author: Thompson, J.,

text:
    ALFORD ROBUS CAREY, JR. v. STATE OF MARYLAND
    [No. 488,
    September Term, 1977.]

      Decided November 8, 1977.

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

      George E. Bums, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and T. Joseph Touhey, District Public Defender, on the brief, for appellant.

      Robert C. Ozer, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

On August 30, 1976, Alford Robus Carey, Jr., the appellant, was indicted on ten counts of bribery and two counts of extortion by the Grand Jury for Anne Arundel County. On November 15, 1976, the appellant filed a motion to dismiss the indictment alleging the violation of a plea bargaining agreement in a prior case in which the appellant had pled guilty to forgery and false pretenses. After a full hearing, the trial judge on January 11, 1977, denied the motion, finding no violation of the plea bargaining agreement. After a status conference on February 16, the trial judge fixed the trial date for May 31, and allowed the appellant three weeks in which to file pretrial motions and the State two weeks thereafter in which to answer. On May 24, after the time had expired, the appellant filed a motion to dismiss the indictment alleging preindictment delay and prosecutorial misconduct. The State promptly answered and a hearing was held on the motion on May 31, June 1, 2, and 3. Much of the testimony produced by the appellant and the State was a rehash of testimony that had been presented on the prior motion. On the morning of June 3, the appellant filed what he designated a supplemental motion to dismiss, alleging double jeopardy. At the end of the day the trial judge announced his intentions to start the trial on Monday, June 6, and to hold the motions to dismiss sub curia. At the end of the day the appellant filed this appeal in which he alleges that the trial judge erred in refusing to dismiss the indictment as violative of the prohibition against double jeopardy. The State filed a motion to dismiss the appeal arguing it was premature, citing Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974) and Taylor v. State, 22 Md. App. 370, 323 A. 2d 648 (1974). The motion was denied on June 13,1977 in light of Claybrooks v. State, 36 Md. App. 295, 374 A. 2d 365 (1977).

The facts that gave rise to the double jeopardy claim are as follows. On July 22, 1975, the Grand Jury for Anne Arundel County returned an indictment against the appellant on the forgery and false pretenses charges mentioned above. The indictment arose out of appellant’s activities as Executive Director of the Interagency Committee on School Construction (IAC). During his tenure as Director, the IAC ádvertised bids for relocatable classrooms. On June 6, 1972, Globe Industries, Inc. received a contract for the construction of the classrooms. A change order was made on February 20, 1973, to reflect the purchase of additional classrooms and as a part of this change order Globe agreed to construct foundations at the sites of the classroom buildings. This aspect of Globe’s obligation was subcontracted to R & M Erectors, an unincorporated business operated by Robert R. Hastings, Sr.

The activity of the appellant which led to the forgery and false pretenses indictment began when he prepared a false invoice from R & M Erectors in the amount of $22,105.19 dated November 1, 1973 for work that had not been performed. The appellant approved the invoice and received a check from the State in the full amount, payable to Robert R. Hastings. On November 23,1973, the appellant entered a branch of the Equitable Trust Company and opened a checking account in the name of Hastings with the check he had received, and money from the checking account was then used to pay personal debts.

The appellant entered into an agreement with the State on January 9, 1976, to plead guilty to those counts of the indictment charging him with common law forgery and obtaining money by false pretenses. As part of the agreement the State agreed not to seek further indictments for crimes based on evidence “already in the possession of and fully developed by the State” as of that date.

The present indictment, charging the appellant with bribery and extortion, arose out of payments alleged to have been made by officers of Globe to the appellant in connection with the contract for the construction of relocatable classrooms.

It is the appellant’s contention that the indictment for bribery and extortion is barred by his previous conviction for forgery and false pretenses by the double jeopardy clause. We see no merit in the contention.

When an individual is charged with two separate offenses arising out of the same criminal transaction the evidence is examined to determine whether each of the offenses requires proof of a fact the other does not in determining whether the constitutional prohibition against double jeopardy has been violated. Brown v. Ohio, 432 U. S. 161, 97 S. Ct. 2221, 53 L.Ed.2d 187 (1977); Cousins v. State, 277 Md. 383, 354 A. 2d 825 (1976), cert. denied, 429 U. S. 1027, 97 S. Ct. 652, 50 L.Ed.2d 631. The appellant does not attempt to argue that this test has been satisfied. Rather, he maintains the test is inapplicable in this case under dicta contained in Cousins v. State, supra.

In Cousins, the Court of Appeals noted the required evidence test had been challenged by Justice Brennan in Abbate v. United States, 359 U. S. 187, 79 S. Ct. 666, 3 L.Ed.2d 729 (1959) and Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970) (concurring opinion). According to Justice Brennan, the double jeopardy clause should be read so that the State would be required to join all charges arising out of a single criminal act or episode in one trial. Judge Eldridge, speaking for the Court in Cousins, noted that although the same transaction test enunciated by Justice Brennan had been applied by a number of state courts in interpreting state constitutional provisions, the Supreme Court follows the required evidence test. Morgan v. Devine, 237 U. S. 632, 35 S. Ct. 712, 59 L. Ed. 1153 (1915). We are, of course, bound by the decisions of the Supreme Court in interpreting the Constitution of the United States. Oregon v. Hass, 420 U. S. 714, 95 S. Ct. 1215, 43 L.Ed.2d 570 (1975). Maryland has no constitutional or statutory provisions against double jeopardy and the common law is not more restrictive than the required evidence test.

Even though the same evidence test is to be applied, the Court in Cousins indicated the rule might not apply in every case:

“We recognize, however, that there may be situations where the required evidence test, coupled with the principle of collateral estoppel, might not be adequate to afford the protection against undue harassment embodied in the purpose of the prohibition against double jeopardy.” 277 Md. at 397.

Utilizing this language, the appellant argues that the required evidence test should not be applied where the prosecutor possesses facts which would justify either of two criminal charges arising out of the same transaction but purposefully elects to prosecute the charges separately. In support of this argument the appellant primarily relies on State v. Godfrey, 139 N.J. Super. 135, 353 A. 2d 101 (1976). The basic flaw in this argument is that the crimes with which the appellant is charged relate to two separate criminal transactions. The forgery and false pretenses indictment related to the appellant’s activities in falsifying certain documents in order to obtain money from the State. While the bribery and extortion charges also relate to the same contract, these allegations of wrong doing are concerned with the appellant’s dealings with certain officers of Globe. The acts that gave rise to the charges of forgery and false pretenses as set forth in the statement of facts when the guilty plea on these charges was accepted by the trial judge, occurred between November 1,1973 and October 29, 1974, while the alleged bribery and extortion took place, according to the indictment, between August 28, 1972 and June 19, 1973. The various crimes cannot be deemed to be within a single criminal transaction merely because they related to the same contract, as the appellant seems to suggest, even if Maryland followed the transaction test, which it does not.

Whatever merit, if any, the appellant’s argument may have bears on the question of preindictment delay and prosecutorial misconduct, i.e. due process of law. We carefully indicate no opinion thereon because the question is not before us at this time.

Order affirmed.

Appellant to pay the costs.

Mandate to issue forthwith.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    DIANE MAZUR et al. v. MICHAEL SCAVONE et ux.
    [No. 1167,
    September Term, 1976.]

      Decided November 9, 1977.

      The cause was argued before Moylan,  Powers and Moore, JJ.

      Jay M. Caplan, with whom was Erwin B. Frenkil on the brief, for appellants.

      James K. Carmody, with whom were Serio, Carmody & Nichols on the brief, for appellees.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Diane Mazur, infant, through her parents and next friends, sued the appellees, Michael and Roberta Scavone, for personal injuries sustained when Diane was attacked and bitten on the face by a German Shepherd dog owned by the appellees. After extensive discovery by both sides, the appellees filed a Motion In Limine and a Motion for Summary Judgment to which the appellants filed timely answers. Following a hearing on the motions, Judge Morris Turk, in the. Circuit Court for Anne Arundel Couny, granted the appellees’ Motion for Summary Judgment. Although the judgment appealed from was the granting of the motion, the ultimate issue involves not the law as to summary judgments but the law of evidence and the propriety of granting the Motion In Limine.

The gross facts, as set out in the pleadings, are not in dispute. On January 25, 1971, Diane Mazur, then ten years of age, was selling Girl Scout cookies in her neighborhood. She went to the home of the Scavones. After ringing the doorbell, she was invited inside by the Scavones’ adult daughter, Deborah. Deborah agreed to order cookies from Diane. As Deborah was signing the order form, the German Shepherd came running down the steps and jumped on Diane. Standing on his hind legs, with his paws on her shoulders, he bit Diane on her face. Diane ran screaming from the house. Deborah followed her. After seeing the bite on her face, Deborah ran back into the Scavones’ house to get her car keys. Deborah then drove Diane to the Mazur home, located about two blocks away. She subsequently drove Diane and Diane’s mother, Helen Mazur, to the hospital where Diane was treated. Diane sustained a severe cut on her face.

The law as to summary judgments is not in dispute. Maryland Rule 610 d provides, in pertinent part:

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

Neither is the tort law in dispute. Both parties agree, as indeed they must, that to hold liable the owner of a domestic animal that has caused injury, the claimant must show that the owner knew, or by the exercise of ordinary and reasonable care should have known, of the inclination or propensity of the animal to do the particular mischief that caused harm. Twigg v. Ryland, 62 Md. 380; Finneran v. Wood, 249 Md. 643, 648, 241 A. 2d 579, 581. The pivotal issue in this case is that of whether the appellees knew, or should have known, of an inclination on the part of their German Shepherd to bite people. If the pleadings and supporting documents gave no promise of establishing this element, the Motion for Summary Judgment was properly granted; if the pleadings and supporting documents did show the possibility of establishing this element, the motion was improperly granted.

The question boiled down to one of whether there was any evidence being proffered by the appellants to show such knowledge. In their Answers to Interrogatories, the appellees denied any vicious propensities on the part of their German Shepherd and any knowledge thereof. This denial was repeated in the deposition of appellee Michael Scavone and in that of his daughter, Deborah, who was not a party defendant. The question became that of whether the appellants could show evidence of such knowledge on the part of the appellees. The first indication of ostensible evidence in this regard came in an Answer filed by the appellants to Supplemental Interrogatories. One of those answers contained the following statement:

“The Defendant’s daughter stated in the Plaintiff’s car on the way to the hospital that the dog got excited and nervous around strangers and that they would have to get rid of the dog now because he had previously jumped others.”

The appellees, with a supporting affidavit by Deborah Scavone, denied that such a statement had ever been made but further pointed out, which point was not contested, that a period of some twenty-five minutes had elapsed between the biting incident and the final automobile trip to the hospital, in the course of which the disputed declaration was allegedly made. In their Motion In Limine, the appellees urged the court to rule that the alleged declaration, even if assumed to have been made, was inadmissible on the grounds that it was hearsay and did not fall within any recognized exception to the hearsay rule. Judge Turk did so rule that the alleged declaration was inadmissible in evidence under the hearsay rule. On the basis of that ruling, he granted the appellees’ Motion for Summary Judgment.

Our starting point of analysis is a consideration of what is required of a party to forestall a summary judgment against him. The analysis of Judge Powers in Knisley v. Keller, 11 Md. App. 269, 272-273, 273 A. 2d 624, is highly instructive:

“We point out that the summary judgment procedure is not a substitute for a trial but merely a hearing to decide whether a trial is necessary, Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, 122 A. 2d 563 (1956), page 100; Lipscomb v. Hess, 255 Md. 109, 257 A. 2d 178 (1969), page 118. The party opposing the motion must show by facts, which would be admissible in evidence, that there is real dispute between the parties. The dispute must be material to the outcome. . .. The function of the judge is much the same as that he performs at the close of all the evidence in a jury trial when motions for directed verdict or requests for peremptory instructions require him to determine whether an issue requires resolution by a jury, or is to be decided by the court as a matter of law.”

The appellants urge upon us that there was a genuine dispute — a genuine controversy — over a material fact, that fact being whether Deborah Scavone ever made the out-of-court declaration attributed to her or not. In her affidavit, Deborah Scavone swore:

“After the incident, I followed Diane outside and noted her injury. I then went back into the house, got my shoes and drove her to her home. After a discussion with her mother and a waiting interval of about twenty minutes, I drove Diane and her mother to the hospital.
At no time on that date, or at any other time, did I say that my parents’ dog got excited around strangers or that he had previously jumped on anyone. The fact is that the dog was gentle and had never attacked, bothered or threatened anyone prior to January 25,1971.”

In stark contrast to that, the appellee Helen Mazur, in her answering affidavit, swore:

“After Diane was bitten by the dog, she was brought to my house by Deborah Scavone. Deborah knocked on the door and told me what had happened to Diane. I ran out to the car to look at her and then went back in the house to get a washcloth. I yelled to my son to call my husband and went out to Deborah’s car. It is only a few minutes to my house from the Scavone’s. Deborah Scavone did not come in my house at all.
After we were in the car a few minutes, Deborah said that they would have to get rid of the dog now because he had previously jumped someone else.”

■There can be no doubt but that this is a genuine dispute as to a fact. The pivotal question, however, is that of whether this genuine dispute of fact is or is not a dispute as to a material fact. This depends upon the correctness and the propriety of the judge’s evidentiary ruling which he made in granting the appellees’ Motion In Limine. If the alleged out-of-court declaration is admissible, the dispute as to whether it was made is highly material. The resolution of the disputed question of whether Deborah Scavone did or did not make such a statement is tantamount to the resolution of whether the appellees were or were not aware of dangerous propensities in their dog. If, on the other hand, the alleged declaration is inadmissible in evidence, even assuming it to have been made, the dispute takes on a hollow ring and is bereft of all materiality. Benedetto v. Balto. Gas & Elec. Co., 30 Md. App. 171, 175, 350 A. 2d 712. An inadmissible statement is the quantitative equivalent of no statement at all. The appellants will have failed to offer evidence which could establish a necessary element of their case and will be properly vulnerable to a motion for summary judgment. If properly excludible, even if made, it makes no difference to the outcome whether such declaration was or was not made. As Judge Powers carefully pointed out in Knisley v. Keller, supra, at 11 Md. App. 272:

“The party opposing the motion must show by facts, which would be admissible in evidence, that there is real dispute between the parties.” (Emphasis supplied)

The ultimate issue for present purposes, therefore, becomes that of the propriety of the judge’s evidentiary ruling. There is no disputing that the ostensible out-of-court declaration made by Deborah Scavone was hearsay and, ceteris paribus, inadmissible because not subject to cross-examination and the other trustworthiness conditioning devices. It cannot be urged that the declaration was an exception to the hearsay rule as an admission by a party for the reason that Deborah Scavone was not a party defendant. The only arguable theory of admissibility is that the declaration was an “excited utterance” and, for that reason, an exception to the rule forbidding hearsay evidence.

The excited utterance exception to the hearsay rule is well recognized in Maryland. As we pointed out in Moore v. State, 26 Md. App. 556, 562-563, 338 A. 2d 344:

“The circumstantial probability of trustworthiness underlying this exception (as well as the superior quality of the evidence) has been thoroughly explored and well set out by the recognized authorities in this field. Dean Wigmore said at § 1747, ‘General Principle of the Exception’:
‘This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.’ ”

See also Jackson v. State, 31 Md. App. 332, 356 A. 2d 299, and Estep v. State, 14 Md. App. 53, 286 A. 2d 187.

The question of whether the out-of-court declaration being proffered by the appellants in this case was admissible in evidence (so as to foreclose the granting of the summary judgment) was not one that could be ruled upon as a matter of law. It required an element of fact-finding — not the finding of the ultimate facts, such as a jury engages in, but nonetheless a necessary finding of a subsidiary fact by the court in order to make a ruling on admissibility. The disputed fact in this case, though a fact for the judge alone and not for a jury, was whether this particular out-of-court declaration in the circumstances under which it was made was in fact excited, and therefore admissible, or unexcited, and therefore inadmissible.

The reason that such a disputed evidentiary question cannot be decided as a matter of law is that the existence of a state of excitement (or, on the other hand, the existence of a state of calm) is not an automatic function of a dramatic event diminished by the passage of a specified period of time between the event and its narration. It is rather a very personal, individual and subjective psychic phenomenon. The same event may have different impacts upon different observers. One cannot, therefore, say, as a matter of law, that Deborah Scavone made the declaration attributed to her in a state of spontaneous excitement; neither may one say, as a matter of law, that she made the declaration attributed to her in a state of unexcited calm. In resolving that question, which might in the trial forum go either way in the judge’s discretion, testimony from a witness who heard the declaration could be very helpful; cross-examination as to the manner, actions and tone of the declarant could be probing; the judge himself might seek out revealing psychological details not elicited by either direct or cross-examination.

Since the critical evidentiary decision on which all else hinges is one that in a trial could be resolved either way, the issue before us becomes one of whether a question of this type should be resolved by the judge in anticipation of trial or should await resolution in a trial setting. We hold that a question such as this, which cannot be settled purely as a matter of law, should not be decided in anticipation of trial. The fact that the unresolved factual question is a subsidiary one which will ultimately be handled by the judge alone as a necessary preliminary to making an evidentiary ruling as opposed to being a question of ultimate fact for a jury does not erode the logic of our holding. It is no more appropriate for a judge to settle discretionary evidentiary or other procedural questions in anticipation of trial than it would be for him to assess credibilities and make rulings of ultimate fact in anticipation of trial in cases where he is to be the ultimate fact finder instead of a jury. The law is clear that the summary judgment procedure is not a substitute for a trial but only a procedure to decide whether a trial is unnecessary as a matter of law. Kirsner v. Fleischmann, 261 Md. 164, 274 A. 2d 339; Horst v. Kraft, 247 Md. 455, 231 A. 2d 674; Strickler Engineering Gorp. v. Seminar, Inc., 210 Md. 93, 122 A. 2d 563; Pullman Co. v. Ray, 201 Md. 268, 94 A. 2d 266.

The argument of the appellees to the effect that there is no factual contest as to the circumstances under which the disputed out-of-court declaration was made (for the reason that the other party denies the making of the declaration in toto and, therefore, cannot dispute its attendant circumstances) is of no consequence. Although there may be no dispute as to the first-level facts of where and when the words of the declaration were spoken, there is more than one permissible inference that may be drawn from those first-level facts — 1) the words were spoken in a state of excitement or 2) the words were spoken in a state of calm. Even though the fact to be inferred in this evidentiary setting is one for the court alone and not for a jury, we find the reasoning of Chief Judge Bruñe in Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14, 155 A. 2d 691, highly persuasive:

“Furthermore, in a summary judgment proceeding, even though the underlying facts may have been undisputed, if they were susceptible of more than one inference, the party against whom inferences were sought to be drawn . .. was entitled to the inferences most favorable to his contentions. White v. Friel, 210 Md. 274, 123 A. 2d 303, and cases therein cited.”

See also McDonald v. Burgess, 254 Md. 452, 255 A. 2d 299; Fenwick Motor Co. v. Fenwick, 258 Md. 134, 139-140, 265 A. 2d 256.

In determining whether a summary judgment should be granted, all disputed facts and inferences therefrom (including those of a subsidiary, evidentiary variety which will be resolved by the court alone) should, at that stage of the proceedings, be viewed in the light most favorable to the party against whom the motion is made. As Judge Singley pointed out in Lipscomb v. Hess, 255 Md. 109, 118, 257 A. 2d 178:

“The limitations on summary judgment procedure are too well known to require elaboration. It is not a substitute for trial but a hearing to determine whether a trial is necessary ... when there is no genuine controversy .... The purpose of the hearing is not to determine disputed facts, but to determine whether such issues exist.... If facts are susceptible of more than one inference, the inferences must be drawn in the light most favorable to the person against whom the motion is made . .. and in the light least favorable to the movant.. ..” (Citations omitted)

Against this bench mark, the inference that must be drawn for summary judgment purposes in the present case is that the declaration attributed to Deborah Scavone was made in a state of spontaneous excitement; was, therefore, a legitimate exception to the hearsay rule; and was, therefore, admissible evidence establishing a genuine factual dispute as to a material issue. The summary judgment should not have been granted.

Judgment reversed; case remanded for trial; costs to be paid by appellees.

      . This is not to suggest that the ultimate decision as to spontaneity and admissibility must, as a matter of law, be settled this way in the trial setting. At that stage, the decision as to the reception of evidence will be made by the trial judge, on the basis of the evidence then available to him, in the exercise of his discretion.


author: Liss, J.,

text:
    MEDICAL MUTUAL LIABILITY INSURANCE SOCIETY OF MARYLAND v. THE MUTUAL FIRE, MARINE AND INLAND INSURANCE COMPANY et al.
    [No. 48,
    September Term, 1977.]

      Decided November 9, 1977.

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

      John F. King and Angus R. Everton, with whom were Anderson, Coe & King on the brief, for appellant.

      James D. Peacock, with whom were John H. Mudd, Pamela P. Wassmann and Semmes, Bowen & Semmes on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

The immortal Bard said,

“Friendship is constant in all other things Save in the office and affairs of love; Therefore all hearts in love use their own tongues; Let every eye negotiate for itself And trust no agent.”

The issue here is whether this admonition applies as well to affairs of the market place as to affairs of the heart.

Appellant, Medical Mutual Liability Insurance Society of Maryland (hereinafter, Medical Mutual), sued B. Dixon Evander, individually (hereinafter, Evander), B. Dixon Evander and Associates, Inc., a corporation of the State of Maryland (hereinafter, Evander Associates), and The Mutual Fire, Marine and Inland Insurance Co., a body corporate of the State of Pennsylvania (hereinafter, Mutual Fire), for slander and libel. In its declaration the appellant alleged generally that it had been injured as a result of numerous false statements respecting the appellant’s business contained in a brochure prepared and published by Evander and Evander Associates while acting on their own behalf and as agents for Mutual Fire, appellee.

Mutual Fire filed a motion for summary judgment supported by affidavits asserting generally that Evander and his firm were not acting as appellee’s agents, servants and employees when the brochure was prepared and issued. Appellant filed an answer to the motion for summary judgment supported by affidavits and exhibits. The trial court (Brannan, J.) granted summary judgment for Mutual Fire and a motion for reconsideration was filed by the appellant. A hearing was held and, after hearing argument and considering memoranda filed by both parties, the trial court entered final judgment in favor of the appellee, dismissing it as a party to the action and permitted an appeal pursuant to Rule 605 a, Maryland Rules of Procedure. It is from this judgment that this appeal was filed.

The facts disclosed by the various motions, affidavits and exhibits in the case are in the main undisputed. Evander is a licensed surplus lines broker authorized by the State of Maryland to place medical malpractice insurance with Mutual Fire. He is also licensed as an insurance agent and is the executive officer of Evander Associates, which is a corporation licensed to procure insurance policies.

As a surplus lines broker, Evander placed medical professional liability insurance with the appellee, Mutual Fire. That type of insurance is on the list of surplus lines approved by the Maryland Insurance Commissioner. Evander had no express agency agreement, written or oral, with Mutual Fire. He was under no contractual obligation to place insurance with Mutual Fire and could place business with any insurer that would accept the risk. After placing each risk with Mutual Fire, Evander filed with the Insurance Division of the Maryland Department of Licensing and Regulation a surplus lines affidavit, as required by the Surplus Line Insurance Law. Maryland Code (1957, 1976 Cum. Supp.) Art. 48A, § 185. Each affidavit certified that the statutory conditions authorizing the placement of such coverage with a nonadmitted insurer had been met. These conditions included the requirement that no authorized insurer writing medical malpractice insurance in Maryland would accept the risk.

Evander also filed copies of 45-day binders, as provided under section 191 of the Surplus Line Insurance Law. The binders were stamped to indicate that the insurance was issued by a nonadmitted insurer as required by section 186. Under section 191, copies of the binders were required to be filed and the original delivered promptly to the insured after placement of the insurance. The names of Shand, Morahan & Company, Inc. (hereinafter, Shand, Morahan) as underwriting managers and Mutual Fire as carrier were printed at the top of each binder. The words B. Dixon Evander & Associates, Inc. were printed at the bottom of the binder.

Copies of the declaration sheets of the actual policies were also filed by Evander with the Insurance Division. These sheets also were stamped to indicate that Mutual Fire was a nonadmitted insurer. Evander’s duties as a surplus lines broker included the procurement of the actual policy from the insurer and the delivery of the policy to the insured. Mutual Fire’s name was printed at the top of each declaration sheet and at the bottom of the page the following statement appeared: “All claims to be reported directly to Shand, Morahan & Company, Inc., 801 Davis Street, Evanston, Illinois.” The signature of Evander appeared below the name of Shand, Morahan on a line designated “authorized representative.” Evander’s address was not listed.

A review of the documents filed by Evander with the Insurance Division indicates that Evander, in his capacity as a surplus lines broker, after January of 1976, placed 369 medical professional liability policies with Mutual Fire on behalf of Maryland physicians. During this period, no other surplus lines broker placed medical malpractice insurance with Mutual Fire and Evander did not place malpractice insurance with any other surplus lines insurer.

On August 5, 1975, Evander placed an advertisement in The Evening Sun in which he purported to list 133 “representing agents” of Mutual Fire. A news story, which appeared several days later in the Sunpapers, indicated that a number of the agents listed had stated that they were not agents for Mutual Fire and that they had not authorized the use of their names. Mutual Fire in its affidavit stated that it had not given permission or authority to Evander to prepare and distribute any advertising materials on its behalf and that it never had any knowledge of the preparation of the advertisement nor had it ever ratified Evander’s conduct. Evander was prohibited by law, as a surplus lines broker, from preparing and issuing such advertisements, Code, Art. 48A, § 201 (b), and was specifically advised by Mutual Fire’s underwriting manager that he had no authority to prepare and distribute such materials.

One year later, in the summer of 1976, Evander and his firm prepared and distributed a brochure which purported to compare the medical malpractice insurance coverage provided by appellant, Medical Mutual, with that provided by Mutual Fire, the appellee. Evander admitted that he knew he had no authority to distribute such material on behalf of Mutual Fire; however, he prepared the brochure, printed it, and distributed it in the name of his own company, Evander Associates.

Evander Associates paid for the publishing of the brochure with its own funds. A separate page of the brochure stated that

“The information contained herein was subject, in whole or in part, to the opinion of legal and accounting counsel.. . . Any incorrect or misleading statements contained herein are totally unintended and will be corrected upon written notice, containing the confirmable basis of the correction to: B. Dixon Evander and Associates, Inc., 2326 N. Charles St., Baltimore, Md. 21218, who are solely responsible for the preparation and contents contained herein.”

It is this brochure which appellant contends contained allegedly slanderous and libelous statements for which it seeks compensatory and punitive damages from Evander, Evander Associates and Mutual Fire.

The sole issue presented by this appeal is whether the trial court erred in granting Mutual Fire’s motion for summary judgment on the grounds that there was no genuine dispute between the parties as to any material fact, and that as a matter of law Evander, individually, and Evander Associates, were not acting as agents for the appellee when they published the brochure containing the alleged defamatory statements.

Summary judgment pursuant to Maryland Rule 610 is proper only where there is no dispute as to a material fact and the moving party is entitled to judgment as a matter of law. McDonald v. Burgess, 254 Md. 452, 255 A. 2d 299 (1969); Horst v. Kraft, 247 Md. 455, 231 A. 2d 674 (1967); Owens v. Simon, 245 Md. 404, 226 A. 2d 548 (1967).

The Court of Appeals, in Tellez v. Canton Railroad Co., 212 Md. 423, 430, 129 A. 2d 809, 818 (1957), said:

“The function of the summary judgment procedure is not to try the case or to decide issues of fact. It is merely to determine whether there is an issue of fact to be tried, and if there is none, to cause judgment to be rendered accordingly.”

In Fenwick Motor Co., Inc. v. Fenwick, 258 Md. 134, 138, 265 A. 2d 256, 258 (1970), the Court said:

“In a summary judgment proceeding even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact.”

Liebergott v. Investment Bldg., 249 Md. 584, 241 A. 2d 138 (1968); Reeves v. Howar, 244 Md. 83, 222 A. 2d 697 (1966); Mayor and City Council v. Allied Contractors, Inc., 236 Md. 534, 204 A. 2d 546 (1964).

The basic issue presented to the trial court by the motion for summary judgment was whether the various affidavits and exhibits in support of and in opposition to the motion were sufficient to raise a factual issue requiring a determination as to whether a principal-agent relation existed between Evander or Evander Associates and the appellee. One who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact and any doubt as to the existence of such an issue is resolved against the movant. Merchants Mortgage Co. v. Lubow, 275 Md. 208, 339 A. 2d 664 (1975); Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 327 A. 2d 502 (1974); Hill v. Lewis, 21 Md. App. 121, 318 A. 2d 850 (1974).

The existence of an agency relationship is ordinarily a question of fact. P. Flanigan & Sons v. Childs, 251 Md. 646, 248 A. 2d 473 (1967). The relation of principal and agent does not necessarily depend upon an express appointment and acceptance thereof, but it may be implied from the words and conduct of the parties and the circumstances. Heslop v. Dieudonne, 209 Md. 201, 120 A. 2d 669 (1956). The Court of Appeals has said in innumerable cases that “it is not for the court to determine the question of agency vel non, but if the testimony as to the fact of the agency tends to prove the existence of that relation, it should be submitted to the jury, who are the exclusive judges of its weight.” Levine v. Chambers, 141 Md. 336, 343, 118 A. 798, 800 (1922).

The issue to be here determined is whether the facts alleged create an inference that Evander was expressly or impliedly authorized to publish advertising materials on behalf of Mutual Fire, such as the brochure in question, or whether he was apparently authorized to do so — or to state it more simply, what was the nature and extent of the agency relation, if any, between Evander and Mutual Fire? The law is clear that where the alleged agency is dependent upon the acts of the parties, the burden of proof rests upon the person alleging the agency to show not only its existence but its nature and extent. F. Mechem, Law of Agency §§ 255, 281, 298, 316, 318, 1344 (2d ed. 1914); Blacker v. National Bank of Baltimore, 151 Md. 514, 135 A. 383 (1926). There must also be a showing not only that a person is an agent of his principal but that in the particular transaction he was acting within the scope of his employment and that the acts in question out of which the tort arose were within the scope of the agent’s authority. Colonial Building & Loan Ass’n, Inc. v. Boden, 169 Md. 493, 182 A. 665 (1935); Deane v. Big Spring Distilling Co., 138 Md. 388, 113 A. 891 (1921); Brager v. Levy, 122 Md. 554, 90 A. 102 (1914).

The Restatement (Second) of Agency § 254 (1958) states:

“A principal is subject to liability for a defamatory statement by a servant or other agent if the agent was authorized, or if, as to the person to whom he made the statement, he was apparently authorized to make it.”

Initially we observe that Evander’s relationship with Mutual Fire would not constitute Evander its general agent. The principal-agent relation is distinguished from that of master-servant in that an agent is employed to represent the principal in regard to contractual obligations with a third person; a servant is employed to render a service to, rather than for, the master, although it may occur that the service will involve relations with third persons. A. & P. Co. v. Noppenberger, 171 Md. 378, 189 A. 434 (1937); Mechem, supra, § 36. The theory of liability advanced by appellant as to general agency is based upon Evander’s acting as Mutual Fire’s agent in that he was exclusive dealer for its medical malpractice insurance in Maryland and that he issued 45-day binders to those purchasing the insurance.

Code (1957, 1976 Cum. Supp.) Art. 48A, § 166 (a), subject to exceptions not here applicable, defines an agent as “a person appointed by an insurer (1) to solicit applications for insurance or annuities or to negotiate insurance on its behalf; and (2) if authorized to do so by the insurer, to effectuate and countersign insurance contracts.” An insurance “broker” or “solicitor,” on the other hand, is one who acts as a middleman between the insurer and insured, soliciting insurance with a company selected by the insured, or in the absence of a selection by the insured, with a company selected by the broker or solicitor. Hankins v. Public Service Mut. Ins. Co., 192 Md. 68, 63 A. 2d 606 (1949); American Casualty Co. v. Ricos, 179 Md. 627, 22 A. 2d 484 (1941). Whether a person is a broker or an agent is determined not by what he is called but by what he does. Moone v. Commercial Casualty Ins. Co., 350 Ill. App. 328, 112 N.E.2d 626 (1953).

16 Appelman, Insurance Law and Practice § 8691, prescribes a precise test for determining whether or not one is a general agent:

“That test is whether or not the agent has the power to bind the insurer by his contract of insurance, or to issue policies on his own initiative, or to accept risks, and if the agent has actual authority to do these things, he is a general agent; if he cannot place coverage in effect, but can merely initiate negotiations therefor, he is not a general agent.” Id. at 181.

Continental Cas. Co. v. Holmes, 266 F. 2d 269 (5th Cir. 1959), cert. denied, 361 U. S. 877, 80 S. Ct. 140, 4 L.Ed.2d 114 (1959); Smith v. Utah Home Fire Ins. Co., 234 Minn. 169, 47 N.W.2d 785 (1951).

The power to bind the insurer, however, does not include the power to issue a temporary binder. Appelman states that

“This is reasonable in view of the fact that almost all soliciting agents are now given the power of temporary binder to protect the insured while his application is being considered by the company for acceptance or rejection. A general agent, on the other hand, has the right, not to make a temporary binder, but to issue the policy, accept the risk, and place the company upon the hazard at whatever terms he may see fit and for regular policy periods. In other words, the general agent’s acts involve the exercise of selection and discretion; ten-day binders are more or less automatic, and ministerial in their nature.” (emphasis supplied) Id. at 187-88.

See: Hartford Accident & Indemnity Co. v. Lougee, 89 N. H. 222, 196 A. 267 (1938) (power to issue 10-day binder, in absence of agreement to the contrary between insurer and soliciting agent, held not sufficient to change status of soliciting agent to that of general agent); M.F.A. Mutual Ins. Co. v. Rooney, 406 S.W.2d 1 (Mo. 1966) (power to issue 30-day binder held not sufficient to qualify soliciting agent as a general agent for purposes of accepting service of process). We see no significance in the fact that the binders in this case ran for a period of 45 days.

It is interesting to note that Art. 48A, § 191 (a) provides, inter alia, that

“Upon placing a surplus line coverage, the broker shall promptly deliver to the insured evidence of the insurance consisting either of the policy as issued by the insurer or, if such policy is not then available, a binder or cover note which shall show the subject, coverage, conditions, term of the insurance, and the name and address of the insurer.” (Emphasis supplied).

Appellant’s answer to Mutual Fire’s motion for summary-judgment had annexed to it a copy of the binder used by Evander Associates. The binder was not only delivered by Evander Associates but was in fact issued by it. The power to issue a temporary binder is to be distinguished from the power to effectuate a contract of insurance binding upon the insurer, and only the latter is sufficient to create a general agency.

We are equally unconvinced that the affidavits of the parties raised a material issue of fact as to whether Evander was an agent of Mutual Fire for purposes of publication and distribution of the brochure. Under Regulation 198-1, § 11 of the Maryland Insurance Department Regulations, “Surplus line brokers are subject to the provisions of Section 201 (b) of Article 48A of the Annotated Code of Maryland,” wherein it is provided in pertinent part

“(b) Publishing or broadcasting advertisements of unauthorized insurers or agents. — (1) It shall be unlawful for any person to publish or print in any newspaper, magazine, periodical, circular letter, pamphlet, or in any other manner, or to publish by radio or television broadcasting in this State, any advertisement or other notice, either directly or indirectly setting forth the advantages of or soliciting business for any insurer, agent or other person who has not been authorized to transact insurance business in this State.”

Though the acts of Evander contravened the clear proscription of the statute, that would not be sufficient to hold appellee liable unless it in fact authorized or subsequently ratified the action. See Restatement (Second) of Agency § 231; A. & P. Co. v. Noppenberger, supra. 16 Appelman, supra, § 8902, states:

“A corporation is liable for a defamation by its agent only when such defamation is referable to the duty owed by such agent to the corporation, and was made while in the discharge of that duty. An insurance company cannot be held liable for slanderous statements by its solicitors not spoken in the course of their employment. Nor does the mere making of slanderous statements authorize the inference that they were made in the course of their employment. And a charge that the defendant company committed the slander by its agents and servants is not proved by a mere offer to prove that certain solicitors uttered the slanders, without offering to prove that such statements were made in the course of their employment, or while acting in the apparent scope thereof.
“The mere fact that the libel was committed in the scope of the agent’s employment has been held insufficient; it must be shown, rather, that the libel was either required by or authorized by the employment. The test of whether a corporation is liable for slander is whether the one uttering the slander did so in endeavoring to promote the corporation’s business, within the scope of the actual or apparent authority conferred upon him for that purpose. The agent of an insurance company who has no authority to circulate printed matter for the company without its consent cannot make it liable for a libel thus published without the consent or ratification of the company.” Id. at 659-61.

The affidavit of Joseph E. Morahan, Jr., president of Shand, Morahan, discloses that the publication and distribution of the brochure was done in direct contravention of his instructions to Evander not to publish or distribute any material without prior consent and approval, which was never given. The affidavits of Morahan, Evander and John A. Matlack, president of Mutual Fire, state that no agents or employees of Mutual Fire either authorized, approved, saw, reviewed or had any knowledge of the brochure prior to its issuance. This allegation is unrefuted by either of the affidavits filed by appellant. Additionally, Evander specifically disclosed on the brochure that Evander Associates “are solely responsible for the preparation and contents contained herein.” We conclude that Evander had no express authority, either as a general agent or as an agent for the purpose of publishing the brochure, which would support a finding of a principal-agent relation between Evander and Mutual Fire.

In the absence of an actual agency relation between Evander and Mutual Fire, summary judgment as to Mutual Fire was properly granted unless the affidavits raised a material issue of fact as to whether Evander possessed apparent authority or that Mutual Fire was estopped to deny Evander’s agency. Initially, we conclude that the doctrine of estoppel is by its very nature inapplicable to an action for libel. The Restatement (Second) of Agency § 254, which was quoted supra, states that a principal is liable for defamation by its agent only if the agent was authorized or apparently authorized to publish the statement forming the basis of the action. Reserve Ins. Co. v. Duckett, 240 Md. 591, 214 A. 2d 754 (1965); Atlantic Trust Co. v. Subscribers, 150 Md. 470, 133 A. 319 (1926); New England Mut. Life Ins. Co. v. Swain, 100 Md. 558, 60 A. 469 (1905).

The Restatement (Second) of Agency § 8 B states the rule of estoppel relevant to our purposes:

“(1) A person who is not otherwise liable as a party to a transaction purported to be done on his account, is nevertheless subject to liability to persons who have changed their positions because of their belief that the transaction was entered into by or for him, if
(a) he intentionally or carelessly caused such belief, or
(b) knowing of such belief and that others might change their positions because of it, he did not take reasonable steps to notify them of the facts.” (Emphasis supplied).

We read this statement as requiring reliance and change of position on the part of the plaintiff himself which enures to his detriment and not to the detriment of another. Where the defamation action seeks to hold one liable as the principal of an agent who published the defamatory material, the result Is the somewhat anomalous situation of reliance and change of position by the third person reading the publication but detriment to the defamation plaintiff. In the case sub judice, the reliance complained of is by the prospective insurance purchasers, the doctors who read the brochure; the damage complained of is to Medical Mutual for barm to its reputation caused by the brochure. The Court of Appeals in B. P. Oil Corp. v. Mabe, 279 Md. 632, 644, 370 A. 2d 554, 561 (1977), rev’g, 31 Md. App. 221, 356 A. 2d 304 (1976), quoting from Mechem, supra § 245, stated the applicable rule:

“Estoppel is always a matter personal to the individual asserting it and he must therefore show that he was misled by the appearances relied upon. It is not enough that he might have been, or that some one else was, so misled. It must also appear that he had reasonable cause to believe that the authority existed; mere belief without cause, or belief in the face of facts that should have put him on his guard is not enough.” (Emphasis supplied).

The Court concluded, “that for there to be liability in a case such as this there must be actual reliance on the part of the person injured.” Id. at 644-45, 370 A. 2d at 561.

Comment d to § 8 of the Restatement (Second) also enunciates this position.

“[Estoppel] operates only to compensate for loss to those relying upon the words and not to create rights in the speaker. It follows, therefore, that one basing his claim upon the rules of estoppel must show not merely reliance, which is required when the claim Is based upon apparent authority, but also such a change of position that it would be unjust for the speaker to deny the truth of his words. Estoppel is dealt with as a form of deceit, in which the remedy is to hold the speaker to the truth of his statements instead of creating a tort action for misrepresentation.” Id. at 32-33.

Concluding as we do that agency by estoppel is inapplicable, we turn to the question of apparent authority. Apparent authority, also referred to as ostensible authority, arises where the purported agent may or may not have actual authority to act for the purported principal, but because of conduct on the purported principal’s part the third person believes that the authority to act exists. The “principal,” either actively or passively, creates a situation that causes the third person to be misled. The Restatement (Second) of Agency § 8 defines apparent authority as “the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.” Comment a to that section states:

“Apparent authority results from a manifestation by a person that another is his agent, the manifestation being made to a third person and not, as when authority is created, to the agent. It is entirely distinct from authority, either express or implied. The power to deal with third persons which results from it may, however, be identical with the power created by authority as it is where the principal’s statements to the third person are the same as to the agent and are similarly interpreted. On the other hand, the power may be greater or smaller than that resulting from authority. If it exists, the third person has the same rights with reference to the principal as where the agent is authorized. In the relation between principal and agent, however, apparent authority differs from authority, in that the one having it may not be a fiduciary, may have no privilege to exercise it and may not even know he has it. Although normally it results from a prior relation of principal and agent, this is not necessarily the case.... The rules of interpretation of apparent authority are, however, the same as those for authority, substituting the manifestation to the third person in place of that to the agent.” Id. at 30-31.

Though the cases and texts refer to apparent authority and agency by estoppel interchangeably and concede no clear line of demarcation between the two, Reserve Ins. Co. v. Duckett, supra; Mabe v. B. P. Oil Corp., 31 Md. App. 221, 356 A. 2d 304 (1976), rev’d, 279 Md. 632, 370 A. 2d 554 (1977), for our purposes the distinction lies in the requirement of agency by estoppel that there be personal reliance by the plaintiff, while apparent authority can exist although the plaintiff is damaged because of reliance by another.

While New England Mut. Life Ins. Co. v. Swain, supra involved an issue of a principal’s liability for the deceit of his agent, the principle there stated applies equally as well where the issue is defamation. The Court stated, “Under the law it is not necessary to show that he had actual authority, an apparent authority in the exercise of his employment was sufficient, but the company would not be liable for such an act of its agent unless it was within the scope of his employment, actual or apparent.” Id. at 577-78, 60 A. 474. (Citations omitted; emphasis in original).

Aetna Life Ins. Co. v. Mutual Benefit Health & Accident Ass’n, 82 F. 2d 115 (8th Cir. 1936), is authority for the proposition that an insurance company can be held vicariously liable for its agent’s tortious act, if that act was within the scope of the agent’s apparent authority even though the insurance company had expressly forbidden the specific act. In Aetna, one Buchanan, who was admittedly a general agent of the insurance company, prepared and published a letter containing defamatory statements about the financial condition of a competing company. The letter was distributed to subagents who orally passed the word along to prospective customers. Witnesses for the insurance company testified that they had specifically instructed the agent that circulars or letters referring to other insurance companies “must not be used under any circumstances,” and the defense of the insurance company rested on its contention that the writing of the letter was not within the scope of the agent’s employment. In rejecting this contention, the Court stated:

“A corporation is liable for the acts of its agent, either in contract or tort, done or committed in the course of employment in the business of the corporation.... And a libel ‘respecting its business, its ability to do business, its method of doing business, its credit or solvency, is libelous per se.’ ... In issuing instructions, suggestions, and information to its subagents, Buchanan was acting within the scope of his employment. The fact that, in executing the work, he may have exceeded or violated his master’s instructions cannot aid appellant.... ‘A master is responsible for the tortious acts of his servants, done in his business and within the scope of their employment, although he did not authorize or know of the particular act, or even if he disapproved or forbade it.” Id. at 120. (Citations omitted).

We agree with appellant that this is a correct statement of the law; however, the facts of the case sub judice are distinguishable in that in Aetna there was no question as to Buchanan’s express agency, the sole question being the scope thereof. The facts in that case disclose, however, that the libel consisted of statements made in a letter from Buchanan to the subagents who worked for him in his territory. The facts showed that Buchanan was the “chief officer” of Aetna in that territory. His duties included the selection, appointment and training of subagents who reported to him and worked under his instructions. It was part of his job to give them oral and written instructions as to the ways to get business and sell insurance. The libelous statements were made by Buchanan in a letter to all subagents advising them that “this information should be invaluable to you when you have to meet this assessment outfit in competition.” Obviously, Buchanan had actual authority to train subagents and although he had been advised not to discuss the competition in written material, he was expressly authorized to write any letters to his subagents or to prepare circulars to them. In the case sub judies the facts clearly establish a lack of any express authorization or direction by Mutual Fire to Evander to prepare and distribute written advertising material of any type.

Turning to the affidavits filed by the parties, there is absolutely no allegation that Mutual Fire took any affirmative steps to hold Evander out as its agent. It undertook no public advertising or private communication to anyone which would constitute one of the requisite manifestations of agency. Nor did it in any way ratify or adopt the information contained in the brochure. Additionally, Mutual Fire did not by lack of diligence on its part fail to take any required action which would justify holding Mutual Fire vicariously liable. Appellant’s affidavits raise no issue of material fact with regard to Mutual Fire’s allegations that it had not seen or reviewed the brochure; that it in fact had no knowledge of its existence, and that it had specifically forbidden the publication of any advertising material without its prior consent. Appellant’s general allegations of Evander’s dealing with Mutual Fire on an exclusive basis and underwriting a large number of policies is irrelevant to the type of holding out which would have to be shown to raise a jury question as to whether apparent authority was vested in Evander. Nor, in the absence of an allegation that Mutual Fire authorized, had knowledge of, or subsequently ratified the advertisement in The Evening Sun, can we find the requisite holding out by virtue of that advertisement.

In sum, we find no genuine dispute as to a material fact and conclude that the trial court was correct in holding as a matter of law that Evander was neither the general agent, the agent for the purpose of publishing the brochure, the agent by estoppel, nor the apparent agent of Mutual Fire.

Judgment affirmed; costs to be paid by appellant.

      . Much, Ado About Nothing, II, i, 184. The selection of the quote from this play is not intended to be a subtle comment on the subject matter of this controversy.

      . Rule 605 a provides:
      “Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”

      . The “Surplus Line Insurance Law” is found in Maryland Code (1957, 1976 Cum. Supp.) Art. 48A, §§ 183-199. Section 184 states the conditions under which a surplus line policy may be issued:
      “If the full amount or policy of insurance required to protect the interest of the insured cannot be obtained from insurers who are authorized to do business in this State, such surplus amount or policy, hereinafter designated as surplus line, may be procured from unauthorized insurérs subject to the following conditions:
      (a) If procured through a broker, the insurance must be procured through a licensed surplus line broker licensed in Maryland;
      (b) The insurance must be eligible as surplus line in accordance with the provisions of this subsection.
      (1) A diligent search and effort must be made among the insurers who are authorized to transact and are actually writing the particular kind and class of insurance in this State, and the amount of insurance eligible for an unauthorized insurer is only the excess over the amount procurable from authorized insurers.
      (2) The insurance must not be procured for the sole purpose of securing advantages either as to:
      (i) A lower premium rate than would be accepted by an authorized insurer; or
      (ii) Terms of the insurance contract;
      (iii) Provided nothing in this subtitle shall be construed to prohibit a more favorable premium rate or more favorable terms of the insurance contract in an unauthorized insurer, if the risk is eligible as surplus line in accordance with the provisions of subsection (b) (1) above.
      (c) There must be compliance with the other applicable provisions of this subtitle.”


text:
    BEVERLY BERNSTEIN, SAMUEL COHN and ALBERT ABRAMSON, Executors of the Estate of Bernard Libby et al. v. ALEXANDER REFORZO et al.
    [No. 70,
    September Term, 1977.]

      Decided November 9, 1977.

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

      William H. Clarke for appellants.

      Peter J. Messitte, with whom were Messitte & Rosenberg, P. A. on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

Alexander Reforzo was a tenant in the Blair Towers Apartments at 8103 Eastern Avenue on April 18,1970, when his son, John, age 9, was injured while playing with a friend who resided at 8101 Eastern Avenue, a part of the same apartment complex. The friend had a toy gun and was urging John to stay and play with him despite John’s desire to go home and eat. They wrestled and then the friend proceeded to chase John through a corridor of the apartment building. John, who was “jogging,” approached the exit doors to the building at 8103 Eastern Avenue and pushed below the pushbar on a glass exit door as he had done before without incident. This time, however, the glass shattered and John pitched through the lower half of the door and was stabbed in the left eye by shards of glass. Immediately after the accident, his left eye was removed by surgery, and eventually a plastic eye was inserted in its place. The door in question was marked with decals and was equipped with a pushbar for use in opening the door. Prior to the accident, John had been warned on at least two occasions by the apartment manager not to run in the corridors.

The Reforzos, the appellees, instituted suit in the Circuit Court for Montgomery County alleging the injury occurred as the result of the negligence of the owners of the Blair Towers Apartments, the appellants. The jury returned verdicts in favor of John Reforzó and Alexander Reforzo in the amounts of $125,000 and $3,513.91 respectively. On appeal the appellants argue the trial judge committed a number of reversible errors. Due to our disposition of the case, we need to discuss only whether the trial judge erred in refusing to grant the appellants’ motion for a directed verdict.

The appellees’ claim of the negligence is grounded on the evidence that the door in question contained 1/4" polished plate glass rather than a stronger type of glass, such as tempered glass. The appellants argue that this is legally insufficient to support a finding of negligence. We agree. In deciding this issue we must consider all the evidence along with all logical and reasonable inferences deducible therefrom in a light most favorable to the appellees and if there is any evidence of negligence, however slight, the denial of the appellants’ motion for a directed verdict must be upheld. Beahm v. Shortall, 279 Md. 321, 368 A. 2d 1005 (1977).

The testimony revealed that the apartment building in which the accident occurred was part of a complex designed in 1958 by Joseph H. Saunders, an architect with an office in Alexandria, Virginia. The plans for the four apartment buildings called for exterior lobby glass doors of tubulite design with even aluminum frame and 1/4" polished plate glass. The architect testified that he specified the particular glass because “it was a normal standard entrance used in thousands of other buildings at the time, stores, apartments, whatever.” He stated that he did not specify Herculite (tempered) glass doors which were 5/8 to 3/4" thick because they were not in keeping with the architectural design of the projects and were substantially more expensive than the doors specified. The building was designed to meet the 1958 Code requirements of Montgomery County. The plans were approved by the Building Construction Department of Montgomery County and building permits were issued. Although the plans did not specify interior doors, during the construction the owners added interior doors which were similar to the exterior doors to form vestibules to the apartments. The apartment complex was constructed during 1959 and 1960, after which it was subject to two inspections by the county authorities and was approved even though the original plan had not been amended and the extra doors were not specifically approved.

The evidence introduced by the appellees on which their claim of negligence rests consisted of the testimony of one expert witness, Mr. Mario Zeolla. Mr. Zeolla was an architectural glass consultant who was employed in the Research Department of the Pittsburgh Plate Glass Company from 1943 to 1973, when he retired. After 1973, he became a glass consultant and testified in courts around the country pertaining to matters involving glass. He has been a member of the Glass Door Safety Committee of the Architectural Aluminum Manufacturers Association since 1963, and from 1968 until 1974 he was Chairman of the Consumer Safety Glass Committee. Mr. Zeolla has also written numerous articles on the subject of glass door safety.

Mr. Zeolla was familiar with the type of 1/4" polished plate glass tubulite design doors that were used in the apartments. He testified that the shattering level of the glass was an average of 40 foot pounds but it could range from 25 to 80 foot pounds. A child approximately 54 inches tall, weighing 70 pounds and walking at 4 miles per hour would exert about 38 foot pounds, but if the child were jogging, he would be traveling about 8 miles per hour and have an impact, if he struck the glass at that speed, of 105 foot pounds. After he explained the characteristics of polished plate glass, Mr. Zeolla noted that at the time the building was constructed, other types of glass were available such as heavy plate glass, tempered glass, wire glass, and laminated glass. According to his testimony, tempered glass was three or four times more resistant than polished glass of the same thickness while wire glass, although no stronger than polished plate glass, presented less of a danger because the broken fragments were retained mechanically by the wire mesh. This same effect could also be achieved through the use of laminated glass. In 1958 tempered glass was about 2-1/2 times the price of polished glass.

In his dealings with glass customers, Mr. Zeolla normally recommended the use of tempered glass. His recommendation was made in part on his study of accidents with glass doors. This study revealed that individuals approaching doors often will push on the glass, either with their hand or their shoulder, even though the door contains a pushbar or some other similar device. He stated that in 1960 the National Safety Council became involved in the study of accidents involving plate glass doors and helped disseminate information concerning the safety of the doors in trade magazines and popular journals during the period from 1958 to 1970.

The direct examination of Mr. Zeolla concluded with a hypothetical question to which he responded:

“In my opinion, with quarter-inch plate glass in a door and all of the other statements you have made involving children who will require, who are required to use that door, realizing that children are the most active segment of our society, my opinion would be that application is unreasonably unsafe.”

By Mr. Messitte:

“Q. Can you use the. word ‘inherently' unsafe? Does that apply?
“A. Yes.”

On cross-examination Mr. Zeolla admitted there was nothing unusual about the use of plate glass in a door of this type. Rather, its use was widespread. The appellants produced testimony that doors of a similar type were in use in the courthouse in which the case was being tried. They also produced evidence that the doors in question were serviced every three or four months by a firm specializing in that type of business and that they were last serviced in the beginning of 1970. There had been no other accidents involving glass doors in the apartment complex. There was no evidence that the doors in question were in any way scratched or damaged.

The basic legal principles governing the liability in this type of case are well settled. No presumption of negligence on the part of an owner arises because injury has been sustained by a tenant, for the owner is not an insurer of the safety of tenants or others. Where a landlord leases portions of the premises to different tenants and retains control of those portions of the property used in common by all the tenants, he must use ordinary care to keep portions retained under his control reasonably safe. Ramsey v. D.P.A. Associates, 265 Md. 319, 289 A. 2d 321 (1972); Elmar Gardens, Inc. v. Odell, 227 Md. 454, 177 A. 2d 263 (1962). In determining whether something is in a reasonably safe condition, the Court of Appeals in Long v. Joestlein, 193 Md. 211, 216-217, 66 A. 2d 407 (1949), stated the general rule as follows:

“It is an accepted principle in the law of negligence that, in the construction and maintenance of a building, the owner discharges his obligation to exercise due care toward those to whom he owes a duty to keep the premises in a reasonably safe condition if he conforms to established custom in the particular instance, provided that such customary method of construction and maintenance is not inherently dangerous or obviously improper.”

The rule was reiterated in Ramsey v. D.P.A. Associates, supra (265 Md. at 321).

The testimony revealed that it was customary to use glass doors containing 1/4" polished plate glass in apartments during the period in question. This established the custom in the trade and the evidence showed that the appellants had complied with that custom. Our inquiry must, therefore, focus on whether the use of such glass was “inherently dangerous or obviously improper.”

In order for polished plate glass to be deemed “inherently dangerous” it must be dangerous in its ordinary, non-defective state. Watts v. Bacon & Van Buskirk Glass Co., 18 Ill. 2d 226, 163 N.E.2d 425 (1959); La Plant v. E. I. Du Pont de Nemours & Co., 346 S.W.2d 231 (Mo. App. 1961); General Bronze Corp. v. Kostopubs, 203 Va. 66, 122 S.E.2d 548 (1961). Utilizing this definition we have no trouble concluding the glass is not “inherently dangerous.” There is no evidence that there is any inherent danger in the use of plate glass such that special precautions, other than those used here, must be taken in order to prevent injury. Plate glass has been used in thousands of buildings without incident. The usual items which fall within the category of “inherently dangerous” are explosives and poisons.

Similarly the use of polished plate glass cannot be deemed “obviously improper.” That term refers to situations where the industry standard is obviously unsafe or, because of some factor not inherent in the trade generally, another method of maintenance is dictated. An example of the latter case was presented in Honolulu Ltd. v. Cain, 244 Md. 590, 224 A. 2d 433 (1966). There, because of the particular drainage conditions of a parking lot the application of the standard method of snow removal increased the danger of personal injury. The defendant had argued use of the standard procedure discharged his duty of care. The Court of Appeals rejected this argument stating:

“Conformance to an industry standard is, of course, often weighty evidence that the action in question is reasonable and non-negligent. It is not, however, conclusive evidence .... When circumstances make the customary method ‘inherently dangerous or obviously improper’ the duty of reasonable care requires a change from ordinary practice.” Id. at 598.

In the instant case the only circumstances that might dictate deviation from the industry custom was the fact the apartment complex in question contained a number of children. While this is an appropriate factor to be considered, we do not think the evidence introduced at the trial warranted a finding that the industry standard was improper under these circumstances. The testimony showed that on the average 1/4" polished plate glass would break on an impact of 40 foot pounds and that the range of breakage was from 25 to 80 foot pounds depending upon the condition of the glass. A child walking and pushing on the glass would not exert sufficient force to break the glass, but a child running and pushing on it might. The precise question we are called upon to decide, therefore, is whether or not the appellants could be found negligent because the glass in the doors might not withstand a blow from a running child. Under the particular facts of this case, we do not think that they could. The glass in question was recommended by an architect and met the building code requirements. It was installed in 1959 or 1960 and from the date of installation until 1970 there were no incidents involving the glass doors. The mere fact that stronger materials could have been used in construction or were available for replacement is insufficient to support a finding of negligence. Long Co. v. State Accident Fund, supra. Cf. Watts v. Bacon & Van Buskirk Glass Co., supra (negligence found where architect had recommended tempered glass in a drugstore and there had been a previous accident involving the glass door in question).

In deciding the appellants were not negligent as a matter of law we have not ignored the testimony of the appellees’ expert witness, but the testimony of an expert giving his opinion that an object is inherently dangerous does not make it so. It is well settled in Maryland and elsewhere that an expert’s opinion is no better than the facts on which it is based. A. H. Smith Sand & Gravel Co. v. Department of Water Resources, 270 Md. 652, 313 A. 2d 820 (1974); Anderson v. Sawyer, 23 Md. App. 612, 329 A. 2d 716 (1974), cert. denied, 274 Md. 725. See particularly Long v. Joestlin, supra:

“At the trial of this case E. Russell Marcks, former president of the Maryland Society of Architects, produced by plaintiff as an expert witness, expressed the opinion that it is not good architectural practice to put a single step at the end of a hall several feet away from a stairway, as the step might be overlooked. Plaintiff argued that inasmuch as her expert witness and defendant’s expert witness entertained contrary opinions as to whether the step was dangerous, there was a conflict in testimony which warranted submission of the case to the jury. However, we think defendant could not be held guilty of negligence even if plaintiff’s witness testified that the step was dangerous. There was no dispute as to the condition of the step, the landing and the stairway. The riser of the step measures 8 inches, the same as each of the risers in the stairway. There was nothing about this particular step to make it unusual. No admission in evidence of expert opinion can establish liability for negligence where common knowledge shows that there was no danger so substantial that a man of ordinary prudence in the position of the defendant would have anticipated injury and guarded against it. Pastrick v. S. S. Kresge Co., 288 Mass. 194, 192 N. E. 485; Johnson v. Town of Orange, 320 Mass. 336, 69 N. E. 2d 587.” (193 Md. at 219).

We are unimpressed with the appellees’ argument that because the doors were added after the plans had been approved there was a failure to comply with the building code. The code called for 7/32" polished plate glass while the doors in question were 8/32" and there is nothing about the placement of the doors that increased the danger of personal injury. The addition of the doors could not be the proximate cause of the injury.

Judgments reversed.

Appellees to pay the costs.

      . The Montgomery County Building Code specified that apartment doors contain 7/32" polished plate glass.

      . A 40 foot pound impact force is equivalent to dropping a 40 pound weight from the height of one foot on a horizontally supported piece of glass.

      . In discussing the liability of employers to provide a safe place for employees to work, the Court in Long Company v. State Accident Fund, 156 Md. 639, 144 A. 775 (1929) said:
      “ ‘The true rule has been nowhere better stated than in Titus v. Bradford R. R., 136 Pa. 626, in which the court said: “Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences not of danger, but of negligence, and the unbending test of negligence in methods, machinery and appliances, is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the standard of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced there is a better and less dangerous way, no jury can be permitted to say that the usual and ordinary way commonly adopted by those in the same business is a negligent way.” ’ ” (Emphasis added). Id. at 653-654.
      “In our opinion, notwithstanding the failure of the employee of the appellant to detect the weakness of the particular joist which broke, due to the presence of knots, when that joist was only to be used in a temporary structure, and when it is shown that it broke before the temporary structure was completed, and further, that, in the purchase of the lumber of which the broken joist was apart, the type and grade used was that usually and customarily used by contractors and builders generally, the grade being such as usually contained knots, there was no actionable negligence on the part of the appellant, and the jury should not have been permitted to bring in a verdict for the plaintiff because they may have believed there was a better and safer way to have constructed the temporary forming. It follows that the trial court erred in not granting the defendant’s ‘A’ prayer, directing a verdict for defendant, and for this reason the judgment must be reversed.” (Emphasis added). Id. at 655.

      . It should be noted the doors were equipped with decals and safety bars.

      . The appellees could not be required to foresee that the legislature of Maryland would in 1973 require installation of a stronger glass in new apartment installations. Md. Code, Art. 41, § 266GG.


text:
    STERLING TENNISON et al. v. LOUIS E. SHOMETTE et al.
    [No. 88,
    September Term, 1977.]

      Decided November 9, 1977.

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

      Walter B. Dorsey for appellants.

      James A. Kenney, III, with whom were Briscoe, Kenney & Kaminetz on the brief, for appellees Shomette and Stanhagen. Joseph E. Bell, II, County Attorney for St. Mary’s County, for other appellee.
   Thompson, J.,

delivered the opinion of the Court.

In this appeal we are presented with two issues: (1) whether there was sufficient evidence of mistake to rezone certain property, and (2) whether the rezoning of that property constituted illegal spot zoning.

The appellants, Sterling Tennison and a number of other land owners, appeal from an order of the Circuit Court for St. Mary’s County signed by Judge Joseph A. Mattingly, approving a zoning change made by the County Commissioners of St. Mary’s County on a tract of land owned by the appellees, Louis E. Shomette and William H. Stanhagen. The land in question, which was acquired by the appellees in 1973, consists of approximately 9.873 acres and is located along the southbound lane of Md. Route 235 on the approach to Lexington Park, Maryland. At the time the property was acquired there was no comprehensive plan for St. Mary’s County and the property was zoned residential. The appellees submitted an application to the Planning Commission in August of 1973 requesting that the property be rezoned commercial so that they could erect a Holiday Inn. On September 24, 1973, the Planning Commission recommended that the property be rezoned as requested and the recommendation was approved by the County Commissioners on November 6, 1973. Relying upon the zoning change, the appellees expended substantial sums of money in acquiring site plans, building plans, loan commitments, and other items related to the construction of the motel. In 1974, St. Mary’s County prepared and adopted a comprehensive zoning ordinance for the entire county. Under this ordinance the property was zoned C-l which would preclude the erection of a motel.

As soon as the appellees learned of the zoning classification of the property, they applied for a reclassification from C-l to C-2, a category that would permit the erection of a motel. The basis for this requested change was that the property had been mistakenly designated C-l in the Comprehensive Plan. The application was referred to the Planning and Zoning Commission and Technical Evaluation Commission for review and after they approved the request, a hearing was held before the County Commissioners.

At the hearing, Eobert C. Willard, the Director of Planning for St. Mary’s County at the time the ordinance was enacted, explained why the property was not zoned C-2. According to Mr. Willard, the Planning Commission in developing the Comprehensive Plan had established a policy of incorporating into the plan zoning changes that had been recently approved. When the recommendations for the property in question were made by the Planning Commission, they neglected to note that a motel was not permitted in a C-l category and zoned the entire area C-l. The members of the Board of County Commissioners at the time also stated that it was their intent to zone the property to accommodate the construction of a Holiday Inn and the C-l classification was a mistake. More specifically, they stated: There was also evidence that the Commissioners had publicly stated they did not intend to have the Comprehensive Plan change recent zoning decisions.

“At that time, we had found that changes in the neighborhood since the original zoning supported the application and that the rezoning was compatible with the new Master Plan and the proposed Zoning Ordinance. For these reasons, we believed the property was zoned as of the adoption of the new ordinance and maps to accommodate the construction of a Holiday Inn.”

James Parker, a planning expert, testified that the C-l classification was inconsistent with the overall scheme of the Comprehensive Plan. According to the zoning ordinance, property placed in the C-l category “is primarily intended to provide convenience shopping for persons residing in adjacent residential areas and to satisfy those basic shopping needs which occur daily or frequently and so require commercial facilities in close proximity to residences.” There are no proposed or existing residential areas adjacent to the property and the nearest neighborhood is on the other side of Route 235. Access to the land from this neighborhood would require the crossing of a dual-lane highway and would present traffic problems. Under these circumstances, Mr. Parker thought that the highway acted as a barrier and prevented the land in question from being used to serve the needs of the local residents. A more reasonable approach, according to Mr. Parker, would be to establish a . C-l district immediately adjacent to the residential neighborhood. In addition to Mr. Parker’s testimony, the Planning Commission and the Office of Land Use and Development stated that the proper use of the property was not compatible with its existing zoning classification.

In contrast to the unsuitability of the land as a C-l use, Mr. Parker testified that the land was ideally suited for the construction of a motel. Under the zoning ordinance, C-2 districts are “intended for commercial activities and establishments which are not primarily related to residential developments and which require accessibility from major highways in the county.” The appellees’ property is situated near the probable intersection of Route 235 and the access road to the bridge across the Patuxent River that is presently under construction. The property is bordered on one side by a fire department and Elks Club, which Mr. Parker thought acted as a buffer between the property and existing residential uses further to the south. There is also an old railroad bed, now converted to a utility right of way to the rear of the property which would act as a barrier to any adjoining uses that might develop.

The County Commissioners considered this evidence and approved the request on June 3, 1976. On appeal to the Circuit Court for St. Mary’s County the rezoning of the appellees’ property was upheld on the basis that there had been a mistake in the Comprehensive Plan.

I Rezoning Based on Mistake in Comprehensive Plan

The appellants contend that the evidence before the County Commissioners was insufficient to support a finding of mistake. In determining whether a mistake has been made, a number of general principles have been established. There is a strong presumption that the original comprehensive zoning plan was correct and in order to sustain a piecemeal change there must be strong evidence of mistake. Pattey v. Board of County Commissioners, 271 Md. 352, 317 A. 2d 142 (1974); Stratakis v. Beauchamp, 268 Md. 643, 304 A. 2d 244 (1973). In considering whether this presumption has been overcome a more liberal standard is applied when the property is being reclassified from one commercial subcategory to another than is applied when the reclassification involves a change from one use category to another. Chapman v. Montgomery County Council, 259 Md. 641, 271 A. 2d 156 (1970); Missouri Realty, Inc. v. Ramer, 216 Md. 442, 140 A. 2d 655 (1958). See also Note, Zoning Change: Flexibility v. Stability, 26 Md. L. Rev. 48 at 51 (1966). Once evidence strong enough to render the issue of rezoning fairly debatable is produced, the change in zoning will be upheld since it is not the function of the courts to substitute their judgment for that of the zoning authority. Mayor of Rockville v. Henley, 268 Md. 469, 302 A. 2d 45 (1973); Mack v. Crandell, 244 Md. 193, 223 A. 2d 248 (1966); Hyson v. Montgomery County Council, 242 Md. 55, 217 A. 2d 578 (1966); Anne Arundel County v. Maryland National Bank, 32 Md. App. 437, 361 A. 2d 134 (1976). Applying these principles to the instant case, we think the evidence was sufficient to render the issue of mistake fairly debatable.

In addition, the evidence shows the original Commissioners and the planning officials overlooked the recent approval of the zoning change when they enacted the comprehensive zoning ordinance. The appellants, citing Pattey v. Board of County Commissioners, supra, and Miller v. Abrahams, 239 Md. 263, 211 A. 2d 309 (1965), argue these administrative mistakes are insufficient to justify the change in zoning. Both of these cases are distinguishable and do not support the appellants’ argument. In Pattey the planners mistakenly recommended that the property be placed in agricultural and conservation districts. The Court of Appeals struck down a change in the Comprehensive Plan stating that in order to justify the change, the mistake must be that of the legislative body, not of the planners. Unlike Pattey, in the instant case, there was evidence supporting the finding that both were in error. In Miller v. Abrahams, the council in passing the zoning resolution stated that it was adopting the Planning Board’s recommendation for R-6 zoning when in fact the Planning Board had recommended B-L zoning. This fact was insufficient in this case because there was evidence that despite this error the council considered R-6 zoning to be proper. In the case before us, the evidence showed that the County Commissioners intended to zone the property C-2 but zoned the property C-l instead. This alone would support the decision below.

The appellants also argue that even if there were a mistake, under the St. Mary’s County Zoning Ordinance, § 17.5 B, in order for a zoning change to be justified the mistake must be inconsistent with the adopted plan. In response to this argument, the appellees maintain the required finding of inconsistency is improper under Md. Code, Art. 66B, § 4.05 (a). We need not decide this issue because irrespective of the propriety of the St. Mary’s County Zoning Ordinance there was ample evidence to show the C-l classification was inconsistent with the Comprehensive Plan. The testimony shows that the Planning Commission, Office of Land Use and Development, and a planning expert thought the present classification was not compatible with the purpose of the C-l classification enunciated in the Comprehensive Plan. This evidence not only showed the requisite inconsistency required by the ordinance but was in itself sufficient to render the issue of mistake fairly debatable.

The appellants, citing Miller v. Abrahams, supra, maintain the recommendation of the Planning Commission and the testimony of the expert did not furnish strong evidence showing the present classification was inconsistent with the adopted plan. Normally the recommendation of the Planning Commission that the change be granted is sufficient to render the issue fairly debatable. See Montgomery v. Board of County Commissioners, 263 Md. 1, 280 A. 2d 901 (1971); Messenger v. Board of County Commissioners, 259 Md. 693, 271 A. 2d 166 (1970); Stephens v. Montgomery County, 248 Md. 256, 235 A. 2d 701 (1967). In this case the Planning Commission merely stated the use was incompatible but did not state the facts upon which it was based. As such, this recommendation alone cannot serve as strong evidence of mistake. See Stratakis v. Beauchamp, supra.

This deficiency was rectified by the testimony of Mr. Parker. Unlike the expert in Miller v. Abrahams, Mr. Parker stated that the property was not suitable for a C-l classification. This testimony was supported by factual evidence, and thus serves as strong evidence of mistake.

II Spot Zoning

The appellants’ second contention is that rezoning of a small tract of land C-2 in the midst of a C-l district amounted to illegal spot zoning. We fail to see any merit in this contention.

Spot zoning occurs when a small area in a district is placed in a different zoning classification than the surrounding property. Hewitt v. County Commissioners, 220 Md. 48, 151 A. 2d 144 (1959); Huff v. Board of Zoning Appeals, 214 Md. 48, 133 A. 2d 83 (1957). Spot zoning is not invalid per se. Rather, its validity depends on the facts of each individual case. Spaid v. Board of County Commissioners, 259 Md. 369, 269 A. 2d 797 (1970). While spot zoning is illegal if it is inconsistent with an established comprehensive plan and is made solely for the benefit of private interests, it is a valid exercise of the police power where the zoning is in harmony with the comprehensive plan and bears a substantial relationship to public health, safety, and general welfare. Trustees of McDonogh Educational Fund & Institute v. Baltimore County, 221 Md. 550, 158 A. 2d 637 (1960); Hewitt v. County Commissioners, supra; Huff v. Board of Zoning Appeals, supra; Cassel v. Mayor of Baltimore, 195 Md. 348, 73 A. 2d 486 (1950).

In arguing that the .rezoning constitutes impermissible spot zoning the appellants have overlooked testimony indicating other properties in the immediate area have been rezoned to C-2. Even if this property were the only C-2 use permitted in the area, it would not amount to invalid spot zoning as the change is for the public good and is consistent with the Comprehensive Plan. The property is presently located in a commercial district and the proposed use of the property in question is compatible with the other uses permissible in the C-l district. The mere fact that the use is somewhat different than the uses permitted under the C-l classification does not render the use inconsistent with the Comprehensive Plan. Cassel v. Mayor of Baltimore, supra. As we previously noted the present classification of the land was inconsistent with the purposes enunciated in the Comprehensive Plan. Contrary to appellants’ assertion, there was also ample evidence to show the land was rezoned due to a community need for a motel complex of this type and not solely to benefit the appellees.

Finally, the appellants urge that it is impermissible in and of itself to classify a single lot differently from the surrounding district. Once again the appellants have overlooked the fact other lots in the area have been rezoned C-2. There is, however, a more fundamental problem with this argument. In determining whether impermissible spot zoning exists, the size of the land in question is not controlling. The only relevant inquiries are whether the rezoning is inconsistent with the Comprehensive Plan and whether it was done for the public good or private benefit. See Huff v. Board of Zoning Appeals, supra, n. 1.

Order affirmed.

Appellants to pay the costs.

      . Prior to the adoption of the Comprehensive Plan, only the eighth district was subject to zoning regulations.

      . The Board of County Commissioners had previously approved the requested change on Jan. 30,1975, but on appeal the case was remanded for failure to make findings of fact as required by § 17.5 B of the St. Mary’s County Zoning Ordinance and Md. Code, Art. 66B, § 4.05 (a).

      . There is a C-l district immediately adjacent to the neighborhood referred to by Mr. Parker.

      . 17.5 B. “Change can only be allowed (1) where the findings of fact justify the need for the change, and where the proposed change is compatible with the master plan and will not adversely affect the ability of the county to provide the services identified in the master plan and attendant plans; or (2) upon finding there was a mistake or error in the original zoning classification which was inconsistent with the adopted plan.”

      . Md. Code, Art. 66B, § 4.05 (a) “Generally; findings for reclassification. — Such regulations, restrictions, and boundaries may from time to time be amended, supplanted, modified, or repealed. Where the purpose and effect of the proposed amendment is to change the zoning classification, the local legislative body shall make findings of fact in each specific case including, but not limited to, the following matters: population change, availability of public facilities, present and future transportation patterns, compatibility with existing and proposed development for the area, the recommendation of the planning commission, and the relationship of such proposed amendment to the jurisdiction’s plan; and may grant the amendment based upon a finding that there was a substantial change in the character of the neighborhood where the property is located or that there was a mistake in the existing zoning classification. A complete record of the hearing and the votes of all members of the local legislative body shall be kept.”
      The county ordinance in question was amended in 1977 to strike the requirement that the classification assigned due to mistake be inconsistent with the adopted plan in order to grant a change in zoning.