author: Moore, J.,

text:
    JOHN THOMAS JOHNSON, JR. et al. v. WILLIE EDWARD DORTCH
    [No. 938,
    September Term, 1974.]

      Decided July 25, 1975.

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

      James J. Fabian, with whom was John W. Pfeifer on the brief, for appellants.

      A. Douglas Owens, with whom was John Addison Howard, on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, October 24,1975.

   Moore, J.,

delivered the opinion of the Court.

The correlative rights and duties of motorists under Maryland’s Boulevard Rule . are again before us, this time in the startling context of the favored driver’s alleged

— intoxication
— excessive speed
— driving at night without headlights, and
— operating on the wrong side of the road.

The accident occurred in Baltimore City at a “T” intersection when the unfavored driver was negotiating a right-hand turn. Essentially because the unfavored driver failed to see the favored driver — where the evidence led the trial court to find that had he looked, he would have seen — the Court held the Boulevard Rule applicable and granted the favored driver’s motion for a directed verdict at the close of all the evidence. We affirm.

I

On Saturday night, February 24, 1973, at 11:45 p.m., John T. Johnson, Jr. (plaintiff-appellant), age 19, was driving home with his fiance, on Riverside Avenue, a one-way southbound street with two parking lanes on either side and one travelling lane. It formed a “T” intersection with Randall Street — the “boulevard” — consisting of four lanes going east and west, with one parking lane in each direction. Stop signs controlled Riverside Avenue at its dead-end with Randall Street.

Shortly before 11:45 p.m., Willie Edward Dortch (defendant-appellee) left Skip’s Tavern, located a few blocks from the intersection of Randall Street and Riverside Avenue. He had gone to the tavern at 9:30 p.m. and was returning to his home, operating his vehicle in an easterly direction on Randall. He testified that, as he approached Riverside Avenue he saw Johnson’s car coming:

“I saw the headlights and presumed he was going to stop. He didn’t stop. He came out and he made a swing to make a righthand turn. He came on my side of the street and that’s where the impact happened, and I slid, I imagine 10 feet after I hit him.”
“I put on brakes and I turned to the right trying to miss him, and the cars were parked on the lefthand side of the street, and I couldn’t go no farther and miss him without hitting the parked cars.”

Appellant Johnson’s version was different. He testified:

“Well, I was coming up Riverside Avenue to Riverside, I stopped there — I mean Randall. I stopped there at Randall at the stop sign and looked both ways twice. So, when I started to go out — when I started to make my right turn, it was about a — well, I didn’t see nothing coming, so I started to turn and right — I didn’t make my full complete turn when Mr. Dortch hit me.”

Upon further interrogation, on direct and cross-examination, Mr. Johnson stated that Mr. Dortch was travelling in the wrong lane (a westbound lane, instead of eastbound) and was operating without headlights; that at the time of impact, about one-half of Johnson’s vehicle was still in the bed of Riverside Avenue and that he saw Dortch’s car “about a couple of seconds before he hit me” and that it was then “about a foot away.” Despite this short period of observation, he estimated Dortch’s speed at 30 to 35 miles per hour, in a 25-mile zone. His own speed in making the right-hand turn, appellant testified, was about 3 miles per hour.

Asked what he observed on Randall Street before making his turn, appellant responded:

“A I didn’t see nothing. The traffic was — traffic was clear.
Q Did — could you see the roadway all the way downl
A Yes.
Q All the way down the next intersection?
A Yes. sir.
Q And you didn’t see Mr. Dortch’s car coming?
A No, sir.
Q Then, you turned and looked to your left?
A Yes, sir.
Q Approximately how long did you look to your left?
A Long enough to see the traffic was clear.
Q Then, what did you do?
A When I seen the traffic was clear I started making my turn.
Q But, did you look back to your right again?
A Yes.
Q When you looked back to your right again, could you see all the way down to the next corner .
A Yes, sir.
Q What did you seel
A Nothing.
Q Then, what did you do?
A I started making my turn.
Q And did you see Mr. Dortch’s car at all before you came in contact with itl
A A bout a couple of seconds before he hit me.
Q How far was his car from your car when you first saw itl
A Say about afoot.” (Emphasis added.)

The investigating police officer, William Council, on the basis of the positions of the vehicles and the presence of debris in the road after the accident, corroborated the testimony of the appellant that Mr. Dortch was on the wrong side of the street when the collision occurred.

Both appellant and Officer Council smelled alcohol on the breath of appellee and the officer stated that based on his observation of appellee’s slurred speech, sleepy attitude and swaying walk, he was intoxicated. Appellee was also given a breatholizer examination one hour later which registered a .24 percent blood alcohol reading. Appellee stated that he had consumed only 3 or 4 beers at the Tavern (although he had answered interrogatories admitting having 6 beers). The chemist who administered the breatholizer test was of the opinion that based on the alcoholic content of beer sold in Maryland and the necessary time for the metabolism of alcohol, “it would take much more than six beers to make a .24 percent blood alcohol.”

The Johnson vehicle was inoperable after the accident and the damages were estimated at $356.00. The damage to the Dortch vehicle was estimated at $401.80. Mr. Dortch was unhurt. Appellant Johnson was unaware of any personal injuries immediately after the accident. The next day, however, pursuant to arrangements made by his father, he was examined and x-rayed at the Emergency Room of South Baltimore Hospital. Thereafter, he came under the care of Dr. Arthur Serpick, an internist, and was also examined by Dr. Cohen, an orthopedic surgeon. The diagnosis was permanent chronic lumbar sprain.

At the conclusion of oral argument on motions for directed verdicts at the conclusion of all the evidence, Judge Dorf made the following ruling in favor of appellee Dortch which has given rise to this appeal:

“I have to go back to the record, that the unfavored driver in his testimony said that number one, he was — he could see all the way down the street. Number two, he looked to his right. Number three, he looked twice and he looked to his right again, looked to his right for the minutes, he did not see another car on the street up to the next intersection. He did not see the other car coming. He saw nothing. He made his turn. The vehicle was one foot away when he first saw it. He said, I saw him a couple of seconds before he hit me. Now, I think it’s clear that if, in fact, the vehicle was on the highway and obviously, he is on the highway. Obviously, it just didn’t jump up from the ground. If, in fact, the person on the unfavored highway had looked — if, in fact, he had looked properly, under the Boulevard Law, he had to see the vehicle coming down before it was one foot away, and if he didn’t see the vehicle before it was one foot away, it was became he didn’t look, and if he didn’t look, he was guilty of violation of Boulevard Law.” (Emphasis added.)

II

The facts of the case and the inferences fairly deducible therefrom considered — as they must be — in the light most favorable to Mr. Johnson, Wood v. Abell, 268 Md. 214, 230, 300 A.2d 665 (1973), reveal that the favored driver, Mr. Dortch, was guilty of four separate, serious traffic violations: driving while intoxicated, speeding, operating without headlights and driving on the wrong side of the street.

The narrow question on this appeal is whether these malefactions of the favored driver relieved appellant, the unfavored driver, “of the heavy responsibility placed on him by the stringent requirements of this [Boulevard] law.” (Emphasis added.) Creaser v. Owens, supra, 267 Md. at 243. In Creaser, after reviewing more than fifty opinions of the Court of Appeals in which the Boulevard Rule had been involved, the Court of Appeals held that neither excessive speed by the favored driver nor the obstructed vision of the unfavored driver (a Montgomery County school bus operator), whose view was impaired by a hill and a curve in the road and by a bank, trees and bushes, was an excuse for the failure of the unfavored driver to yield the right-of-way. Judge Digges, writing for the Court explained:

“The essence of these decisions, when distilled to their purest form, leaves no doubt that the duty of the unfavored driver to yield the right of way extends to traffic on the whole of the favored road and the driver on the favored highway has a right to assume that he will do so.”

The Court conceded that the Boulevard Rule “is exacting and sometimes may seem harsh” (pp. 245-6) but held that if its meaning and application are to be changed, only the Legislature may do so.

The hope expressed in Creaser that the Court’s stern application of the Boulevard Rule to the facts there presented, as well as its explication of the Rule, would discourage “attempts to create new exceptions to it” were declared to have been “dashed” when Hensel v. Beckward, supra, n. 6, came before the Court two years later. There, the collision occurred in Allegany County on a moonless night at an unilluminated intersection of Vocke Road, a four-lane divided highway, and Maryland Route 49, a two-lane highway. A stop sign controlled entry onto Vocke Road. Mr. Beckward and his wife, proceeding on Route 49, stopped at the stop sign and each looked twice for traffic on Vocke Road. Seeing none, they “began to drive very slowly” across the first two lanes of Vocke Road when they suddenly saw the favored vehicle about 20 to 25 feet away, approaching them at a fast rate of speed, mtk unlit headlights. The collision which followed resulted in Mr. Beckward’s being hospitalized and suffering permanent paralysis from the neck down.

Despite the egregious conduct of the favored driver in Hensel in speeding and not having his lights on, the Court of Appeals held that the boulevard rule required that a directed verdict in his favor be granted because the conduct of the unfavored driver in proceeding, albeit cautiously, onto Vocke Road amounted to contributory negligence as a matter of law. In reaching this result the Court relied primarily on its prior decision in Creaser.

Again writing for the Court, Judge Digges stated that “once again we are faced with a case in which the application of the ‘boulevard rule’ is sought to be avoided.” The Court quickly added (273 Md. at 427):

“Like the Rock of Gibraltar we remain firm and will not allow the legislative mandates contained in this right-of-way statute to be judicially either bypassed or otherwise eroded through new waves of attack.”

Encapsulating numerous prior cases, the Court came down flatly in this statement of their effect (p. 431):

“This large group of previous cases makes clear that when the unfavored driver sues, the ‘boulevard rule’ barring his recovery applies to an accident which occurs between an unfavored driver and the favored motorist on the ‘boulevard’, either in the intersection or at a point, though technically outside the intersection, so close to it that the unfavored entering driver interferes with the favored driver’s right-of-way into or through the intersection. Grue et al. v. Collins, 237 Md. 150, 157, 205 A. 2d 260 (1964), unless, under appropriate circumstances, the unfavored driver is rescued by the doctrine of last clear chance, Greenfeld v. Hook, 177 Md. 116, 8 A. 2d 888 (1939).”

Appellants urge that the doctrine of last clear chance, for which the case of Greenfeld v. Hook is cited in the above quotation, was applicable in this/case. We have carefully scrutinized the record but we are unable to find that this issue was presented to or decided by the trial court. Therefore it is not before us. Maryland Rule 1085. We have repeatedly held that we will not consider questions raised for the first time on appeal. Serdenes v. Aetna Life Insurance Company, 21 Md. App. 453, 319 A. 2d 858 (1974); Binder v. Binder, 16 Md. App. 404, 297 A. 2d 293 (1972).

We observe, however, that if we were to consider the matter on its merits, we think it is clear from the facts of this case that the doctrine of last clear chance is not applicable. The doctrine presupposes a perilous situation created or existing through both defendant’s negligence and plaintiff’s contributory negligence and assumes that there was a time after such negligence has occurred when the defendant could, and the plaintiff could not, by the use of means available avert the accident. State, Use of Taylor v. Barlly, 216 Md. 94, 140 A. 2d 173 (1958). As stated many times, defendant’s negligence must have been sequential to and not concurrent with plaintiffs negligence. State, Use of Taylor v. Barlly, supra; Pratt v. Coleman, 14 Md. App. 76, 286 A. 2d 209 (1972). Here, the unfavored driver’s own testimony reveals that almost as soon as his vehicle entered the boulevard, in the performance of his right turn, the accident occurred. The time lapse was, in Johnson’s words, “a couple of seconds.” As this Court stated in Oddis v. Greene, 11 Md. App. 153, 273 A. 2d 232 (1971), “There was no set sequence of events showing that defendant-appellee was presented with a new opportunity to avoid the consequences of [appellant’s] contributory negligence.” See also, Knisley v. Keller, 11 Md. App. 269, 273 A. 2d 624 (1971).

Appellant also seeks refuge in Nicholson v. Page, 255 Md. 659, 259 A. 2d 319 (1969), a solitary case permitting recovery by the unfavored driver. In Nicholson the unfavored driver-plaintiff came to an intersection with a boulevard and halted in obedience to a stop sign. He looked to his left and saw a bus standing with a line of several cars backed up behind it. The bus driver waved the plaintiff on and the plaintiff drove across the lane in front of the bus and then looked to his right for traffic coming in the other direction. He saw none and was proceeding to cross that lane also when he was struck from the left by a car which had been stopped behind the bus but which suddenly moved into the lane provided for traffic going in the opposite direction. That car passed the bus, intending to make a left turn, and collided with the plaintiff.

The most significant similarity between the facts in Nicholson and in the present case (and what appellant calls the “crucial factor”) is that, as alleged by appellant below and as corroborated by the police report, the favored driver in each case was proceeding in the wrong lane, for traffic going in the opposite direction, when he struck the plaintiff. The Court of Appeals in Hensel, however, strictly limited the application oí Nicholson, stating:

“This case is of no assistance to the petitioner here because it involved an affirmative relinquishment of the statutory right-of-way by the first in line of several vehicles stopped on the favored street, combined with the illegal entry into the intersection of another automobile which was traversing the intersection but turning left.”

The viability of Nicholson as a precedent was virtually destroyed when the Court continued:

“Furthermore, since as we said in Creaser, ‘nothing in that [Nicholson] decision was intended as a departure from the prior boulevard cases of this Court.’ 267 Md. at 247, it is doubtful that Nicholson has any precedential value except possibly in a case involving a substantial duplication of its peculiar facts.” (Emphasis added.)

This case does not involve the affirmative relinquishment of the right-of-way by the favored driver and appellant’s reliance upon Nicholson is misplaced.

The measure of appellant Johnson’s responsibility as the unfavored driver was graphically delineated by Judge Offutt in Greenfeld v. Hook, supra (177 Md. at p. 132):

“... it is the positive and imperative duty of a person driving an automobile over an unfavored highway, when he approaches an intersecting highway lawfully designated as a ‘boulevard’ or ‘stop street,’ to stop before entering the intersection, and having stopped, to exercise reasonable care and diligence to discover whether traffic thereon is approaching the intersection, and, having entered the intersection, to yield the right of way to such traffic, by permitting it to proceed without interruption, and that that duty persists throughout his passage across the favored way.” (Emphasis added.)

Here, the trial court correctly found the Boulevard Rule applicable and the Boulevard Rule violated by appellant. Other cases have held that the favored driver’s speed alone, Sun Cab v. Cusick, 209 Md. 354, 121 A. 2d 188 (1956); drinking and speeding, Tippett v. Quade, 19 Md. App. 49, 309 A. 2d 481 (1973); speeding and operating at night without lights, Hensel v. Beckward, supra, will “ordinarily not be considered a contributing factor.” Sun Cab v. Cusick, supra, p. 359. Here, the combination of all of those elements, under the facts of this case, still does not make out “a contributing factor.” Of overriding import is the failure of the unfavored driver “to exercise reasonable care and diligence to discover whether traffic [on the Boulevard] is approaching the intersection. . . .” Greenfeld v. Hook, supra. General human experience justifies the inference that when an individual looks in the direction of an object clearly visible, he sees it. When a person testifies that he looked but did not see that which was in plain sight, then it necessarily follows that either some part of such testimony is untrue or that the person was negligently inattentive. So. Md. Electric v. Blanchard, 239 Md. 481, 212 A. 2d 301 (1965).

The trial court correctly held that the unfavored driver was contributorily negligent as a matter of law.

Ill

Toward the conclusion of appellant’s brief, it is suggested that the trial court erred in directing a verdict against John Johnson, Sr. The cause of action of Johnson, Sr., alleged in the second count of the declaration, was based upon his claim of ownership of the vehicle operated by his son. He sought compensation for property damages and loss of use. At trial, an estimate of $356.00 for repairs to the vehicle and towing charges was received without objection.

The father, as owner, would not necessarily be bound by the contributory negligence of the son in the presence of primary negligence on the part of the favored driver. Price v. Miller, 165 Md. 578, 169 A. 800 (1933); Clark v. Junkins, 245 Md. 104, 225 A. 2d 275 (1966); see also, Dietrich v. Canton Railroad Co., 220 Md. 127, 151 A. 2d 163 (1959). As pointed out by appellee, however, the father’s claim of ownership is based solely on title registration. Although not cited by either party, the law in Maryland is that title registration merely raises a rebuttable presumption of ownership. Liberty Mutual Insurance Co. v. American Automobile Insurance Co., 220 Md. 497, 154 A. 2d 826 (1959); Keystone Insurance Co. v. The Fidelity & Casualty Co. of New York, 256 Md. 423, 260 A. 2d 275 (1970). Here the father himself made it abundantly clear in his testimony that the actual ownership was that of the son:

“Q Did you consider it as his [the son’s] car even though it was — its titled in your name?
A It was his car. The rest — I paid the down payment.
Q And he could drive it, go anywhere he pleased in it and do it — treat it as he pleased?
A Yes, sir.”

The presumption of ownership was thus rebutted by the father himself. We find no error.

Judgments affirmed; appellants to pay the costs.

      . Maryland Code (1957, 1970 Repl. Vol.) Art. 66'/2, § 11-403 which provides in relevant part:
      (b) Stopping at entrance to through highway. — The driver of a vehicle shall come to a full stop as required by this subtitle at the entrance to a through highway and shall yield the right-of-way to other vehicles approaching on the through highway.
      (c) Stopping in obedience to stop signs. — The driver of a vehicle likewise shall come to a full stop in obedience to a stop sign and yield the right-of-way to a vehicle approaching on the intersecting highway as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway.”

      . There are two appellants here, the unfavored driver and his father, John Thomas Johnson, Sr. As explained in III of this opinion, the father’s claim was for property damages and loss of use of the car operated by ’ohn Thomas Johnson, Jr. In I and II of this opinion, the designation, ‘‘appellant Johnson”, refers, of course, to the unfavored driver, John Thomas Johnson, Jr.

      . In criminal prosecutions for driving under the influence of intoxicating liquor, Code Art. 35, § 100 (1957, 1971 Repl. Vol.) establishes the presumption that .15 percent blood alcohol or higher shall be prima fade evidence of intoxication.

      . Dortch filed suit for property damages in the District Court for Baltimore City .and obtained a judgment against the Johnsons for $401.80. The Johnsons’ appeal from that judgment was consolidated below with a suit filed by the Johnsons for personal injuries and property damages respectively. The Dortch judgment was settled by counsel after the court directed a verdict for Dortch in the action instituted against him by the Johnsons. This appeal is concerned only with the directed verdict in favor of Dortch in the case of the Johnsons against Dortch.

      . At the time of trial in October, 1974, Dr. Serpick had not seen appellant since June, 1974. Dr. Cohen’s examination was made in January, 1974. The principal treatment was physical therapy and medication. Appellant also used a back brace for a time.

      . Judge Dorf placed emphasis on the decision of the Court of Appeals in Creaser v. Owens, 267 Md. 238 (1972), infra, reversing Owens v. Creaser, 14 Md. App. 593 (1972). The decision of this Court in Beckward v. Hensel, 20 Md. App. 544, decided March 19, 1974, reversed by the Court of Appeals on December 27, 1974, at 273 Md. 426, was not referred to in the trial court’s disposition from the bench.

      . Judge Smith dissented in an opinion in which Judge Levine joined.

      . The effect of the failure of the defendant below to deny ownership of the vehicle, see Rule 342c2(f), was not raised on this appeal.


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    RONNIE SMITH v. DIRECTOR, PATUXENT INSTITUTION
    [No. 983,
    September Term, 1974.]

      Decided July 25, 1975.

      The cause was argued before Orth, C. J., and Melvin, J., and Edward F. Borgerding, Administrative Judge of the District Court of Maryland for District 1, specially assigned.

      Murray L. Deutchman, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Robert S. Rothenhoefer, State’s Attorney for Frederick County, and Cleopatra Campbell, Assistant State’s Attorney for Frederick County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 22 March 1971 at a bench trial in the Circuit Court for Frederick County Ronnie Smith was convicted of robbery and sentenced to 6 years.. The judgment was affirmed on appeal. Smith, et al. v. State, No. 242, September Term, 1971, filed 22 November 1971, unreported, cert. denied, 264 Md. 751.

On 23 March 1971 the trial court ordered the Commissioner of Correction to deliver Ronnie into the custody of the Director of Patuxent Institution for examination and evaluation as a possible defective delinquent. Code, Art. 31B, § 6 (b). Ronnie arrived at Patuxent on 25 May 1971. He refused to submit to examination or to participate in testing procedures. Because of his failure to cooperate, the Patuxent staff indicated about 30 June 1972 that they were unable to evaluate him. In July 1972 Ronnie was one of a number of Patuxent patients who petitioned the Circuit Court for Montgomery County for the issuance of a writ of habeas corpus, seeking release from the Institution because no evaluation of them had been made within six months of their arrival pursuant to Code, Art. 31B, § 7 (a). On 14 August Patuxent filed a report in the Circuit Court for Frederick County giving the opinion that Ronnie met the definition of a defective delinquent. On 24 August the Circuit Court for Frederick County summoned Ronnie before it and advised him of the substance of the report. It informed him that there would be a hearing to determine whether he was a defective delinquent and that counsel would be appointed to represent him. Art. 31B, § 8 (a).

On 4 October 1972, the Circuit Court for Montgomery County, Shearin, J., acting in the habeas corpus proceeding, concluded that the reporting provisions of Art. 3lB, § 7 (a) were mandatory and hence Ronnie was entitled to be released frqm Patuxent and transferred to the Division of Correction for the service of his original sentence. It issued an order to that effect. The Director took a timely appeal from the order to the Court of Special Appeals. The Court of Appeals granted certiorari before decision by us. It reversed the order. Director v. Cash, 269 Md. 331, decided 14 June 1973. Ronnie was returned to Patuxent. On 8 October 1973 Patuxent resubmitted the evaluation of him made under date of 14 August 1972. On 23 October 1973 Ronnie was again summoned before the Circuit Court for Frederick County and advised pursuant to Art. 31B, § 8 (a). Hearing for determination of defective delinquency was scheduled for 20 November. On 31 October Ronnie filed a motion to dismiss and on 5 November moved for permission to employ a private psychiatrist to examine him pursuant to Art. 31B, § 7 (b), and for a postponement of the hearing pending the examination. The motions were heard on 8 November. On 4 February 1974 the court denied the motion to dismiss, and granted the motion to employ a private psychiatrist and postpone the hearing. In September 1974 Ronnie was informed that the hearing was set for 18 October. He again moved to dismiss the action. The motion was denied on 18 October and the hearing proceeded before a jury. The jury determined that he was a defective delinquent and by order issued the same date Ronnie was committed to Patuxent for an indeterminate period. Application for leave to appeal was timely filed on 18 November. Art. 31B, § 11; Maryland Rule 1094 a l. We granted the application on 21 January 1975 and ordered the case transferred to our regular appeal docket. Art. 31B, § 11; Rule 1094 c. Briefs were filed. Oral argument was made on 23 June 1975.

QUESTIONS PRESENTED

Ronnie presents three questions for determination:

I. “Whether the delay between [his] commitment to Patuxent and his trial was so great that it denied [him] due process of law.”
II. “Whether the lower Court erred in refusing to instruct the jury that the experts’ finding of defective delinquency requires a ‘diagnosis and prognosis using acceptable and recognized medical and psychiatric procedure’.”
III. “Whether the Court erred in failing to grant [his] timely motion for a mistrial during the testimony of Dr. Harold Boslow.”

I

The first question concerns the propriety of the denial of the motions made to dismiss the defective delinquency action with prejudice. Ronnie alleges that the delay between the time he arrived at Patuxent and the time he was evaluated to be a defective delinquent, and between the time he was so evaluated and the time of the defective delinquency hearing, denied him due process of law.

The Lapse of Time between the Arrival at Patuxent and, the Evaluation

We note first that the six months designation for the filing of the. written report of the examination of a possible defective delinquent is directory and not mandatory. Director v. Cash, supra, at 341-345. Therefore, Ronnie was not entitled to have the report of the examination of him filed within six months of his arrival at Patuxent as a matter of statutory right.

Ronnie’s argument goes this way. State v. Musgrove, 241 Md. 521, held, at 532, that despite the provisions as to time for reporting in § 7 (a), “the order of a court referring a person to Patuxent for an examination until such time as the procedures for determining whether or not such person is a defective delinquent have been completed could not be defeated by the refusal of such person to submit to the examination required by § 7 (a) if the Patuxent staff cannot make its determination without it.” The Court found it “clear. that a person cannot complain of the action, or iiiaction, of others when he is the cause of the delay that ensues.” Pointing to the phrase “if the Patuxent staff cannot make its determination without it” as a proviso to the rule that a person may not defeat the purpose of the statute by refusing to submit to examination, Ronnie cites the express approval of the Court in Roberts v. Director, 226 Md. 643, 650, to the assertion that a person is entitled to have the issue of defective delinquency tried within a reasonable time after the Institution has had reasonable time to make its findings. He refers to the statement in McNeil v. Director, 407 U. S. 245, 251-252, after holding, at 250, that it is a denial of due process to hold a person on the basis of an ex parte order committing him for observation, that “if the Patuxent staff was prepared to conclude, on the basis of petitioner’s silence and their observations of him over the years, that petitioner is a defective delinquent, then it is not true that he has prevented them from evaluating him. On that theory, they have long been ready to make their report to the Court, and the hearing on defective delinquency could have gone forward.” (emphasis added by Ronnie). Due process, the Court continued, requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. It is Ronnie’s view that Patuxent has answered the question whether the lapse of time between his arrival at the Institution and the evaluation report was reasonable by filing a report despite the refusal of him to cooperate. He asserts: “Patuxent has taken itself out from under the protective umbrella of Musgrove, for Patuxent has admitted that, as to [him], the Patuxent staff could make its determination without a personal examination. Therefore the ‘non-cooperation’ was irrelevant to their ability to make such an evaluation.” Thus, the failure to evaluate him for some 15 months, he concludes, was unreasonable and a denial of due process.

We find the answer to this argument in Cash. As we have noted, Ronnie was the petitioner in one of the cases before the Court in Cash. The Court found McNeil clearly distinguishable from the cases before it and saw indication in McNeil that the decision was to be narrowly applied. 269 Md. at 345. “We do not consider any of the petitions filed in Cash to be within the holding of the Supreme Court in McNeil and, further, we do not perceive any holding in McNeil that our opinion in Musgrove is impaired. Indeed, in McNeil, the Supreme Court in Note 2 of its opinion cites Musgrove and Mullen v. Director, 6 Md. App. 120, 250 A. 2d 281 (1969), applying Musgrove for the proposition that the Maryland Courts have construed § 7 (a) ‘to permit extension of the allowable time ... in the case of a noncooperative defendant who resists examination.’ There is no suggestion that this was unconstitutional or otherwise improper.” Id. at 349. The Court specifically approved the procedure followed with regard to Ronnie, id. at 347:

“After the decision by the Supreme Court in McNeil on June 19, 1972, the staff was faced with the problem that an undiagnosed person would be released when his sentence expired. After consultation with the Patuxent Board and with counsel, the staff attempted, where possible, to diagnose individuals referred for examination who had declined to cooperate in the examination process on the bases of historical data in the file of each individual. Dr. Boslow further testified, in effect, that he and the staff prefer not to make a diagnosis without a personal interview, but that such a diagnosis would be ‘valid’ in the absence of a showing of an intentional and deliberate designation on the part of the officials of Patuxent to postpone the diagnosis for an unreasonable time (and there is no such evidence in the present cases). The procedure presently followed by the Patuxent officials is proper in accordance with our opinion in Musgrove.”

In the light of the Court of Appeals opinions that the procedure followed with respect to Ronnie was proper, we hold that he was not denied due process of law thereby.

The Lapse of Time between the Report of Examination and the Date of the Hearing

The report of examination opining that Ronnie was a defective delinquent was first filed on 14 August 1972; the hearing to determine defective delinquency was on 18 October 1974. Art 31B, § 8 deals with defective delinquency hearings. If the report of the Institution states that a person is a defective delinquent, the court shall forthwith summon the person before it. It shall advise him of the substance of the report, of the pendency of a hearing, and of his right to be represented by counsel of his choice or by competent counsel appointed by the court. Subsection (a). “Unless appearance of counsel chosen by the person is entered within twenty days following the proceeding set forth in subsection (a) hereof, the court shall appoint counsel to represent the person.” Subsection (b). “The hearing for determination of defective delinquency shall be held no less than thirty days following designation of counsel, unless acceleration of the time is requested by the person or his counsel.” Subsection (c).

In Marsh v. State, 22 Md. App. 173, 181, we found it clear that § 8 mandates arraignment, appointment of counsel, and hearing upon receipt by the court of a report from Patuxent that an inmate is a defective delinquent. We held, at 182, that “§ 8 becomes effective whenever Patuxent’s written report commanded by § 7 (a) declares that a patient is a defective delinquent.” We observed: “Upon the filing of such a report the patient named therein forthwith is entitled to the rights granted by subsections (b) and (c) of § 8. Under such circumstances, those rights may not be deferred because of an alleged failure of the inmate to submit to personal examinations.” Id.

Here there was compliance with the provisions of § 8 (b). Ten days after the report of Patuxent was filed in the Circuit Court for Frederick County Ronnie was brought before the court and advised pursuant to the statute. On 8 October 1973, when Patuxent resubmitted the report, he was again summoned before the court and so advised.

Section 8 (c) does not specify a maximum time within which a hearing must be held. It prohibits a hearing within 30 days of the designation of counsel unless the person believed to be a defective delinquent or his counsel requests an earlier hearing. No such request was made here. In fact, when Ronnie appeared before the Circuit Court for Frederick County on 24 August 1972 to be advised pursuant to § 8 (b), he said he had counsel, and asked how Patuxent could find him to be a defective delinquent without interviewing him. He inquired about the habeas corpus proceeding pending in the Circuit Court for Montgomery County. When told by the court that the hearing to determine the question of his defective delinquency would be a maximum of 50 days hence, he asked if he could get it postponed. Several times thereafter during the course of the hearing he said he wanted a postponement of the defective delinquency hearing.

We see nothing unreasonable in continuing the defective delinquency proceedings until the final disposition, at least in the Maryland courts, of the habeas corpus action instituted by Ronnie in Cash? Obviously, had the order of the Circuit Court for Montgomery County been upheld, the question of defective delinquency vel non would have been moot. We note that under the order issued in that proceeding Ronnie was removed from Patuxent, apparently in October 1972, to the custody of the Division of Correction and not returned to Patuxent until the end of June 1973.

The court below found that three months were allowed after Ronnie’s return to Patuxent to ascertain if he would then cooperate in the examination procedures. When it was certain that he would not, the Institution, on 8 October 1973, resubmitted its evaluation report of 4 August 1972 to the Circuit Court for Frederick County. Ronnie was then forthwith, on 23 October, summoned before the court and advised pursuant to Art. 31B, § 8 la). On 5 November 1973, through his counsel, he filed a written motion for a continuance of the hearing. He stated that he was “entitled to examination by a psychiatrist of his own choosing, however because of the short notice of trial the psychiatrist which the Defendant has chosen to examine him is unable to make the examination, review the records and present the testimony to the Court on such short notice. The Defendant reserves his right to proceed on the Motion to Dismiss and still requests a hearing on that Motion be set.” The hearing on the Motion to Dismiss was held on 4 February 1974 and denied. Patently, it was proper not to act on the motion to appoint a private psychiatrist until the determination of the motion to dismiss the defective delinquency action. An order granting permission to have a private psychiatrist examine Ronnie was issued the same day the motion to dismiss was denied. Brian Crowley, M.D. was appointed by the court as the private psychiatrist to examine Ronnie “for the purposes of determining whether he is a defective delinquent.. . .” It was brought out at the trial on 18 October 1974 that Dr. Crowley examined Ronnie on 26 February 1974 and submitted a report dated 1 October 1974.

Under the particular facts and circumstances surrounding the delay in holding the hearing to determine Ronnie’s defective delinquency, we see no denial of due process of law. We hold that the court did not err in denying the motion to dismiss the proceeding.

II

Ronnie filed with the court proposed instructions, Maryland Rule 554 a, which included this one as #3:

“The finding of defective delinquency must be based on medical and psychiatric evaluation and depends on a diagnosis and prognosis, using acceptable and recognized medical and psychiatric procedure. In evaluating the testimony of witnesses you may consider the procedure used and the means chosen by each of the experts to reach the opinion given.”

He claims that the court refused to give the instruction as proposed and that the refusal to do so was prejudicial error.

Rule 554 b 1 permits the court to instruct the jury upon the law by granting requested instructions or by giving instructions of its own, or by several or all of those methods. It need not grant any requested instruction, even if proper, if the matter is fairly covered by instructions actually given. A party aggrieved by any portion of an instruction given, or by the failure to give any instruction, must, before the jury retires to consider its verdict, make objection “stating distinctly the portion or omission, or failure to instruct to which he objects and the ground of his objection.” Rule 554 d. Upon appeal a party assigning error in the instructions shall be restricted to “(1) particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no errors or assignments of error in the instructions shall be considered by the appellate court.” Rule 554 e.

After the court charged the jury here, counsel were given the opportunity to make objection in open court out of the presence of the jury as provided by Rule 554 d. Ronnie’s counsel requested that his proposed instruction 5 be given. The judge explained that he had covered it in the instructions given. Defense counsel said: “All right, Your Honor, I stand corrected and I’m sorry for the exception.” He withdrew the objection and declared that he had no other objections. Therefore, the assignment of error raised on appeal may not be considered by us.

Ill

Ronnie claims that the court below erred in denying his motion for a mistrial. The motion was made out of the presence of the jury during the cross-examination of Dr. Harold Boslow, Director of Patuxent Institution, called as a witness by the State. Dr. Boslow stated that it was his opinion that Ronnie was a defective delinquent, but that it was not based on “personal knowledge as to the young man” because Ronnie “wouldn’t talk to anybody.” The witness was requested to give his “professional opinion as to the propriety and feasibility of an opinion, within the defective delinquency context, of rendering such an opinion without a personal interview as a psychiatrist.” He replied:

“I don’t think it’s desirable, but it’s the only thing we can do. I think that in view of the patient’s persistent refusal to see either psychiatrist, psychologist or social worker, and the Court’s pressing us to produce a document, we produced a document. I don’t think it’s desirable, but I think that it’s a good opinion and it’s the best that we can offer under the circumstances.”

He was reminded by defense counsel that he was asked that exact question before in another case and that he had answered:

“I think it is non-valid, superficial and unethical and impossible.”

Dr. Boslow attempted to explain. The transcript reads:

“A Impossible from the viewpoint of giving a definitive diagnosis; but if we have to give a report to the Court and the Court presses us, then I would do this. This was —
Q Would you give an unethical report—
A Wait a minute, you’re asking the question. You’re asking for two levels of responsibility. It’s all right for your client to refuse to take—
MR. DEUTSCHMAN [Defense Counsel]: Your Honor, this is going beyond the scope of the question.
THE COURT: I think he has a right to explain his ansjwer, and I will overrule the objection. You may answer.
WITNESS: You say your client has a right to refuse to be examined, and —
MR. DEUTSCHMAN: I haven’t said anything, Doctor.
WITNESS: This is — this is what you’re implying — don’t play games with me.
MR. DEUTSCHMAN: Your Honor, I object to the witness going beyond the scope of the question.
THE COURT: He’s trying to explain his answer and that’s perfectly permissible, and I’m not going to rule on it any more times. You may answer, Doctor.
WITNESS: Your client refuses to take the examination. You say that’s all right. We don’t have anything to offer the Court except our review of his history. Now, my experience with twenty years in this particular situation, and more before that, indicates to me that this man’s behavior in the community and his entire life history indicate that he is dangerous. I have nothing else to go on. If you want your client to have a fair shake, advise your client to take the examinations.”

At this point defense counsel asked for permission to approach the bench and moved for a mistrial.

“THE COURT: On what basis?
MR. DEUTSCHMAN: On the basis of the fact that I asked the witness a question and the Court permitted the witness to continue on a matter which is totally irrelevant to the question asked, making insinuations of — that are not matters of fact and have nothing to do with the question before the Court.
THE COURT: I agree, the answer was not responsive. I overruled your objection because I thought the Doctor was going to explain his answer, which I think he had a perfect right to do. However, when he says if you want to have your client have a fair shake, or whatever, that aspect of it, I think that’s improper and I will instruct the jury to disregard that aspect, but I will overrule your motion for a mistrial.”

The court told the jury:

Ladies and gentlemen of the jury, I think that the last statement of the Doctor concerning Mr. Smith was improper and was not responsive to the . . . question; and the jury will disregard that aspect and strike that from your minds.”

The hearing continued.

In Quecedo v. DeVries, 22 Md. App. 58, 68, we repeated what we said in Baldwin v. State, 5 Md. App. 22, 28:

“The granting of a mistrial is an exercise which rests within the discretion of the trial judge. A mistrial should be granted only where plain and obvious reasons exist, upon the greatest caution and under urgent circumstances. Where, in the exercise of this discretion, the trial court refuses to grant a mistrial, such a decision will not be disturbed on appeal without giving full regard to the fact ‘that the trial court is in an advantageous position to judge the question of prejudice, and its decision with reference thereto should not be reversed unless it is clear that there was prejudice.’ Carroll v. State, 3 Md. App 50, 53, 237 A. 2d 535, 538 (1968) quoting Cook v. State, 225 Md. 603, 610, 171 A. 2d 460, 463, cert. den. 368 U. S. 970, 82 S. Ct. 445, 7 L.Ed.2d 398 (1961).”

In view of the curative instruction here, we see no abuse of discretion by the court below in refusing to grant a mistrial. See Wilhelm v. State, 272 Md. 404, 423-424.

Order of 18 October 1974 committing appellant to the jurisdiction of the Patuxent Institution for an indeterminate period affirmed.

       Note: Certiorari denied, Court of Appeals of Maryland, October 6, 1975.

      . Ronnie Smith was also known as Robert Dawson and Robert Dorsey. He was jointly indicted and jointly tried with Merhl N. Smith, Jr. who was also convicted of robbery and sentenced to 8 years.

      . “[The persons designated by the statute to make the examination on behalf of the Institution] shall state their findings in a written report addressed to the court, not later than six months from the date said person was received in the Institution for examination, or three months, before expiration of his sentence, whichever first occurs.”

      . Judge Shearin also indicated that McNeil v. Director, 407 U. S. 245, had held unconstitutional that portion of Art. 31B, § 6 (e) which provided for the retention of a person in the custody of Patuxent “until such time as the procedures of the subtitle for the determination of whether or not said person is a defective delinquent have been completed, without regard to whether or not the criminal sentence to which he was last sentenced has expired.”

      . The 30th day after 18 October 1974 was 17 November, a Sunday. See Rule 8.

      . The Court noted, 269 Md. at 347-348:
      “During the period of time from the filing of the petitions in the Cash case in the lower court and the time of hearing, Patuxent attempted to make a diagnosis pursuant to § 7 (a) on all of the petitioners and filed reports with the referring courts, diagnosing 34 petitioners as defective delinquents, stating in 10 reports that diagnoses could not be made because of the patients’ refusal to cooperate in the evaluation process and the lack of any historical data in their respective files. Of the 50 petitions filed in the lower court, six petitioners were discharged for miscellaneous reasons by the lower court.”

      . Subsection (c) further provides that trial by jury may be had upon application of the State or of the person or upon the court’s own motion.

      . The court explained:
      “In other words, it can be held sooner than that, depending upon what course of action you should take. If you desire to have your own counsel and he enters his appearance promptly, then the hearing will be held within thirty days from the time he enters his appearance. If he requests an early hearing we will try to work it in earlier. If you do not have counsel of your own choice then the Court after twenty days will appoint counsel and the hearing will be held within thirty days from that date.”

      . Certiorari was denied by the Supreme Court of the United States, sub mm. Vucci, et al. v. Boslow, Inst’n Director, 414 U. S. 1136, Jan. 7, 1974.

      . In the record before us is a copy of a letter dated 10 August 1972 from the Deputy Attorney General to the State’s Attorney for Frederick County which contains the following:
      “In conjunction with the staff and Board of Governors of Patuxent Institution and this office, individuals who refuse to cooperate, but whose files contain sufficient information to make a diagnosis without a personal interview, will be diagnosed and reports forwarded to the courts. Although this places a heavier burden on the alleged defective delinquent, as his cooperation might have given the diagnosing agent more valid information, it was decided that this procedure would be followed in order to keep within the spirit of McNeil, supra.

      I have been asked to advise you that Patuxent Institution has diagnosed Merhl Smith and Ronnie Smith as defective delinquents and the reports of the Institution should be forwarded to your court shortly. This will obviate the necessity of instituting contempt proceedings and defective delinquency hearings pursuant to Article 31B, Section 8, may be arranged following receipt of the reports from Patuxent Institution.”

      . Dr. Crowley’s report was admitted as State’s Exhibit 3. Based upon a personal interview of Ronnie as well as the records with regard to him, Dr. Crowley concluded “that Ronnie Smith meets the definition of defective delinquency to be found in Section 5, Article 31B.” Dr. Crowley added: “In so stating, I do not imply any approval of that definition, or any approval of the program of confinement and alleged treatment at Patuxent Institution.”

      . Proposed instruction 5 read: “You are instructed that a person is not a defective delinquent merely because he has evidenced criminal behavior. There are many persons who participate in criminal activity who are not defective delinquents. The courts have judicially noticed that fully 80% of convicted criminals are not defective delinquents. You are therefore instructed that a mere finding that the defendant is a habitual criminal is not sufficient to find that he is a defective delinquent.”


text:
    MERHL SMITH, JR. v. DIRECTOR, PATUXENT INSTITUTION
    [No. 957,
    September Term, 1974.]

      Decided July 25, 1975.

    The cause was argued before Orth, C. J., and Melvin, J., and Edward F. Borgerding, Administrative Judge of the District Court of Maryland for District 1, specially assigned.

      Murray L. Deutchman, Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Robert S. Rothenhoefer, State’s Attorney for Frederick County, and Lawrence A. Dorsey, Jr., Assistant State’s Attorney for Frederick County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 22 March 1971 at a bench trial in the Circuit Court for Frederick County Merhl Smith, Jr. was convicted of robbery and sentenced to 8 years to begin at the expiration of the sentence imposed on him on 8 September 1967. The judgment was affirmed on appeal. Smith, et al. v. State, No. 242, September Term, 1971, filed 22 November 1971, unreported, cert. denied, 264 Md. 751.

On 23 March 1971 the court ordered the Commissioner of Correction to deliver Merhl into the custody of the-Director of Patuxent Institution for examination and evaluation as a possible defective delinquent. Code, Art. 31B, § 6 (b). He arrived at Patuxent about 25 May 1971 and refused to submit to examination or to participate in testing procedures. Because of his failure to cooperate, the Patuxent staff indicated about 30 June 1972 that they were unable to evaluate him. In July 1972 Merhl was one of a number of Patuxent patients who petitioned the Circuit Court for Montgomery County for the issuance of a writ of habeas corpus, seeking release from the Institution because no evaluation of them had been made within six months of their arrival pursuant to Code, Art. 31B, § 7 (a). On 18 August 1972 Patuxent filed a report in the Circuit Court for Frederick County giving the opinion that Merhl met the definition of a defective delinquent. On 24 August 1972 that court summoned Merhl before it and advised him of the substance of the report. He was informed that there would be a hearing to determine whether he was a defective delinquent and that counsel would be appointed to represent him. Art. 31B, § 8 (a).

On 4 October 1972, the Circuit Court for Montgomery County, acting in the habeas corpus proceeding, concluded that the reporting provisions of Art. 31B, § 7 (a) were mandatory, and because there was no compliance with them, Merhl was entitled to be released from Patuxent and transferred to the Division of Correction for the service of his original sentence. It issued an order to that effect. The Director took a timely appeal from the order to the Court of Special Appeals. The Court of Appeals granted certiorari before decision by us. It reversed the order. Director v. Cash, 269 Md. 331, decided 14 June 1973. Merhl was returned to Patuxent about 19 June. On 8 October 1973 Patuxent resubmitted the evaluation of him made under date of 18 August 1972. On 23 October 1973 he was summoned before the Circuit Court for Frederick County, advised again pursuant to Code, Art. 31B, § 8 (a), and informed that hearing to determine defective delinquency would be held on 20 November 1973. On 31 October he filed a motion to dismiss the defective delinquency hearing. On 5 November he moved for permission to employ a private psychiatrist to examine him pursuant to Code, Art. 31B, § 7 (b), and for a postponement of the hearing pending the examination. The motions were heard on 8 November. On 4 February 1974 the motion to dismiss was denied. Brian Crowley, M.D. was appointed by the court to examine Merhl and evaluate him as a possible defective delinquent. In September 1974 Merhl was informed that the defective delinquency hearing was scheduled for 15 November. On 13 November he moved again for a dismissal and the motion was denied on 15 November. Trial proceeded on that date before a jury. The jury found him to be a defective delinquent. By order of 15 November 1974 he was committed to Patuxent Institution “for an indeterminate period, without any maximum or minimum limit.” He applied for leave to appeal. We granted the application on 14 January 1975 and ordered the case transferred to our regular appeal docket. Art. 31B, § 11; Maryland Rule 1094 c. Briefs were filed. Oral argument was made on 23 June 1975.

Questions Presented

Merhl presents these questions on appeal:

“1. Whether the delay between Appellant’s commitment to Patuxent and his trial was so great that it denied the Appellant due process of law.
2. Whether the order of March 22, 1971 referring the Appellant to Patuxent Institution was validly entered by the Circuit Court for Frederick County, Maryland.
3. Whether the failure to provide the Appellant with an opportunity for a hearing on the Order referring him to Patuxent Institution was a denial of due process of law.
4. Whether the Court abused its discretion in limiting cross examination of Dr. Brian Crowley on the issue of whether Appellant’s confinement at Patuxent pending a diagnosis could have caused Appellant to develop the characteristics of a defective delinquent.
5. Whether the Appellant was denied a fair trial when the Court interrupted counsel for Appellant to differ on recollection of facts and then failed to instruct the jury that the jury was the finder of facts.
6. Whether the Court invaded the province of the jury when the Court instructed that a determination of defective delinquency based only on the historical data is ‘valid’ where a main issue in the'defense was the method of evaluation used by Patuxent.”

The sixth question is determinative of this appeal. The State requested the court to instruct the jury as follows:

“A diagnosis of an individual referred to Patuxent Institution for examination to determine whether or not he is a Defective Delinquent, may be made on the basis of historical data in the file of each individual when the individual declines to cooperate in the examination process. Such a diagnosis is considered valid.”

At the close of all the evidence, there was a hearing concerning instructions held out of the presence of the jury. The State referred to the above instruction and Merhl’s counsel objected: “Your Honor, I think this goes to one of the key issues in the case, and I don’t think the jury should be instructed on this. I think it’s a question — otherwise it takes awrny all my cross-examination of the — of the procedure used.” The court opined that the Court of Appeals said in Director v. Cash, 269 Md. 331 that “you can base the determination of defective delinquency on historical data, without personal interview.” Merhl’s counsel did not think Cash said that. “I think I ought to be able to argue to the jury that the procedure used here wasn’t the procedure they should have used, that they should have used some other procedure, they should have had more testing or done something else.” The court asked Merhl’s counsel if he found any fault with the court stating that “examination based on historical data is a valid method of determining whether or not a person is a defective delinquent” and counsel replied that he did find fault with it. The court, however, thought “that it is a proper instruction, that it is a valid method ... I think the jury has a right to know whether or not that is a valid method, particularly when it’s been held to be by the Court of Appeals.” The transcript reads further:

“THE COURT: All right, now. ‘The Court of Appeals has held that a valid method of determining defective delinquency may be based on historical data. It is your determination — it is for you to determine whether or not there wras sufficient historical data here to’ — what would you suggest?
MR. DEUTCHMAN [Merhl’s Counsel]: Ah, if Your Honor would add to that phrase the fact that; that they may in weighing the testimony of the experts, weigh the procedures that they used in reaching their expert opinions, as well as their opinion.
THE COURT: Well, I will add that.
MR. DEUTCHMAN: All right, I think that would get around both.
THE COURT: How about if I add, ‘An expert opinion is only as good as the facts and reasons upon which it is based’?
MR. DEUTCHMAN: All right, ‘and the procedures used to reach it,’ because that would have particular importance to this case here.”

In charging the jury the court told them they were bound by the law as it instructed them. It read to them the statutory definition of a defective delinquent, explained the burden of proof, and discussed the elements of defective delinquency. It then said:

“The finding of defective delinquency must be based on medical and psychiatric evaluations and depends on a diagnosis and prognosis using acceptable and recognized medical and psychiatric procedures. In evaluating the testimony of witnesses you may consider the procedure used and the means chosen by each of the experts to reach the opinion given.
Now, in this particular case there is evidence that at least one of the expert witnesses based his testimony on facts received purely from the file — historical data — and not on any personal interview. The other one had the benefit of a personal interview plus the historical data in the file. Now, the Court of Appeals has held that one may determine defective delinquency based on historical data alone as a valid method in determining whether a person is in fact or is not a defective delinquent.”

It then talked about expert testimony and the weight to be given it. “You may reject the [expert’s] opinion in whole or in part, and you should determine the quality of the opinion on the basis of them, or on the reasons on which it is based. An expert opinion is only as good as the facts or reasons on which it is based.” It concluded the charge by declaring that in order to return a verdict that Merhl was a defective delinquent, the jury must find that he manifests each and every one of the requirements of the statute “as of now”, and added the caution that a person is not a defective delinquent merely because he evidences criminal behavior.

Opportunity was given counsel to make objection in open court out of the hearing of the jury as provided by Maryland Rule 554 d. Merhl’s counsel objected “to the Court’s recitation of the Cash case language, inserting the method of evaluation. I believe that that is a matter solely for the jury to determine.” The judge overruled the objection: “Well, I think we’ve gone over that in preliminary matters and I’ve stated my position, and of course you have the exception on the record.”

It is manifest that Merhl’s counsel made clear his objection to that portion of the instruction in which the court said that “one may determine defective delinquency based on historical data alone as a valid method in determining whether a person is in fact or is not a defective delinquent.” The point is properly preserved on appeal. Rule 554, e.

We think the court erred. Before Weeder v. State, 274 Md. 626, we would not have thought so. In State v. Weeder, 22 Md. App. 249, we held, on the basis of our interpretation of past Court of Appeals opinions, that an evaluation of defective delinquency could not be frustrated by an uncooperative inmate if it could be based on historical data. Granting certiorari, the Court of Appeals reversed us. It explained what it intended to say in its prior opinions on the point, and found our reading of those cases overly broad. It did not delineate precisely what was required but it- made clear that historical data alone was not enough. See Lawless v. Director, 27 Md. App. 453. In the light of the opinion of the Court of Appeals in Weeder, it is patent that the challenged instruction here was not a correct statement of the law. We cannot say that the error did not influence the jury in arriving at their verdict. It requires that Merhl have a new trial.

Because of our decision with regard to the sixth question, we have no need to reach questions four and five. We consider questions one, two and three, however, for the guidance of the court below on retrial.

As for question one, for substantially the same reasons set out in Ronnie Smith v. Director, 27 Md. App. 618, factually comparable to the case before us, we find that the delay between Merhl’s commitment to Patuxent and his trial did not, in the circumstances, deny him due process of law.

With respect to questions two and three, we hold that the order of 23 March 1971 referring Merhl to Patuxent was validly entered and that no hearing as to it was constitutionally required.

The order of 23 March 1971 directed the Commissioner of Correction to deliver Merhl into the custody of the Director of Patuxent, “who shall cause him to be examined for the purpose of determining whether or not he is a defective delinquent” as defined by Art. 31B, § 5, and that he remain in such custody until “the Court shall have received a written report on [him] from the Institution and shall issue its further Order in the premises”. It set out that Merhl had been convicted in the Circuit Court for Frederick County of robbery and sentenced on 22 March 1971 to the jurisdiction of the Department of Correction for a term of 8 years, to commence at the expiration of the sentence imposed in No. 2017 Criminals in said court, and that there was reasonable cause to believe that he may be a defective delinquent as defined by § 5 of Art. 3IB. The order was issued in accordance with Art. 31B, § 6, which provides “For whom requests may be made,” subsection (a); “Who may make request,” subsection (b); “When requests may be made,” subsection (c); “How requests made,” subsection (d); and “Custody after examination ordered,” subsection (e).

Merhl urges that reasonable cause to believe that a person is a defective delinquent must be affirmatively shown before an order may issue committing him to Patuxent for evaluation. He suggests that there should be a hearing on the matter. We do not agree and have said so. In Bosley v. State, 14 Md. App. 83, 91, we observed: “[W]e have heretofore held that an individual ‘has an opportunity to contest his determination of defective delinquency but he has no statutory right to contest an order of the judge that he undergo such an examination.’ See Wise v. Director, 1 Md. App. 418, 423.” We adhere to that view and see no denial of due process in such procedure.

Order of 15 November 1974 committing appellant to Patuxent Institution reversed; case remanded for a new trial.

      . Merhl Smith, Jr. was also known as Merhl Smith, Billy Smith, Willie Smith, Robert Smith and Merhl Stanley Smith. He was jointly indicted and jointly tried with Ronnie Smith who was also convicted of robbery and sentenced to 6 years.

      . The Court said, at 632: “We do not propose here to delineate with any precision the alternate procedures to be followed by the medical, psychiatric and psychological team, because we regard this as far beyond the horizons of judicial expertise. It occurs to us, however, that at a minimum the report of the staff should include relevant information from the study made by the social worker, a summary of the inmate’s prior arrests and convictions, incident reports, disciplinary infractions, observations made by guards, fellow inmates and staff, and at least a minimal personal confrontation between the inmate and staff.”


author: Powers, J.,

text:
    OSCAR L. WATERS, JR., et al. v. STEDMAN W. SMITH et al.
    [No. 557,
    September Term, 1974.]

      Decided July 28, 1975.

      The cause was argued before Morton, Powers and Mason, JJ.

      Morton J. Owrutsky and Robert A. Eaton, with whom were Perdue, Owrutsky & Whitehead on the brief, for appellants.

      John W. T. Webb, with whom were Webb, Burnett & Simpson on the brief, for appellees Smith and Womack; and John F. King, with whom were Anderson, Coe & King on the brief, for appellees Rimer and Johnson.
   Powers, J.,

delivered the opinion of the Court.

Trial of this medical malpractice case before Judge John Grason Turnbull and a jury in the Circuit Court for Baltimore County was aborted on the sixth day of trial. In this appeal we are concerned only with why and how the trial was terminated, and with subsequent proceedings in the case after 30 October 1973, the day the trial ended.

The plaintiffs below, appellants here, are the parents and Committee of the person and estate of Marion Bertha Long, an incompetent. The defendants below, appellees here, are four physicians who, in 1960, at the time of the alleged medical malpractice, were members of the medical staff or were otherwise associated with Peninsula General Hospital, in Salisbury.

The parents were appointed Committee of their daughter by a decree of the Circuit Court for Wicomico County in January 1969. This suit was filed in February 1970 in the Circuit Court for Baltimore County.

With a minimum of background, we shall outline briefly how the case came to its abrupt end. It is evident from a review of the numerous discovery procedures employed that the defendants sought early to ascertain the source, and no doubt the nature, of certain expert opinion evidence which the plaintiffs would be required to present as a sine qua non to make out a prima facie case of negligence, so as to survive the inevitable motion for a directed verdict.

In answers and supplemental answers to interrogatories from time to time, the plaintiffs had named nine different physicians whom they proposed to call as medical experts. None lived or practiced in Maryland.

On the morning of the sixth day of trial the plaintiffs filed and delivered to the defendants a further supplemental answer giving the name of Marvin Cohen, M.D., Randallstown, Maryland, an obstetrician and gynecologist, as an expert whom they proposed to call as a witness. Defendants complained that the disclosure was not timely and that they were taken by surprise. They moyed that Dr. Cohen be excluded as a witness for the plaintiffs. Mr. Herman Glaser of the New York Bar, one of counsel for the plaintiffs, after commenting upon the difficulty of securing a doctor in the same community who would testify against a brother physician, explained to Judge Turnbull the reason for the late disclosure. He said:

“And that is the reason why in our list of experts we listed doctors who were not engaged in the practice of medicine in Maryland. Certain facts developed during this trial, and arguments have been made which led me to the conclusion that the big argument in this case was going to be the locality rule, I took a lawyer’s notice of it during the last several days, and after we received additional information that came out in the course of this trial, frankly we made a herculean effort to find an expert in the State of Maryland who would testify against his fellow physician; when last night for the first time we were lucky to break the ice. We called a number of men over the last few days, and they refused to get involved in any malpractice case, and last night we found a physician, an obstetrician-gynecologist, with the courage of his convictions, if I may say that. After we told him what the hypothetical would be, including some of the facts that first came out during this trial, he said he would come and testify.”
“The only prejudice that I can see to the defense here is the failure to exercise an opportunity to depose that expert witness. And we welcome the adversaries to depose this man within the next few days, Friday night, any time. We have expended approximately five, this will be the sixth day of trial time, and I think in the interest of justice our notice should be upheld.”

Judge Turnbull stated that the matter was a serious one to both sides. He said:

“In the interest of justice the court will permit Dr. Cohen to testify as a witness for the Plaintiffs only on condition that there be a mistrial declared and the case continued for further assignment.”

Further colloquy took place among the court and counsel. One of counsel for the defendants summarized:

“The appearance of a surprise witness of this type at this stage in the proceeding may or may not completely alter the posture of the case, and decisions in this particular regard are necessarily the type of thing that cannot be resolved by a simple telephone call; there needs to be understanding of what the testimony is going to be, the evaluation of it, and conceivably a change in posture.”

Judge Turnbull put the election to the plaintiffs. He said:

“ * * * the Plaintiffs may not call Dr. Cohen, or if the Plaintiffs wish to call Dr. Cohen, in the interest of substantial justice, * * * the court will permit the Plaintiffs to have an opportunity to call Dr. Cohen, but the court will, if the Plaintiffs wish to call him, declare a mistrial and grant a continuance to give the Defendants ample opportunity to prepare themselves for such testimony as may be elicited from Dr. Cohen. The Plaintiffs have their election, and will be required to make their election now.”

Counsel for the plaintiffs elected to take the mistrial. He said:

“Your Honor, reluctantly, and very reluctantly, we have no alternative but to take a mistrial, we accept that, * *

Defendants deposed Dr. Cohen on 9 November 1973. Dr. Cohen testified that he was not aware that he was going to be listed as an expert to be called by the plaintiffs, that he had made no commitment to testify, that he was not, on 30 October or at the time of the deposition, professionally prepared to testify as an expert in the case, and that he had expressed to counsel two days before the deposition that he would not appear.

On 26 November 1973 the defendants filed a pleading which they entitled, “Motion To Dismiss, To Enter Default Judgment, And To Compel Plaintiffs To Pay Costs Under Maryland Rule 604 b”. The motion was argued before Judge Turnbull on 8 February 1974. The judge declined to dismiss the case, or to enter a default judgment. He stated that it was unnecessary to find that Mr. Glaser intentionally misled the court, but Judge Turnbull did find, “as a matter of fact, he misled the Court, under the language of Rule 604, Subsection b, that Mr. Glaser in fact misled the Court, ‘without substantial justification.’ ”

The judge said that he would pass an order requiring the plaintiffs to pay the expenses and loss of income incurred by the defendants by reason of the acts of plaintiffs’ counsel in misleading the court. He said that the matter would be referred to a standing Master in Chancery to take testimony and make a report to the court, after which there would be a hearing on any exceptions filed. The court’s instructions to counsel were:

“In your first order, just say that proceedings, further proceedings, other than hearings before the Master, and so forth, further trial on the merits will be stayed pending further order of the Court, and then in your final order, include a statement that proceedings will be stayed indefinitely until and unless whatever is ordered to be paid has been paid.”

Plaintiffs filed a motion for rehearing. It was heard and denied on 9 May 1974. On the same day Judge Turnbull signed and filed an Order of Stay And Reference. The order granted the motion of the defendants to compel the plaintiffs to pay certain costs and expenses, subject to final assessment of the amount; referred the matter to a standing Master in Chancery for taking testimony and proofs and for his report and recommendations; and provided for an opportunity for filing exceptions and for such other action as the case may require, “before a final order shall be entered”. The order concluded:

“And except for the proceedings before the Standing Master in Chancery as above provided, all further proceedings in this matter are stayed until further order of the Court.”

It is from that order that the plaintiffs took this appeal. In their brief the appellants put the Questions Presented in this way:

“1. Did the Court err in staying proceedings until costs had been paid under Maryland Rule 604 b?
2. Did the Court below err in holding that it had inherent judicial power to stay proceedings after a mistrial was declared?”

Appellants’ contentions and arguments are directed solely to that part of the lower court’s order which stayed further proceedings. The attack on the stay is twofold — that it was not authorized by any applicable rule and that the court had no inherent power to impose the stay. Appellants seem to misread the order from which they appealed. Their first argument is premised on the contention that the court erred in staying further proceedings in the case until the costs and expenses of the appellees have been paid. This is not what the court ordered. We have quoted earlier from the order. It clearly provides that further proceedings are stayed until further order. Judge Turnbull did, indeed, say that he intended, in a final order, to stay the proceedings indefinitely until whatever is ordered to be paid has been paid. But it is what a court order does, not what a judge may intend to do in the future, that has effect. The rule is an ancient one. The Court of Appeals stated it in Hagthorp v. Hook, 1 G. & J. 270 (1829), at 309:

“Tis true the Chancellor, in considering this case, has discussed all the matters both of law and fact, which he deemed in any wise involved in the decree, eventually to be pronounced; and has distinctly declared what he intends to decree. But his intentions form no ground for an appeal: he may abandon or change them ad libitum; until carried into effect, no injury can result from them. It is only, from what he has done, and not from what he intends to do, that an appeal will lie.”

In Smallwood v. Hatton, 4 Md. Ch. 95 (1853), the Court of Chancery cited and discussed Hagthorp v. Hook, supra, as holding

“ * * * that however clearly the Chancellor may have intimated his opinion, or declared his intention, the rights of the parties were unaffected by such declaration, it being competent to the Chancellor, in any subsequent stage of the cause, to change or abandon his opinion at his pleasure, or according to the dictates of his judgment upon further consideration.” 4 Md. Ch. at 100-01.

The same rule is applied when an appeal is taken prematurely from an opinion or ruling by the court before the entry of a formal order. The Court of Appeals, in Hudson Building Supply Co., Inc. v. Stulman, 258 Md. 304, 265 A. 2d 925 (1970), quoted from Miller, Equity Procedure, Section 260 (1897), and emphasized this statement:

“An opinion, however positive, is not in any sense a final act; it is not the subject of appeal, and may always be changed before final decree.”

See also Kennedy v. Foley, Receiver, 240 Md. 615, 214 A. 2d 815 (1965).

So it is the stay until further order of the court, and not a stay until costs have been paid which is under attack by the appellants, and is the only question we may consider in this appeal.

In their brief the appellees have included a motion to dismiss the appeal in this case as premature, because not allowed by law at the present stage of the proceedings.

Courts Art., § 12-301, with certain exceptions, says that “a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.”, and § 12-303 provides for the right of appeal from any of several enumerated interlocutory orders, but a stay order is not among them.

We are compelled to conclude that the appeal before us was not taken from a final judgment, nor from a judgment or order otherwise appealable. Consequently, the appeal is not allowed by law. Maryland Rule 1035 b (1). The motion to dismiss the appeal must be granted.

We consider it desirable under the circumstances to comment upon certain other questions which are involved in this case.

We have held that the order appealed from is interlocutory. It is so by its very nature. We reach that conclusion without regard to Maryland Rule 605 a. We express no opinion as to whether a subsequent order which may appear to be final, and otherwise appealable, would be held to be interlocutory by the application of Rule 605 a. See Brooks v. Ford Motor Credit Co., 261 Md. 278, 274 A. 2d 345 (1971); Picking v. State Finance Co., 257 Md. 554, 263 A. 2d 572 (1970); Harkins v. August, 251 Md. 108, 246 A. 2d 268 (1968).

Nor do we imply that an order staying proceedings until costs and expenses are paid would be any less interlocutory than the present order staying proceedings until further order of the court. We note, however, that such an order may be appealable as an interlocutory order for the payment of money under Courts Art., § 12-303 (c) (5).

Judge Turnbull’s order that the appellants should b.e required to pay certain costs and expenses incurred by the appellees was based squarely upon the authority found in Maryland Rule 604 b. Appellants argue that the Rule makes no provision for a stay of proceedings pending compliance with such an order.

We would not be inclined to hold that the court lacks the power to order a stay under the circumstances. The record makes it clear that the judge would permit the appellants to call Dr. Cohen to testify only if the case were continued. Because the trial was in progress, the judge declared a mistrial before ordering a continuance. The provisions of Maryland Rule 527, relating to continuances, may well be applicable. That Rule, in § a 1 provides:

“The court may upon motion of any party, or of its own motion, continue an action from time to time in order that a trial may be had upon the merits or as the interests of justice may require;”

and in § e further provides:

“Where a continuance or postponement is granted, the court shall make such order as to costs theretofore accrued as may be just.”

What § e means by “costs” is an open question. In Whitcomb v. Horman, 244 Md. 431, 224 A. 2d 120 (1966), the Court of Appeals said, at 443-44:

“We do not reach the questions as to whether the word ‘costs’ in Section e of Maryland Rule 527 embraces other than the usual court costs taxed in due course by the clerk or whether, assuming arguendo, that other types of ‘costs’ are included, it would deny due process of law to assess such other types without a plenary hearing, with the taking of testimony, cross-examination and the usual process of judicial determination.”

With regard to a court’s authority to stay proceedings before it, it is said in 1 C.J.S., Actions (1936), § 132:

“The granting or refusing of a stay rests in the discretion of the court, the exercise of which will not be interfered with unless clearly abused. That a court has the power to stay proceedings in actions pending before it is well settled, but such power should be exercised with extreme caution and a stay should not be ordered if it will work injustice.”

At least under certain circumstances, the Court of Appeals has recognized the inherent power of a court to stay proceedings before it. In Coppage v. Orlove, 262 Md. 665, 278 A. 2d 587 (1971), the Court said, at 666:

“As was observed in Dodson v. Temple Hill Church, 254 Md. 541, 546, 255 A. 2d 73 (1969), quoting Restivo v. Princeton Constr. Co., 223 Md. 516, 521, 165 A. 2d 766 (1960), ‘in a proper case a court may stay proceedings pending the determination of another proceeding that may affect the issues raised.’ ”

Whether to grant or deny a stay of proceedings in an appropriate case appears to rest within the discretion of the court. It is sometimes said that because an order is discretionary, no appeal lies from it . Boor v. Wilson, 48 Md. 305 (1878) involved, among other issues, an exception to the trial judge’s refusal to stay proceedings until certain costs were paid. The Court disposed of the exception with the brief comment that it was “taken from a matter in the discretion of the court, from which no appeal lies.”

The rule was more fully expressed by the Court of Appeals in Emory v. Faith, 113 Md. 253, 256-57, 77 A. 386 (1910), quoting from Gottschalk v. Mercantile Trust Co., 102 Md. 521, 62 A. 810 (1906), where it was said, at 522:

“It is not necessary at this late day to cite authorities in support of the well-settled doctrine that an appeal will not lie from an order or decree passed in the exercise of an undoubted discretion of the lower Court. But the question whether the subject-matter of the order or decree was within the area of the discretion of the Court which passed it is open to examination upon an appeal in the same case, for a Court cannot improvidently extend the exercise of its discretion to matters which lie beyond its legitimate reach.”

More recently the Court of Appeals said in Dodson v. Temple Hill Baptist Church, Inc., 254 Md. 541, 255 A. 2d 73 (1969), at 546:

issuance of that order was within the sound discretion of the trial court and it is well established that in the absence of an allegation or proof of an abuse of discretion, we will not disturb the exercise by the trial court of its discretion.”

But any order, whether it be discretionary or not, or be alleged to be an abuse of discretion, cannot be reviewed on appeal unless it is properly before the appellate court.

Appeal dismissed.

Appellants to pay costs.

      . It should be noted that appellants do not argue here that the trial court erred in ordering that they pay certain costs and expenses of the appellees. That part of the order, although perhaps appealable as an interlocutory order under Courts Art., § 12-303 (e) (6), is not asserted in this appeal as error, and is not before us. Ricker v. Abrams, 263 Md. 509, 283 A. 2d 583 (1971); Harmon v. State Roads Commission, 242 Md. 24, 29-32, 217 A. 2d 513 (1966); Hyde v. State, 228 Md. 209, 179 A. 2d 421 (1962). As an interlocutory order, even if appealable under Courts Art., § 12-303, it would be open to review on appeal from a final judgment. Maryland Rule 1087; Rocks v. Brosius, 241 Md. 612, 646-48, 217 A. 2d 531 (1966).


author: Menchine, J.,

text:
    ROBERT WILLIAM FRANQUET v. IMPERIAL MANAGEMENT CORPORATION et al.
    [No. 999,
    September Term, 1974.]

      Decided July 28, 1975.

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

      Thomas F. Santer, with whom were Ashcraft, Gerel & Koonz on the brief, for appellant.

      George P. Haldeman, with whom were Brault, Scott & Brault on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Robert William Franquet, (claimant) claimed workmen’s compensation benefits from Imperial Management Corporation, his employer, and General Insurance Co. of America, its insurer (employer and insurer) as the result of an alleged accidental injury sustained on July 2, 1971. The Workmen’s Compensation Commission (Commission) determined that “claimant did not. sustain an accidental injury .arising out of and in the course of his employment * * * and that the disability of the claimant is not the result of [an] accidental injury.” Claimant appealed to the Circuit Court for Montgomery County.

When the cause was tried in the Circuit Court for Montgomery County, the jury found that claimant had sustained an accidental injury arising out of and in the course of his employment. Thereafter, upon motion of the employer and insurer, the trial court granted judgment n.o.v. in favor of the employer and insurer. Claimant now appeals to this Court. We find that the evidence required submission of the issue to the jury for its decision and shall reverse the judgment n.o.v.

The facts are not disputed in any substantial way and may be summarized as follows: Robert William Franquet, aged 30 years, was under medical orders to take prescribed dosages of dilantin four times daily to control petit mal epilepsy. On July 2, 1971 he neglected to take the dosage scheduled for midday. On that date and at that time claimant had been showing an employee under his charge how to use a scythe. Claimant then proceeded, with two other employees, to a drainage ditch where “[He] was instructing or discussing with two of the men, the engineer and one of the maintenance men on the development how to solve a drainage problem that we had. As [he] was discussing it [he] passed out.”

His guidance and directions to those employees had brought him to a point where he was required to occupy a standing position at the top of a storm sewer outfall. This sewer outfall was in the form of a drainage ditch, the bottom third of which had been lined with rocks to avoid erosion. Some of those rocks had ragged edges. When claimant passed out, he fell headfirst into the drainage ditch. His head struck the rocks in the ditch, inflicting a wound requiring hospital treatment. His skull was x-rayed and his wound sutured. He lost time from his employment because of the head injury.

The drainage ditch was variously described as 7 to 10 feet wide and 3 to 5 feet deep. It ran through a grassy area of the apartment complex of which claimant was the property manager. The upper two thirds of its sloping sides were grass covered as was the area where claimant had been standing. It is not disputed that claimant’s official duties carried him to the position he occupied when his fall occurred or that the injury to his head was produced by his fall upon rocks in the bottom one-third of the drainage ditch.

On these facts the trial judge granted the motion for judgment n.o.v. after the jury’s decision favorable to claimant’s recovery. In the course of a written opinion the trial judge said, inter alia, “ * * * it would be stretching the idiopathic doctrine too far to suggest that a property manager,-walking around apartment premises, as here, falls into the class of employee with such unusual employment as to permit a recovery under the statute.” We believe that the question was properly one for determination by the jury.

That this is an idiopathic fall case is a conceded fact. Larsen, in his exhaustive treatise Workmen’s Compensation Law, in § 12- under the heading “Risks Personal To The Employee” declares the general rule governing such cases as follows:

“§ 12.00 Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma.”

In § 12.11 “Increased-danger rule applied to idiopathic falls,” Larsen adds:

“When an employee, solely because of a non-occupational heart attack, epileptic fit, or fainting spell, falls and sustains a skull fracture or other injury, the question arises whether the skull fracture (as distinguished from the internal effects of the heart attack or disease, which of course are not compensable) is an injury arising out of the employment.
“The basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. * *

That Maryland subscribes to the general rule as stated by Larsen seems plain. In Baltimore Dry Docks, etc. v. Webster, 139 Md. 616, 116 A. 842, although the Court of Appeals left the issue open, its quotation from the English case of Wicks v. Dowell (1905) 2 KB 225, 2 Annot. Cases 732, was a prelude to and precursor of the subsequently adopted Maryland position: (at 625 [845])

“Upon the authorities, I think the case is clear; an accident does not cease to be such, because its remote cause was the idiopathic condition of the injured man; we must dissociate that idiopathic condition from the other facts and remember that he was obliged to run the risk by the very nature of his employment, and that the dangerous fall was brought about by the conditions of that employment, I think, therefore, that the present case comes within the purview of the Workmen’s Compensation Act.”

In Baltimore Towage, etc. v. Shenton, 175 Md. 30, 199 A. 806, where a workman fell from a pier and was drowned, the Court of Appeals, after pointing out that the drowning would not have resulted had not the man been required to be on the pier at the time, posed these questions at page 33 [807]:

“Possibly a faint, or some other imaginable occurrence that may have caused him to topple over, would be considered a proximate cause, if that is important, but, when there is no possibility of a cause of the death unrelated to the employment, is the compensation system concerned with a distinction between proximate and remote causes? Can that distinction be observed consistently with the fundamental purpose of transferring the burden of injury by extra hazards of an employment from the workmen to the industry? ”

The Court after discussing English and American cases dealing with the subject fixed Maryland’s position, saying at 33-36 [807-08]:

“In England compensation has been allowed in such cases since the decision in Wicks v. Dowell & Co., Ltd., [1905] 2 K. B. Div. 225. Wicks, while unloading coal from a ship, and standing by the open hatchway through which the coal was being raised, was seized with an epileptic fit, and fell into the hold, to his injury. Collins, M. R., said, page 229, ‘When we get rid of the confusion caused by the fit and the confusion involved in not dissociating the injury and its actual physical cause from the more remote cause, that is to say, from the fit, the difficulty arising from the words “out of the employment” is removed. How does it come about in the present case that the accident arose out of the employment? Because by the conditions of his employment the workman was bound to stand on the edge of what I may style a precipice, and if in that position he was seized with a fit he would almost necessarily fall over. If that is so, the accident was caused by his necessary proximity to the precipice, for the fall was brought about by the necessity of his standing in that position.’
“In Mausert v. Albany Builders’ Supply Co., 250 N. Y. 21, 164 N. E. 729, compensation was held allowable for the death of a teamster by falling from his seat and under the wheels, from an unknown cause. ‘It is the fall,’ said the court, page 25, 164 N. E. page 730, ‘and the injury resulting from it that constitutes an accident within the purview of the statute. The cause may be disregarded and the inquiry limited to the investigation to disclose whether the fall * * * bore with it such consequences as would not have occurred except for the employment.’ The same court, in Andrews v. L. & S. Amusement Co., 253 N. Y. 97, 170 N. E. 506, held that compensation was not allowable for the result of a fall to the sidewalk of a workman who, while walking there in the course of his employment, was seized with a fit. Distinguishing the Mausert case the court said (page 507), ‘The risk of falling from the seat of a truck and being injured was incident to and a risk of his employment. Every day that he was driving his truck there was the risk or danger that he might fall off, while careless or asleep, and be injured either by the horses, other vehicles or his own. * * * It was as a teamster that he incurred the risks.’ On the other hand, ‘The risk of falling to the pavement in such a fit was not due to the employment.’ So in Massachusetts. In Dow’s Case, 231 Mass. 348, 121 N. E. 19, in which a boy, from physical infirmity, fell into a machine at which he was working, the court said, page 352, 121 N. E. page 21, ‘The real question is not so much the cause of the fall or whether the fall as such arose out of the employment, but whether the risk and harm of a fall into or upon machinery then in use by an employee are incidents of that business and hazards to which the workman would not have been exposed apart from that business.’ And on the contrary, in Cinmino’s Case, 251 Mass. 158, 146 N. E. 245, in which the workman, from a cause unknown, reeled, threw up his hands, and fell to the concrete floor of a factory, compensation was held not allowable on those facts, the court finding that a fall to a floor was not a hazard peculiar to the work, and remarking that there was no substantial resemblance in the case to that of Wicks v. Dowell & Co., Ltd., supra, or Dow’s Case. In accord with these cases is Freedman v. Spicer Mfg. Co., 97 N. J. L. 325, 116 A. 427, a case in which compensation was held allowable for the results of a fall in a faint.
“In Reeves v. Dady Corporation, 95 Conn. 627, 113 A. 162, in which the workman, feeling faint, went to stand at a doorway, and there fainted and fell to his death, the court, while holding it unnecessary for the claimant to prove that the employment, or some condition connected with it, was the proximate cause of the fall, concluded that as the employment did not take the man to the door the accident did not arise from the employment.
“On the other hand, some American courts have taken the view that death or disability from an accidental injury arising out of the employment intends an accident originating, as a proximate cause, the fall which produces the death or injury. See Cox v. Kansas City Refining Co., 108 Kan. 320, 195 P. 863, a case of a fall against hot pipes, and Bibb Mfg. Co. v. Alford, 51 Ga. App. 237, 179 S. E. 912, a case of the fall of a dizzy man to the floor; and note 37 A. L. R. 771. The court in Bibb Mfg. Co. v. Alford, supra, thought the weight of authority in American cases supported the requirement of accident in the originating cause of the fall, but in some of the jurisdictions referred to the opposite conclusion has been reached, notably in New York and Massachusetts, as in the cases here quoted.
“In the face of this conflict it cannot be said that there is no room for a difference in construction of the statutory requirement, but it is the conclusion of this court that the holding of the English case, and the American cases in accord with it, conforms to the terms and the purpose of the compensation system, as stated, and that an accident met with as a consequence of a fall, if that consequence is brought about by hazards of the employment, and would not be met with except for the employment, must be considered to arise out of the employment. And when there is legally sufficient evidence for a finding that it did arise out of the employment, and the case is otherwise within the statute, a verdict to the contrary could not, of course, be directed.”

Again, in Watson v. Grimm, 200 Md. 461, 90 A. 2d 180, wherein the claimant’s decedent had fallen from a truck and was killed, the Court of Appeals said at 466 [183]:

“Where an employee’s injury resulting from a fall is contributed to by some factor peculiar to the employment, it arises out of the employment within the meaning of the Act, although the fall has its origin solely in some idiopathy of the employee.” (Emphasis added.)

To the same effect are: Paul Construction Co. v. Powell, 200 Md. 168, 185, 88 A. 2d 837, 845; Bethlehem Steel Co. v. Jones, 222 Md. 54, 61, 158 A. 2d 621, 625.

In the subject case the evidence showed that the duties of his employment had brought the claimant to the brink of a rock lined sewer outfall and that his idiopathic fall had precipitated him into its depths. The injury sustained by claimant resulted from special conditions existing at the point to which the duties of his employment had taken him. Thus, there was evidence that the performance of necessary duties of his employment had affected the injury sustained in the fall in a significant way. The question whether claimant’s employment’ aggravated the effects of his idiopathic fall should have been left to the jury for decision. Otherwise stated, there was evidence tending to show that the accidental injury had arisen out of claimant’s employment. That the injury occurred in the course of his employment is not disputed. Thus there was evidence legally sufficient to meet the dual requirement that the accidental injury be shown “to arise out of” as well as “in the course of the employment.” Cf. Klein v. Terra Chemicals International, Inc., 14 Md. App. 172, 286 A. 2d 568. The motion for judgment n.o.v. was erroneously granted.

Judgment N. O. V. reversed and case remanded for entry of a, judgment reversing the decision of the Workmen’s Compensation Commission.

Costs to be paid by appellees.