toes an ordinary motor vehicle equipped with power steering, power brakes and automatic transmission. He stated that his left leg, the one with which he steers, was hurting him the night of the accident but that this did not impair his driving. The jury was shown a video cassette of the appellant operating a vehicle.

Appellant presents four issues for determination:

“1. Did the court err in receiving in evidence in a case where the charge was manslaughter by automobile, evidence that a restriction on appellant’s operator’s permit required him to use foot controls in the operation of his motor vehicle, which were not installed in his vehicle?
“2. Did the court err in instructing the jury in a manslaughter by automobile case that they ‘may infer or might infer’ a wanton and reckless disregard for human life, and find gross negligence, if they found the defendant had become voluntarily intoxicated, without telling the jury what an inference was, upon what it might be based, or in any way explaining further this instruction?
“3. Are the actions of a driver in a fatal collision, immediately following the accident, relevant in a manslaughter case as bearing on the issues of criminal negligence and a reckless disregard for human life?
“4. Where the evidence showed that the decedent was guilty of negligence, causally connected to his death, did the court err in refusing to instruct the jury that they should consider that conduct in determining whether appellant breached a duty to the decedent, and whether any such breach of duty was a proximate cause of the decedent’s death? ”

1.

Maryland Code (1957,1977 Cum. Supp.) Art. 27, Section 388 provides in pertinent part:

“Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner, shall be guilty of a misdemeanor to be known as ‘manslaughter by automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle/ and the person so convicted shall be sentenced to jail or the house of correction for not more than three years, or be fined not more than $1,000.00 or be both fined and imprisoned.” (Emphasis supplied).

Before the trial on the merits began, appellant filed a motion in limine requesting the trial court to prevent the State from introducing evidence of the restriction on appellant’s driver’s license and his failure to comply with that restriction. Appellant urged that under the holding in Davis v. Gordon, 183 Md. 129, 36 A. 2d 699 (1944), the question of whether he was licensed or unlicensed was irrelevant to the issue of whether he had been grossly negligent in the operation of his automobile.

In Davis, the Court of Appeals had before it a case involving a civil action charging negligence and held that questions inquiring into whether the operator of the vehicle was licensed to drive were improper. The Court stated:

“The defendant was not being tried on a warrant charging him with driving without a license, the charge was a civil suit asking damages caused by his negligence. This question is only asked for the purpose of prejudicing the defendant and inflaming the jury. The only question for the jury to decide was whether the defendant was negligent, and as a result of his negligence the plaintiffs decedent was killed.” Id. 183 Md. at 132.

See: Tri-State Truck and Equipment Co., Inc. v. Stauffer, 24 Md. App. 221, 330 A. 2d 680 (1975).

We find the reasoning of Davis v. Gordon inapposite to the facts in this case. We are here concerned with a case in which the appellant is charged with gross negligence in the operation of his automobile. We defined gross negligence in Boyd v. State, 22 Md. App. 539, 550, 323 A. 2d 684 (1974) as follows:

“It is abundantly clear from the cases that the General Assembly of Maryland imported into the Code the common law concept and meaning of gross negligence. Proof of simple negligence will not support a conviction of manslaughter. Whether the statutory standard ‘in a grossly negligent manner’ has been violated depends upon whether the conduct of the defendant, considering all the factors of the case, was such that it amounted to a ‘wanton or reckless disregard for human life.’ ” (Footnote omitted; emphasis in original).

State of Maryland v. Chapman, 101 F. Supp. 335 (1951).

The trial judge in ruling on the motion in limine was initially required to determine whether the evidence of the restriction on appellant’s license was relevant to the issue of his alleged wanton or reckless disregard for human life. Relevant evidence has been defined as evidence which in some degree advances the inquiry, has probative value and is prima facie admissible. McCormick, Evidence Section 185 (Cleary ed. 1972). We believe, for example, that if appellant’s license had been restricted to operating a vehicle only while using eyeglasses and an accident occurred while the appellant was not wearing eyeglasses, that fact would be admissible as one of the factors to be considered in the case. Cf.: Boyd, supra at 552, n. 2 (driving at night with prescription sunglasses when restriction required use of eyeglasses).

In the case sub judice, the restriction on the license was, we believe, relevant to the issue of wanton and reckless disregard for human life. After determining the relevance of the evidence, there was one other consideration to be weighed by the trial judge before he reached his decision on the motion in limine, i.e., whether there were counterbalancing factors which outweighed the probative value of the evidence sought to be offered. McCormick identifies these counterbalancing factors in the order of their importance as follows:

“First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered and the counter proof will consume an undue amount of time. Fourth, the danger of unfair surprise to the opponent when, having no reasonable ground to anticipate this development of the proof, he would be unprepared to meet it. Id. at 439-40.

In this case only the first two counterbalancing factors are germane to the admission of the evidence sought to be excluded by the motion in limine and these may be considered together. As we perceive the evidence in this case, the trial court’s decision to admit the license restriction into evidence was not prejudicial to the appellant’s case. It opened the door to the appellant to put before the jury evidence that he had been operating standard vehicles for a period of 10 years with only minor incidents, and it permitted him to show the jury a video cassette which demonstrated how he was able to operate his vehicle with his feet without the need for foot controls. All of this evidence came in without objection. If anything, it was more likely to impress the jury with the remarkable skills developed by the appellant in overcoming his handicap. It seems clear to us that the evidence that the appellant was under the influence of alcohol, that he was on the wrong side of the road when he struck the decedent and that he was obviously inattentive immediately prior to the accident were the controlling factors in the jury’s determination that the appellant was guilty of gross negligence. Nor do we think that the evidence of the restricted license was a side issue which distracted the jury from the principal issue. In any case, the balancing of the intangibles — probative value against probable dangers — is essentially a discretionary matter to be determined by the trial judge and in the absence of an abuse of that discretion it will not be disturbed on review. See: Cohen v. State, 173 Md. 216, 195 A. 532, cert. denied, 303 U. S. 660 (1937); Roberts v. State, 4 Md. App. 209, 241 A. 2d 903 (1968) (per curiam); Huber v. State, 2 Md. App. 245, 234 A. 2d 264 (1967); Punch v. United States, 377 A. 2d 1353 (D.C. App. 1977); State v. Anderson, 253 S. C. 168, 169 S.E.2d 706, cert. denied, 396 U. S. 948 (1969).

In view of our conclusion that the probative value of the evidence sought to be excluded was not substantially outweighed by the danger of unfair prejudice or confusion of issues, we find no abuse of the trial court’s discretion.

2.

Appellant contends that it was error for the trial court to refuse to define for the jury the words “may infer or might infer” in the following jury instruction:

“The Court instructs you that if you find from the evidence that the defendant was intoxicated, and I will give you a definition of intoxication later, you might, you may infer or might infer that to voluntarily put yourself into a position to be intoxicated would show a wanton and reckless disregard for human life, to drive a motor vehicle in that condition and that such disregard coupled with other facts, as related, would amount to gross negligence.”

Though it is true that a trial court should give an instruction on every point of law essential to the crime charged and supported by the evidence, it is not necessary that the court give a requested instruction if the matter is fairly covered in the instructions actually given and the jury is not misled on the subject. Bartholomey v. State, 260 Md. 504, 273 A. 2d 164 (1971); Raley v. State, 32 Md. App. 515, 363 A. 2d 261 (1976), cert. denied, 278 Md. 731, cert. denied, 97 S. Ct. 2921; England v. State, 21 Md. App. 412, 320 A. 2d 66 (1974), aff’d, 274 Md. 264 (1975). Our reading of the trial court’s entire charge convinces us that it was clear to the jury that the court was advising them that they had the right to draw certain conclusions from the facts testified to in evidence provided that they found those facts to be true. See: Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd, 278 Md. 197, 362 A. 2d 629 (1976).

3.

Appellant next argues that the trial court erred by refusing to deliver to the jury a requested instruction to the effect that evidence of the appellant’s responsible conduct after the accident could be considered on the issue of whether he acted in a grossly negligent manner at the time of the accident. In support of this contention the appellant cites Blackwell v. State, 34 Md. App. 547, 559, 369 A. 2d 153 (1977), wherein we stated that evidence of the appellant’s “flight from the scene was proper for the jury to consider and may give rise to an inference of guilt... and indeed of a reckless disregard for human life.” He reasons that if bad conduct can show the presence of gross negligence then good conduct can show its absence. The homicide at issue in this case was an unintended one, Blackwell v. State, supra at 554, and it is therefore unlikely that the appellant’s responsible actions after the accident evidenced his state of mind at the time of the accident. Nevertheless, evidence of the appellant’s responsible actions was presented to the jury, the refusal to instruct on its possible effect being the only ground of this contention. Counsel made this argument to the jury. This leads us to conclude that any error which may have occurred was harmless beyond a reasonable doubt as the jury was free to draw whatever conclusions it saw fit from the appellant’s conduct after the accident. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976).

To buttress his contention, the appellant urges that the closing argument of the prosecution to the effect that appellant’s conduct after the accident was irrelevant as to his state of mind compounded the trial court’s error. The record in this case did not include the closing argument of appellant’s counsel and for this reason we are unable to determine the net effect which the prosecution’s argument had on the jury.

4.

Finally, the appellant contends that it was error for the trial court to refuse to deliver a requested instruction as to the possible effect of the decedent’s contributory negligence on the issue of whether the appellant’s gross negligence was a proximate cause of the accident. In this regard we note “that where criminal negligence is the proximate cause of death, the fact that negligence of the victim may have concurred in producing the result would have been no defense.” Blackwell v. State, supra at 559, n. 3; Annot., 20 A.L.R. 3d 473. The court did instruct the jury:

“There is also the fact that the defendant alleges that the victim was not walking on the left side of the roadway facing oncoming traffic.
“The statute, the law does require that an individual walk to the left side of the roadway, facing oncoming traffic. That is a factor to be considered by you in determining, in light of all other circumstances, whether or not the defendant was guilty of wanton and reckless disregard of human life, to determine whether he is guilty of gross negligence.”

This instruction adequately covered the legal point raised by the appellant’s proposed instruction. We find no error.

Judgments affirmed; costs to be paid by appellant.

      . We note that during its 1978 Session the Legislature passed Senate Bill 318 which creates Section 388A to Art. 27, providing in pertinent part:
      “(B) Any person causing the death of another as the result of his negligent driving, operation or control of a motor vehicle while intoxicated is guilty of a misdemeanor to be known as ‘homicide by motor vehicle while intoxicated,’ and the person so convicted shall be punished by imprisonment for not more than two years, or by a fine or [sic] not more than $1000.00 or both fine and imprisonment.” (Emphasis supplied). This bill was signed into law by Acting Governor Blair Lee on May 16, 1978 as Ch. 454 of the Laws of 1978.


source: Caselaw Access Project

license: Public Domain

text:
    EMMETT M. LANIER, JR. v. BANK OF VIRGINIA-POTOMAC
    [No. 1188,
    September Term, 1977.]

      Decided June 12, 1978.

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

      Arthur B. Brisker for appellant.

      George F Paxton for appellee.
   Liss, J.,

delivered the opinion of the Court.

This appeal is from a judgment in the amount of sixteen thousand four hundred fifteen dollars and forty-seven cents ($16,415.47), entered on October 21,1977, in favor of the Bank of Virginia - Potomac (appellee) and against Emmett M. Lanier, Jr. (appellant). The facts behind the entry of judgment may be briefly recounted.

On August 2, 1973, the Bank of Virginia - Potomac lent the sum of fifteen thousand dollars ($15,000.00) to Yum Yum, Inc., a corporation of which appellant was president. On this date, appellant executed a promissory note in favor of the Bank in the face amount of sixteen thousand eight hundred thirty-seven dollars and forty-four cents ($16,837.44). On the front of the note, immediately under the word “Signatures”, are printed the words: “Yum Yum Boutiques, Inc.” Immediately below these words is the printed word “by -” followed by appellant’s signature: Emmett Lanier. Below appellant’s signature appears the half-printed, half-script word: “President.” To the right of this signature under the word “Addresses” appears the address of the corporation.

On the reverse side of the note, atop the first of two lines appears the signature of appellant: “Emmett Lanier, Jr.” followed by the script abbreviation: “pres.” Below appellant’s signature appears his address. In his affidavit in opposition to appellee’s motion for summary judgment, appellant swore that the Bank placed his home address on the note below his signature, subsequent to his having signed the note and left the Bank’s premises. The Bank does not, by affidavit, controvert this statement.

Payments on the note having fallen into default, appellee, on October 7, 1974, filed suit against the corporation and appellant individually. A motion for summary judgment and affidavit in support thereof were also filed on October 7,1974. On January 23, 1975, appellant filed an opposition to appellee’s motion for summary judgment and an affidavit in support thereof. The affidavit recites, in pertinent part:

“2. That the defendant, Emmett M. Lanier, Jr., signed the note which is the subject of the above captioned matter in a Corporate capacity only, and that said note was in the name of Yum Yum Boutiques, Inc., and not in the name of Emmett M. Lanier, Jr.
“3. That none of the proceeds of the Yum Yum Boutiques, Inc. note were received personally by Emmett M. Lanier, Jr.
“4. That subsequent to the Corporate note being executed in the name of Yum Yum Boutiques, Inc., the plaintiff made a new loan to Sugars, Inc., a Maryland Corporation which in effect paid off the loan of the Yum Yum Boutique, Inc. Corporation to the plaintiff, and by so doing, the plaintiffs relinquished any possible rights which it may have had against the defendant, Emmett M. Lanier, Jr., arising out of the Yum Yum Boutiques, Inc. note.
“5. That at the time of the signing of the Corporate note in question, the plaintiff gave to Emmett M. Lanier, Jr. a copy of said note, with his signature on the reverse side as President. That the bank then apparently altered the note subsequent to his leaving the bank and placed his home address and other writings on the note which were alterations which were not authorized by the defendant, Emmett M. Lanier, Jr.”

On September 19,1975, the Circuit Court for Montgomery County (Shure, J.) filed an order denying appellee’s motion for summary judgment, but finding as a matter of law:

“That there have been no material alterations in the note which is the subject matter of this suit; that the endorsement on the rear of said note in the name of Emmett M. Lanier, Pres, is a personal endorsement upon which Mr. Lanier is personally liable; that the only issue still remaining to be decided by the trier of fact is whether or not the note in question was paid off by the execution of a new loan to a corporation not a party to this action....”

A jury trial on the merits of appellee’s declaration was held on October 21,1977. At trial, the court (Fairbanks, J.) limited the issues in accordance with Judge Shure’s earlier ruling. The jury returned a verdict in favor of appellee, and appellant noted a timely appeal to this Court from the judgment entered on that verdict. On appeal, appellant presents two questions for our consideration:

“I. Was the order signed by the Honorable Ralph G. Shure on the 19th day of September, 1975, an Order granting partial Summary Judgment on the issue of liability or was said order a denial of the Motion for Summary Judgment, requiring the entire case to be presented to the trier of fact?
“II. If the order of the Honorable Ralph G. Shure was an order granting Summary Judgment on the issue of liability in favor of the Bank of Virginia - Potomac against Emmett M. Lanier, Jr., personally, was said order rendered in error in view of the fact that questions of fact had been raised in the pleadings and in the Affidavit in Opposition for Summary Judgment, which required the entire case to be tried by the trier of fact?”

We will consider each of these questions in the order presented.

I.

Appellant first contends that the order signed by Judge Shure (filed September 19, 1975, and quoted in part above) was not an order granting partial summary judgment in favor of appellee, but rather was an order denying appellee’s motion for summary judgment, and thus that he should not have been limited at trial to the single issue of whether the note in question was paid off by the execution of a new loan. While we agree with appellant that the order certainly did not, either in whole or in part, grant summary judgment in favor of appellee, we think the order was proper as one limiting the issues pursuant to Md. Rule 610 d.4.

Md. Rule 610 d.4. provides that:

“If on the motion judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, a party shall not be limited at the trial to the facts stated in his affidavit. But in such case, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in the controversy, and direct such further proceedings in the action as justice may require. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”

In the instant case, based on the undisputed facts contained in appellant’s and appellee’s affidavits, Judge Shure ruled as a matter of law that there were no material alterations in the note and that the endorsement on the note in the name of Emmett M. Lanier, pres, was a personal one. Md. Rule 610 d.4. certainly vested Judge Shure with the authority to make such a ruling, and Judge Fairbanks was therefore correct in conducting trial in accordance with Judge Shure’s ruling. Having determined that Md. Rule 610 d.4. vests the court with authority to pass an order limiting the issues at trial, we turn next to the question of whether the issues were properly limited in this case.

II.

As we have heretofore decided that Judge Shure had the authority under the Maryland Rules to make the rulings which he did make, the sole remaining question to be decided by this appeal is whether his conclusions that as a matter of law there were no material alterations in the note and that the endorsement of the note in the name of “Emmett Lanier, Jr., pres.” was a personal endorsement were correct. At argument, counsel for appellant conceded that the subsequent addition of the appellant’s home address under the endorsement was not a material alteration within the meaning of the Uniform Commercial Code.

We conclude that Judge Shure was correct in his decision that as a matter of law the endorsement on this note was a personal one. We believe that Maryland Code (1975, 1977 Cum. Supp.) Commercial Law Art., Sections 3-402 and 3-403 are controlling. Section 3-402 provides, “Unless the instrument clearly indicates that a signature is made in some other capacity it is an endorsement.” The official comment to this section of the Code provides:

“[t]he revised language is intended to say that any ambiguity as to the capacity in which a signature is made must be resolved by a rule of law that it is an endorsement. Parol evidence is not admissible to show any other capacity, except for the purpose of reformation of the instrument as it may be permitted under the rules of that particular jurisdiction. The question is to be determined from the face of the instrument alone, and unless the instrument itself makes it clear that he has signed in some other capacity, the signer must be treated as an indorser.”

Section 3-403 (2) provides in pertinent part:

“(2) An authorized representative who signs his own name to an instrument.
“(b) Except as otherwise established between the immediate parties, is personally obligated ... if the instrument does not name the person represented but does show that the representative did sign in a representative capacity.”

The official comment to this section suggests that parol evidence may be admitted in litigation between the immediate parties to provide that the signature by an agent was made in his representative capacity, but the section specifically states that liability is personal “except as otherwise established between the immediate parties.”

The case law in Maryland is in accord with the language of the U.C.C. Prior to its adoption, the Court of Appeals held in Belmont Dairy Co. v. Thrasher, 124 Md. 320, 92 A. 766 (1914), that where an officer of a corporation endorses his name to a promissory note with the addition of his official title but without the name of the corporation or a designation of whom he is acting in a representative capacity for, he is prima facie personally liable. In order to overcome this presumption it was held that the endorser was required to prove that when the note was issued there was an understanding between the parties that he was signing his name merely to complete the signature of the corporation or other party whom he represented. The Court stated that “where an agent makes a promissory note to a third person in terms sufficient to bind himself as principal, the mere addition of the word agent or other description of his office or capacity to his signature does not change or vary the legal effect of the promise itself.” Id. at 325. See also: Lesser v. Todd Cigarette Service Co., Inc., 267 Md. 524, 298 A. 2d 151 (1973). In Knipp v. Bagby, 126 Md. 461, 95 A. 60 (1915), a trustee who executed a mortgage by adding the designation “trustee” after his signature was held to be personally liable.

Appellant relies principally on the case of Emala v. Walter G. Coale, Inc., 244 Md. 159, 223 A. 2d 177 (1966), but the facts make it inapposite to the case sub judice. In Emala, the testimony indicated that Coale began selling farm implements to Emala’s corporation, known as Emala Associates. Several years later, Coale sought additional security and persuaded Emala to endorse the notes securing payment in an individual capacity. Subsequently, Emala began to endorse the notes with his name followed by the designation “pres.” Coale attempted to persuade Emala that he eliminate the designation “pres.” after his signature and that he continue to sign the note individually. Emala made it clear to Coale that he would not comply with his request and specifically advised Coale that he was adding the designation “pres.” to his name because he did not intend to be liable personally for the debt. Coale accepted the note endorsed with “pres.” on those conditions. When the corporation defaulted Coale attempted to hold Emala personally liable, and the Court held that given the conduct and the conversations between the parties it was apparent that there was a specific agreement that Emala was not to be responsible personally on his endorsement.

When we compare the facts in this case with Emala it is obvious that a different result must be reached. Appellant made the bald allegation in his opposition to plaintiffs motion for summary judgment that he had “signed this note in a corporate capacity only,” and reiterated in his supporting affidavit that he had “signed the note which is the subject matter of the above-captioned matter in a corporate capacity only____” There is nothing in the affidavit which even remotely suggests that there was an agreement between the appellant and the Bank that he was endorsing the note in a representative capacity and was not to be held personally responsible for his endorsement. As a matter of fact, unless he was intended to be personally responsible, the endorsement itself would have been an exercise in futility since the appellant had already signed as the chief executive officer of the corporation in its capacity as maker of the note. Under the circumstances, the supporting affidavit to appellant’s opposition to the motion for summary judgment raised no genuine factual dispute between the parties.

In light of the provisions of Sections 3-402 and 3-403 of the U.C.C., these bald assertions are not sufficient to raise a genuine dispute as to any material fact and Judge Shure was correct in his determination that as a matter of law the endorsement by the appellant was a personal one. Judge Shure was careful to reserve for determination by the jury the issue on which there was a genuine dispute as to fact, i.e., the issue of extinguishment of Yum Yum’s and appellant’s liability by reason of the execution of the new note by Sugars, Inc. Appellant and Yum Yum were not successful in this contention and judgments were entered against the appellant and Yum Yum. We find no error.

Judgment affirmed; costs to be paid by appellant.

      . This is so, notwithstanding the fact that Judge Shure indicated to Judge Fairbanks that he “intended to grant partial summary judgment to the plaintiff on two of the three issues.” (i.e., whether there was a material alteration of the note and whether appellant’s signature on the reverse side of the note constituted a personal endorsement). The order itself, as well as the docket entry based on the order, both indicate that appellee’s motion for summary judgment was denied.


author: Wilner, J.,

text:
    KETTLER BROTHERS, INC. v. DEPARTMENT OF LICENSING AND REGULATION, DIVISION OF LABOR AND INDUSTRY FOR THE STATE OF MARYLAND
    [No. 1202,
    September Term, 1977.]

      Decided June 12, 1978.

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

      James R. Trimm, with whom were Trimm, Donohue, McDanald, Willis & McGuckian on the brief, for appellant.

      Walter Timothy Seidel, Assistant Attorney General, with whom was Francis Bill Burch, Attorney General, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

By Laws of Md., 1973, ch. 59, the General Assembly enacted the Maryland Occupational Safety and Health Law, patterned largely after the Federal Occupational Safety and Health Act of 1970. A thorough, but concise, history of the Maryland Act and the regulations promulgated under it, is set forth in J. I. Hass Co. v. Dep't. of Lic. and Reg., 275 Md. 321 (1975).

The primary purpose of the Act, as stated in its title, was “to assure safe and healthful working conditions for the citizens of the State of Maryland by providing for the establishment of safety and health standards, procedures for enforcement of and compliance with such standards, and penalties for violation thereof____” This important and laudable purpose is to be carried out through a cooperative effort among the State government, represented by the Division of Labor and Industry of the State Department of Licensing and Regulation, employers, and employees, each of whom are given certain correlative rights and responsibilities.

The State’s role in this partnership consists primarily of the adoption and enforcement of basic occupational safety and health standards. Section 31 of article 89 authorizes the Commissioner of Labor and Industry, with the advice of the Occupational Safety and Health Advisory Board, to adopt reasonable rules, regulations, and standards “for the prevention of conditions detrimental to safety and health in every employment or place of employment in the State----” Section 35 permits the Commissioner, or his representatives, to enter and inspect virtually every place of employment to make certain that there is actual compliance with these regulations. If he finds a violation of one or more of the regulations, he is authorized by § 36 to issue a written citation and by § 37 to propose a civil penalty. If the employer contests the citation, he is entitled to a hearing before a hearing examiner; and, if aggrieved by the decision of the hearing examiner, he is entitled to review by the Commissioner. From a final order of the Commissioner, § 38 provides for judicial review.

Section 32 sets forth the basic responsibilities of employers and employees. Subsection (a) requires each employer to (1) “furnish to each of his employees employment and a place of employment which are safe and healthful as well as free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” and (2) comply with the regulations promulgated by the Commissioner. Subsection (b) obligates each employee to comply with all such regulations “which are applicable to his own actions and conduct in the course of his employment.”

The heart of the enforcement mechanism to assure compliance with the Commissioner’s regulations is the imposition of civil penalties, provided for in § 40, although criminal penalties are also possible under § 41. Only employers are subject to these penalties; there are no direct sanctions in the law applicable to employees who fail to comply with their obligation under § 32 (b). Section 40 views violations as being of three possible types: (1) willful or repeated violations, for which an employer may receive a civil penalty not to exceed $10,000 for each violation; (2) serious violations, for which the employer shall be assessed a penalty not to exceed $1,000 for each such violation, and (3) other than serious violations, for which the employer may be assessed a penalty not to exceed $1,000 for each such violation.

We are concerned in this appeal with definitional aspects of “serious” and “other than serious” violations. Section 40 (b) states that a “serious” violation shall be deemed to exist in a place of employment,

“... if there is a substantial probability that death or serious physical harm could result from a condition which exists or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such place of employment unless the employer did not and could not with the exercise of reasonable diligence, know of the presence of the violation(Emphasis supplied.)

No definition is provided in the law for an “other than serious” violation. Section 40 (c) simply provides that:

“Any employer who has received a citation for a violation of any provision of this subtitle or any rule, regulation, standard, or order promulgated pursuant to this subtitle and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty not to exceed $1,000.00 for each such violation.”

There is no language in the statute that, in the manner of § 40 (b), makes employer knowledge, actual or constructive, a pre-condition to or requisite element of a violation that is not found to be “serious”. The question before us is whether the law implies such a condition notwithstanding the statutory silence.

Kettler Brothers, Inc. was in the process of constructing 96 townhouses in a development near Gaithersburg known as Montgomery Village, when, shortly after 10:00 on the morning of September 29, 1976, Mr. Henry McCoy made a surprise visit to the jobsite. Mr. McCoy is an inspector for the Maryland Occupational Safety & Health Agency (MOSHA). He had with him a Federal Compliance and Health Officer, and was there to conduct a scheduled “target industry inspection” — i.e., to see if there were any unlawful safety violations.

As they toured the jobsite, escorted by the project superintendent, Robert Franklin, their attention was drawn to two men working on a scaffold. The manner in which that scaffold had been constructed led to the issuance of two citations. Citation No. 1 charged that the pump jack scaffold was not equipped with standard guardrails, midrail and end rails, in violation of 29 CFR 1926.451 (y) (ii), which was characterized as a “serious” violation. Citation No. 2 charged six “other than serious” violations, five of which also pertained directly or indirectly to the scaffold, and one concerned an unrelated condition that was corrected while the inspector was still on the scene.

Along with the two citations, MOSHA sent Kettler a notification that it intended to seek a civil penalty of $340 for the serious violation charged in Citation No. 1, and a penalty of $280 for two of the six “other than serious” violations charged in Citation No. 2

In accordance with § 37, a hearing on these citations was held before a hearing officer. There was little dispute that the conditions specified in the Citations were, in fact, present, or that they violated the standards mentioned in the Citations. This was established through the testimony and exhibits offered by Mr. McCoy, and, to some extent was corroborated by the testimony of Mr. Franklin, on behalf of Kettler. The “whole substance” of Kettler’s defense, as stated in its subsequent appeal to the Commissioner was “whether the violation was caused by the employer or caused by the very employees involved in the construction of the scaffolding.”

Kettler’s sole contention before MOSHA (the hearing examiner and the Commissioner), the Circuit Court for Montgomery County, and this Court is that the scaffold was erected, and used, without the knowledge of the Kettler supervisory personnel and in violation of clear, published company safety rules, and that, under those circumstances, Kettler may not be deemed to have violated the MOSHA standards, and certainly not penalized for such violations.

The relevant facts pertaining to this issue, as developed at the administrative hearing, were these:

(1) The scaffold had been erected earlier that morning by the two employees found working on it (assisted by a third employee). According to McCoy, “They told me they just put it up that morning and started working on it just before we got there.” The record does not indicate when the three employees began to build the scaffold or how long it took to erect the structure.

(2) Mr. Franklin, the project superintendent, was not present when the scaffold was erected; but, as noted (footnote 5, supra), he observed it prior to its use when he and Mr. McCoy toured the site. He agreed that it was not proper, and claimed that “had we seen the scaffold built in that manner [we] would never have let them get up on the scaffold in the first place.” In Mr. Franklin’s absence, there is' a “trim foreman” and a “frame foreman” in charge. The “frame foreman” was not at the jobsite on the day in question, but the “trim foreman” was present. According to Franklin, this “trim foreman”, David Hill, was trimming when the scaffold was built. The record does not reflect whether Mr. Hill, or anyone else, observed or supervised the erection of the scaffold.

(3) According to Richard Hines, the construction superintendent for Kettler, the employer does not allow unqualified persons to erect scaffolding. However, he did not state, or even suggest, that the three employees who built this scaffold were unqualified. No one has to “authorize” the building of scaffolding — the employees “normally build the scaffold on their own.” Hines further stated that it is not a normal practice for the job supervisor to watch the scaffold being built; rather, he said, the procedure is for the job supervisor to inspect the scaffold after it is built, and the employees are not supposed to work on it until such inspection has taken place.

(4) Kettler has prepared a series of “safety work rules”, one of which provides: “If you work on scaffolding, be sure that guardrails are in place. Report unsafe scaffolding to your supervisor.” Mr. Franklin stated that each employee of Kettler is made aware of these rules, and is subject to discipline for violating them. No one made a report to Franklin, or apparently any other supervisory employee, of the unsafe condition of the scaffold.

(5) The procedure mentioned by Mr. Hines — that employees are not to begin using a scaffold until it has been inspected — is not formalized in the safety work rules. In this instance, no such inspection was made; and, to the extent that the procedure represents company policy, it was apparently violated by the two employees involved.

(6) Kettler has an extensive general safety program for its employees, which includes financial incentives for maintaining safe conditions and discipline for violating safety rules. Mr. McCoy gave Kettler high marks for its general safety program, but stated that, at this particular site, the implementation of that program was only “average”. He testified that this site appeared to be “in a much less safe condition” than other Kettler construction sites he had visited.

Upon this evidence, the hearing examiner agreed with Mr. McCoy that a “serious” violation occurred, as charged in Citation No. 1, and that five of the six “other than serious” violations charged in Citation No. 2 also existed. He found, in addition, that the penalties recommended by Mr. McCoy, aggregating $620, were appropriate. Aggrieved by these determinations, Kettler sought review by the Commissioner of Labor and Industry who summarily affirmed the conclusions reached by the hearing examiner.

Kettler then appealed to the Circuit Court for Montgomery County, which found that the record clearly supported the administrative determinations as to the “other than serious” violations, and those determinations (and the penalties entered with respect to them) were affirmed. With regard to the “serious” violation charged in Citation No. 1, however, the court found that Kettler had neither actual nor constructive knowledge, which, it concluded § 40 (b) made a prerequisite for a “serious” violation. Accordingly, the court reversed that determination and remanded the matter to the Commissioner “for the proper imposition of a penalty as other than a serious violation.” No appeal was taken by the Commissioner from that part of the judgment.

Kettler points to the decision of the Court of Appeals in J. I. Hass Co. v. Dep’t of Lic. and Reg., supra, 275 Md. 321, and a number of federal cases arising under the Federal Act as authority for the proposition that “knowledge [i.e., foreknowledge] is an essential element in both ‘serious’ and ‘non-serious’ violations”, and that, consequently, absent proof of such knowledge, an employer may not be found culpable of and penalized for a “non-serious” violation. As clarified by counsel at oral argument, appellant’s contention, more precisely, is that the statutory condition set forth in § 40 (b) with respect to a “serious” violation — no violation “unless the employer did not and could not with the exercise of reasonable diligence, know of the presence of the violation” — also is applicable, by implication, to “other than serious” violations, and that Kettler did not possess that degree of knowledge with respect to the deficient scaffold.

In Hass, the employer was engaged in painting the new span of the Chesapeake Bay Bridge. Two employees, while being lowered into position to do some sandblasting, fell 40 feet into the Bay when a winch cable unravelled and their scaffold collapsed. One of the employees died from the fall.

The employer was charged with violating two safety standards, both violations having been characterized as “serious and repeated”. One involved the failure to ensure that the employees were wearing safety belts secured by a part of the bridge, and the other resulted from the failure to have guardrails 42 inches high, with a midrail and toe boards, in use on all four sides of the scaffold. Some six weeks earlier, the employer had been cited, and penalized, for similar violations following the death of another employee, which it did not contest.

The particular relevance of Hass arises from the Court’s discussion of the first of the two violations. The employer had provided lifelines (safety belts) for the employees that were, in fact, secured to the bridge. The problem was that these employees, fearful of becoming ensnarled in the lines while the scaffold was being lowered, had unhooked their belts moments before the accident occurred. The employer argued, as the Court stated, “with considerable logic”, that if the standard were read to require that the belts be worn rather than furnished, it “would impose a requirement incapable of being met — constant surveillance by at least one monitor for each pair of workmen.” Evidence of deliberate, specific, and persistent attempts by the employer to encourage employees to wear safety belts was noted.

The Court drew upon a number of federal cases, both judicial and administrative, holding that the comparable Federal Act was not intended to impose “strict liability” on the employer, but rather to eliminate only “preventable hazards”, and that a requirement that “each employee be constantly watched by a supervisor, would be totally impractical and, in all but the most unusual circumstances, an unnecessary burden.” Finding that “the common thread running through these cases ... is that the employer cannot be charged with being an insurer, or be held accountable to a standard of strict liability”, and that, under the State law “the effort made by the employer to prevent hazards is the focal point, not the happening of the accident”, the Court reversed the determination with respect to the first (safety belt) violation.

The concepts enunciated by the Court in Hass, whether originally or through quotations from earlier decisions by other tribunals, appear to represent somewhat of an amalgamation of three distinct, yet inter-related, defenses that have been asserted with mixed success to charges under the Federal Act. These are: (1) impossibility of compliance, (2) isolated occurrence, and (3) employee resistance. See Hogan and Hogan, Occupational Safety and Health Act, Vol. 1,1977, § 4.03.

The first of these — impossibility of compliance — appears to be very limited in scope, and not truly applicable to the situation here. It requires a showing that compliance with the standard is actually impossible, and not merely inconvenient or expensive. According to Hogan and Hogan, supra, the elements of this defense are “(1) That compliance with the applicable OSHA standard would stop or severely hinder ongoing operations; and (2) that alternative safety measures are either being diligently attempted or are impossible under the circumstances.” Neither of these elements has been shown to exist in this case.

The “isolated occurrence” defense may have arisen from a 1972 decision of the Federal OSH Review Commission. In Secretary v. Standard Glass Co., 1971-1973 OSHD (CCH) ¶15,146 (1972), the Commission held that where an employer had done virtually everything possible to assure that its employees wore their “hard hats”, it was not subject to penalty because two employees were found without the hats on, in violation of company rules. The Commission stated, in explanation of its decision, that,

“An isolated brief violation of a standard by an employee which is unknown to the employer and is contrary to both the employer’s instructions and a company work rule which the employer has uniformly enforced does not necessarily constitute a violation” [of the Act by the employer].

Cases in which this defense has been successful have often involved either wearing apparel (hardhats or safety gloves ) or personal safety equipment such as belts or lines i.e., devices that the employee can easily unhook or take off quickly, momentarily, and, in the absence of constant, and impractical, monitoring, without detection. In that, or generally similar, context, the occurrence is often the product of the individual employee’s personal resistance to complying with the safety standard, as in Hass, or deliberate disobedience or disregard of specific instructions or warnings by the employer, regardless, and indeed in spite, of all reasonable efforts by the employer to enforce compliance, and may, from the employer’s point of view, actually border on impossibility of assuring compliance. Thus, the nexus between the second and third defenses is a very close one in many instances.

This is not the case here, however. These violations were not momentary or beyond reasonable efforts at detection. It must have taken some time to erect the scaffold, and the deficiencies in its construction were easily recognizable. The “trim foreman” was at the jobsite. Mr. Franklin himself noticed the scaffold, with its obvious deficiencies, prior to its being used, and yet did nothing to call someone’s attention to the problem or to require that the unsafe condition be corrected. Even if the statutory criterion of employer knowledge governing a “serious” violation were, by implication, applicable to “other than serious” violations, we cannot agree with Kettler, under the circumstances evident here, that “the employer ... could not with the exercise of reasonable diligence, know of the presence of the violation.” There was sufficient evidence in the record from which the administrative agencies and the Circuit Court could reasonably have found that the quantum of “constructive” knowledge required of the employer under § 40 (b) existed in this case. We therefore need not consider whether, as an abstract proposition, such knowledge is, in fact, required for an “other than serious” violation.

With the existence of sufficient evidence to show that, with the exercise of reasonable diligence, Kettler could have become aware of and thus have prevented the defective condition, the evidence pertaining to its general safety program loses much of its relevance. See Green Mt. Power v. Com'r of Labor and Industry, 383 A. 2d 1046 (Vt., 1978), where, at page 1053, the Supreme Court of Vermont observed:

“Delegating the responsibility of implementing the company’s safety policies to rank and file employees, while under the immediate supervision of managerial personnel, does not comport with either the letter or the spirit of VOSHA. To hold otherwise would mean that once an employer provides its employees with safety equipment and issues orders or instructions regarding the safe use of that equipment, the employer is free to disregard the employee’s actual compliance with those instructions. To say the company invokes disciplinary measures for noncompliance with its safety rules is not enough. Although such after-the-fact measures are within the intendment of the Act, actual supervision during the performance of a job, where feasible, also is intended.”

Judgment affirmed; appellant to pay the costs.

      . See Md. Annot. Code art. 89, §§ 28-49B.

      . More particularly, by the Commissioner of Labor and Industry, who heads the Division, the Occupational Safety and Health Advisory Board, and the Maryland Occupational Safety and Health Agency, both of which are units within the Division.

      . In this Opinion, our use of the term “regulations” encompasses as well rules, standards, and orders. We note here the very recent decision of the United States Supreme Court in Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978) placing restrictions on warrantless inspections by Federal OSHA officials. Suffice it to say that Kettler did not raise any objection to the inspection in this case.

      . Additional, and more particular, rights, duties, and responsibilities of employers and employees are provided in other sections of tne subtitle.

      . Mr. Franklin stated that, when they first came upon the scaffold, no one was on it. He and Mr, McCoy then walked behind the building, and when they came back around to the front, the two employees were on the scaffold working.

      . References are made to Federal Regulations because they have been “adopted” as State standards by MOSHA. See COMAR, Vol. V, Title 9, Supp. 1, p. 358.

      . The proposed penalties were determined by a formula that considers the standard violated, the number of instances of violation, and whether the violation is “serious” or “other than serious”, and then assigns a weight, ranging from 0 to 10, to four factors: the gravity of the violation, the good faith of the employer, the history of violations by the employer, and the number of employees working for the employer. Ño complaint is made by Kettler with respect to the amount of the penalties or to the method by which they were calculated.

      . No penalty had been proposed with respect to the alleged violation found not to exist.

      . The effect of this, at least implicitly, was agreement that the condition alleged in Citation No. 1 existed and that it constituted a violation of 29 CFR 1926.451 (y) (ii), but that, because of the lack of actual or constructive knowledge on Kettler’s part, it could not constitute a “serious” violation.

      . National Rlty. & C. Co., Inc. v. Occupational S. & H. R. Comm’n, 489 F. 2d 1257 (D.C. Cir., 1973); see 275 Md. at 331, 332.

      . Secretary of Labor v. Canrad Precision Industries, Inc., 1971-1973 OSHD (CCH), ¶ 15, 355 (1972), aff’d Brennan v. Occupational Safety & Health Review Comm’n, 502 F. 2d 946 (3rd Cir., 1974); see 275 Md. at 332.

      . Each of these defenses, of course, is but an aspect or particular application of the more basic claim of employer “unforeseeability” and "unpreventability”. The discussion of them arose initially in the context of citations for “serious” violations of the “general duty” clause (i.e., the general obligation, stated both in 29 U.S.C. § 654 (a) (1) and in Md. Annot. Code art. 89, § 32, to provide a place of employment that is safe, healthful, and free from “recognized hazards” likely to cause death or serious harm. See, for example, National Rlty. & Co., Inc. v. Occupational S. & H.R. Com’n, supra, 489 F. 2d 1257. In subsequent cases, the same principles of foreseeability and preventability applicable to charges under the “general duty” clause were held applicable to alleged violations of specific standards . (29 U.S.C. § 654 (a) (2)), upon the theory that “the employer’s task of guarding against the aberrational action of specific employees who violate specific safety standards is essentially no less difficult than under the f eneral duty clause.” See Atlantic & Gulf Stevedores v. Occupational Safety, 34 F. 2d 541 (3rd Cir., 1976); Cape & Vineyard Div. v. Occupational S. & H. Rev. Com’n, 512 F. 2d 1148 (1st Cir., 1975). The Maryland Court of Appeals recognized no distinction in Hass which, as noted, involved alleged violations of specific standards.

      . This passage was quoted by the Court of Appeals in Hass. See 275 Md. at 333.

      . See Secretary v. Champlin Petroleum Co., 1975-1976 OSHD (CCH) ¶19, 981 (1976).

      . See Secretary v. Utilities Line Construction Co., 1976-1977 OSHD (CCH) ¶21, 098 (1976).

      . Hass, 275 Md. 321; also Secretary v. Texas Window Cleaning Co., 1975-1976 OSHD (CCH) ¶20,150 (1976).

      . Brennan v. Occupational Safety & Health Review Com’n, 501 F. 2d 1196 (7th Cir., 1974); Horne P. & H. Co. v. Occupational S. & H. Review Com’n, 528 F. 2d 564 (5th Cir., 1976); Brennan v. Butler Lime and Cement Company, 520 F. 2d 1011 (7th Cir., 1975).


author: Couch, J.,

text:
    IN RE: NO. 1140, S.T. 1977 from the Circuit Court for Cecil County, sitting as a Juvenile Court
    [No. 1140,
    September Term, 1977.]

      Decided June 13, 1978.

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

      John W. Sause, Jr., District Public Defender, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County, and Joseph J. Mahoney, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Appellant has taken this appeal from an order of the Circuit Court for Cecil County, sitting as a Juvenile Court, adjudicating appellant to be delinquent and committing him to the Maryland Training School for Boys for an indefinite period, subject to a minimum committal to that institution of one year. The order also provided that, upon release, appellant would be placed on probation for an indefinite period.

One issue is raised in this appeal:

“Did the Court have the authority to prescribe a minimum period of confinement?”

Several statutory provisions govern the disposition of the juvenile after he has been adjudicated delinquent. See especially Md. Code (1974), Courts and Judicial Proceedings Article, § 3-820. The statutory provision pertinent to the question presented in this case is Md. Code (1974), Courts and Judicial Proceedings Article, § 3-825, which deals with the period of time a disposition order may remain effective. Section 3-825 provides:.

“(a) Except as provided in subsections (b) and (c), an order vesting legal custody in an individual, agency, or institution is effective for an indeterminate period of time.
(b) An order providing for custody of a child adjudicated delinquent or in need of supervision may not exceed three years from the date entered. However, the court may renew the order upon its own motion, or pursuant to a petition filed by the individual, institution, or agency having legal custody after notice and hearing :as prescribed by the Maryland Rules.
(c) An order under this section is not effective after the child becomes 21 years old.”

The precise question presented in this case, whether the Juvenile Court may impose a minimum period of confinement under § 3-825, has never been addressed by this Court or the Court of Appeals. We are not compelled, however, to consider the question in a vacuum. The express purposes of the juvenile justice process in Maryland, as envisioned and enacted by the General Assembly, provide a guide for the construction of § 3-825.

Section 3-802 of the Courts Article provides:

“(a) The purposes of this subtitle are:
(1) To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest;
(2) To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior;
(3) To conserve and strengthen the child’s family ties and to separate a child from his parents only when necessary for his welfare or in the interest of public safety;
(4) If necessary to remove a child from his home, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents.
(5) To provide judicial procedures for carrying out the provisions of this subtitle.
(b) This subtitle shall be liberally construed to effectuate these purposes.”

The courts, in similar terms, have followed § 3-802 in expressing the broad goals of the juvenile court system. Moquin v. State, 216 Md. 524, 528, 140 A. 2d 914, 917 (1958). This Court stated in In re Appeal Misc. No. 32, 29 Md. App. 701, 351 A. 2d 164 (1976):

“Juvenile proceedings are of a special species that has been designed by the General Assembly in response to a particular need and to meet a peculiar problem. The dispositions of the juvenile court are not to be considered as punishment for a crime nor are adjudications of delinquency ‘convictions’, as that word is generally applied with respect to criminal proceedings----Judges in juvenile cases do not think in terms of guilt, but rather in terms of the need of the child for protection, guidance, or rehabilitation.”

29 Md. App. at 704, 351 A. 2d at 165.

Of special importance to the question before us are §§ 3-806 and 3-826 of the Courts Article, and Md. Rule 916. Section 3-806 provides for the continuation of jurisdiction over a juvenile by the juvenile court, once obtained. Section 3-826 provides for periodic progress reports to the juvenile court by the juvenile’s custodian, including recommendations for further treatment or rehabilitation. Maryland Rule 916 provides that an order of the juvenile court may be modified or vacated if the court finds that action to be in the best interest of the child or the public. The operation of Rule 916 is unlimited with respect to the time running from the original order.

These provisions indicate that the dispositional process is directed toward the termination of a committal or other disposition when the juvenile court finds the child to be rehabilitated, and directed away from setting mandatory periods of commitment, which would be more in the nature of punishment.

Read in light of the expressed purposes of the juvenile justice process, and the procedures created, the intent of § 3-825 is clear. The juvenile court may not impose a minimum period of commitment on a juvenile who has been adjudicated delinquent.

Section 3-825 read as a whole dictates this result. Subsection (a) provides that every period of commitment shall be indeterminate in length, subject to the maximum limits imposed by subsections (b) and (c). If indeterminate is read to mean, as the State would have it, only that no maximum period of commitment may be ordered, the use of “indeterminate” is rendered practically nugatory. Subsections (b) and (c) impose maximum limits, setting them at three years and the age of twenty-one of the juvenile, respectively. Thus on the one hand, given the State’s reading, the juvenile judge may not impose a maximum, while on the other, the statute itself imposes a maximum.

If “indeterminate” is read to mean that no minimum period of commitment may be ordered, however, the term is meaningful in the context of § 3-825, read as a whole. Such a reading is also entirely consistent with the purposes expressed by the General Assembly, and the particular provisions set out above, which envision a release from commitment or probation when rehabilitation of the juvenile has been accomplished.

Accordingly, we hold that the juvenile court erred in imposing a minimum period of commitment.

Order reversed; case remanded for proceedings consistent with this opinion.

Costs to be paid by Cecil County.

      . “... in ascertaining the intention of the General Assembly all parts of a statute are to be read together to find the intention as to any one part, that all parts are to be reconciled and harmonized if possible, and ... a statute is to be read so that no word, clause, sentence, or phrase shall be rendered surplusage, superfluous, meaningless, or nugatory.”
      Gillespie v. R & J Const. Co., 275 Md. 454, 457, 341 A. 2d 417, 418-419 (1975).


author: Moore, J.,

text:
    PEOPLES NATIONAL BANK OF MARYLAND v. AMERICAN FIDELITY FIRE INSURANCE COMPANY
    [No. 1214,
    September Term, 1977.]

      Decided June 13, 1978.

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

      Thomas B. Yewell for appellant.

      T Roger Harrison, with whom were Herbert H Hubbard, Steven K. Redder and Weinberg & Green on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This is an appeal from an Order of the Circuit Court for Prince George’s County (Ernest A. Loveless, J.) granting summary judgment in favor of the plaintiff, American Fidelity Fire Insurance Company, and awarding damages against the defendant, Peoples National Bank of Maryland, for wrongful payment to a single indorser on a check made payable to joint payees. We are in agreement with the ruling of the lower court that a cause of action in conversion was stated under Md. Com. Law Code Ann. § 3-419 (1975), and we adopt the opinion of Judge Loveless as set forth below:

“Plaintiff, American Fidelity Fire Insurance Company (hereafter, American Fidelity), brought this action in conversion against the defendant, Peoples National Bank of Maryland. Both parties have moved for summary judgment. The facts are not in dispute.
“The plaintiff was surety on a payment bond for work to be performed by Floors, Inc. for the United States of America. Floors, Inc. was bound contractually to furnish and install stairway landings and treads for Federal Building No. 2 in Arlington, Virginia. A subcontractor, American Mason Safety Tread Co., Inc., furnished the landings and treads to Floors, Inc., demanded payment of $44,200 from Floors, Inc., but was not paid. The subcontractor then demanded payment from American Fidelity. American Fidelity paid the $44,200 from its own funds and then arranged for payment to be made directly from the United States of America to itself and Floors, Inc., to permit deduction of the sum of $44,200. The United States of America issued a check of the United States Treasury drawn on the General Services Administration in the amount of forty-nine thousand three hundred fourteen dollars and forty-seven cents ($49,314.47) payable as follows:

‘Floors, Inc. American Fidelity Fire Insurance Company 8400 Truck Way Capitol Heights, Md. 20037.’

“Floors, Inc. indorsed the check by way of a rubber stamped indorsement as follows:

‘For Deposit Only Floors, Inc.’

“On January 6, 1976, the defendant, Peoples National Bank of Maryland, accepted for deposit the check in question. The only indorsement which appeared on the check was the rubber stamped indorsement of Floors, Inc. The defendant did not obtain the indorsement of American Fidelity Fire Insurance Company. The defendant credited the amount of the check to the account of Floors, Inc. This action was taken without the knowledge of the plaintiff. A significant portion of the funds deposited was withdrawn within a week. Plaintiff was required to pay the subcontractor under the terms of its surety agreement, and upon default of Floors, Inc. was required to arrange for completion of the contract.

“Following acceptance of the check by Peoples National Bank, the check was forwarded to the Federal Reserve Bank of Baltimore City, which gave credit to Peoples National Bank, and the Federal Reserve then forwarded the check to the United States Treasury, which credited the Federal Reserve.

“Plaintiff, American Fidelity, argues that, since the defendant bank credited the entire proceeds of the check to one of two jointly-named payees without knowledge of or indorsement by the other payee, it exercised dominion over the check which amounted to conversion. Reliance is placed upon Md. Com. Law Code Ann. § 3-116 (1975), which provides as follows:

‘An instrument payable to the order of two or more persons
(a) If in the alternative is payable to any one of them and may be negotiated, discharged or enforced by any of them who has possession of it;
(b) If not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.’

In plaintiffs view, since the two payees were listed on the check without any indication on the face of the check that it was payable in the alternative, the instrument could not be negotiated by only one of the payees.

“In addition to the statute, plaintiff relies on a California case, Feldman Construction Co. v. Union Bank, 104 Cal. Rptr. 912 (1972). In that case the check in question was drawn:

‘Interstate Steel Corp. General Pipe and Supply.’

The California court found that the bank was negligent in paying on the check which was only indorsed by one of the payees. The court wrote, ‘the absence of “and” or “or” is not controlling.’ 104 Cal. Rptr. at 913.

“The defendant, Peoples National Bank, contends on the other hand that the decisive issue in determining whether a check is payable in the alternative is the drawer’s intent. The thrust of defendant’s argument is that since the United States Treasury eventually honored the check, which was payable to two payees but only indorsed by one, this is evidence of an intent to pay in the alternative. Defendant also cites Feldman Construction Co. v. Union Bank, supra, in support of its argument. The check in the Feldman case carried the following notation on the back:

‘Endorsement of this check acknowledges payment as of this date all material and labor at A.I.C. Bldg. 8060 Florence Ave. Downey, Calif.’

In response to this fact, the court wrote:

‘Although direct evidence was not taken below concerning ordinary business practices in the building industry, the notation on the check itself provides evidence of the drawer’s intent to pay two parties jointly ...; he was discharging a debt owed to the subcontractor while protecting the company against the lien of an unpaid materialman.’ 104 Cal. Rptr. at 913 (Citations omitted.)

“This Court cannot agree with defendant’s argument. While the fact that the United States Treasury eventually paid the item in spite of the missing indorsement may reflect on the intention of the drawer at the time the check was drawn, we do not find this evidence to be conclusive. As previously stated, Md. Com. Law Code Ann. § 3-116 (1975) clearly provides that a check ‘payable to the order of two or more persons ... [i]f notin the alternative ... may be negotiated, discharged or enforced only by all of them.’ (Emphasis added.) Since the check was not payable in the alternative, then it could not have been negotiated by less than all the payees. The fact that the defendant bank was unaware of the ‘joint pay’ agreement between the United States and the plaintiff does not change the result.

“A payment upon a missing indorsement is equivalent to a payment over a forged indorsement. Federal Deposit Insurance Corp. v. Marine National Bank, 431 F. 2d 341 (5th Cir. 1970). An instrument is converted when paid on a forged indorsement. Md. Com. Law Code Ann. § 3-419 (1) (c) (1975). Since the bank paid the amount of the check with a missing indorsement, it converted the check.[ ]

* * *

“The Court concludes that the defendant, Peoples National Bank of Maryland, is liable to plaintiff, American Fidelity Fire Insurance Company, for the face amount of the check.”

Order affirmed; appellant to pay costs.

      . The definitional language of § 3-419 is as follows:
      (1) An instrument is converted when:
      (a) A drawee to whom it is delivered for acceptance refuses to return it on demand; or
      (b) Any person to whom it is delivered for payment refuses on demand either to pay or to return it; or
      (c) It is paid on a forged indorsement. (Emphasis added.)

      . See 2 Anderson, Uniform Commercial Code § 3-419: 4(d) (1971, 1977 Cum. Supp.); 2 Bender’s Uniform Commercial Code Service § 12.38, n. 3a (Hart ana Willier ed. 1978 Cum. Supp.) (“Where a bank wrongfully appropriates a draft without a necessary indorsement the situation is analogous to payment on a forged instrument, which is a conversion under Section 3-419(l)(c).”] See also Berkheimer’s Inc. v. Citizens Valley Bank, 529 P. 2d 903 (Ore. 1974) (Common law conversion remedy applies where bank pays check on missing indorsement.)


author: Wilnee, J.,

text:
    CALVERT FIRE INSURANCE COMPANY v. GARY WILLIAM REICK et ux.
    [No. 1227,
    September Term, 1977.]

      Decided June 13, 1978.

    The cause was argued before Moylan, Lowe and Wilner, JJ.

      Albert D. Brault, with whom were James S. Wilson and Brault, Graham, Scott & Brault on the brief, for appellant.

      Walter W Pitsenberger, with whom were Sinclair,

      Chapdelaine & Pitsenberger, Chartered on the brief, for appellees.
   Wilnee, J.,

delivered the opinion of the Court.

Calvert Fire Insurance Company (appellant) issued a motorcycle insurance policy to Gary and Judy Reick (appellees). One of the risks covered under the policy was injury to appellees by an uninsured motorist, as to which the policy stated:

“The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.”

On May 15, 1976, at which time the Calvert policy was in effect, Mr. Reick was struck by an uninsured vehicle driven by an uninsured motorist, one Michael Devita. Timely notice of this accident was given to Calvert. Thereafter, appellees sued Devita in the Circuit Court for Prince George’s County, and recovered judgments totalling $21,500. Notice of this litigation and its conclusion also was given to Calvert — prior to trial, subsequent to trial but before judgment was final, and after judgment had become final — and demand was made upon Calvert for payment under the “uninsured motorist” clause in the policy.

Calvert ignored this demand, and, as a result, on May 23, 1977, appellees filed suit against it in the Circuit Court for Prince George’s County, for $21,500 plus counsel fees. A copy of the Declaration, prayer for jury trial, and summons was served upon Calvert by leaving it with the Insurance Commissioner on May 27, 1977. No answer or responsive pleading was filed by Calvert within the time allotted by the Maryland Rules; and, on July 22, 1977, appellees, pursuant to Maryland Rule 310, moved for a default judgment. The second page of the written motion contains an Order granting the default judgment, signed by the court on July 22, and a Certificate of Service showing that “a copy of the foregoing Motion for a Default Judgment was mailed, postage prepaid this 22nd day of July, 1977, to Calvert Fire Insurance Company” through the Insurance Commissioner. The record does not indicate whether the copy mailed to Calvert showed that the default judgment had been entered — i.e., whether it was mailed after the Order was signed and included a conformed copy of it, or whether it was mailed prior to the signing of the Order and included a copy of the Order as presented to the court.

For some reason, the Clerk of the Court, though entering the default judgment on his docket as of July 22, 1977, neglected to comply with Maryland Rule 611, which provides:

“Upon the entry of judgment by default or decree pro confesso, pursuant to Rule 310 b or Rule 610 c 3, for failure to plead in response to original process, the clerk shall mail forthwith, notice thereof to the defendant at his address, if any, specified in the pleadings and shall note such fact on the docket or case file. If no address is specified and the address is otherwise unknown, this Rule shall not apply. The notice sent by the clerk shall follow the form set forth in the Appendix of Forms.”

Form 611 of the Appendix of Forms, appended to the Maryland Rules, states:

“In accordance with Maryland Rules of Procedure, you are notified that a judgment by default/summary judgment/decree pro confesso/summary decree was entered against you in the above entitled case on____
“If you wish to take exception to this Judgment/Decree/by default, you have thirty days from the date of the Judgment/Decree within which to do so.”

Calvert’s disregard for these proceedings continued, as no response to the Motion for Default Judgment was forthcoming. On August 22,1977 — 31 days after the entry of default judgment — the Reicks moved for, and the court granted, summary judgment in their favor for $20,000 plus counsel fees of $500. Upon entering this judgment on the docket, the Clerk mailed to Calvert, via the Insurance Commissioner, a notice in the form specified by Form 611, Appendix of Forms. This notice, although titled “Notice of Judgment by Default”, advised Calvert that “summary judgment” had been entered against it.

On September 16, 1977 — within 30 days after the entry of the summary judgment and receipt of the notice thereof from the Clerk — Calvert moved to set aside the judgment. Alleging that it had a meritorious defense grounded upon the assertion of Mr. Reick’s negligence as a causative factor in the accident and the agreement of the parties to arbitrate the dispute, Calvert drew attention to the Clerk’s omission to send a notice of the entry of default judgment. Although not made clear in the pleadings filed by Calvert, it was argued at the hearing on Calvert’s motion to set aside the judgment that the Clerk’s failure to comply with Maryland Rule 611 constituted an “irregularity” within the meaning of Maryland Rule 625, thus giving the court broad discretion to set aside the judgment and permit a trial on the merits.

The court, indeed, viewed that as the essential question, and, after listening to argument of counsel, concluded that it “does not feel in this particular case that this is such an irregularity that would warrant setting aside the entry of the default and later a motion for summary judgement (sic).” The court noted that the Rule (611) was mandatory “as far as the clerk is concerned”, and was “a desirable procedure to follow as far as the clerk’s office is concerned”, but that the notice required thereunder “is not a legal requirement of due process wise as I view it as far as the defendant is concerned.” As to the defendant, the court concluded that “he is not really to be heard if he doesn’t in fact get a copy of notice by default — that he has not had due process in the case because he has been served the original declaration.” In light of this conclusion, the court decided that it did not have to reach the question of whether Calvert had a meritorious defense.

On appeal, Calvert asserts that, because the requirements of Rule 611 are mandatory, the failure of the Clerk to comply with them perforce constitutes an “irregularity” within the meaning of Rule 625, and that, although the mere existence of an irregularity does not require that the judgment be set aside, it does require that the court at least consider certain established factors in determining whether or not to exercise its discretion to set aside the judgment. Here, Calvert argues, the court appeared to conclude that the Clerk’s failure to comply with Rule 611 did not constitute an irregularity in the first instance, and thus it never reached the requisite issue of whether and how to exercise its discretion.

The question raised by Calvert involves the interplay between Rules 625 and 611. As an introductory comment, we note that, although Calvert’s motion to set aside the judgment was filed within 30 days after the entry of summary judgment, it was filed more than 30 days after the entry of the default judgment. With respect to the scope of a court’s revisory power under Rule 625, a judgment by default is a final one, and the 30-day period under that rule begins to run upon its entry. Maggin v. Stevens, 266 Md. 14 (1972), and cases cited therein. It is for that reason that Calvert must establish fraud, mistake, or irregularity in order to prevail in its motion.

In effect, the existence of at least one of these three elements — in this case, irregularity, being the only one alleged — is a triggering mechanism. After the expiration of 30 days, the court has no occasion to exercise discretion to set aside a judgment, because it has no discretion left to exercise, unless one of these prerequisite elements is first shown. See Tasea Investment Corp. v. Dale, 222 Md. 474 (1960); Williams v. Snyder, 221 Md. 262 (1959); Eliason v. Comm’r of Personnel, 230 Md. 56 (1962). Thus, although the Court of Appeals has spoken of these three elements as being among several that must be established in order to justify setting aside a judgment, in light of the fact that the existence of at least one of the three is mandatory to the point of being jurisdictional, both logic and considerations of judicial efficiency dictate that the presence of one or more of them be ascertained before a court even considers the other factors bearing on whether and how it will exercise its discretion.

The first question, then, is whether the Clerk’s failure to comply timely with Rule 611 — i.e., to send “forthwith” a notice of the entry of default judgment — constitutes an “irregularity” within the meaning of Rule 625, sufficient to require consideration of those elements or criteria bearing on the exercise of the court’s discretion. These secondary elements are that the movant is acting in good faith and with ordinary diligence, and that it has a meritorious defense.

An “irregularity”, in the context of Rule 625, has been defined as “the doing or not doing of that, in the conduct of a suit at law, which, conformable with the practice of the court, ought or ought not to be done.” Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475 (1968); Mut. Benefit Soc’y v. Haywood, 257 Md. 538 (1970).

Prior to the adoption of Rule 611 by the Court of Appeals in 1974, the law was clear that there was no obligation on the part of anyone to notify a defendant that a default judgment had been entered; and, as a result, the 30-day period for discretionary revision often expired before the defendant became aware that judgment had been taken against him. This produced not only a sizeable quantity of default judgments that became both final and “unreviewable”, but, from time to time, produced an arguably unfair and inequitable result. Capobianco v. Gordon, 19 Md. App. 662 (1974), may have been such a case, and, in a footnote appearing on page 664, we called the problem to the attention of the General Assembly and the Court of Appeals Standing Committee on Rules of Practice and Procedure (hereafter referred to simply as the Rules Committee).

The General Assembly was the first to respond, through the introduction in its 1974 session of House Bills 458 and 694, to require as a matter of substantive law, the giving of notice to the defendant that a default judgment has been entered against him. The Rules Committee, apprised of this pending legislation, decided tó deal with the matter by way of Rule, and, on March 8,1974, approved for recommendation to the Court of Appeals a new Rule 611. As then approved, the new Rule placed the onus of notifying the defendant upon the plaintiff. It provided:

“Immediately upon entering a default judgment for failure to appear, the plaintiff shall send written notice to the defendant at his address specified in the pleadings, informing him of the entry of the judgment.”

At its next meeting, on April 5,1974, and before any action had been taken by the Court of Appeals, the Rules Committee reconsidered what it had done in March, and amended the proposed rule to place the burden of sending the notice on the Clerk. After the April revision, the proposed Rule read as follows:

“Upon the entry of judgment by default, pursuant to Rule 310b, for failure to plead in response to original process, the clerk shall mail forthwith, notice thereof to the defendant at his address, if any, specified in the pleadings and shall note such fact on the docket or case file. If no address is specified and the address is otherwise unknown, this rule shall not apply.”

Finally, at its May, 1974, meeting, the Rules Committee completed its drafting of the Rule by inserting the words “or decree pro confesso” in the first clause, after the words “judgment by default”. In that form, the proposed Rule, along with many other proposals for rules changes, was published for comment by the Bar. Apparently, no comments were received (or, at least, none was acted upon favorably), and the Rule, as proposed, was forwarded to the Court of Appeals with an “explanatory note” that read:

“The purpose of this rule is to ensure that a defendant gets notice of a Judgment by Default and to obviate situations such as those occurring in Capobianco v. Gordon, 19 Md. App. 662 (1973) wherein a defendant was under the misapprehension that she was being defended.” (Emphasis supplied.)

The Court of Appeals adopted the Rule as finally recommended by the Rules Committee, effective July 1,1974. Thereafter, two additional amendments were made, both reflected in the 48th Report of the Rules Committee to the Court of Appeals. One made the rule applicable to summary judgment proceedings, and the other added to the Appendix of Forms a form (Form 37) for the notice required under the Rule. The Report of the Rules Committee states, with respect to these items:

“The proposed amendment of Rule 611 (Judgment by Default — Notice) and the addition of Form 37 (Notice of Judgment by Default or Decree Pro Confesso) to the Appendix of Forms, provides for mandatory use by clerks of the required notice, substantially in the form shown in the Appendix of Forms as Form 37, and extends the Rule’s applicability to Summary Judgment proceedings.” (Emphasis supplied.)

These changes were adopted by the Court of Appeals on June 16, 1975, effective July 1, 1975.

In light of this background, it is clear that the Rule was intended to be, and, by its unambiguous terms is, mandatory. The clerk is under a firm, intended, and unmistakable duty to send the required notice in accordance with the Rule and in the form (or substantially in the form) prescribed in the Appendix of Forms. His failure to do so “forthwith” upon the entry of a default judgment therefore constitutes an irregularity for purposes of Rule 625 — the “not doing of that, in the conduct of a suit at law, which, conformable with the practice of the court, ought... to be done.”

Because of this irregularity, it was incumbent upon the court to consider and determine whether Calvert was proceeding in good faith, with ordinary diligence, and whether it had a meritorious defense. Calvert, of course, has the burden of establishing all three of those elements; and, in weighing its argument, if the court were to conclude that any one of them is lacking, the motion to set aside the judgment must be denied.

It is not entirely clear from the remarks of the Circuit Court whether its denial of Calvert’s motion was based upon the belief that Rule 611 was not mandatory and that its violation therefore did not constitute an “irregularity”, or upon its belief that Calvert simply was not proceeding in good faith or with ordinary diligence. The oral opinion of the court could be read both ways. The court clearly declined to consider the question of whether Calvert had a meritorious defense.

In light of the uncertainty as to whether the court actually reached the first two of those three issues, coupled with the certainty that it did not consider the third, and because, having established an irregularity, Calvert is entitled under Rule 625 to have those issues addressed, we shall vacate the order denying the motion to set aside the judgment and remand the case to the Circuit Court for a determination as to whether, given the irregularity found by us to exist, the judgment should be stricken. We wish to make it clear that we express no opinion whatever on that question, it being, as noted, a matter within the discretion of the Circuit Court.

Order denying motion to set aside judgment vacated; case remanded to the Circuit Court for Prince George’s County for further proceedings in conformance with this opinion; each party to pay own costs.

      . Laws of Md., 1975, ch. 562 (Md. Annot. Code art. 48A, § 541 (c)) prohibited the inclusion of clauses requiring the compulsory arbitration of disputes concerning uninsured motorist coverage in policies issued after July 1,1975. The parties concede that, as a result, the last part of the above-quoted language, purporting to require such arbitration, is void.

      . Gary Reick, individually, recovered a judgment of $20,000. He and his wife jointly recovered a separate judgment of $1,500.

      . Service of process in this manner is authorized by Md. Annot. Code art. 48A, § 57. See also Maryland Rule 106 f (1). Calvert concedes that it was properly served.

      . Maryland Rule 625 a provides: “For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity." (Emphasis supplied.)

      . The court stated that it viewed the problem as “whether or not the failure of the Clerk to file a copy of the notice of judgment by default until August 22, 1977, when they purported to file a copy of the notice of the summary judgement (sic) entered on August 22, is an irregularity or a stigma such as the quality and type to warrant setting aside the judgement (sic) in this case.”

      . In Maggin v. Stevens, supra, 266 Md. at 19, the Court stated that, in the absence of fraud, mistake, or irregularity, the Court was “without power to set aside the judgment____”

      . See, for example, Berwyn Fuel & Feed Co. v. Kolb, supra, 249 Md. 475, 479: “We also point out that the entry of the default judgment, pursuant to Rule 310 b, by the plaintiff without giving notice to the defendant did not constitute an ’irregularity’ within the meaning of Rule 625____Nor was the attorney for the plaintiff obliged to advise the attorney for the defendant of his intention to enter judgment by default.”

      . See Minutes of Rules Committee Meeting of March 8, 1974, Item 1.

      . Comparable changes were proposed to Maryland District Rules 610 and 648. The minutes of the April meeting do not record any discussion of or reasons for the revisions to the proposed Rule. As a probable result of the action taken by the Rules Committee in April and May, the General Assembly (notably the Judiciary Committee of the House of Delegates) took no affirmative action on the pending legislation.

      . See Daily Record, May 20, 1974.

      . See Daily Record, June 12, 1974.

      . See 2 Md. Register 725, 726 (May 14, 1975).