author: Moore, J.,

text:
    BARBARA FOUCHE, Personal Representative of the Estate of James Wilson Fouche, Jr. et al. v. RUTH ARLENE MASTERS
    [No. 123,
    September Term, 1980.]

      Decided October 16, 1980.

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

      Conrad W. Varner, with whom was W. Berkeley Mann, Jr., on the brief, for appellant Fouche. Clater W. Smith, Jr., for appellant Ridings.

      John Wheeler Glenn, with whom were Edwin F. Nikirk and O’Connor, Preston, Glenn & Smith, P.A. on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this automobile negligence case arising out of a head-on collision, a jury awarded $50,000 damages to an injured passenger against both the host driver and the personal representative of the driver of the second car who died of injuries sustained in the crash. On appeal, the host driver maintains that the trial court (Barrick, J.) erred in overruling his motion for a directed verdict because (a) he was faced with an emergency and there was no evidence that he failed to exercise due care and (b) the testimony of the plaintiff passenger exonerated him. The personal representative presents a single issue: that the trial court erred in reading Md. Transp. Code Ann. § 21-902 (a) (Driving while intoxicated) and § 21-902 (b) (Driving while ability impaired by alcohol) as part of its jury instructions.

I

The relevant facts are largely undisputed. On June 3, 1978, appellee, Ruth Arlene Masters, 53, a widowed schoolteacher, and appellant, Noble Benjamin Ridings, Jr., a friend and companion of some fifteen years, had a dinner date in Thurmont, Maryland. Shortly after 8:00 p.m., they left the restaurant and proceeded to drive south on U.S. Route 15 in Ridings’ Chrysler with Ridings behind the wheel. Masters testified that although it was not quite dark, "ti]t was misty — it hadn’t started to rain yet, just a dreary evening.” Route 15 was a 24-foot wide, two-lane highway divided by a painted center line which permitted one lane of traffic to travel in each direction. Adjoining each lane was a 12 foot asphalt shoulder thus extending the width of the highway to a total of 48 feet. On the evening in question, traffic was light.

The appellee, Masters, testified that she observed the headlights of an oncoming car in their southbound lane about 100 to 125 feet away. When questioned about the car approaching in their own lane Masters responded, "I’m positive. I have nightmares about that yet, I see those lights coming at us.” Masters also testified that the driver of the approaching vehicle, appellant Fouche’s decedent, James Wilson Fouche, Jr., age 21 (hereinafter "Fouche”), was slumped over the wheel and shortly before impact, raised his head and steered his car back into the northbound lane. Ridings, in his testimony, said that he was proceeding at about fifty miles per hour when he first saw the Fouche vehicle and that its speed was about the same. He removed his foot from the accelerator and watched to "see what he was going to do.” He then described the final tragic moment: "Then I saw he wasn’t going to go back in his lane so I swerved over, I turned over in the left lane, and at the same instant I did that, the other driver did the same thing.” When asked why he (Ridings) didn’t swerve to the right instead of the left, Ridings responded: "[DJidn’t think about it.”

A Maryland State trooper, who investigated the accidecl shortly thereafter, testified that the point of impact was approximately 3¥-¿ feet east oí' the center line in the northbound lane. Contact was made between the left-front section of each vehicle. He also testified that upon arriving at the scene, Fouche’s vehicle was partially in the northbound lane and partially on the shoulder adjoining that lane. The Ridings vehicle was straddling the center line facing in a southeasterly direction. A gouge mark in the pavement appeared in the northbound lane and a set of skid marks extended from the southbound lane into the northbound lane.

James Wilson Fouche, Jr., driver of the northbound automobile, a Ford Mustang, was critically injured in the accident and died in the Emergency Room of the Washington County Hospital within three hours. Both Ridings and Masters were injured, Masters more seriously. A post mortem chemical analysis performed on Fouche by a toxicologist of the State Medical Examiner’s Office, disclosed that his blood alcohol level was 0.17 percent. The report was, by stipulation, received in evidence.

The appellee, Ruth Arlene Masters, filed suit in the Circuit Court for Frederick County against Noble Benjamin Ridings, Jr., and Barbara Fouche, mother of the deceased driver, as personal representative of his estate, for damages resulting from the alleged negligent operation of both automobiles. Ridings moved for a directed verdict at the close of the plaintiffs case on the ground that the evidence showed an emergency situation created entirely by Fouche and that Ridings’ response by turning into the northbound lane was, as a matter of law, not negligent. Ridings also argued that the uncontradicted testimony of Masters clearly exonerated him from liability. The trial court overruled Ridings’ motion, stating:

"The Court has considered Mr. Smith’s motion for directed verdict and has read the case of Virginia Freight v. Montgomery, reported in 256 Md. 221, and the Court will overrule the motion since this case points out that the operation of a motor vehicle in violation of the Transportation Article [§ 21-301] by driving across the center line is prima facie evidence of negligence and the burden is upon the driver to overcome the presumption of negligence by showing that under circumstances such as the condition of the road or an emergency in the traffic he was justified in driving across the center line. There is no evidence of emergency situation in this case nor any condition of the road which would overcome this presumption, and therefore the motion is overruled.”
"I think from her [Masters] testimony that the jury could also very well decide that Mr. Ridings was negligent in crossing the center line, and she did not exonerate him as I heard her testimony, and upon cross-examination Mr. Varner pointed out that in her declaration she accuses him of negligent driving, so for those reasons the motion will be overruled.”

Ridings’ motion was renewed at the conclusion of the entire case and was again overruled.

II

Ridings contends that the trial court erred in overruling his motion for a directed verdict. He argues that the undisputed testimony clearly establishes that he was confronted with an emergency and was not guilty of any negligence causing or contributing to the accident. He cites Virginia Freight Lines, Inc., etc. v. Montgomery, 256 Md. 221, 260 A.2d 59 (1969) and Mason v. Triplett, 217 Md. 433, 141 A.2d 708 (1958) as controlling authorities. We have carefully examined and considered each case.

In Montgomery, plaintiffs tractor-trailer was southbound at about 4:30 p.m. on a May afternoon, on a two-lane road with traffic proceeding in a single lane in each direction. The highway shoulders, adjacent to each lane, were approximately 6 to 8 feet in width. They were described as "fairly hard.” The plaintiffs driver, Asa Nickens, was traveling at about 40 miles per hour behind another truck at a distance of 300 to 500 feet. The weather was "clear” and the surrounding area was "open country.” When the truck directly ahead of the plaintiff suddenly pulled over to the right shoulder, Nickens observed an automobile driven by the defendant, Montgomery, approaching in the same lane from the opposite direction. The defendant’s automobile was less than 150 feet away. Nickens testified that he could not drive onto the right shoulder because of the presence of the other truck. He, therefore, veered away to the left into the northbound lane and his right front wheel hit the right front wheel of Montgomery’s car. No personal injuries were sustained. Nickens’ employer brought suit for property damages in excess of $4800. The trial judge, finding for Montgomery, stated that the only question was whether the driver of the plaintiffs tractor-trailer was guilty of contributory negligence and applied the rule set forth in Cocco v. Lissau, 202 Md. 196, 199, 95 A.2d 857, 858 (1953):

"A driver who violates this 'rule of the road’ [Md. Transp. Code Ann. § 21-301 (1977) requiring vehicles to be driven upon the right half of the roadway] is prima facie guilty of negligence where the violation directly and proximately causes a collision and injury to another traveler on the road, and the burden is then cast upon the driver to overcome the presumption of negligence by showing that under the circumstances, such as the condition of the road or an emergency in the traffic, he was justified in driving in the center or upon the left half of the road.”

The lower court then concluded that Nickens was not confronted with an emergency. On appeal, the Court of Appeals reversed, stating "[a]lthough Judge Carter found a few additional 'inconsistencies’ and 'contradictions’ [in the testimony] we think, all things considered, that Nickens did react to an emergency traffic condition which arose because Montgomery was driving his car in the wrong traffic lane.” Id. at 227. The Court, in an opinion by Judge McWilliams, went on to consider the question of whether Nickens breached the standard of care owed under the circumstances of an emergency and concluded that he was not negligent by swerving to the left. In dicta the court suggested that even had the right shoulder been clear, its conclusion would have been the same. The Court stated in part:

"[W]e have no difficulty concluding that by swerving to the left, Nickens did only what any reasonably prudent man would have done faced with a like emergency. Nor would our conclusion differ had we assumed, for the sake of argument, that Nickens’ access to the right shoulder was not blocked as he claimed.” (Emphasis added.) Id. at 228.

Mason v. Triplett, supra, also involved a collision with a vehicle proceeding in the wrong lane of traffic. Mason was driving a 1954 Lincoln in a northerly direction on the proper side of a two-way street, 22 feet wide, with 6 foot gravel shoulders. The time was about 8:00 p.m. in late January. It was dark and the weather clear. While driving at a speed of 25 miles per hour, he observed a pair of headlights, four or five car lengths ahead, on his side of the road. After swerving to the left at about a car length away to avoid the oncoming car, a 1953 Ford, the impact occurred.

A passenger in the Ford filed suit against both drivers and the owner of the Ford. Mason sued the driver and the owner of the Ford. In a consolidated trial, the jury returned a verdict for the passenger against both drivers and a verdict for the Ford driver in Mason’s suit. Mason appealed, contending that his motion for a directed verdict and judgment n.o.v. should have been granted in the passenger’s suit and that his prayer to withdraw from the jury the issue of his contributory negligence should have been granted in his action. The Court of Appeals found error and reversed the judgment for the passenger against Mason and the judgment for the driver of the Ford in Mason’s suit. (Chief Judge Rrune and Judge Hammond, later Chief Judge, dissented.) On the issue of Mason’s negligence, the majority stated:

"The appellees contend that several inferences of negligence on the part of Mason can be drawn from the testimony and the physical facts. We do not agree. The uncontradicted evidence is that Mason was on his proper side of the road, when suddenly he saw a vehicle on the wrong side of the road, with very dim lights, which had backed out of a side road and started south at an accelerated speed directly in his path. These dim lights would not have been visible to Mason until Roy started south. We think the proximate cause of the accident was the extraordinary and quite unforeseeable conduct of Roy. If, as the appellees contend, Mason might have avoided the collision at the last moment by driving off the road to the right, instead of turning to the left, and we think this is only a matter of speculation, his action in swerving to the left at the last moment could hardly be deemed negligent.” (Emphasis added.) Id. at 438.

We turn now to the instant appeal and the reasons why, in our judgment, Montgomery and Mason are not controlling, as Ridings contends in support of his claim that the motion for a directed verdict should have been granted.

We are not unmindful of factual similarities between Montgomery and Mason and this case. But there are critical factual differences. In Montgomery and Mason, the highway shoulders were 6 to 8 feet wide and 6 feet wide, respectively. In the instant case, the shoulder width was 12 feet. The shoulders in Montgomery were "fairly hard” and in Mason they consisted of gravel; in the instant case, they were asphalt, identical to the roadway. Unlike Mason and Montgomery, there was some evidence of drinking by Ridings which the court may have considered in denying a directed verdict. Furthermore, the accident in Mason, unlike the instant case, occurred at nighttime and in a town. There, driving across the center line may well have been safer than driving onto a 6 foot shoulder. In Montgomery, there was an obstruction on the shoulder of the road and the Court’s finding that there would have been no negligence even absent such an obstruction was dicta. In any event, the dicta in Montgomery was based upon the holding in Mason and we find the facts in Mason at variance with those here present.

Driving in twilight, Ridings was, or should have been, aware of the 12-foot wide, well-paved shoulder to his right, available for use in the event of an emergency or for any other proper purpose. The Court of Appeals has not held, nor can this Court, that any time one is faced with an approaching vehicle proceeding on the wrong side of a two-lane road, swerving to the opposite lane to avoid a collision is not negligence as a matter of law. See Lehmann v. Johnson, 218 Md. 343, 146 A.2d 886 (1958); Consolidated Gas, Electric Light & Power Co. v. O’Neill, 175 Md. 47, 200 A. 359 (1938).

In ruling on a motion for a directed verdict, the trial court must consider all credible evidence and inferences fairly deducible therefrom in a manner most favorable to the party against whom the motion is made. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 249, 272 A.2d 1, 4 (1971); Tippett v. Quade, 19 Md. App. 49, 52, 309 A.2d 481, 486 (1973). We cannot find that the court erred in denying the motion when there was evidence from which the jury could have found negligence in an emergency situation. See Warnke v. Essex, 217 Md. 183, 141 A.2d 728 (1950).

In the light of the above evidence, direct and circumstantial, bearing upon the question of Ridings’ negligence, we reject his contention that certain portions of Mrs. Masters’ cross-examination exonerated him from a finding of negligence.

Ill

Appellant, Barbara Fouche, personal representative of the estate of James Wilson Fouche, Jr., avers that the trial judge erred in reading Md. Transp. Code Ann. § 21-902 (a) and (b) as part of the jury instructions because the evidence of the decedent’s intoxication was insufficient.

At the center of this controversy is a stipulated exhibit — a laboratory report from the State Department of Post Mortem Examiners which showed a "positive” alcohol blood content of 0.17 percent. There was, however, no explanation to the jury by expert testimony or otherwise of the meaning or significance of 0.17 percent. Appellant maintains that because the laboratory report was not explained to the members of the jury, they had no way of interpreting the report and it was prejudicial error for the court to read the above statutory provisions and to instruct upon them.

Over objection of counsel, the court read to the jury subsections (a) and (b) of Md. Transp. Code Ann. § 21-902 (1977). These provisions are as follows:

"(a) Driving while intoxicated. — A person may not drive or attempt to drive any vehicle while intoxicated.
(b) Driving while ability impaired by alcohol. — A person may not drive or attempt to drive any vehicle while his driving ability is impaired by the consumption of alcohol.”

The court then explained in general terms the meaning of "intoxicated from the consumption of liquor” and "while his driving ability is impaired.” The jury was also instructed that a violation of the statute by either or both drivers was evidence of negligence but that the plaintiff could not recover unless that negligence was the proximate cause of the injuries. This was, of course, a correct statement of Maryland law. Hilton v. Williams, 258 Md. 285, 289, 265 A.2d 746, 748 (1970); Alston v. Forsythe, 226 Md. 121, 130, 172 A.2d 474, 478 (1961); Ford v. Bradford, 213 Md. 534, 541, 132 A.2d 488, 491-92 (1957).

Neither party disputes that the question of a driver’s intoxication is relevant to the issue of negligence. Singleton v. Roman, 195 Md. 241, 72 A.2d 705 (1950). However, there is obvious merit in Fouche’s position that the jury lacked any means of interpreting the numerical result of the chemical analysis. They could not determine from this evidence that the deceased driver had committed a violation of the statute. In this connection, it is to be noted that the jury in a civil case may not apply the presumptions relating to intoxication and impairment set forth in Md. Cts. & Jud. Proc. Code Ann. § 10 307. These statutory presumptions apply in criminal prosecutions specified in § 10-307 (a) and only when certain prerequisites are met.5 Major v. State, 31 Md. App. 590, 592, 358 A.2d 609, 611 (1976). Therefore, absent an explanation by an expert of the 0.17 percent disclosed in the report, the jury could only speculate as to its significance. We find the remaining evidence insufficient to warrant reference by the lower court to § 21-902 in its jury instructions.

Appellee relies on Carter v. Correa, 28 Md. App. 397, 346 A.2d 481 (1976) wherein the trial court, as part of its jury instructions, read Md. Ann. Code art. 66V2, § 11-902 (b), the predecessor of Md. Transp. Code Ann. § 21-902 (b), making it unlawful to drive while one’s ability is impaired by the consumption of alcohol. There, the evidence revealed that the defendant rounded a curve at 70 or 80 miles per hour, crossed the center line, was "loud and boisterous,” and "smelled of alcohol.” This Court upheld the giving of the disputed instruction because evidence of driving under the influence of alcohol was not lacking.

In Alston v. Forsythe, supra, a requested jury instruction based upon plaintiffs contention that the defendant was driving under the influence of alcohol in violation of Md. Ann. Code art. 66 Vh, § 206 (1957) was refused by the lower court because of the lack of any causal relation between the alleged drunken driving and the accident. The omission was affirmed on appeal. The Court of Appeals noted that the only evidence of impairment or intoxication was that the defendant had "two beers” and "smelled slightly of beer or whiskey.” Compare Thomas v. State, 206 Md. 49, 109 A.2d 909 (1954) and Walker v. Hall, 34 Md. App. 571, 369 A.2d 105 (1977) with Singleton v. Roman, supra, and Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 149 A. 4 (1930).

In the instant case, there was no evidence presented of the decedent’s condition before he began driving, no admission of alcohol consumption, and no observable conditions of intoxication such as demeanor evidence or general appearance. Although the manner of operation of an automobile by an alleged violator could be evidence of driving under the influence or driving while impaired, Carter v. Correa, supra, we do not believe absent an explanation of the 0.17 alcohol blood content that driving on the wrong side of the road and the driver’s being slumped over the steering wheel is sufficient to permit the aforementioned instruction. Nor do we agree with appellee’s alternative contention that the instruction given here was harmless.

Judgment against Barbara Fouche, personal representative of the estate of James Wilson Fouche, Jr., reversed and remanded for a new trial.

Judgment against Noble Benjamin Ridings, Jr., affirmed; costs to be equally divided between appellant Ridings and appellee.

      . Masters testified that they had a pitcher of beer but Ridings had only one glass with his dinner. Ridings testified at a pretrial deposition and again at trial on cross-examination that he had three glasses.

      . The court, however, in its subsequent instructions to the jury, submitted for their consideration the question whether Ridings was "confronted with an emergency situation by reason of the presence of the Fouche vehicle in his lane of traffic....”

      . The court directed verdicts for the owner of the Ford in each case.

      . Appellant Ridings relies, for example, upon appellee’s testimony, under cross-examination by counsel for Fouche, that "I would consider that Mr. Fouche, by being there in our lane of traffic, was the cause of us having the accident____We would not have crossed that center line if that other man had not been in our lane of traffic....” Fouche’s counsel, on further cross-examination, based upon the declaration, reminded appellee of her allegations that Ridings negligently operated a motor vehicle so as to cross the center line, and her reply was: "When you cross the center line you are negligent, yes, but would you cross the center line if someone was coming at you?”

      . Under this section of the Courts Article, it shall be presumed that the defendant was not intoxicated or driving while impaired if there was 0.05 percent or less, by weight, of alcohol in his blood (10-307 (b)); that there is no presumption that the defendant was or was not intoxicated or impaired if there was between 0.05 and 0.10 percent but may be considered with other evidence in determining guilt or innocence (10-307 (c)); that 0.10 percent, or more, is prima facie evidence that the defendant’s driving ability was impaired (10-307 (d)); and, that 0.15 percent, or more, shall be prima facie evidence that the defendant was intoxicated (10-307 (e)).

      . Md. Cts. & Jud. Proc. Code Ann. §§ 10-302 to 10-309. See Loscomb v. State, 45 Md. App. 598, 416 A.2d 1276 (1980) wherein this Court applied certain of these provisions to a criminal prosecution for violation of Md. Ann. Code art. 27, § 388 and § 388A.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    H. MANNING CLAGETT et al. v. EDWARD A. DACY ET AL.
    [No. 139,
    September Term, 1980.]

      Decided October 16, 1980.

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

      Thomas B. Yewell for appellants.

      Joseph M. Roulhac, with whom were Ronald G. Dawson and Smith, Somerville & Case on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

Appellants were the high bidders at a foreclosure sale, but because the attorneys conducting the sale failed to follow the proper procedures, the sale was set aside. This occurred twice. Ultimately, the debtor discharged the loan, thus "redeeming” his land, and appellants lost the opportunity to acquire the property and make a profit on its resale. They sued the attorneys in the Circuit Court for Prince George’s County to recover their loss, alleging that the attorneys in question owed them, as bidders, a duty to use care and diligence and to conduct the sale "properly and carefully.” By sustaining the attorneys’ demurrer without leave to amend, the court concluded that no such duty existed — at least not one from which an action for damages will arise; and, by affirming that order, we shall indicate our concurrence with the court’s conclusion.

Appellants aver in their Declaration that (1) appellees, as attorneys, advertised two properties for foreclosure sale; (2) appellants attended the sale, made the high bid, and gave appellees a $5,000 deposit; (3) exceptions were filed by the record owner, who complained that proper notice of foreclosure had not been given as required by the Maryland Rules; (4) before the exceptions were ruled upon, appellees had the properties readvertised and conducted a second sale; (5) once again, appellants attended the sale, offered the high bid, and gave appellees a $5,000 deposit; (6) again, exceptions were filed, this time because one of the properties was "mis-addressed” and because appellees failed to notify counsel for the record owner of the date of the sale and the pay-off balance necessary to avoid foreclosure; (7) the court sustained the exceptions and declined to ratify the sale; and (8) thereafter, the record owner "redeemed” the properties from foreclosure.

Upon these allegations which, for purposes of demurrer, are assumed to be true, appellants claimed that appellees had "an obligation . . . running to the plaintiffs, as prospective bidders, to see that the sale was properly and carefully conducted . . .” and that appellants, as bidders had a right to rely on appellees "having exercised due care and diligence” in following the requisite procedures and conducting the sale properly. More pointedly, they averred that

"inasmuch as attorney’s fees for the defendants herein were to be paid from the proceeds of sale of the property, and since plaintiffs were to be the source of the proceeds of the sale of the property . . . the defendants occupied an attorney-client relationship with the plaintiffs to the extent the plaintiffs were entitled to rely on the diligence, expertise and due care of the defendants in offering the property for sale....”

It would seem from these averments that appellants were attempting to set forth alternative standings to bring this action, one based upon a duty of care and diligence flowing to them in a general sense as "successful” bidders and the other based upon the same duty owed to them as implied clients.

The traditional rule, in Maryland and elsewhere, is that an attorney’s duty of diligence and care flows only to his direct client/employer, and that, whether in an action of contract or tort, only that client/employer can recover against him for a breach of that duty. The Court of Appeals adopted that view in Wlodarek v. Thrift, 178 Md. 453 (1940), an action for breach of contract, and in Kendall v. Rogers, 181 Md. 606 (1943), an action based on negligence.

In Wlodarek, the attorney had been employed to do a land title examination by a contract purchaser. He reported good title, and, in reliance thereon, settlement was concluded. Ultimately, the land devolved to others; and, when it appeared that the attorney’s opinion was incorrect and a title defect surfaced, the question arose as to who could recover. The Court concluded (178 Md. at 468):

"It seems generally accepted that the liability of the defendants as attorneys to examine and pass upon a title to land is founded in contract and not on tort, and, therefore, does not, as a general rule, extend beyond the person by whom they were so employed. So, when the party with whom the contract is made is the purchaser, and he causes the title to the land, after paying the purchase money, to be conveyed by the vendor to his nominee, the subsequent loss and injury sustained by such nominee and his successors in the title, by reason of any defect in or absence of title, may not be recovered of the attorneys by such third parties as damages.”

Kendall also arose out of a title problem. Kendall sold a farm to MacCubbin, later taking back a mortgage on it. The conveyance was by special warranty deed. When MacCubbin attempted to sell the property, a title defect was discovered, the defect arising from something that had occurred before Kendall owned the property. Under the Maryland special warranty, Kendall had no liability to MacCubbin; however, Rogers, an attorney employed by MacCubbin to clear up the problem, told Kendall, erroneously, that it was his responsibility to make the title good. Relying on that advice, Kendall expended some $3,200 to cure the defect, and then, upon discovering the truth as to his liability, sued Rogers to recover the expenditure, claiming negligence.

Adopting the tripartite test stated in Maryland Casualty Co. v. Price, 231 F. 397 (4th Cir., 1916), the Court said that "[i]n a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) The attorney’s employment; (2) his neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the client.” 181 Md. at 611-12. An attorney, said the Court, "is liable for his negligence in certifying to a title to his immediate employer only, and not to the latter’s assigns or any third person, between whom and the attorney there is no privity.” Id. at 613. Against this standard of strict privity, the Court concluded that, on the facts set forth above, there was no attorney-client relationship between Kendall and Rogers, and thus no cause of action.

The Court tacitly maintained its position regarding the need for direct privity in Reamer v. Kessler, 233 Md. 311 (1964). That case has little or no precedential value in the context here because (i) liability vel non of the attorney was conceded and therefore was not directly in issue, except in terms of the measure of damages, and (2) he had in fact been employed by the parties plaintiff (see 233 Md. at 315). The significance of the case was the reliance by the Court on that second factor — employment by the plaintiffs — to distinguish Wlodarek and Kendall, thus implying the continued vitality of those cases and the doctrine enunciated in them.

The only departure from the direct privity requirement on the part of the Court of Appeals came in Prescott v. Coppage, 266 Md. 562 (1972), a unique case. The dispute there was between the receiver of a defunct deposit insurance company (Coppage) and the receiver of a defunct savings and loan association (Medley) that owed the insurance company certain monies. The insurance company receiver, Coppage, among other things, sued Prescott, a court-appointed special counsel to Medley, contending that due to his erroneous advice, Medley had improperly paid sums from his receivership estate to the association’s depositors rather than to Coppage, who enjoyed a higher priority status. Prescott defended the action against him on a number of grounds, among which was lack of privity.

The Court of Appeals, reversing a defendant’s judgment, concluded that Coppage had standing, as a third party beneficiary, to recover. Its reasoning was essentially as follows: all creditors of the defunct association (including Coppage) were third party beneficiaries of the receivership, and thus of Medley’s activities as receiver; Prescott’s court-imposed duty as special counsel was to "aid [Medley] in the performance of his duties as receiver”; thus, the creditors were also specific third party beneficiaries of Prescott’s discharge of that duty and could sue to recover losses if it was discharged improperly.

Although the case has a most unusual factual setting, it does seem to suggest a modest relaxation of the strict privity requirement to the extent of allowing a true third party beneficiary to sue an attorney as he could sue any other defaulting or tortious party to a contract made for his benefit. This extension is not unique to Maryland. See Annot., Attorneys Liability to Third Parties, 45 A.L.R.Sd 1181.

It is, however, a limited one with a special utility. It is most often seen and applied in actions based on drafting errors in wills and other such documents or on erroneous title reports — errors that, by their very nature, will likely have a long or delayed effect and will most probably impact upon persons other than the attorney’s immediate employer (see, for example, Lucas v. Hamm, 364 P.2d 685 (Cal., 1961), cert. den. 368 U.S. 987; Heyer v. Flaig, 449 P.2d 161 (Cal., 1969); Licata v. Spector, 225 A.2d 28 (Conn., 1966)), although it has been applied in other contexts as well. See Donald v. Garry, 19 Cal. App. 3d 769 (1971) (creditor who assigned claim to collection agency for collection allowed to sue agency’s attorney for negligence in prosecuting his claim).

The Coppage Court made clear that only those persons who qualify under the normal rules for determining third party beneficiaries will be afforded the privileged status vis á vis attorney defendants; i.e., creditor beneficiaries. See Shillman v. Hobstetter, 249 Md. 678 (1968), and its citation in Coppage, 266 Md. at 574. This would seem to limit the extension to actions based upon contract, to which the third party beneficiary theory is peculiarly applicable, and would not supply a basis for permitting third parties to sue attorneys on a pure negligence theory — violation of some general duty arising in the absence of an underlying contractual attorney-client relationship.

In Donald v. Garry, supra, the California court utilized the concept expressed in Restatement of Torts 2d, § 324A, to support a third party action, concluding that "[a]n attorney may be liable for damage caused by his negligence to a person intended to be benefited by his performance irrespective of any lack of privity of contract between the attorney and the party to be benefited.” (Emphasis supplied.) The context of this, as noted above, was an action by the true creditor against the collection agency attorney, and the court was careful to mention that "the transaction in which the respondent’s negligence occurred was intended primarily for the benefit of [the creditor]. Respondent was retained to collect an account due him.”

Whether the action is based upon a contract (express or implied), to which the traditional rules relating to third party beneficiaries may apply, or more on a theory of negligence — the violation of a duty not founded exclusively upon contract — there still must be shown (z.e., alleged and shown) that the plaintiff, if not the direct employer/client of the defendant attorney, is a person or part of a class of persons specifically intended to be the beneficiary of the attorney’s undertaking.

It will, moreover, take more than general conclusory allegations to satisfy that requirement. Attorneys are not quite the free agents as some others are in the world of commerce. There are well-recognized limitations, judicially imposed and enforced, upon how they may conduct themselves, and who they may, and may not, represent in certain situations. Except in very limited circumstances, they may not represent or act for conflicting interests in a transaction; their manifest duty of ioyalty to their employer/client forbids it. See, for example, Code of Professional Responsibility, Canon 5, EC 5-14, 5-15, 5-16, 5-19, 5-22; DR 5-105.

These limitations, predominant but not necessarily exclusive with attorneys, must, of necessity, be taken into account when dealing with actions founded upon an implied duty owed by an attorney to a person who is not his direct employer/client, or upon an employment relationship alleged to arise by implication rather than by express agreement. Thus, the duties or obligations inherent in an attorney-client relationship will not be presumed to flow to a third party and will not be presumed to arise by implication when the effect of such a presumption would be tantamount to a prohibited or improbable employment, absent the clearest exposition of facts from which such an employment may be fairly and rationally inferred.

When judged against these principles, it becomes clear that the Declaration at issue here has failed to state a cause of action. It does not sufficiently allege a proper standing on the part of appellants to sue the appellee attorneys; nor, from what is alleged, could it do so. Appellees were engaged to represent the mortgagee (deed of trust beneficiary), not the bidders, whose interest would likely be in conflict with that of the mortgagee. The mortgagee’s economic interest, and legal obligation, is to secure the highest possible price for the property, whereas the bidders’ goal is to pay as little as possible. It is evident, in that circumstance, that an attorney could not lawfully represent both the mortgagee and the bidder in the transaction; and it will not be lightly presumed or inferred that appellees did so.

Nor may the prohibited employment be inferred from an allegation that appellees’ fees would ultimately be paid from the proceeds of sale. The mere fact that those fees, along with the other costs of the proceeding, may be taken from the purchase price paid by the successful bidder does not mean that the purchaser is actually paying the fees. Quite the contrary. The debtor/mortgagor ultimately pays the fees and all other costs, for he gets only the net surplus (if any) available after all such fees and costs are discharged. The bidder pays only for the property, not the cost of selling it; and he is not, therefore, the client (express or implied) of the attorney engaged to sell the property.

Judgment affirmed; appellants to pay the costs.

      . Section 324A states:
      "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
      (a) his failure to exercise reasonable care increases the risk of such harm, or
      (b) he has undertaken to perform a duty owed by the other to the third person, or
      (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

      . We do not see § 324A, which speaks specifically of liability for "physical harm” to a third party, as a proper basis of liability in the type of case before us. The California courts appear to have relaxed the traditional privity requirement more than most other courts, and certainly more than the Maryland courts have to date. They have, indeed, created a balancing process, as an alternative to the strict privity or third party beneficiary requirements, m which a number of other factors are considered. See, for example, Biakanja v. Irving, 320 P.2d 16, 19 (Cal., 1958); Lucas v. Hamm, supra, 364 P.2d 685 (Cal., 1961). But even California has placed some limits on its relaxed “intended beneficiary” theory where the claimant was in an adverse or conflicting position vis á vis the attorney’s direct client. See, for . example, Parnell v. Smart, 66 Cal. App. 3d 833 (1977); and cf. Rowell v. Transpacific Life Ins. Co., 94 Cal. App. 3d 818 (1979).


author: Figinski, J.,

text:
    CHRISTOPHER ROY HANSEN v. RUTH KAPLAN ET AL.
    [No. 1639,
    September Term, 1979.]

      Decided October 20, 1980.

    The cause was argued before Moylan, J., and Richard M. Pollitt, Associate Judge of the First Judicial Circuit and M. Albert Figinski, Associate Judge of the Eighth Judicial Circuit, specially assigned.

      Edward B. Layne, Jr., for appellant.

      Thomas H. Talbott, with whom were Brault, Graham, Scott & Brault on the brief, for appellee Connolly. Korn & Rosenstein on the brief for appellees Kaplan.
   Figinski, J.,

delivered the opinion of the Court.

Appellees, plaintiffs below, instituted suit in the Circuit Court for Montgomery County, on December 2,1977 seeking damages for personal injuries to Ruth Kaplan, and to the marital relationship of Ruth and Lawrence Kaplan. The suit was based on an automobile collision which occurred on May 4, 1977. On that date, Ruth Kaplan, after completing work as a special education teacher, went to a gym, Slender Lady, on East Diamond Avenue in Gaithersburg, Maryland. Recreation completed, she departed for home, travelling east on East Diamond Avenue. As she approached the intersection of East Diamond Avenue and Park Avenue in Gaithersburg, her journey was brought to an abrupt, injurious end, when a vehicle being driven westerly on East Diamond Avenue by defendant Hansen spun or ricocheted into her vehicle after striking a vehicle being driven by defendant Connolly. The impact between the Hansen and Connolly vehicles occurred at the intersection of Park Avenue and East Diamond Avenue. A stop sign regulated that intersection, making East Diamond Avenue the favored roadway, i.e., the boulevard, and Park Avenue the unfavored street, i.e., the stop-street.

The issues of liability and damages were bifurcated by order of the trial court on motion of defendant Connolly. At trial on the issue of liability, the case was submitted to the jury to determine the fault of both Hansen and Connolly. The evidence produced at trial made absolutely clear that appellees were faultless. The jury’s verdict was in favor of defendant Connolly against appellees and in favor of appellees against defendant Hansen. A motion for judgment N.O.V. or a new trial by Hansen was denied. After final judgment on stipulated damages was entered, Hansen alone appealed. Appellant does not challenge the trial judge’s instructions to the jury nor does he point to any error in the conduct of the trial. Rather, appellant’s argument, relying upon an analysis of the so-called boulevard rule, challenges the finding of liability, as to him, as contrary to law. Appellant contends that the trial court erred in failing to grant his motion for a directed verdict because, by the boulevard rule, the sole proximate cause of the accident here was defendant Connolly’s intrusion into the boulevard. Appellant misperceives the reach and applicability of the boulevard rule. Moreover, even if that rule were applicable, appellant would not, on the facts of this case, have been entitled to a directed verdict as a matter of law.

A review of the critical facts established at trial is necessary for a proper analysis of the argument presented. Our review must consider the evidence and all logical and reasonable inferences deducible therefrom in the light most favorable to the appellee. Schwier v. Gray, 277 Md. 631, 636 (1976).

The collision occurred at approximately 7 p.m. on May 4, 1977. It had been drizzling and the roads were wet. The twilight was cloudy. Ruth Kaplan, proceeding east on East Diamond Avenue, was, as all concede and the jury was instructed, free from any negligence. As she approached the intersection of East Diamond and Park Avenues, she saw the Connolly vehicle pull slightly into the intersection, apparently to make a left hand turn. As she observed the Connolly vehicle, Mrs. Kaplan also saw the Hansen vehicle, proceeding westbound on East Diamond Avenue. Fearing that Hansen would be unable to get around Connolly without intruding into her lane, Mrs. Kaplan pulled over to the right as far as possible, short of the intersection, to give Hansen the ability to intrude her lane and avoid Connolly. Indeed, Mrs. Kaplan testified that she had brought her car to a stop "twenty to thirty feet from the corner” of the intersection of East Diamond and Park Avenues. Hansen, travelling faster than the flow of traffic, applied his brakes, causing his vehicle to wiggle, slide and fishtail. Hansen impacted the Connolly vehicle and slid into Mrs. Kaplan’s car. An eyewitness, Mr. Hayes, who was travelling behind the Hansen vehicle after being passed by it "on the right at an unreasonable speed”, testified that a car proceeding westerly on East Diamond Avenue, as was his vehicle and the Hansen vehicle, could have continued "straight on” in the travel lane of East Diamond Avenue "without coming into contact with” the Connolly vehicle. Another eyewitness, Mr. Iverson, testified that the Hansen vehicle, just prior to the accident, "seemed to be going at a speed higher than the normal traffic.” His attention, he testified, was drawn to the Hansen vehicle "because of the wheels on the wet pavement and the engine noise and exhaust seemed to be louder than normal.” Several witnesses placed the speed of the Hansen vehicle at thirty-five miles per hour. The speed limit was not precisely established, the testimony being that it was either twenty-five or thirty miles per hour.

In Dean v. Redmiles, 280 Md. 137, 143-159 (1977), the Court of Appeals, per Judge Smith, reviewed its "prior holdings relative to the boulevard law,” id., 143, and found that "cases reaching [the Court of Appeals] arising under the boulevard rule fall into eight categories,” id., 144:

"The suit of the favored driver against the unfavored driver, the unfavored driver against the favored driver, the passenger of an unfavored driver against both drivers, the passenger of the favored driver against both drivers, the passenger of the favored driver against the unfavored driver, the passenger of the favored driver against the favored driver, and, finally, counterclaims so that the favored drivers are suing each other.”

After-classifying and discussing the cases which fit these categories, the Court observed, id., 147:

"We have attempted in our citation of various types of suits arising under the boulevard rule to include most, if not all, of the cases reaching this Court. It will be seen that the vast preponderance of this litigation has concerned suits between favored and unfavored drivers. Accordingly, much of what has been said with reference to the boulevard rule must be placed in that context. ” [Emphasis added.]

The case reaching this Court in this appeal fits into none of the eight categories noted in Dean v. Redmiles. Here, Ruth Kaplan was driving on the boulevard, or favored street, just as was the appellant. In addition, the Kaplan vehicle was not in the intersection at the time it was struck; instead, it was thirty feet from the intersection. In some boulevard rule decisions, e.g., McDonald v. Wolfe, 226 Md. 198, 203 (1961); Simco Sales v. Schweigman, 237 Md. 180,186 (1964), it has been said that a collision outside the intersection does not bar applicability of the boulevard rule, if the collision is caused by the rule’s violation. Each such case, however, involved litigation between a favored and unfavored driver, not, as here, litigation between two drivers on the boulevard. Well before Dean v. Redmiles, supra, the Court of Appeals had placed outside the reach of the boulevard rule a vehicle which had entered the favored road, after clearing the intersection and ceasing to interfere with the flow of favored traffic through the intersection. See, McCann v. Crum, 231 Md. 65, 68 (1963); Shaneybrook v. Blizzard, 209 Md. 304, 312-3 (1956); Ness v. Males, 201 Md. 235, 239-40 (1953). In effect, these cases refused to apply the boulevard rule to vehicles which had become a part of the favored traffic flow. In Dean v. Redmiles, supra, 149, the Court of Appeals quoted from McCann and reiterated the exception to application of the boulevard rule. Likewise, in placing pedestrians, Folck v. Anthony, 228 Md. 73 (1962), and exiting vehicles, Palmer v. Scheid, 223 Md. 613, 616-7 (1960); Safeway Trials, Inc. v. Smith, 222 Md. 206, 212 (1960), beyond the reach of the boulevard rule, the Court of Appeals demonstrated judicial reluctance to apply the so-called rule outside the confines delineated by the clear words of the statute.

Constraint, not expansion, of the boulevard rule is the clear lesson of the authorities reviewed above. If there was ever any question with respect to that lesson, it surely was laid to rest by Covington v. Gernert, 280 Md. 322 (1977) and Gazvoda v. McCaslin, 36 Md. App. 604 (1977).

In Covington, a driver travelling the wrong way on a one-way favored street was denied the immunity of the boulevard rule. The Court of Appeals noted that the rule requires a driver approaching a stop sign to come to a full stop and "yield the right of way” to vehicles travelling on the favored street. A 1971 statutory redefinition of right of way was discovered and interpreted to grant preference only to vehicles proceeding in a lawful manner on the favored highway. The Court of Appeals, therefore, concluded that, because a driver travelling the wrong way on a one way thoroughfare was not proceeding in a lawful manner, such driver "was not entitled to preference over” the unfavored driver. 280 Md. at 325.

In Gazvoda, this Court scrutinized Covington’s impact on the boulevard rule. There, Judge Powers, for this Court, wrote, 36 Md. App. at 612-3:

"The message of Covington v. Gernert is clear. The departure from the past arises when the favored driver is not proceeding in a lawful manner. Then the boulevard rule no longer applies, and the favored driver is not entitled to preference over the unfavored driver.
This means that in a case arising from a vehicle collision which happens when one driver enters a through highway, if there is evidence sufficient to permit a finding of fact that the favored driver was proceeding in a manner that was not lawful, then it is for the jury to determine whether the favored driver has lost his statutory preference. As the Court of Appeals said in Covington, '[the trial court] will not be permitted to regard [the entering driver] as having violated the boulevard rule.’
At the risk of justifiable criticism for indulging in the vice of self-quotation, this writer repeats what he said in a concurring opinion in this Court’s Beckward v. Hensel, 20 Md. App. at 560, 316 A.2d at 318:
'When the boulevard rule is applicable, it is virtually absolute, but, accepting the efficacy of that view, we still may not hold it applicable to every collision that happens in the intersection of a favored and an unfavored highway. The key is proximate cause. If the harm was proximately caused by breach of the duty imposed by the boulevard rule, then the rule must be strictly applied. But if the proximate cause was the breach by either party, of some other duty, then the boulevard rule is not applicable.’
What Covington v. Gernert, supra, does, and what we think justice demands, is to permit our judicial system, in the search for proximate cause — the underlying fault which caused the harm — to look behind doors hitherto barred.”

Both Covington and Gazvoda involved suits between only a favored driver and an unfavored driver. Neither involved litigation, as here, between two drivers on a favored highway. The parties have cited no case barring a search, from the facts, for the proximate cause of an accident in a case such as presented here. Our own research has uncovered no such case. Some instruction can be gleaned from Dail v. Tri-City Trucking Co., 39 Md. App. 430 (1978) where we looked carefully at the facts of the case and refused to apply the boulevard rule to a situation outside the eight pigeonholes of Dean v. Redmiles. We wrote, in Dail:

"The boulevard rule’s purpose of facilitating the flow of traffic is fully effectuated if uninterrupted travel is encouraged by protecting the favored driver’s right of way and recklessness is discouraged by penalizing the unfavored driver for failure to yield the right of way. The favored driver is protected by 'virtual immunity against actions brought by the unfavored driver.’ The unfavored driver is penalized by being found contributorily negligent as a matter of law.
The rule’s purpose would not be significantly advanced by barring an unfavored driver from recovery against a negligent party other than the favored driver. Indeed, it would be antithetical to the rule’s purpose to immunize such a negligent party from liability when that party’s actions caused the disruption of the flow of traffic on a through highway by causing the unfavored driver’s failure to yield the right of way. In addition, it would be unfair to immunize that negligent party under such circumstances by applying the boulevard rule.
We decline to apply the boulevard rule here because it would not serve that rule’s purpose and would be unfair.” 39 Md. App. at 435-6.

By like reasoning, in this case the boulevard rule’s purpose would not be advanced by immunizing Hansen against suit by another driver on the favored roadway. In the words of Dail, it would "not serve that rule’s purpose and would be unfair” to leave the clearly non-negligent favored driver without recourse against another favored driver’s negligence. In this case, there is no dispute that Ruth Kaplan was without fault. From the facts, Hansen, the other driver on the boulevard, was proceeding too fast for conditions, did not have proper control of his vehicle and was inattentive. Parenthetically, it may be noted that a broad reading of Covington v. Gernert, supra, and Gazvoda v. McCaslin, supra, would not bar a suit by Connolly against Hansen. Indeed, from the jury’s verdict exonerating Connolly, it might well be inferred that Hansen’s erratic driving caused the entire episode and that the jury believed witness Hayes’ testimony that a straight course westward was achievable because Connolly had not intruded the travel lane.

Appellant gives no weight to Hayes’ testimony. Instead, appellant urges that the "case is determined by Maryland’s Boulevard Law” because the injuries to Mrs. Kaplan came "as a direct result of a collision between two motor vehicles which were in a Boulevard Law situation.” Therefore, Appellant urges that "the strict rules of the Boulevard Law ... be enforced” against appellees, who were "third parties” to a boulevard impact. At bottom, Appellant relies, see Appellant’s Brief, p. 5, on a quote from Tippett v. Quade, 19 Md. App. 49 (1973), where former Judge Scanlan wrote:

"[Alppellee represents a third party, the deceased passenger, and not one of the two drivers involved in the accident. That makes no difference. The principles which surround application of the 'boulevard rule’ are the same in such a case as those to which the court would look if the suit were one involving a favored driver and an unfavored driver alone.” 19 Md. App. at 59.

We questioned the breadth of this statement in Victor A. Pyles Co. v. Rehman, 21 Md. App. 686, 690, n. 5 (1974), noting that in both cases cited to support it, "the Court of Appeals permitted both the favored and unfavored vehicles’ negligence to be determined by the jury.” If the Tippett statement had persisting merit, it was surely undermined by Dean v. Redmiles, supra. Indeed, we relied, in part, upon the quote from Tippett to reach, in Redmiles v. Muller, 29 Md. App. 304, 313 (1975), the result overturned in Dean v. Redmiles.

Even if the boulevard rule were applicable to the case on appeal, appellees, in the position of a non-negligent second favored vehicle, could certainly not be considered in any lesser light than a non-negligent passenger of the favored driver. And, it is clear from Dean v. Redmiles, that in a suit by a passenger, a favored driver cannot escape liability if his actions are "a proximate cause” of the injury. 280 Md. at 151-2. Here, appellant’s speed, inattention and failure to control his vehicle were at least a cause of appellees’ injuries. The Court of Appeals discussion of suits by passengers is illuminating particularly when the reader reads, for the purposes of this case on appeal, "a second favored vehicle” in place of passenger. Judge Smith wrote:

"The favored driver was sued by his passenger in Yellow Cab Co. v. Bonds, 245 Md. 86, 225 A.2d 41 (1966); White v. Yellow Cab Company, 216 Md. 286, 140 A.2d 285 (1957); and Sun Cab Co., Inc. v. Hall, 199 Md. 461, 86 A.2d 914 (1952). The passenger prevailed in all of those cases other than White.
In no case, with the possible exception of Sun Cab Company, Inc. v. Cusick, supra, has the boulevard law been held to bar recovery from a favored driver in a suit brought by his passenger. Even there, as we have pointed out, this can hardly be said to be a clear-cut holding that the boulevard law insulates the favored driver from liability to his passenger for his negligence.” 280 Md. at 146-7.
"In a case involving the claim of the passenger of an unfavored driver against the favored driver or the claim of a passenger of a favored driver against the favored driver, the fact that the favored driver is violating the speed law does not become a jury question unless the evidence is sufficient to warrant a conclusion that the violation is a proximate cause of the injury concerning which complaint is made.” 280 Md. at 151-2. Emphasis added.
* * *
"The first of the cases we have cited in which a passenger of a favored driver was permitted to recover from the favored driver is Sun Cab Co., Inc. v. Hall, supra, 199 Md. 461, There the passenger recovered a judgment which was affirmed by this Court on appeal.” 280 Md. at 153.
"The second such case was Yellow Cab Co. v. Bonds, supra, 245 Md. 86. There a taxicab collided with a vehicle in front of it on a boulevard. That vehicle had been braked suddenly to avoid collision with another car which had failed to stop or yield the right-of-way at an intersection with that boulevard. Suit was by a passenger in the cab. As Judge Horney put it for the Court, '[T]he question on appeal [was] whether the cabdriver was guilty of negligence which was also a proximate cause of the accident.’ In holding that he was, the Court said:
'That there can be more than one proximate cause of an accident is clearly established. While the negligence of the cabdriver must have been a proximate cause in order to warrant recovery by the passenger, it did not necessarily have to be the sole proximate cause of the accident. The negligence of the operator of the intruding automobile did not excuse the cab owner and driver from liability for damages. It was enough that the negligence of the cabdriver, in concurrence with that of the other motorist, proximately caused or contributed to the injuries the passenger sustained. Yellow Cab Co. v. Hicks, 224 Md. 563, 168 A.2d 501 (1961); Armiger v. Baltimore Transit Co., 173 Md. 416, 196 Atl. 111 (1938); Brawner v. Hooper, 151 Md. 579, 135 Atl. 420 (1926). Other cases are collected in 3 M.L.E., Automobiles, § 162.
'The argument of the appellants is that the boulevard law relieved them from liability because the operator of the cab was the favored driver, but this fact did not relieve the cabdriver of the obligation to use due care under the circumstances of this case. Harper v. Higgs, 225 Md. 24, 169 A.2d 661 (1961); Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 49 A.2d 537 (1946). Nor did the fact that a concurrent tort-feasor violated the boulevard law affect the claim of the appellee against the appellants.’ ” 280 Md. at 155-6.
"Although the defendant favored driver in each of those cases was a taxi operator and it might be argued that his contract for safe carriage of his passenger placed upon him a higher duty of care than an ordinary driver, the Court appeared in no way to rest its decision on that fact. No common carrier was involved, however, in Kopitzki v. Boyd, supra, 277 Md. 491, ....” 280 Md. at 157.
"In Kopitzki it was pointed out that the other driver on the favored highway, 'who admitted that he too was exceeding the speed limit at the time, was able to avoid striking (the entering vehicle), without jamming on his brakes.’ The Court concluded that '[t]he jury could have found that it was Kopitzki’s inattention that was a proximate cause of the accident. This was negligent conduct which would support [the passenger’s] claim against Kopitzki, and [she] was entitled to have the jury consider it,’ citing Brown v. Ellis, supra, 236 Md. at 495.” 280 Md. at 158-9.

Appellant who, according to the evidence and inferences therefrom in the light most favorable to appellees, was travelling too fast for conditions, did not have proper control of his vehicle and, according to the testimony of Mr. Hayes, could have continued in his lane without striking defendant Connolly, should not have had, as a matter of law, his actions withdrawn from the jury’s consideration by a directed verdict in his favor.

Judgment affirmed.

Cost to be paid by appellant.

      . This case, prematurely, came to this Court in October, 1979. After the trial of the issue of liability and entry of a verdict in favor of defendant Connolly and a verdict against defendant Hansen, as well as a judgment in favor of plaintiffs against Hansen for liability, Hansen appealed, even though there had been no determination or judgment as to damages. Because there was no finding by the trial court as required by Rule 605a, as well as because the appeal line was entered more than 30 days after the entry of the judgment as to liability, this Court dismissed the appeal sua sponte on November 8, 1979. Absent a determination by the trial court as required by Rule 605a, an appeal from a determination of liability in a bifurcated negligence case is not timely until a judgment as to damages has been entered. Greyhound Lines v. Alderson, 23 Md. App. 224, 226-231 (1974); Knight v. Tolson, 10 Md. App. 311, 313-4 (1970). See also, Balto. Contractors v. Valley Mall, 27 Md. App. 695,700 (1975); Harford Sands, Inc. v. Levitt & Sons, 27 Md. App. 702, 712 (1975); J. C. Penny Co. v. Harker, 23 Md. App. 121, 126 (1974). On November 30, 1979, a final judgment in the amount of $20,000.00 was entered in favor of plaintiffs against defendant Hansen, predicated upon a stipulation dated prior to trial by counsel for all parties. On December 26, 1979, defendant Hansen appealed from that judgment. That timely appeal is now before the Court. There was no appeal from the judgment in favor of defendant Connolly.

      . Park Avenue does not cross East Diamond Avenue. A vehicle on Park Avenue could only proceed by turning left or right onto East Diamond Avenue.

      . Defendant’s Exhibit 8 is a photograph of the Connolly vehicle depicting very slight damage to the foremost tip of that vehicle’s hood. The damage, to the eye, appears negligible.

      . There are two westbound lanes on East Diamond Avenue as it approaches Park Avenue. The curb lane may be used for parking and was so used at the time of this occurrence. The westbound travel lane abuts the eastbound lane and is only divided by a double painted line.

      . By analogy, appellees may be in parity with the passenger of the favored driver. For a dicussion using this analysis, see p. 12, infra.

      . In Dail, the plaintiff came upon a construction effort on a through dual highway. The contractor had not set up, however, any signs noting that two westbound lanes of traffic on the favored highway had been closed and traffic re-routed to one of the normal eastbound lanes. Plaintiff stopped at the westbound lanes, came to the median and stopped again. Plaintiff, however, looked, then, for only eastbound traffic. As he entered the intersection, a westbound truck collided with him. The truck driver was immunized, by the boulevard law, but claim against the contractor, for failure to post, was left to the jury.

      . We cannot be so inclined for our job is to view the facts in the light most favorable to appellee and to credit reasonable inferences therefrom. See page 34, supra.

      . Appellant candidly notes "one caveat which occurred when the Appellant’s vehicle spun around out of control and collided with the Appellee on the opposite side of the street after having impacted with the unfavored vehicle operated by Connolly.” Appellant’s Brief, p. 5. Little testimony at trial was directed to what caused this spinning action. The impact between the Hansen and Connolly vehicles appears, from photographs, see footnote 3, supra, to have been slight and it seems clearly reasonably inferrable that the Hansen vehicle spun because of its speed and its driver’s fault. Indeed, but for the spinning, there would have been no injury to Appellants. Cf., Figinski, Foreseeable Intervening Negligence Not a Superceding Cause, 21 Md.L.Rev. 68; Folk v. Bossler, 256 Md. 232, 237 (1969).

      . Harper v. Higgs, 225 Md. 24 (1961); Shedlock v. Marshall, 186 Md. 218 (1946).

      . It has long been held that there may be more than a single proximate cause of a vehicle accident. See, e.g. Brawner v. Hooper, 151 Md. 579, 584 (1926).
      Appellant may well be disturbed that defendant Connolly was exonerated, but there is no appeal from the judgment in his favor just as the docket below reflects no cross-claim by appellant against him.


author: Mason, J.,

text:
    JOHN HENRY HALEY v. STATE OF MARYLAND
    (No. 1322,
    September Term, 1979.]

      Decided November 6, 1980.

      The cause was submitted on briefs to Thompson, Moore and Mason, JJ.
    Submitted by Richard M. Karceski, Assigned Public Defender, for appellant.
    Submitted by Diane G. Goldsmith, Assistant Attorney General, Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Ann Harrington, Assistant State’s Attorney for Montgomery County, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The single issue in this case is whether the Interstate Agreement on Detainers Act, Article 27, section 616A et seq., of the Annotated Code of Maryland is applicable to post conviction proceedings.

John Henry Haley, appellant, was convicted by a jury in the Circuit Court for Montgomery County of armed robbery and related counts. He was committed to the custody of the Division of Correction for a period of twenty years. The judgments of the lower court were affirmed by this Court in Haley v. State, 40 Md. App. 349, 392 A.2d 551 (1978). One of the issues raised in Haley v. State, supra, was whether appellant was present at a bench conference during voir dire examination of several prospective witnesses. Because the record was silent on this issue, we suggested that it be pursued by post conviction proceedings.

On November 22, 1978, appellant, who was then serving a term of imprisonment for an unrelated offense in the Federal Penitentiary at Lewisburg, Pennsylvania, filed a petition in the Circuit Court for Montgomery County seeking post conviction relief. On December 12, 1978, in an apparent response to appellant’s petition, the State’s Attorney’s Office for Montgomery County filed a request for temporary custody of appellant pursuant to section 616E (a) of Article 27, which in pertinent part provides:

"(a) Presentation of request. — The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have the prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; ...”

Appellant was returned to Montgomery County on February 6, 1979; his petition for post conviction relief was heard on March 2, 1979, and on April 16, 1979, he was granted a new trial. Pursuant to a petition filed by the State, the trial court stayed the judgment pending the outcome of the State’s application for leave to appeal to this Court. On July 20, 1979, the State’s application for leave to appeal was denied. Prior to commencement of the new trial, appellant filed a motion to dismiss the charges. This petition was denied. On October 9, 1979, appellant was again convicted by a jury of armed robbery and related counts. He was sentenced to a term of twenty years, consecutive to the Federal sentence he was serving.

On appeal appellant contends that because he was not brought to trial within one hundred twenty days after his arrival in Maryland from the Federal Penitentiary in Lewisburg, Pennsylvania, the lower court erred in not granting his motion to dismiss the charges. In support of this contention he relies on Article 27, section 616E (c) and (e) which provide:

"(c) Time trial to commence; continuance. — In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
(e) Dismissal of indictment, etc., on which no trial had. — If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

As we perceive it, the narrow issue for our resolution is whether the provisions of the Interstate Agreement on Detainers Act, supra, apply to post conviction proceedings. The purpose of the Act as set forth in section 616B is as follows:

"The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.”

For cases expressing a similar purpose see Hoss v. State, 266 Md. 136, 292 A.2d 48 (1972); United States v. Mauro, 436 U.S. 340 (1978); United States v. Dixon, 592 F.2d 329 (6th Cir. 1979); Esola v. Groomes, 520 F.2d 830 (3rd Cir. 1975).

The purpose of this Act and section 616E (a) supra which authorized the transfer of appellant speak in terms of "unified indictments, informations or complaints.” At the time appellant was transferred to Maryland there wore no "untried indictments, informations or complaints” pending against him. His transfer was not requested by the State for further prosecution of pending charges, hut was requested for the benefit of appellant to pursue his application for post conviction relief. Although no Maryland appellate cases have considered the precise issue presented here, cases in other jurisdictions have held that the Interstate Agreement on Detainers Act does not apply to collateral proceedings. In Sable v. State of Ohio, 439 F. Supp. 905 (W.D. Okla. 1977), the court held that the Act did not apply where the basis for the detainer was a parole violator’s warrant and there was no "untried indictment, information or complaint.” Accord Buchmann v. Michigan Department of Corrections, 212 N.W.2d 745, 746 (Ct. App. Mich. 1973). In Suggs v. Hopper, 234 Ga. 242, 215 S.E.2d 246-247 (1975) the Supreme Court of Georgia, in holding that a detainer based on a violation of probation does not fall within the Act, said:

"The purpose of the statute is to insure speedy trial on pending charges before staleness and difficulty of proof set in. These are pre-trial, and not sentencing, considerations. Suggs’ petition is without merit because the statute by its terms relates only to an 'untried indictment, information or complaint,’ and does not apply to warrants for arrest for probation violation.”

In United States v. Dixon, 592 F.2d 329, 337 (6th Cir. 1979) the court held that where a detainer was filed to allow the prisoner’s counsel the opportunity to meet with him concerning certain charges, the Act was inapplicable. The court reasoned:

"It is readily apparent that the actions of the Assistant United States Attorney here do not present a potential for nor amount to an abuse of the privilege of easy prisoner access for the purpose of disposition of outstanding charges, which Article IV(c) is intended to proscribe. The issuance of the September 13, 1976, writ of habeas corpus ad prosequendum was to allow appellant’s counsel the opportunity to meet with his client concerning the kidnapping and air piracy charges. To allow appellant to assert the sanction of Article IV(c) under these facts would permit form to prevail over substance. The transfer of appellant in this case pursuant to a writ of habeas corpus ad prosequendum does not mandate application of a sanction, the purpose of which is to protect prisoners from the abuse of a privilege granted to prosecutors allowing them easy access to the prisoners. Application of the Article IV(e) sanction in the instant case would permit appellant a windfall benefit under circumstances not contemplated by the sanction.”

We think the rationale of the cited cases from other jurisdictions applies with equal force to the present case. Consequently, we conclude that the State’s request for temporary custody of appellant to allow him to pursue his petition for post conviction relief was not within the ambit of the Interstate Agreement on Detainers Act because there was no "untried indictment, information or complaint” then pending against appellant. Therefore, the lower court did not err in denying appellant’s motion to dismiss the charges.

Judgments affirmed.

Costs to be paid by appellant.