text:
    EDWARD L. GENN, Assignee v. CIT CORPORATION
    [No. 1297,
    September Term, 1977.]

      Decided November 2, 1978.

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

      Edward L. Genn for appellant.

      Charles M. Tatelbaum, with whom were Schimmel & Tatelbaum, P.A. on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The appeal in this case is from an order in an insolvency proceeding in the Circuit Court for Prince George’s County (Loveless, J.) filed October 31, 1977, in which the appellant Edward L. Genn, assignee for the benefit of creditors of Metropolitan Lithograph, Inc. (hereinafter referred to as Metropolitan) was directed to pay $434,977.21 to the appellee CIT Corporation to discharge debts incurred in the previous year when Metropolitan made two promissory notes payable to the appellee. The appellant’s primary, but not sole, contention on appeal is that the trial judge erred in determining the amount properly due the appellee.

On February 19, 1976, the appellee, through a loan of $39,614.40, enabled Metropolitan to obtain a camera for use in its printing business. In consideration thereof Metropolitan promised in writing to pay the appellee $54,489.05, payable in sixty (60) monthly installments of $908.15 and granted the appellee a security interest in the camera. Later in the same year, on August 4, 1976, Metropolitan made another note payable to the appellee in return for $200,000.00 cash and consolidation of prior loans and interest in the amount of $176,392.78. The August note obligated Metropolitan to pay $519,610.23 in sixty (60) monthly installments of $8,660.17, and was secured by an agreement granting the appellee a security interest in Metropolitan’s machinery, fixtures and equipment. Both notes provided that monthly payments be made

“together with interest before maturity payable monthly on unpaid balances at the rate of 0% per annum and after maturity of any and all instalments at 1 1/2% per month if not prohibited by law, otherwise at the highest lawful contract rate.... Upon non-payment of any installment at its maturity, all remaining installments shall, at the option of the holder hereof, become due and payable forthwith.”

The difference between the amount actually loaned by the appellee to Metropolitan in February and August and the amount Metropolitan promised to repay was, according to the testimony of both parties at the hearing below, add-on interest, and was calculated to reap a return of 13 or 14 percent per annum on the amount loaned. The add-on interest on the February and August notes was $14,860.65 and $143,217.45, respectively. Metropolitan made fifteen (15) payments on the February note and nine (9) payments on the August note, the last payment on both notes being made on May 31,' 1977.

Shortly thereafter, on June 13,1977, Metropolitan effected an Assignment for the Benefit of Creditors designating the appellant as assignee. The following day the Circuit Court for Prince George’s County (Bowen, J.) declared Metropolitan insolvent and authorized the appellant to sell the insolvent’s assets. On August 5, 1977, appellant filed a petition to sell Metropolitan’s machinery, fixtures and equipment on August 31, 1977, free and clear of all claims of creditors, including the liens of the appellee. The appellant proposed to transfer the liens of the appellee to the proceeds of the sale, and to distribute the proceeds upon determination of the validity and amount of the appellee’s claim. In response to a Show Cause Order issued by the court at the request of the appellant, the appellee, at a hearing held on August 25,1977, asserted that it was entitled to receive payment, immediately upon sale of the collateral, of the face value of the notes minus payments previously made. Because the face value of the notes included interest to be paid over a five year period, payment of the outstanding balance after only one year would include payment of interest that had never actually been earned. In recognition of this inequity, the appellee, rather than state a claim for the $441,668.70 outstanding on the face value of the August note and $40,866.80 outstanding on the face value of .the February note, offered to deduct from the outstanding balance of both notes an amount representing some of the unearned interest, even though, in the appellee’s view, it was not legally obligated to do so. By applying one-half the Rule of 78 the appellee calculated the amount of unearned interest as of" September 1,1977, the day after the sale of the collateral, to be $8,654.98 on the February loan and $43,903.31 on the August loan. The total outstanding balance on the two notes, then, claimed to be due by the appellee on September 1, 1977, after the gratuitous deduction of unearned interest, was $484,977.21, representing a balance due of $37,211.82 on the February note and a balance due of $397,765.39 on the August note. The trial court agreed with the appellee and on August 26, 1977, ordered the appellant to pay the amount claimed by the appellee by September 12, 1977, unless the appellant in the meantime found a basis for retaining any of the amount claimed. The appellant failed to pay as ordered and a second hearing was held on October 19,1977. The trial court rejected the additional arguments put forth by the appellant at that time, and on October 31,1977, again ordered that $434,977.21 be paid to the appellee.

The appellant contends that payment to the appellee of $397,765.39 for the August loan and $37,211.82 for the February loan would be, in part, a penalty or forfeiture, and, as such, cannot be ordered by a court of equity. We agree with the appellant and hold that the award of the aforementioned amounts in these circumstances is a forfeiture or penalty to the extent the holder of the notes retains or recovers interest that had not been earned as of the accelerated maturity date.

A forfeiture is the loss or deprivation of property in consequence of some offense or breach of duty, Kahn v. Janowski, 191 Md. 279, 287, 60 A. 2d 519 (1948) and neither a penalty nor a forfeiture will be enforced by a court of equity. Id. at 286; Litteral v. Houser, 221 Md. 403, 412, 158 A. 2d 75 (1960). Acceleration of the maturity date of a promissory note, though, in accordance with a provision in the agreement of the parties is not a penalty or forfeiture, but, rather, is an agreed upon means of determining when the debt shall become due, and will be enforced at law and equity. B-M-G Investment Co. v. Continental/Moss-Gordin, Inc., 320 F. Supp. 968, 973 (N.D. Texas, 1969); Foreman v. Myers, 79 N. M. 404, 407, 444 P. 2d 589 (1968); Messner v. Mallory, 107 Cal. App. 2d 377, 380, 236 P. 2d 898 (1951). However, even though an acceleration clause itself is not a penalty or forfeiture, there remains the possibility, especially when the face value of the note includes add-on interest, that the effect of the operation of the acceleration clause will result in a penalty or forfeiture. As the total add-on interest included in the face value of the August note was $143,217.45, the lower court’s award of the face value of the note reduced only by the gratuitous rebate of $43,903.31 of unearned interest results in a recovery by the appellee of $99,314.14 interest for the first twelve months of the repayment period. Likewise, the award of the face value of the February note reduced only by $3,654.58 of unearned interest results in a recovery by the appellee of $11,205.67 interest for the first eighteen months of the repayment period. Obviously, if allowed to recover the amount claimed, the appellee would have earned interest on both notes at a substantially higher rate than intended by the parties in their agreements. In view of the fact that the intended rate of return on both notes was 13 or 14 per cent per annum, that portion of the interest claimed by the appellee to be due as of September 1,1977, which, if awarded, would result in the imposition of a rate of interest greater than the intended rate should be considered interest that had not yet been earned, but that, instead, was prepaid for the use of money in the future. Interest is a means of compensation for the use, forbearance or detention of money, and prepaid interest is consideration for the use, forbearance or detention of money, which consideration is due before it actually accrues. Goldman v. First Federal Savings & Loan Association of Wilmette, 377 F. Supp. 883, 886 (N.D. Ill., E. D. 1974). When, as in the present case, interest has been prepaid and the lender exercises his option to accelerate payment of the debt, the borrower is not only denied the use of the money in the future, but, in addition, is deprived of the interest already paid for the use of that money, unless he is afforded a rebate of the prepaid but unearned interest. The order by the trial court, then, directing the appellant to pay $434,977.21 to the appellee causes the appellant to forfeit that portion of the interest claimed by the appellee to be due but which had not been earned as of September 1, 1977.

There is no case law in Maryland, to our knowledge, which • directly addresses the issue of whether, in a situation where the maturity date of a promissory note is accelerated by the holder of the note, the recovery of unearned interest by the holder is a penalty. However, the. Maryland Court of Appeals, in Santini v. Fritkin, 240 Md. 542, 544-45, 214 A. 2d 578 (1965), a case in which the main issue involved a determination of when the statute of limitations begins to ran if a holder accelerates payment of a note, has stated “(W)hen ... the holder takes positive action indicating that he has elected to exercise the option, then the full amount of the unpaid balance of principal and accrued interest becomes immediately due and payable and the statute of limitations begins to run from that time.” (Emphasis added) Based on the Maryland court’s use of the word “accrued” the District of Columbia Court of Appeals, in Block v. Ford Motor Credit Co., 286 A. 2d 228 (D.C. App. 1972), a case to which Maryland law applied, held that Maryland law would not allow recovery of interest not yet accrued in a case where the maturity date of a promissory note is accelerated by the holder of the note because such recovery would be an award of “disproportionate damages, i.e., a penalty, and would therefore be unconscionable” 286 A. 2d at 234. The rule that the holder of a note cannot recover unearned interest upon acceleration of the note’s maturity date has been adopted by the courts of the various jurisdictions which have considered the matter. See Chavez v. Aetna Finance Co., 553 S.W.2d 174 (1977); New Jersey Mortgage and Investment Company v. Young, 134 N. J. Super. 392, 341. A. 2d 360 (1975); Dartmouth Plan, Inc. v. Landkammer, 370 N.Y.S.2d 318, 82 Misc. 71 (1975); Chapman v. Capri Construction Company, 248 So. 2d 101 (La. App. 1971); Mann v. Earls, 37 Cal. Rptr. 877 (1964); A-Z Servicenter, Inc. v. Segall, 334 Mass. 672, 138 N.E.2d 266 (1956); Tobin v. Holmboe, 172 Old. 546, 45 P. 2d 716 (1935). See also 10 C.J.S. Bills and Notes, 8.251(a) at 748, which states:

“A note providing for the payment of the principal in installments at specified times, and requiring the payment of interest on each installment until maturity, does not require the payment of future unearned interest in the event the maturity date is hastened by virtue of an acceleration clause contained in the note.”

The penal nature of awarding recovery of the face value of a note upon acceleration of the maturity date without a rebate of unearned interest is pointed up by the appellee’s assertion that the full face value of the note would be due, at the holder’s option, if the maker is delinquent in the payment of the first of sixty installments. Such recovery in the case presently before the court would, in effect, be an award of more than $140,000 in damages for the late payment of $8,660.17. Hence, we hold that when the holder of a promissory note exercises his option to accelerate the maturity date of the note, he may neither recover nor retain any amount representing interest unearned as of the accelerated maturity date.

Additionally, the appellant asserts that interest on the promissory notes accrued only until the Assignment for the Benefit of Creditors on June 13,1977. The rule on which the appellant relies in support of his assertion is that in equity receiverships interest on the debtor’s obligations ceases to accrue upon the initiation of insolvency proceedings. In re Inland Gas Corp., 241 F. 2d 374, 379 (6th Cir. 1957). If, however, a creditor has a security interest in collateral the value of which is sufficient to cover not only the principal amount of the debt but also the interest accrued after initiation of the proceedings, the interest accruing pursuant to the parties agreement may be recovered regardless of when the insolvency proceedings were initiated. Id. at 379; Coppage v. Coleman, 263 Md. 639, 644, 284 A. 2d 211 (1971). See also 3 Clark, Receivers § 660(a) at 1154 (1959). As the sale of the collateral in the present case produced sufficient proceeds to cover both the principal and accrued interest on the two notes, the interest continued to accrue after the date of the Assignment.

Finally, on the financing statement filed to perfect the interest granted by Metropolitan to the appellee to secure the August note, the principal amount of the underlying transaction was stated to be $267,100.20, and, according to testimony offered below, a recordation tax was paid on this amount rather than the amount recited in the security agreement. The appellant claims that the inaccurate statement of the principal amount secured and the failure to pay the appropriate recordation tax should render the appellee’s security interest unperfected as to any amount greater than the amount stated on the face of the financing statement. We disagree. Even though the failure to pay the appropriate recordation tax may constitute a violation of Md. Ann. Code, Art. 81, Section 278 (1975 Repl. Yol.) and subject the recording party to a penalty, it does not necessarily follow that the amount of the secured debt is limited to that amount stated on the financing statement or on which the recordation tax was paid. The purpose of recording a financing statement is to provide any interested person, not with all the information he needs to understand the underlying transaction, but only with the information that such transaction has taken place and that the particulars may be obtained from the named secured party at the address shown. Plemens v. Didde-Glaser, Inc., 244 Md. 556, 563, 224 A. 2d 464 (1966) . A financing statement does not purport to be anything more than a method of giving notice of the probability that the secured party has a security interest in the stated collateral. Household Finance Corporation v. Bank Commissioner of Maryland, 248 Md. 233, 239, 235 A. 2d 732 (1967) . To allow the inclusion of statements of the amount of the debt on the face of financing statements to be a basis for estopping the secured party from claiming a security interest to the extent provided in the security agreement would promote the financing statement from an instrument of notice to an instrument of legal effect equivalent to a security agreement. It is a well-established rule that, even though a security agreement can serve as a financing statement, a financing statement cannot serve as a security agreement. L & V Company v. Asch, 267 Md. 251, 254, 297 A. 2d 285 (1972). The appellee’s security interest, then, in the equipment, machinery and fixtures of the insolvent should not be limited to the amount disclosed on the financing statement.

Order reversed.

Case remanded for further proceedings not inconsistent with this opinion.

Costs to be paid by appellee.

      . While this order is not a final judgment within the meaning of Md. Ann. Code, Cts. & J. Proc. Art., § 12-301 (1974) it is immediately appealable by virtue of Md. Ann. Code, Cts. & J. Proc. Art., § 12-303 (c) (5) (1977 Cum. Supp.).

      . The Rule of 78 is an arithmetic formula widely used by banks and financing institutions to determine the amount of interest unearned at the time of prepayment of an indebtedness. For an explanation of the Rule see Bone v. Hibernia Bank, 493 F. 2d 135, 137 (9th Cir. 1974).

      . Our holding that the application of one-half the Rule of 78 in this case does not sufficiently reflect the amount of interest unearned at the accelerated maturity date is not to be construed as either our approval or disapproval of the Rule itself as an appropriate method of determining the rebate required. The primary issue litigated in the lower court was whether there should be any rebate of unearned interest; the question of how such rebate should be calculated was not raised and decided below, nor was it presented on appeal. Therefore, as this Court ordinarily does not decide any point or question not raised and decided below, see Md. Rule 1085, the amount of interest unearned as of the accelerated maturity date should be determined by the trial court.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    ALVIN MEYER v. EDMOND J. McDONNELL
    [No. 52,
    September Term, 1978.]

      Decided November 2, 1978.

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

      Peter Parker, with whom was Gordon W Priest, Jr., on the brief, for appellant.

      Alva P. Weaver, III, with whom were Lord, Whip, Coughlan & Green, P.A. on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Alvin Meyer, hereinafter called appellant, filed suit against Edmond J. McDonnell, M.D., the appellee, in Baltimore City Court, alleging that as the result of an orthopedic operation upon his back he suffered sexual impotency and a lack of bowel and bladder control. We are obliged to reverse the judgment rendered in favor of Dr. McDonnell because the trial judge instructed the jury that evidence of Dr. McDonnell’s tampering with the appellant’s witnesses was admissible only for the purpose of raising an inference that the testimony of the witnesses would be unfavorable to Dr. McDonnell, and not as substantive evidence to support Mr. Meyer’s claim. Although the trial judge was mild in his characterization of Dr. McDonnell’s conduct during the trial, in our view that conduct was outrageous. Whatever merit the medical profession may have in its current outcry against malpractice suits, the remedy does not lie in polluting the streams of justice by tampering with witnesses,

The record shows that on Friday, May 13,1977, the fourth day of trial, appellee directed his secretary to call Dr. Robert P. Keyser, of Miami, Florida, an acquaintance and a fellow member of the American Scoliosis Society, and tell him that Dr. Robert B. Nystrom was scheduled to testify against appellee and that his testimony would be transcribed and disseminated to Dr. Nystrom’s local medical society in Miami and to the American Academy of Orthopedic Surgeons. The secretary immediately carried out such a call, and Dr. Keyser replied that he wanted to relay this information to Dr. Nystrom. This reaction was what appellee had expected and intended. Appellee’s secretary then requested that Dr. Keyser do so before Dr. Nystrom testified, and gave him the phone numbers of both trial counsels and the trial judge. Just before noon on that same day, Dr. Keyser telephoned Dr. Nystrom, who was in the City Bar Library awaiting commencement of his testimony. Dr. Keyser, who was a mentor of Dr. Nystrom and a man whom Dr. Nystrom admired and respected, related the information about dissemination of testimony, and, with the preface that “this is not a threat, but,” admonished him to tread lightly. In retrospect, Dr. Keyser considers his involvement inadvisable.

Dr. Nystrom was intimidated by the communication and felt that he would be unable to testify with a normal degree of candor. The trial judge, in ruling that testimony of the transaction was admissible and that a mistrial would be declared in the event that plaintiff could not promptly locate another standard of care witness, found specifically that the message was clearly intimidating and intended by appellee to be so.

On Thursday, May 12,1977, appellee telephoned his friend and colleague, Dr. William H. M. Finney, a Baltimore neurosurgeon. He asked Dr. Finney to call Dr. Thomas H. Langfitt, former Chief of Neurosurgery at the University of Pennsylvania, and a long-time friend of Dr. Finney, and advise him that Dr. Francis J. Pizzi was scheduled to testify against appellee and that his testimony would be transcribed and disseminated to his local medical society in Trenton, New Jersey. Dr. Finney made such a call that same evening, advising Dr. Langfitt that Dr. Pizzi was in the process of testifying against appellee, that the testimony would be disseminated, and that it might not be a particularly good thing for Dr. Pizzi to testify in an out of state medical malpractice trial with an impending appearance before the American Board of Neurological Surgery for the oral portion of his certification examinations.

Dr. Langfitt attempted to call Dr. Pizzi at the outset of his testimony on May 12 or 13, but was unsuccessful. On Saturday morning, May 14, he reached Dr. Pizzi by telephone at his home and relayed the information conveyed by Dr. Finney, including the admonition as to the impending oral Board examinations. Dr. Langfitt was the person responsible for bringing Dr. Pizzi into neurosurgery. He also trained Dr. Pizzi who characterized him as “very important to me,” and a person whom he admired and respected. Dr. Pizzi expressed to Dr. Langfitt that he was fearful that he might now be blackballed by the Board as a result of false information which may have been spread about him as a “violator of the conspiracy of silence,” but that his evaluation of the case was objectively correct and that he felt committed to give an honest opinion in testimony. Dr. Langfitt told him to let his conscience be his guide with regard to continuing his testimony, but that they would have to “sit down and talk about a few things afterward.” This communication had the calculated effect on Dr. Pizzi. He testified that as a result of his conversation with Dr. Langfitt he was so upset that he was forced to cancel his plans to attend the commemoration of his father’s fifty years in the practice of medicine.

With respect to the evidence adduced concerning appellee’s tampering with the witnesses, the trial judge included in his instructions the following:

“Now, if you find that either the plaintiff or the defendant or both tried to intimidate any of the other witnesses, an inference would arise that the testimony of such witness would be unfavorable to the case of the one who so tried to intimidate, [] However, such inference, if indeed you do find one to exist, does not amount to substantive proof and it can’t take the place of proof of a fact necessary to the other party’s case.” []

Appellant argues, based on cases collected in Annot., 38 A.L.R. 595 (1925), that the trial judge should have instructed the jury that such evidence could be considered by them “as tending to show that defendant is unwilling to rely on the truth of his cause, or is conscious that his case is weak or unjust, or that his own evidence is dishonest” and that the trial judge erred in merely instructing the jury “that the testimony of such witness would be unfavorable to the case of the one who so tried to intimidate.” He also argues, based on cases cited in 29 Am. Jur.2d § 277 and § 627, that the instruction should include advice to the jury that such an attempt to intimidate or influence a witness is an admission by conduct and constitutes affirmative evidence. Appellee argues that an attempt to keep a witness from testifying cannot be considered as substantive evidence. He particularly relies on Maszczenski v. Myers, 212 Md. 346, 129 A. 2d 109 (1957), in which the Court said:

“Although an inference arises from the suppression of evidence by a litigant that this evidence would be unfavorable to his cause, Love v. Dilley, 64 Md. 238, 1 A. 59, 4 A. 290; Love v. Dilley, 64 Md. 610, 6 A. 168; 20 Am. Jur., Evidence, Sec. 185, it is well settled that this inference does not amount to substantive proof and cannot take the place of proof of a fact necessary to the other party’s case. Eldridge v. Terry & Tench Co., 145 App. Div. 560, 129 N.Y.S. 865; Rosenthal v. Ostrow, 287 Pa. 87, 134 A. 384; Stocker v. Boston & M.R.R., 84 N. H. 377, 151 A. 457, 70 A.L.R. 1320; Northern Ins. Co. of N. Y. v. Fischer (D. C. Mun. Ct. App.), 103 A.2d 581; F.R. Patch Mfg. Co. v. Protection Lodge, No. 215, I.A.M., 77 Vt. 294, 60 A. 74; The Luckenboch (D.C. Va.), 144 F. 980; Welsh v. Gibbons, 211 S. C. 516, 46 S.E.2d 147, 151; Wigmore on Evidence, 3rd ed., Vol. II, Sec. 290, p. 179, and ibid., Vol. IX, Sec. 2524, p. 441.” Id. at 355.

We have examined carefully the opinion of the Court of Appeals in Maszczenski, and the authorities cited therein, and find that it does not control the issue in this case. The focus of discussion in Maszczenski, and in the cases and text material upon which the Court there relied, was the nature and effect of the inference to be drawn when important direct evidence is not produced. In such cases it is generally held that an inference may be drawn that the missing evidence would have been unfavorable to the party who could have produced it. The references in Maszczenski to Professor Wigmore’s treatise on evidence are to sections dealing with the nature and effect of the inferences to be drawn from missing evidence. In 9 Wigmore on Evidence § 2524 (3d ed. 1940), it is stated:

“The opponent’s spoliation or suppression of evidential facts (ante, § 278), and particularly of a document (ante, § 291), has always been conceded to be a circumstance against him, and in the case of a document, to be some evidence that its contents are as alleged by the first party. But that a rule of presumption can be predicated is doubtful.”

The discussion in 2 Wigmore, supra, § 290, also cited in Maszczenski, deals with the distinction between a mere failure to produce specific evidence and fraudulent conduct aimed at suppressing or spoliating evidence. There also appears a discussion of the relationship between permissible inferences drawn from missing evidence and the burden of persuading the jury. It is pointed out that the party who does not bear the burden of proof need not produce any evidence at all, at least until his opponent has produced sufficient affirmative evidence to shift the burden of going forward with the evidence. This discussion provides a clear basis for the holding in Maszczenski, and many other cases, that no inferences may be drawn from a defendant’s failure to produce evidence until the plaintiff has made out at least a prima facie case. See, e.g., Conlin v. Greyhound Lines, Inc., R. I., 384 A. 2d 1057, 1060 (1978); Lapierre v. Greenwood, 85 R. I. 484, 133 A. 2d 126 (1957).

A more recent decision of the Court of Appeals reaffirms the holding in Maszczenski In Larsen v. Romeo, 254 Md. 220, 255 A. 2d 387 (1969), a question arose concerning the nature and effect of an inference to be drawn concerning a missing piece of physical evidence. The only relevant point, for our purposes, was whether the disposal of an air hose by the defendant, where he claimed that his air brakes had failed unexpectedly, would raise an inference sufficient to discredit his testimony. The Court said:

“As a general rule, an inference arises from the suppression or destruction of evidence by a litigant that such evidence would be unfavorable to his case. However, this inference does not amount to substantive proof and can not take the place of proof of a fact necessary to the other party’s case. Maszczenski v. Myers, 212 Md. 346, 129 A. 2d 109. Romeo testified that he or a mechanic took a piece of hose off his tractor, that he showed the mechanic that it had a leak, and then threw the hose away. Assuming, without deciding, that Romeo destroyed this piece of hose, the only inference that may be drawn is that that particular piece of hose, which may or may not have been part of the brake system, was not defective. Such an inference does not negate Romeo’s testimony that his brakes failed.” Id. at 228.

In both Larsen and Maszczenski, supra, the broad issue was whether the inferences to be drawn from the missing evidence would be sufficient to help get the plaintiff's case to the jury. Ih the present case we are not dealing with inferences to be drawn concerning missing evidence. Although appellee attempted to intimidate the witnesses their testimony was received and placed before the jury. It was not necessary to make the inference that that testimony would have been unfavorable to the appellee because the testimony was actually produced. Nor are we concerned with whether any inferences drawn from the attempt to intimidate witnesses would be sufficient to establish a prima facie case. Here there is no question that appellant made out a prima facie case for recovery wholly apart from the evidence now in question. Our concern is with the inferences which may be drawn from appellee’s conduct.

Several authorities have recognized that conduct such as that involved here may constitute an admission on the part of the actor that he is conscious of the weakness of his case and that he is unwilling to rely on the fair and proper means of arriving at the truth.

Professor Wigmore, in the same edition cited by the Court of Appeals in Maszczenski, supra, states the relevant proposition as follows:

“It has always been understood — the inference, indeed, is one of the simplest in human experience —that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not apply itself necessarily to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.” 2 Wigmore on Evidence § 278 at 120 (3d ed. 1940) (emphasis in original).

McCormick has also recognized this principle in his work:

“As might be expected, wrongdoing by the party in connection with his case, amounting to an obstruction of justice is also commonly regarded as an admission by conduct. By resorting to wrongful devices he is said to give ground for believing that he thinks his case is weak and not to be won by fair means. Accordingly, a party’s false statement about the matter in litigation, whether before suit or on the stand, his fabrication of false documents, his undue pressure, by bribery or intimidation or other means, to influence a witness to testify for him or to avoid testifying, his destruction or concealment of relevant documents or objects, his attempt to corrupt the jury, his hiding or transferring property in anticipation of judgment — all these are instances of this type of admission by conduct.” McCormick, Evidence § 273 (2d éd. 1972).

The principle outlined by Wigmore, supra, and McCormick, supra, has been recognized in several cases from other jurisdictions. See, e.g., Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., 397 F. 2d 594 (3d Cir. 1968), cert. denied, 393 U. S. 954; Great American Insurance Co. v. Horab, 309 F. 2d 262 (8th Cir. 1962); New York Life Insurance Co. v. Bacalis, 94 F. 2d 200 (5th Cir. 1938); Lone Ranger, Inc. v. Currey, 79 F. Supp. 190 (M.D. Pa. 1948); Minihan v. Boston Elevated Ry. Co., 205 Mass. 402, 91 N. E. 414 (1910); McHugh v. McHugh, 186 Pa. 197, 40 A. 410 (1898). See also, Maguire and Vincent, Admissions Implied from Spoliation or Related Conduct, 45 Yale L.J. 226 (1935).

The same basic principle has been recognized and applied by this Court in the context of criminal cases. See Sewell v. State, 34 Md. App. 691, 368 A. 2d 1111 (1977) (holding that the flight of the accused as well as his destruction of certain evidence could be considered by the jury as showing his consciousness of guilt); Saunders v. State, 28 Md. App. 455, 346 A. 2d 448 (1975) (recognizing that “an attempt by an accused to suborn a witness is relevant and may be introduced as an admission by conduct, tending to show his guilt,” but holding that the efforts by a third person to tamper with the witness were not sufficiently connected to the defendant to make them admissible).

Under the view taken by Wigmore, McCormick, and the cases cited above, which view we here adopt, the conduct of appellee in attempting to intimidate Doctors Nystrom and Pizzi is admissible as tending to show his consciousness of the weakness of his case and a belief that his defense would not prevail without the aid of such improper and unfair tactics as those in which he engaged. This, in conjunction with the other evidence in the case, may lead to the further inference that appellee considers his case to be weak because he, in fact, is guilty of the negligence which appellant asserts he committed. Such inferences are, of course, merely permissible and the jury is free to either accept or reject them as it sees fit.

In light of the foregoing discussion it is clear that the trial court’s instruction in the instant case was too confining. Under that instruction the jury properly could not have considered the corroborative effect of the evidence of attempted intimidation. Such evidence may not be sufficient .to establish a prima facie case but that is not an issue which We need to decide here. Rather, our holding is that the evidence in question had probative value insofar as it related to the appellee’s consciousness of the weakness of his case and it could have been considered by the jury for that purpose. There was evidence that the operation caused the appellant’s complaints. There was also evidence that the appellant’s complaints were not true and that in any event they were not caused by the operation. We cannot say that the evidence of the doctor’s misconduct in attempting to influence witnesses for the opposition would not have turned the scales of justice in the jury’s mind if they had been properly instructed on the question. We therefore reverse.

The appellant also complains because the trial judge refused to permit him to present in rebuttal the complete testimony of Ki Ho Kim, M.D. He first ruled that the testimony was not proper rebuttal and secondly that in view of the late hour in which the appellant notified the appellee of his intention to use Dr. Kim as an expert witness that he would not, in the exercise of his discretion, permit the testimony of Dr. Kim. We see no need to rule as to this question on appeal because on retrial the witness will not be a surprise witness and it seems most unlikely that the appellant would wait until rebuttal to offer the witness in view of the trial judge’s ruling.

Finally, the appellant argues that the trial judge violated his privilege of not disclosing communications relating to diagnoses or treatment for his prior mental or emotional disorder. We see no error. The statute, Md. Code, Cts. & Jud. Proc. § 9-109, provides that the privilege shall not apply when the patient introduces his medical condition as an element of his claim or defense. Appellant claimed damages for his mental or emotional disorders in his declaration, in testimony, and in his request for instructions.

Judgment reversed.

Case remanded for a new trial.

Appellee to pay costs.

      . Our view of such conduct is shared by others. See, L’Orange v. Medical Protective Co., 394 F. 2d 57 (6th Cir. 1968); Konrad v. DeLong, 57 F.R.D. 123 (N.D. Ill. 1972); Agnew v. Parks, 172 Cal. App.2d 756, 343 P. 2d 118 (1959); Bernstein v. Alameda-Contra Costa Medical Association, 139 Cal. App.2d 241, 293 P. 2d 862 (1956); Steiginga v. Thron, 30 N.J. Super. 423, 105 A. 2d 10 (1954).

      . In his brief Dr. McDonnell argues that he, Dr. McDonnell, was anxious for the full facts to be brought out as soon as the trial judge indicated that his conduct had been improper. After testifying concerning the indirect contact with Dr. Nystrom he was questioned about his contacting Dr. Langfitt concerning Dr. Francis J. Pizzi, another important witness:
      “Mr. Parker: How about Dr. Langfitt, did somebody call him?
      “The Witness: No one in my office called Dr. Langfitt.
      “The Court: All right.”
      But later, Dr. McDonnell testified:
      “What I know about it, is that I read Dr. Pizzi’s deposition, and was quite upset about the statement he made about Baltimore physicians, and then Dr. Pizzi was on the stand on Thursday, and he repeated those statements. And when I left here Thursday evening, I had some emergency surgery scheduled. But when I finished that, I went and called Dr. Finney and said, in his testimony today, Dr. Pizzi, who had trained in Philadelphia, his testimony today was such as incensed me, and I wanted him to know that he had said that no Baltimore physician had given this man an adequate examination. Also, I asked Dr. Finney if he knew Dr. Langfitt, and he said, yes, he did. Then I said, T would like, if you would, tell Dr. Langfitt, or have Dr. Langfitt tell Dr. Pizzi, I don’t mind that his testimony in Baltimore is going to be transcribed,’ and I asked Mr. Weaver before Dr. Pizzi started to testify, to have his transcript, so I would have it, and that it would be sent to Philadelphia and to New Jersey, where he was from, and this I did, because I was incensed at Dr. Pizzi’s remarks about Baltimore physicians, and I wanted it to go back. I never intended Dr. Pizzi not to testify. He was already testifying, and I had no intention of stopping him from testifying, interfering or threatening him.”

      . Dr. McDonnell denied knowing anything about the impending oral examinations.

      . There was some slight evidence of misconduct on the part of the appellant. The effect of that conduct is not before us in this appeal.

      . At the appropriate time the appellant’s counsel made an objection which included the following:
      “Mr. Parker: Now, as to these other items, Your Honor, we except to the fact that you do not- give ■ a >positive charge relating to admission by conduct.”
      Appellee’s argument that the objection was not properly preserved for appeal is not well taken.


author: MacDaniel, J.,

text:
    EDMOND HENRY DAUGHERTY v. STATE OF MARYLAND
    [No. 73,
    September Term, 1978.]

      Decided November 3, 1978.

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

      R. Patrick Hayman, Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Logan C.

      Widdowson, State’s Attorney for Somerset County, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

On January 31, 1978, the appellant, Edmond Henry Daugherty, was convicted by a jury in the Circuit Court for Somerset County of possession of marijuana.

On October 8, 1977, Maryland Natural Resources Police Officer Anthony Collins, a “game warden,” was on a routine patrol in northern Somerset County. At approximately 5:30 p.m., he observed a deer standing in a field near the intersection of Polks and Allen roads. No other automobiles or persons were in the vicinity. Officer Collins drove off to check a nearby fishing pond and returned to the same spot approximately ten minutes later. This time he saw a car pulled off to the side of the road. The officer also pulled off, and waited until the appellant came out of the woods toward his car.

Officer Collins stopped the appellant and asked him what he was doing. The appellant indicated that he was hunting squirrel. Officer Collins then checked the appellant’s shotgun and found that it was loaded with rifled slugs. When questioned about the rifled slugs, the appellant said that he had put them in to protect himself from some wild dogs that he had seen in the woods. Officer Collins issued a Department of Natural Resources citation, charging the appellant with hunting deer with firearms in his possession during closed season, a misdemeanor. The appellant signed the citation.

The officer then went over to the appellant’s car and, without the appellant’s consent, began to search the hunting jacket and game bag on the rear seat of the car. He noticed numerous spent shotgun shells in the car, and, as he was getting out, he found a brown paper grocery bag under the front seat. After feeling it, he opened it and discovered three plastic “baggies” filled with approximately an ounce of marijuana apiece.

Section 1-204 of the Natural Resources Article, Annotated Code of Maryland, provides:

“(a) Law enforcement powers. — In addition to any other powers conferred by this title, the Secretary and every natural resources police officer shall have all the powers conferred upon police officers of the state. These powers may be exercised anywhere within the state. The natural resources police force specifically is charged with enforcing the natural resource [resources] laws of the state.”

The appellant contends that his pre-trial motion to suppress the marijuana evidence should have been granted because the search and seizure violated his Fourth Amendment right to be free from unreasonable searches and seizures, applicable to the States through the Due Process Clause of the Fourteenth Amendment. We agree.

I.

Officer Collins’ search of the appellant’s car without having first obtained a search warrant cannot be justified as a search incident to an arrest. That exception to the warrant requirement encompasses only in-custody arrests. As Officer Collins acknowledged in the trial below, a game law citation such as the one issued to the appellant is like a traffic ticket and is not an in-custody arrest. See Shelton v. State, 3 Md. App. 394, 239 A. 2d 610 (1968); United States v. Robinson, 414 U. S. 218, 94 S. Ct. 467, 38 L.Ed.2d 427 (1973), and the cases cited therein. Even if there had been an in-custody arrest, a general search of the automobile would not have been permitted, and the search would have been limited to the person’s body and “wingspan.” Dixon v. State, 23 Md. App. 19, 327 A. 2d 516 (1974).

II.

The second possible theory that could legitimate the warrantless search of the appellant’s vehicle is the so-called “automobile exception” to the general requirement of a search warrant. It was first established in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). As the Maryland Court of Appeals stated in Mobley and King v. State, 270 Md. 76, 80, 310 A. 2d 803, 806, cert. denied, 416 U. S. 975, 94 S. Ct. 2003, 40 L.Ed.2d 564 (1973):

“Under that exception, a motor vehicle, unlike a home, may be searched without a warrant or previous arrest under appropriate circumstances when the officer has probable cause in the constitutional context to believe that the vehicle contains the fruits, instrumentalities, or other evidence of a crime.” (Citations omitted.)

Under the “automobile exception,” exigent circumstances also must be shown.

The “probable cause” requirement has been incorporated into § 10-1104, Searches without warrant, of the Natural Resources Article:

“(a) In general.. — If a natural resources police officer or any law enforcement officer has probable cause to believe that any species of wildlife or any device is possessed in violation of this title, and it is not possible or feasible to secure a, search warrant in time to seize the bird, mammal, amphibian, or reptile or the device, then he may examine any boat, railway car, box, crate, package, or game bag without a warrant.” (Emphasis added.).

Although there are no Maryland cases, cases in other states make it clear that the standard of probable cause generally applicable to automobile searches is also applicable to automobile searches relating to game law violations. See, for example, U.S. v. Stricklin, 534 F. 2d 1386, cert. denied, 429 U. S. 831 (1976), and State v. Krogness, 238 Or. 135, 388 P. 2d 120, cert. denied, 377 U. S. 992, 84 S. Ct. 1919, 12 L.Ed.2d 1045 (1963). As the Krogness Court made clear, to allow a different standard for game law violation searches would be both unwise and unconstitutional:

“It would put the decision to search or not to search virtually within the uncontrolled discretion of the police. That is exactly what the Fourth Amendment was intended to prevent.” 388 P. 2d at 127.

The applicable standard of probable cause to search an automobile for game law violations, then, is as follows:

“Probable cause to conduct a warrantless search of an automobile under Carroll and its progeny exists in the constitutional sense when the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information, are such as would warrant a man of reasonable caution in believing that the vehicle contained articles lawfully subject to seizure. See, Duffy v. State, 243 Md. 425, 221 A. 2d 653 (1966); Edwardsen v. State, 243 Md. 131, 220 A. 2d 547 (1966); Young v. State, 234 Md. 125, 198 A. 2d 91 (1964). The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion. Gilmore v. State, 263 Md. 268, 283 A. 2d 371 (1971); Sterling v. State, 248 Md. 240, 235 A. 2d 711 (1967); Graham v. State, 239 Md. 521, 212 A. 2d 287 (1965); Mulcahy v. State, 221 Md. 413, 158 A. 2d 80 (1960). To satisfy the probable cause requirement, therefore, an officer is not required to have actual knowledge that the vehicle contains fruits, instrumentalities, or other evidence of a crime at the time he undertakes his warrantless search. ‘. . . [ojnly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. . . .’ Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969).” Mobley, supra, at 81 [806-071.

Under the facts of this case, it is clear that Officer Collins did not have probable cause to search the appellant’s car for game law violations. Officer Collins testified below that he did not believe that the automobile contained a deer carcass. The two other types of game of which there was any mention were squirrel or quail. Neither was out of season, nor was there any reason for Officer Collins to believe that, if the appellant had shot anything, he had gone over his limit. Officer Collins was questioned in the court below as follows:

“Q Now, what facts were in your mind to lead you to believe that his automobile contained any bird, mammal, amphibian or reptile that would constitute the violation of the natural resources section of the code?
A His hunting coat. I asked him whose it was and he said [it] was his. And I have the right to search game bags and that is why I opened the car door and looked in the hunting clothing.
Q Well, did you suspect that the bag contained something, the gunning coat contained something?
A I didn’t suspect it to contain something, but we have to check the game bag to determine whether or not there is over limit or something in his possession, which is during closed season.”

Evidently, Officer Collins was under the impression that he did not need probable cause or exigent circumstances to search the car and the clothing and game bag for evidence of game law violations. This is clearly contrary to the statute and the case law.

III.

Officer Collins’ search of the appellant’s automobile also exceeded the permissible scope of searches for game law violations. Assuming, arguendo, that Officer Collins had probable cause to search the automobile, he should not have opened the paper bag which contained the marijuana.

Section 10-1104, Searches without warrant, of the Natural Resources Article, provides:

“(b) Warrantless search of automobiles. — In this event,[] a natural resources police officer, in uniform or accompanied by a uniformed police officer, may stop and search an automobile, any vehicle, or trailer for the purpose of examining the game bags. He may also determine whether the person has an appropriate license.” (Emphasis added.)

We do not feel that the grocery bag qualifies as a game bag under the above statute, nor is it suitable for use as a game bag. A standard game bag usually is made of rubberized cloth for the purpose of blood-proofing. In addition, when Officer Collins felt the bag, he should have realized that it did not contain anything sufficiently hard or heavy to be game, and he should have discontinued the search.

Our limitation of the scope of the search of the appellant’s car is also supported by general considerations behind the constitutional prohibition against “unreasonable” searches and seizures. The United States District Court for the District of Maryland, in Richardson v. State of Maryland, 398 F. Supp. 425, 442 (1975), emphasized that:

“First, the search must be for specific items, and not a general exploration____Second, the scope of the search is limited by the size of the item for which the search is being conducted.” (Citations omitted.)

As indicated above, the search of the appellant’s automobile violated the Richardson principles and exceeded the scope of a “reasonable” search and seizure.

IV.

Since Officer Collins lacked probable cause to justify the search of the appellant’s automobile without a warrant and exceeded the scope of a reasonable search, that search was illegal, and the evidence obtained therefrom (marijuana) should have been excluded. Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975), rev’g, 20 Md. App. 71, 315 A. 2d 80 (1974); Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963).

Judgment reversed.

Costs to be paid by Somerset County.

      . .Rifled slugs are used for hunting larger game, like deer.

      . The Fourth Amendment to the Constitution of the United States provides:
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      . We construe “in this event” to mean “in the event that the probable cause and exigent circumstances requirements of subsection (a) are satisfied.”


author: Melvin, J.,

text:
    GEORGE CHARLES KEMP et al. v. ROGER WILLIAM ARMSTRONG et al.
    [No. 80,
    September Term, 1978.]

      Decided November 3, 1978.

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

      I. Marshall Seidler and Alvin I. Frederick, with whom were Archibald Eccleston, ///and Eccleston, Seidler & Miller on the brief, for appellants.

      Henry E. Dugan, Jr., with whom was Jerome J. Seidenman on the brief, for appellee Armstrong. Submitted on brief by Bernard M. Goldstein and William D. Kurtz for other appellee.
   Melvin, J.,

delivered the opinion of the Court.

The actors in this negligence litigation are two garbage truck operators (Spindler and Kemp), a motorcycle operator (Armstrong) and a motor vehicle operator (Wardlaw). The plaintiffs below were Armstrong and Wardlaw. After a jury trial in the Superior Court of Baltimore City they obtained judgments against Spindler and Kemp and their respective employers. Kemp and his employer’s motion for judgment n.o.v. was denied by the trial judge and they have appealed that ruling. Spindler and his employer have not appealed. We now reverse the judgment against Kemp and his employer, Robb Tyler, Inc.

I

The motor vehicle accident giving rise to the litigation occurred on July 22, 1975, in the Brooklyn section of Baltimore City,'on West Patapsco Avenue, a six-lane road divided by a concrete median strip. Both Kemp and Spindler, the garbage truck drivers, had finished dumping their loads in a landfill located on the south side of West Patapsco Avenue. The Spindler truck exited the landfill, made a right turn and proceeded in the right eastbound lane of West Patapsco Avenue. Shortly thereafter, the Kemp truck exited the landfill, made a right turn and proceeded in the center eastbound lane of West Patapsco Avenue. As both drivers proceeded eastbound, Spindler turned on his left directional signal. Kemp then glanced into his left rearview mirror and flashed his headlights twice. Spindler then moved over into the center eastbound lane in front of the Kemp truck and then into the left eastbound lane in an attempt to make a U-turn at an opening in the median with the ultimate purpose of proceeding westbound on West Patapsco Avenue. Before he could complete the U-turn Spindler’s truck was struck in the left rear in the left eastbound lane by the appellee Wardlaw who had been proceeding easterly in that lane. Appellee Armstrong, following closely behind Wardlaw on his motorcycle, struck the rear of the Wardlaw vehicle. There was no contact between the Kemp truck and any other vehicle.

II

The appellees (plaintiffs below) alleged that Kemp was negligent:

“... in that he did negligently and improperly, and from a point to the rear of the Spindler vehicle, signal to the Defendant, Stephen Joseph Spindler, that the way was clear for the said Stephen Joseph Spindler to operate his truck from the right-hand lane of eastbound West Patapsco Avenue traffic across the remaining lanes of traffic thereon, that he failed to keep a proper lookout, that he failed to observe the presence and proximity of approaching motor vehicular traffic from his rear and in particular, the approach of the Wardlaw automobile and the [Armstrong motorcycle], that he did give an erroneous signal to the Defendant, Stephen Joseph Spindler, to proceed across the center and left eastbound lanes of West Patapsco Avenue and was in other respects negligent;----”

On appeal Kemp contends, as he did below, that his signal to Spindler was an act of courtesy indicating only that as far as Kemp was concerned he (Kemp) would not interfere with Spindler’s action in pulling into the lane in front of him in the process of his entrance into the median. The appellees on the other hand contend, as they did below, that there was evidence that the signal meant that the road was clear for a U-turn and that Kemp, having voluntarily undertaken to check the road for traffic in the left eastbound lane, owed a duty to the appellees and that his negligent failure to discharge that duty was a proximate cause of their injuries.

Where the trial court has denied a motion for a directed verdict or a motion for a judgment n.o. v. made by a defendant, we must in determining the propriety of the ruling, resolve all conflicts in favor of the plaintiffs and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiffs’ right to recover. “Or, as it is often stated, the evidence must be considered in the light most favorable to the plaintiff(s)”. Campbell v. Jenifer, 222 Md. 106, 110, 159 A. 2d 353, 355. Viewing the evidence in this manner, we think it would support the following factual findings by the jury:

1. Kemp knew that when Spindler turned on his left turn signal that Spindler intended to cross the eastbound center lane and the eastbound left lane to enter the median preparatory to making a U-turn into the westbound lanes of West Patapsco Avenue.
2. Spindler could not see the traffic in the eastbound left lane while he was still in the right eastbound lane of West Patapsco Avenue at the time he turned on his left turn signal.
3. When Kemp saw Spindler’s left turn signal, he looked in his rear view mirror to ascertain whether there was traffic in the left lane; seeing none, he flashed his lights to indicate to Spindler that he could safely make the U-turn he knew he intended to make.
4. When Spindler crossed into the center lane ahead of Kemp within a short distance of reaching the median, he looked for himself before crossing the left eastbound lane into the median. Having determined for himself that the way was clear he proceeded across the left eastbound lane into the median and either stopped or nearly stopped while waiting for westbound traffic on West Patapsco Avenue to clear. At the time he was struck by the Wardlaw vehicle, the rear of his truck was still protruding a few feet into the left eastbound lane of West Patapsco Avenue. The Wardlaw vehicle struck . the left rear corner of his truck.

At the time of the accident, Md. Code, (1957) Art. 66.V2, § 11-309 (1) (now codified as § 21-309 (b) of the Transportation Article of the Md. Code (1977)), provided:

“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety.” (Emphasis added).

This statutory duty with respect to changing lanes can not be delegated to other drivers on the highway. Spindler’s duty with respect to changing lanes, therefore, could not have been delegated to Kemp. The appellees do not seem to dispute this proposition. Instead, they seek to invoke against Kemp the principle of liability for the negligent performance of a voluntarily assumed duty. Under the particular circumstances of this case, we think the jury could reasonably have found that Kemp did in fact assume the voluntary duty of checking the traffic conditions in the left lane for the purpose of determining whether Spindler could safely come across his path into the left lane in the process of making his U-turn at the median. Having assumed that duty, even though gratuitously, he was bound to act carefully. As stated by Judge Cardozo in Glanzer v. Shepard, 233 N. Y. 236, 135 N. E. 275, 276, 23 A.L.R. 1425 (1922), “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all”. Under the facts of the present case, however, we do not think this principle is applicable to impose liability upon Kemp, for even if it be assumed that Kemp acted without due care in failing to detect the presence of the Wardlaw and Armstrong vehicles, we agree with Kemp’s further contention in this appeal that there is no evidence that Spindler went into the left lane in reliance on Kemp’s signal.

Spindler was called to testify for the plaintiffs as an adverse witness. He testified without equivocation on several occasions during the questioning that the signal he received from Kemp meant to him (Spindler) that “there was no traffic coming and I could come into the center lane” and “that I could come over into his [Kemp’s] lane”. He further testified as follows:

“Q. And then there eventually came a time that you went from the center lane, you said, across the left lane and into the median; is that correct? A. That’s correct.
Q. Did you look for yourself before you crossed the left land [sic] or went into the left lane? A. Yes.
Q. Did you ever rely on Mr. Kemp to give you clearance across that left lane? A. I looked for myself.
Q. Did you ever rely on anything that he did to get you across that left lane? A. No.”
“Q. He let you come in front of him; is that right? A. Yes.
Q. And you did go in front of him; is that right? A. Yes.
Q. So, without any concern — lam not concerned with this question regarding distance or anything — before you went from the center lane across the fast lane you looked for yourself; is that correct? A. Correct.
Q. And you satisfied yourself that the way was clear for you to go; is that correct? A. Yes, sir.”

It is clear, therefore, that regardless of what Kemp may have intended by his signal or what duty he may have thereby gratuitously assumed, so far as Spindler, the signalled driver, was concerned, it meant nothing more than that he could safely proceed into the center lane, but not necessarily into the left lane. To cross the left lane, the lane in which the accident occurred, he “satisfied” himself, albeit negligently, “that the way was clear”, without reliance upon “anything” that Kemp did. Spindler’s testimony at trial was strengthened by his written statement to the investigating police officer at the scene of the accident. The statement was placed in evidence as a plaintiffs exhibit. It reads:

“I had just left the dump on Patapsco Ave. I was east on Patapsco Ave. & in the right lane moving very slow. My intention was to make a U turn in front of the General Tire Co. A truck in the center lane a green dumpster blinked his head light & motioned for me to come around. I checked my side view mirror & it was clear all the way back to the railroad bridge. That is the lanes that I could see. I started to make my turn as I passed the front of the green truck I looked again & I didn’t see any traffic. I was between the island still making my turn. That’s when I felt an impact. I pulled to the side stopped got out & saw that a car had hit me. (Emphasis added.)

In this case, therefore, according to the appellees’ own evidence, Kemp’s actions, whether negligent or not, were not a proximate cause of the accident. The sole proximate cause of the accident clearly was Spindler’s own negligence in changing lanes without ascertaining that he could do so with safety. Any initial negligence on Kemp’s part as a potential cause of the accident was superseded by the independent and later voluntary action of Spindler in undertaking to proceed into the left lane when it was unsafe to do so. Put another way, even if Kemp reasonably believed that Spindler interpreted Kemp’s signal to mean that he (Spindler) could safely traverse the left lane and believed that Spindler was relying upon that signal when he went into the left lane, the uncontradicted fact, established by the plaintiffs themselves, that Spindler did not so interpret the signal and did not so rely upon it, eliminates Kemp’s signal, whether given negligently or not, as a proximate cause of the accident.

It has been said by the Court of Appeals that,

“While it is true that duty and causation are normally questions of fact for the trier of the facts to decide, nevertheless, when the facts are not disputed and it is certain that reasonable minds could draw but one inference from such facts, as in the present case, the issue may be resolved as a matter of law.” Liberto v. Holfeldt, 221 Md. 62, 67, 155 A. 2d 698 (1959).

Under the facts of this case, we conclude as a matter of law that Kemp was not guilty of any actionable negligence in the appellees’ suit against him and his employer. The denial of their motions for directed verdict and judgment n.o.v. therefore requires that the judgment against them be reversed.

Although factually different, we find support for this result in Dix v. Spampinato, 278 Md. 34, 358 A. 2d 237 (1976), and the cases cited with approval therein. See, e.g., Van Jura v. Row, 191 N.E.2d 536 (S. Ct. Ohio, 1963), and Devine v. Cook, 279 P. 2d 1073 (S. Ct. Utah, 1955).

Judgment reversed.

Costs to be paid by appellees.

      . Prior to trial, both plaintiffs executed joint tort feasor releases in favor of Spindler and his employer.


author: Wilner, J.,

text:
    ROBERT COLLOM RAND v. FLORENCE MITCHELL RAND
    [No. 170,
    September Term, 1978.]

      Decided November 3, 1978.

    The cause was argued before Moylan, Lowe and Wilner, JJ.
    Robert C. Rand, in proper person, appellant.

      Elbert R. Shore, Jr., with whom were John T. Bell, Frank S. Cornelius, Alfred L. Rehder, Richard S. Ulf and Bell, Cornelius & Shore on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

An announcer for a soap opera would bill this proceeding as yet another episode in the continuing saga of the Rand family — the eternal, endless quest by Florence Rand to maximize the contribution of her former husband Robert toward the support of their daughter Virginia, and the equally determined effort by Robert to pay as little as he must. Unfortunately, this is not a soap opera. Real people are involved; and, for the fourth time in less than seven years an appellate court of this State is called upon to resolve the post-marital financial disputes between these warring parties. Would only that Virginia have had the benefit of the fortune invested in this seemingly interminable litigation.

The parties were married in 1942 and divorced in 1971. We first saw them on appeal from those provisions of the divorce decree dealing with alimony and child support; and, in Rand v. Rand, 13 Md. App. 574 (1971), we affirmed that part of the decree requiring Robert to pay $75 a month alimony and, although the issue was not specifically addressed in that appeal, we also left standing the part of the decree requiring Robert to contribute $250 a month for the support of the minor child, Virginia, then 13 years of age.

Some four years later, Florence petitioned for an increase in child support in order, she claimed, to help finance the expenses of Virginia’s college education. Robert responded with a petition to reduce or terminate Florence’s alimony. Adopting the recommendations of its Domestic Relations Master, the Circuit Court for Montgomery County increased Robert’s obligation for child support from $250 to $480 per month, but terminated his alimony payments. Florence appealed, and, in Rand v. Rand, 33 Md. App. 527 (1976), we reversed. Without disturbing the chancellor’s finding that $520 per month was required for Virginia’s support, this Court concluded that Robert’s obligation should be 5/8 of that amount, or $325 a month, and that Florence should be responsible for the other 3/8, or $195 per month. We reached that conclusion by accepting the finding that Robert’s net income, after deducting his personal expenses, was $500 per month and that Florence’s net income, after deducting her personal expenses, was $300 per month. Thus, we opined, Robert, whose net income amounted to 5/8 of the combined net income, should pay but that same proportion of Virginia’s documented expenses, and Florence likewise, on the same basis, should pay the other 3/8.

Unhappy with the result, if not the approach, Florence successfully petitioned for a writ of certiorari from the Court of Appeals. The net effect, and holding, of that Court is best summarized by this excerpt from its Opinion, appearing at 280 Md. 508, 517:

“We, therefore, fully agree with the Court of Special Appeals that the parents must share the responsibility for parental support in accordance with their respective financial resources. In so holding, we do not undertake to mandate any specific formula by which the chancellor is to calculate the amount of support to be charged against each parent. Whether it is appropriate to utilize a ‘net income after personal expenses’ test, as the Court of Special Appeals did in this case, or a gross income, or a total capital resources test, or some other measure of assessing financial resources, is a matter to be determined by the chancellor in view of the circumstances of each individual case. While we do not disagree with the allocation made by the Court of Special Appeals in this case, we nevertheless shall remand the matter so that the chancellor, having the benefit of the principles of law enunciated in this opinion, may in the first instance determine, in the exercise of his discretion, the parental support obligation of each parent.”

The issue involved in this proceeding results from the time lag between the order of the circuit court requiring Robert to pay $480 per month and the mandate of this Court in the second Rand case (that reported in 33 Md. App. 527) ordering a reduction to $325. Robert had, of course, been paying the $480 since the initial decree; and, by the time the circuit court revised its decree in December, 1976, upon the remand from this Court, he had paid the $480 for 16 months. Robert asked, at the December hearing, for a recoupment of this overpayment, which he estimated to be $2,480 (16 times the difference between $480 and $325); but a resolution of this request was deferred pending a decision by the Court of Appeals following its grant of certiorari. The ultimate decision of the Court of Appeals required a further proceeding in the circuit court, in which the chancellor was to determine for himself what the appropriate breakdown should be, rather than revising the decree solely by reference to the “formula” approach ordered by this Court. This further hearing was held on October 4, 1977, at which time the chancellor continued the obligation at $325. Once again, Robert sought a recoupment of the $2,480 overpayment, but the chancellor ordered Florence to repay only 3/8 of that amount, or $930. It is from that determination — the refusal of the court to order the return of the entire $2,480 — that Robert appeals. We are somewhat fortunate in that Florence has not filed a cross-appeal.

Robert asserts that there are “two compelling arguments for reversal.” First, he says, since the initial order of $480 per month was made retroactive to September 1, 1975, the revision to $325 should also be made retroactive to the same date; second, since the “overpayment”, as he calls it, was “a direct result of false sworn testimony” by Florence, she should gain no advantage. Neither of these contentions has any merit and the judgment will therefore be affirmed.

It does not appear that the appellate courts of Maryland have yet addressed the question posed here directly. We find persuasive, however, and therefore adopt, the view expressed on several occasions by the New York courts that a party making child support payments pursuant to a court order has no right to restitution or recoupment following a reversal or modification of the award on appeal. The rationale for this rule is that the right to support arises out of the policy of the law and not by contract. See Grossman v. Ostrow, 308 N.Y.S.2d 280 (1970); Glassman v. Glassman, 245 N.Y.S.2d 298 (1963). Also, Coleman v. Coleman, 402 N.Y.S.2d 6 (1978); 27B C.J.S. Divorce, § 324 (16), 1978 Cum. Supp.

The obligation of a parent to support his (or her) minor child is required by public policy and is expressly imposed by statute. Md. Annot. Code, art. 72A, § 1. The determination of the amount of support to be paid by a parent, and the fixing of such amount as part of an order of a court having proper jurisdiction, authorized by Md. Annot. Code, art. 16, § 66 (a), is an implementation of that public policy, and therefore rests upon a different footing than ordinary judgments representing the adjudication of private claims. Some evidence of this difference is provided in Article III, § 38 of the Maryland Constitution, exempting a valid decree of a court of competent jurisdiction for the support of dependent children from the general prohibition against imprisonment for debt. See McCabe v. McCabe, 210 Md. 308 (1956); Speckler v. Speckler, 256 Md. 635 (1970). Also, Zouck v. Zouck, 204 Md. 285, 300 (1954).

The fixing of child support derives from the obligation of the parent to the child, not from one parent to another. It presumably represents the considered judgment of the court as to what the needs of the child are and what the parent subject to the order ought, and can afford, to pay. This, in turn, is necessarily premised upon the assumption that the amounts paid, or to be paid, under the order are not excessive, and will, in fact, be applied exclusively to the ascertained needs of the child, whether directly or indirectly, and not to any extraneous purposes.

At least in the situation where the court entering such an order had jurisdiction to do so, and the order is therefore not void ab initio, recognition of a right of total recoupment because an appellate court disagrees as to the amount of support ordered, and directs the lower court to revise its decree by reducing the support allowance, would run the substantial risk of thwarting the clearly expressed public policy.

Where is the recoupment to come from? If the direct recipient — the custodial parent, usually — has not, in fact, expended the “overpayment” for the support of the child and has it, or its equivalent (in whole or in part), available for repayment, it is only fair and just that the paying parent be able to recover it. Thus, the power of a court to order or permit recoupment should not be denied. But to the extent that such overpayments have been properly expended for the child’s support in reliance on the court order, and neither they nor their equivalent are available for repayment, the entitlement to recoupment would, of necessity, entail a reduction in the amount of future support below even that which the appellate court itself, or the trial court in the implementation of the appellate court’s mandate, has found necessary. In other words, in such a situation, the onus of the remedy would fall upon the child, not the receiving parent. The existence of a right of recoupment, in that instance, would be entirely inconsistent with the obligation imposed upon the parent by law, because it would require that, during the recoupment period —- the interval of time during which the paying parent reduces the periodic payment below the amount last ordered — the child would be receiving less than that found necessary for his or her support; and thus, the recouping parent would not be fulfilling his or her statutory obligation.

Whether, and to what extent, the receiving parent in fact used the “overpayment” for the support of the child and has the funds from which to permit a proper recoupment without depriving the child, is a determination that must necessarily be made by the trial court, exercising its discretion upon the relevant evidence before it. The scope of discretion, and the principles applicable to its exercise, with respect to allowing recoupment must be substantially the same as pertain to the fixing of child support in the first instance; and thus, the determination of the court will not be disturbed on appeal unless it is found to be clearly erroneous.

The record here shows that the trial court determined the extent of Robert’s allowable recoupment solely upon the basis of the 5/8:3/8 formula. Having found that the entire amount of the $2,480 “overpayment” was expended by Florence for the benefit of Virginia, it decided to “divide the overpayment according to the formula and require Mrs. Rand to pay back the sum of $930.00, which is three-eighths [of $2,480].” Although the Court of Appeals said in its Rand decision (280 Md. 508, at 517), that such a formulated approach was an inappropriate basis for an appellate court to adopt in the first instance, it is not necessarily inappropriate for the chancellor, in the exercise of his discretion, to use this method.

The Court, having (1) determined, upon the basis of Virginia’s needs and the respective resources and abilities to pay of Florence and Robert, that Robert should contribute $325 per month to Virginia’s support, and (2) concluded that the entire $2,480 was expended in good faith and in reliance upon the previous order for Virginia’s support, and there being sufficient evidence in the record to support both of those findings, it would not have been an abuse of discretion for the court to deny any recoupment to Robert. That it allowed a recoupment of $930, albeit on a formula basis, does not constitute an abuse of discretion, and is not, therefore, a judgment about which Robert has a legitimate complaint.

Judgment affirmed; appellant to pay the costs.

        . The order increasing the support to $480 per month was made retroactive to September 1, 1975. Why this date was chosen is not clear. Florence’s petition for an increase had been filed August 7, 1975; the chancellor’s order was issued December 9, 1975. The chancellor’s order reducing Robert’s share of Virginia’s support to $325 per month became effective January 1, 1977. The 16-month interval was from September 1, 1975, through December, 1976.

      . The Coleman Opinion suggests that the recovery of child support .overpayments may not be proper under any circumstance — that it “has not been sanctioned.” We do not adopt that view, as discussed infra.