author: Thompson, J.,

text:
    CERTAIN-TEED PRODUCTS CORPORATION et al. v. GOSLEE ROOFING & SHEET METAL, INC.
    [No. 836,
    September Term, 1974.]

      Decided June 2, 1975.

      The cause was argued before Thompson, Davidson and Mason, JJ.

      Donald E. Sharpe and Edward S. Digges, Jr., with whom were Piper & Marbury on the brief, for appellant-cross-appellee, Certain-Teed Products Corporation.

      J. Thomas Caskey and James P. Garland, with whom were Semmes, Bowen & Semmes on the brief, for appellant-cross-appellee, The Dow Chemical Company.

      Victor H. Laws and George J. Goldsborough, Jr., for appellee-cross-appellant, Goslee Roofing & Sheet Metal, Inc.
   Thompson, J.,

delivered the opinion of the Court.

On May 21, 1970, Goslee Roofing & Sheet Metal, Inc. (Goslee), seeking to recover damages resulting from its re-roofing of Chesapeake College, brought an action in the Circuit Court for Queen Anne’s County against Certain-Teed Products Corporation (Certain-Teed), the Dow Chemical Corporation (Dow), Charles E. Brohawn & Bros., Inc. (Brohawn) and McLeod, Ferrara & Ensign, A.I.A. (McLeod). Goslee’s cause of action was based primarily on negligence in manufacture of and breach of warranty in connection with the roofing materials originally sold to it by Certain-Teed and Dow and negligence in construction and design against Brohawn (the general contractor) and McLeod (the architect).

On October 28, 1970, Certain-Teed filed a counterclaim against Goslee for the unpaid purchase price of the products sold to Goslee for the purpose of re-roofing Chesapeake College. The case was subsequently removed to the Circuit Court for Talbot County on May 26,1971.

Trial commenced on January 3, 1973 and concluded on January 12, 1973. Goslee dismissed its case against McLeod prior to trial. On March 5, 1974 Judge Harry E. Clark found against Certain-Teed on the issue of warranty and against Dow on the issues of warranty and negligence. Judgments were entered in favor of Goslee against Brohawn for $3,207.19 and against Certain-Teed and Dow for $73,204.34. A judgment was also entered in favor of Certain-Teed on its counterclaim against Goslee. Goslee has not appealed that judgment nor has Brohawn appealed the judgment entered against it.

Certain-Teed claims that any warranty created by its sale to Goslee was not breached, that even if a breach occurred it was not the proximate cause of the damages suffered by Goslee, and that the trial court erred in its compilation of damages. Dow claims that the trial court erred in refusing to allow it to call an expert witness, that Goslee was under no legal obligation to re-roof and thus should not have been awarded damages for doing so and that the lower court erred in its compilation of damages. In its cross-appeal Goslee claims that certain items should have been included in its damage award against Certain-Teed and Dow.

FACTS

In the spring of 1967, Chesapeake Community College awarded a contract to build the college’s first five buildings to Brohawn, the general contractor. In September 1967, Brohawn accepted the proposal of Goslee, a roofing and sheet metal contractor, to provide build-up roofs for all five of said buildings at and for the sum of $64,000.00. This sub-contract required Goslee to furnish all labor, materials and equipment necessary to build and complete the roofs in accordance with the owner’s plans, specifications and addenda, if any, as prepared by McLeod. The original plans and specifications for the roofs called for a build-up roof to be installed over the concrete slab roof deck. The roof was to be comprised of a layer of insulation to be attached to the roof deck and a conventional four-ply twenty-year bonded type membrane roofing system with an aggregate surface to be attached to said insulation.

In October 1967, Billy N. Beauchamp, Certain-Teed’s territorial manager, contacted David B. Webster, Goslee’s General Manager and Estimator, in an attempt to sell Certain-Teed’s Dual 80 GSI roof system, which involves the use of two plies of forty pound asphalt coated felt, instead of the four-ply contained in the specifications described above. During the same period one Joseph Baxter, a salesman for G. & W. H. Corson Co., the exclusive distributor of Dow’s products in the Mid-Atlantic States, attempted to sell Dow’s. Styrofoam RM brand plastic foam as the substrate and insulation for the roofs. Webster testified that he told Beauchamp and Baxter that if they could convince the architects to substitute their products for those in the specifications, Goslee would use them on the Chesapeake College project. Thereafter a meeting was held in McLeod’s offices in Washington, D.C., between Robert S. Tomlinson, McLeod’s architect-in-charge of the Chesapeake College project, a Mr. Vercoe, a representative of Corson, and Billy N. Beauchamp.

The trial court aptly summed up the testimony relative to this meeting:

“From the depositions of Vercoe and Beauchamp, which were admitted into evidence, it appears they attended this meeting for the sole purpose of persuading McLeod to approve the use of Certain-Teed’s Dual 80 GSI roofing system and Styrofoam RM for subject job. Vercoe reported that Styrofoam RM was as good an insulator and foundation or substrate for an asphalt coated membrane roof system as any on the market and bad the added advantage of being more viater ijesistant, thus making it slower to deteriorate with the passage of time and exposure to moisture. Beauchamp reported that since Certain-Teed’s Dual 80 GSI roofing system was only a two-ply system, it would be cheaper for the roofer to apply, since it would take less time and labor to apply and thus would enable the general contractor to start inside work sooner than if the conventional four-ply system was used (a coated base sheet with three plies of fifteen pound felt) which Certain-Teed also manufactured. Each deponent admitted that this was the first time he had proposed the use of Certain-Teed’s Dual 80 GSI roofing system in conjunction with Styrofoam RM.”

Mr. Tomlinson testified as to that meeting as follows:

“Q. Can you or not give us the substance of that?
A. Well, first we had not used the Dual 80 roofing or its type recently and we were most concerned with the adequacy of the type of material for a four ply built-up roof, and this was our first concern. Secondly there was a cause for concern because of the compatability of the insulation because the manufacturer’s literature seemed to caution against this type of use.”
* * * *
“A. As I say, primarily we were concerned with the results of this but also concerned with the compatability. We were given the names of two or three jobs where Certain-Teed was used. I did some telephone checking on that. I had some notes but I have since destroyed them, and I can’t give any particular reference, but we were concerned about other situations elsewhere and did check those. We found nothing derogatory and nothing to indicate we should be alerted to any problem and, on that basis, found no objection to Certain-Teed. We asked Dow to certify that they had no objection to using their products of Certain-Teed and, with that letter, we proceeded to approve it.”
* * * *
“Q. Mr. Tomlinson, was or did the specifications for this job include the requirement that the built-up roof be bondable, that is, that the owner be eligible to obtain a bond should it elect to do so?
A. That’s correct.
Q. And the bond was to have been what type of bond in terms of nature and duration?
A. Twenty years on the roofs which were not flashed, which is common in the trade, furnished by the roofing manufacturer, the manufacturer of the roofing service products.
Q. In this case that would have been which firm?
A. Certain-teed.
Q. Was the bondability feature discussed with the Certain-Teed representative at the time?
A. I am quite sure it was because this was a cause of concern in evidencing that this substitution would be equal to that which was specified in having the 20 year life.
Q. Was it one of your objectives in making an investigation and inquiry into Dual 80 that Certain-Teed be willing to bond any material in this application on a 20 year bond specification?
A. I am quite sure it was. I can’t remember exact conversations but this was the tone of all concerned, durability and, therefore, bondability.”

The architect did approve the use of Certain-Teed’s and Dow’s materials; Goslee thereupon purchased and used both products. Goslee began roofing the library at Chesapeake College on April 15, 1968, the Science Building on June 17, 1968, the Humanities Building on August 22, 1968, the Gymnasium on October 8, 1968 and the College Center on November 19, 1968. Each building’s roof took approximately one month to complete.

On March 13, 1969, Goslee was notified of leaks in the roofs of the Library, Science and Humanities Buildings. Goslee inspected these roofs and found a number of splits in the membrane along the longitudinal joints of the substrate. In June 1969, due to pressure from the owner and general contractor, Goslee attempted to correct the leaks by removing the loose slag in the areas where the splitting had occurred and flooding those areas with asphalt. Less than 3 months after this action, however, the leaks reappeared. Goslee, on the continued urging of Chesapeake College and Brohawn concerning corrective action, sought the advice of Certain-Teed personnel. Goslee then re-roofed the three buildings in accordance with Certain-Teed’s advice during the fall of 1969. In the meantime Goslee received complaints that the roofs of the Gymnasium and College Center Building were leaking due to the same type of splitting in the membrane as had been encountered in the other three buildings. On May 5, 1970, Tomlinson requested Brohawn to take immediate steps to replace the roofs of the Gymnasium and College Center. This letter failed to achieve the desired result and Tomlinson wrote another letter dated July 17, 1970 which read as follows:

“In our letter of 5 May you were requested to take immediate steps to completely replace the roofs on the College Center and the Physical Education Buildings, since both of these roofs have now shown the expected deterioration, failure and interior damages. To date we are not aware that any efforts have been made to comply with the requests of that letter.
“You are, therefore, notified, in accordance with the terms of the Contract as stated above, that unless work has been started on the complete replacement of the roofs on the College Center and Physical Education Buildings on or before 3 August 1970, the Owner will exercise his right to carry out the work and employ another roofing firm to provide the necessary roofing and insulation replacements. This notice to you complies with the terms of the Contract in that at least 7 days will have elapsed from the time which you received it and the time that other steps will be taken to provide satisfactory work as required by the conditions of your Contract.
* * * *

After the contents of this letter were disclosed to Goslee, it commenced within the time limit to re-roof these buildings in the same manner it had re-roofed the others. The re-roofing procedure substituted fiber-glass insulation for Dow’s Styrofoam RM; Certain-Teed’s Dual 80 felts were again used.

Certain-Teed’s Appeal

A. The Warranty and the Breach

• Certain-Teed claims that it breached no warranty running to Goslee. Goslee on the other hand claims that all three of the traditional warranties were breached by Certain-Teed. We find that Certain-Teed did give and breach an implied warranty of fitness for a particular use.

Md. Code, Art. 95B, § 2-315 defines the implied warranty of fitness for a particular use:

“2-315. Implied warranty; fitness for particular use; applicable to lease and bailment of goods;
(1) Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

The particular use envisioned by Goslee was that Certain-Teed’s membranes when used in a built-up roofing system in conjunction with Dow’s substrate would produce a 20 year bonded roof. One of the Goslee experts, Stafford, testified that Certain-Teed’s Dual 80 GSI was inherently too weak to survive normal weather conditions for twenty years and therefore should not be used for a roof that must qualify for a twenty-year bond. To qualify for a twenty-year bond the membranes should have a tensile strength of 110-120 pounds per lineal inch, whereas, Certain-Teed’s Dual 80 GSI’s tensile strength is only 50-58 pounds per lineal inch. Robert E. Link, President of the National Roofing Contractors Association, testified that according to a survey conducted by that organization, there were ten times the number of problems reported on two-ply coated systems than on all other built-up roofing systems. Another expert produced by the plaintiff, Edward M. Ream, a roofing contractor, stated that he had ceased using Certain-Teed’s two ply system and Dow’s Styrofoam RM due to several leakage problems he had encountered in the past. This evidence makes clear the fact that Certain-Teed’s product was not fit for the particular use required by Goslee.

Certain-Teed attempts to escape liability in a number of ways. First it argues that the particular use was not communicated to it by Goslee and that thus the warranty was not created. This proposition is clearly incorrect in light of comment 1 to § 2-315 which provides as follows:

“1. Whether or not this warranty arises in any individual case is basically a question of fact to be determined by the circumstances of the contracting. Under this section the buyer need not bring home to the seller actual knowledge of the particular purpose for which the goods are intended or of his reliance on the seller’s skill and judgment, if the circumstances are such that the seller has reason to realize the purpose intended or that the reliance exists. The buyer, of course, must actually be relying on the seller.”

See Myers v. Montgomery Ward & Co., 253 Md. 282, 295, 252 A. 2d 855 (1969), quoting from Hawkland, A Transactional Guide to the Uniform Commercial Code (1964) § 1.19020702. In the instant case it is clear that Certain-Teed’s agents had reason to know and, in fact, did know of the particular use contemplated by Goslee.

Certain-Teed also argues that Goslee could not have relied on Certain-Teed’s expertise or skill because it was not represented at the conference with the architect when Certain-Teed’s product was approved. This argument is a complete non-sequitur as a representative of Certain-Teed originally contacted Goslet, in an attempt to substitute Certain-Teed’s product for that called for in the specifications. The testimony of Goslee’s general manager, Webster, that he told Certain-Teed’s salesman, Beauchamp, that if he, Beauchamp, could convince the architect to substitute Certain-Teed’s product, Goslee would go along shows sufficient reliance by Goslee.

Certain-Teed argues that reliance on its skill by Goslee was nonexistent because the architect performed his own investigation. The obvious answer to this contention is that any investigation was done by the architect, not Goslee. We are also constrained to point out that the investigation, which consisted of the architect contacting several companies which had used Certain-Teed’s product and whose names were supplied by Certain-Teed’s representative, was not such that it would negate reliance. Compare Shay v. Joseph, 219 Md. 273, 149 A. 2d 3 (1959), where the Court found a lack of reliance because the purchaser had performed tests on the seller’s product for three weeks prior to the sale and because it had specifically relied on those tests in deciding to buy.

Certain-Teed also argues that no breach occurred because its product was at all times eligible for a 20 year bond which it claims was all that was warranted. This contention was fully answered by the trial court:

“In its effort to escape liability, Certain-Teed raises two other points, the first of which is that it had fully discharged its obligation to Goslee when it signified its willingness to bond the roofs as soon as they had been completed and would have done so had the owner been willing to pay the premium for such a bond. This argument is specious to say the least, for, as we view it, Certain-Teed’s warranty of fitness for this particular purpose meant that its membrane applied over Styrofoam RM would provide a water-tight roof for a period of twenty years regardless of whether or not it was bonded. The promised performance of the Dual 80 GSI two-ply roofing system was in no way conditioned on the purchase of a bond.”

Certain-Teed’s final attempt to escape is grounded on its contention that roofing industry custom has established that all that a seller warrants is that a bond will be issued on request and not that a roof will not leak. From this basis it argues that any warranty it may have given to Goslee was excluded or modified under Md. Code, Art. 95B, § 2-316 (3) (c). While that section clearly provides for the exclusion or modification of warranties in certain cases, this is not one of them. Here our review of the record shows that Certain-Teed did not establish that the custom of the trade is as it alleges. There was therefore no modification.

B. Causation

Certain-Teed contends that Goslee failed to show that the breach of warranty by Certain-Teed was the proximate cause of the injuries suffered by Goslee.

In a cause of action based on breach of warranty a plaintiff must show, as in typical negligence cases, that the breach was the proximate cause of the harm suffered. Comment 13, Art. 95B, § 2-314. The two-step judicial procedure to determine what is or is not a proximate cause was described in Peterson v. Underwood, 258 Md. 9, 16-17, 264 A. 2d 851 (1970):

“It should be clarified at this point that our inquiry is directed specifically to the issue of ‘causation in fact’ which has been regarded as an aspect of ‘proximate cause.’ W. Prosser, Handbook of the Law of Torts, § 41, at 240 (3d ed. 1964), 2 F. Harper and F. James, The Law of Torts, § 20.2, at 1110 (1956). Proximate cause ultimately involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. This determination is subject to considerations of fairness or social policy as well as mere causation. Thus, although an injury might not have occurred ‘but for’ an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury. Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 18 A. 2d 592 (1941), or if the injury is so remote in time and space from defendant’s original negligence that another’s negligence intervenes. Dersookian v. Helmick, 256 Md. 627, 261 A. 2d 472 (1970); Liberto v. Holfeldt, 221 Md. 62, 155 A. 2d 698 (1959).
“Causation in fact is concerned with the more fundamental (and some have thought metaphysical) inquiry of whether defendant’s conduct actually produced an injury.”

The expert testimony regarding causation came from Goslee’s witness, Robert M. Stafford. Due to its importance we quote from it at length:

“Q. Did you make any observations and come to any conclusions with respect to the two ply membrane in terms of its strength or ability to resist the stresses to which it was subjected under the thermal expansion you have just described?
A. Well, obviously it couldn’t resist the stresses that were applied by the movement of the sub-straight in this instance because it failed, therefore the strength was exceeded. A two ply membrane is a relatively week membrane insofar as built up roofing membrane is concerned. The strength actually is probably something less than 50%, and I am speaking of tensile strength, is probably something less than 50% of that of a four ply roof. There has been a great deal of research and thought and experimentation in the area of how much strength a built up roof needs, and while I really can’t say there has been definitive answers reached in this matter, it is pretty generally the opinion of those people who have worked in this area that a built up roof should have a strength of somewhere in the neighborhood of 110 to 120 pounds per inch. The two ply roof runs somewhere in the neighborhood of 50-58 pounds per inch of tensile strength so, based upon the studies, as well as experience over the years, it is my opinion that the two ply roof doesn’t have the strength that is normally required to withstand normal stresses in any built up roof membrane.
The Court: That’s 110 to 120 pounds per inch?
A. Yes, sir, that’s per lineal inch actually. This is probably the explanation for the early failure, relatively early failure in this roof. It is my opinion that at some time under these same conditions, if a four ply roof had been applied, that four ply roof would have ruptured also. However, I don’t believe it would have been that early. Normally it would have taken several years for this to occur.
Q. Mr. Stafford, to guard against the possibility that there can be any misunderstanding or misinterpretation of your opinion, I would ask you again if you would summarize for us now your opinion as to the primary cause of the failure of this roof?
A. The primary cause of failure was the movement of the insulation which resulted in rupturing of the roof membrane. The roof membrane fractured earlier in its life than would normally have been expected because of the relatively inherent weakness of the membrane.
* * * *
Q. Now we spoke earlier of this opinion which you gave us as to the primary cause of the failure of this roof. Were there, in your judgment, any secondary causes and, if so, what were they?
A. I really don’t know of any causes that we could classify as a secondary cause. Of course, the primary cause is rather broad and you might say what effect brought on the primary cause and consider it a secondary cause. I would not consider it that way. The single cause of the failure was the movement of the insulation. Now, so far as I know, there was no other factor involved in the failure except for contributing factors.
Q. Well, I used the word secondary intending it to mean synonymous with contributing. Were there any other contributing factors that operated as a proximate cause of this failure?
Mr. Sharpe: I object to proximate cause. That’s legal question for Your Honor to decide.
Mr. Wood: There is no showing the witness knows what the word proximate cause means.
Mr. Goldsborough: You understand what proximate cause means?
A. I thought I did until this conversation, and now I am not so sure. Maybe you better enlighten me.
Q. Well, proximate cause simply means a cause which directly leads to the consequences under consideration.
A. Thank you.
Q. Were there any other contributing causes to this roof failure in your judgment and opinion?
A. No. In my opinion there were not. Again I must add that this is possibly an arguable answer but because of the opinion that someone might place upon significance of cause, but it is my opinion that there was no other significant cause and, well, that’s it.
The Court: I had understood you to say that the lack of tensile strength of the membrane was a cause.
A. This was a cause of the timing of the failure. I do not think that it was an actual cause of the failure. In other words, if there had been a stronger roof on here, a conventional four ply roof, for instance.
The Court: You said it would only last three or four years and this roof was built to last twenty?
A. That’s correct, so from that point of view perhaps it could be interpreted as a contributing cause. I think it is a question of what I feel is contributing and what is time.
Q. Let’s try it this way, Your Honor, if we may, Mr. Stafford. Assume that the plans and specifications and the general conditions of this contract supplied the roofer, Goslee Roofing, to furnish a water tight built up roof that would qualify for a twenty year bond, now would the physical properties of the membrane in this instance of Certain-Teed Dual 80 contribute as a cause to the failure of this roof to survive as a water tight entity for twenty years?
* * * %
A. Yes.
Q. In what respect and to what extent?
A. In the respect that if there had not been the movement in the insulation which we have noted or, in other words, if the insulation in the sub-straight had been stable, it is my opinion that the Certain-Teed Dual 80 would not have lasted trouble free for a period of twenty years.
Q. Why?
A. Because it is not a suitable membrane for a twenty year built up roof.
Q. By reason of its physical properties?
A. It is inherently too weak to survive the normal weather conditions that would be encountered during that period of time.”

The gist of Stafford’s opinion was that the unsuitability of Certain-Teed’s roofing membrane for built-up roofs in conjunction with the movement of Dow’s insulation combined to cause the leaks. Stafford also stated that the movement of the insulation would have caused leaks even if suitable membranes had been used but that such leaks would not have occurred until three or four years after installation.

The law in Maryland relative to concurrent or contributing causes was set out in Baltimore Transit Co. v. Bramble, 175 Md. 334, 349, 2 A. 2d 416 (1938):

“ ‘As a general rule, it may be said that negligence, to render a person liable, need not be the sole cause of the injury. It is sufficient if his negligence concurring with one or more efficient causes other than the plaintiff’s fault, is the proximate cause of the injury. So that where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause, without which the injury would not have resulted to as great an extent, and that such other cause is not attributable to the person injured.’ ”

Yellow Cab Co. v. Bonds, 245 Md. 86, 90-91, 225 A. 2d 41 (1966); Armiger v. Baltimore Transit Co., 173 Md. 416, 196 A. 111 (1938); Brawner v. Hooper, 151 Md. 579, 135 A. 420 (1926).

A slightly different description of this rule was given in C. & P. Telephone Co. v. Noblette, 175 Md. 87, 199 A. 832 (1938), where the Court stated at 92:

“Nevertheless, should it be established by the plaintiff that the fire would not have been produced by the stroke of lightning had there not simultaneously existed a condition at the mill which was the result of the telephone company’s negligence and which, in combination with the stroke of lightning, was the proximate cause of the fire which consumed the mill and its contents, the plaintiff would be entitled to recover against the telephone company for its neglect.”

The Court went on to cite cases from 17 other jurisdictions which had embraced the rule.

We find the facts of the case at bar bring it within the above-described rule. The inadequacies of both Dow’s and Certain-Teed’s roofing products acted together to produce the harm eventually suffered by Goslee.

Certain-Teed relies heavily upon the general rule that an actor is not responsible for his negligent actions if the harm suffered would have occurred regardless of the actor’s negligence. It cites Illustration 2 to Section 432 (1) of the Second Restatement of Torts in support of its argument:

“A dams a stream running through his own land. The dam is negligently constructed in that it is not sufficiently strong to confine the water from the freshets which occur from time to time in the spring. A sudden cloudburst of unprecedented severity sweeps the dam away, causing the water collected by it to overflow the land of B. The flood caused by the cloudburst is so great that it would have burst the dam even had it been properly constructed. A’s negligent construction of the dam is not a cause of the inundation of B’s land.”

While we accept the general principle set forth in § 432 (1) and the illustration, we find it inapposite to the facts of the instant case. That principle, as typified by the illustration, can only apply where the injury would have occurred at the same time regardless of the actor’s negligence. It thus does not apply in cases such as the case at bar, where the harm occurred sooner because of Certain-Teed’s breach than it would have otherwise.

One other section of the Restatement of Torts lends support to our conclusion. Section 439 reads as follows:

“If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.”

In the case at bar, as mentioned above, the breach by Dow and Certain-Teed both operated at the same time to bring about the injury suffered by Goslee.

The second step in the judicial determination of the existence of proximate cause amounts to a public policy consideration in which the court determines at what point an actor’s liability for a particular act ends. Of this consideration the Court of Appeals in Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 18 A. 2d 592 (1941) stated, at 388:

“There is no definite and fixed rule whereby it can be determined which of several causes the law regards as sufficiently proximate, or too remote, to be the foundation of an action. That question must be determined by the peculiar facts and circumstances of the particular case.”

Certain-Teed, citing Bloom and Peterson v. Underwood, supra, claims that it should be relieved of liability for its breach because it was merely passive or potential whereas the breach by Dow was the moving and effective cause of the injury. This argument ignores the evidence. Once again we point out that according to the testimony of Stafford, the injury suffered by Goslee would not have occurred at the time it did unless both Certain-Teed’s and Dow’s products had malfunctioned. The concurrence of both was a necessary pre-condition to the occurrence of the injury. It thus cannot be maintained that Certain-Teed’s breach was passive or potential and thus not the proximate cause of Goslee’s injury.

We therefore hold that the trial court was clearly justified in finding that the breach of warranty by Certain-Teed was the proximate cause of Goslee’s injuries.

C. Damages

The trial court in assessing damages of $73,204.34 stated:

“To be as fair and just to all concerned as possible, we believe the true measure of damages for replacing subject roofs should not exceed the contract price for the original roofs, to wit: $64,000.00, to which should be added the sum of $9,204.34 for interest Goslee had to pay on the $50,000 it had to borrow to replace its working capital consumed in re-roofing subject roofs.”

Certain-Teed claims that the $9,204.34 assessed as interest was improper because there was no evidence that “at the time of contracting [it] had reason to know” that it might be liable for such an amount. In effect Certain-Teed claims that the interest award was not foreseeable.

The proper measure of damages in breach of warranty situations are contained in Md. Code, Art. 95B, § 2-715 which provides:

“(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
“(2) Consequential damages resulting from the seller’s breach include
“(a) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
“(b) Injury to person or property proximately resulting from any breach of warranty.”

The ascertainment of what are consequential damages was recently discussed by the Court of Appeals in Addressograph-Multigraph v. Zink, 273 Md. 277, 286, 329 A. 2d 28 (1974):

“The allowance of incidential and consequential damages for breach of warranty finds its genesis in the rule of Hadley v. Baxendale, 9 Exch. 341 (1854) that damages which a plaintiff may recover for breach of contract include both those which may fairly and reasonably be considered as arising naturally from the breach (general damages) and those which may reasonably be supposed to have been in the contemplation of both parties at the time of making of the contract (special damages). See Taylor v. Equitable Trust Co., 269 Md. 149, 159, 304 A. 2d 838, 844 (1973); St. Paul at Chase v. Manufacturers Life Ins. Co., 262 Md. 192, 239-40, 278 A. 2d 12, 35 (1971); Pennsylvania Threshermen & Farmers’ Mut. Cas. Ins. Co. v. Messenger, 181 Md. 295, 300-01, 29 A. 2d 653, 656 (1943); 5 A. Corbin, Contracts § 1011, at 83-87, § 1101, at 543-46 (1964); 11 S. Williston, Contracts § 1393, at 448-53 (3d ed. 1968).
“Restatement of Contracts § 330 (1932) provides:
“ ‘In awarding damages, compensation is given for only those injuries that the defendant has reason to foresee as a probable result of his breach when the contract was made. If the injury is one that follows the breach in the usual course of events, there is sufficient reason for the defendant to foresee it; otherwise, it must be shown specifically that the defendant had reason to know the facts and to foresee the injury.’ ”

We find the interest award in the instant case sustainable on two independent grounds. The first is that the interest paid was in fact a normal and thus foreseeable incident to Certain-Teed’s breach of warranty. That a subcontractor, faced with the obligation to repair a defective roof as a result of the supplier’s defective product will have to borrow the funds to finance such an undertaking and thus will have to pay interest on those funds is clearly an injury which follows in the “normal course of events” from the breach. The interest was thus recoverable under Addressograph-Multigraph v. Zink, supra. The second ground on which the award of interest was recoverable is that the trial judge in compiling damage awards has the discretion to allow interest on the amount awarded. The rule was lucidly stated by the Court of Appeals in A. & A. Masonry v. Polinger, 259 Md. 199, 269 A. 2d 566 (1970), where, quoting from City Pass R. W. Co. v. Sewell, 37 Md. 443 (1873), it held, at 203-204:

“ ‘It must be conceded that interest is not an inseparable and invariable incident of claims for money, or unliquidated accounts. “It is recoverable as of right, upon contracts in writing to pay money upon a day certain; as upon bills of exchange and promissory notes, or on contracts for the payment of interest, or where the money claimed has been actually used, and upon bonds, etc., but in other cases, it is a question entirely for the jury to he decided according to the equities of the transaction.” Newson v. Douglass, 7 H. & J. 417; Karthaus v. Owings, 2 G. & J. 430.’ (emphasis in original)Id. at 452.”

See also Brown v. Bradshaw, 245 Md. 524, 226 A. 2d 565 (1967), in which the Court in a suit by a landlord against his former tenant allowed interest to be assessed by the jury on the amount of money expended by a landlord to repair the leased premises. We see no difference between the trier of fact awarding interest paid on funds actually borrowed to make repairs, as in the instant case, and a situation such as in Brown v. Bradshaw, supra, where the trier of fact is allowed to fix a reasonable amount of interest on funds used to make repairs.

Dow’s Appeal

A. The Exclusion of Expert Testimony

At trial, the court refused to allow James Sheehan to testify as an expert on Dow’s behalf. Dow makes an extended argument in support of its contention that said action was erroneous. We do not reach the question in that Dow at the time of the witness’s exclusion did not make a proffer as to what he would testify. There is therefore nothing for us to review. Md. Rule 522 b. Leitch v. Anne Arundel County, 248 Md. 611, 237 A. 2d 748 (1968); Hartsock v. Strong, 21 Md. App. 110, 318 A. 2d 237 (1974).

Dow argues that it was prevented from making a proffer by the trial judge. We do not agree. After extended argument on the propriety vel non of the witness’s exclusion, the trial judge ruled and stated, “There is nothing more to be said, Mr. Wood [Dow’s Attorney]. I have ruled .. .” It is pellucid that this statement was intended merely to terminate argument on the Motion to Exclude and not to prevent Dow from making a proffer to preserve the question for appeal.

B. The Responsibility of Goslee to Repair the Roofs

Dow next contends that as Goslee had no legal obligation to make the repairs, it was a mere volunteer and is thus not entitled to recoup the expenses as damages. Whatever merit that argument might have in another context, it has none here.

The requirements for legal subrogation were set out in Schnader, Inc. v. Cole Building Co., 236 Md. 17, 23, 202 A. 2d 326 (1964):

“. . . the essential elements necessary for legal subrogation . . . are: (1) the existence of a debt or obligation for which a party, other than the subrogee, is primarily liable, which (2) the subrogee, who is neither a volunteer nor an intermeddler, pays or discharges in order to protect his own rights and interest.”

A case closely analogous to the instant case is Ragan v. Kelly, 180 Md. 324, 24 A. 2d 289 (1942). There, just prior to his death, the deceased had his niece’s name added to his savings account. She thereupon withdrew some money from the account to pay hospital bills. After the deceased died, she withdrew another sum to cover funeral expenses and a doctor’s bill. The deceased’s administrator sued the niece for the money expended after his death claiming that it was a part of the estate. The Court of Appeals held that the niece was not accountable for the money and stated at 335:

“While technically she should account to the administrator for money spent after Mr. Kelly’s death, under all the circumstances it would be a great injustice to require her to do so. Since she paid only just and reasonable bills, which the administrator would have been compelled to pay, and out of the very same fund, she should be subrogated to the rights of the undertaker and the doctor in the settlement of the estate, and, in her accounting to the administrator, a credit should be allowed her equal to the full amount of money so expended from the $1,500 withdrawn.
“Subrogation always will be granted when an equitable result will be obtained. 60 C. J., Sec. 22, p. 709. Payments made in ignorance of real facts cannot be said to be voluntary. A person who has paid a debt under the colorable obligation to do so, or under an honest belief that he is bound, or who mistakenly but in good faith believes he is liable, will be subrogated. 60 C. J., Sec. 27, on page 719, also Sec. 36, on page 725.
“This is not a case of a mere volunteer, who, without any duty, moral or otherwise, pays the debt of another, but it is a case of a person intrusted with a special duty, who, in the discharge of that duty, pays debts she honestly thought she should pay. In a case like this she is entitled to be subrogated to the rights of those whose claims have been paid.”

In the instant case the elements of subrogation detailed above are present. We have found that both Dow and Certain-Teed were liable for any damages caused by the leaking roofs. Goslee by re-roofing the buildings at its own expense in effect discharged the liability Dow and Certain-Teed had to Chesapeake College. It is clear that had Goslee not done so Chesapeake could have recovered from Dow and Certain-Teed. It is likewise clear that Goslee was neither a volunteer nor an intermeddler. It was a party to the original contract to buy the goods from Dow’s agent and Certain-Teed. It also was very much concerned, as the testimony shows, that its good business name be upheld in the area. The actions of Goslee, like those of the niece in Ragan v. Kelly, supra, were reasonable and taken in good faith; to deny Goslee relief from the costs of those actions would be inequitable. Schnader, Inc. v. Cole Building Co., supra, holds the doctrine, in Maryland, applies in law as well as in equity.

We, therefore, find that Goslee was subrogated to the rights of Chesapeake and that an award was proper.

C. Damages

Goslee’s subcontract with Brohawn was at the agreed price of $64,000.00. Goslee’s cost to re-roof was $50,442.01. As discussed above the trial judge awarded Goslee $64,000.00 for the re-roofing which he felt represented cost plus reasonable profit and refused to allow additional claims for lost profits.

We treat under this heading the contentions of Dow and Certain-Teed that the above award was not proper. They argue that Goslee should not be allowed to profit twice from the same contract and that the damages should have been limited only to the cost of re-roofing.

The action of the trial judge was in effect an award of anticipated or lost profits to Goslee due to its having to use its employees and equipment to repair the leaks caused by appellant’s breach rather than on other jobs.

The general rule regarding the recovery of anticipated profits was recently explained in Macke Co. v. Pizza of Gaithersburg, Inc., 259 Md. 479, 270 A. 2d 645 (1970), where the Court stated, at 488-489:

“Under the concept of ‘foreseeability’ enunciated by Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), which was followed in United States Telegraph Co. v. Gildersleve, 29 Md. 232 (1868), in order to recover unrealized profits a plaintiff had to show that the breach of contract caused the loss and that the loss of profits was in the contemplation of the parties and the probable result of a breach. Some of the early American cases superimposed a test of certainty on the concept of foreseeability. See, for example, Griffin v. Colver, 16 N. Y. 489, 69 Am. Dec. 718 (1858), which was cited with approval in United States Telegraph, supra.
“In the last hundred years, however, courts have modified the rule that anticipated profits were not an element of damages because of their inherent uncertainty, see ‘Speculative Profits as Damages for Breach of Contract,’ 46 Harv. L. Rev. 696 (1933), and have turned from the requirement of ‘certainty’ to a more flexible test of ‘reasonable certainty.’ See Restatement, Contracts § 311 (1932); 11 Williston on Contracts § 1345 (3d ed. 1968) at 231; 5 Corbin on Contracts § 1020 (1964) at 124.
“This Court, speaking through Judge Horney in M & R Contractors & Builders, Inc. v. Michael, supra, 215 Md. 340 said:
‘Courts have modified the “certainty” rule into a more flexible one of “reasonable certainty”. In such instances, recovery may often be based on opinion evidence, in the legal sense of that term, from which liberal inferences may be drawn. Generally, proof of actual or even estimated costs is all that is required with certainty.
‘Some of the modifications which have been aimed at avoiding the harsh requirements of the “certainty” rule include: (a) if the fact of damage is proven with certainty, the extent or the amount thereof may be left to reasonable inference; (b) where a defendant’s wrong has caused the difficulty of proving damage, he cannot complain of the resulting uncertainty; (c) mere difficulty in ascertaining the amount of damage is not fatal; (d) mathematical precision in fixing the exact amount is not required; (e) it is sufficient if the best, evidence of the damage which is available is produced; and (f) the plaintiff is entitled to recover the value of his contract as measured by the value of his profits. McCormick, Damages, Sec. 27 (1935).’ at 348-49.”

Auto Retailers v. Evans Cig. Service, 269 Md. 101, 109-110, 304 A. 2d 581 (1973).

In the instant case, William Schwartz, Goslee’s president, testified that the estimated value of the lost time resulting from the re-roofing was $15,000.00. He added that that amount was not duplicated in any of Goslee’s other damage estimates. Schwartz was asked, based on his knowledge of the records and operation of Goslee over the period of years he was managing officer, (22), whether Goslee had sustained a loss of or a reduction in its “normal average, anticipated profit by reason of the events and circumstances which were the subject of this case.” To this he answered that Goslee had lost $15,000.00.

“The men we sent up there to do the corrective work could have been working on contracts we already had, and here we were up there making or taking care of leaks and repairing the roof, where they could have been out working on contracts that we already had and I figured that we had lost $15,000.00 in this corrective work.”

Added to this testimony are the admitted facts that the original contract of the roofing project was for $64,000.00 and that the cost of re-roofing was $50,442.01.

In light of this evidence we find that the amount of profits lost by Goslee as a result of the appellants’ breach was proved with reasonable certainty and that the award by the trial judge was not clearly erroneous. Md. Rule 1086.

Goslee’s Cross-Appeal

In its cross-appeal Goslee raises several contentions all relating to the amount of damages allowed by the trial court.

Goslee first contends the trial judge should have allowed as consequential damages the cost of its first attempt to repair three of the roofs in question ($7,464.00) by reflooding those roofs with asphalt. The trial court refused to include said amount and stated:

“We do not believe that the charge for reflood-coating the first three roofs should be allowed, since, as near as we can determine from the record, it was undertaken by Goslee without having made any substantial investigation to determine the real cause of the roof failures and without the recommendation of any of the other parties involved.”

Under Art. 95B, § 2-714 and § 2-715 in order to recover for incidental and consequential damages, it must be shown that the expense incurred was reasonable. Our review of the transcripts and exhibits leads us to conclude that the reflooding expenses incurred by Goslee, without advice from either Dow or Certain-Teed, were not reasonable and that the trial judge was not clearly erroneous in refusing to allow it as part of Goslee’s damages.

Goslee also contends that the estimated travel expenses of its employees ($2,000) incurred as a result of the complaints from Chesapeake College should have been included in its damages. The estimate, given by William Schwartz, president of Goslee, was not particularized in any way. Schwartz stated merely that he had to send men and trucks to Chesapeake College on numerous occasions and that he paid the men for their time. The trial judge, apparently because Goslee had failed to sufficiently establish the amount incurred, did not allow the amount as damages. This finding was also not clearly erroneous.

Goslee also argues that litigation expenses should have been awarded as damages. These items, totaling $3799.46 include: $1500.00 paid to Penneman & Brown for laboratory testing, $650.00 paid to Goslee’s expert and $1649.46 “advanced by [Goslee’s] attorney for depositions and other expenses.”

The rule in Maryland regarding the recovery of litigation expenses was recently stated in Empire Realty Co. v. Fleisher, 269 Md. 278, 305 A. 2d 144 (1973), where the Court stated at 285-286:

“The general rule is that, other than usual and ordinary court costs, the expenses of litigation — including legal fees incurred by the successful party — are not recoverable in an action for damages, Freedman v. Seidler, 233 Md. 39, 47, 194 A. 2d 778 (1963); Harry’s Tavern, Inc. v. Pitarra, 224 Md. 56, 63, 166 A. 2d 908 (1961); McGaw v. Acker, Merrall & C. Co., 111 Md. 153, 160, 73 A. 731 (1909); 1 Sedgwick, Damages, § 229 (9th ed. 1912).”

The trial court thus properly excluded the above-mentioned litigation expense.

Goslee also contends that the trial court should have awarded it $5000.00 as “loss of good will or loss of anticipated profit on Marion School contract lost due to Chesapeake College roof failures.” The complete answer to this contention is that the record is devoid of sufficient proof connecting Goslee’s loss of the contract with the Chesapeake roof failure.

Goslee’s final contention is that the trial court should have included in the award the $450.00 purchase price of a machine it bought, at the appellant’s suggestion, for the Chesapeake College project. The machine could not be used on that job. Goslee, however, failed to prove the value of the machine at the time of trial. The purchase price was therefore properly rejected as a measure of damages.

Judgments affirmed.

Appellants to pay costs.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN H. DUPREE v. SARAH C. DUPREE
    [No. 873,
    September Term, 1974.]

      Decided June 2, 1975.

      The cause was argued before Orth, C. J., and Morton and Thompson, JJ.

      Down, K. Jenkins for appellant.

      James F. Fitzgerald and Thomas C. Hayden, Jr., for appellee.
   Thompson, J.,

delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court for Montgomery County awarding Sarah C. Dupree, appellee, a divorce A Vinculo Matrimonii on the ground of constructive desertion. John H. Dupree, appellant, contends that the evidence was legally insufficient to support the decree.

The Duprees were married on February 21, 1968; they have one child, a son, who was born on March 10,1972. Final separation of the parties occurred on June 18, 1973. Mrs.. Dupree testified there was a decided lack of communication between her and her husband; that her husband began to have “very violent temper displays”; and that he would “throw things and hit me and that sort of thing.” She then testified regarding specific misconduct of her husband which will be listed chronologically:

November 1971 — While Mrs. Dupree was pregnant her husband threw her to the floor. Also while she was pregnant, he threw a dish of applesauce at her which struck a wall.

April 1972 — Angered by Mrs. Dupree’s visit to an art museum, appellant threw a pan at her; threw a vase of flowers the length of the house breaking a door; and kicked a large hole in the living room wall.

Fall, 1972 — While lying in bed with their child, appellant became angry with appellee and hit her across the thigh with a belt.

January 18, 1973 — Appellant struck appellee over the head with a newspaper and used abusive language toward her.

February 15, 1973 — Appellant came at appellee “in a rage”, grabbed her throat, slapped her in the face, pushed her up against their child’s playpen and called her “an irrational ass.”

March 8,1973 — Appellant threatened to hit appellee with a child’s toy, used some obscenities, and threw a knife across the room.

March 10, 1973 — Appellant flew into a rage and hit appellee in the back, arm and thigh.

June 2, 1973 — Appellant hit appellee in her jaw, grabbed her neck and “practically strangled” her. Appellee extricated herself and fled the house.

June 6, 1973 — After using some obscenities, appellant chased appellee through the house with a knife in his hands.

June 18, 1973 — Appellee described what transpired on this date as follows:

“A. We were in bed. It was in the morning and my husband was talking about a horse he had which was supposed to be running in a race that evening, and he said he couldn’t find a driver because no one wanted to drive the horse, he wasn’t very good, and I said, you never learn, do you? And that infuriated him.
He grabbed a belt and hit me on the upper leg and I ran into the baby’s room.
Q. What time did that occur?
A. Probably about 8:00 in the morning.
Q. As a result of that instance, did you determine to do anything?
A. Yes, I did. I decided I would leave.
Q. And did you in fact leave?
A. Yes, I did.
Q. On that day?
A. Yes.
Q. And where did you go?
A. I went to my parents.”

Mrs. Dupree also testified that her husband admitted committing adultery. She added that she found several photographs of semi-nude women taken by her husband. Mrs. Dupree also stated that approximately one month prior to the final separation appellant asked her to leave. On cross-examination, appellee stated that she had never seen a doctor for treatment of her injuries.

The appellant’s answer to appellee’s request for admissions of facts was admitted into evidence. In the answer he stated that on several occasions he had “very lightly” slapped or shook appellee when she became hysterical. Appellant’s answers to interrogatories in which appellant admitted taking the above described photographs were also admitted.

A neighbor of the Duprees’, Ms. Eleanor Hart, testified that she felt that appellant’s attitude toward appellee and the way he spoke to her were “very distressing” and that appellant “showed great disrespect and contempt for her [appellee]”. She also stated that she observed applesauce on the wall of the Duprees’ apartment in the winter of 1971 and that she had seen appellant put his hands on appellee in a manner which was in no way affectionate.

The appellee’s mother testified that appellee called her on the morning of the separation and told her she had decided to leave appellant because she “could not stand it any longer.” She also stated that she had observed a broken glass door in the Duprees’ home and was told by appellee that ■appellant had broken the glass. On cross-examination she added that, while she had never seen appellant strike appellee, she had seen him grab hold of her.

Appellant denied striking his wife with a belt on June 18, 1973 and stated that he threw things around the house in order to vent his frustrations on inanimate objects rather than persons.

The Chancellor awarded a divorce A Vinculo Matrimonii to the appellee on the ground of constructive desertion and made the following findings:

“I am confident as to physical violence, evidenced by the husband, as well as abusive language and treatment, all of which taken together would reasonably constitute the grounds on which the bill of complaint has been filed.
“Accordingly the Court will grant the relief prayed for in the bill and grant a divorce a vinculo matrimonii.”

The Maryland rule relative to the grant of a divorce on the ground of constructive desertion has been stated in numerous cases, the most recent of which was Ches v. Ches, 22 Md. App. 475, 323 A. 2d 651 (1974) where this Court stated at 482-483:

“It is also settled that the conduct of one spouse which causes the other to leave the marital abode may justify a divorce on the ground of constructive desertion, even though the offensive conduct might not justify a divorce on the ground of cruelty. To justify the departure by the offended spouse, however, the conduct must be such as to render impossible a continuation of marital cohabitation with safety, health and self-respect. Murphy v. Murphy, supra; Schwartzman v. Schwartzman, 204 Md. 125, 102 A. 2d 810 (1954); Eberwein v. Eberwein, 193 Md. 95, 65 A. 2d 792 (1949); Kruse v. Kruse, 179 Md. 657, 22 A. 2d 475 (1941). As Chief Judge Murphy stated for this Court in Neff v. Neff, supra;
‘For such a situation to exist, there must be a pattern of personal conduct which is detrimental to the safety or health of the complaining spouse, or so demeaning to his or her self-respect as to be intolerable.’ ”

The question presented here is whether the acts complained of by the appellee were sufficient to bring this case within the rule stated above. We agree with the Chancellor that they were.

Our review of the myriad cases in this area, cases which of course all turn on their peculiar factual situations, leads us to conclude that the instant case most closely resembles Carpenter v. Carpenter, 257 Md. 218, 262 A. 2d 564 (1970). In Carpenter a decree granting a divorce to the wife on constructive desertion grounds was affirmed where the evidence showed that the husband’s attitude was abusive and intolerable, that the husband called the wife names, that he beat her on at least one occasion and that on several occasions he had become enraged. The wife’s mother testified that her daughter was in “terrible shape” when she finally left the husband.

As in Carpenter, in the instant case we have evidence that on numerous occasions the appellant struck his wife or put his hands around her throat, that on at least two occasions the appellent threw things at her, that the appellant’s attitude toward appellee was very distressing and that he showed great disrespect and contempt for appellee and that on the day appellee finally left she stated she did so because she “could not stand it any longer.” There was also evidence that on several occasions appellant used vile and abusive language toward appellee. In that regard the Court in Carpenter, quoting from Scheinin v. Scheinin, 200 Md. 282, 89 A. 2d 609 (1952), stated:

“ ‘* * * Likewise, although the use of profane and indecent language by a husband does not of itself constitute cruelty, yet a husband’s habit of using such language before his wife, especially in the presence of the children, is a material fact that may be considered together with other misconduct in establishing cruelty. The fact that a husband curses his wife occasionally, or calls her “feebleminded” or “nutty”, or casts other derogatory epithets upon her, does not entitle her to a divorce, unless it endangers her health. Oertel v. Oertel, 145 Md. 177, 125 A. 545; McKane v. McKane, 152 Md. 515, 137 A. 288; Hillwood v. Hillwood, 159 Md. 167, 150 A. 286. But where a husband habitually addresses his wife in vile and profane languge, and occasionally resorts to acts of physical violence, the entire course of conduct may constitute cruelty, although the physical violence alone may not be sufficient to justify a divorce.’ ” 257 Md. at 225-226.

Added to this is the admission by appellant to appellee that he had committed adultery. While the extra-marital sexual activities of a spouse are not dispositive in constructive desertion cases, they may be considered.

“Likewise, evidence that a husband is infatuated with, or extremely attentive to, another woman and treats his wife with silent contempt is entitled to consideration in determining whether he has been guilty of constructive desertion.” Scheinin v. Scheinin, supra at 292.

Appellant, citing Beavers v. Beavers, 255 Md. 450, 258 A. 2d 203 (1969) argues that the Chancellor erred because there was no medical evidence introduced to show the adverse physical effects of his conduct on appellee. There is however no need in every case of constructive desertion to show adverse medical effects. Carpenter v. Carpenter, supra. In short the actions of appellant evidenced a pattern of personal conduct which was detrimental to the safety of the appellee and was so demeaning to her self-respect as to be intolerable.

We find none of the cases cited by appellant in support of his contention controlling on our decision.

Appellant’s reliance on Ches v. Ches, supra, is misplaced. In that case this Court reversed the chancellor’s decree granting a divorce to the wife on constructive desertion grounds. Ches is distinguishable from the case at bar on several grounds. First, in Ches, there was no altercation or violence on the date of eventual separation. In fact the last act of violence directed at the wife in Ches occurred two weeks before the separation and the wife, although she left for the night at that time, did return and reside with the husband for two weeks. The Court in Ches stressed this fact and cited Neff v. Neff, 13 Md. App. 128, 281 A. 2d 556 (1971) in which the wife remained in the home four months after being struck by the husband. The Court added:

“Again, it is not without significance that the wife returned to the husband and remained with him — apparently without fear — from January 10, the date of the incident, until January 25, affording herself ample opportunity in the interim the consult counsel for the preparation of her bill of complaint and to arrange for the moving of the furnishings on the day the bill of complaint was to be filed.” 22 Md. App. at 487.

In the instant case the separation occurred on the same day and as the immediate result of the appellant’s striking appellee. Second, in Ches the accusations of prior violence made by the wife amounted to little more than vague generalizations and showed no persistent course of conduct on the husband’s part. The wife testified that in their 26 years of marriage there were “possibly” 12-15 acts of violence. In the insta*nt case Mrs. Dupree particularized 9 violent acts of ever-increasing frequency, leading to the separation, all occurring within one and one-half years of the separation. Third, in Ches, the verbal abuse suffered by the wife consisted of being called “coocoo” and being told that she did not “keep house” well. In the instant case the appellant on several occasions directed vulgar language at appellee. In general the appellant’s language toward appellee was described by a neighbor as showing “great disrespect and contempt for [appellee].” Fourth, in Ches, a major factor relied on by the chancellor was the wife’s belief that the husband was having an affair with another woman. This Court rejected that reasoning because of lack of proof and stated:

“Certainly an imagined ‘other woman’ would not justify a wife in leaving her husband and, in this case, the incident of January 10, 1973 was surely not of a sufficiently serious nature as a single incident to justify the wife’s departure.” 22 Md. App. at 487.

In the instant case the “other woman” (or women) is far from imagined. Appellant told appellee that he had committed adultery. Added to this are the pictures of semi-nude women taken by appellant.

The Ches case must be read in light of the factual setting described above and analyzed with a view toward the reasoning employed by the chancellor. From our reading and analysis of Ches we conclude it does not apply to the instant case.

In Murphy v. Murphy, 248 Md. 455, 237 A. 2d 523 (1968), the Court was dealing with a single act of violence and held that the act was not of sufficient magnitude to constitute constructive desertion. In the instant case there was, as detailed above, a persistent and ever-increasing series of violent acts which culminated in the separation of the parties.

In Bryant v. Bryant, 16 Md. App. 186, 294 A. 2d 467 (1972) , there were no violent acts. The husband merely told the wife that he desired that she leave because he did not love her. He signed a note to that effect. This Court held that the husband’s conduct amounted to no more than “mere marital indifference or lack of demonstrated love” and did not justify a divorce decree. In the instant case as mentioned above, there was extensive evidence of violence as well as evidence of demeaning conduct directed by appellant toward appellee.

In Richardson v. Richardson, 17 Md. App. 665, 304 A. 2d 1 (1973) this Court held that there was a lack of sufficient proof to show that the husband was a homosexual and that therefore there was no justification for the wife’s departure from the marital domicile.

Ballan v. Ballan, 251 Md. 737, 248 A. 2d 871 (1969), presented a case in which the evidence showed that the wife cleaned the bathroom in a noisy fashion and turned up the volume of the television set to prevent the husband from sleeping. She also placed cigarette butts and hard candy in the bed. There was only 1 act of violence testified to. The Court of Appeals of course held that constructive desertion had not been shown by the husband. Bailan is clearly distinguishable from the instant case.

In Beavers v. Beavers, supra, there was a series of violent actions, including at least one attempt by the wife to force the couple’s automobile from the road. The Court in Beavers reversed a decree granting the husband a divorce on the ground of constructive desertion. The Court reasoned that the husband could not have been placed in fear by the wife’s action because he remained with her for some time after those acts. The Court stated in 255 Md. at 460:

“The husband testified that he was afraid of the wife ‘to a degree * * * I don’t feel as though I am safe around her. These tantrums can come up any moment.’ The testimony, however, established that he remained in the marital home until January, 1968, and, indeed, that he drove with his wife to the hospital to see their granddaughter shortly before he left. If there were any fear of his wife, it was quite mild inasmuch as she would have had a golden opportunity to have seriously injured or even have killed him while she drove the automobile to the hospital. In our opinion, the actions of the husband show that he did not really fear for his life and safety and had no legal grounds for any such fear.”

This rule has been followed in several other Maryland cases. See Neff v. Neff, supra; Ritz v. Ritz, 188 Md. 336, 52 A. 2d 729 (1947); Kruse v. Kruse, 179 Md. 657, 22 A. 2d 475 (1941).

In the instant case as discussed above the appellee left the appellant immediately after the last act of violence directed at her. Her actions were justified and may have prevented her from suffering further physical abuse.

The other question raised by appellant is whether there was sufficient corroboration to support the evidence. In contested cases of this nature it has been held that even slight corroborating evidence is sufficient. Carpenter v. Carpenter, supra; Colburn v. Colburn, 15 Md. App. 503, 292 A. 2d 121 (1972). Appellee’s mother and Ms. Hart both stated that they had seen appellant grab the appellee in a manner which could not be termed affectionate. Ms. Hart stated that the way the appellant spoke to appellee “showed great disrespect and contempt for her.” She added that she had seen applesauce on the Duprees’ wall. More important were the admissions of the appellant that he had struck or slapped appellee on several occasions. Deck v. Deck, 12 Md. App. 313, 319, 278 A. 2d 434 (1971). We conclude that the evidence provided sufficient corroboration.

Decree affirmed.

Appellant to pay costs.


text:
    CHARLES J. CIRELLI & SONS, INC. v. HARFORD COUNTY COUNCIL et al.
    [No. 880,
    September Term, 1974.]

      Decided June 2, 1975.

      The cause was argued before Orth, C. J., and Morton and Thompson, JJ.

      Neil Tabor, with whom was Wilmer J. Cronin on the brief, for appellant.

      Richard M. Hartman for intervening property owners, part of appellees. Submitted on brief by William D. Hooper, Jr., County A ttomey for Harford County, and William O. Carr, Assistant County Attorney for Harford County, for Harford County Council, other appellee.
   Thompson, J.,

delivered the opinion of the Court.

Charles J. Cirelli & Sons, Inc. (Cirelli), appellant, contracted to purchase from Richard Street a 6.425 acre parcel of land in Harford County. The 6.425 acres had been part of a larger tract of land owned by Street, all of which was zoned for agricultural use when the Harford County Zoning Map was adopted in 1958. In 1962, 2.61 acres of the tract were zoned B-l (Neighborhood Business District). Because of severances caused by road construction, the original tract was reduced to 6.425 acres (including the 2.61 acres already zoned for business use) which Street contracted to sell to Cirelli. Cirelli applied to rezone the remaining 3.815 acres from A-l to B-l so that the entire 6.425 acres could be used as a small shopping center.

The Harford County Planning Commission and Planning Advisory Board held hearings on Cirelli’s application and both unanimously recommended that the rezoning be granted. A Hearing Examiner, appointed by the Council to take testimony and make recommendations, also recommended approval. Thereafter the Council, acting as the Zoning Board, held a public hearing to consider the application. At that hearing the Council had before it the written recommendation of the Hearing Examiner but did not have the transcript of the testimony upon which the Examiner based his decision. The Council rejected the application and ordered the file to be turned over to another Examiner with instructions to write a decision denying the requested rezoning.

The new Hearing Examiner complied, apparently without hearing evidence, and the Council formally adopted his findings. Cirelli appealed to the Circuit Court for Harford County which affirmed the Council’s decision.

In this appeal Cirelli raises three issues:

“1. Was the decision of the Council arbitrary or illegal because it did not have before it any of the testimony considered by the Hearing Examiner?
“2. Did the Council commit error in failing to make findings in support of its decision or in permitting the protestants to testify in opposition to the rezoning?
“3. On the basis of the record as a whole, should the Council’s decision be reversed because it was arbitrary and not fairly debatable? ”

I

Cirelli contends that the action of the Council, taken without benefit of the evidence presented originally to the Hearing Examiner, was illegal and thus should be reversed.

Section 705 (a) of the Harford County Charter provides:

“The final decision in a Zoning case shall be based solely upon record evidence, and shall be supported by specific written findings of fact and conclusions of law.”

Thus, the Harford County Council, when sitting as the Zoning Board, is required to have before it the transcript of the testimony taken by the Hearing Examiner.

The rationale behind these and other similar requirements was stated in Pistorio v. Zoning Board of Howard County, 268 Md. 558, 302 A. 2d 614 (1973) where the Court of Appeals, quoting from Board of County Commissioners for Prince George’s County v. Ziegler, 244 Md. 224, 223 A. 2d 255 (1966), stated at 568-569:

“Aside from the rule that a zoning authority, in the absence of evidence to support its action, cannot apply its expertise in granting or refusing a zoning change or exception, cf. Lutherville Community Association v. Wingard, 239 Md. 163, 210 A. 2d 534 (1965), it is clear that without a record of the facts on which the zoning authority acted or a statement of the reasons for its action, the reviewing court could not properly perform the duty it had of determining whether the action of the zoning authority was arbitrary or capricious.”

The Council in the instant case made its decision based solely on the Examiner’s written decision and on statements made by several interested parties. The decision of the Council was contrary to that of the Examiner. The Examiner’s decision was not a substitute either in logic or under the Harford County Charter for the evidence taken by the Examiner. The statements made at the hearing before the Council were not evidence but argument. As such the Council’s actions were contrary to the Harford County Charter and were not based on any evidence. We therefore remand the case and direct the Circuit Court for Harford County to remand it to the Council for further proceedings consistent with this opinion.

At oral argument it was suggested that the Court of Appeals’ decision in Northampton Corp. v. Prince George’s County, 273 Md. 93, 327 A. 2d 774 (1974) precludes our remanding the instant case. Apparently the basis for the suggestion was the following language from that case:

“When an appeal is taken in a case like this, the function of the circuit court is a limited one: it reviews the entire record to determine whether the action of the district council was unreasonable, arbitrary or capricious . ..”
if: * * *
“Only if the lower court had determined that the action of the council found no support in the facts and that it was unreasonable, arbitrary or capricious and not in accordance with law, could the case have been remanded for reconsideration
* * * *
“For the Court of Special Appeals to remand the case to the circuit court for a formulation of findings of fact and conclusions of law is at variance with the rule of our cases that it is not the function of the reviewing court to zone or rezone, or to substitute its judgment for that of the zoning authority if the action of the zoning authority is based on substantial evidence and the issue is thus fairly debatable . . ’’Id. at 100-101.

In Northampton the Court of Appeals reversed a decision of this Court which had remanded a zoning case to the Circuit Court for a formulation of findings of fact and conclusions of law. The basis of the Court’s decision was that the Regional District Act, rather than the Prince George’s County Charter, applied and that therefore since the case was not contested no findings of fact or written conclusions were necessary. The Court however went further than that holding and recited the above quoted language. There can be no quarrel with the legal principles contained in that language. It is the function of neither the Circuit Court nor an appellate court to rezone by judicial fiat. The judicial function is limited to a determination of whether the decision of a zoning authority is arbitrary, capricious or unreasonable. That determination is made by requiring that the zoning authority’s decision be based on some evidence. Pistorio v. Zoning Board of Howard County, supra. The language in Northampton should not be read to preclude absolutely the remand of a zoning case where the zoning authority made its decision without evidence. While it is true that a court may not rezone, it is equally true that a zoning authority may not make its decision based solely on its expertise without the benefit of facts. Board of County Commissioners for Prince George’s County v. Luria, 249 Md. 1, 6, 238 A. 2d 108 (1968). In such a case the Court, if it remands the case for the taking of evidence, is not rezoning. It is merely requiring that the decision of the zoning authority, whatever it may be, be supported by some evidence; to allow a zoning authority to make its decision without benefit of evidence is no less arbitrary and capricious than to allow its decision to stand where it is not fairly debatable. In either situation the parties have been denied due process by the arbitrary and capricious conduct of the zoning authority. A remand to the Council with directions to consider the evidence before the Examiner is therefore in order.

A case dealing with a different subject matter but based on similar legal considerations was Ellis v. Ellis, 19 Md. App. 361, 311 A. 2d 428 (1973). In that case pursuant to a divorce decree, Mrs. Ellis had been awarded custody of her child. Several years later Mr. Ellis through appropriate pleadings sought to gain custody of the child. The issue was referred to a domestic relations Master who conducted an extensive hearing. The Master filed a report in which he recommended that the custody of the child be awarded to Mr. Ellis. Mrs. Ellis filed exceptions to the Master’s report and the case was heard by the Chancellor. The Chancellor, without taking testimony or reviewing the testimony received by the Master, awarded custody to Mr. Ellis apparently based solely on the Master’s written recommendation. This Court held that the Chancellor’s action taken as it was without benefit of the evidence adduced before the Master was improper. We stated at 19 Md. App. 363:

“We do not reach these contentions because there would appear to be, on the record before us, a fundamental and crucial missing link in the judicial process with respect to the proceedings below, for it would appear that there was no evidence or testimony before the Chancellor at the time he signed the order awarding custody of the child to the father from which he could make a knowing and intelligent judgment concerning what actions should be taken which would best serve the interests and welfare of the infant child of the parties.”

The case was remanded to the Chancellor with directions that he consider the evidence which was before the Master.

Appellees argue that Md. Rule 1085 dictates that we not decide the issue because the issue was not raised in the trial court. Rule 1085 is not however an absolute prohibition; by its terms it states that we “ordinarily” consider only questions raised below. The Maryland courts have considered questions not raised or decided below. See Meyer v. Gyro Transp. Systems, 263 Md. 518, 532, 283 A. 2d 608 (1971); Bartholomey v. State, 260 Md. 504, 513, 273 A. 2d 164 (1971); judgment vacated on other grounds, 408 U. S. 938; Holt v. State, 3 Md. App. 544, 240 A. 2d 355 (1968). Compare Kares v. State, 215 Md. 396, 137 A. 2d 712 (1958), where the Court refused to consider a contention which had been waived at trial under Rule 725. In the instant case we review the issue because the error committed was a blatant denial of procedural due process.

II

Because the Zoning Board had no copy of the testimony, it is understandable that it could not make appropriate findings of facts. The difficulty will not be present after remand. The protestants did not testify before the Council; they merely presented argument.

Ill

We do not consider it appropriate to comment on the evidence until it is first properly considered by the Zoning Board.

Case remanded, without affirmance or reversal, for remand to the zoning hoard for further proceedings.

Appellee Harford County to pay the costs.

      . We note that in both Pistorio v. Zoning Board of Howard County,
        supra, and Board of County Commissioners for Prince George’s County v. Ziegler, supra, the Court of Appeals remanded directing that the zoning authority make further findings.


author: Moylan, J.,

text:
    RAMCHANDRA DNYANU MALEKAR v. STATE OF MARYLAND
    [No. 823,
    September Term, 1974.]

      Decided June 3, 1975.

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

      Arnold M. Zerwitz and George E. Bums, Jr., Assistant Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L.

      Sonner, State’s Attorney for Montgomery County, and Darrel L. Longest, Deputy State’s Attorney for Montgomery County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Ramchandra Dnyanu Malekar, was convicted in the Circuit Court for Montgomery County by a jury, presided over by Judge Joseph M. Mathias, of both manslaughter and assault and battery. He received a sentence of six years imprisonment upon the manslaughter conviction. Sentence upon the assault and battery conviction was suspended. Upon this appeal, he raises six contentions:

(1) That the trial judge erred in failing to take curative action because the prosecutor referred in his opening statement to a confession which was later ruled to be inadmissible;

(2) That the trial judge erred in overruling a defense objection to allegedly inadmissible testimony about statements made by the appellant;

(3) That error was committed when evidence was admitted as to prior acts and disagreements involving the appellant and the deceased;

(4) That the trial court erroneously denied a motion to discharge the “irrevocably prejudiced jury array”;

(5) That the conviction for assault and battery should have merged with the conviction foT manslaughter; and

(6) That the court erred in admitting a conclusion contained in the autopsy report.

The appellant in this case is an Indian (of Asiatic, not North American origin) of limited education. He does not speak English but only Marathi, a dialect of Hindi. He was brought to this country from India in September, 1973, to work as a servant in the Montgomery County home of Mr. and Mrs. Khambadkone, also Indian. On January 18,1974, at approximately 2 p.m., the appellant telephoned the Bhagwats, who are also Indian and who are neighbors and close friends of the Khambadkones. The appellant hysterically told Mrs. Bhagwat that Mrs. Khambadkone had been killed. The police were immediately notified. According to Mr. Bhagwat, the appellant was distraught when he (Mr. Bhagwat), Mr. Khambadkone and the police arrived. The appellant fell to his knees and said, “Why did this happen? Why did God do this? Why did I do it? What made me do such a thing?” The body of Mrs. Khambadkone was “lying on the foyer just inside the front door.” The appellant was barefooted and had blood on his hands, his feet and his clothing.

The victim had a fractured jaw and was bleeding from the nose and mouth. The autopsy revealed that the primary cause of death was “asphyxiation due to strangulation.” The victim’s brassiere was raised up, her dress was raised up and she had been wearing a sanitary pad, which had been displaced.

Hairs were removed from between the appellant’s toes. They measured from 10 to 24 inches in length and were stained with a red substance. An F.B.I. expert on hair identification testified that they had been forcibly removed. The hair was similar to that of Mrs. Khambadkone.

The appellant’s first contention is that the trial judge should, sua sponte, have taken steps to give a curative instruction to the jury because the prosecuting attorney had mentioned, in opening statement, a confession which was later ruled to be inadmissible. We cannot agree with the appellant’s contention. A lengthy pretrial suppression hearing was held on the admissibility of the confession. A central issue was that the interrogation which produced the confession, although coercive in character, was carried out by Mr. Bhagwat, who was alone with the appellant. At the conclusion of the suppression hearing, the judge ruled that the confession was admissible.

When, therefore, in opening statement, the prosecuting attorney made mention of that confession, he was acting in perfectly good faith. On both the non-evidentiary character of an opening statement and the necessity of showing bad faith to secure a reversal, Wilhelm v. State, 272 Md. 404, is instructive, at 411-412:

“The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or the defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be proved and his opening statement should not include reference to facts which are plainly inadmissible and which he cannot or will not be permitted to prove, or which he in good faith does not expect to prove. An opening statement by counsel is not evidence and generally has no binding force or effect. To secure a reversal based on an opening statement the accused is usually required to establish bad faith on the part of the prosecutor in the statement of what the prosecutor expects to prove or establish substantial prejudice resulting therefrom.” (Citations omitted)

Late in the proceedings, on the third day of trial, the State approached for the first time, before the jury, the subject of the confession. Sensing what was about to happen, defense counsel requested a bench conference and there lodged the following objection:

“MR. McKENNA: If it please the Court, I take it we are now going to launch into what has previously been described as a quote confession.
I want the record to be very clear on this, that I am now again reiterating my objection to this confession going before the jury, so that there is no doubt on the question. I don’t want somebody at a later time in the Court of Special Appeals saying I failed to preserve my objection to the confession.”

Rethinking his earlier ruling, the trial judge took a recess and met with counsel for both sides in chambers to discuss once again the law bearing on the subject of admissibility. After a lengthy discussion of the law involved and lengthy rearguments as to the facts of the case, all recorded in the transcript, the trial judge reversed his earlier ruling and ordered that the confession not be admitted. The court was meticulous and painstaking in its analysis. Following the court’s ruling, another bench conference took place:

“MR. McKENNA: If it please the Court, may the record reflect it is now five minutes to four in the afternoon, and I must admit to being surprised at Your Honor’s ruling.
THE COURT: Are you disappointed?
MR. McKENNA: No, not at all, but it puts me in a very strange position because there has been the flavor in the case right from Mr. Longest’s opening statement in which he mentioned a confession —
THE COURT: The opening statement is not evidence. Lots of times things mentioned in opening statement don’t develop.
MR. McKENNA: Well, the only reason I am here at this juncture is to say this: I would like to reserve my right at this time to renew tomorrow morning, if I want to, a motion for a mistrial.
I am not moving for a mistrial at this time, but I would like to have some time to kind of mull this over and look at the law on it and try to reflect on where we stand now in terms of the facts that have gone in before the jury.
So if it is all right, if I may, I would like to reserve that right.”

The court indicated that defense counsel was of course free to make a motion for a mistrial at any time. No motion was made at that time.

A full review of this lengthy record makes it abundantly clear that we are not here dealing with incompetent or borderline counsel, who may seem to need the paternalistic intervention of the court to protect their interests for them, but rather with a highly skilled advocate who was intelligently orchestrating a well-planned defense. Faced with the decision as to whether to ask for a mistrial or not and faced with the decision as to whether to ask for a curative instruction or not, it is clear that he wanted “some time to . . . mull this over” and wanted to make a tactical evaluation of “where we stand now in terms of the facts which have gone in before the jury.” For the trial judge to have granted a mistrial sua sponte would simply have invited the defense to plead double jeopardy if the State attempted to retry the appellant, because of lack of manifest necessity in aborting the first trial. It may well have been the judgment of the appellant and his counsel that the trial was proceeding favorably and that a mistrial was the last thing in the world which they wanted. The same tactical and psychological considerations apply with respect to a curative instruction. A curative instruction on July 18, or even on July 16, for the jury to ignore a relatively brief statement made to them at the outset of the trial on July 10 may also have been one of the last things in the world which the appellant and his counsel wanted. It may have been their judgment (and it may have been a correct judgment) that to ask the jury to ignore something which the jury may have well forgotten is, in practical effect, the means of jogging the jury’s memory that such a statement had been given. If it was the defense purpose to minimize the statement, forgetfulness may well have seemed the more profitable route than good advice. Counsel may have made the further tactical evaluation that for the State to have promised something and then failed to deliver it would be erosive of the State’s credibility and the State’s case. Reasonable doubt is sometimes predicated upon just such considerations. In any event, our point is that a talented advocate, well aware of human psychology and tactical considerations, may have had purposes in mind which it is not the business of the trial court, or an appellate court, to second guess.

Lest there be any doubt that the actions of counsel were advertent, the Assistant State’s Attorney, at the close of the entire case two days later, made the following comment at a bench conference:

MR. LONGEST: Before we bring the jury in, I have two points I would like to bring to the Court’s attention outside the presence of the jury.
First of all, I would like to have the record clear as to what purported to be a reservation of the right to request a mistrial sometime earlier in this case, Your Honor, and have an affirmative statement by counsel at this point in time as to whether he does or does not, in fact, move for a mistrial, Your Honor, in view of the argument at the bench that was made yesterday, I believe.
I don’t believe that the record should be silent as to that.”

In response to this, defense counsel was artfully noncommittal:

“MR. McKENNA: As to the first point, I see no reason why I need to address myself any further to it.
THE COURT: As I recall at the bench conference, the defendant’s counsel suggested that he be permitted to reserve his right to make a motion for mistrial, and I indicated that he could make a motion for mistrial in my opinion anytime he wanted to.
MR. McKENNA: That’s correct.
THE COURT: And he hasn’t done so.
Certainly he must make it before the trial is over.
MR. LONGEST: I just wanted the record to reflect it wasn’t an oversight at this point in time that he didn’t renew the motion.
(Whereupon, the discussion held outside the hearing and presence of the jury was concluded.)”

Defense counsel still would not be prodded into taking a position. He stood silent. The court then proceeded to instruct the jury. At the close of the instructions, the court addressed both counsel, “Are there any requests for further instructions, or does either side have any exceptions to the instructions the court has given?” Defense counsel replied, “The defense is satisfied.” We too are satisfied; no error was committed.

The appellant’s second contention deals with a factual situation unique in the annals of this Court. Mohan Khambadkone, the husband of the victim, was called as a witness by the defendant. He was asked to describe the scene when he arrived at home and when the appellant was first brought into his presence. He responded:

“A. When he came, he just behaved very hysterically and tried to grab me; then he rolled on the ground and beat himself and rapped his head against the ground and then swooned.
Q. He swooned?
A. Yes.
Q. You mean he went into a faint or something?
A. That’s right. He fainted, and the police officer had to administer him some sauce or something, and he came back, and he tried to find out what happened to him and what happened in the whole thing.
Q. Was he stating then — was he making any statements at that time?
A. Well, then again he went in a swoon. Then when we were trying to find out what actually happened, we had questioned him, and we couldn’t get anywhere, so we let him calm down a little bit, and then he said — we said, ‘Just stay there.’
He exclaimed, he said — looking at me, he said, ‘Oh, God. What have I done to the lady of the house?’
Q. Did he say anything else? Did he repeat that over and over again?
A. No. He probably repeated that a couple of times.”

The defense then sought to impeach Mr. Khambadkone in this regard by developing the fact that he had, on an earlier occasion, placed a more charitable interpretation on the words spoken by the appellant in Marathi:

“Q. How did you interpret what he was saying to you?
A. Well, I was really caught up in two minds. At that time I didn’t know — I had very little suspicion that it could have been through him, so I gave the most charitable interpretation, thinking that he was implying by that that: Oh, God. In spite of my being at home, I couldn’t help the lady.
Q. T couldn’t help the lady?’
A. Yes. This is how I interpreted it to mean.
Q. That is how you interpreted it at that time, isn’t that correct?
A. Yes.”

Upon the cross-examination of Mr. Khambadkone by the State, a clarification was forthcoming that in Marathi, interpretations of otherwise ambiguous language can hinge upon whether the expression is active or passive — aggressive or regressive. The following mini-course in linguistics was given:

“Q. Would you give us your best literal translation of what that says?
A. ‘Oh, God. What did I do to the lady of the house?’
Q. Is it not true in Marathi there are in effect several ways to say pretty much the same thing, is that right, idiomatic phrases and things of this nature?
A. Right.
Q. Like you could take the phrase, ‘What did I do tc the lady of the house?’, you could say it also, ‘What have I done?’, or something of that nature, is that right?
A. Yes, yes.
Q. Isn’t it true in Marathi those phrases depending upon the way you say it, they take on either an active or a passive, very aggressive or very regressive type of connotation, is that right?
A. Yes.
Q. You can say something more forcibly one way than you can say it another, is that right?
A. Yes.
Q. Isn’t it true the way this man said, ‘Oh, my God, what have I done to the lady of the house?’, Mr. Khambadkone, was in a very aggressive connotation?
A. It was a very active connotation. In fact, I should not have interpreted it the way I did because it was a very active statement that he made.”

The appellant now objects that all of this represented opinion testimony by Mr. Khambadkone. To the extent to which someone translates words spoken in a foreign tongue into English, the rendering of an opinion is inherent in the situation. Since the sounds of the Marathi dialect of Hindi would have fallen on uncomprehending ears in the jury box and on the bench, the need for an expert opinion in this regard was self-evident. Mr. Khambadkone was a Marathi speaker and was, therefore, on this subject not “a lay witness” within the contemplation of Wimpling v. State, 171 Md. 362, 375-376. Opinion evidence is admissible when it will be helpful to a jury in resolving a question which it cannot resolve for itself. Rolfes v. State, 10 Md. App. 204, 209-210. The jury here patently needed help and the trial judge did not abuse his discretion in permitting Mr. Khambadkone to provide that help. We note further that with respect to the testimony now in issue, the defense called Mr. Khambadkone and opened the subject of differing interpretations. The State sought clarification only by way of cross-examination. We see no error.

The remaining contentions need not detain us long. The appellant complains that Mr. Khambadkone was erroneously permitted to testify about prior acts and disagreements between the appellant and the deceased. We note, however, that this was only by way of cross-examination after the defense had opened up the subject in the direct examination of Mr. Khambadkone. The defense sought to establish a general good relationship between the appellant and the Khambadkone family. It was brought out on direct examination that the appellant was an industrious worker, was considered to be “one of the family” and was especially kind and good with the Khambadkone’s young son. The obvious thrust of this testimony was to make it unlikely that the appellant could have taken the life of his employer. When the State, by way of cross-examination, brought out that the appellant had pilfered liquor, had once tried to remove the Khambadkone’s daughter from school without permission and had complained about the victim’s unduly close supervision of his work, it was simply seeking to restore the balance on a subject opened up by the defense. We see no error.

The appellant also claims that the court erroneously denied his motion to discharge the jury array. When the panel was asked whether they had read anything about the case, 15 responded in the affirmative, indicating some slight knowledge. Two felt that they would be tainted by their information and were discharged for cause. Thirteen others indicated that they would not be influenced in any way by the information they possessed. The voir dire screening was adequate in this regard. Bremer v. State, 18 Md. App. 291. The appellant makes the further contention that the entire array was contaminated because three of the panel members, upon being questioned, revealed the nature of the information which they had learned. In each case, however, their responses were very brief and totally innocuous. Each simply indicated having read an article in The Washington Post alluding in the most neutral fashion to the case. Nothing sensational nor inflammatory was developed. We see no error.

As to his fifth contention, the appellant’s point is well taken. The evidence did not establish an assault and battery in any way distinct from the assault and battery which is a necessary part of manslaughter. The greater crime here necessarily involved the lesser and the conviction for the lesser, therefore, should have merged into the conviction for the greater. Veney v. State, 221 Md. 608, 613.

The appellant’s final contention is that the trial judge erred in admitting the conclusion contained in the autopsy report to the effect that the cause of death was homicidal. Dr. Russell Fisher, the State Medical Examiner, appeared as a witness and read the autopsy report, although the report had been prepared by two other doctors who were not present to testify. One had joined the Navy and the other was attending a meeting in San Francisco. Article 22, § 8, provides that an autopsy report may be introduced into evidence notwithstanding the absence of the examiner who prepared the report. We see nothing in Benjamin v. Woodring, 268 Md. 593, which would compel a contrary result. The conclusion that the cause of death here was homicidal, stemming from the obvious physical fact of strangulation, was not a product of investigative activity on the part of the Medical Examiner’s Office but was a direct product of the autopsy examination itself. The conclusion, moreover, was completely consonant with the appellant’s theory of the case, since his version of the fatal incident had been that two robbers burst into the home and killed his employer. We see neither error nor prejudice.

Conviction on the manslaughter count affirmed; conviction on the assault and battery count reversed.