author: Menchine, J.,

text:
    HARRY WALLER et al. v. GILBERT KEENE et al.
    [No. 588,
    September Term, 1974.]

      Decided May 28, 1975.

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

      Alfred M. Porth and Theodore B. Comblatt, with whom were Smith, Somerville & Case on the brief, for appellant Harry Waller. Norman F. Summers, with whom was Julian S. Brewer on the brief, for other appellant.

      Louis G. Close, Jr., with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for Pennsylvania National Mutual Casualty Insurance Company, one of appellees.
   Menchine, J.,

delivered the opinion of the Court.

This is an appeal from a reversal by the Circuit Court for Baltimore County of a decision of the Workmen’s Compensation Commission (Commission). The Commission had ruled that Gilbert Keene (claimant) had sustained an accidental injury arising out of and in the course of his employment by A & L Contractors, and that Leonard W. Pauza (Pauza) was protected as an employer by the terms and provisions of a policy of workmen’s compensation insurance issued to him as an individual by Pennsylvania National Mutual Casualty Company (Penn National). The Commission also found Harry Waller (Waller) to be a statutory employer, thereby causing him and his insurer, Nationwide Mutual Insurance Company (Nationwide) also to be responsible for compensation benefits due to the claimant by reason of the provisions of Article 101, § 62. Penn National appealed.

In the Circuit Court for Baltimore County the cause was submitted to Judge Kenneth C. Proctor, sitting without a jury. Judge Proctor held that the claimant was employed by a partnership consisting of Leonard W. Pauza and Arthur Grimes, t/a A & L Contractors (partnership), and that the insurance policy issued by Penn National to Pauza as an individual did not provide insurance to the partnership. The trial court affirmed that part of the Commission’s order finding that Waller as statutory employer and Nationwide, his insurer, were liable for the payment of compensation benefits to the claimant. Waller, Nationwide and Pauza have appealed.

Pauza, on appeal, asks:

Is John W. Walter, trading as Col-Mar Insurance Company, the agent of Pennsylvania National Mutual Casualty Insurance Company under the Doctrine of Estoppel?

Waller and Nationwide, on appeal, suggest that:

“The lower court erred in ruling that the policy of workmen’s compensation insurance issued by Penn National to Leonard Pauza did not cover the injury sustained by the claimant, who was employed by a partnership of which Pauza was a member.”

The Facts

Pauza, through his broker, John W. Walter, t/a Col-Mar Insurance Agency (Col-Mar), in 1970 had obtained a policy of workmen’s compensation insurance written by Penn National through J. B. Schaftel Company (Schaftel), its general agent. The policy involved in the subject proceeding, the second renewal of that earlier policy, had been issued for the period August 5, 1972 to August 5,1973. The first page of the policy thus described the insured:

Leonard William Pauza INDIVIDUAL x

25 Prospect Avenue PARTNERSHIP _

Catonsville, Baltimore Co., CORPORATION_

Maryland 21228 OTHER _

Under the heading of “Classification of Operations” the insured was described as engaged in “Carpentry installation of cabinet work or interior trim.” The estimated payroll was $10,000.00 annually. At all times prior to September, 1972 Pauza had conducted his carpentry business as an individual.

Sometime in September, 1972 Leonard William Pauza and Arthur Grimes formed a partnership under which they traded as A & L Contractors. They had no prior association as employers. Contemporaneously with the formation of that partnership, Pauza and Grimes as partners, entered into a contract with Waller for “all carpentry work (rough and trim) in Section 1, consisting of 9 Buildings, 7 “A” Buildings (43 units) & 2 “D” Buildings (12 units), project known as QUEEN ANNE VILLAGE.” New State and Federal tax numbers were issued to the partnership upon application. Pauza continued as an individual employer on other projects. On September 29, 1972 claimant was employed by the partnership to work on the Waller job. He was paid by A & L Contractors, by partnership check. He had never been employed by Pauza individually.

Pauza, believing that the new partnership and the broadened character of carpentry work undertaken by the partnership would affect his workmen’s compensation insurance, contacted his broker, Col-Mar on or about September 27, 1972, told him about the formation of the partnership and requested that requisite changes in workmen’s compensation insurance be effected. Col-Mar submitted a bill to A & L Contractors, care of Pauza, for $133.00 for the estimated additional premium under the existing policy. Pauza, believing that the additional premium cost would exceed the billed figure, sent Col-Mar a partnership check for $200.00 that was deposited by Col-Mar. Col-Mar did not notify Schaftel or Penn National of Pauza’s change in status or the broadened nature of the partnership operation until November 29, 1972, eleven days after the accidental injury to claimant. Neither Schaftel nor Penn National ever received any part of the $200.00 paid by the partnership to Col-Mar.

The partnership was obligated, under the terms of its contract with Waller, to “furnish all required Insurance Certificates for Workmen’s Compensation * * * before actual work commences.” Schaftel was requested to issue and on September 27, 1972 did in fact issue to Waller a Certificate of Insurance, certifying that the Pennsylvania National Mutual Casualty Insurance Company had issued to Leonard William Pauza, 25 Prospect Avenue, Catonsville, Maryland 21228 a Workmen’s Compensation insurance policy providing coverage within the statutory limits provided by the Workmen’s Compensation Law of the State of Maryland and Employer’s liability to a limit of $100,000.00 by policy number WC000094642 for a policy term from 8/5/72-73. Waller’s general superintendent pointed out to Pauza that the certificate had been issued under a policy insuring Pauza only as an individual. Pauza, however, made no effort to obtain a revised certificate nor did Waller demand one.

Estoppel

There can be little doubt that an estoppel would arise against Penn National if Col-Mar was its agent. The trial court found that Col-Mar at no time held himself out as agent of Penn National. The record fully supports the finding. There is not a scintilla of evidence that Schaftel or Penn National had knowledge of the formation of Pauza’s partnership with Grimes nor of the broadened scope of Pauza’s operations until after injury to the claimant. Under such circumstances it is quite clear that Col-Mar was the agent of Pauza and not the agent of Penn National. Article 48 A, § 166; American Casualty Co. v. Ricas, 179 Md. 627, 631, 22 A. 2d 484, 487.

The case of Reserve Insurance Company v. Duckett, 240 Md. 591, 214 A. 2d 754, cited by Pauza, recognized the validity of the doctrine that an insurer may be bound by one not specifically authorized, if the insurer’s actions were such as reasonably would lead a third party to believe that the agent had authority to bind the insurer. The subsequent appeal of that case after remand, however, Reserve Insurance v. Duckett, 249 Md. 108, 238 A. 2d 536, demonstrates that the decision is inapposite here. At page 115 [540] of the second appeal, the Court stated:

“Reserve was aware that Davis appeared on the face of its policies as agent and from this was charged with knowledge that Davis was issuing its policies as agent. Although in a two-year period, 1960-1962, Reserve received 1011 copies of its policies with Davis appearing as agent, it never repudiated Davis or denied the validity of the issued policies.”

In the subject case it is uncontradicted that Penn National had a firm rule against brokered business and had no knowledge whatever that Pauza’s policies had been obtained through Col-Mar. All Pauza policies had been issued for Penn National by Schaftel.

We find no estoppel.

Coverage Under Penn National Policy

The question whether a workmen’s compensation insurance policy, issued to an individual, affords him protection against claims of an employee of a subsequently formed partnership of which he is a member, is a matter of first impression in Maryland. The authorities in other jurisdictions are divided upon the question.

The leading case espousing the doctrine that such an insurance policy provides coverage is Reed v. Industrial Accident Commission, 73 P. 2d 1212 (S. Ct. Cal. 1937), 114 A.L.R. 720. In Reed, a building contractor obtained a policy of workmen’s compensation insurance for an insurer. He thereafter became associated with another in the conduct of a building business. On those facts the Court said at 1213 [721]:

“The position of said respondent is, in brief, that the policy insured W. B. Mellott, an individual, and not the partnership of Gordon & Mellott; that Reed was employed by the firm of Gordon & Mellott, and not by W. B. Mellott; and that consequently, the policy did not cover the injury, because Reed’s employer, the partnership, was not insured. This position is unsound on principle and contrary to prior decisions in this state.
“The underlying fallacy in respondent’s argument is the assumption that the partnership is a distinct unit, separate from the members thereof. Occasional suggestions of this ‘entity’ theory of partnership are found in statutes or decisions, but, apart' from exceptional situations, & partnership is not considered an entity, but an association of individuals. See First Nat. Trust & Savings Bank v. Industrial Accident Commission, 213 Cal. 322, 331, 2 P.2d 347, 78 A.L.R. 1324; 9 Cal. L. Rev. 119. In consonance with this view, an employee of a partnership is an employee of each of the partners, and no individual partner may escape liability to such employee on the ground that only the partnership and not the individuals composing it can be held. It is immaterial whether the liability of the partners in this situation is joint and several, or joint, for even in the case of joint liability, a several judgment may be had against an individual partner by ’proper joinder and pleading. See Palle v. Industrial Commission, 79 Utah 47, 7 P.2d 284, 81 A.L.R. 1222; Merchants’ Nat. Bank v. Clark-Parker Co., 215 Cal. 296, 9 P.2d 826, 81 A.L.R. 778. The result is that W. B. Mellott, a partner in the firm of Gordon & Mellott, was an employer of petitioner Reed, and was undoubtedly liable to Reed for workmen’s compensation. Since W. B. Mellott procured insurance with respondent company to cover such liability, and paid the required premium therefor, the company must perform its obligation by paying the award.”

A dissenting Justice in Reed, after pointing out that the California workmen’s compensation statute required the word “employer” to include every firm and voluntary association, grounded his dissent upon the fact: (p. 1215 [724]) “The only contract which the insurer made in this case was with W. B. Mellott, an individual. It did not agree to insure either a partnership of which Mr. Mellott might thereafter become a member, or the individual liability of Mr. Mellott as a member of such a partnership,”

In Weir v. New Amsterdam Cas. Co., 20 A. 2d 12, the Court of Common Pleas of New Jersey, Passaic County, although declaring that it was unnecessary to decide the question, cited the Reed decision. On appeal, Weir v. New Amsterdam Cas. Co., 24 A. 2d 562, the Supreme Court of New Jersey, although not citing Reed, supra, adopted the view expressed therein, declaring at 564:

“The prosecutor’s third point goes to the proposition that the policy did not cover the award inasmuch as the policy was written to indemnify Harry Pilchman and was not written in coverage of the co-partnership of Harry Pilchman and Louis Lipschultz. We are of the opinion, however, that the policy did cover the award. Assuming the fact to be that at the time of the employment of Weir, as well as at the time of the accident, the employer was a partnership, it remains that the insured was, as a member of that partnership, an employer of Weir and that a judgment or award obtained by Weir against the partnership was collectible from Pilchman. The situation is quite different from that which exists when the partnership' is the insured employer and the hiring is by one of the members individually in an employment outside the partnership. The accident sued upon arose out of and in the course of an employment in the business conducted under the trade name of ‘Clinton Hill Painters and Decorators'. Pilchman, as an employer therein, was liable. We perceive no sound reason why his insurer, which undertook to indemnify him as an employer in that business, should not be held responsible. It is made liable by its contract.”

(Decision affirmed per curiam 28 A. 2d 126). See also, Parker v. Zanghi, 131 A. 2d 802, 807 (Superior Ct. of N. J. App. Div. 1957).

Greenstein v. Kastonowitz, 24 N.Y.S.2d 792 (S. Ct. App. Div., 3rd Dept. 1941), appeal denied 26 N.Y.S.2d 608, applied the rule under circumstances where the intent to cover the business was not questioned.

In U. S. F. & G. v. Collins, 95 So. 2d 456 (S. Ct. of Miss. 1957), under similar facts, the Court said at 460:

“The general rule is that a compensation policy insuring an individual member of a partnership covers an injury to an employee of the partners. 45 C.J.S. Insurance § 826, p. 877; 58 AmJur., Workmen’s Compensation, Section 565; Reed v. Industrial Accident Commission, 1937, 10 Cal.2d 191, 73 P.2d 1212, 114 A.L.R. 720; Brollier v. Van Alstine, 1942, 236 Mo.App. 1233, 163 S.W.2d 109.”

In Clawson v. General Insurance Co., 412 P. 2d 597 (S. Ct. Idaho 1966), although Reed, supra, was cited in a case involving joint venturers and its rule was there applied, the Court left open [p. 600] the question whether the decision would have been otherwise had a partnership been involved.

Other cases in the State of Missouri, formerly adhering to the Reed doctrine were expressly rejected in a later decision.

The leading case espousing the doctrine that such insurance policy does not provide coverage is Kalson v. Industrial Commission, 21 N.W.2d 644 (S. Ct. Wisc. 1946). In Kalson, the Wisconsin statute defined “employer” as follows: “Every person, firm and private corporation * * * who employs * * Under factual circumstances similar to the subject case, the Court said .at 645-46: .

“It is conceded that the word ‘firm’ as used in the phrase ‘Every person, firm and private corporation (including any public service corporation) who usually employs 3 or more employees’, which is in sec. 102.04 (2), Stats., is synonymous with the word ‘partnership’. But we cannot sustain the plaintiffs’ contention'that by use of the word ‘firm’ in that phrase it was not intended to treat, under the compensation act, a firm as a separate entity, as distinguished from an aggregation of the individuals who compose, the partnership. If it had been the legislative intention that every person who is a partner in a firm should as such partner be. considered an employer of the firm’s employees, . then, in view of the term ‘every person’, which precedes the word ‘firm’ in the statute, there would have been no occasion to, and no purpose would be served by the use therein of also the word ‘firm’. In other words, if it was the legislative, intention that, in determining who is an employer liable for compensation under Ch. 102, Stats., a partnership was not to be treated as a separate entity, but that it was to be considered an aggregation of the individuals who are the partners thereof, and therefore every person who is such a partner is by virtue of that relationship to be considered also an employer of the firm’s employees, then the term ‘every person’ in sec. 102.04 (2), Stats., would have been .sufficient to include all of the partners, and consequently the use of also the word ‘firm’ in the statute would be superfluous. But that is not the consequence, and there is a purpose duly served in the statute by the word ‘firm’, when it is considered to evidence the legislative intention that if a firm is an employer it shall be treated as a legal entity, separate and distinct from the persons who are the members thereof.”

The doctrine declared in Kalson has been adopted in other jurisdictions.

In Toenberg v. Harvey, 49 N.W.2d 578 (S. Ct. Minn. 1951), the workmen’s compensation statute read: “The term ‘employer’ means every person who employs another to perform a service for hire and to whom ‘the employer’ directly pays wages, and includes any person, corporation, copartnership, or association * * *.” The Court reversed an award as to a partnership employee against the compensation insurer of one of the individuals comprising the partnership, the Court saying at 581:

“Under the facts and circumstances here and the statute and cases above cited, this partnership must be treated as a separate employing entity for the purpose here involved. It does not follow from that that for all purposes a partnership is to be regarded as a legal entity. The partnership was Toenberg’s employer. John Harvey was not. There was no contractual relationship between Toenberg and Harvey as an individual, and liability under the compensation act arises by virtue of contract. A contract of hire — a relationship of employer-employee — is a condition precedent to benefits and duties under the statute.”

In Mendonca Dairy v. Mauldin, 420 P. 2d 552 (S. Ct. Okla. 1966) an employee of a partnership sought compensation benefits from an individual member of the partnership and the insurer covering that individual. Rejecting the claim, the Court said at 555:

“A partnership is a separate entity and constitutes a separate employer distinct from any of the members constituting such partnership. Anderson v. Duke, 193 Okl. 395, 143 P.2d 800. Consequently, there was no relationship of employer and employee between Mrs. Van Hook, as an individual, and claimant, and any insurance policy issued to her individually which covered her employees does not apply to claimant.”

The non-coverage position is best articulated in Crall v. Hockman, 460 S.W.2d 668 (S. Ct. Mo. 1970), wherein the Court, after citing with approval the quotation from Kalson, supra, said at 671-72:

“We agree with the analysis and reasoning of the Wisconsin court [Kalson, supra] and the dissenting opinion of Judge Eager in Blew v. Conner, supra. They give meaning and purpose to each of the words enumerated by the general assembly in defining what should constitute an employer under the Compensation Act. The specific mention of ‘partnership’ in the definition then means something. It is true that generally Missouri has adopted the aggregate rather than the entity theory of partnership. Ward v. State Farmers Mutual Tornado Insurance Company of Missouri, Mo., 441 S.W.2d 1. However, so has Wisconsin, but the Wisconsin Supreme Court pointed out in Kalson that this did not mean that the general assembly could not and did not intend otherwise in defining an employing entity under the Act. They took the position that when the legislature designated such firm as an employing entity, that was what the general assembly intended. Judge Eager’s dissenting opinion takes a similar position with respect to the Missouri statute, and we conclude that this represents a correct interpretation of the language of the Act. It is consistent with the definition in § 287.020, subd. 1 of an employee as a person ‘in the service of any employer, as defined, in this chapter. ’ (Emphasis supplied.)”

Maryland Code Article 101, § 67 (2) (1974 Cumulative Supplement) defines Employer as follows:

“(2) ‘Employer’ means those persons who fall within the requirements of § 21 (a) 13 of this article including a person, partnership, association, corporation and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation employing workmen.”

The decisions adopting the Reed doctrine seem to us to be specious, in that their stress is placed upon the personal responsibility of partners for partnership obligations. Yet, the true issue presented in Reed and its progeny did not involve a partner's ultimate responsibility as an individual to respond personally for partnership obligations. Rather, their rule of law imposed upon the insurer of an individual a duty and obligation it had not contracted to perform. When an individual becomes associated with others in a partnership he continues to be bound by law to full or partial individual liability for partnership obligations. He knows this when he voluntarily changes his status. It is a non sequitur, however, to suggest that the insurer of such an individual, without its agreement — indeed without its knowledge — should be compelled to carry the heavier burden of obligations thereby assumed by such individual. Under the facts of this case, liability under the policy written by Penn National can attach only if it is compelled to perform a new and different obligation than that which it had undertaken to perform. Chaney v. Home Indemnity Co., 14 Md. App. 660, 288 A. 2d 190. We decline to require it to do so.

Judgment affirmed.

Costs to be paid by appellants.

      . A & L Contractors was the trade name used by Leonard W. Pauza and Arthur Grimes, copartners.

      . Waller was the principal contractor and A & L Contractors were subcontractors on a project known as Queen Anne Village. Article 101, § 62 reads as follows:
      “§ 62. Employees of subcontractor may claim against contractor.
      When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as subcontractor, for the execution by or under the subcontractor, of the whole or any part of the work undertaken by the principal contractor, the principal contractor shall be liable to pay to any workman employed in the execution of the work any compensation under this article which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this article, reference to the principal contractor shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.
      Where the principal contractor is liable to pay compensation under this section, he shall be entitled to indemnity from any employer, who would have been liable to pay compensation to the employee independently of this section, and shall have a cause of action therefor against such employer.
      Nothing in this section shall be construed as preventing a workman from recovering compensation under this article from the subcontractor instead of from the contractor.
      Whenever an employee of a subcontractor files a claim under this article against the principal contractor, the principal contractor shall have the right to join the subcontractor or any intermediate contractors as defendant or codefendant in the case.”

      . The liability of Waller and Nationwide to the claimant is not disputed. There appeal is not rendered moot by this circumstance, however, because a principal contractor and his insurer are entitled to indemnity from the subcontractor and may participate in his appeal. Core Contracting Co. v. Schaeffer, 151 Md. 494, 135 A. 318.

      . The factual recitation combines express findings of fact by the trial judge supported of record by competent evidence and uncontroverted facts established in the record.

      . Pauza as an individual had limited his operation to interior carpentry, a category calling for a premium cost of $2.65 per $100.00 of payroll. His estimated payroll was $10,000.00 annually. The partnership’s broadened operation added a category calling for a premium cost of $3.07 per $100.00 of payroll. The partnership’s estimated payroll was $60,000.00 annually.

      . Penn. National one of the appellees, has cited Felice v. Felice, 112 A. 2d 581 (Superior Ct. N. J. App. Div. 1955) as reflecting a contrary view. It is true that the Court in Felice declared at 583:
      “For purposes of workmen’s compensation an employee of a partnership cannot be said to be an employee of an individual member thereof. Each partner has the authority to engage employees in the ordinary course of business and to bind the firm in so doing. State Compensation Insurance Fund v. Industrial Accident Commission, 28 Cal.App.2d 474, 82 P.2d 732 (D.Ct.App. 1938); 40 Am.Jur., Partnership, § 161, p. 243. Such persons are employees of the entity and not of the individuals who form it.”
      The Supreme Court of New Jersey, however, in Mazzuchelli v. Silberberg, 148 A. 2d 8, declaring the quoted language to be unnecessary to the decision in Felice, cited Weir with approval.

      . The opinion’s characterization of the “general rule” appears overstated. It is true that the C.J.S. citation declares, “A policy of workmen’s compensation insurance insuring an individual member of a partnership covers an injury to an employee of the partnership.” The eases cited to support the text were as follows: Cal. — Reed v. Industrial Accident Commission, 73 P. 2d 1212, 10 Cal. 2d 191, 114 A.L.R. 720 — Zimmerman v. Industrial Accident Commission, 6 P. 2d 291, 119 Cal. App. 253. N.Y. — Greenstein v. Kastonowitz, 24 N.Y.S.2d 792, 261 App. Div. 858, appeal denied 26 N.Y.S.2d 608, 261 App. Div. 1011. The pertinency of two of those cases has been discussed supra. Zimmerman is authority for nothing more than that a policy issued to one individual although according no protection to a person subsequently becoming his partner, does accord protection to the named assured “who continued in the operation of the business under the same trade name."

      It is also true that the Am.Jur. citation declares:
      “A workmen’s compensation insurer has been held liable on a policy issued to an individual employer who afterward formed a partnership with another, for the amount of an award of workmen’s compensation to an injured employee of the partnership, upon the theory that, a partnership not being an entity, an employee of a partnership is an employee of each individual partner.”
      That text is supported only by Reed, supra.

      The case of Brollier v. Van Alstine, cited by the Mississippi Court, was rejected by the Supreme Court of Missouri in Crall v. Hockman, 460 S.W.2d 668 (1970) as discussed infra.

      . The decision in Crall v. Hochman, supra, N. 7, also rejected the prior decision in Blew v. Conner, 328 S.W.2d 626 (1959).

      . 328 S.W.2d 626. The dissenting opinion had declared, inter alia, (p. 632):
      “Section 287.030 of our Workmen’s Compensation Law provides that the word ‘employer’ is construed to mean: ‘Every person, partnership, association, corporation, trustee, receiver, * * * using the service of another for pay; * * *.’ It seems obvious that our act appears thus to recognize a partnership, as distinguished from its constituent members, as an employing entity. And it thus seems inappropriate to consider our present question as one depending upon the individual liability of a partner for partnership obligations; the mere existence of a severable liability for partnership debts is not determinative here. All liability under the Compensation Act arises by virtue of specific contract relationship between an employer and an employee; it is difficult to see how each individual partner may properly be considered as an employer in his sole capacity when the real employment contract is with the partnership; and this is true regardless of any ultimate individual liability. ’’(Italics supplied.)

      . § 21 (a) (1) provides, inter alia\ “(a) Coverage of Employers. — The following shall constitute employers subject to the provisions of this act: (1) Every person that has in this State one or more employees subject to the act.” None of the exemptions contained in the section are applicable here.


source: Caselaw Access Project

author: Sweeney, J.,

license: Public Domain

text:
    JOHNNY L. HOLLOWAY v. STATE OF MARYLAND
    [No. 683,
    September Term, 1974.]

      Decided May 29, 1975.

      The cause was argued before Thompson and Lowe, JJ., and Robert F. Sweeney, Chief Judge of the District Court of Maryland, specially assigned.

      Alfred J. O’Ferrall, III, Deputy Public Defender, and Victoria A. Salner, Assigned Public Defender, with whom were Alan H. Murrell, Public Defender, and Arnold M. Zerwitz, Assistant Public Defender, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Joseph Murphy, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Sweeney, J.,

delivered the opinion of the Court.

The Appellant, Johnny L. Holloway, was convicted in the Criminal Court of Baltimore by a jury presided over by Judge Paul A. Dorf of unlawful possession of narcotics. He was sentenced to two years imprisonment under the jurisdiction of the Department of Correction.

The prosecution and conviction of Holloway grew out of a lengthy investigation into the theft of a large quantity of heroin from the property room of the Baltimore City Police Department. At the time of his indictment and arrest, Holloway was a member of the Baltimore City Police Department, and during the year 1972 he was assigned to the Special Tactical Operations Patrol (STOP), a unit which included illegal traffic in narcotics in its area of responsibility.

On February 24, 1972, Holloway and one or more other members of his unit made several narcotics arrests during the course of which they seized substantial quantities of heroin. According to normal departmental procedures, this contraband was stored in the Police Department property room pending the trial of the arrested persons. At some time during the period between February 24, 1972 and January 11, 1973, a large quantity of the heroin was found to be missing from the property room.

Holloway was charged in a multi-count indictment with unlawful possession of narcotics and larceny of the heroin, and was brought to trial on March 18, 1973. He was found guilty of unlawful possession, the jury being unable to reach a verdict on the other counts.

Holloway now attacks his conviction on four grounds, two of which can be dealt with summarily. The evidence revealed that the narcotics in question were seized by Holloway and other officers incident to the arrest of three individuals, Donald McNeal, Robert Crawley, and Louis Jefferson. Two separate seizures were made, but all of the heroin appears to have been contained in small glassine bags and all of it was taken to the “tactical station” where it was field tested, examined, initialed, and counted by each individual bag. The State introduced two laboratory analysis reports signed by Holloway as the reporting and/or arresting officer. These reports, State’s Exhibits 4 and 5, indicated that 1248 bags of heroin were seized in the arrest of McNeal and Crawley and 5389 bags were seized in the arrest of Jefferson.

At trial, Holloway’s counsel made repeated attacks on the accuracy of the count of the seized heroin at the time it was received into the property room, in an attempt to show that the count was erroneous, and that the State, therefore, could not prove that any of the substance had been stolen from the property room.

To testify about the manner in which the count was conducted, the State produced John Lewis, a detective assigned to the STOP squad, who had participated in the arrests of Crawley, McNeal, and Jefferson. Lewis testified that he had assisted in counting the seized drugs and that he had personally counted all 1248 bags seized in the McNeal and Crawley arrests. He testified further that he had participated in the counting of the bags seized in the Jefferson arrest and that he was present throughout the entire counting process and when the final tally was made. During Lewis’ testimony, he was permitted to refer to State’s Exhibits 4 and 5, in order to refresh his recollection. The Appellant urges that it was improper for him to have been permitted to do this, as he was not the police department official who had actually prepared those documents.

We find no merit in this contention. It is clear that Lewis was present throughout the entire counting process and was present when the final tally was made. His testimony was not hearsay, but proceeded from his own personal knowledge, and was clearly admissible. His reference to the State’s exhibits in order to refresh his recollection did not taint his testimony.

Appellant next attacks the refusal of the trial judge to permit him to cross-examine Detective Roger Nolan, another State’s witness, on alleged inconsistencies between his testimony at the Holloway trial and his prior testimony in the United States District Court for the District of Maryland, at the trial of Robert Crawley, one of the persons arrested in the raids on February 24th. Nolan was also among the officers who participated in the heroin count on February 24th and he testified at considerable length at the Holloway trial about the manner in which that count was conducted. On cross-examination, Nolan admitted that he had told another police officer that . . the easiest thing for [him] to believe [was that] there had been a miscount on February 24, 1972, that is why there is a shortage.” Appellant’s counsel then sought to cross-examine him further concerning testimony he had given in the federal trial of Crawley. The trial judge refused to permit cross-examination on this topic. The record discloses that at a bench conference, Appellant’s counsel read the portions of Nolan’s testimony in the federal proceedings about which he wanted to interrogate Nolan. That excerpt of testimony revealed that Nolan had, in that trial, cast doubts on the accuracy of the heroin count of February 24, 1972. Therefore, his testimony in the federal proceeding was consistent with and not contradictory to his testimony at the Holloway trial, and we can find no abuse of discretion on the part of the trial judge in refusing Appellant’s counsel the right to pursue the matter; nor do we find any prejudice resulting to the Appellant from that refusal.

We also find that the trial judge did not err in refusing to allow Holloway’s counsel to cross-examine Nolan as to any changes made in police department procedures for handling narcotic substances subsequent to the time when the shortage in question was discovered. Judge Dorf, in our view, correctly ruled that any departmental procedures occurring after Holloway’s arrest were not relevant to the matter before him.

Holloway’s other contentions, however, present us with questions of a much more difficult nature. He alleges that the trial court erred in admitting into evidence two oral statements and one written statement allegedly made by him to his superiors during his interrogation about the missing heroin. That error was so prejudicial, he states, that his conviction cannot be permitted to stand.

Prior to the trial on the merits, a hearing was held out of the presence of the jury on the Appellant’s motion to suppress the three statements. The motion was denied and the statements were subsequently introduced at the trial.

It appears that during the course of the investigation into the missing heroin, departmental officials found that Holloway’s signature was contained in the property room log under date of November 27, 1972, indicating that he had removed the seized heroin from the property room on that date. In the first of the three statements in question, Holloway denied that he had ever been in possession of any of the heroin since it was seized and placed in the property room on February 24, 1972. That statement was given orally by Holloway to Lt. Leon N. Tomlin, the officer in charge of the investigation, on January 12, 1973. The next day, January 13th, Holloway gave a second oral statement to Lt. Tomlin. In this statement, he admitted that the signature on the log was his, and admitted that he had removed the drugs from the property room, but claimed that he had merely taken the drugs to his automobile, counted them, and returned them intact on the same day. In his third statement, made in writing on a Police Department form on January 14th, he again admitted having signed the log and removing the drugs, and again claimed to have returned all of the heroin to the property room.

These three statements, of course, do not amount to an admission of guilt, but the second and third statements are in such flat contradiction to the first statement that we believe it safe to assume that they were given great weight by the jury as reflecting on Holloway’s credibility. At the very least, the statements were sufficient to prove to the jury that Holloway had had the contraband in his possession and had had the opportunity to appropriate some portion of the narcotics to his own use and purposes. If the contradictory statements of Holloway were improperly admitted into evidence, it is clear that he was severely prejudiced thereby, and we would reverse his conviction.

In the pre-trial hearing on the Motion to Suppress, Holloway attacked the admissibility of all three statements, claiming (1) that he had not been given his Miranda rights, and (2) that even if he had been given his Miranda rights, his statements were inadmissible as having been coerced, because of a Police Department policy stipulating that if a member of the department refused to give a statement to a superior officer when ordered or requested to do so, he would face disciplinary action and possible termination of his employment. The very existence of such a policy, Holloway asserted, amounted to coercion. Judge Dorf denied the Appellant’s motion, and we believe that it was erroneous for him to have done so, although we believe he correctly found from all of the evidence that Holloway had been given his Miranda rights prior to any interrogation and several times subsequent thereto. There was ample testimony from Lt. Tomlin and other Police Department officials to that effect, and Judge Dorf was entitled to believe that testimony and to disbelieve Holloway’s testimony that he had not been advised of those rights.

His error, in our view, lay in refusing to find that the statements were involuntary as a matter of law, because of the existence of a departmental policy of disciplining those who refused to give such statements. The Appellant correctly urges that this situation is controlled by the decision of the Supreme Court in Garrity v. New Jersey, 385 U. S. 493, 17 L.Ed.2d 562, 87 S. Ct. 616, in which case there was a set of facts strikingly similar to those now at hand. The Attorney General of New Jersey was directed by the Supreme Court of that state to investigate alleged irregularities in the handling of traffic tickets, and in the course that investigation the Attorney General sought to interrogate police officers in certain New Jersey boroughs. Before the interrogation, each officer was warned that anything he said might be used against him in a criminal proceeding, and that he had the privilege of refusing to answer, if his response would tend to incriminate him. Each officer was also advised that if he did refuse to answer, he would be subject to removal from office under the provisions of a New Jersey statute which provided that any public employee refusing to answer questions in a criminal investigation into his conduct would forfeit his employment and be forever thereafter debarred from public employment. The New Jersey officers answered the questions and some of them were subsequently convicted at trials at which their statements were admitted into evidence. On appeal, they claimed that those statements were coerced by the effects of the forfeiture statute. The New Jersey Supreme Court affirmed the convictions, holding that the statements were voluntary; but the Supreme Court granted certiorari and reversed the convictions, holding that the threat of removal from public office for insisting on the privilege agamst self-incrimination rendered the resulting statements involuntary and, therefore, inadmissible.

In the instant case, the State urged before Judge Dorf and urges before us that Garrity is inapplicable, as there is no Maryland forfeiture statute comparable to that then in effect in New Jersey. We are not persuaded by that argument, as Lt. Tomlin, the State’s witness, testified candidly that there was a written Police Department policy to that same effect. Whether the policy be statutory or by regulation the result would be the same under Garrity, for the effect upon the officer would most surely be the same. If, therefore, the question of the admissibility of Holloway’s three statements were properly before us, we would find Garrity applicable to them, would hold them inadmissible, and would reverse the conviction. But for the reasons which follow, we do not find the question properly before us.

Notwithstanding his vigorous objections to the admission of the statements at the pre-trial hearing, Holloway did not object at trial when the first two of those statements were offered into evidence. A close reading of the record clearly reveals that the only objection made by Holloway to the admission of any of his statements came when the State sought to have Lt. Tomlin produce Holloway’s written statement of January 14, 1973. The refusal of the trial judge to sustain that objection was erroneous under Garrity, but that error was rendered harmless to the Appellant by virtue of the fact that the contents of that written statement were identical to the contents of his oral statement of January 13th, about which Lt. Tomlin had just testified without objection.

Each of the Appellant’s three statements was brief, and because of their importance in this case, we think it appropriate to set out in full Lt. Tomlin’s testimony concerning each of them. As to the first statement, Lt. Tomlin testified that on January 12th he had the following colloquy with Holloway:

“A Question: Was the evidence ever put together for photographing? Answer: The bundles were put together for photographing of. the complete seizure. Question: Did you remove the evidence from the evidence control unit on 27 November, 1972? Answer: No. Question: Did you have possession of the drugs on either the 10th or 11th of January, 1973? Answer: I didn’t touch them at all. Question: Have you heard information to the effect that Uncle Bernie Miller was to substitute quinine for heroin in this case?
MR. W. MURPHY: Objection to any hearsay that is a part of the statement. I think what Mr. Holloway answered in terms of relevant portions of this case, yes, but hearsay evidence, no.
THE COURT: I will overrule the objection as far as the statement.
THE WITNESS: Answer: Yes. I read a 95 written by Sergeant Gillespie but I am not sure.
MR. J. MURPHY:
Q Were there any other questions and answers at that particular time?
A. Yes.
Q. All right. What were they?
A. Question: Did you accompany Sergeant Gillispie to the property room about two or three weeks ago when he examined the evidence in these cases? Answer: No. Question: On Wednesday, 10 of January, 1973, where were the drugs during the lunch period? Answer: In the State’s Attorney’s office safe. Question: Did you know any of the jail guards in the court? Answer: Only by their faces”.

No objection was made to the introduction of this statement per se, the only objection being to an unimportant portion of that statement on the ground that it was hearsay, which objection was properly overruled by the trial judge.

Lt. Tomlin’s testimony about the second oral statement of Holloway was as follows:

“Q What were the questions then and what were the answers at this particular time?
A Question: Were you present on the McNeal arrest? Answer: Yes, sir. Question: Did you count the drugs seized on the McNeal arrest? Answer: I counted some, not all. Question: Was the evidence sealed from the McNeal arrest during the investigation and the raid on Hilton Street? Answer: I don’t know, I don’t think so. Question: Were you present on the Hilton Street raid? Answer: Yes. Question: Did you participate in the counting of this evidence? Answer: I don’t remember, I think I counted some of it. Question: Did you field test any of the evidence? Answer: Yes, one bag mentioned for the warrant. Question: Both seizures of evidence ever displayed together? Answer: I don’t know. I know two packs from the Hilton Street case were together. Question: Do you recall anyone from the crime lab responding to the tactical division? Answer: I remember the photographer but I don’t recall any pictures. Question: Who delivered the evidence to the chemist? Answer: I took it to the chemist. Question: Did you take the evidence out of the evidence control room on 27 November, 1972? Answer: I picked it up. And I picked it up to make sure it had not been tampered with. Question: Where did you take it? Answer: Out to my car. Question: What did you do with it? Answer: I brought it back in when I saw it hadn’t been opened. Question: With whom did you meet with the evidence when you heard it was tampered with? Answer: By myself, only to the car. Question: Did you go to the doctor on 12 January, 1973?
MR. W. MURPHY: Objection, Your Honor. This part of it is irrelevant in the case.
MR. J. MURPHY: I think we can tie up the relevancy.
THE COURT: I don’t know whether it is. You say it’s relevant. I’ll let it in subject to you proving it is relevant.
MR. J. MURPHY: Thank you.
A ‘Question: Did you go to the doctor on 12 January, 1973? Answer: No, I was going to the dentist to get my teeth cleaned. Question: Did you have an appointment? Answer: No. Question: What is the name of your dentist? Answer: I don’t know, his office is in the Alameda Shopping Center. Question: When you picked up the evidence on 27 November, 1972, what did you do with it? Answer: I counted the 29 bags but I did not open the other two.’
Q. Were there any further questions and answers at that particular time?
A. No.
Q With reference to the question that you asked dealing with the doctor’s appointment, why did you ask that particular question?
MR. W. MURPHY: Objection.
THE COURT: I’ll sustain the objection at this time”.

It is obvious that the objection of Appellant’s counsel was not to the introduction of all or the major part of the testimony concerning this statement, but only to the portion dealing with his visit to a doctor on January 12, 1973. Judge Dorf sustained that objection. There was no follow-up to it at that time and it does not change our view that Holloway waived objection to the introduction of both of these statements by not making his objection known before the jury.

The introduction into evidence of a statement obtained in violation of a defendant’s constitutional rights is obviously a matter of grave importance, but the law is well settled that the issue must have been raised in the trial court in order to have it considered on appeal. Even a constitutional right may be waived and such a waiver occurred in this case when Appellant failed to object to Lt. Tomlin’s testimony concerning his first two statements. We have repeatedly held that even though the trial court determines preliminarily that a statement is admissible, objection must be made when it is offered before the jury in order to preserve the question of its admissibility on appeal. Md. Rules 1085 and 522 d 2. Ragler v. State, 18 Md. App. 671, 308 A. 2d 401 (1973); Davidson v. State, 18 Md. App. 61, 305 A. 2d 474 (1973); Smith v. State, 16 Md. App. 317, 295 A. 2d 802 (1972); Jones v. State, 9 Md. App. 455, 265 A. 2d 271 (1970); Hall v. State, 6 Md. App. 356, 251 A. 2d 219 (1969).

Lt. Tomlin’s testimony concerning Holloway’s third statement, the written one of January 14th, was as follows:

Q. Examining the exhibit can you tell the ladies and gentlemen of the jury what the statement said with reference to the removal of the drugs from the property room on November 27th, 1972?
A. Yes, I’ll have to find it. The first initial part led up to it. It’s titled —
Q Read the document and make sure it’s loud enough.
A It’s titled to me, Lt. Leon Tomlin, 14 January, 1973. I respectfully report that I received information from Dixon on Friday, the week-end after Thanksgiving that I should watch myself. Dixon stated that he thinks my buddy was making a deal with the drugs that I had recovered from the raid we had up on Hilton Street. Dixon stated that Joe Perry had asked him to loan him $8,000, that he had a thing and he would give it back in two or three months. He further stated Joe was bragging about he was going to order him a superfly Cad, period. So we both agree that he must be making some type of deal because at the time he was begging people to feed him every day. Dixon stated that Joe Perry and my buddy was talking a lot at the Lorman house the other night, meaning some time before that night, Dixon and I was very good friends that way. When he told me that I believed a deal was being made. On either Monday the 27th of November, 1972 I went to the crime control unit to get the evidence out and check it. I took the evidence out to my car, parked over by the Central District where I counted it by the bag. I don’t recall the exact number but it was more than 5,000 bags. After counting the drugs I went into the Central District, got a stapler, sealed the package and took a piece of string and tied it around the drugs so I would know if anyone tampered with the package before Bobby Crawley case came up.”

Objections were properly and timely made to Lt. Tomlin’s testimony about this statement of the Appellant, and, as we have noted earlier, we think that the trial judge erred in admitting it into evidence. This statement, however, contained nothing prejudicial to Holloway that was not contained in the second statement, which was admitted without objection. Indeed, the third statement contained matter that was exculpatory to Holloway, as it contains some more detailed reasons for his actions in removing the heroin from the property room on November 27, 1972. We can find no way in which Holloway was damaged by the trial judge’s refusal to exclude the third statement from evidence, for the exclusion of that statement would not have freed him from the entanglements of the contradictions so apparent from the comparison of his first and second statements. The error was harmless error, insufficient to lead us to reverse the conviction.

We recognize that error in admitting into evidence a statement involuntarily made or coerced is an error of constitutional dimension, and before such an error can be declared harmless, we must satisfy ourselves that it was so beyond a reasonable doubt. In Harrington v. California, 395 U. S. 250, 23 L.Ed.2d 284, 89 S. Ct. 1726 (1969), citing Chapman v. California, 386 U. S. 18, 17 L.Ed.2d 705, 87 S. Ct. 824 (1967), the Supreme Court said that “. . . although ‘there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error’ not all ‘trial errors which violate the Constitution automatically call for reversal.’ ”

The Court went on to say that whether the error was harmless beyond a reasonable doubt is to be based on an independent reading of the record and what seems to have been the probable impact of the tainted evidence on the minds of an average jury. In Younie v. State, 272 Md. 233, 246, 322 A. 2d 211 (1974), the Court of Appeals, in reversing a conviction where evidence was introduced showing the defendant refused to answer questions, said:

“What is of importance, from an examination of the cases which discuss harmless error, is the realization that if the error goes to a substantial constitutional right (e.g. right to counsel — sixth amendment, right not to self-incriminate — fifth amendment) then unless the State can prove beyond a reasonable doubt, as the prosecution did in Milton v. Wainwright, 407 U. S. 371, 92 S. Ct. 2174, 22 L.Ed.2d 1 (1972) (where an invalid confession accompanied three valid ones and other substantial evidence of guilt), that a tainted confession in no way influenced the verdict such that the defendant would undoubtedly have been found guilty even if that evidence had been received, its employment will always be error. Conversely, if the State can show beyond a reasonable doubt that the violation was technical in nature, as well as that the erroneously admitted evidence was merely cumulative, and that there was other overwhelming and largely uncontroverted evidence properly before the trier of fact, then the error would be harmless. Brown v. United States, 411 U. S. 223, 93 S. Ct. 1565, 36 L.Ed.2d 142 (1973) (concerned with a Bruton violation). See also annotation to Schneble v. Florida, supra, contained in 31 L.Ed.2d 921.”

The oral statements of Holloway were admitted into evidence because no objection to them was made when offered, and we are also satisfied beyond a reasonable doubt that the erroneous admission of the third statement was harmless to Holloway, that statement being merely cumulative to the statements previously admitted.

We believe from our review of the entire record that there was more than sufficient evidence properly presented to the jury on which they could base their verdict of guilty of illegal possession of narcotics. A police officer is not entitled to possess illegal drugs except when such possession occurs in the performance of his official duties. Holloway had no authority to remove the drugs in question from the property room on November 27, 1972, and, in fact, in his first statement to Lt. Tomlin he lied and denied having done so. Although in his second statement the Appellant denied ever having appropriated any of the heroin to his own use, the jury was entitled to believe from his statements and from the contradictions contained therein that he had removed those drugs with criminal intent; and they were doubtless further persuaded towards that verdict by the State’s additional evidence that on November 28, 1972, within hours after having checked the drugs out of the property room, Holloway made substantial payments on his accounts at the Equitable Trust Company, Colonial Credit Company, Union Trust Company, Levenson & Klein Company, and Montgomery Ward. In Robinson v. State, 18 Md. App. 678, 700, 316 A. 2d 268 (1973), we said:

“The test of the sufficiency of the evidence in a jury trial is whether the evidence, if believed, either shows directly or supports a rational inference of facts to be proved from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.”

and, in Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331 (1970):

“[T]hat the test for sufficiency is the same whether the evidence be direct, circumstantial, or provided by rational inferences therefrom.”

We believe that there was more than a sufficiency of the evidence, direct, circumstantial, or inferential on which the jury could pass its verdict of guilty of the unlawful possession of narcotics.

Judgment affirmed.


text:
    JOHN WILLIAM BETHEA v. STATE OF MARYLAND
    [No. 691,
    September Term, 1974.]

      Decided May 29, 1975.

    The cause was argued before Moylan, Menchine and Davidson, JJ.

      Edward J. Angeletti and George E. Bums, Assistant Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Joseph Lyons, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

On May 9, 1974 John William Bethea came to trial in the Criminal Court of Baltimore charged with armed robbery and related offenses allegedly committed on August 18, 1973. He previously had been acquitted of entirely unrelated offenses allegedly committed on the same date.

At the earlier, unrelated trial of the appellant for those other offenses, certain records of the American Ice Company had been admitted in evidence and two of its employees, a Mr. Williams and a Mr. Phillips, had testified. It is plain from the record that those records and the testimony of the witnesses had tended to support an alibi defense of the appellant on the same date as the subject charges and may have influenced acquittal. Edward J. Angeletti, assistant public defender, who had represented appellant at the earlier trial, was his counsel also in the subject trial.

On the morning of the scheduled date for trial, defense counsel sought postponement from the administrative judge upon the ground that the records of the American Ice Company were not available for the subject trial because “the man who had the keys to the room where the records were stored was in New Jersey.” The State opposed the requested postponement and it was denied. It developed subsequently, (but prior to commencement of trial) that although a Mr. Williams of the American Ice Company was able to make the records available, a Mr. Phillips of that company was confined in the Baltimore County General Hospital for operative procedures being performed on the morning of trial. It then was represented to the administrative judge that: “Mr. Phillips is in fact the most vital witness for the defendant in terms of the time and the meaning of the records that I previously referred to and without him the defendant will not get a fair trial under any circumstance.” The second requested postponement, again opposed by the State, again was denied. The trial went forward and resulted in conviction of the appellant for armed robbery and a handgun offense.

On appeal it is contended, inter alia, that refusal of the requested postponement was an abuse of judicial discretion by the administrative judge. Believing that it was and because remand for a new trial is thus necessary, we do not reach other contentions respecting alleged errors in the substantive trial.

This Court early made plain that a requested postponement of a criminal case upon the ground of the absence of an allegedly necessary witness should be granted only if:

1. It was made to appear that there was a reasonable expectation of securing the evidence of the witness within a reasonable time;
2. The proffered evidence was competent and material;
3. The case could not be fairly tried without the proffered evidence, and
4. The party seeking postponement had exercised reasonable diligence to secure the evidence prior to the date assigned for trial.

Hainesworth v. State, 9 Md: App. 31, 36, 262 A. 2d 328, 330; Nichols v. State, 6 Md. App. 644, 646, 252 A. 2d 499, 500; Clark v. States 6 Md. App. 91, 100, 250 A. 2d 317, 322.

We pointed out in Guarnera v. State, 20 Md. App. 562, 573, 318 A. 2d 243, 248, that legislative enactment of Article 27, § 591 (a) vested exclusive power to postpone the trial date of a criminal case in the administrative judge of the court, and that “even the power of the administrative judge to postpone is not entirely discretionary, but may be exercised only ‘for extraordinary cause shown by the moving party’ ”. Guamera, supra, also had declared (P. 574 [249]): “ * * * that it makes not the slightest difference whether a continuance requested is the fifth, the third, or the very first — the reasons for it must satisfy the administrative judge that they meet the test of extraordinary cause.” Maryland Rule 740 is couched in language identical with that of the statute. Thus the Legislature and the Court of Appeals of Maryland severally have mandated that “extraordinary cause” must be shown by the party moving for a postponement. Moreover, we are acutely aware of the necessity for expeditious trials of criminal cases generally and in Baltimore City in particular and mindful that both statute and rule mandate a most careful scrutiny of the facts and circumstances giving rise to a requested postponement.

Although the statute and the rule became effective subsequent to our decisions in Hainesworth, Nichols and Clark, all supra, we believe that the criteria heretofore recited, as synthesized from those decisions, remain viable as guides to the determination whether “extraordinary cause” has been shown. Of necessity this judgment must be made on a case to case basis. We shall examine the record in the light of the mandates imposed upon us by statute and rule, utilizing the recited criteria.

Reasonable Expectations of Later Availability of Witness

That the absent witness had undergone operative procedures on the morning of trial is a conceded fact. The moving party made the following proffer:

“* * * The indications from the receptionist at the hospital was that Mr. Phillips would probably be released on Saturday or at the latest Monday.
“His wife was under the impression he would be there four days. The receptionist said possibly only until Saturday. It’s obvious that he’s not going to be able to appear here for this trial. * * * Having undergone that procedure myself I’m aware of the recuperative periods that are required before full mobility and action can be resumed. The reason for it is that the nose becomes a mass of bleeding tissue and is completely packed after rhinoplasty and takes several weeks before the danger of hemorrhaging in that area passes.”

There was no evidence to the contrary.

Competence and Materiality of the Evidence

The witness Phillips had in fact testified in the earlier, unrelated trial. The defense of alibi on the same date had been asserted therein. That trial resulted in acquittal. The proffered evidence clearly was competent and material. The trier of fact necessarily would be required to evaluate the testimony of Phillips in reaching a decision upon the criminal agency of the accused for the subject offenses. In short, his testimony might influence their decision upon the basic question of guilt or innocence.

The Evidence as Necessary to a Fair Trial

The moving party proffered that:

“* * * I stand here and on the record I object to going to trial without having Mr. Phillips available to testify. That Mr. Phillips is in fact the most vital witness for the defendant in terms of the time and the meaning of the records that I previously referred to and without him the defendant will not get a fair trial under any circumstances.”

After acknowledging that the State’s case was “weak” the prosecutor said:

“The State opposed this post-ponement as it would oppose all other post-ponements where it was ready to proceed and where it did not believe that there would be reversible error.
“Mr. Phillips the witness who is needed by the defense or who is requested by the defense testified in the first trial. That trial proceeded in the same manner with Mr. Williams from the Ice Company testifying with all records available to him. Mr. Williams was cross examined fully. Mr. Phillips then testified obviously on direct examination and again was cross examined fully.
“Mr. Phillips’ testimony at that time was very limited. It consisted primarily from my notes of the following: That he was employed by the American Ice Company. He was a platform cashier. The company was located at 2100 W. Franklin Street. On August the 18th, 1973 the Ice Company opened at approximately 6:15 and that he started to work at 7:00. He then discussed the number code for the various tickets that were sold. He then talked about a man named Mr. Starkey (phonetically) who was a dealer and lots of times would come in at a specific hour. He could not recall Mr. Starkey coming in that time, could not recall Mr. Bethea coming in on the particular day, but could state that he had bought ice in the past on quite a few occasions. He could not recall the time Mr. Starkey came in but indicated Mr. Starkey would be able to recall the time he came in.
“That was the extent of his testimony. He was very minimally cross examined because he did not contribute much either to the State’s case or the defense’s case. It is the State’s position at this time because of his prior testimony, it was not essential at that time to the defense and because the State is willing to stipulate to what the testimony was and is willing to have the entire transcript of Mr. Phillips’ testimony brought in that the case should not be delayed for that reason.”

Responding to the State’s offer, counsel for appellant said:

“* * * Phillips did not testify immediately after Mr. Williams did in the last trial in point of time. That’s important because Mr. Williams had all of the records from the ice company. Mr. Phillips did not have those records available to him when he testified. Mr. Phillips said if he had those records available he would be able to tell us very closely the approximate times that the slips were signed and that the ice was purchased by the person that those slips would indicate purchase the ice at the time they purchased them. That evidence was not available at the last trial because Mr. Williams had those slips and took them back with him to the ice house or the ice company.
“Mr. Phillips would need those slips available to testify as to their meaning and time. He’s not available not now. That’s the reason I cannot accept the stipulation of his prior testimony because his testimony in this case would be much more detailed. It would be specified as to the time of purchase which is vitally important in terms of when this incident occurred and whether or not the defendant was the perpetrator of this incident.”

Conceding that he had opposed both requests for postponement, the prosecutor suggested that he would be willing to return to the administrative judge, declaring for the record that:

“Finally as far as the post-ponement requests were concerned, although the State did reject or say that it wished to proceed to trial in Judge Foster’s chambers, when I came to the Courtroom Part IV I again discussed the case with Mr. Angeletti and said that administratively that criminal justice was important and if this would cause any feelings between us that we were not or Mr. Angeletti was not being treated fairly by the State in this case as opposed to a general opposition to any post-ponements that the State would join in his request for post-ponement. The State went as far as to say they would seek a post-ponement and go to see Judge Foster and say under all the circumstances for all the liabilities and detriments the State will join with Mr. Angeletti in a request for post-ponement. Mr. Angeletti at that time said no he did not wish that to be done and that he was ready to proceed to trial.”

Counsel for appellant thus responded:

“I made my position clear to Mr. Lyons [the prosecutor] that I had no objection to trying this case or going ahead with it if I had my witnesses available. I still say that to the Court if my witnesses are available I will try the case. As the Court is aware I don’t think I have post-poned more than five cases in the last year and a half. I probably have one of the heaviest case loads in Baltimore City. So the point I’m making is that I’m prepared to try 99% of my cases, and if unfortunately in this case Mr. Phillips went to the hospital I had no control over this, and I didn’t tell him to go to the hospital. I didn’t tell him to be absent himself from here today so that we could post-pone it.
“If Mr. Lyons wants to go by himself to the Chief Judge and say that under all the circumstances he will now agree to the post-ponement that’s his prerogative. We have been before the Chief Judge twice now. On each occasion he [the prosecutor] has opposed the request for post-ponement in a strong in as strong a way that he could. He even signed a statement on the back of the request form saying that he will accept the risks inherent in going to trial under the circumstances.
“If he wants to change that that’s his prerogative. I do not have any standing to tell him what he should or shouldn’t do. I only point out to the Court my own position that I cannot assure the defendant’s rights are protected without this witness being available, and if he wants to go to the Chief Judge again for the third time, he goes by himself. I will not go to the Chief Judge again.”

Diligence to Secure Evidence Prior to Trial

Counsel for appellant proffered that: he “had spoken to Mr. Phillips back in March and indicated to him that we would need him as a witness in this trial, and he indicated that he would be available. A phone call was made to Mr. Phillips’ home, and Mr. Phillips’ wife indicated to Mr. Segal my associate that Mr. Phillips was in the Baltimore County General Hospital being operated on today and that he would not be available obviously for trial.” Defense counsel conceded that he “assumed, perhaps wrongfully, * * * that Mr. Phillips had been served and was available for trial.”

Additional Circumstances

Acting upon the evidence as herein summarized, the administrative judge denied the requested postponement. He did so, however, only after the prosecutor had undertaken to “assume the risks attendant to going to trial without the witness being available.” Defense counsel described such course as having taken place in the following manner:

“On that basis [the evidence as previously summarized herein] I again went to Judge Foster and asked for a post-ponement, and Mr. Lyons then called the hospital to verify what I have just related to the Court, he was able to verify that information. Judge Foster then said to Mr. Lyons, will you assume the risks attendant to going to trial without the witness being available, and under these circumstances Mr. Lyons then and Judge Foster entered into a discussion as to the exact wording of what I have just said.”

The substantial accuracy of defense counsel’s statement was acknowledged by the prosecutor, who said:

“It was verified that he (Phillips) was in the hospital undergoing surgery and would be probably released on Saturday. We then returned to Judge Foster and Judge Foster saw a statement from the State that it was willing to accept the risk of going to trial. (Italics supplied.)

The Decision

Under the recited criteria synthesized from Hainesworth, Nichols and Clark, all supra, we are persuaded that the facts and circumstances existing at the time of the requested postponement were such that the moving party had demonstrated “extraordinary cause” for postponement within the meaning of those words in the statute and rule.

As to the offer by the State to permit the use of the prior testimony of the missing witness, we find defense counsel’s stated reasons for objection to such use of transcribed testimony to be entirely reasonable even if we assume, which we do not, that the circumstances shown by this record generally may have permitted the use thereof.

We do not find defense counsel’s refusal to return a third time to the administrative judge, when measured against the prosecutor’s manifest disinclination to return alone, to operate as a bar to assertion of the issue in this Court.

The additional circumstance relating to the State’s “assumption of risk” attendant upon going to trial without the witness buttresses our view. This circumstance seems to us to have created a condition whereby the opposing party, rather than the administrative judge, exercised discretion under the statute and rule. We do not wish to be understood as indicating in any way that the side opposing postponement may not fully advocate the strength of its position. We believe, however, that such advocacy should take the form of reasoned argument after presentation of facts and circumstances tending to show that the requested postponement should be denied. In the subject case the record distinctly indicates that the prosecutor was permitted, wrongfully we believe, to exercise the required discretion.

Judgment reversed.

Remanded for a new trial.

Costs to be paid by Mayor and City Council of Baltimore.

      . At the substantive trial the evidence of guilt was circumstantial in character. No witness, including the victim, was able to identify the appellant as the perpetrator of the offenses. There had been a misidentification by the victim at a lineup conducted two days after the incident.

      . Article 27, § 591 (a) (Cum. Supp. 1974) reads as follows:
      “Within two weeks after the arraignment of a person accused of a criminal offense, or within two weeks after the filing of an appearance of counsel or the appointment of counsel for an accused in any criminal matter, whichever shall occur first, a judge or other designated official of the Circuit Court or the Criminal Court of Baltimore City in which the matter is pending, shall set a date for the trial of the case, which date shall not be later than six months from the date of the arraignment of the person accused or the appearance or the appointment of counsel for the accused whichever occurs first. The date established for the trial of the matter shall not be postponed except for extraordinary cause shown by the moving party and only with the permission of the administrative judge of the court where the matter is pending.”

      . The record shows that summons for Phillips had been issued but was returned “non-est.”

      . See: Yellow Cab Co. v. Henderson, 183 Md. 546, 556, 39 A. 2d 546, 551-52; Contee v. State, 229 Md. 486, 491, 184 A. 2d 823, 825-26; Gaskins v. State, 10 Md. App. 666, 677, et seq., 272 A. 2d 413, 419-20; Annarina v. Boland, 136 Md. 365, 383, 111 A. 84, 90. We specifically do not reach the issue of admissibility generally.

      . While it was the prosecutor who was permitted to “assume the risk of reversal,” it was the accused alone who would be harmed by a failure of the administrative judge objectively to assess the factual base for a requested postponement.


text:
    HELEN M. VERZI v. GLENN J. GOLDBURN, Personal Representative of the Estate of Olga M. MacMillan
    [No. 693,
    September Term, 1974.]

      Decided May 29, 1975.

      The cause was argued before Thompson and Lowe, JJ., and Robert F. Sweeney, Chief Judge of the District Court of Maryland, specially assigned.

      Morton J. Frome, with whom were Katz & Frome, P.A. on the brief, for appellant.

      A. J. D. Schmidt for appellee.
   Sweeney, J.,

delivered the opinion of the Court.

In this case we are concerned with a dispute over certain monies contained in two joint tenancy bank accounts in the Riggs National Bank of Washington, D. C.

On March 15, 1965, Olga M. MacMillan and her daughter, Helen M. Verzi, the Appellant herein, opened a joint checking account at the Riggs National Bank and a week later, on March 22nd, they opened a joint savings account at that same institution. In each case both women signed an agreement provided by the bank which stated that “all sums now on deposit or hereafter deposited in our account with the said bank, shall be owned by us jointly with the right of survivorship and not as tenants in common.”

Mrs. MacMillan died on May 1, 1972. After her death, her personal representative, Glenn J. Goldburn, filed a petition to have the funds in the two joint accounts declared part of the decedent’s estate. Mrs. Verzi resisted that petition, claiming the money as her own, and in due course the matter came on before the Circuit Court for Montgomery County, sitting as a court of equity, with the Honorable Plummer M. Shearin presiding. Judge Shearin found in favor of the personal representative, and from that judgment Mrs. Verzi has taken this appeal.

Because the accounts were opened in a banking institution located in the District of Columbia, all parties in interest agree that the question of the ownership of the disputed funds must be decided according to the substantive law of the District of Columbia.

In addition to the Appellant, the decedent was survived by a son, John MacMillan, and those siblings were Mrs. MacMillan’s only heirs. It appears that Mrs. MacMillan was the owner of a substantial apartment complex and was actively engaged in the management of that business, with some assistance from her son. At some time prior to the day on which the first of these accounts was opened, Mrs. MacMillan had suffered a heart attack and evidently became apprehensive about her continuing ability to manage her business enterprise. It is undisputed that one of the reasons which led her to open the joint accounts was her desire to have her daughter assist her in the management of her business properties.

With the passage of time, Mrs. MacMillan became increasingly ill, and at some time in the year 1970 she abandoned her own residence in Montgomery County and went to live with the Appellant in a residence purchased specifically for that purpose, and towards the purchase price of which Mrs. MacMillan made a contribution in excess of $15,000.00. At least some of the balance of the purchase price was financed by two deeds of trust, and there is evidence in the record that monthly payments on one of the trust accounts were made by Mrs. MacMillan. The record also clearly shows that at no time during the period from which the accounts were opened until Mrs. MacMillan’s death did Mrs. Verzi draw on the funds in either account for her own purposes, although there were numerous occasions on which she signed checks in connection with her mother’s business enterprises, or for payment of nursing or other personal expenses for her mother.

For several years immediately prior to her death, the decedent, having suffered a stroke, was in need of intensive nursing care. For some period of time after her stroke, she was served by nurses on a 24 hour a day basis, but eventually the nursing duties were performed by one nurse, who worked 32 hours a week during the daytime hours, with Mrs. Verzi supplying such other nursing care as might be required at all other times. It is conceded that Mrs. Verzi received no compensation from her mother, either for assistance to Mrs. MacMillan in conducting her business affairs, or for her nursing services, with the exception of the trust payments to which reference is made hereinabove.

It is the position of the Appellee, the personal representative, that the accounts at Riggs were opened by the decedent for her own convenience, and that they were never intended by her to be for the benefit of the Appellant. Mrs. Verzi, on the other hand, contends that her mother, with full knowledge of the consequences, opened the accounts with the intention that any balance in them at the time of her death be paid over to and become the property of Mrs. Verzi.

The Appellee, in support of his position, offers very little evidence. The Appellant, in support of her claim to the monies, presents a far more compelling case and we believe that under the facts of this case and under what we deem to be the controlling law, the court below erred in finding for the Appellee. Although it is, of course,true that the law of the place of deposit should control, Imirie v. Imirie, 246 F. 2d 652 (D.C. Cir. 1957); Seng v. Corns, 58 So. 2d 686 (Fla. 1952); Barstow v. Tetlow, 97 A. 829 (Me. 1916); In re Damato, 206 A. 2d 171 (N.J. Super. Ct., App. Div. 1965); Wyatt v. Fulrath, 239 N.Y.S.2d 486 (Sup. Ct. 1963); see Annot. 25 A.L.R.2d 1240 (1952) and 10 Am.Jur.2d Banks [Sec.] 376 (1963), it is our duty to interpret the laws of the District of Columbia in this case in the same manner as that law has been interpreted by the Court of Appeals of Maryland. In Tyler v. Suburban Trust Co., 247 Md. 461, 231 A. 2d 678 (1967), the Court of Appeals construed the law of the District of Columbia in a case of great similarity and said, at 470:

“[I]n applying the law of the District of Columbia .... we believe that the core of the matter with regard to joint accounts with right of survivorship is whether sufficient evidence exists to prove the intent on the part of the donor of the joint bank account to establish survivorship to the account in the donee. Horowitz v. Fainberg, 374 F. 2d 336 (D.C. Cir. 1967); Donoughe v. Morgan, 298 F. 2d 329 (D.C. Cir. 1962); Imirie v. Imirie, supra; Matthew v. Moncrief, 135 F. 2d 645 (D.C. Cir. 1943).
“If the intention of the donor of the joint account to create the right of survivorship is clear, it is our belief that the courts of the District of Columbia will effect the implementation of such an intent, unless by so doing a violation of public policy results.”

and again at 472, the Court said:

“[I]n the cases of Horowitz v. Fainberg, supra, and Donoughe v. Morgan, supra, there was no effort made to correct the impression that the intent to create the survivorship is the important factor in such cases, and indeed if anything, we must assume that Horowitz and Donoughe hold that where the facts show that the joint and survivorship account expressly provides for survivorship, that this intent will prevail unless evidence to the contra,ry is produced. ” (Emphasis supplied).

In the instant case, as in Tyler, there is no evidence of fraud or coercion. The accounts in question were opened more than seven years before the death of the decedent, and there is no evidence that the accounts were established either to thwart the laws governing testamentary dispositions or to circumvent creditors; nor was there any other indication of an actual or intended violation of public policy.

In the case at hand, again as in Tyler, the document signed by the decedent when opening the accounts clearly and unequivocally stated that the monies then and thereafter contained in those accounts became the joint property of both persons named on the accounts, with the right of survivorship in the remaining party on the death of one party. The Appellant testified at the hearing before Judge Shearin as to the surrounding circumstances at the time and place the accounts were opened, and her testimony that the account cards were signed in the presence of officers of the bank and “they explained to her at that time about the right of survivorship, if she or I predeceased each other what would become of the accounts” was in no way contradicted.

It was the Appellant’s further testimony that the decedent told her four or five years after the accounts were opened that the money accruing to Appellant from these accounts on decedent’s death would be sufficient to pay off the first mortgage or trust on Appellant’s dwelling house. It is true, of course, that the Appellant’s testimony in this regard fully supported her own position in this case, and it was contradicted, at least in part, by her brother, but the value of that testimony is increased manyfold by the corroborating testimony of the decedent’s nurse, who had no pecuniary axe to grind in this proceeding, and who was Appellee’s own witness. The nurse, Mrs. Margaret Jones, worked intimately with the decedent for almost three years. She testified that at various times Mrs. MacMillan made mention to her of her account or accounts and said that there was $10,000.00 to be paid on the second trust at her death. Mrs. Jones’ credibility is heightened by the fact that at several times during the course of her testimony she related that Mrs. MacMillan had expressed to her the belief that Mrs. Verzi “would be fair with John.” This is of particular interest, we believe, because it is a strong indication to us that Mrs. MacMillan considered that at her death the funds in the accounts would be the property of Mrs. Verzi, and that being “fair” to her brother would be discretionary with Appellant. That belief, we believe, is totally inconsistent with the view that Mrs. MacMillan ever intended or thought that the balance in the accounts would be paid on her death to her estate, and thereby become in equal part the property of her son and daughter, who were the beneficiaries under her will.

In finding for the Appellee, the judge below relied primarily on Murray v. Gadsden, 197 F. 2d 194 (1952), wherein the United States Court of Appeals for the District of Columbia Circuit held that the elements of a valid inter vivos gift were not present in a dispute over two bank accounts. We are at a loss to understand Judge Shearin’s reliance on Murray, because that case had been considered by the Maryland Court of Appeals and found inapplicable to a set of facts similar to those now before us, in Tyler v. Suburban Trust Co., supra. In Tyler the Maryland Court found that the bank account in Murray was of a “testamentary character” and that the donee named had been added to that account in furtherance of an agreement between the donor and donee as to the disposition of the funds, in an attempt to circumvent the statutory right of the donor’s husband to share in those funds. In Tyler, at 472, the Court of Appeals quoted from Imirie v. Imirie, supra, in which the United States Court of Appeals for the District of Columbia indicated that Murray was a decision rendered on the peculiar facts contained therein and restated the principle that “if the intent of the donor of the joint account to create a right of survivorship is clear, and no principle of public policy is violated by recognizing the right in the particular case, the right should be recognized.”

We believe Tyler clearly sets out the law of the District of Columbia as decided by the courts in that jurisdiction, and we believe that we are bound to follow it in this case. It is uncontradicted in the record before us that the decedent opened the accounts by signing a document which made it clear that a right of survivorship was being vested in the Appellant, and it is also uncontradicted in this record that the meaning of that legal phrase was explained to the decedent by bank officers when she signed the document. The record further makes clear that the decedent, by various statements at various times in her life after the accounts were opened, indicated her full knowledge of the fact that the monies contained in these accounts would, on her death, become the property of the Appellant. In applying these facts to Tyler, we see no basis on which the judge below could have concluded that it was not the decedent’s intention to have the Appellant receive the proceeds of these accounts on decedent’s death. We can find no requirement under District of Columbia law as set out in Tyler or elsewhere that the Appellant must have contributed funds to the accounts in question in order to be entitled to those funds on the decedent’s death; but if such a requirement does exist, the record contains much to support the Appellant’s argument that she had made a substantial contribution in kind, by her continued assistance to her mother in the management of the mother’s business affairs, and her devoted personal nursing care to her mother throughout the closing years of her mother’s life.

Finally, we believe that the burden in this case, under the appropriate District of Columbia cases and Tyler, was on the personal representative, who had the duty of producing evidence that the joint and survivorship accounts meant something other than what they said. The record before us is almost totally barren of any evidence to accomplish that purpose.

Maryland Rule 1086 provides:

“When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”

In Gosman v. Gosman, 19 Md. App. 66, 309 A. 2d 34 (1973), we said at 78:

“Under this Rule, facts explicitly or implicitly found by the lower court, either upon undisputed evidence or upon conflicting evidence after judging questions of weight and credibility, will be accepted on appeal unless the finding is clearly erroneous. However, conclusions of law based upon the facts are reviewable in the appellate court for any error of law, Space Aero v. Darling, 238 Md. 93, 106, 208 A. 2d 699.”

From our review of this record, we find that the holding of the trial judge that the decedent did not intend to make a gift to Appellant of the funds in these accounts was clearly erroneous, and we further find that the court below erred as a matter of law in failing to apply in this case the holding of the Court of Appeals in Tyler v. Suburban Trust Co., supra.

It is the opinion of this Court, therefore, that the lower court should be reversed and judgement entered for the Appellant.

Judgment reversed.

Judgment entered in favor of appellant, appellee to pay the costs.