text:
    LEONARD APPER et ux. v. EASTGATE ASSOCIATES et al.
    [No. 160,
    September Term, 1975.]

      Decided November 5, 1975.

      The cause was argued before Orth, C. J., and Menchine and Moore, JJ.

      Darrow Glaser for appellants.

      John P. Corderman appellee Eastgate Associates. Submitted on brief by William P. Naim and Byron, Moylan & Umer for other appellee.

         Note: Certiorari granted, Court of Appeals of Maryland, February 3, 1976.

   Orth, C. J.,

delivered the opinion of the Court.

On 11 February 1969 Leonard Apper, a wholesale camera salesman, checked into the Towne Motel in Hagerstown, Maryland, owned by Eastgate Associates and others , as an overnight guest. He dined at a nearby restaurant and returned to his motel room. He watched television for a time, telephoned his wife and, around 10:00 p.m., took a bath. Upon completion of his bath, he drained the water and started to get out of the tub. “I went to raise myself to get out of the tub. I put my right elbow on the right side of the tub and I grabbed this handhold with my left hand and attempted to assist myself in getting up and the handhold broke away from the wall and it was a massive handhold . . . and it broke away from the wall and hit me across . . . the bridge of my nose.” He fell back and hit his head, back and neck. Pie blacked out. “The next thing that I remembered was I opened my eyes and there was blood streaming down my face and my chest and that is the next thing that I recollect.” Pie called for help and was taken to the hospital. The cut on the bridge of his nose was sutured. Pie suffered injuries to his back and neck. The “handhold” was a ceramic fixture set in the wall above the tub. It was known in the ceramic tile trade as a “soap and grab” and was intended to be used by bathers to help themselves in and out of the bathtub. It was installed with the expectation that bathers would so use it. Apper was alone in the room at all times, made no prior examination of the fixture, and noticed nothing unusual about it. It appeared to be securely fastened and was not loose to the touch. There were no warning signs or notices in regard to the fixture or its use. He used it as he had previously used similar fixtures on many other occasions in many other motels.

On 13 January 1972 Apper and his wife instituted an action in tort in the Circuit Court for Washington County against Eastgate. He sought damages for the injuries he suffered which he alleged were caused by Eastgate’s negligence. He and his wife sought damages for loss of consortium. On 17 February 1972 Eastgate filed a third party claim against Harold L. Jones, trading as Jones’ Wallpaper, Linoleum and Tile Service (Jones), who installed the soap dish and handhold.

The action was tried before a jury on 26 November 1974. At the close of evidence offered by the Appers, the court directed a verdict against them and discharged the jury.

THE STATUS OF THE APPEAL

The transcript of the proceedings with respect to the motion for a directed verdict reads:

“MOTION FOR DIRECTED VERDICT MADE AT END OF PLAINTIFF’S CASE BY DEFENDANTS.
BY THE COURT: At this stage, it is customary for the Defendants to make certain Motions in a civil case for a Directed Verdict which has been made and in this case, has been granted. I have ruled that these Plaintiffs are not entitled to recover under the laws of Maryland and therefore there is nothing to send to the Jury and the trial is at an end and you are excused.
END OF CASE ”

There is in the record transmitted to us a document entitled “Defendant’s Motion for a Directed Verdict.” It reads:

“Now comes Eastgate Associates, Defendant, herein, at the close of the Plaintiff’s evidence and moves the Court to direct a verdict in its favor for the following reasons:
1. That the Plaintiff has offered no evidence of primary negligence on the part of the Defendant.
2. That the uncontradicted evidence in this case shows the Plaintiff is guilty of contributory negligence.”

On It Is endorsed, over the signature of the trial judge, “granted, Nov. 26, 1974.” It is stamped as filed 26 November 1974 in open court. The docket entry under date of 26 November 1974 reads in relevant part:

“Plaintiff rests; Counsel for Defendant moves for a Directed Verdict in favor of the Defendant; Clerk enters objection to Motion on behalf of the Plaintiff in accordance with Md. Rule 552 a; Court grants Motion for Directed Verdict in favor of Defendants, Eastgate Associates, et al and against the Plaintiffs, Leonard Apper and Beverly Apper;”

The next entry on the docket is under date of 23 December 1974: “Order for Appeal by Plaintiffs Leonard Apper and Beverly Apper, His wife, filed;” The “ORDER FOR APPEAL BY PLAINTIFFS, LEONARD APPER AND BEVERLY APPER, HIS WIFE”, is included in the record, stamped as filed 23 December 1974, at 10:49 A.M. It reads, over the signature of one of the appellants’ attorneys:

DEAR MR. CLERK:
Enter an Appeal to the Court of Special Appeals from the Judgment entered in this action on November 26,1974.”

No judgment had been entered. The verdict directed by the court was no more a judgment than would be a verdict of the jury. There being no final judgment, there was nothing from which to appeal. Courts Art. § 12-301.

Despite that the appeal was premature, we shall, as we did in Stitzel v. Kurz, 18 Md. App. 525 (1973), cert. den. 18 September 1973 and 9 October 1973, discuss the facts and the applicable law in the light of the substantial merits of the case, Maryland Rule 1071, and we shall then fashion a result which will give due recognition to those substantial merits. We do so to save judicial time and unnecessary expense and in the belief that our action is in the best interest of the administration of justice.

THE LAW

In an action for negligence the plaintiff has the burden of proving: (a) facts which give rise to a legal duty on the part of the defendant to conform to the standard of conduct established by law for the protection of the plaintiff; (b) failure of the defendant to conform to the standard of conduct; (c) that such failure is a legal cause of the harm suffered by the plaintiff; and (d) that the plaintiff has in fact suffered harm of a kind legally compensable by damages. C. & P. Tel. Co. v. Hicks, 25 Md. App. 503, 525 (1975), cert. den. 3 July 1975, citing Restatement (Second) of Torts, § 328 A (1965). The standard of conduct established by law arose from Apper’s status as an invitee of Eastgate. “An invitee is one invited or permitted to enter or remain on another’s property for purposes connected with or related to the owner’s business. The owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover.” Bramble v. Thompson, 264 Md. 518, 521 (1972). See Kight v. Bowman, 25 Md. App. 225, 229 and 230-231, n. 3 (1975). It is manifest that in the case sub judice that because there was no direct evidence on the question, it was necessary that the doctrine of res ipsa loquitur be invoked in order to permit an inference that Eastgate failed to conform to the standard of conduct required with respect to Apper. It is only through the circumstantial evidence of negligence supplied by that doctrine that the case could properly be submitted to the jury. Thus, although the issue for decision is the propriety of the direction of the verdict, the determination of the issue depends upon whether the doctrine of res ipsa loquitur arose upon the facts and circumstances. Appellants claim that the doctrine did arise. Appellees urge that it did not because appellants failed to establish the elements necessary to invoke it.

We found in Hicks that, in this jurisdiction, there are three elements which a plaintiff must show to invoke the doctrine of res ipsa loquitur. 25 Md. App. at 513. We thought that the Court of Appeals had settled on this language to express those elements, id., at 516:

“1. A casualty of a sort which usually does not occur in the absence of negligence.
2. Caused by an instrumentality within the defendant’s exclusive control.
3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.”

APPLICATION OF THE FACTS TO THE LAW

We consider the elements necessary to invoke the doctrine of res ipsa loquitur in the light of the evidence adduced to prove them, but we do so in the order inverse to the listing of them.

The Act of the Person Injured

A person injured must eliminate his own conduct as a cause of the injury. He may do so by showing that he has done nothing abnormal with the instrumentality causing the injury and has used it in the manner and for the purpose for which it was intended. Sweet v. Swangel, 166 N. W. 2d 776, 778 (1969), quoting W. Prosser, Res Ipsa Loquitur in California, 37 Calif. L. Rev. 183, 202 (1949):

“ ‘ The plaintiff need only tell enough of what he did and how the accident happened to permit the conclusion that the fault was not his. Again he has the burden of proof by a mere preponderance of the evidence; and even though the question of his own contribution is left in doubt, res ipsa loquitur may still be applied under proper instructions to the jury.’ ”

The evidence is clear that Apper did nothing abnormal with the fixture. He used it in the manner and for the purpose for which it was intended. It was designed and installed to assist a bather to get in and out of the tub and that is precisely the use he made of it. It is true that he was an actor in the event which caused the injury, but to bring himself within the doctrine, it is not necessary that he be the completely inert object of the negligent act. The act of the injured person which sets in motion the instrument of the injury must not be confused with an act of the injured party by which, sharing responsibility in some way with the defendant for the creation or maintenance of the dangerous condition, he is deemed also to share the negligence. Kane v. Ten Eyck Co., Inc., 175 N.Y.S.2d 88, 92 (1943). On the evidence Apper could be found to be exonerated from any responsibility for the accident. It permitted a conclusion that he was injured through no fault of his own while engaged in a customarily innocuous course of conduct — getting out of a bathtub. We find that there was evidence to show the third element.

Exclusive Control

There was also evidence sufficient in law to prove the second element, that the casualty was caused by an instrumentality within the exclusive control of the defendant. The fixture was exclusively under the control and maintenance of Eastgate, and Eastgate had exclusive knowledge of the care exercised in the control and maintenance of that instrumentality. Apper was a guest in the motel. The motel owed him the duty of providing accommodations that were reasonably safe for the use contemplated, and, where it furnished appliances, of furnishing them in such a condition that with ordinary use they would be reasonably safe. The motel rented the room and appliances and it had them under its exclusive control with respect to installation and maintenance. It retained such control of the equipment it furnished, notwithstanding that it furnished Apper with possession of the equipment while he was a guest. See Jungjohann v. Hotel Buffalo, 173 N.Y.S.2d 340, 342 (4th Dep’t 1958), quoting with approval Kane v. Ten Eyck Co., Inc., supra. The court in Kane said, at 91-92:

“The room in the inn is regarded as part of ‘the house of the innkeeper.’ Rodgers v. People, 86 N. Y. 360. * * * [T]here was no division in control or responsibility in the duty of the hotel, having accepted him as a guest, to furnish reasonably safe facilities to this plaintiff. The hotel’s duty to plaintiff was singular and it certainly was not divided with plaintiff ... at the point where plaintiff assumed occupancy of the room.”

Eastgate had the exclusive responsibility as well as the sole capability for keeping the “soap and grab” in good order and condition. See Brown Hotel Company v. Marx, 411 S.W.2d 911, 915 (Ky. 1967).

The Nature of the Casualty

The evidence fully warranted the inference of negligence permitted by the res ipsa doctrine. Not only was it legally sufficient to show that the fixture was within the exclusive control of Eastgate and that Apper was exonerated from any responsibility for the accident, but, also, the casualty was of the sort which usually does not occur in the absence of someone’s negligence. In the ordinary instance, no injurious operation is to be expected from the use of the fixture unless from a careless construction, maintenance or user. We think that the jury could have properly inferred the injury was probably caused by some negligent act on the part of Eastgate.

We look first at Byrne v. Boadle, 2 Hurl. & Colt. 722 (1863) which launched the res ipsa doctrine into the orbit of tort law. Chief Baron Pollock said, at 726:

“The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence. Or if an article calculated to cause damage is put in a wrong place and does mischief, I think that those whose duty it was to put it in the right place are prima facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them. The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.”

Barons Bramwell, Channell and Pigott were of the same opinion. We see a parallel between the casualty there and the casualty here. Just as the barrel eould not roll out of a warehouse without some negligence, the “soap and grab” could not pull out from the wall without some negligence. The fixture was in the control of Eastgate, and the fact of its pulling loose from the wall was prima fade evidence of negligence. Apper was not bound to show directly that it could not have pulled loose without negligence. We also see a parallel in Blankenship v. Wagner; 261 Md. 37 (1971) in which the evidence showed only that while attempting to carry a refrigerator into a house by way of the rear steps, the construction, maintenance and exclusive control of which were under the dominion of the defendant, the delivery man was injured when the second step broke in half. The evidence there no more showed why the step broke than the evidence here showed why the fixture pulled from the wall. The Court stated that although the case did not fall neatly within the “classic pattern” of res ipsa cases in which someone is struck by a falling object, it came within the ambit of the doctrine. Id., at 42-43. It held that the grant of a directed verdict in favor of the defendant was erroneous because the res ipsa doctrine supplied sufficient evidence of negligence on the pari of the defendant to submit the case to the jury.

Cases In other jurisdictions to the same effect are even more factually apposite. In Lyttle v. Denny, 71 A. 842 (Pa. 1908) the evidence was that the heavy head of a bed fell forward and down over a guest in the hotel while he was quietly lying upon the bed, and injured him severely. The court said, at 843: “This could not have occurred had the bed been in proper condition for use.” It held that the facts brought the case within the doctrine of res ipsa. Murphy v. Bargain City, 201 A. 2d 299, 301 (Pa. 1964) and Paul v. Hess Bros., 312 Á. 2d 65, 67 (Pa. Sup. 1373), are both in accord with the Lyttle teaching that “the top of a folding bed does not fall down if proper care is taken putting it up”, so that res ipsa applied. In Cross v. Laboda, 152 A. 2d 792 (Pa. 1859) a patron of a restaurant was injured when a seat on a stool on which he was sitting broke, causing him to fall to the floor. The patron produced no evidence as to the construction and quality of the stool or regarding the innkeeper's inspection of it. The court in concluding that the res ipsa doctrine was applicable, reiterated the language in Lyttle at 843, which quoted the language of Delahunt v. United Tel. Co., 64 A. 515, 517 (Pa. 1906): “Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care ” In Kane v. Ten Eyck Co., Inc., supra, Jungjohann v. Hotel Buffalo, supra, and Brown Hotel Company v. Marx, supra, the doctrine of res ipsa was applied when an injury to a guest in a hotel was caused by the breaking of a handle of a bathroom faucet he was turning. In Schanberg v. New York, 296 N.Y.S.2d 646 (1969) it applied where the faucet handle which broke was in an office of the Attorney General of New York. In Traub v. Holland-American Line, 278 F. Supp. 814 (S.D.N.Y. 1967) res ipsa supplied evidence of negligence where a passenger on a ship was injured when the handle broke while she was flushing the toilet in her cabin. These cases cite numerous other cases with like holdings. See, for example, Sweet v. Swangel, supra, involving a collapse of a motel chair, which, at 779, cites cases in other jurisdictions which applied res ipsa loquitur in situations considered by the court to be factually similar. There are, of course, cases which look the other way. See, for example, Doherty v. Arcade Hotel, 134 P. 2d 118 (Or. 1943); Cottmire v. 181 East Lake Shore Drive Hotel Corp., 71 N.E.2d 823 (Ill. 1947); Trembly v. Capital Co., 201 P. 2d 398 (Cal. 1949); Hunter v. Hotel Sylvania Co., 34 A. 2d 816 (Pa. 1943). We are not persuaded by them. We find that the evidence was sufficient to prove the first element.

DECISION

Having shown the three elements which a plaintiff must prove to invoke the doctrine of res ipsa loquitur, Apper was entitled to have the doctrine applied. Upon its application, there would have been such evidence of negligence as to make unwarranted the grant of Eastgate’s motion for a directed verdict at the close of evidence offered by Apper. We hold that the court erred in granting the motion. Apper should be afforded a new trial.

We emphasize that the doctrine of res ipsa loquitur merely provides a permissible inference of negligence. See note 9, supra. Negligence may be rebutted by testimony and evidence produced on behalf of Eastgate. In the words of Chief Baron Pollock: “[I]f there are any facts inconsistent with negligence it is for the defendant to prove them” Byrne v. Boadle, supra, at 726.

DISPOSITION

We have, as we indicated, discussed the facts and the applicable law in the light of the substantial merits of the case even though the appeal is premature. We noted that we would fashion a result to give due recognition to those substantial merits. Although we must dismiss the appeal, we remand the case with direction that judgment be entered in favor of appellees for costs. For a period of thirty days after the entry of judgment, the trial court has revisory power and control over it. Rule 625, § a. Upon a proper and timely motion, the trial judge should strike the judgment and order a new trial. We observe that the order entered by this Court and the opinion on which the order is passed shall be conclusive as to the points finally decided thereby.

Appeal dismissed; case remanded for further proceedings in accordance with this opinion; costs to be paid by appellants; mandate to issue forthwith.

      . The declaration filed alleged the owners to be Eastgate Associates, a limited partnership, M. Elizabeth Ribar, C. Joseph Molinaro, William H. Deck, David W. Moore, and M. Max Leder, co-partners, and Quality Courts Motels, Inc. They are hereinafter referred to as Eastgate.

      . This is the substance of what is set out in the brief of Apper and his wife, appellants, and reflects evidence adduced at the trial. Appellees, in their briefs, adopted, without exception, the statement of facts in appellants’ brief.

      . Quality Courts Motels, Inc. was not a party to this claim. The Appers filed an amended declaration naming Jones as an original defendant. A motion for summary judgment was granted with respect to Jones under the amended declaration, leaving him as a third party defendant. He died while the litigation was pending and letters of administration on his estate were granted to his widow, Goldie Mae Jones. Upon_ suggestion, she was substituted in her capacity of personal representative as the third party defendant.

      . The transcript continued with a statement by one of the attorneys for the Appers:
      “Plaintiffs object to the Defendants’ Motion for Directed Verdict and takes exception to the Court’s granting the Motion 'for Directed Verdict on the grounds that the circumstances of the case as shown by the evidence in the case thus far places this case squarely within the doctrine of res ipsa loquitur or inferred negligence and Plaintiff states that it is error of the Court not to apply the doctrine of res ipsa loquitur as requested by the Plaintiff.”

      . Rule 552, § e provides:
      “Upon the granting by the court of an instruction directing a verdict, the court shall instruct the clerk to enter such verdict, and to note that it has been entered by the court’s instruction. It shall not be necessary for the jury, by its foreman, or otherwise, to render such verdict.”

      . It was stipulated by the parties that the record on appeal shall not include the entire transcript of the proceedings, “but only that part relating to the issues of negligence and not to damages”. No issue as to damages was to be raised on appeal. Maryland Rule 1026 c 2.

      . “An innkeeper is not an insurer of the personal safety of his guests and is only bound to the exercise of reasonable care in that behalf.” 3 T. Cooley, Law of Torts, § 462 (4th ed. 1932). It seems that in antiquity there was some authority for holding an innkeeper strictly liable. 2 F. Harper & F. James, The Law of Torts, § 12.3, n. 1. See 2 J. Kent, Commentaries 593 (14th ed. 1896). '

      . We talked about the obligation of the trial judge with respect to Rule 552, “Directed Verdict”, in Buchanan v. Galliher and Harless, 11 Md. App. 83, 87 (1971), cert. den. 261 Md. 722:
      “When a trial court is called upon by a motion for a directed verdict to rule upon the legal sufficiency of the evidence to require submission of any issue to a jury, the court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made, and if such evidence and inferences lead to conclusions from which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury.”

      . We said in Hicks, supra, at 529-530:
      “We believe that the true interpretation of res ipsa loquitur in Maryland, despite apparent inconsistencies in discussing it, is that espoused by the great majority of American courts. The doctrine merely provides a permissible inference of negligence. This means that the inference of negligence to be drawn from the circumstances is left to the jury. They are permitted, but not compelled to find it. As for the plaintiff, the doctrine furnishes sufficient evidence to go to the trier of fact. As for the defendant, the burden of proof is not shifted to him, nor is any burden of introducing evidence cast upon him, except in the very limited sense that if he fails to do so, he runs the risk that the trier of fact may, and very likely will, find against him. In other words, he has no duty to go forward with the evidence, but by not doing so he runs the risk of non-persuasion. Of course, there will be occasional cases where the inference of negligence is so clear that no reasonable man could fail to accept it. In such cases, if the defendant offers no explanation, a verdict should be directed for the plaintiff.”
      “ ‘In other words, the procedural effect of a res ipsa case is a matter for the strength of the inference drawn, which will vary with the circumstances of the case.’ ” W. Prosser, Torts, § 40, p. 230 (4th ed. 1971).
      We discussed res ipsa loquitur at length in Hicks. We noted the early warning of the Court of Appeals in Howser v. C. & P. R. R. Co., 80 Md. 146, 153 (1894), that “the most careful scrutiny should be given to the circumstances attending the accident, and whilst an excellent authority has said that after all the question resolves itself into one of common sense, we would add that it should be of a high order. For it is unquestionably true that the authorities are by no means in accord on the question which arises out of the doctrine of res ipsa loquitur.” Over three-quarters of a century later the Court observed: “[0]ur predecessors have shown great restraint in the application of res ipsa loquitur and have not extended it beyond the classic factual patterns where it has proved particularly useful.” Stoskin v. Prensky, 256 Md. 707, 713 (1970). The doctrine, when applicable, merely asserts a rebuttable conclusion deduced from known and obvious premises. Benedick v. Potts, 88 Md. 52, 58 (1898). “There ^is, therefore, a difference between inferring as a conclusion of fact what it was tha.t did the injury; and inferring from a known or proven act occasioning the injury that there was negligence in the act that did produce the injury. To the first category the maxim res ipsa loquitur has no application; it is confined, when applicable at all, solely to the second.” Id., at 56.

      . Kane v. Ten Eyck Co., Inc., 267 App. Div. 789, 46 N.Y.S.2d 251 (3rd Dep’t 1943) per curiam, aff'd, per curiam, 292 N. Y. 701, 56 N.E.2d 115 (1944). The citation In the text above is to an opinion written upon a motion to set aside the verdict.

      . For a comprehensive discussion of “exclusive control”, see Hicks, supra, at 518-523.
      We note that we expressly affirm our discussion and conclusions with respect to the law concerning the doctrine of res ipsa loquitur as set out in Hicks.

      . Baron Channell had this to say, at 728:
      “The first part of the rule assumes the existence of negligence, but takes this shape, that there was no evidence to connect the defendant with the negligence. The barrel of flour fell from a warehouse over a shop which the defendant occupied, and therefore prima facie he is responsible. Then the question is whether there was any evidence of negligence, not a mere scintilla, but such as in the absence of any evidence in answer would entitle the plaintiff to a verdict. I am of opinion that there was. I think that a person who has a warehouse by the side of a public highway, and assumes to himself the right to lower from it a barrel of flour into a cart, has a duty cast upon him to take care that persons passing along the highway are not injured by it. I agree that it is not every accident which will warrant the inference of negligence. On the other hand, I dissent from the doctrine that there is no accident which will in itself raise a presumption of negligence. In this case I think that there was evidence for the jury, and that the rule ought to be absolute to enter the verdict for the plaintiff.”

      . The weight of the delivery man was given as 230-240 pounds but the weight of the refrigerator was unknown.

      . Appellants refer us to Hillinghorst v. Heart of Atlanta Motel, Inc., 122 S.E.2d 751 (Ga. 1961) in which there was a “strikingly similar factual situation” to that in the instant case. A paying guest in a motel was injured when in pulling himself out of the bathtub, the handle of a porcelain “soap and grab”, affixed to the wall above, crumbled in his hand. But as appellants point out, the opinion of the court did not involve the doctrine of res ipsa. The holding was that it was error to sustain a motion to dismiss in the nature of a general demurrer because the allegations of negligence were sufficient. The court did, however, discuss the duty of an innkeeper to a guest and the breach of that duty.

      . The entry of judgment upon the granting of the directed verdict in favor of Eastgate would effectively dispose of the third party claim. Ambrose v. Kent Island Yacht Club, 22 Md. App. 133, 139 (1974). If the judgment is stricken, the third party claim, would, of course, be revived.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    BEREAN BIBLE CHAPEL, INC. v. IMOGENE PONZILLO
    [No. 163,
    September Term, 1975.]

      Decided November 5, 1975.

      The cause was argued before Orth, C. J., and Gilbert and Melvin, JJ.

      Eugene A. Alexander, III, with whom was Thomas E. Rosser on the brief, for appellant.

      Barry I. Robinson for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

This appeal calls upon us to construe Real Property Article § 4-109, the prior conveyance curative provisions of the article, with respect to its effect on subsequent creditors without notice.

The factual happenings out of which this appeal arose are uncomplicated. On May 22, 1972 Rita Helen Comi executed a mortgage in favor of Imogene Ponzillo. The mortgage was a lien upon property known as 2026, 2028 and 2030 Orleans Street in Baltimore City. A default occurred on the mortgage and a foreclosure sale resulted. Berean Bible Chapel, Inc., a Maryland religious corporation, was the successful bidder at the sale, they having bid $14,000.00. After the sale was reported by the trustee to the Circuit Court of Baltimore City and within the time allowed by that court’s order nisi, the purchaser excepted to ratification of the sale. The purchaser pointed out that the mortgage from Comi to Ponzillo “. . . was not acknowledged or was improperly acknowledged and . . . there was also a lack of acknowledgment or affidavit of consideration. . . .” Consequently, the purchaser charged that the trustee could not “give a good and marketable title to the purchase*- ”

The matter was referred to the Master in Chancery, Harry M. Sachs, Jr. Mr. Sachs submitted a “Report and Recommendation” to the Chancellor in which Sachs concluded that, “. . . the purchaser takes good title from the trustee and that the equitable lien which is in the process of being enforced by virtue of these proceedings takes a priority over the other lien creditors if there be any.”

The purchaser noted exceptions to the Master’s report and recommendation. Judge Joseoh C. Howard, after a hearing on the exceptions to the Master’s report, issued an order dated February 20, 1975 in which he overruled the purchaser’s exceptions and affirmed the report of the Master. In the same order Judge Howard “ratified and confirmed” the sale by the trustee to Berean Bible Chapel, Inc., and Berean entered an appeal to this Court. We shall affirm Judge Howard’s order for the reasons hereinafter stated.

The acknowledgment portion of the form mortgage executed by Comi in favor of Ponzillo reads:

“On this 22nd day of May, 1972, before me, a Notary Public of said State, personally appeared _ known to me, or satisfactorily proven to be the person whose name is subscribed to the within Mortgage, and who acknowledged that she executed the same for the purposes therein contained. At the same time also appeared--agent of the within named corporation, Mortgagee, and made oath in due form of law that the consideration set forth in said mortgage is true and bona fide as therein set forth, and also made oath that he is the agent of the Mortgagee and duly authorized to make this affidavit.
As Witness my hand and Notarial Seal.”

Thereafter the notary subscribed her name and affixed her official seal.

The Court of Appeals in Pagenhardt v. Walsh, 250 Md. 333, 335, 243 A. 2d 494, 496 (1968) quoted H. Ginsberg and I. Ginsberg, Mortgages and Other Liens in Maryland 56 (1936), wherein the authors state:

“If the affidavit [of consideration] is lacking or if the affidavit is bad, the mortgage will, as a general rule, have no effect except as between the parties. The mortgage is not absolutely void, but will have the effect of an equitable mortgage. As such mortgage, it will yield to the specific lien created by an attachment, even though such attachment is based on a prior existing debt. But it will be good against a judgment creditor who acquires such judgment subsequent to the mortgage but on a prior debt.”

Judge Singley, writing for the Court in Pagenhardt, after noting the history of the Court’s treatment of the various cases that it had considered with respect to a lack of or defective affidavit of consideration or acknowledgment (at 336-338), went on to say:

“. . . [S]trict and literal standards are to be applied to the form of the affidavit. Dyson v. Simmons, [48 Md. 207 (1878)] . . .; Reiff v. Eshleman, [52 Md. 582, 588 (1879)] . . ., which holds that the making of the oath cannot be the subject of parol proof; Jackson v. County Trust Co., [176 Md. 505, 6 A. 2d 380 (1939)].. . . An affidavit deficient in form . . . like a defective mortgage, except as between the parties, or as to those having actual notice, is regarded by the Maryland cases as a nullity, since it creates no valid lien and cannot be regarded as having put subsequent creditors on constructive notice.” 250 Md. at 338.

See also Dryfoos v. Hostetter, 268 Md. 396, 403, 302 A. 2d 28 (1973).

Under the Pagentiardt and Dryfoos holdings the mortgage in the instant case, except as between the parties, would be a nullity with respect to subsequent creditors without actual knowledge, were it not for the curative provisions of Real Property Art. § 4-109. That section provides, in pertinent part:

“(a) Defective grants recorded before January 1, 1973.
— If an instrument was recorded before January 1, 1973, any failure of the instrument to comply with the formal requisites listed in this section has no effect, unless the defect was challenged in a judicial proceeding commenced by July 1,1973.
(c) Failures informal requisites of an instrument.
— For the purposes of this section the failures in the formal requisites of an instrument are:
(1) A defective acknowledgment;
(2) A failure to attach any clerk’s certificate;
(3) An omission of a notary seal or other seal;
(4) A lack of or improper acknowledgment or affidavit of consideration or disbursement; or
(5) An omission of attestation.”

There can be no doubt that the legislature has full power to pass curative statutes. Winegert v. Zeigler, 91 Md. 318, 326, 46 A. 1074, 1077 (1900). The Court, in Dryfoos v. Hostetter, 268 Md. at 404, declared:

“Curative acts have been enacted at virtually every session of the General Assembly commencing with Ch. 208, of the Laws of 1858. They have as their general purpose the validation of conveyances which might otherwise have been challenged because of some deficiency in form or content. Although curative acts may be broadly characterized as being retroactive or retrospective in their operation, they are generally sustained on the theory that whatever a sovereign power may authorize in prospect, it may adopt and validate in retrospect, so long as there is no interference with vested rights or contractual obligations....”

2 Sutherland, Statutes and Statutory Construction § 41.11 (4th ed. C. Sands 1973) states:

“A curative act is a statute passed to cure defects in prior law, or to validate legal proceedings, instruments, or acts of public and private administrative authorities which in the absence of such an act would be void for want of conformity with existing legal requirements, but which would have been valid if the statute had so provided at the time of enacting.”

The test usually used for determining the validity of curative acts may be stated thusly: if the legislature had the power to enact originally the matters now sought to be enacted as curative, such legislation is valid. 2 Sutherland, Statutes and Statutory Construction § 41.11. See also Dryfoos v. Hostetter, supra; Goddard v. Frazier, 156 F. 2d 938 (10th Cir. 1946), cert. denied 329 U. S. 765, 67 S. Ct. 124, 91 L. Ed. 659 (1946); 2 T. Cooley, Constitutional Limitations, 775 (8th ed. W. Carrington 1927).

When we apply the “test” to the case now before us, we observe that the legislature could have required or not required an affidavit of consideration or an acknowledgment. Certainly, there is no constitutional requirement that deeds or mortgages be sworn to in order to be valid. The purpose of the acknowledgment or affidavit is to protect, insofar as possible, the rights of subsequent creditors from sham mortgages and at the same time assure that the mortgage is bona fide. The acknowledgment also protects a property owner, to some extent, from a possible fictitious mortgage. In any event, the oath or affidavit could, should the legislature desire, be eliminated just as has been done with the necessity of a “seal”. The General Assembly may also validly shorten the time in which subsequent creditors without notice, may act against property because the statute of limitations confers no vested rights. Allen v. Dovell, 193 Md. 359, 66 A. 2d 795 (1949).

Inasmuch as the legislature could have abolished the legal requirement of acknowledgment and affidavit and could have shortened the statute of limitations, so long as no one’s substantive rights were impaired, it could and did validly enact the curative provisions of the Real Property Article.

The mortgage from Comi to Ponzillo was defective as originally recorded. The mortgage was valid as between the parties but a nullity as to subsequent creditors without actual notice. Such was the situation from May 22,1972, the date of the mortgage, until July 1,1973 when Real Property Art. § 4-109 (a) eliminated the possibility of such a creditor’s exercising a lien paramount to the “cured” mortgage. Section 4-109 (a)'bars any prior or subsequent creditor of the mortgagor from seeking to exercise a lien on the mortgagor’s property that is superior to the “cured” mortgage if the creditor did not judicially commence his challenge to the mortgage by July 1, 1973. Obviously, in the instant case the final date for a creditor to commence a challenge to the mortgage was fifteen months past at the time of the foreclosure sale. Neither prior nor subsequent creditors were any longer allowed to challenge the validity of the mortgage. Thus, the mortgage was valid, the trustee could convey good and marketable title, and exceptions to the sale were properly denied.

Order ratifying and confirming foreclosure sale affirmed.

Costs to be paid by appellant.

      . This section is the successor to Ch. 349, § 1, [1972] Md. Laws 1026 (repealed 1974). The current code provision represents stylistic changes as well as new language derived from former Article 21, § 4-109. The predecessor to Ch. 349, § 1, [1972] Md. Laws 1026, i.e., Ch. 479, [1971] Md. Laws 1047, was declared unconstitutional in Dryfoos v. Hostetter, supra.

      . See Real Property Art. § 4-101 (b).


author: Orth, C. J.,

text:
    STATE FARM FIRE AND CASUALTY COMPANY v. THOMAS C. QUIRT
    [No. 176,
    September Term, 1975.]

      Decided November 6, 1975.

    The cause was argued before Orth, C. J., and Gilbert and Melvin, JJ.

      William R. Hymes for appellant.
    No appearance for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

This appeal requires the construction of a contract of insurance issued by State Farm Fire and Casualty Company to Thomas C. Quirt. The appeal is from a judgment absolute in the amount of $1,000 in favor of Quirt against State Farm entered upon the verdict of a jury in the Superior Court of Baltimore City. State Farm attacks the judgment, claiming that the trial judge, Levin, J:, was wrong in denying its motion for a directed verdict, and that even if the case were properly submitted to the jury, he committed reversible error in his charge to the jury. We find that the judge was correct in refusing to direct a verdict, albeit for the wrong reason. We agree that he erred in instructing the jury, but we believe that the error does not call for reversal. The challenged instructions gave State Farm more than that to which it was entitled, and, therefore, did not prejudice it. We affirm the judgment.

I

Certain facts established by the evidence adduced at the trial are undisputed. Quirt was the owner of two pieces of jewelry, a ring valued at $1200 and a brooch valued at $1150, which he kept for a time at home and later in a bank safe deposit box for several years. He had his business partner, a Mr. Shae, take them to Jack Cheslock, a retail jeweler, dealing as Cheslock’s, Inc. They remained in Cheslock’s possession until August of 1968 when they were stolen in an armed robbery. Cheslock, believing that the loss was covered by his insurance, did not tell Quirt that the jewelry had been stolen until January 1969, when his insurer disclaimed liability.

At the time of the robbery, a contract of insurance, issued by State Farm to Quirt, was in effect. On 31 May 1969 Quirt filed a claim of loss with State Farm and on 9 June 1969 made a recorded statement about the matter to Robert Schwartz, State Farm’s Claim Representative. The contract of insurance was a Homeowners Policy. It contained a standard clause, apparently common to such policies, concerning coverage of unscheduled personal property. Among the perils insured against was the theft of such property subject to certain provisions under “Coverage B” of the policy. We set them out in full as they are the crux of the controversy.

“COVERAGE B — UNSCHEDULED PERSONAL PROPERTY.
1. On Premises: This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling, owned, worn or used by an insured, while on the premises, or at the option of the Named Insured, owned by others while on the portion of the premises occupied exclusively by the Insured.
THIS COVERAGE DOES NOT INCLUDE: ANIMALS, BIRDS, AUTOMOBILES INCLUDING MIDGET AUTOMOBILES, VEHICLES LICENSED FOR ROAD USE AND AIRCRAFT; THE PROPERTY OF ROOMER’S OR BOARDERS NOT RELATED TO TPIE INSURED; ARTICLES CARRIED OR HELD AS SAMPLES OR FOR SALE OR FOR DELIVERY AFTER SALE OR FOR RENTAL TO OTHERS; AND PROPERTY WHICH IS SEPARATELY DESCRIBED AND SPECIFICALLY INSURED IN WHOLE OR IN PART BY THIS OR ANY OTHER INSURANCE.
2. Away from premises: This policy also covers unscheduled personal property as described and limited, while elsewhere than on the premises, anywhere in the world, owned, worn or used by an Insured or at the option of the Named Insured, owned by a guest while in a temporary residence of, and occupied by an Insured or owned by a residence employee while actually engaged in the service of an Insured and while such property is in the physical custody of such residence employee or in a residence temporarily occupied by an Insured. PROPERTY PERTAINING TO A BUSINESS IS NOT COVERED.
THE LIMIT OF THIS COMPANY’S LIABILITY FOR SUCH PROPERTY WHILE AWAY FROM PREMISES SHALL BE AN ADDITIONAL AMOUNT OF INSURANCE EQUAL TO 10% OF THE AMOUNT SPECIFIED FOR COVERAGE B BUT IN NO EVENT LESS THAN $1,000.”

By letter dated 12 June 1969 State Farm notified Quirt that it would not pay the loss. It gave as the reason: “This coverage does not include: animals, birds, etc.; articles carried or held as samples or for sale or for delivery after sale etc.”

On 16 October 1969 Quirt instituted an action ex contractu by filing a declaration against State Farm in the Superior Court of Baltimore City. State Farm pleaded the general issue and a special plea that the policy sued on “does not cover, or provide payment for, articles carried or held as samples [or] for sale or for delivery after sale and the Plaintiff deposited the articles alleged to have been stolen with the owner of Cheslock’s, Inc., where said articles were to be sold on a commission basis by the owner of Cheslock’s, Inc.” In due course, trial was had and judgment obtained. See note 1, supra.

II

Although it was not disputed that Quirt owned the two pieces of jewelry, that he turned them over to Cheslock, and that they were stolen while in Cheslock’s possession, there was conflict as to why Quirt had delivered the ring and brooch to Cheslock. The conflict emanated primarily from Quirt. In the claim of loss filed by him and in the statement shortly thereafter given Schwartz, State Farm’s Claim Representative, Quirt said that Cheslock was to sell the jewelry for him. At the trial, however, the substance of Quirt’s testimony was that he delivered the jewelry to Cheslock for remodeling and not for sale. Cheslock’s testimony did not clarify the matter. His recollection was that when the jewelry was left with him he said it would be “a shame to break the two pieces up since they were such nice pieces. There was some talk into remodeling into cuff links. I don’t know how far we went into that. There was some talk of me possibly trying to get rid of the pieces for him, and that was about it. We actually didn’t go too far in it, but there was some talk into remodeling, into cuff links, as I recall.” Quirt would have had the option to accept or reject any offer to buy. Cheslock did not believe he ever showed the jewelry to anyone specifically. It was elicited that it would have taken about four weeks to complete a “total remodeling job”, and the jewelry had been in Chesloek’s possession about eighteen months before the robbery.

Ill

In the context of State Farm’s liability, the significance of whether Quirt left his jewelry with Cheslock for sale or for remodeling depends upon the meaning of the provision that coverage does not include articles held for sale. We find it clear that the ring and brooch were within the ambit of “Coverage R”, whether on or away from the premises, as unscheduled personal property owned, worn, or used by the insured, Quirt. The jewelry was patently, as far as Quirt was concerned, not property pertaining to a business. Quirt’s unrefuted testimony was that he had purchased the ring in the early 1960’s, “1960, ’61, ’62”, from the Stall Company in New York. “I had originally intended to give [it] to someone and I had decided against it after purchasing that. So 1 actually just kept it at home for some period of time.. . Until a time I had a safe deposit box to put it into”, which was about 1965. The brooch was purchased in 1964 or 1965 from Cheslock. Quirt put it in the safe deposit box also. “Because I had decided that the original intent in purchasing them I had decided against that intent so I put them in the safe deposit box for safe keeping.” And the loss was occasioned by a peril specifically insured against, that is “Theft, meaning any act of stealing or attempt thereat. ...” The sole question is whether the jewelry was held for sale within the contemplation of the exclusion.

State Farm’s view is that if unscheduled personal property is to be sold, it is excluded from Coverage B. It looks to American Motorist Insurance Company v. Vermont, 155 S.E.2d 675 (Ga. 1967) and urges us to accept the law expounded in that case. Albert Vermont brought the action upon a homeowner’s policy issued to him to recover for the loss by theft of a large diamond which he owned and left with a jeweler for sale under a brokerage agreement. As in the policy before us there was an exclusionary clause in Vermont’s policy concerning “articles carried or held as samples or for sale.” The court held, at 676, that as Vermont “was trying to sell the article and maintained no other purpose for it, it came within the exclusionary provision of the policy as a matter of law, irrespective of whether it was in any way related to [Vermont’s] usual occupation or business.” In so concluding, the court expressly rejected the contention that the phrase “articles carried or held as samples or for sale” refers only to property owned or used by the insured of a commercial nature in the conduct of his trade, occupation, or business. We, of course, are not bound by the decision of the Court of Appeals of Georgia, and we are not persuaded by it. The Georgia court thought that the exclusionary clause was unambiguous when considered literally. It observed that a similar exclusionary clause was enforced literally in Gross v. Globe & Rutgers Fire Ins. Co., 142 Misc. 918, 256 N.Y.S. 570 (1932). In Gross the Supreme Court of New York, Appellate Term, First Department, reversed a judgment rendered on an action to recover loss under a “tourist floater” policy and dismissed the complaint on the merits in a three sentence per curiam opinion, without citation of authority or statement of reason, in which two judges of the three judge panel concurred on the merits and the third judge dissented without filing an opinion. We quote the opinion in its entirety:

“The ring involved herein was a ladies’ ring which the assured, a male person, had bought some time previously for presentation as an engagement ring. It was being carried at the time of its loss because the assured intended to sell it — the engagement having been broken. Under such circumstances it was not ‘a personal effect usually carried by a tourist or a traveller,’ nor was it ‘personal jewelry belonging to and used or worn by the assured or a member of his family.’ In any event it comes within the exception in the policy excluding ‘merchandise for sale.’ ”

As further authority, the opinion in Vermont urged, “See Orren v. Iowa Mut. Liability Ins. Co., 230 N. C. 618, 54 S.E.2d 927; Ann. 80 A.L.R.2d 1289.” Orren concerned an action to recover on a residence and outside theft policy. It was decided by the Supreme Court of North Carolina in 1949 by a per curiam opinion as follows:

“The determinate question at issue herein is as to whether the diamond ring was possessed by plaintiff or a member of his family for personal use or as a business asset held for sale. If a business asset, its loss by theft was not insured. The findings and conclusion of the judge in respect thereto were adverse to plaintiff. They are fully sustained by the record. Hence the judgment entered must be
Affirmed.”

The Annotation lends no support. It dealt with the “Scope and purview of clause excluding business property from the coverage of policy insuring unscheduled personal property.”

We, also, find the exclusionary provision to be unambiguous, but our view of its meaning is the opposite of that of the court in Vermont. In determining what is covered by the terms and provisions of a contract of insurance, it is necessary to ascertain the intention of the parties, as gathered from the language employed by them, and in ascertaining that intention, the court must consider the character of the contract, its object and purpose, and the facts and circumstances surrounding the parties at the time of its execution, by which they would ordinarily be influenced in making it. First Nat. Bk. v. Md. Cas. Co., 142 Md. 454, 460 (1923). We note first that the policy here is a homeowner’s policy, intended to insure property related to the home. When the exclusionary provision of the policy here speaks in terms of the coverage not including “. . . the property of roomers or boarders not related to the insured; articles carried or held as samples or for sale or for delivery after sale or for rental to others; . .. .” it bespeaks of a commercial enterprise. A roomer is defined as a lodger. A lodger is a person who rents and lives in a furnished room or rooms. A boarder is one who pays a homeowner a stipulated sum for regular meals or meals and lodging. The property of such persons, who are not related to the insured, is properly to be excluded from coverage of a homeowner’s policy. Property “carried or held as samples” could only refer to a business enterprise, contemplating sales to be made from exhibition of the samples. The clause designating articles carried or held “for sale or for delivery after sale” immediately followed by “or for rental to others” connotes, we think, as to both sale and rental, a business transaction. We find support in this view by the concise, explicit summary later set out: “Property pertaining to a business is not covered.” We find it clear, contrary to the opinion of the court in Vermont, that the clause, articles carried or held for sale, refers to property related to the insured’s usual occupation or business. It appears to us incongruous that an article which, without question, was included under Coverage B, would immediately be excluded because the owner-insured decided to sell it, not as a business venture, but to dispose of it with some recoupment of its cost. A set of golf clubs, no longer used by a weekend golfer through frustration with his game, or discarded upon acquisition of a later model, would be, when advertised for sale, stripped of protection against loss afforded by a homeowner’s policy. From the language employed and from the character of the contract, considering its object and purpose, we think that the parties here did not intend such result.

Even if Quirt’s primary purpose in depositing the jewelry with Cheslock was to have it sold, a sale would be nowise related to Quirt’s usual occupation or business, which according to the evidence was “the apartment building business.” Quirt merely employed an ordinary means to dispose of some personal belongings. Although selling the jewelry was in furtherance of Cheslock’s business, it had nothing to do with Quirt’s business. The short of it is that the ring and brooch, as far as Quirt was concerned, even if turned over to Cheslock for sale, were not carried or held for sale within the contemplation of the exclusionary provision of the insurance contract issued him by State Farm. It was immaterial whether Quirt deposited the jewelry with Cheslock for sale or for remodeling. In either event the articles were personal property within the coverage afforded by the policy and without its exclusionary provisions.

IV

Under our construction of the relevant part of the exclusionary provisions, it is manifest that the motion of State Farm for a directed verdict was properly denied. When the motion was made at the close of evidence offered by Quirt, the trial judge, in ruling, referred to Vermont, and, it appears, was of the opinion that the ring and brooch were excluded from coverage if deposited with Chesloek for sale and included if deposited with Chesloek for remodeling. Considering the evidence in a light most favorable to Quirt, the party against whom the motion was made, the jewelry was left with Chesloek for remodeling. Therefore, the judge reasoned, the motion should be denied — “Now I am denying the motion strictly on the basis of resolving inferences favorably to the Plaintiff.” When the motion was renewed at the close of all the evidence, it was again denied. Although no reasons were at that time stated by the judge, there is nothing to indicate that his concept had changed. Regardless of the reasons of the trial judge for denying the motion for a directed verdict, the denial was not erroneous and affords no basis to reverse the judgment.

State Farm claims that the court erred in that part of its instructions to the jury “where it was indicated that the Jury could only find a verdict for the Defendant if they found that the jewelry was being held by the jeweler primarily, or fundamentally, or directly for sale and not for remodeling or for safekeeping.” Under our construction of the policy this instruction was erroneous. But it gave State Farm more than that to which it was entitled because it could not prevail even if the jewelry were deposited with Chesloek for sale. Therefore, State Farm was not prejudiced by the erroneous charge, and it provides no basis to reverse the judgment.

Judgment affirmed; costs to be paid by appellant.

      . The action was twice tried. At the first trial, which began 31 May 1972, the judge, Cole, J., denied a motion for a directed verdict and the jury returned a verdict in favor of Quirt against State Farm in the amourt of $1000. State Farm moved for judgment n.o.v. or in the alternative for a new trial. The court granted a new trial on 14 July 1972. The retrial commenced on 12 December 1974. The verdict of the jury was rendered on 13 December and judgment on verdict nisi entered. State Farm’s motion for judgment n.o.v. or, in the alternative for a new trial was timely filed on 18 December 1974, as 13 December was a Friday. Maryland Rules 8 and 563. The motion was denied on 27 January 1975 and judgment on the verdict was made absolute the same day. State Farm appealed on 18 February 1975. Quirt did not file a brief or argue the appeal.

      . At one point Quirt said the jewelry was delivered to Cheslock in February 1967. In a loss claim the date given was February 1968. In a subsequent statement to State Farm’s Claim Representative, Quirt said he had recorded the approximate date but did not recall it offhand. “It was, I suspect, a little less than a year previous to August 1968.” Cheslock’s testimony indicated he received the jewelry in February 1967. In any event, it was not disputed that the jewelry was turned over to Cheslock.

      . Within the frame of reference of this case, the main distinction between unscheduled personal property on the premises and away from the premises is that, with respect to the latter, liability as to amount is more limited. In Quirt’s policy the limit as to unscheduled personal property was $4,000. When such property was away from the premises the limit was 10% of the amount specified for coverage, or $400, but in no event less than $1,000. As the jewelry was valued at $2,350, if it was within the ambit of Coverage B, the amount of liability was fixed at $1,000.

      . The claim read:
      “During February 1968, I put on consignment with Mr. Jack Cheslock, Cheslock’s Jewelry Store, 303 Reisterstown Road, a gold ring with 26 diamonds approximately 2LL carots and a gold broach with 30 diamonds approximating 2Vz car. In January 1969 I decided to take back these 2 pieces. At that time Mr. Cheslock said they were stolen in a August 1968 robbery of his store, but he had not notified me because he wanted to settle with his insurance company. He now claims his insurance company will not honor the claim on these pieces and that it is my insurance companys responsibility.”
      The statement, after Quirt said the ring and brooch “were put on consignment with Mr. Cheslock”, included this question by Schwartz and answer by Quirt:
      “Q. Was this an agreement where he was just going to attempt to sell them? Was he going to make a commission on it or how was he going to work it? A. Well, he was going to sell them and anything above and beyond, excuse me just a minute. Whatever price he could get for them would, he would be allowed to sell them for. Let me see, as I remember he would reimburse me,....”

        . State Farm Fire and Casualty Company policy no. 20-57 78 74, Thomas Quirt, insured, p. 3, “Perils Insured Against, paragraph 11.” The paragraph contained: “.. . and, as to Coverage B (on premises), including theft of property covered from within any bank, trust or safe deposit company, public warehouse, or occupied dwelling not owned or occupied by or rented to an Insured, in which the property covered has been placed for safekeeping.”

      . The court observed: “If [Vermont] was coincidentally trying to sell the diamond while utilizing it for its usual purpose of adornment, it would be an issue of fact whether the article was held for sale or primarily for another purpose.” Id., at 676.

      . The opinion in Vermont observed with respect to the holding: “Our research discloses no authority to the contrary, and plaintiff cites none.”

      . Definitions are from The American Heritage Dictionary of the English Language (1969).

      . The term “Business” is unambiguous. Courts have consistently held that business connotes a pursuit or occupation of a commercial or mercantile nature to obtain a livelihood. In Zurich Insurance Co. v. Friedlander, 261 Md. 612, 616-617 (1971) the Court held that “the ordinary and customary meaning [of business] is that reflected in Webster’s Third New International Dictionary as ‘commercial or mercantile activity customarily engaged in as a means of livelihood’. .. .”


author: Moore, J.,

text:
    H. GLEN REAVER et al. v. MARTIN BARLLY et al.
    [No. 256,
    September Term, 1975.]

      Decided November 6, 1975.

      The cause was argued before Orth, C. J., and Menchine and Moore, JJ.

      Hugh E. Donovan, with whom were Donahue & Ehrmantraut on the brief, for appellants.

      Austin W. Bnzendine for appellees.
   Moore, J.,

delivered the opinion of the Court.

On November 19, 1974, a jury in the Circuit Court for Baltimore County (Turnbull, J., presiding) awarded H. Glen Reaver, plaintiff-appellant, compensatory damages in the sum of $60,000 at the conclusion of a negligence action. He had instituted suit individually and to the use of Hartford Insurance Group, against three individuals (Martin Barlly, G. P. Van Hessen and F. R. Vigeveno) trading as Van Hessen and Company, defendants-appellees. On March 10, 1975, the trial court granted appellees’ motion for judgment n.o.v. because, Judge Turnbull stated:

“There is no evidence of negligence on the part of [defendants’ agent], and . . . my duty requires me, in spite of the fact that the jury brought a verdict in in favor of the plaintiff, to grant the Motion for Judgment N.O.V.”

Appellant contends that at trial he offered sufficient evidence of appellees’ negligence and that the granting of the motion for judgment n.o.v. constituted reversible error.

I

Appellant, age 40 and a truck driver with eleven years experience, was injured in an accident which occurred on the morning of January 28, 1972, at appellees’ place of business, a lumber yard near Stone Chapel Road in Randall stown, Baltimore County. The day was cold and a light snow — not exceeding one inch — had fallen. Appellant and another driver, Russell Adkins, had driven to the yard in separate vehicles, each to obtain a trailer-load of logs. The logs were 14 to 18 inches in diameter and 8 to 10 feet in length. They were being loaded aboard the flat-bed trailers by a 544 John Deere fork lift, operated by Clyde Hughes who had been employed by the appellees-defendants for approximately nine years.

According to the testimony, the practice in loading was to assemble the logs in three separate tiers, each consisting of a four-level pyramid of 14 logs, with 5 at the bottom, then 4, 3 and 2. As each tier was completed, it would be secured by a log chain. The trailers also had “side pockets” in which “short stacks”, approximately 2 feet in height, were inserted to hold the bottom logs. Hughes further testified that his method of loading logs onto trucks was to leave a space of six inches to one foot between tiers.

Appellant was standing on the ground next to the trailer. He had thrown a chain across the second or middle tier and was reaching up to hook it. His back was to Clyde Hughes, the fork lift operator, who was proceeding to place two logs on the third or rear tier. According to the other truck driver, Russell Adkins, one of the logs on the fork lift struck the tier with which appellant was working, causing it to break open. Mr. Adkins testified:

“Well, Mr. Hughes was operating a fork lift, and he had two logs on the lift, and one of those logs bumped, caught the corner of the second tier, which caused it to come out, jump out just like lightning. And I hollered for Glen to look out, and he turned real quick, but one log caught him on the shoulder, and shoved him — if it wouldn’t have been for that he would have been underneath of the logs — and it shoved him towards the front of the truck.”

Appellant sustained a multiple fracture of the left femur which caused the left leg to be three-quarters of an inch shorter than the right. He was in traction at Baltimore County General Hospital for nearly eight weeks. Upon discharge he was placed in a cast and was immobilized in bed at home for seven weeks. Rehabilitative therapy after the cast was removed permitted him to walk with the aid of crutches. After some five more weeks he regained the ability to walk unaided but continued to limp and experience pain in his left knee. His orthopedic surgeon testified that appellant had permanent disability “in the range of about 25%.”

Appellant urges upon us that the testimony at trial concerning the bumping of the second tier with the logs on the fork lift and the action of the fork lift operator in proceeding to load the third tier under the circumstances made the existence of negligence vel non a question for the jury and that the trial court erred in granting the motion for judgment n.o.v. Appellees controvert this position and also argue that appellant assumed the risk or was contributorily negligent as a matter of law.

II

It is fundamental that, in reviewing the granting of a motion for judgment n.o.v., we must consider all the evidence — together with the inferences fairly deducible therefrom — in the light most favorable to the party against whom the motion was made.

(A) Evidence as to Negligence of the Fork Lift Operator in Bumping the Middle Tier of Logs.

Russell Adkins was the driver of the trailer which was being loaded at the time of the accident and gave eyewitness testimony. On direct examination he described briefly what had happened:

“Well, Mr. Hughes was operating a fork lift, and he had two logs on the lift, and one of those logs bumped, caught the corner of the second tier, which caused it to come out, jump out just like lightning.”

Appellant places reliance — and, we think, properly so — upon Hilton Quarries, Inc. v. Hall, 161 Md. 518, 158 A. 19. (1932), wherein the facts were somewhat similar to those in the instant case. There a truck driver obtained a judgment after he was struck by a box of crushed stone which was being loaded by a derrick onto his truck in a quarry. There was testimony that the derrick operator had misapplied a foot brake in the operation of the derrick, which caused the box to swing wildly and strike the driver. Chief Judge Bond, writing for the Court which reversed on other grounds, held that while testimony concerning the operation of the brake was

“to some extent inferential, or speculative, this Court concludes that the jury might find from it that his sudden manipulation of the foot brake did cause a rebound and momentary loss of control of the box of stone, and, given that finding, it would seem permissible for the jury as practical men to conclude that this too sudden action was not consistent with ordinary care. And a duty of care toward the plaintiff . .. could be found from the testimony that it was part of his work to assist in loading.” 161 Md. at 523.

The appellees argue that Hilton Quarries can be distinguished from the instant case in that “there is no evidence whatever of any negligent act or omission to act on the part of the operator which caused the log on the fork lift to bump the log on the middle of the trailer bed.” We cannot so conclude. Negligence could have been found by the jury in the striking of the center tier by the logs on the fork lift, which is analogous to the misapplication of the brake in Hilton Quarries. The jury here was entitled to find that the bumping of the center tier was not consistent with ordinary care.

The trial court cited, and appellees rely upon, Buttry v. Jefferson, 220 Md. 447, 448, 154 A. 2d 346 (1959) in support of the proposition that “[tjhere is nothing unusual in a log rolling while being moved.” This truism is not germane here, since in the instant case a log did not roll while being moved, but, rather, struck appellant after being struck by another log.

There was testimony at trial that Hughes did not do “anything out of the ordinary [or] anything out of what [the witness] considered to be good practice in loading this trailer.” Appellees contend that Combustion Engineering Co., Inc. v. Hunsberger, 171 Md. 16, 187 A. 825 (1936) therefore requires the affirmance of the judgment n.o.v. In that case, Chief Judge Bond found that the fact that a wedge used in construction fell on the plaintiff did not permit a jury instruction that the fall of the wedge was evidence of negligence. He observed that:

“It would seem likely that, with workmen handling loose tools continually, the falling of some of them at times must be expected despite all precautions. . . . [I]t seems to the court plain that there must be some falling of small tools and other objects handled with ordinary care in the course of work, and that therefore a particular fall cannot, of itself and without more, afford proof of negligence. Unless facts appear to indicate negligence it must be taken as no more than one of the incidents of work, to be expected.” 171 Md. at 19, 20.

In the instant case, of course, the falling of the log which struck appellant was not to be expected. Hughes himself was explicit concerning the fact that bumping the middle tier was an unusual occurrence.

HUGHES: “. . . as long as you don’t bump the middle tier or touch the logs. . . . But still, like I say, I don’t know what happened.
THE COURT: Well, if you had bumped the middle tier there, would that have been an unusual circumstance?
HUGHES: That’s true.
THE COURT: You say it would have been?
HUGHES: Yeah.”

Thus it seems clear that there was evidence of deviation from ordinary care and, therefore, of negligence in Hughes’ operation of the fork lift. See, Anno: Crane or Derrick — Negligent Operation, 81 A.L.R.2d 473 (1962).

(B) Evidence as to Negligence of the Fork Lift Operator in Proceeding to Load the Back Tier.

Mr. Hughes, the operator of the fork lift, employed by the appellees, admitted that he saw appellant. “He was on one side [of the trailer] and Mr. Adkins was on the other.” The fork lift itself was located toward the back of the trailer. Appellant was in the process of hooking the chain, to secure the second tier.

There was testimony by one of Mr. Hughes’ employers, Felix R. Vigeveno, on direct examination, that in the process of loading logs “extreme caution” had to be taken. Another defense witness, Francis Reaver, a partner in the firm which employed appellant, who was called by the appellees, gave testimony concerning the “general custom in the business” during the process of chaining a completed tier. He said:

“The driver should point out to the operator that he’s in the process of chaining, and the operator at that time should wait until the chains are put on. ” (Emphasis added.)

In the light of Hughes’ admission that he saw appellant, who was then “in the process of chaining,” a jury of practical men and women could reasonably have concluded that the “general custom in the business” — the applicable standard of ordinary care — had not been observed; that Hughes should have desisted his operation but did not. Central Cab Company v. Clarke, 259 Md. 542, 270 A. 2d 662 (1970).

We conclude that in this respect also, there was indeed evidence of negligence which the court properly submitted to the jury in the first instance and that the granting of the judgment n.o.v. was improper.

Ill

Appellees contend, in two separate sections of their brief, that appellant (a) assumed the risk of injury and (b) was contributorily negligent as a matter of law. Voluntary assumption of risk and contributory negligence are not dissimilar. While a distinction is frequently made on the basis that “assumed risk implies intentional exposure to a known danger, which may or may not be true of contributory negligence,” Sacks v. Pleasant, 253 Md. 40, 46, 251 A. 2d 858 (1969), it is clear that, as Judge Moylan aptly stated, “[t]he distinction between these two defenses ... is a fine one in Maryland.” Maryland Sales & Service Corp. v. Howell, 19 Md. App. 352, 360, 311 A. 2d 432 (1973). See, also, Evans v. Johns Hopkins University, 224 Md. 234, 167 A. 2d 591 (1961). The former was not urged upon the trial court and was therefore not decided. Maryland Rule 1085. We do not rest our disposition of this point, however, on the Rule alone. The basis for appellees’ contentions with respect to both voluntary assumption of risk and contributory negligence is essentially the same — that appellant should have desisted from chaining the middle tier or pointed out to the fork lift operator that he was chaining and asked the operator to suspend. We find this approach without merit, in the light of the operator’s testimony that he saw appellant and the testimony of Francis Reaver that, in effect, a fork lift operator should desist when he knows that the truck driver is securing the chain. We find no justification for appellees’ contention — under either theory — that the case should have been withdrawn from the jury. See, Rooney v. Statewide Plumbing and Heating, 265 Md. 559, 564, 290 A. 2d 496 (1972).

The trial court, in its instructions, carefully and correctly explained that appellant was “legitimately and properly” on the Van Hessen property as a business invitee and that there was a duty on the appellees to use reasonable care for his safety. The court with equal care instructed that one who contributes to his own injury through his own negligent act is not entitled to recover.

We hold that appellant’s responsibility with respect to his own safety was a jury question.

Judgment reversed; jury verdict and judgment for appellant reinstated; costs to be paid by the appellees.

      . Hartford Insurance Group had made payments for medical care and lost wages under its Workmen’s Compensation Insurance Policy with appellant’s employer.

      . Such knee pain was attributed by his treating physician to the change in pressure within the knee caused by the change in bone structure as the fractures mended.

      . Hughes testified without objection that he had, on occasion, bumped other tiers while loading trucks but that no similar results had ensued. Dean Prosser has noted that such evidence does not preclude a finding of negligence since “[tjhere can certainly be such a thing as customary negligence.” Prosser, Law of Torts (4th ed., 1971) § 33 at 167.

      . The first and third tiers had not been completed.

      . Mr. Reaver testified on cross-examination that approximately 90% of his firm’s business is done with appellees.

      . Contributory negligence as a matter of law was one of the grounds asserted by appellees in their motion for judgment n.o.v.


text:
    THOMAS A. GARLAND, Trustee v. FRANCIS W. HILL
    [No. 295,
    September Term, 1975.]

      Decided November 6, 1975.

      The cause was argued before Moylan, Gilbert and Mason, JJ.

      Edward S. Digges and Richard J. Clark for appellant.

      M. Wayne Munday for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Thomas A. Garland, acting as trustee, purchased 359.43 acres in Charles County, Maryland, from Francis Hill. The agreed price was one thousand dollars ($1,000.00) per acre, a total of three hundred fifty-nine thousand, four hundred thirty dollars ($359,430.00). Garland paid Hill seventy-two thousand dollars ($72,000.00) toward the purchase price and the balance took the form of a purchase money mortgage from Garland to Hill in the amount of two hundred eighty-seven thousand, four hundred thirty dollars ($287,430.00). The mortgage, dated November 1, 1972, called for ten annual installments of twenty-eight thousand, seven hundred forty-three dollars ($28,743.00) together with annual interest of seven percent (7%) on the unpaid principal balance. The mortgagor defaulted, and M. W. Munday, Esquire, attorney for Hill and assignee for the purpose of foreclosure, placed an advertisement in The Times-Crescent, a newspaper printed in Charles County. The advertisement first appeared in the edition of October 30, 1974, and last appeared on November 13,1974. Munday, as assignee of Hill, filed an “Order to Docket Suit” in the Circuit Court for Charles County, Maryland, on November 6, 1974, one week after the first insertion of the advertisement relating to the sale.

The property was sold at public auction at the courthouse door on November 15, 1974. At the time of the sale the balance due on the mortgage as of October 1974 was two hundred eighty-six thousand, six hundred eighty-seven dollars ($286,687.00). Hill, the mortgagee, bid twenty-five thousand dollars ($25,000.00), and his bid was the only bid. The property was “knocked down” by the auctioneer to Hill. Thereafter, the assignee reported the sale to the court, and an order nisi was passed warning everyone to show cause within a prescribed period of time why the sale should not be ratified and confirmed. Garland filed exceptions to the sale, and the matter was heard before Judge James C. Mitchell who, on March 31, 1975, denied the exceptions and ratified the sale. Garland appealed.

In this Court Garland argues, as he did in the circuit court, that:

I. “The sale should . . . [be] set aside because the advertisement and the sales price do not support a conclusion that the sale was fairly made.”
II. “The proceedings were improper. The case should have been docketed and placed under the supervision of the court as the first act of the assignee.”

The Court of Appeals has repeatedly held that the description of the property that is contained in the notice of sale under a foreclosure proceeding is sufficient if the notice enables . . any one, by the exercise of ordinary intelligence, to locate the property and to obtain more detailed information concerning it. ...” Preske v. Carroll, 178 Md. 543, 547, 16 A. 2d 291, 293 (1940). See also: Brooks v. Bast, 242 Md. 350, 219 A. 2d 84 (1966); Ruby v. Bowlus, 217 Md. 115, 140 A. 2d 513 (1958); deTamble v. Adkins, 210 Md. 414, 124 A. 2d 276 (1956).

The notice of sale that appeared in The Times-Crescent read, in part, as follows:

“ASSIGNEE’S SALE OF VALUABLE REAL ESTATE
Situate, lying and being in the Ninth Election District of Charles County, Maryland
Under and by virtue of the power of sale contained in a certain mortgage from Thomas A. Garland, Trustee, to Francis W. Hill, dated November 1, 1972, and recorded among the Mortgage Records of Charles County, Maryland in Liber No. 266, Folio 536 et seq; the Mortgagor being in default of some of the covenants contained in said mortgage, the undersigned will sell by Public Auction at the Court House door in the Town of La Plata, Maryland,
ON Friday,
November 15, 1974 at the hour of 12:30 P.M.
the following property, that is to say:
All that lot, piece, or parcel of land situate, lying and being as aforesaid, and more particularly described as follows:
Beginning at a pipe on the south side of the Hughesville-Benedict State Road, said pipe being also the southeast corner of the Church lot (formerly marked by a stone). Running thence from said beginning point along the old country road the following courses and distances viz:
2. South 86 degrees 29 minutes East 108.2 feet to a pipe, thence along the right of way for Hughesville-Benedict State Road, Maryland Route 231 (80 feet wide),
* * *
16. North 85 degrees 42 minutes East 452.50 feet to a pipe, thence leaving the right of way for Maryland Route 231 (80 feet wide) and running for a line of division across the tract called ‘Hilltop Farm’, shown on a plat prepared by D. H. Steffens, Maryland surveyor number 2048, dated April 14, 1961, the following course and distance,
36. North 03 degrees 40 minutes East 630.95 feet to the place of beginning. Containing 359.43 acres, more or less, and being a part of that tract called ‘Hilltop Farm’.
M. W. Munday, Assignee for the Purpose of Foreclosure P.O. Box 310
La Plata, Maryland 20646 934-9541
ll/13/3t”

Included within the advertisement was a metes and bounds description of the property that contained a total of thirty-six (36) separate calls, three of which we have quoted above. The notice also made reference to the fact that the acreage to be sold was part of Hilltop Farm. Patently, the advertisement placed anyone of ordinary intelligence upon notice of what property was to be sold, where it was situate, and where one could obtain more detailed information. Preske v. Carroll, supra. Had a person read the notice, he would have discovered, without any difficulty, not only that the property was, as we have said, a part of Hilltop Farm, but that it bordered on Hughesville-Benedict, State Route 231. Furthermore, he could, if he so desired, have referred to the mortgage for additional information or he could have made contact with the assignee. We think the assignee, in this case, did all that he was required to do, under the decisions of the Court of Appeals, and that Judge Mitchell correctly rejected Garland’s argument to the contrary.

We agree with Garland, however, that a twenty-five thousand dollar ($25,000.00) sales price at a foreclosure sale, for a parcel of land that two (2) years before had sold for three hundred fifty-nine thousand, four hundred thirty dollars ($359,430.00) is “so insignificant as to shock the conscience of the Court,” Suburban Garden Farm Homes Corp. v. Duckett, 179 Md. 648, 22 A. 2d 467 (1941).

The Court of Appeals in Johnson v. Dorsey, 7 Gill. 269, 294 (1848), said:

“. . . [inadequacy of price is to be regarded as a strong auxiliary argument, in combination with circumstances calculated to cast doubt or suspicion upon the correctness of a sale. But standing alone, ... it is insufficient to authorize an interference with the sale, unless, ... it is so inordinate, as to indicate some mistake or unfairness in the sale, for which the purchaser is responsible, or misconduct or fraud in the trustee, to whom the management of the sale has been committed.”

See Ten Hills Co. v. Ten Hills Corp., 176 Md. 444, 5 A. 2d 830 (1939); Stallings v. Annapolis Sav. Institution, 167 Md. 4, 172 A. 283 (1934); Wagner v. Cohen, 6 Gill. 97 (1847).

At the hearing on the exceptions Garland testified that he thought that, as of the date of sale, “the property would be worth twelve hundred dollars [($1,200.00)] an acre as a fair and reasonable price.” We are not informed whether Garland’s “fair and reasonable price” looked to a forced sale at public auction or a privately negotiated sale, nor need we, in this case, be concerned with the difference as the trial judge was not required to believe Garland’s appraisal. We view the twenty-five thousand dollar ($25,000.00) sales price in the instant case as so inordinate that it gives rise to an inference of “some mistake or unfairness in the sale, for which the purchaser is responsible. . . .” If the facts in this case ended here we would have no hesitation in reversing the trial court and remanding the matter with instructions that the circuit court order a new sale. The facts of this case, however, do not end with the inadequate sales price and, because of the additional significant facts hereinafter discussed, we shall affirm the judgment of the circuit court.

The additional facts which lead us to that conclusion are that at the time of the hearing on the exceptions, Hill, through the assignee, offered to waive his right to any deficiency judgment against Garland. Before the order denying the exceptions and ratifying the sale was filed by Judge Mitchell, Hill placed in the proceeding a “Waiver of Deficiency” in which he waived his “right to a deficiency judgment against Thomas A. Garland, Trustee.”

Hill argues that the net effect of his waiver is that the “real consideration” or sales price is not twenty-five thousand dollars ($25,000.00), the auction sales price, but that sum added to the dollar value of the waiver. Garland, on the other hand, asserts that the “real price” was twenty-five thousand dollars ($25,000.00), and that the chancellor impermissibly “escalated the price ... to more than $300,000.00.” On oral argument it was conceded by Garland that if Hill had bid the same amount as Hill waived, disregarding objections relative to costs of the sale, Garland would have no sound basis for objecting to the sales price on the ground that it is inadequate.

As we see it the waiver of deficiency judgment actually raised the “real” purchase price to equal the total amount due, including interest, from Garland to Hill, plus the costs of the foreclosure.

A mortgagee, in Maryland, has the right to secure a judgment against a mortgagor for any deficiency between the amount received at a foreclosure sale and the amount of the mortgage, interest, and the costs of foreclosure. If one has knowledge that the foreclosure sales price will result in a deficiency, that fact, generally, is a motivating factor for a post-sale challenge over adequacy of price. Although Maryland does not appear to have decided heretofore whether a mortgagee’s waiver of deficiency will elevate an otherwise inadequate purchase price to the level of adequacy, some other jurisdictions have ruled on the issue. The Court of Appeals for the Sixth Circuit, in Equitable Life Assur. Soc. v. Vaughn, 82 F. 2d 978, 981 (6th Cir. 1936) held:

“. . . [I]n Tennessee . . . where a mortgagee has purchased mortgaged property for less than the mortgage debt, but afterwards releases its claims to a deficiency judgment, the effect is the same as if the full mortgage debt had been bid.”

See Erwin National Bank v. Riddle, 18 Tenn. App. 561, 79 S.W.2d 1032 (1934).

If Hill had bid a sum equal to the total amount of Garland’s indebtedness to Hill, plus costs, we fail to see how Garland could be heard successfully to complain that the price was inadequate. Yet, Hill’s waiver of deficiency amounts, in cold dollars and cents, to exactly the same thing as if Hill had made such a bid at the auction. We think the reasoning of the court in Equitable Life Assur. Soc. v. Vaughn, supra, to be not only legally sound, but a common sense solution to the problem. Accordingly, we hold that when a mortgagee purchases at a foreclosure sale the property upon which he holds the mortgage, for an amount less than the mortgage debt and costs, and the mortgagee thereafter waives any claim to a deficiency judgment, the effect of the waiver is the same as if the bid had been for the full amount of the mortgage debt and costs.

In an oral opinion given at the conclusion of the evidence at the hearing on the exceptions, Judge Mitchell said:

“Courts of equity do not let properties be sold in a mortgage foreclosure for a grossly inadequate price and let the mortgagee claim a deficiency judgment, it is innately inequitable and unjust, but here we don’t have that situation.
We have an offer to waive any deficiency, which in effect gives the mortgagor credit for some, for the full amount of the balance on the mortgage that was over $300,000.00 and also imposes upon the purchaser the duty of paying some additional charges, taxes and so forth, that were due at the time of the sale.
So I think we have to really consider the overall amount for which the mortgagor is getting credit as the actual sale price in this case.
In doing that, we do not find that over $300,000.00 for this property shocks the conscience of the Court.”

For the reasons that we have heretofore set forth, we agree.

Garland next avers that the procedure authorizing advertising of a foreclosure sale prior to the docketing of the proceedings vitiates the sale. During the life of the mortgage, the sale thereon and the hearing in the circuit court, Maryland Rule W74 a 2 (a) provided, in pertinent part:

“Before making a sale of mortgaged property, the person authorized to make such sale shall give notice of the time, place and terms thereof by advertisement in some newspaper published in the county where the mortgaged property, or some portion thereof is located, if there be one so published and, if not, in a newspaper having a substantial circulation in said county; provided, however, that in the City of Baltimore the notice shall be published in one or more of the daily newspapers published in said City. Such notice shall be given for the period of time specified below:
(i) For the sale of real estate or chattels real — at least once in each week for three successive weeks, the first such publication to be not less than fifteen days prior to sale and the last such publication to be not more than one week prior to sale.”

The Rule, we note, commands that before a sale the property must be advertised, however, it does not specifically require that the advertising await the commencement, by docketing, of the foreclosure. See Rule W72 c and W71 d. Apparently, because former Rule W74 a 2 (a) did not proscribe the advertising of property that was to be foreclosed before the actual filing of the foreclosure proceeding, there seem to have evolved within the State different interpretations of the Rule with respect to whether the foreclosure action had to be filed in court before the advertising commenced, or following the advertising, so long as the sale did not occur prior to the docketing of the action and the filing of an approved bond. See Md. Rule W74 a 1. In the Seventh Judicial Circuit the erstwhile practice was to allow advertising prior to the docketing of a case. We observe that a number of cases involving mortgage foreclosures have gone to the Court of Appeals from the Seventh Judicial Circuit, and not one of them discussed the propriety, vel non, of advertising before docketing.

In one case, however, Hardy v. Gibson, 213 Md. 493, 133 A.2d 401 (1957) the Court, speaking through the late Chief Judge Bruñe, recognized and implicitly sanctioned the practice employed in the Seventh Circuit, and perhaps elsewhere, when he pointed out, 213 Md. at 500:

“The property was sold on June 27, 1956, pursuant to an advertisement in a Prince George’s County newspaper published for the first time on May 31, 1956. On June 22, 1956, the Trustees docketed this suit in the Circuit Court for Prince George’s County and filed their bond before the sale.”

A reading of the above quoted paragraph makes it manifest that the Court was well aware that the property in that ease was advertised twenty-two days before the suit was docketed. We glean from Hardy v. Gibson, supra, that the Court not only knew of the custom that had arisen in the Seventh Judicial Circuit relative to advertising before docketing, but, as we have previously stated, implicitly approved the practice. To underscore our belief that such a practice as that prevailing in the Seventh Judicial Circuit was both recognized and sanctioned by the Court of Appeals, we note that on June 16, 1975, effective July 1, 1975, the Court altered Md. Rule W74 by adding thereto a new section known as W74 a 2 (a) and which mandates that, henceforth, no sale shall be advertised before an action is instituted. If the prior rule did not authorize "pre-foreclosure sale advertising”, there would have been no need to modify the rule so as to forbid such advertising. Prior to July 1, 1975, however, it was permissible to advertise a foreclosure sale prior to the filing of the foreclosure suit in the circuit court, and thus, no error is present in this case.

Judgment affirmed.

Costs to be paid by appellant.

      . The record does not reflect for whom Mr. Garland acted as trustee.

      . The mortgage contained various other terms not here pertinent.

      . According to Garland’s testimony only five persons attended the sale. The five were Garland, Munday, the auctioneer, Hill, and Hill’s driver, but lack of attendance does not indicate a lack of notice any more than a lack of interest.

      . The mortgage contained no “being clause”, but a purchase money mortgage is ordinarily recorded immediately after the deed from the seller to the buyer-mortgagor.

      . The Rhode Island appellate court in Island Savings Bank v. Galvin, 20 R. I. 158, 37 A. 809 (1897) considered the matter from a different angle. The court held that where the mortgagee knowingly permits a property to be sold at foreclosure for less than its fair market value, so that his representative may purchase at a lower price, the mortgagee is equitably estopped from obtaining a deficiency judgment or decree against the mortgagor.

      . The Rule was amended effective July 1, 1975. The amendment, inter alia, added an entirely new section known as W74 a 2 (a) Condition Precedent. “Notice of sale in an action to foreclose a mortgage shall not be advertised until the action has been instituted in accordance with . . .” Md. Rule W72 or W73.

      . Rule W72 c was also amended, effective July 1,1975. The substance of former Rule W71 d is now found in Rule W73. The “transplant” of the substance of Rule W71 d to Rule W73 occurred July 1,1975.

      . The effect of such a practice, it seems, was to save the mortgagor money. If the mortgagor prior to the filing of the foreclosure in the court, but after notice of advertising, could arrange to pay off the mortgage, or refinance or come to some mutually satisfactory terms with the mortgagee, the sale could be cancelled with a minimum of additional cost to the mortgagor.

      . The Seventh Judicial Circuit is comprised of Prince George’s County, Charles County, Calvert County, and St. Mary’s County, Maryland.

      . See Tolzman v. Gwynn, 267 Md. 96, 296 A. 2d 594 (1972); Gaspin v. Browning, 265 Md. 552, 290 A. 2d 507 (1972); Smith v. Digges, 261 Md. 130, 274 A. 2d 92 (1971); Southern Md. Oil, Inc. v. Kaminetz, 260 Md. 443, 272 A. 2d 641 (1971); Hohensee v. Minear, 259 Md. 603, 270 A. 2d 776 (1970); Habib v. Mitchell, 257 Md. 29, 261 A. 2d 744 (1970); Waring v. Guy, 248 Md. 544, 237 A. 2d 763 (1968); Butler v. Daum, 245 Md. 447, 226 A. 2d 261 (1967); Hardy v. Gibson, supra; Suburban Garden Farm Homes Corp. v. Duckett, supra; Shaw v. Smith, 107 Md. 523, 69 A. 116 (1908).

      . For the substance of the rule see note 6, supra.