author: MacDaniel, J.,

text:
    G. PULLA REDDY et al. v. VIBHAKAR J. MODY et al.
    [No. 874,
    September Term, 1977.]

      Decided May 10, 1978.

      Refiled July 12, 1978.

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

      Sylman I. Euzent for appellants.

      Roy Mason, with whom were William A. Ehrmantraut and Donahue & Ehrmantraut on the brief, for appellee Vibhakar J. Mody. John J. O’Neill, Jr., with whom were Ford & O’Neill on the brief, for appellee Sigma Centers of America, Incorporated.
   MacDaniel, J.,

delivered the opinion of the Court.

An action for medical malpractice was filed by Ronald S. Schimel, personal representative of the estate of Kamala Reddy, G. Pulla Reddy, individually and as husband of Kamala Reddy, and Getta G. Reddy, Swinita G. Reddy, Ragashkar G. Reddy and Rajandra G. Reddy, as children of Kamala Reddy, appellants, against Vibhakar J. Mody and Sigma Centers of America, Incorporated, appellees. This case was tried in the Circuit Court for Montgomery County by a jury. On July 15, 1977, the jury returned a verdict in favor of all appellees. This appeal was timely filed after the denial of appellants’ motion for a retrial.

On or about November 28, 1975, the deceased, Kamala Reddy, the wife and mother of the appellants, presented herself to the Sigma Reproductive Health Center, Inc., operated by appellee Sigma Centers of America, Incorporated, and applied to have an abortion procedure performed. Appellee Dr. Mody attended to Sigma Centers patients requesting abortions two days a week. Dr. Mody had no written contract with Sigma Centers but received a fixed fee per patient. The deceased and her husband both signed the “consent” portion of the application form. This application indicated that the deceased denied any allergies to medications, except sulfa. Deceased’s husband, to his knowledge, denied that his wife ever had any complications with the birth of their four children or any adverse reaction to the administration of a drug or anesthetic. In preparing the deceased for the operation, Dr. Mody administered a local anesthetic. The deceased had a violent reaction to the local anesthetic, was then transferred to the Washington Adventist Hospital where she died the following day. Nella Williams, an employee of appellee Sigma Centers, was the nurse assisting appellee Mody at the time of the incident involving Mrs. Reddy and in which she suffered the reaction here involved. Nurse Williams was called as a witness by appellee Sigma Centers. Over objection, Nurse Williams was allowed to testify to an alleged conversation between the deceased and appellee Mody. The testimony in question was as follows:

“Q Mrs. Williams, tell the Court and the jury what was said.

A Camela [sic] Reddy complaining, ‘I do not feel well.’

Dr. Mody asking, ‘Have you ever felt this way before?’

Camela [sic] Reddy saying, ‘Yes.’

Dr. Mody stating, ‘Why didn’t you tell us?’

Camela [sic] Reddy stating, ‘I didn’t think it would be so bad.’ ”

Appellee Mody, over objection, was allowed to testify concerning this same alleged conversation as follows:

“Q Would you answer the question, Dr. Mody?

What further conversation was had with Mrs. Reddy?

A Sir, as soon after she mentioned that she — she is not feeling well, I went over to her side; I asked her if she had similar such reactions in the past and to which she said, ‘Yes.’, she had something like this before and I told her, ‘Why didn’t you tell us before?’ ”

The issues presented to this Court on appeal are:

1. Did the trial court err in admitting the testimony of Nurse Williams as to conversations between the deceased and Dr. Mody?

2. Did the trial court err in not recognizing Nurse Williams as an incompetent witness?

3. Did the trial court err in admitting testimony of appellee Mody as to his conversations with the deceased?

All three questions presented for our review turn on the application of the Dead Man’s Statute. Before discussing the merits of the issues, it is necessary to consider the purpose and history behind the Statute.

At common law, in order to avoid self-interested perjury, no party to a lawsuit was competent to testify in that suit. 2 J. Wigmore, Evidence, § 575 (3d ed. 1940). The Legislature by the Acts of 1864, ch. 109, § l, liberalized the common law rule and qualified witnesses, including parties to the case, who by reason of interest had previously been disqualified “except as hereinafter excepted.” Section 1 of ch. 109 has been retained in substance in § 9-101 of the Courts and Judicial Proceedings Article and reads in pertinent part as follows:

“§ 9-101. In general.

Unless otherwise provided in this subtitle: ... (2) litigants and their spouses are competent and compellable to give evidence.”

The Dead Man’s Statute, § 9-116 of the Courts and Judicial Proceedings Article, originally enacted by the Acts of 1864, ch. 109, § 2, remains as a vestige of the common law disqualification. It carves from the rule rendering interested parties competent (Courts and Judicial Proceedings Article § 9-101), an exception which disallows a party from testifying to transactions with a deceased person. The Statute presently reads as follows:

“Section 9-116. Dead man’s statute.
A party to a proceeding by or against a personal representative, heir, devisee, distributee or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.”

The general purpose of the Statute is to equalize the position of the parties by imposing silence on the survivors as to transactions with or statements by the decedent or at least by requiring those asserting claims against the decedent’s estate to produce testimony from disinterested persons. Riley v. Lukens Dredging and Contracting Corp 4 F. Supp. 144 (D.C. Md. 1933). Such a rule renders as much testimony as possible admissible while preventing self-interested perjury.

The testimony meant to be excluded by the Statute is only testimony of a party to a cause which would tend to increase or diminish the estate of the decedent by establishing or defeating a cause of action by or against the estate. Snyder v. Crabbs, 263 Md. 28, 282 A. 2d 6 (1971); Wm. D. Shellady Inc. v. Herlihy, et al, 236 Md. 461, 204 A. 2d 504 (1964); Guernsey v. Loyola Federal Savings and Loan Association, 226 Md. 77, 172 A. 2d 506 (1960); State, Use of Miles v. Brainin, 224 Md. 156, 167 A. 2d 117 (1960); Robinson v. Lewis, 20 Md. App. 710, 317 A. 2d 854 (1974). The language of the Statute makes this clear by specifically narrowing its application to “proceeding by or against a personal representative, heir, devisee, distributee or legatee as such ...” (Emphasis supplied.) This limitation is important in the case before us because of the two distinct causes of action asserted. Count one of the second amended declaration is brought by the personal representative on behalf of the estate. Counts two and three are wrongful death actions brought by the husband and children in their own right.

The first inquiry as to each of the causes of action is, does the Statute apply? If the Statute applies the question becomes, does the Statute work to exclude the testimony?

With regard to counts two and three, the wrongful death actions, the answer to the first inquiry is determinative. The Dead Man’s Statute does not apply. Any money recovered by the children or the husband of the deceased is received by them in their own right and not through the estate of the deceased because of their status as heir, devisee, distributee or legatee.

The Court of Appeals discussed this point in State, Use of Miles v. Brainin, supra. In Brainin, a case factually similar to the one under consideration, the husband and children of the deceased instituted a wrongful death action, claiming malpractice in that the defendant doctor failed to diagnose a diabetic condition from which the deceased died.

The defense was that the doctor had no reason to know of the true nature of the disease. The doctor denied he had ever been informed of the symptoms of diabetes. The plaintiffs sought to contradict this with evidence that both the husband and a daughter were present when the patient told the doctor of the symptoms. The trial judge excluded the plaintiffs’ testimony on the point.

The trial court in sustaining the objection ruled that the plaintiffs were “distributees” within the meaning of the Statute.

The Court of Appeals reversed holding that in wrongful death actions the plaintiffs do not bring the action as “distributees of a decedent as such.” The Court held that it is the plaintiffs who are entitled to damages and not the estate of the deceased, and therefore the husband and daughter should have been allowed to testify.

Likewise, in the case at hand, the Dead Man’s Statute was inapplicable with regard to the wrongful death actions and the introduction of Nurse Williams and Dr. Mody’s testimony was not erroneous as to those counts.

The Dead Man’s Statute is applicable to the first count. Any recovery by the personal representative, unlike the recovery in the wrongful death actions, would go directly into the decedent’s estate. The inquiry then turns to whether the Dead Man’s Statute works to exclude the testimony of Nurse Williams and Dr. Mody in Count I. The three questions presented by the appellants address this point.

The first two issues raised by the appellants attack the trial court’s ruling that Nurse Nella Williams was a competent witness. It is the appellants’ position that the working relationship of the appellee, Dr. Mody, and Nurse Williams was such as to render her a “party” for the purposes of the Dead Man’s Statute and, therefore, she was rendered incompetent to testify. We disagree.

The purpose of the Statute, as was pointed out above, is to prevent the surviving party from having the benefit of his own testimony where, by reason of the death of his adversary, his representative is deprived of the decedent’s version of the transaction or statement. Ortel v. Gettig, 207 Md. 594, 116 A. 2d 145 (1955). This disability, while protecting the deceased’s estate, can create a great injustice to the survivor. As was stated in C. McCormick, Evidence, § 65 (2d ed. 1972):

“Most commentators agree that the expedient of refusing [to] listen to the survivor is, in the words of Bentham, a ‘blind and brainless’ technique. In seeking to avoid injustice to one side, the statute-makers have ignored the equal possibility of creating injustice to the other. The temptation to the survivor to fabricate a claim or defense is obvious enough, so obvious indeed that any jury will realize that his story must be cautiously heard.”

Faced with the uncertainty and injustice created by the Dead Man’s Statute, the Maryland Courts have sought to construe strictly the Statute in an effort to disclose as much evidence as the rule will allow. Stacy v. Burke, 259 Md. 390, 269 A. 2d 837 (1970). The rule which has evolved is that a party is one who has an interest in the property sought or a person having a direct pecuniary and proprietary interest in the outcome of the case. Trupp v. Wolff, 24 Md. App. 588, 335 A. 2d 171 (1975). Except in very unusual cases, the persons excluded from testifying are not those with an interest of any sort, but rather traditional real parties in interest and their representatives. Trupp v. Wolff, supra.

Mrs. Williams was not a traditional party, nor did she have a pecuniary or proprietary interest in the outcome. Mrs. Williams was merely an employee of a corporation which was a party. As such she was competent to testify.

The appellants next claim that the trial court erred in admitting the testimony of Dr. Mody as to his conversation with the deceased.

The Dead Man’s Statute has a self-contained exception which renders a party to a proceeding competent to testify about a statement made by a deceased where the “testimony of the dead or incompetent person has already been given in evidence in the same proceeding concerning the same transaction or statement.”

The trial court ruled and the appellees argue that under the above exception a party to a proceeding may testify about a statement made by the deceased once the substance of the statement has been received into evidence. More specifically, it is the appellees’ contention that because the substance of the conversation between the deceased and Dr. Mody was testified to by Mrs. Williams, Dr. Mody was rendered competent to testify about the conversation. We disagree.

It is true, as we pointed out above, that the courts construe the Dead Man’s Statute in order to disclose as much evidence as possible. This does not mean, however, that the language or the purpose of the Statute can be ignored.

The language of the Statute is explicit. The statutory exception is triggered by “testimony of the dead or incompetent person.” Testimony is defined as “evidence given by a competent witness, under oath or affirmation, as distinguished from evidence derived from writings, and other sources.” Black, Black’s Law Dictionary 1646 (4th ed. 1968). By the terms of the Statute, the testimony must be that of the deceased or incompetent person. The exception is not triggered by hearsay testimony of a third person. The mere fact that there has been testimony of what the dead person said, regardless of the source, is not enough.

The above distinction was made more explicit by the language of the exception as first enacted by the Acts of 1876, ch. 222, § 2. The exception read in pertinent part as follows:

“... except in case where the party to such suit, action or other proceeding has died, or become lunatic or insane, after having testified in his own behalf, then the opposite party shall be competent witness on his own behalf in such case ... but shall only testify as to matters upon which such deceased, lunatic or insane person was examined and testified to ...” (Emphasis added.)

The language of the exception was changed by the Acts of 1902, ch. 495, § 2, to read as follows:

.. or unless the testimony of such testator, intestate or party incompetent to testify shall have been already given in evidence concerning the same transaction or statement, in the same cause, on his or her own behalf or on behalf of his or her representative in interest; ...”

By the Acts of 1973,1st Sp. Sess., ch. 2, § 2, the exception was adopted in its present form.

The language of the Statute has been revised (See Revisor’s Note § 9-116), but the meaning and purpose have remained the same.

It was the purpose of the Statute in 1864, as it is today, to put the parties to a suit upon terms of substantial equality in regard to the opportunity to give testimony. Riley v. Lukens Dredging and Contracting Corp., supra. This goal of mutuality is achieved by allowing a party to testify about a transaction only where the deceased has previously about the transaction. This equality between the parties would be destroyed if, as the appellees suggest, a third party’s testimony concerning the transaction would remove the disqualification of the party litigant.

The Court of Appeals has had two occasions to construe the exception under consideration here. Neither case is factually identical to the case sub judice; they do, however, offer us some guidance in the application of the exception.

In Keyser v. Warfield, 103 Md. 161, 63 A. 217 (1906), the plaintiff Warfield sued Keyser for contribution due on a note. At the first trial Keyser testified on his own behalf. Upon appeal a judgment for the plaintiff was reversed and a new trial ordered. Keyser died pending the appeal and his administrators were made parties defendant. The Court held that upon the second trial the plaintiff was not a competent witness unless the testimony given by the deceased at the former trial was actually given in evidence at the subsequent trial. The Court stated:

“The leading purpose of the Evidence Acts, in imposing certain restrictions upon the rule removing the common-law disqualification of witnesses, was to ” preserve mutuality ánd to prevent undue advantage being given to the surviving party.” Id. at 170, 63 A. at 219.

The Court held that the reason for the rule would be frustrated if the exception removed the disqualification of the plaintiff merely because of the introduction of the testimony at the former trial without its introduction at the second trial.

In Ortel v. Gettig, supra, a surviving widow sued the executor of her deceased husband to have an ante-nuptial agreement between the plaintiff and the deceased declared null and void. The plaintiff claimed that the presence of a third party, competent to testify, at the conference where the agreement was executed operated to allow the admission of the plaintiff’s testimony as to what was said. The Court of Appeals disagreed. The Court held that such a construction would be repugnant to the Statute’s general purpose of equalizing the position of the parties.

In both of the above cases the Court indicated that the requirement for admissibility of the party’s testimony was the introduction of testimony by the person since deceased concerning the transaction with the party litigant. The requirement was not met in the cases above, nor was it met in the case at hand.

The testimony of Mrs. Williams about the conversation between Dr. Mody and the deceased did not render Dr. Mody competent to testify about that transaction and the admission of his testimony into evidence constituted error.

In determining whether the admission of Dr. Mody’s testimony was harmless, we are guided by the Court of Appeals where, in Dobbs v. State, 148 Md. 34, 129 A. 275 (1925), it was said:

“... when the errors are of such a character, and so interwoven with the case, as to lead a fair and impartial mind, trained and experienced in judicial investigation, upon an examination of the whole case and all the rulings involved therein, to the conclusion that there is a reasonable probability that such errors may have affected the determination of the case, they are prejudicial and reversible.” Id. at 48-49, 129 A. at 281.

While the substance of Dr. Mody’s testimony concerning the conversation with the deceased was testified to by Nurse Williams, we cannot say that Dr. Mody’s testimony, although cumulative, could not have reasonably affected the determination of the case. The substance of the conversation went to the heart of the defense case and it can be inferred within a reasonable probability that Dr. Mody’s testimony about the conversation affected the jury’s determination of the case. The admission of his testimony in contravention of the Dead Man’s Statute, therefore, cannot be considered harmless error.

In conclusion, it is this Court’s ruling that the Dead Man’s Statute does not apply to the wrongful death actions involved in this case and that the testimony of Nurse Williams and Dr. Mody was properly admitted as to those counts. The Statute, however, does apply to the action brought by the personal representative and for the reasons stated above, the introduction of Dr. Mody’s testimony into evidence was error with regard to that cause of action.

Judgment affirmed as to counts two and three of the second amended declaration.

Judgment reversed as to count one and remanded for a new trial.

Costs to be paid two-thirds by appellant and one-third' by appellees.

      . “No person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest, from giving evidence, either in person or by deposition,... in the trial of any issue joined or hereafter to be joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any court,...; but that every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or inquiry, or of the suit, action or proceeding in which he is offering as a witness, ... and the parties litigant, and all persons in whose behalf any suit, action or other proceeding may be brought or defended, themselves and their wives and husbands shall be competent and compellable to give evidence in the same manner as other witnesses, except as hereinafter excepted.”

      . The first Dead Man’s Statute in the State reads as follows:
      “When an original party to a contract or cause of action is dead or shown to be lunatic or insane or when an executor or administrator is a party to a suit, action, or other proceedings, the other party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer or upon the call of his co-plaintiff or co-defendant otherwise than now by law allowed, unless a nominal party merely.”

      . The objections and rulings below and the arguments on appeal were based on the Dead Man’s Statute. We are therefore not called to rule on the admissibility of the evidence under any other doctrine. Von Lusch v. State, 279 Md. 255, 369 A. 2d 468 (1977). ,


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    CHARLES ELLIOTT ALLEN, JR. v. STATE OF MARYLAND
    [No. 897,
    September Term, 1977.]

      Decided July 12, 1978.

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

      Philip A. Dales, III, with whom were Robert H. Rosenbaum and Myers & Billingsley, P.A. on the brief, for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Gerald K. Anders, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On August 21,1976, a collision occurred between an 18 foot “Sleekcraft” pleasure boat powered by a 325 H. P. eight cylinder engine and operated by the appellant, Charles Elliott Allen, Jr., and another pleasure boat, a 13 foot “Boston Whaler” powered by a 40 H. P. outboard motor and operated by Charles Turner Bland. The collision occurred on the waters of South River in Anne Arundel County, just north of the Riva Bridge located near the headwaters of the river. At the time of the collision, appellant’s friend, Mr. George Ball, was his only passenger. The Boston Whaler was occupied by four persons including the operator. A fifth person, James Bland, III, was being towed by the Boston Whaler on a water ski attached to the Whaler by 75 feet of tow line.

The force of the impact between the two boats resulted in the instant death of one of the Boston Whaler’s passengers. As a further result of the tragic accident appellant was convicted by a jury in the Circuit Court for Anne Arundel County (Evans, J., presiding) of the statutory misdemeanor of “manslaughter by motor boat”. Md. Ann. Code, Art. 27, § 388 (1976 repl. vol.). The statute reads in pertinent part as follows:

“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,’....” (Emphasis added).

Appellant contends on appeal that 1) the evidence was legally insufficient to justify his conviction; 2) the trial judge erred in sustaining objections to various hypothetical questions he posed to expert witnesses; 3) he was denied a fair trial by the trial judge’s failure to prohibit reference to his boat as a “jet boat” and by alleged inflammatory remarks of the prosecutor in closing argument; and 4) the jury instructions were erroneous in various respects. As we find no merit to any of these contentions, we must affirm the judgment of conviction.

Sufficiency of the Evidence

At the close of all the evidence, appellant’^ motion for judgment of acquittal was denied by the trial judge. The issue of the legal sufficiency of the evidence is therefore properly before us. Lotharp v. State, 231 Md. 239, 189 A. 2d 652 (1963); Barnes v. State, 31 Md. App. 25, 354 A. 2d 499 (1976). The scope of our review of the issue, however, is limited. We do not decide the guilt or innocence of the accused. In reviewing the sufficiency of the evidence in a jury trial, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt. Rather it is our limited function to determine whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the offense charged. If there is such evidence, the trial judge correctly denied the motion for judgment of acquittal; if there is no such evidence, denial of the motion would be reversible error. Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971); Hines v. State, 34 Md. App. 612, 368 A. 2d 509 (1977); Vuitch v. State, 10 Md. App. 389, 271 A. 2d 371 (1970).

As it is with the crime of “manslaughter by automobile”, the gist of the crime of “manslaughter by motorboat” is causing the death of another by operating, driving, or controlling a motorboat in a “grossly negligent manner”. Whether that statutory standard 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’ ”. See Blackwell v. State, 34 Md. App. 547, 556, 369 A. 2d 153 (1977), cert. denied, and Boyd v. State, 22 Md. App. 539, 550, 323 A. 2d 684 (1974), cert. denied, 272 Md. 738 (1974), and cases therein cited.

In the instant case, although the evidence is in some conflict as to the details of how and why the accident occurred and susceptible to opposing inferences, we think it was legally sufficient to support a finding that beyond a reasonable doubt the appellant operated his boat “in a grossly negligent manner” thereby “causing the death of another”.

The driver of the Boston Whaler testified that shortly prior to the accident he was towing a skier on a 75 foot long tow line, proceeding southeasterly approximately 150 feet from and parallel to the southern shore of the river. He estimated his speed at between 20 and 25 M.P.H. Another boat (not involved in the accident), also towing a skier, was following behind him at a distance of approximately 200 feet. This boat, referred to in the evidence as the “blue boat”, was travelling at the approximate speed of the Boston Whaler. When the Boston Whaler reached a point approximately 150 feet from the Riva Bridge spanning the river, it made a 90° turn to the left and proceeded on a course parallel to the bridge. There is evidence that when the Boston Whaler made its left turn, the Sleekcraft, driven by the appellant, was also travelling southeasterly in the approximate center of the river. At that point the river is approximately 1,600 feet wide. The driver of the Boston Whaler testified that as he “got ready to make the turn”, he saw the Sleekcraft “some distance to the center and behind” him. After completing the turn the Boston Whaler proceeded on its course parallel to the bridge for a period of approximately ten seconds. The driver described the happening of the accident as follows:

“Q. AÍ1 right, what happened next after you continued for that period of time?
A. We were coming parallel to the bridge____I saw the other boat which was — now it had changed its course. It wasn’t coming — going towards the south bend it was coming directly at me. I immediately cut back the throttle and the front end of our boat dropped down____
A. Okay, what actually happened was his boat — the front end is higher in the water, you know, and especially since I — after I had cut back on the throttle the Boston Whaler the front end drops when you cut back on the throttle; our front end dropped and his boat, the front end came over the top of ours until the about mid-point in his boat hit our left front bow.
Q. All right, the mid-point of his right or starboard side hit your left front or port side?
A. Right.”

He further testified that after seeing the Sleekcraft when he made his 90° turn to the left he did not see it again until it was 30 to 50 feet from him “coming directly at me”. He could not estimate the speed of the Sleekcraft in miles per hour, but said it was “fast”. Other witnesses estimated its speed, variously, at 30 M.P.H. to 60 M.P.H.

The force of the impact propelled all of the Boston Whaler’s occupants into the water, and, as already mentioned, caused the instantaneous death of one of them, who prior to the impact had been sitting in the left front of the boat.

The appellant elected not to testify in his own behalf. His passenger, Mr. George Ball, did testify. His testimony, however, is of little help to the appellant on the issue of appellant’s gross negligence. He testified that he (Ball) saw the blue boat and its skier (that was proceeding behind the Boston Whaler) but that he at no time saw the Boston Whaler until immediately prior to the collision. He only had time to say “look out” and hear the appellant say “ ‘Oh, my God’ and then the collision occurred”.

The evidence mentioned so far, viewed in the light most favorable to the State, was legally sufficient to warrant a finding by the jury that a proximate cause of the accident and the victim’s resulting death was the appellant’s failure to keep a proper lookout and his further failure to keep out of the way of the Boston Whaler which was approaching him on his starboard (right) side in a crossing situation. These failures violated two important Inland Rules of the Road that govern the navigation of all vessels upon the harbors, rivers, and other navigable inland waters of the United States, not including the Great Lakes and certain Western rivers. The Inland Rules of the Road have been established by various acts of the U. S. Congress, the first enactment being in 1897 (c. 4, § 1, 30 stat. 96). In addition to these statutory Rules of the Road, there are the “Pilot Rules”, consisting of the regulations promulgated by the U. S. Coast Guard amplifying and interpreting the rules applicable to the local waters of the United States.

Both the Inland Rules and Pilot Rules are contained in a pamphlet published by the U. S. Coast Guard, designated and numbered: “Rules of the Road, International-Inland” (CG-169). They apply to all vessels on navigable inland waters and anyone who undertakes to operate a vessel (regardless of size and speed) upon these waters is charged with knowledge of their existence and the mandatory duty to obey them. The Inland Rules of the Road are therefore highly relevant to a determination of negligence or gross negligence in any case involving a collision between two vessels operating on the navigable inland waters of this country. A violation of the Rules is evidence of negligence and if there is evidence that the violation is a proximate cause of a collision resulting in death and that the conduct of the defendant, considering all the factors of the case, amounted to a wanton or reckless disregard for human life, it will not be said that the evidence is insufficient to sustain a judgment of conviction of the statutory crime of “manslaughter by motorboat”.

The two Rules of the Road we think the jury could have found to have been violated by appellant provide as follows:

“Art. 19. When two steam vessels M are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other”. (33 U.S.C.A. § 204).
“Art. 29. Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect... to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case". (33 U.S.C.A. § 221) (Emphasis added.)

Corollary to the duty imposed by Art. 19 are the duties imposed by two other applicable rules:

“Art. 22. Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.” (33 U.S.C.A. § 207).
“Art. 23. Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary slacken her speed or stop or reverse.” (33 U.S.C.A. § 208).

Corollary to the duty imposed by Art. 29 (duty to keep a proper lookout) is the so-called “General Prudential Rule” set forth in Art. 27 of the Inland Rules as follows:

“In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger”. (33 U.S.C.A. § 212).

In the case at bar, there is evidence that the collision occurred at about 7:30 P. M. on a Saturday during daylight hours; that the weather was clear; that the water was calm and that there was nothing to prevent the appellant from seeing the Boston Whaler either before or after it made its 90° turn to the left. There is also evidence that the Sleekcraft is a highly maneuverable craft and has a “very good braking” capability. This is because its propulsion is achieved by a jet water pump rather than by a conventional propeller. An expert witness, offered by the appellant, explained:

“Q. And you indicated it had very good braking. Would you describe what you mean to the jury?
A. I certainly will. In a propeller driven craft, it is necessary to bring the engine down to idle before putting it in reverse and the engine accelerated. In a jet boat this is not the case inasmuch as the only difference in the operation of forward and reverse is the direction of the water. When in forward position, the water is going to the back of the boat, that produces equal and opposite reaction to propel the boat forward. In reverse motion the water is generally pushed forward which tends to put braking thrust on the boat if it’s stopped, pushed the boat backwards.
Q. Can the boat be reversed almost instantly?
A. It can be put into reverse instantly. Certainly the stopping action doesn’t occur instantly.
Q. Assuming the jet boat was travelling at thirty-five miles per hour, approximately what distance would it take after it was placed into reverse to come to a stop in the water?
A. That would depend completely on the operator which was operating the boat. However, a boat such as this kind possibly could be brought to a stop as quick as I would say a hundred and twenty feet.”

This evidence concerning the Sleekcraft’s maneuverability and “braking” capability is relevant to the issue of whether or not the appellant kept a proper lookout (Art. 29) and also whether or not he took the necessary steps to avoid the Boston Whaler approaching him from his starboard (right) side (Arts. 22 and 23). The evidence is clear that prior to the collision the appellant did not slacken speed at all. There is some evidence, however, from which the jury could infer that a split second before the collision the appellant did attempt to avoid the Boston Whaler by turning left to cross ahead of it. Under the circumstances, the jury could easily have found either 1) that appellant, although keeping a proper lookout, deliberately chose to rely on his craft’s maneuverability and speed in an attempt to avoid the Boston Whaler “at the last minute” by crossing ahead of him — a violation of both Art. 22 (avoid crossing ahead of a privileged vessel) and Art. 23 (duty to slacken speed, stop or reverse to avoid a privileged vessel), both of which violations could easily have been avoided because of the Sleekcraft’s maneuverability; or 2) that appellant simply was not looking where he was going, a clear violation of Art. 29.

The duty to keep a proper lookout imposed by Art. 29 applies, of course, whether or not the vessel is the privileged or burdened vessel and is perhaps the most important of all the rules of navigation. It has been described as “an inexorable requirement of prudent navigation” the failure to perform which is “so grave a default as to give rise to a strong inference that it contributed to the accident....” See Judge Soper’s opinion in Anthony v. International Paper Company, 289 F. 2d 574, 580-581 (4th Cir. 1961).

The jury could also have found that, although there was no speed limit at the site of the accident, appellant’s speed (up to 60 M.P.H.) was unreasonable under the circumstances and, at the least, should have induced him to be particularly watchful of other craft in the area. There was also evidence, introduced without objection, that after the collision the appellant immediately drove his boat, still at high speed, from the scene without stopping to offer assistance to those who had been thrown into the water by the impact. Additionally, the State introduced evidence, again without objection, that would support a conclusion that the appellant was operating his boat under the influence of an intoxicating beverage. All of this evidence constituted relevant factors to be considered by the jury on the issue of guilt or innocence of the crime of manslaughter by motor boat. See Boyd v. State, supra. While there was opposing evidence introduced by the defense, it was the jury’s function and not the trial judge’s, nor is it our function, to determine its weight or credibility.

In sum, having carefully reviewed the record before us, we conclude that the trial judge was correct in allowing the jury to make the ultimate decision in this case. It follows that the motion for a directed verdict was properly denied.

Expert Testimony

(a)

The trial judge sustained the objection to two hypothetical questions posed to a waterskiing expert called as a witness for the appellant. The questions sought to elicit testimony as to what would be “the correct method of operating the Boston Whaler” under the circumstances propounded in the hypotheticals. Appellant proffered that the purpose of these questions was to show that “good seamanship under the circumstances” required the Boston Whaler “to turn right in a situation approaching the bridge, come to a stop, to slow down considerably ... and that it was a burdened vessel”.

We first note that “[i]t is generally recognized that the whole problem [of the propriety of hypothetical questions and the qualifications of witnesses to answer them] is one which should be left to the sound discretion of the trial court.” Williams v. Dawidowicz, 209 Md. 77, 86, 120 A. 2d 399 (1956); see also Nolan v. Dillon, 261 Md. 516, 532, 276 A. 2d 36 (1971) and Greenstein v. Meister, 279 Md. 275, 368 A. 2d 451 (1977).

In the instant case, it is not at all clear from the record that the witness to whom the hypothetical questions were posed was ever qualified as an expert on “seamanship” or the applicable rules of the road. Assuming that he was so qualified, we find no abuse of discretion by the trial judge in sustaining the objections.

Whether the Boston Whaler was operated “correct[ly]” was, we think, a factor to be considered in determining whether the appellant’s conduct vis-á-vis the Boston Whaler amounted to gross negligence, but that issue (the “correctness” of the Boston Whaler's operation) was one peculiarly within the province of the jury to determine under appropriate instructions from the court. While it may be true, as argued by the appellant, that in certain situations “persons of nautical skill and experience may be used to indicate usual procedure where there is a disputed question of navigation”, where, as in the case before us, the navigation of vessels involved in a collision is governed by statutory rules and regulations, there is no need for expert testimony. One of the cases cited by the appellant supports this view. In The “City of Washington,” 92 U. S. 31 (1875), the Supreme Court said:

“----Parties litigant, however, are allowed in such controversies to call and examine persons of nautical skill and experience as expert witnesses; and they may, if they can, prove by them what the general usage is in respect to any disputed question of navigation not controlled by the sailing rules prescribed by Congress; and in certain cases, where better guides are not furnished by law, they may inquire of such witnesses what is and what is not good seamanship in a supposed state of the case, if the supposed state of the case is within the general scope and range of the evidence submitted for consideration of the court.” Id. 39 (Emphasis supplied).

In the present case, the “disputed question[s] of navigation” are controlled by the sailing rules prescribed by Congress” (the Inland Rules) as well as by the not inconsistent Maryland regulations adopted by the Department of Natural Resources.

(b)

Appellant next assigns as error the trial court’s sustaining the State’s objection to two questions asked of another witness offered as an expert “in the operation of small boats and jet boats in particular ... and also in the repair and evaluation of damages caused by accidents to small boats”. The witness had examined the Sleekcraft but not the Boston Whaler, although he was shown a photograph of the Whaler at trial. It was proffered that the witness’ testimony sought from the two questions “would have indicated the jet boat’s attitude in the water upon impact was just on plane; and that the object that it came in contact with came in at between a forty-five and eighty degree angle and moved forward on impact; and that this determination... it was possible for him to make based on his examination of the marks on the jet boat alone and the knowledge that the accident had been with another smaller boat”.

As with the previous questions, we see no abuse of discretion by the trial judge. We think it highly questionable that the witness, albeit an expert on the operation of and the repair and evaluation of damages to small boats, was properly qualified as an expert on the reconstruction of boat accidents. Moreover, the appellant, in his brief, does not explain, nor do we perceive, how the proffered testimony would have been helpful to the appellant or have furnished any material assistance to the jury, stating merely that the “expert testimony ... could clearly give material assistance to the jury in drawing conclusions from the collision.”

(c)

In a valiant attempt (taking up sixteen pages of the transcript,) to elicit an expert witness’ opinion of the Boston Whaler’s speed prior to the collision, appellant’s counsel propounded six hypothetical questions to the witness. Objections to each of the six questions were sustained by the trial judge. We are told in his brief that appellant was “attemptpng] to demonstrate that there was no appreciable difference between the vessels[’] speeds and that speed could therefore not be a factor in causation or evidence of negligence or gross negligence (in the event that determination was reached) by showing that the Whaler was necessarily travelling between 25-30 M.P.H. rather than the 20-25 testified to by the Whaler’s operator and therefore, that the speeds of all the vessels were reasonable for the uses people made of the rivpr”. On appeal, appellant states that he was attempting “to elicit this testimony based upon a hypothetical question____” (Emphasis supplied). We are not told which of the six hypotheticals the appellant desires us to review. We infer it is the last of the six.

Assuming that the issue is properly before us for review and assuming further that the trial judge may have been unduly restrictive in sustaining the objection to the question, we fail to see how the appellant was prejudiced. At best the speed of the Boston Whaler as related by its operator was an estimate (between 20 M.P.H. and 25 M.P.H.). From other questions asked the expert, who neither witnessed the accident nor was present in court during the testimony concerning the accident, it is patent that he, also, could only have estimated the Whaler’s minimum speed based on the performance characteristics of the particular type ski and the weight of the skier that the Boston Whaler was towing.

Assuming that the expert would have testified that, based on the facts stated in the hypothetical question, the Boston Whaler must have been traveling at a minimum speed of “between 25-30 M.P.H.”, we do not perceive that estimate as being so different from the operator’s estimate (20-25 M.P.H.) as to provide the jury any material assistance in determining the gross negligence of the appellant. We therefore conclude, aside from the substantial question of whether the issue was properly preserved for review, that any error by the trial court was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976).

Fair Trial

(a)

At the outset of the trial, appellant made a motion in limine to prevent use of the term “jet boat” in referring to his boat. He contended that although the boat is “colloquially called a jet boat”, use of the term was “quite inflammatory” and denoted excessive speed. The trial judge denied the motion, telling counsel for appellant that he could explain to the jury how the boat operates “and that should clear up any questions”. We find no error — particularly in view of the fact that the transcript reveals numerous occasions when appellant’s own counsel and his own witnesses referred to the boat as “the jet boat”.

(b)

The prosecutor concluded his closing argument to the jury with these remarks:

“Now, Mr. Dales’ presentation to you was an emotional one, but this case is not one for emotion. There are emotional factors to be considered on both sides. I’m not going to stand up here and tell you how heartbreaking it is for the family of this girl to sit here through this trial. Emotions have nothing to do with this case. You have to as a jury decide this case based on the facts as you’ve heard them, based on those eight elements and the rules of the road that you heard and return a fair and impartial verdict based solely on the evidence and the law. If you consider all the facts, I’m sure you’ll do exactly that. Thank you.”

Appellant’s counsel then objected “for the record to referring to the deceased’s family in the court room”. No motion for a mistrial was made and no curative action was requested of the trial judge. Indeed, it does not appear from the record that counsel’s objection to the particular remarks was ever ruled upon by the judge.

On appeal, appellant argues that the prosecutor’s reference to the deceased’s family was inflammatory and “effectively denied [him] a fair and impartial jury” because although he objected “the transgression went uncured”. As previously stated, no “cure” was requested and in the absence of any ruling on the objection by the trial judge, the only issue before us is whether the failure of the trial judge sua sponte to take curative action amounted to a denial of appellant’s constitutional right to a fair trial so as to require reversal of the judgment of conviction. We hold that it did not.

The trial judge was in the most advantageous position to evaluate any potential prejudice from the prosecutor’s remarks. As stated by the Court of Appeals in Wilhelm v. State, 272 Md. 404, 429, 326 A. 2d 707 (1974):

“In considering whether, in the first instance, any of the remarks attributed to the prosecutor had the effect of unfairly creating prejudice against the defendant, recognition must be given to the fact that the trial judge, who presides in the arena where the forensic adversaries are engaged, is in the best position to evaluate and assess — in the context in which the remarks are made and their relationship to other factors in the trial — whether they were in fact prejudicial. Cook v. State, supra; Lusby v. State, 217 Md. 191, 195, 141 A. 2d 893, 895 (1958).
“In the environment of the trial the trial court is peculiarly in a superior position to judge the effect of any of the alleged improper remarks, (citations omitted.)
“The trial judges are certainly mindful of the responsibility entrusted unto them under the holdings in Contee v. State, supra — if the remarks appear to be prejudicial to the defendant — to caution or reprimand the prosecutor as the exigencies of the situation may require and to instruct the jury to disregard such unwarranted remarks.”

In the present case, the “exigencies of the situation” did not appear to the trial judge to require any action on his part. While we think the challenged remarks should have been left unsaid, viewed in proper context we do not think the remarks themselves or the judge’s non-action with respect to them requires reversal. “ ‘The Maryland Rule is that unless it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused by the prosecutor’s remarks, reversal of the conviction on this ground would not be justified’ ”. Wilhelm v. State, supra, at 415-416, quoting from Reidy v. State, 8 Md. App. 169, 259 A. 2d 66 (1969). As said by the Court of Appeals in Wood v. State, 192 Md. 643, 652, 65 A. 2d 316 (1949):

“It is quite true that appeals to class prejudice or to passion are improper and may so poison the minds of jurors that an accused may be deprived of a fair trial. However, unless it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused by the remarks of the State’s Attorney, this Court will not be justified in reversing a judgment of conviction solely because of intemperate remarks made in the ardor of advocacy____” 192 Md. at 652.

Jury Instructions

(a)

Appellant contends that the trial court failed to advise counsel in advance of argument of its proposed action on the request for instructions and the substance of the instructions which it proposed to give, “thereby denying Appellant a fair opportunity to argue thereon or object thereto when given”. We are referred to nothing in the record, nor have we found anything, that supports this contention. Moreover, no such contention was made at trial. It is therefore not before us for review. Md. Rule 1085.

(b)

At the conclusion of the trial court’s charge to the jury, before the jury retired, counsel were given an opportunity out of the hearing of the jury to make whatever objections they deemed appropriate concerning the court’s advisory instructions. Maryland Rule 756 f (now Rule 757 f). The Rule requires that the objecting party state “distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection.” Maryland Rule 756 g (now Rule 757 h) provides in effect that an objection not made in compliance with section f of the Rule is not reviewable on appeal as of right.

In this appeal, appellant alleges a number of errors in the court’s advisory instructions. We agree with the State that “[t]he only exception that has arguably been preserved [for appellate review] relates to the Court’s failure to instruct: ‘The only relevant inquiry is the manner of operation of the boat leading up to the time of impact.’” Under our cases, however, it is clear that in manslaughter cases under the statute (Art. 27, § 388) post-impact conduct of the accused may be a relevant factor on the issue of gross negligence. See Boyd v. State, supra, at 550 and Blackwell v. State, supra, at 539, and cases cited therein. Under the circumstances revealed by the evidence in this case, the trial judge was correct is not giving the requested instruction.

(c)

With respect to other alleged errors in the instruction, appellant apparently seeks to invoke the “plain error” portion of Maryland Rule 757 h (formerly Rule 756 g), providing as follows:

“. . . An appellate court, either upon its own motion or upon the suggestion of a party, may take cognizance of and correct any plain error in the instructions, material to the rights of the defendant even though the error was not objected to as provided by section f of this Rule.”

Our answer to all the contentions concerning these alleged “plain errors” is simply that after a careful review of the advisory instructions as a whole we conclude that they were entirely adequate and we find no plain error material to the rights of the accused. We deem it advisable to mention only two of the contentions: 1) that the court should not have given any advisory instructions concerning the “rules of the road” because the “state regulations [were] never presented in evidence”; and 2) that it was error to instruct the jury concerning the so-called Standby Act of 1890.

(1)

This same contention was made by the appellant in his argument on the issue of the sufficiency of the evidence. The contention is devoid of merit and difficult to understand. Appellant does not contend that the rules of the road as recited in the instructions were not applicable or that they had not been properly adopted by the Department of Natural Resources — only that they “were never properly placed in the record”. But Md. Ann. Code, Cts. & Jud. Proceedings Art., § 10-203 (a) (2) (1977 Cum. Supl.) clearly provides that a court “shall” take judicial notice of the contents of the Maryland Register and the Code of Maryland Regulations — where the regulations pertinent to this case are shown to have been adopted. See 2 Md. R. 1243 and 1480.

Moreover, as previously mentioned in our discussion of the sufficiency of the evidence, so far as the rules of the road are concerned the federal Inland Rules of the Road are the controlling law with respect to navigable waters in this part of the country. These federal rules are set forth in 33 U.S.C.A., § 154-232, and as public statutes of the United States, the courts of this State are permitted to judicially notice them — particularly, as here, where both the appellant and the State proceeded in trial on the assumption that they were fully applicable. The appellant himself offered jury instructions concerning them, argued them to the jury, and made no attempt to convince the jury, as he had a right to do, that they were not the law. See Frericks v. General Motors Corp., 274 Md. 288, 296, 297, 336 A. 2d 118 (1975); Green v. Cofferstone Ltd., 28 Md. App. 498, 503, n. 2, 346 A. 2d 686 (1975).

(2)

The Standby Act of 1890 (33 U.S.C.A. § 367) provides that in case of collision between two vessels it is the duty of the person in charge of each vessel, “if and so far as he can do so without serious danger to his own vessel, crew and passengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and passengers (if any) such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision____”

Appellant complains to us that the trial judge erred in referring to this federal statute as a “rule of the road”, and that it “does not create a duty applicable to Appellant herein”. We agree that, technically, the statute is not a part of the Inland Rules as established by Congress. That it is not a “rule of the road” does not mean, however, that on the evidence in this case, it was “plain error” to include its pertinent provisions in the advisory instructions. Almost identical language is used in Maryland’s State Boat Act (Md. Ann. Code Natural Resources Art., § 8-724) as well as in the Federal Boat Safety Act of 1971 (46 U.S.C.A. § 1465). Whether the appellant complied with the duty imposed upon him by these statutes and, if not, the weight to be accorded such failure, were, we think, proper matters to be considered by the jury in determining the ultimate issue in this case.

Finding no reversible error, the judgment of conviction will be affirmed.

Judgment affirmed.

Costs to be paid by appellant.

      . By Chapter 5 of the Acts of 1949, the General Assembly repealed Section 108A of Article 99 of the Annotated Code of Maryland (1947 Supp.) that provided for the crime of “manslaughter by motorboat” on Deep Creek Lake in Garrett County and made the crime applicable state-wide, no doubt in response to the phenomenal post World War II boom in recreational boating on all waters of the State.

      . M. Norris, Your Boat and the Law, 319-323. See also Maryland Agency Rules and Regulations, Title 08, Dept, of Natural Resources, Rule 08. 04.00, Regulations Governing Boating in Maryland, wherein it is provided that “In navigating boats, the Inland Rules of the Road set forth in Coast Guard Pamphlet CG-169, dated August 1, 1972, and amendments thereto shall be observed”. While the states are free to adopt purely local rules governing navigation of boats, such rules can not validly conflict with federal rules on the subject. Obviously, there is no conflict between the Maryland and federal rules of navigation.

      . 33 U.S.C.A. § 155 defines the words “steam vessel” as including “any vessel propelled by machinery”.

      . The proffer was not made until after the witness had been discharged and not until three other witnesses had testified on other matters.

      . We hasten to add, however, that once it is determined that a defendant is guilty of gross negligence in a manslaughter case, “he cannot escape the consequences by showing that the deceased was guilty of contributory negligence” or that “the negligence of the other may have concurred in producing the result”. Duren v. State, 203 Md. 584, 594 (1954). See also Blackwell v. State, 34 Md. App. 547, 559, n. 3 (1977).

      . Again, this proffer was not made at the time of the objections and not until two succeeding witnesses had completed their testimony. No attempt was made, in view of the proffer, to recall the witness for additional questioning on the subject, nor was any further ruling on the matter sought from the trial judge.

      . In addition to not specifying to us the precise question to be reviewed, we are unable to find in the record any specific proffer at trial with respect to any of the specific hypothetical questions to which objections were sustained. See Md. Rule 522 b. Hartsock v. Strong, 21 Md. App. 110, 120 and cases therein cited.

      . Md.Rule 757 d, in effect at the time of trial, provided:
      “Where the court’s charge is not delivered until after the argument of counsel to the jury, the court shall, in advance of such argument, advise counsel of its proposed action on the request for instructions and the substance of the instructions which it proposes to give.”

      . Md. Rule 757 h, effective July 1, 1977, applies to all proceedings commenced on and after July 1, 1977, and insofar as practicable to all proceedings then pending.


text:
    BANK OF SOUTHERN MARYLAND v. ROBERTSON’S CRAB HOUSE, INC.
    [No. 1027,
    September Term, 1977,]

      Decided July 12, 1978.

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

      Paul F. Strain, with whom was Thomas C. Carrico on the brief, for appellant.

      Thomas C. Hayden, Jr., for appellee.
   Melvin, J.,

delivered the opinion of the Court.

This appeal is from an order of the Circuit Court for Charles County (Bowling, J.) dated October 5, 1977, granting summary judgment in favor of Robertson’s Crab House, Inc. (appellee) and against the Bank of Southern Maryland (appellant) in the amount of twelve thousand four hundred seventy-four dollars and sixty-six cents ($12,474.66) and costs of the proceeding. The ultimate issue for our determination is, of course, whether summary judgment was properly granted. We think it was, and will affirm the judgment below.

Md. Rule 610 d 1 provides that summary judgment

“[S]hall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

As noted by the Court of Appeals in Washington Homes, Inc. v. Interstate Land Development Co., 281 Md. 712, 717-18, 382 A. 2d 555 (1978):

“In reviewing the propriety of the trial court’s action on a motion for summary judgment, the appellate court is concerned with whether there was a dispute as to any material fact, and if not, whether the moving party was entitled to judgment as a matter of law. In considering the matter, the duly shown facts which would be admissible in evidence and all reasonable inferences deducible therefrom must be considered in a light most favorable to the party opposing the motion and against the party making the motion. See Rooney, 265 Md. at 563-564; Shatzer, 261 Md. at 95; Brown, 260 Md. at 255.”

The pleadings, depositions, admissions and affidavits on file in the instant case establish the following undisputed facts: Robertson’s Crab House, Inc. is a body corporate of the State of Maryland whose principal place of business is at Popes Creek, Newburg, Charles County, Maryland. Its president is Joseph R. Robertson and its vice-president is George W. Robertson (Joseph’s father). Prior to Robertson’s incorporation in 1974, the business was operated as a sole proprietorship by George Robertson.

For approximately 21 years prior to incorporation, George Robertson employed the services of Jennings L. Hanson as the accountant for Robertson’s Crab House. Mr. Hanson’s duties included taking care of books, balance sheets, and quarterly and yearly tax returns for Robertson’s. Mr. Hanson also reconciled the monthly bank statements for the business, and picked up the monthly statements at the bank. In the performance of these duties, Hanson would visit the Bank of Southern Maryland twice a month on Robertson’s behalf: once to pick up the monthly statements, and once to make deposits into the Bank’s tax and loan account for federal withholding and social security taxes.

Upon its incorporation in 1974, Robertson’s Crab House, Inc. continued to employ Hanson in essentially the same capacity in which he was employed prior to incorporation. Hanson continued to visit the Bank twice monthly on Robertson's behalf, and continued to reconcile the monthly statements. After Hanson reconciled the monthly statements, they were given to Joseph Robertson, who kept them in the file cabinet at the corporation office. Neither Robertson nor anyone else checked Hanson’s reconciliations. Joseph Robertson often signed checks in blank, and allowed Hanson to fill in the amounts. Hanson was never, however, authorized to sign any checks on behalf of Robertson’s Crab House, Inc. or to make deposits into any account other than the tax and loan account. The officers and employees of the Bank of Southern Maryland were aware that Hanson had no authority to sign checks on behalf of Robertson’s.

Between July, 1974 and September, 1975, Hanson presented the eleven checks here involved to the Bank of Southern Maryland. The checks were signed by Joseph Robertson, and were made payable to the Bank of Southern Maryland, as they were intended to be deposits of withholding taxes to the Bank’s tax and loan account. At least one of the eleven checks, and perhaps as many as ten, were signed in blank by Joseph Robertson and filled in by Hanson.

When Hanson presented these checks to the Bank, the Bank permitted him on eight occasions to deposit a portion of the check proceeds to the credit of Robertson’s tax and loan account number and the remainder to either Hanson’s personal accounts, or to the credit of tax and loan account numbers of other businesses for whom Hanson was also bookkeeper. On two occasions, the entire amount of the checks was deposited to Hanson’s personal account, and on one occasion, the Bank allowed Hanson to purchase a cashier’s check (in the amount of $2,500.00 by adding $75.00 in cash to the $2,425.00 amount of the check made payable to the order of the Bank), made payable to a designee of Hanson. On none of these eleven occasions did the Bank require Hanson to endorse the check or make inquiry to Robertson’s Crab House, Inc. of Hanson’s authority to so make use of Robertson’s funds. The total amount of the funds diverted by Hanson was $12,474.66 — the exact amount for which summary judgment was entered against the Bank.

In January of 1976, Joseph Robertson did check Hanson’s reconciliations, and eventually discovered that something was amiss. Robertson noticed that the amounts on certain checks and the corresponding check stubs were different; that certain checks and stubs were missing; that certain checks were altered; and that certain of the stubs had ledger numbers on them indicating the account into which Hanson had diverted the funds. No check was made on Hanson prior to January of 1976 because Robertson trusted Hanson completely.

On October 27, 1976, Robertson’s Crab House, Inc. filed a declaration against the Bank alleging breach of contract and negligence in the Bank’s payment of these eleven checks. On November 16,1976, the Bank filed a general issue plea, and also pleaded limitations. A hearing was held on Robertson’s motion for summary judgment on January 27, 1977, after which the motion was granted. A timely appeal was noted to this Court. In an effort to demonstrate that summary judgment was improperly granted, the Bank presents three questions for our consideration:

“I. Did not the Bank conduct Robertson’s transactions in a manner which was consistent with its duties to its customer as established by the course of conduct between them?
II. Did not Robertson’s negligence prior to the transaction facilitate the fraud and preclude recovery?
III. Did not Robertson’s negligence subsequent to each check transaction bar its recovery?”

We will consider each of these questions, but will discuss questions two and three together. As previously noted, however, we think Judge Bowling properly granted the motion for summary judgment.

I.

Appellant first contends that it conducted Robertson’s transactions in a manner which was consistent with its duties to its customer as established by the course of conduct between them. Simply stated, the Bank contends that it was not negligent in dealing with Robertson’s funds. We disagree.

In Taylor v. Equitable Trust Co., 269 Md. 149, 155-56, 304 A. 2d 838 (1973) the Court of Appeals set out the relationship between a bank and its depositor:

“The relation between a bank and its depositor is a legal one. It is broadly defined as being that of debtor and creditor. Keller v. Fredericktown Sav. Institution, 193 Md. 292, 296, 66 A. 2d 924 (1949), the rights of the depositor and the liability of the bank being contractual, Pritchard v. Myers, 174 Md. 66, 76, 197 A. 620 (1938), but see Note, Negotiable Instruments: Payment of Materially Altered Checks: Bank Not Liable to Depositor in Tort, 40 Cornell L. Q. 795 (1955). Unless modified by the parties the contract is that implied in a banking relationship, Magness v. Equitable Trust Co., 176 Md. 528, 531, 6 A. 2d 241 (1939). For a breach of this contract, an action in tort will lie, Siegman v. Equitable Trust Co., 267 Md. 309, 313, 297 A. 2d 758 (1972), following in the venerable footsteps of Rolin v. Steward, 14 C. B. 595, 139 Eng. Repr. 245 (1854) and Marzetti v. Williams, 1 B & AD 415, 109 Eng. Repr. 842 (1830).
While this line of cases dealt primarily with wrongful dishonor of a depositor’s checks, we see no reason why the same general principles are not equally applicable to a wrongful disbursement of funds belonging to a depositor. See General Apparel Sales Corp. v. Chase Manhattan Bank, NA, 321 F. Supp. 891 (S.D.N.Y. 1970), where recovery was allowed when the bank accepted deposits of General Apparel’s funds after the account had been closed. See also Note, 40 Cornell L. Q., supra at 801; Comment, Bank Not Liable in Tort to Depositor for Honoring Forged or Altered Check, 6 Syracuse L. Rev. 365, 367-68 (1955).” (Footnote omitted).

See also University National Bank v. Wolfe, 279 Md. 512, 514-15, 369 A. 2d 570 (1977); Gillen v. Maryland National Bank, 274 Md. 96, 101-102, 333 A. 2d 329 (1975).

That a bank must use ordinary care in disbursing a depositor’s funds was made clear in Taylor v. Equitable Trust Co., supra at 155 [quoting from a Comment in 2 Bender’s U.C.C. Service, Hart and Willier § 12.35, at 128-29 (1972)]:

“ ‘Nowhere in the Code does it say in so many words that a bank, whether a collecting bank or payor bank, is liable for negligently paying an item. Hints, however, abound. They start with Section 1-103, providing that common-law rules of negligence still apply. Section 3-419(3) limits recovery against collecting banks for conversion only if they acted in good faith and followed ‘reasonable commercial standards.’ Section 3-406 precludes assertion of a material alteration or unauthorized signature against the party whose negligence substantially contributed to the wrongdoing, but only if the payor is a holder in due course or paid ‘in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.’ A bank is prohibited from disclaiming ‘responsibility for its own lack of good faith or failure to exercise ordinary care’ under Section 4-103(1), apparently upon the assumption that such duties exist. Finally, a bank’s lack of care shifts the burden for paying over a forged signature or a materially altered item from its customer who was negligent in discovering the wrongdoing, back to the bank under Section 4-406(3).’ ”

And, in Gillen v. Maryland National Bank, supra at 101-102 the Court of Appeals stated:

“The relationship between a savings bank and a depositor is a contractual one, of which the rules and regulations of the passbook are a part. Hileman v. Hulver, 243 Md. 527, 221 A. 2d 693 (1966); Savings Bank v. Appler, 151 Md. 571, 135 A. 373 (1926). Implicit in the contract is the duty of the bank to use ordinary care in disbursing the depositor’s funds. Commonwealth Bank v. Goodman, 128 Md. 452, 97 A. 1005 (1916). The duty cannot be abrogated by agreement. Code (1964 Repl. Yol.) Art. 95B, §§ 1-102 (3), 4-103.[] Thus, a depositor may sue in an action for breach of contract to enforce the bank’s contractual obligation to use ordinary care. Commonwealth Bank v. Goodman, supra. See also Taylor v. Equitable Trust Co., 269 Md. 149, 304 A. 2d 838 (1973).”

The question of whether a bank was negligent in paying an item, that is, whether the bank paid the item in accordance with reasonable commercial standards, see Md. Ann. Code, Comm. L. Art., §§ 3-406 and 4-406 (1975), is one which must be decided upon the facts of each particular case. Dominion Construction, Inc. v. First National Bank of Maryland, 271 Md. 154, 166, 315 A. 2d 69 (1974). See also Gillen v. Maryland National Bank, supra; Taylor v. Equitable Trust Co., supra; Gresham State Bank v. O & K Construction Co., 231 Or. 106, 370 P. 2d 726, 100 A.L.R. 2d 654 (1962), opinion clarified, rehearing denied, 231 Or. 106, 372 P. 2d 187 (1962); Whaley, Negligence and Negotiable Instruments, 53 N.C.L. Rev. 1, 15 (1974) ; Note, Forgeries and Material Alterations: Allocation of Risks Under the Uniform Commercial Code, 50 Boston Univ. L. Rev. 536, 547 (1970). See generally Annot., Construction and Effect of UCC Art. 4, Dealing with Bank Deposits and Collections, 18 A.L.R. 3d 1376, 1400-1402 (1968); Annot., Construction and Effect of UCC Art. 3, Dealing with Commercial Paper, 23 A.L.R. 3d 932, 1000 and 1004 (1969). The reasonableness of the bank’s conduct may, of course, be assessed in light of the plaintiff’s conduct. Transamerica Insurance Co. v. United States National Bank, 276 Or. 945, 558 P. 2d 328, 335 (1976).

Our starting point for determining whether the Bank was negligent as a matter of law in paying Hanson all or part of the proceeds of the eleven checks is with the general proposition that:

“Where a check is drawn to the order of a bank to which the drawer is not indebted, the bank is authorized to pay the proceeds only to persons specified by the drawer; it takes the risk in treating such a check as payable to bearer and is placed on inquiry as to the authority of the drawer’s agent to receive payment.” (Footnotes omitted). 9 C.J.S., Banks and Banking § 340 at 683.

See also 10 Am. Jur. 2d, Banks § 560 at 529-30; 5A Michie, Banks and Banking § 183 at 495-96 (1973); Sun’n Sand, Inc. v. United California Bank, 57 C.A. 3d 125, 129 Cal. Rptr. 861, 869 (1976); Martin v. First National Bank, 358 Mo. 1199, 219 S.W.2d 312 (1949); Robbins v. Passaic National Bank & Trust Co., 109 N.J.L. 250, 160 A. 418, 82 A.L.R. 1368 (1932). See generally Annot., Liability of Bank Which Diverts Checks or Drafts Drawn to its Order to a Use Other Than That of the Drawer, 82 A.L.R. 1372 (1933) and Annot., Duty and Liability of Bank in Respect of a Depositor’s Check Drawn Upon and Payable to the Bank, 138 A.L.R. 853 (1942), and cases cited therein. This rule has not been displaced by the Uniform Commercial Code. Transamerica Insurance Co. v. United States National Bank, supra, 558 P. 2d at 333.

There is, however, a corollary to the general rule that a drawee bank acts at its own risk in paying to a third person the proceeds of a check payable to the bank’s order, and that is that “the drawer acts at its risk in clothing its agent with apparent authority to receive the proceeds of such a check [made payable to the bank’s order] in cash.” 5A Michie, Banks and Banking, supra at 495. See also 10 Am. Jur. 2d, Banks, supra at 530; Mayo Bros. Chemical Corp. v. Capital National Bank, 192 Miss. 293, 5 So. 2d 220, 222 (1941). Thus, if the drawer clothes an agent with apparent authority to receive the proceeds of a check made payable to the bank’s order, the bank is not negligent in (and, therefore, not liable to the drawer for) paying the proceeds of the check to the agent or appropriating the proceeds in a manner directed by the agent contrary to his actual authority. 10 Am. Jur. 2d, Banks, supra at 530.

In the instant case, it is clear that Hanson had no actual or apparent authority to receive the proceeds of the eleven checks here involved. Actual authority is “the power of an agent to affect the legal relations of the principal by acts done in accordance with the principal’s manifestations of consent to him.” Restatement (Second) of Agency § 7 (1958). It is undisputed that neither Joseph Robertson nor any other officer of Robertson’s Crab House, Inc. ever gave Hanson any authority to use the proceeds of the eleven checks for other than deposits to the tax and loan account.

As noted also by the Restatement (Second) of Agency at § 8:

“Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.”

See also Medical Mutual Liability Insurance Society v. Mutual Fire, Marine and Inland Insurance Co., 37 Md. App. 706, 720-21, 379 A. 2d 739 (1977).

In the instant case, neither Joseph Robertson nor any other officer of Robertson’s Crab House, Inc. made any manifestations to the Bank that would indicate Hanson had any authority to divert the proceeds of the eleven checks to his own use. See Atlantic Trust Co. v. Subscribers, etc., 150 Md. 470, 475-77, 133 A. 319 (1926). Compare Mayo Brothers Chemical Corporation v. Capital National Bank, supra, 5 So. 2d at 221. But see Senate Motors, Inc. v. Industrial Bank of Washington, 9 UCC Rept. Serv. 387 (1971). Apparent authority cannot be founded on statements or conduct by the agent alone. Taylor v. Equitable Trust Co., supra at 161-62.

We find particularly apposite here a series of quotations relative to apparent authority in circumstances not unlike those in the case sub judice, contained in Taylor v. Equitable Trust Co., supra at 161-62:

“ ‘A third person dealing with a purported agent should communicate with the principal to verify the agent’s authority to sign. A written statement from the principal as to the agent’s authority may also aid in avoiding any subsequent dispute as to whether such authority existed, or whether the principal had made any statement as to the authority of the apparent agent.’ 2 Anderson, Uniform Commercial Code, supra, § 3-404:3 at 922.

“In Noah v. Bowery Sav. Bank, 225 N. Y. 284, 155 N.Y.S. 1128, 122 N. E. 235 (1919), the court, in discussing the conduct of a savings bank, which permitted a withdrawal by a person other than the depositor who had possession of the passbook, said:

‘Lack of suspicion cannot always be the determinative factor in paying out a depositor’s money. Reasonable care might demand a suspicion where from habitual indifference none in fact existed.’ 122 N. E. at 237.

“What Judge Bond said, speaking for the Court in Atlantic Trust Co. v. Subscribers, etc., 150 Md. 470, 475-76, 133 A. 319 (1926), is similarly apposite here:

‘The controlling rule is that a principal can be bound by the acts of another as agent only so far as he, the principal, has empowered or permitted the other to represent him; and if the banker has been misled by an appearance of authority not known and acquiesced in by the principal, and so has accepted unauthorized endorsements, the banker is answerable for the loss.’
“See generally P. Flanigan & Sons v. Childs, 251 Md. 646, 653-54, 238 A. 2d 473 (1968); Deane v. Big Spring Distilling Co., 138 Md. 388, 392-93, 113 A. 891 (1921); Brager v. Levy, 122 Md. 554, 561, 90 A. 102 (1914).”

We think this case is one where the Bank “has been misled by an appearance of authority not known and acquiesced in by the principal”, and not one of apparent authority.

Having found from the undisputed material facts that Hanson had neither actual nor apparent authority to receive (or divert) the proceeds of the eleven checks here involved, the conclusion seems inescapable that the Bank, as a matter of law, breached the contract implied in the normal banking relationship or, put alternatively, was negligent in its treatment of Robertson’s funds. The Bank, however, attempts to avoid this result by contending that Robertson’s failure to object to the Bank’s practice of treating checks made payable to the bank as bearer paper when both the drawer and the bearer are known to the teller and its failure to object to the Bank's initially having allowed Hanson to divert all of the proceeds of the first check (dated 7/12/74) amounted to a “subsequent modification” of the contract which would be implied in the normal bank-customer relationship. See University National Bank v. Wolfe, 279 Md. at 522 and cases cited therein.

In University National Bank the Court of Appeals held that it was error for a trial judge to conclude, as a matter of law, that the Bank was negligent in paying checks on one signature where the contract between the bank and the customer required two, where over an extended period of time almost 40% of all checks drawn had only one signature, and where “the statements were regularly reconciled with the Depositor’s records.” Id. at 527. We think University National Bank is distinguishable from the instant case because in that case the customer was fully aware of, and thus can be said to have assented to, the bank’s conduct in paying the checks on only one signature. In the instant case, it is undisputed that Robertson’s was not aware of the Bank of Southern Maryland’s conduct in allowing Hanson to divert all or part of the proceeds of the eleven checks to his own use. As stated by the Court of Appeals in Maryland Supreme Corp. v. Blake Co., 279 Md. 531, 541, 369 A. 2d 1017 (1977), “The mutual assent which is the essential feature of every contract is crystallized when there is a knowing and sufficient acceptance to a certain and definite offer.” (citation omitted). Absent a knowing acceptance on Robertson’s part, there could be no subsequent modification (by conduct or otherwise) of the contract implied in the banking relationship. As Robertson’s did not know of the Bank’s conduct in paying these checks (which at most can be construed as an offer to modify the contract implied in the banking relationship), it cannot be said to have assented to it.

We likewise conclude that Robertson’s cannot be said to have knowingly assented to the Bank’s “practice” of treating checks made payable to its order as bearer paper when the drawer and bearer are both known to the teller. There is simply nothing in the pleadings, depositions, affidavits and admissions before us which would support the conclusion that Robertson's knowingly acquiesced in this practice as specifically applied to it. Whether Robertson’s knew that this practice existed between the Bank and other customers is irrelevant so long as Robertson’s never knowingly assented to the practice as applied to it. Moreover, it is our opinion that for a Bank blindly to treat commercial paper made payable to its order as bearer paper for the sole reason that the drawer and bearer are known to the Bank is “manifestly unreasonable”. The Bank cannot, therefore, establish the reasonableness of such conduct on any theory of implied contract. See Gillen v. Maryland National Bank, supra at 101-102; Md. Ann. Code, Comm. L. Art., §§ 1-102 (3) and 4-103 (1) (1975) and note 5 supra.

Based on the undisputed facts contained in the record before us, we think the Bank was negligent as a matter of law in the disbursing of Robertson’s funds. We turn, then, to the question of whether Robertson’s negligence (assuming, arguendo, that it existed) either prior to or subsequent to the Bank’s negligence precludes Robertson’s from recovering against the Bank.

II

By its questions two and three, the Bank contends that Robertson’s negligence prior to and subsequent to the check transactions bars its recovery. Even assuming, arguendo, that Robertson’s was negligent in signing one or more of the checks in blank and in not checking Hanson’s examination of the Bank’s monthly statements, we think such negligence does not bar its recovery in the instant case.

In urging that Robertson’s negligence prior to and subsequent to the check transactions bars its recovery, the Bank relies on Md. Ann. Code, Comm. L. Art., §§ 3-406 and 4-406 which provide, in pertinent part, as follows:

“§ 3-406. Negligence contributing to alteration or unauthorized signature.
Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.” (Emphasis added).
“§ 4-406. Customer’s duty to discover and report unauthorized signature or alteration.
(1) When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.
(2) If the bank establishes that the customer failed with respect to an item to comply with the duties imposed on the customer by subsection (1) the customer is precluded from asserting against the bank
(a) His unauthorized signature or any alteration on the item if the bank also establishes that it suffered a loss by reason of such failure; and
(b) An unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding fourteen calendar days and before the bank receives notification from the customer of any such unauthorized signature or alteration.
(3) The preclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item.
(4) Without regard to care or lack of care of either the customer or the bank a customer who does not within one year from the time the statement and items are made available to the customer (subsection (1)) discover and report his unauthorized signature or any alteration on the face or back of the item or does not within three years from that time discover and report any unauthorized indorsement is precluded from asserting against the bank such unauthorized signature or indorsement or such alteration.” (Emphasis added).

“Alteration” is defined in § 3-407 (1) (b) to include, “An incomplete instrument, by completing it otherwise than as authorized”. We will assume, for purposes of this discussion, that Hanson completed the one or more checks signed by Joseph Robertson in blank “otherwise than as authorized” and thus that he (Hanson) altered the checks.

In our view, §§ 3-406 and 4-406 (2) do not bar Robertson’s recovery for two reasons. First, these sections only preclude a person who was negligent prior to (§ 3-406) or subsequent to (§ 4-406) a check transaction from asserting an unauthorized signature or alteration against the bank. In the instant case, Robertson’s is asserting not an unauthorized signature or alteration against the bank, but rather that the Bank negligently permitted Hanson to divert all or part of the proceeds of the eleven checks. If the Bank treated these items properly, and either credited the entire amount of the check to Robertson’s tax and loan account, or inquired of Robertson’s as to Hanson’s authority to receive the proceeds of the checks, any alteration of the checks by Hanson would have been of no consequence.

The second reason why §§ 3-406 and 4-406 (2) do not bar Robertson’s recovery is that these sections only preclude recovery when the bank pays the instrument in accordance with reasonable commercial standards (§ 3-406) or with ordinary care. See § 4-406 (3). In the instant ease, the Bank of Southern Maryland was negligent as a matter of law in paying these checks, and thus it cannot claim the benefit of §§ 3-406 or 4-406 (2). See Whaley, Negligence and Negotiable Instrument, supra at 14 (“Thus there is no balancing test or rule of contributory negligence; if the bank failed to use ordinary care it always loses, whether the customer was negligent or not.”). While § 4-406 (4) applies “[without regard to care or lack of care of either the customer or the bank” that section, too, when applicable, operates only to preclude a customer from asserting an unauthorized signature or alteration against the bank. As we have seen, Robertson’s is not asserting an unauthorized signature or alteration against the bank, and thus § 4-406 (4) does not bar its recovery.

Even under the common law, a bank which negligently pays an item cannot invoke equitable estoppel defenses against a depositor. Thus, in University National Bank, supra at 516-17 the Court of Appeals (while holding that the Bank was not negligent as a matter of law) stated:

“These defenses available to a bank, however, must be viewed in light of any negligence on the part of the bank. The rule generally followed is as set out in 5A Michie on Banks and Banking § 192:
'Though it is the law that a depositor is charged with knowledge of errors in the account which a reasonable examination of the bank’s statements and vouchers within a reasonable time after their receipt by him would disclose, and that a failure to notify the bank of any errors of which he is thus charged with knowledge may estop him from disputing the correctness of the account to the extent that the bank was pecuniarily prejudiced by his failure to give notice of the errors, if the ignorance of the bank of the error in the account arose from its own negligence, then it cannot claim that the depositor is estopped because he did not dispel an ignorance which in contemplation of law did not exist, because the bank, in the exercise of reasonable care, should have had knowledge of the erroneous state of the account.’ (Emphasis added).
“In short, the depositor is not duty bound to protect the bank against its own negligence. Only where the bank has exercised reasonable care in the exercise of its duties, may it properly invoke equitable defenses against a depositor. The negligence of a depositor does not relieve the bank of its continuing duty to exercise reasonable care.”

As we have concluded that the Bank was negligent as a matter of law in paying the eleven checks here involved, it follows that the Bank cannot rely on the customer’s negligence in an attempt to avoid liability.

In support of its contention that Robertson’s failure to examine the Bank’s monthly statements of account precludes Robertson’s recovery, the Bank cites two New York cases involving embezzlement schemes substantially similar to the one at bar: Arrow Builders Supply Corp. v. Royal National Bank, 21 N.Y.2d 428, 235 N.E.2d 756 (1968) and Federal Insurance Co. v. Groveland State Bank, 37 N.Y.2d 252, 333 N.E.2d 334 (1975). In both cases, the Court of Appeals of New York reversed the granting of summary judgment in favor of the plaintiff/depositor, holding that there existed questions of fact as to whether the depositor was negligent in failing to examine the monthly statements of account, and as to whether this negligence contributed directly to the losses incurred. Arrow Builders, supra, 235 N.E.2d at 758; Groveland State Bank, supra, 333 N.E.2d at 337-38.

In our view, these cases adopt a rule of law contrary to that set out by our Court of Appeals in University National Bank v. Wolfe, supra at 517; Atlantic Trust Co. v. Subscribers, etc., supra at 475-76 and Taylor v. Equitable Trust Co. supra at 161-62.

Judgment affirmed; costs to be paid by appellant.

      . The order also determined that notwithstanding the pendency of the Bank’s third party claim against Jennings L. Hanson, there is no just reason for delay in the entry of the judgment herein, and directed the entry of judgment. See Md. Rule 605 a.

      . We were informed at oral argument that the Bank maintains an internal “tax and loan” account as a designated depository for the Internal Revenue Service. This account is established so that employers such as Robertson’s may make periodic deposits of money withheld from employees’ paychecks for federal income and social security taxes, in lieu of making payment directly to the Internal Revenue Service.

      . Gerald B. Dyson, vice-president and cashier of the Bank of Southern Maryland testified on deposition that the only persons authorized to sign checks on the account of Robertson’s Crab House, Inc. were: Joseph R. Robertson; George W. Robertson; Audrey C. Robertson; and Pamela Robertson.

      . See appendix A for a summary of the stipulation as to the disposition of the eleven checks here involved.

      . Former Art. 95B, § 1-102 (3), now Md. Ann. Code, Comm. L. Art., § 1-102 (3) (1975), provides that:
      “The effect of provisions of Titles 1 through 10 of this article may be varied by agreement, except as otherwise provided in Titles 1 through 10 of this article and except that the obligations of good faith, diligence, reasonableness and care prescribed by Titles 1 through 10 of this article may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.”
      Former Art. 95B, § 4-103(1), now Md. Ann. Code, Comm. L. Art., § 4-103 (1) (1975) provides that:
      “The effect of the provisions of this title may be varied by agreement except that no agreement can disclaim a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care or can limit the measure of damages for such lack or failure; but the parties may by agreement determine the standards by which such responsibility is to oe measured if such standards are not manifestly unreasonable.”
      Both of these provisions prevent a bank from contracting away its obligation to use ordinary care in the handling of depositors’ funds.

      . Md. Ann. Code, Comm. L. Art., § 1-103 provides that unless displaced by particular provisions of Titles 1 through 10 of this article (the UCCj, the common law shall supplement those provisions.