author: Lowe, J.,

text:
    LUMBER TERMINALS, INCORPORATED v. EDWARD ALPHONSE NOWAKOWSKI et al.
    [No. 874,
    September Term, 1976.]

      Decided May 13, 1977.

      The cause was argued before Menchme, Davidson and Lowe, JJ.

      Donald L. Merriman, with whom were Merriman, Crowther & Mann on the brief, for appellant.

      Eugene V. Chircus, with whom were Fred Ginsberg and Brice G. Dowell on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Chagrined by nearly every ruling made during its negligence trial in the Superior Court of Baltimore City, appellant Lumber Terminals, Incorporated brings us 5 issues with 17 subsidiary questions which it argues are errors sufficient to warrant reversal of the $865,000 judgment against it. Some of these issues relate to the sufficiency of the evidence, and we shall dispose of them summarily by reference to the facts cast in the light most favorable to appellees. Viewed thus, the evidence is sufficient to justify the finding that appellant was negligent, and insufficient for us to conclude that appellant's assignments of error with regard to liability and instructions to the jury have merit. We base our prerogative in so reviewing these contentions upon the standard for determining a directed verdict, the denial of which is the procedural conveyance for appellant's appeal on the sufficiency issues:

“Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. Kantor v. Ash, 215 Md. 285. Cf. Suman v. Hoffman, 221 Md. 302. And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. Ford v. Bradford, 213 Md. 534. Cf. Bernardi v. Roedel, 225 Md. 17, 21.” Fowler v. Smith, 240 Md. 240, 246.

LIABILITY

Edward Alphonse. Nowakowski was a stevedore employed as a “slinger” on a pier, helping to unload lumber from a vessel adjacently berthed. The lumber, bound in bundles, was hoisted out of the ship by a crane from which,hung cables parted by an attached spreader. The cables were looped and rehooked to form a double sling. The bundles were deposited upon chocks on the ground. The cables were then slackened so Nowakowski and his partner could slide them from under the bundles. The workers would then walk to the opposite side of the lumber and the crane operator would return his slings for another load. A stilt-like conveyance called a “ross carrier”, reminiscent of a long-legged beetle, would then come forward, hover over the lumber, pick it up with blades attached to its undercarriage, and carry it to a storage area located a block away on the pier.

The accident occurred when the cables slackened and about 20 pieces of lumber fell from a bundle. When this happened Nowakowski and partner, following the usual procedure, unhooked each of the cables on the spreader to permit the operator to pull the cables free from the fallen lumber. When free, Nowakowski and partner returned from opposite sides of the draft whence they had repaired awaiting the cable withdrawal, and when the operator relowered the hook, replaced the cables. Nowakowski then walked between the lumber and the waiting carrier to repile the fallen pieces without which the carrier could not have picked up the bundles. This broken bundle procedure occurred about three times a day, and, as was customary, no signals were given to the carrier operator (who was perched high above the carrier) not to approach the bundle. This was presumably not necessary because, as the operator testified, he could see everything around the area where the men were working when he returned from the storage area. Within 30 feet of the bundles he could see everything clearly, and his vision in the area remained clear, but, within 20 feet, his vision to the right became obscured.

In spite of that blocked view, on this occasion the operator had stopped his carrier only 20 feet away from the lumber piles where he sat for a couple of minutes. Then, while Nowakowski was bent over the lumber picking up the fallen pieces, the operator moved the carrier forward. Nowakowski, who was unaware of its forward movement, continued his efforts until the carrier was above him, and his right foot was crushed as the carrier’s wheel first ran over it, then backed over it again.

We ñmñ that evidence sufficient to justify a jury’s finding o» tine part of th® earner's operator.

Contributory Negligence and Assumption of Risk

Our review of the record fails to disclose evidence sufficient to have compelled a finding of contributory negligence or assumption of risk as a matter of law, and no evidence sufficient to require an instruction thereon, although the trial judge did instruct the jury on contributory negligence. We see nothing in the testimony to indicate that Nowakowski was, as a matter of law, guilty of contributory-negligence or its counterpart, assumption of risk. Clayborne v. Mueller, 266 Md. 30, 38. Nowakowski was not compelled to anticipate negligent acts by others, and in the absence of some prominent and decisive act contributing to the accident which could leave no room for a difference of opinion, appellant was not entitled to a directed verdict as a matter of law. Clayborne v. Mueller, supra, 266 Md. at 35-36; see Menish v. Polinger Company, 277 Md. 553, 563.

Nor do we find sufficient evidence that Nowakowski voluntarily exposed himself to any danger that was not ordinarily manifest in his job from day to day. One cannot assume a danger of which he is unaware. See Menish v. Polinger Company, supra, 277 Md. at 561. The evidence, taken most favorably to Nowakowski, shows that he was not aware, and had no reason to be aware, of the approaching danger.

Adequacy of Instructions

Appellant’s contentions relative to inadequate instructions are equally without merit. There is no responsibility upon a trial judge to marshall the facts from either parties’ view although he may sum up the evidence if he chooses. Md. Rule 554.b. Nor is there evidence in this case of any special duties or standards of care beyond those generally applicable in negligence cases, as instructed by the judge below. The judge need not negate every inapplicable theory, and should not when there is no supportive evidence to justify negative instructions {e,g., inapplicability of “rules of the road”); and he need not expound precisely that language requested if the appropriate and applicable law is fairly covered in his charge. Md. Rule 554.b.l. We find that to have been true in this case. There was no error in instructing on the liability aspects of the case.

Disability

Concluding the sufficiency issues, we note our disagreement with appellant that there was insufficient evidence in the record from which the jury could have concluded that Nowakowski was permanently and totally disabled. Since two doctors testified that they did not believe Nowakowski would ever return to work as a stevedore, and a rehabilitation officer testified that Nowakowski was not sufficiently endowed with attributes to be retrained, considering his age and medical limitations, we are not certain upon what appellant's contention is based. The testimony was relevant and could property be considered by the jury in assessing the extent of the alleged disability. Richard F. Kline, Inc. v. Grosh, 245 Md. 236. We are of the opinion that there was sufficient evidence of the permanence of Nowakowski's injuries and of their extent to warrant their submission to the jury. See Ihrie v. Anthony, 205 Md. 296; Byrum v. Maryott, 26 Md. App. 130.

DAMAGES

Appellant raises more novel questions in the area of damages. Some of them, relating to the testimony of an economist, pose issues heretofore unsettled, or at least unarticulated in Maryland.

Appellant contends it was error to permit the economist to testify because:

(1) “his values would . . . not be reduced to ‘present value’
(2) “his figures would include estimates ... and projections for inflation, wage increases, price increases and other speculative and inflammatory factors”;
(3) “his calculations were made on the basis of gross rather than net wages claimed lost to the date of trial despite the fact that appropriate tax deductions to net wages were easily ascertainable”.

Reduction to Present Value

In personal injury cases courts generally, and Maryland particularly, consider among other losses, lost wages and earnings suffered by the injured person not only from the time of injury to the trial, but those reasonably certain to occur in the future. Brooks v. Fairman, 253 Md. 471. For purposes of judicial simplicity, these awards are generally computed to a bottom line lump sum award. Scott v. James Gibbons Co., 192 Md. 319, 331.

As a result of this practice, over half century ago the Supreme Court in reviewing a death claim under the Federal Employees Liability Act stated:

“That where future payments are to be anticipated and capitalized in a verdict the plaintiff is entitled to no more than their present worth, is commonly recognized in the state courts.” Ches. & Ohio Ry. Co. v. Kelly, 241 U. S. 485, 493.

The Court reasoned that:

“So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded. It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future.” Id. at 489.

Maryland has recognized this principle in matters of breach of contract at least since the turn of the century, Sherley v. Sherley, 118 Md. 1, 26-27; and has recently proclaimed that failure to so instruct a jury — in a wrongful death case — is reversible error. Walston v. Sun Cab Co., 267 Md. 559, affirming this Court’s opinion delivered by Judge Powers in Sun Cab Co. v. Walston, 115 Md. App. 113.

But in personal injury cases we have not yet been blessed with the Walston lack of equivocation. What little light has been shed on the issue in such cases was provided by Hutzell v. Boyer, 252 Md. 227, which held that:

“ ... we do not think the lower court’s refusal to grant such an instruction, if error at all, was prejudicial error.” Id. at 237.

Ironically the Court, which four years later said that “this Court has not ruled on the issue of present value in wrongful death cases”, may have previously labored under the misapprehension that it had, for it had said in Hutzell v. Boyer, supra:

“However, reduction of damages to present value is not customary in Maryland, except in cases of wrongful death, as is evident from the decision of this Court in Adams v. Benson, 208 Md. 261 (1955).” Hutzell v. Boyer, supra, 252 Md. at 237-238.

Fully recognizing the Hutzell holding, appellant attacks its foundation by alleging that A dams v. Benson “does not at all stand for the proposition alleged”. Without quibbling over what the proposition was for which Adams was cited, it is perfectly clear that whatever its dicta meant, the holding of Hutzell was that it is not prejudicial error to refuse a requested instruction that the projected earning capacity of an impaired person should be reduced to present value. It obviously follows that testimony of present value is not required as a condition upon which an economist may project future wage loss.

The distinction made between wrongful death and personal injury cases (requiring an instruction in the former but not the latter, that, “as a matter of law” the jury must reduce the pecuniary benefit, which the wife and children of the deceased might reasonably have expected to receive from him if he had not been killed, to its present value, Walston, supra, 267 Md. at 571) can not be logically based upon the restricted damages allowed in wrongful death cases, and has no sound basis in principle. The “pecuniary loss rule” in force at the time of the wrongful death in Walston, supra, (1967) limited the equitable plaintiffs to the value of their pecuniary interest in the life of the person killed. This included only pecuniary losses already sustained by them and which they may suffer in the future as a result of the death. See generally Jennings v. United States, 178 F. Supp. 516. Future earnings, without regard to what the plaintiffs would have received from the deceased, were not recoverable, Smith v. Potomac Ed. Co., 165 F. Supp. 681; see Reisterstown Tnpk. v. State, 71 Md. 573, 582-583; and no award was permitted for grief or sufferings of the relations of the deceased, Balto. Trans. Co. v. Castranda, 194 Md. 421, 436, or for grief and mental suffering of the deceased before his death, State v. Wooleyhan Transport Co., 192 Md. 686, 693.

Seldom has the rule been invoked as to an injured person, even if he is permanently injured; however, it is difficult to justify the distinction but for its more difficult application in personal injury cases. As indicated above, the injured party is entitled to prospective wages lost by reason of the accident, see Adams v. Benson, supra, and damages for less discernible intangibles, such as pain and suffering. Gent v. Cole, 38 Md. 110, 114-115; Stockton v. Frey, 4 Gill 406, 420. In short, the measure of damages, broadly stated, is the amount which will compensate an injured person for all losses h,e has sustained by reason of the injury. See Rhone v. Fisher, 224 Md. 223, 225; B. & O. R. R. Co. v. Blocher, 27 Md. 277. This description comprehends for jury consideration such evasive factors as the claimant’s state of health before and after the injury, the permanency of the injury and the degree of disability in relation to his pursuits. See, e.g., McMahon v. N.C.R.R. Co., 39 Md. 438; Bannon v. B. & O. R.R. Co., 24 Md. 108.

We hasten to add, however, that evidence of the present value, of future lost earnings is not improper per se, and when offered, may be a valid consideration by the jury. It may come in directly through a defendant’s expert or upon cross-examination of a plaintiffs expert; and indeed may even be introduced by a plaintiff bending every effort at fair play.

While the likelihood of the latter is perhaps not great, we mention it because it arose in that manner in the case at bar. The expert testified from a placard of figures prepared for the trial. On the side exposed to the jury were projections of wage loss which included an inflationary factor. On the back, available but never exposed either directly or through questions by the defendant, were the same projections reduced to present value. Appellees’ counsel explained that his reluctance to offer these rested upon the equivocal state of the law as he read it in Hutzell, supra. His reluctance was as understandable as his anticipatory preparation was commendable. Appellant can hardly complain that the reduced figures were not before the jury. They were there for the asking.

The Inflationary Factor

Appellant reversed his procedure of inquiry to us on this issue. Instead of asking whether such testimony is a prerequisite for an economist to testify as it did with present value, appellant asks if it is a permissible subject for a testifying economist. As with present value, we will restrict our response to the question asked.

In Walston, supra, 267 Md. at 573, speaking of present value in wrongful death cases, the Court of Appeals commented that:

“Although some courts do not reduce damages to present value in an attempt to offset inflation and include future wage increases, see, e.g., Beaulieu v. Elliott, 434 P. 2d 665 (Alaska 1967); Leavitt v. Gillaspie, 443 P. 2d 61 (Alaska 1968) (Dictum), this approach has been criticized as being too ‘speculative’ for a jury’s consideration. Hampton v. State Highway Commission, 209 Kan. 565, 498 P. 2d 236, 254 (1972) (Schroeder, J. dissenting). See also Am. Jur. 2d Damages § 96 (1965).”

Appellant contends that this passage indicates that:

“The court went on to leave no lingering doubt that Maryland would follow the majority rule requiring reduction of damages to present value and the above quote strongly suggests that the court would feel the minority viewpoint regarding inflation and/or deflation testimony to be speculative and, therefore, improper.”

As already indicated, we do not agree that reduction to present value is required. We now add that neither do we believe that language indicates a direction for us by the Court of Appeals.

By applying the yardstick of past experience (used also to predict present value), we must by now recognize that continued future inflation is regretably more probable than speculative. That being so, we can hardly question the relevance of the dollar’s prospective purchasing power, vis a vis the amount of a monetary award.

The admissibility of such testimony has only become an issue recently, and already several states have held it admissible. But numerically more persuasive are those states which have sidled up to the issue without meeting it head-on. Approximately half the states have sustained awards attacked as excessive, partially but expressly upon the recognition of increased living costs, 12 A.L.R.2d 611, § 8; and several others have taken judicial notice of the diminished dollar value. 12 A.L.E.2d 611, § 13. By no means do we say that the majority of states’ courts would, if directly confronted, permit expert testimony of inflationary factors for jury consideration. That remains to be decided. However, there does appear, especially in this decade, a trend recognizing that an award of damages, regardless of its size, has meaning only in regard to what it will purchase. See, e.g,, Seaboard Coast Line R. R. Company v. Garrison, 336 So. 2d 423. Moreover, a number of the cases which appear to reject consideration of inflationary factors have actually based their decisions on the quality of proof rather than an intrinsically speculative nature of the factor. See, Hoffman v. Sterling Drug, Inc., 485 F. 2d 132; Magill v. Westinghouse Electric Corporation, 464 F. 2d 294.

In light of the current national obsession with economic indicators, we are simply permitting a jury of citizens who daily read predictions of inflation to have before them one whose qualifications must be approved by the court, to provide not only his predictions, but the foundation upon which they are based. This permits the court to control the quality of information upon which the jury may determine damages. To preclude that testimony would be to ignore the common and popular media-spread knowledge of the economy, which in turn gives far greater opportunity and less foundation for jury speculation than does providing control on the quality of what may be considered on that subject.

If, on the contrary, we were to preclude this controlled expert testimony of inflation, it would necessarily follow that a defendant would be entitled to an instruction that there can be no consideration of the past or future' purchasing power of the dollar. Such an ostrich-like position proclaims that the dollar will remain as sound in the future as it may now be, and that possibility is far more speculative than basing our forecast on past experience. In balance, such a result would be more dangerous to the plaintiff than permitting expert testimony of future probabilities would be to a defendant.

It seems preferable, however, that consideration of inflationary factors and present value should be considered together. While they may indeed be offsetting in their mutual exclusion, see Sleeman v. Chesapeake and Ohio Railway Company, 414 F. 2d 305, they are consubstantial counterparts, and each may be weighed simultaneously as a counterbalance on the same scale.

Taxes

Appellant also attacks the economist’s testimony because “his calculations were made.on the basis of gross rather than net wages to the date of. trial despite the fact that appropriate tax deductions to net wages were easily discernible.” By restricting this contention to lost wages prior to trial, appellant seemingly concedes by silence that future wage loss should not be subject to tax. We are aware of no Maryland case which treats the tax question as to either accrued or prospective loss of earnings.

The more general view, supported directly or inferentially by a decided majority of cases, is that in fixing damages for loss of past earnings or for impairment of future earning capacity because of personal injuries, the income tax consequences of the injury and award should not be taken into consideration. 63 A.L.R.2d 1393, § 4; see also Cincota v. United States, 362 F. Supp. 386, 407-408 (D. C. Md. 1973). We think that Maryland should be in accord with the majority view. Without distinguishing whether accrued or prospective, the award of damages should be based upon the plaintiffs gross earnings or earning capacity and should not be reduced because of any income tax savings which may result to the plaintiff from the fact that the damages will be exempt from income tax.

Based upon appellant’s argument as to the availability of information about tax consequence, it seems to have concluded that the only persuasive reason for exclusion of tax consequences was that given by some courts, i.e., that the amount of one’s future income tax liability is too conjectural or speculative a factor. See, e.g., McWeaney v. New York, N. H. & H. R. Ry. Co., 282 F. 2d 34, 38-39; Stokes v. United States, 144 F. 2d 82, 87. And we agree that future tax liability is conjectural to a large extent; however, far more persuasive to us is the fact that the matter is extraneous to the issues being tried. Taxes are strictly between plaintiff as taxpayer and the government as collector, and are of no legitimate concern of the defendants. See, e.g. Atlantic Coast Line Railroad Company v. Brown, 92 S.E.2d 874. Although many defendants contend that because such recoveries are not taxable, a windfall is thus provided injured plaintiffs, that argument has a reverse effect. If an award were decreased by estimated taxes, the windfall would be one for the defendant, who has far less claim to it than the wage earner. The tax exemption was intended by Congress to benefit the injured party, not the wrongdoer. See Huddell v. Levin, 395 F. Supp. 64, 84-91; Hall v. Chicago & North Western Railway Company, 125 N.E.2d 77.

We find no error in permitting the economist to base his computations on gross wages.

Judgment affirmed.

Costs to be paid by appellant.

      . Appellant has interwoven numerous challenges to the sufficiency of the economist’s factual foundation with the three substantial legal issues to be reached. With regard to them, it will suffice to say that we have carefully considered them but, in light of our review of the record, we are persuaded by the reasoning of appellees, their factual summarizations, and their legal authority in response to appellant’s subissues c, d, e, f, g and j of question III. To discuss our deliberations upon those issues would unduly encumber an already too cumbersome opinion. Expressly we find that:
      c. The economist’s _ testimony was based upon contracts properly admitted into evidence and testimony relating these contracts to appellee. A detailed interpretation of all the provisions in the contracts, by an expert or otherwise, was plainly not necessary.
      d. The economist’s computations with regard to hours Nowakowski worked over the past two years included holiday pay. There is no error in considering what an employee actually receives in addition to the hours actually worked.
      e. The economist was not bound by the minimum hours of work guaranteed by contract, but properly used and explained that he used an average of hours actually worked, including hours for which Nowakowski received holiday pay.
      f. The economist was justified in assuming that the last two years Nowakowski worked were not extraordinary years, and that they contained an average loss of time for reduction by reason of weather, strikes and seasonal influences. There was no error in using computations based on hours actually worked.
      g. It was not improper to project future wage losses on past experience of the economy (see subsequent issues) as applied to Nowakowski when the supporting bases of the projections are before the jury. Cf. State Roads Comm’n'v. Parker, 275 Md. 651, 652; Marshall v. Sellers, 188 Md. 508, 519. Likewise, there was no error in assuming that Nowakowski would have continued to work as a stevedore.
      j. It was not improper for the economist to project future lost income upon trends taken from past contracts when the foundation of the conjecture is before the jury. The economist explained that foundation for the jury’s consideration:
      “MR. MERRIMAN: Now, Your Honor, I would interrupt the doctor at this point to make a special objection. Although no question has been asked, obviously this testimony is geared to a contract which would have expired and the doctor is now projecting this in the future as a certainty. Excuse me, Doctor.
      THE WITNESS: Your Honor, may I comment on that?
      THE COURT: Yes.
      THE WITNESS: Over the last of the contracts in the past, there has been a gradual uptrend in the ratio of employer contributions to fringe benefits per dollar wages paid. For example, in 1971-72, the fringe benefit contributions by the employer were $1.42 an hour on a wage of five fifteen. That’s not quite as large a fraction as $2.84 on a wage of $8.00.
      So, that the calculation I am using here assumes that the increase which has been observed in the past in fringe benefits per dollar wages will stop at the end of the contract in 1977.
      So, in that sense, this thirty-two per cent is conservative as compared with the projection that would calculate a continuing increase in fringe benefits per dollar wages. I did not project a continuation of the past increase in fringe benefits per dollar wages. I predicted that the per dollar wages would stop increasing at the expiration of the contract in 1977.
      THE COURT: I understand. Well, is it legitimate to calculate that as a part of his loss of earnings, the loss of the employer’s contributions to the fringe benefits.
      THE WITNESS: In my opinion, it is, because a person who works until normal retirement under a union contract, which has benefits attached, receives a retirement pensions which are based on the contract he has made during his working life; whereas, those contributions made by the employer are not part of take home pay. They are put into a fund which is administered for the benefit of employees, and when a person stops working before normal retirement, the value of his pension is less.”
      As to recovery for fringe benefits, see Plank v. Summers, 203 Md. 552, 562, where the Court expressly considered a serviceman’s hospital benefits as part of his compensation, saying:
      “If, by their services, the appellants paid for the medical and hospital expenses, certainly the value of these are proper items for the jury to consider in arriving at the amount of damages to be paid by the appellee.”
      It follows, from this and our following discussion of damages, that the trial judge’s refusal to grant appellant’s motion in limine regarding damages was not error.

      . Judge Powers traced the assimilation of the concept of reduction to present value into the Court of Appeals’ case law, but Judge Barnes’ proclamation provided the indicia of finality. 267 Md. at 573 and 575.

      . Walston, supra, 267 Md. at 573.

      . This irony was explained by Judge Powers in Sun Cab Co. v. Walston, supra, 15 Md. App. at 124:
      “Strangely, the principle seems to have crept into the law by common acceptance, for the Court of Appeals has never had occasion to rule squarely upon it."

      . Laws 1962, ch. 86, § 48, codified as Md. Code, Art. 67, § 4. The current version of the wrongful death statute, Md. Code, Cts. Art., § 3-904, as amended insofar as relevant here by Laws 1969, Ch. 352, no longer provides that the pecuniary loss rule is the sole limit of damages in a suit for the wrongful death of a spouse or minor child.

      . In addition to counsel’s explanation to the court, the witness so testified:
      “And [appellees’ attorney] said to me that he feared that if I were to present my original calculation involving reduction of present value, that it’s possible that the Court would overrule it, following a precedent of the preceding ¡case. Therefore, he asked me to make a second calculation without ,the reduction of present value, and I said that I didn’t regard this as valid from the point of view of economics, and if anyone asked me about it I would have to say that, and he said he was perfectly happy about that, but he felt that I should be prepared to do both calculations in case the Court should overrule my calculation involving reduction of present value. Then, the other one would be available to present. And, in fact, the other one is on the back of that piece of paper.”

      . See Alaska: Beaulieu v. Elliott, 434 P. 2d 665 (1967); Florida: Seaboard Coast Line R. R. Company v. Garrison, 336 So. 2d 423 (1976); Indiana: Richmond Gas Corporation v. Reeves, 302 N.E.2d 795 (1973); Iowa: Schnebly v. Baker, 217 N.W.2d 708 (1974); Montana: Resner v. Northern Pacific Railway, 505 P. 2d 86 (1973); New Jersey: Tenore v. Nu Car Carriers, Inc., 341 A. 2d 613 (1975); Oregon: Plourd v. Southern Pacific Transportation Co., 513 P. 2d. 1140 (1973). See also United States v. English, 521 F. 2d 63 (9th Cir. 1975); Feldman v. Allegheny Airlines, Inc., 524 F. 2d 384 (2nd Cir. 1975) (interpreting Connecticut law); Weakley v. Fishbach & Moore, Inc., 515 F. 2d 1260 (5th Cir. 1975) (interpreting Texas law); Bach v. Penn Central Transportation Co., 502 F. 2d 1117 (6th Cir. 1974).

      . Although Culley v. Pennsylvania Railroad Company, 244 F. Supp. 710, 715, interpreting Maryland Law, held that:
      “Damages which are based upon earnings must be awarded without consideration of the impact of income taxes.”,
      it relied upon Rhone v. Fisher, 224 Md. 223, 225 because that case purported to set forth “the standard instruction” in Maryland; but as summarized there, no mention was made of taxes. We can hardly accept Culley’s reasoning as sufficient authority. We are, however, more impressed with Judge Thomsen’s discussion of whether taxes should be considered in Plant v. Simmons Company, 321 F. Supp. 735, 739. He relied on another federal case, Jennings v. United States, 178 F. Supp. 516, to conclude that taxes should not be considered in assessing damages under Maryland law. Jennings did hold that taxes should not be considered, id. at 532, but did so without citation to any Maryland authority.

      . By discussing some of the reasons for excluding considerations of tax we should not be interpreted as disregarding others, such as:
      1. the collateral source rule to the effect that compensation from a collateral source will not serve to lessen damages received from the person causing the injury, Huddell v. Levin, 395 P. Supp. 64, 88;
      2. the undue complications for juries to resolve, Id. at 87;
      3. that to mitigate the damages by reason of tax exemption would nullify the Congressional intent to give the injured party the benefit of tax-free income. Id. at 87.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    THOMAS RAYMOND RAFFERTY et ux. v. JAMES FRANKLIN WEIMER et al.
    [No. 549,
    September Term, 1976.]

      Decided May 16, 1977.

      The cause was argued before Morton, Mknchjnb and

      Abm J, Shorn, with whom was Henry Holzman on the brief, for appellants.

      M. Sing Mill, Jr., with whom were John E. Sandbower, IH and Jon H. Grube and Smith, Somerville & Case on the brief, for appellees.
   Mason, J.,

delivered the opinion of the Court.

The appellants, Thomas B. Rafferty and wife, brought suit in the Superior Court of Baltimore City against James Franklin Weimer and B^P Motor Express, Inc., appellees, for personal injuries and loss of consortium. The jury rendered a verdict in the amount of $840,000 in favor of the appellants. After rendition of the verdict, the trial judge entered », judgment n.o.v. in favor of the appellees on the basis that Thomas R. Rafferty was guilty of contributory negligence as a matter of law. From this judgment the appellants appeal.

The following questions are presented:

L Was there legally sufficient evidence for the jury to find that Eaffrrtyfr injuries were caused by the negligence ©f Weimer?

II. Did the trial court err in finding Rafferty guilty of contributory negligence as a matter of law?

III. Did the trial court err in instructing the jury to reduce to present value the amount of wages which Rafferty would lose in the future because of his permanent disability?

IV. Did the trial court err in its instructions to the jury on the liability issues?

On the evening of December 4, 1973, Rafferty left his home in Baltimore City to visit his father in the Frostburg area, who had been hospitalized that morning for a heart attack. At approximately 9 P.M. a tractor-trailer, owned by B & P Motor Express, Inc. and driven by Weimer, collided with the Rafferty vehicle. At the time of the collision, the 1965 automobile of Rafferty was stopped without lights on the shoulder of Interstate 70W with two feet extending into the right westbound lane of the highway.

Prior to the accident, Weimer was driving on Interstate 70W in the right lane and within the speed limit. There was no traffic in front of or on the side of him; he had a clear and unobstructed view of the highway for at least one-quarter mile. The area in which the accident occurred was well-lighted and the roadway was dry. Weimer indicated that before the accident he never saw Rafferty or his vehicle. In describing the accident, Weimer, in his deposition, stated:

Q. All right. Would you tell us exactly what happened immediately prior to the accident and at the time of the accident?
A. I was proceeding west and I just glanced in my right — over my left rearview mirror —
Q. Is it your left or your right?
A. Left.
Q. Your left mirror?
A. I looked in my left mirror, and when I brought my head back straight, the impact occurred.

The collision resulted in extensive damages to the entire left side of Rafferty's vehicle and damages to the front end of the tractor-trailer and four tires along the right side of it. The Rafferty vehicle was lodged against the guardrail on the shoulder of the road. Two feet of the car extended into the traveled portion of the highway since there was not enough space for the vehicle to fit entirely on the shoulder of the road. Rafferty’s key was in the ignition in the on position, but the engine was not running. The only skid marks found were those directly beside the left front tire, indicating the vehicle had moved six inches from left to right. Grease marks were found on the hood of the car, which was closed, and on Rafferty’s right hand.

Rafferty was found unconscious approximately twenty feet from his car across the guardrail in the median strip adjacent to the shoulder of the road. His trousers had been torn off; there were severe injuries to his left hand and several brush burns on his body. The back of his head was injured, apparently when it struck a steel-grated drain located in the underbrush. In addition, a red substance was found on the guardrail which appeared to be blood.

A subsequent examination of Rafferty disclosed that he sustained contusions of the right leg and both thighs; a compound fracture of the left forearm and hand, and a closed fracture of the right hand. He also suffered a permanent, irreversible brain stem injury which expert testimony indicated was caused by a vehicular accident. Rafferty has been hospitalized or in a nursing facility since the accident. He is a cerebral cripple and is unable to tell anything about the accident.

I.

We will first consider whether there was sufficient evidence of primary negligence on the part of Weimer to take the case to the jury. Although the appellees do not concede, they apparently do not contest the fact that Weimer was negligent in sideswiping the Rafferty vehicle. Weimer had a clear and unobstructed view of the highway; if he had looked, as alleged, he would have seen the Rafferty vehicle.

We accept the rule that where a witness testified that he looked and listened, but did not see or hear a certain object, which, if he had actually looked and listened, he must necessarily have seen and heard, his testimony is not worthy of consideration. Bush v. Mohrlein, 191 Md. 418, 423 (1948).

Not only must Weimer’s negligence be proved, the proximate cause of the injuries to Rafferty must have resulted from it. The appellants’ theory of causation is that at the time of the accident Rafferty was standing in front of his vehicle with his hands on the hood; that when the tractor-trailer collided with the vehicle, the resulting impact hurled Rafferty into and over the guardrail onto a sloping grass plot adjacent to the shoulder of the road.

The circumstantial evidence relied on by the appellants to support this theory is: the collision of the tractor-trailer with the Rafferty vehicle, the damages resulting to both vehicles, blood on the guardrail in front of the Rafferty vehicle, grease marks on the hood of the Rafferty vehicle and on Rafferty’s right hand, and the medical testimony that Rafferty’s injuries were caused by a vehicular accident.

In proving causation, Rafferty is permitted to rely on circumstantial evidence. Direct testimony is not essential. The matter of causation does not have to be established by direct and positive proof to an absolute certainty. Reasonable certainty is the quantum of proof required. See Peterson v. Underwood, 258 Md. 9, 17 (1970) and Otis Elevator v. LePore, 229 Md. 52, 58 (1962).

The appellees argue, in effect, that the circumstantial evidence, relied on by the appellants to support the inference that Rafferty was struck by his own vehicle following the collision with the Weimer tractor-trailer, is untenable and totally contrary to indisputable scientific principles. To buttress this argument, the appellees assert that since the skid marks indicated that the Rafferty vehicle only moved six inches sideways, without any forward movement, “[t]h@ only reasonable inference from this evidence is that if Rafferty were indeed standing near and struck by his own car he could not possibly have been thrown forward and to the right a distance of 20 feet by a six-inch lateral movement of the vehicle.”

Notwithstanding the fact that the skid marks failed to indicate any forward movement of the Rafferty vehicle, Weimer, in his deposition, admitted that the vehicle might have moved forward a little. Skid marks without more, are not conclusive as to movement. In York Motor Express Co. v. State, 195 Md. 525, 535 (1950), the Court of Appeals said:

So, we recognize that it is not generally safe to rely exclusively on testimony as to marks made by vehicles on a road for judicial determination of the movements of the vehicles just before a collision.

See also Shafer v. State, 171 Md. 506, 509 (1937).

We think the jury could have found it more probable than not, that the sideswipe collision, which demolished the left side of the Rafferty vehicle and damaged the right front end of the tractor-trailer and four of its tires, caused some forward movement of the Rafferty vehicle. The absence of forward skid marks merely suggests that the tires on the Rafferty vehicle were pointed straight ahead without application of the brakes. Consequently, at the moment of impact there was no resistance or friction to cause forward skid marks. Any other conclusion under the physical facts here would, in our opinion, be contrary to common knowledge and experience if not contrary to scientific principles.

We further think the jury could have found it more probable than not, based on the severity of the impact; grease marks on the hood of the car and on Rafferty’s hand; blood on the guardrail; and medical testimony that Rafferty’s injuries resulted from a vehicular accident, that the negligent act of Weimer colliding with the Rafferty vehicle was the proximate cause of Rafferty's injuries.

In Otis Elevator v. LePore, supra, half of a child’s left foot was amputated by an escalator. No witnesses actually saw and testified to the exact spot where the child’s foot was caught and injured. The evidence disclosed that there was an unsafe gap between the steps of the escalator and its side walls. The defendant argued that the child’s foot may have been injured at some point on the escalator which was not unsafe. Therefore, it could not be held liable since it was not shown that said negligence was the proximate cause of the injuries. The Court, in affirming the judgment for the plaintiff, stated what is known as the “more probable than not” rule as set forth in Prosser, Torts (2nd ed.), §44:

Plaintiff is not, however, required to ... negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. Id. at 58.

The appellees’ alternate contention is that the “evidence produced by the appellant points to only one logical conclusion — that Rafferty was struck by some motor vehicle at some time while he was walking or standing in one of the traveled westbound lanes of Interstate 70.” This theory of liability and causation fails to rise above the level of speculation and conjecture as to what actually occurred. Nothing in the evidence adduced at trial indicated that the appellant’s injuries occurred while he was walking on or standing in the traveled portion of the highway.

In determining whether a plaintiff has produced sufficient evidence to go to the jury, it is axiomatic that this evidence as well as all legally permissible inferences drawable therefrom must be considered in the light most favorable to the plaintiff.

In Fowler v. Smith, 240 Md. 240 (1965) the Court of Appeals held:

Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. ... And Maryland has gone almost as far as any jurisdiction that we know in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. Id. at 246. (Citations omitted).

In applying the above principles to the present case, we conclude that there was legally sufficient circumstantial evidence of inferred causation to submit the question of Weimer’s negligence to the jury.

II.

The appellees contend that even if there was sufficient evidence to support Rafferty’s theory of causation, Rafferty was contributorily negligent as a matter of law because he violated Article 66V2, § 11-1001 and § 11-509 of the Annotated Code of Maryland, and that said violations caused the accident and injuries complained of.

§ 11-1001 provides:

(a) In general. — Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the roadway of the highv/ay when it is practicable to stop, park, or so leave the vehicle off that part of the highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of any stopped vehicle shall be available from a distance of 200 feet in each direction upon the highway.
(b) Disabled vehicles. — This section shall not apply to the driver of any vehicle which is unintentionally disabled while on the roadway of a highway in a manner and to an extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle in that position.

The evidence is undisputed that Rafferty’s vehicle was stopped on the shoulder of the highway against the guardrail with two feet of the vehicle extending onto the roadway. It is also undisputed that Weimer had a clear and unobstructed view of the highway for at least a quarter mile and that there was ample space opposite the Rafferty vehicle for free passage of the tractor-trailer. Further, the evidence disclosed that the Rafferty car was parked as close to the guardrail as possible; that he was proceeding to visit his father who had been hospitalized; that grease was on the hood of the car and on Rafferty’s right hand; that the key was in the ignition switch in the on position and the engine was not running. We think there was ample circumstantial evidence and permissible inferences for the jury to find that the Rafferty vehicle was disabled and it was not practical for him to stop other than on that part of the roadway where the collision occurred.

§ 11-509 provides:

(a) No pedestrian shall walk along or upon any controlled-access highway or any ramp or access road leading to or from any controlled-access highway except as provided in subsection (b).
(b) No person shall leave any vehicle which is on any controlled-access highway or which is on any ramp or access road leading to or from any controlled-access highway, except when an emergency prevents movement of the vehicle in which he is riding, and then the person may proceed only to the nearest telephone or other source of assistance.

As to Rafferty’s violation of this section, the appellees assert “[e]ven assuming that there was an emergency, § 11-509(b) clearly requires that the motor vehicle operator who does leave his vehicle must proceed only to the nearest telephone or other source of assistance and shall not work upon his vehicle or walk upon the controlled-access highway.” We decline to follow this creative misinterpretation of the statute. We find nothing in the language of the statute that would have prohibited Rafferty from working on his vehicle. As we read it, the statute merely prohibits a pedestrian from walking along or upon any highway, except when proceeding in an emergency which prevents movement of his vehicle, to the nearest telephone or other means of assistance. Moreover, there was sufficient evidence from which the jury could have found that the Rafferty vehicle was disabled and that an emergency precluded its movement.

Because we have already held that there was no evidence in the record that Rafferty was walking or standing on the traveled portion of the highway, or sustained any injuries thereon; we need not consider the authorities cited by the appellees involving contributory negligence of pedestrians since they are inapposite.

In order to justify a holding that the plaintiff was guilty of contributory negligence as a matter of law, “the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Baltimore & O.R.R. v. Plews, 262 Md. 442, 454 (1971). It is clear that in the present case there was room for differences of opinion as to Rafferty’s negligence. This is especially true since Rafferty, because of his inability to testify, was entitled to the presumption that he exercised ordinary care for his own safety. Nizer v. Phelps, 252 Md. 185 (1969) and Baltimore Transit v. Castranda, 194 Md. 421 (1950).

III.

The appellants not only urge us to reverse the judgment n.o.v. and reinstate the verdict of the jury in the amount of $340,000, they also urge us to remand the case for re-trial on the issues of damages only, because the trial court erred in its instruction on reducing future damages to present value. The trial judge, in his instructions on damages, said:

... [I]f you find that the loss of earning capacity extends into the future... and if you consider what loss of earnings he may have for a number of years into the future, if that is your determination, then you are instructed that you must take into account, in determining the amount of money, you must calculate the present value of any sums which you are to compensate for in the future; that is if you are allowing for wages five years from now or ten years from now, if you consider that as a measure of damages in this case, you must calculate the present value of such future sums by discounting the value of the sum to be received at some future date to its present value by using an interest rate which you believe represents the interest which a sum awarded today would earn between today and the date at which the sum of money would actually have been received.

The appellants argue that the trial judge erred in instructing the jury to reduce future damages to present value when neither the Court of Appeals nor this Court has required such an instruction in a non-death case. In Sun Cab Co. v. Walston, 15 Md. App. 113 (1972), this Court flatly held that a trial judge may not properly decline to give a present value instruction in a death case, when requested. This holding was affirmed by the Court of Appeals in Walston v. Sun Cab Co., 267 Md. 559 (1973).

In support of their contention that a present value instruction is not required in a non-death case, the appellants take comfort in a statement made in Hutzell v. Boyer, 252 Md. 227 (1964), to the effect that “reduction of damages to present value is not customary in Maryland, except in cases of wrongful death, ..Id. at 237-38. Judge Powers, however, in speaking for this Court in Sun Cab Co. v. Walston, supra, stated:

... [Characterization of the rule as customary in wrongful death cases does not mean that it is any less the law in such cases, nor that a judge may properly decline to instruct the jury upon it when such instruction is requested. Id. at 128.

By the same token, characterization of the rule as not customary in non-death cases does not mean it is any less the law in such cases. An analysis of the reason for the rule requiring reduction of damages to present value in death cases makes clear that the same principles should apply in non-death cases. There is neither reason nor logic in an argument that it is error not to give the present value instruction in a death case, but error to grant such an instruction in a total and permanent injury case which is, in effect, economic death. See Lumber Terminals, Incorporated v. Nowakowski, 36 Md. App. 82 (1977).

The appellants also contend it was error for the trial court not to permit argument to the jury “regarding the continuing trend of inflation under which we have lived and which has accelerated tremendously in recent years.” We find nothing in the record that such a request was made. Therefore, the appellants have not preserved for appellate review the trial court’s alleged restraint on the scope of jury argument. Maryland Rule 1085. Moreover, the appellants offered no evidence as to what the projected future rate of inflation would be. The trier of fact is only allowed to consider “such estimates of future changes in the purchasing power of money as are based on sound and substantial economic evidence, and as can be postulated with some reliability.” United States v. English, 521 F. 2d 63, 75-76 (9th Cir. 1975).

IV.

In the event the judgment n.o.v. is reversed, the appellees contend the trial court erred in its instructions to the jury on the liability issues. The substance of their contention is that they requested the court to instruct the jury that if it finds Rafferty’s violations of the Motor Vehicle Code, in any way, caused or contributed to his injuries, then it must find he was contributorily negligent. Contrary to the requested instruction, the court advised the jury that if Rafferty violated the statutes in question and said violations caused or contributed to his injuries, then it may find that he was contributorily negligent.

The appellees argue that the court’s instruction was not in accordance with the Maryland law. They rely on Ford v. Bradford, 213 Md. 534 (1957), a case involving a violation of the Motor Vehicle Code in which the court said:

[W]hen submitting [the issue of negligence] to the jury, the Court should inform the jury of [the statutory] requirements . .. and instruct them that if they find as a matter of fact a failure in these requirements, this failure is evidence of negligence; and, if the jury further find that such failure was a proximate cause of the [appellant’s] damages, it constitutes negligence. Id. at 542.

In considering the propriety of the judge's instruction, we, consider the charge as a whole. Here the appellees objected to the use of the word may instead of the word must.

The Maryland law is well established that the trial court’s instructions to the jury must be read as a whole and that it is not permissible to take isolated portions of the charge which may contain inartificial methods of expression, when the charge, considered as a whole, fairly presents the case to the jury on the issues presented by the evidence in the case. Jones v. Federal Paper Bd. Co., 252 Md. 475, 484 (1969).
The purpose of oral charges is to tell the jury in simple words what the law is in a case before them, and we will not be too particular in criticizing the words used if the result is sufficient. Bull Steamship Lines v. Fisher, 196 Md. 519, 529.
We have repeatedly stressed the fact that we cannot put the “trial judge in a strait jacket and prescribe or adopt a formula to be used and followed by him,” with respect to his instructions to the jury. Casey v. Roman Catholic Archbishop, 217 Md. 595, 612.

In our opinion the instruction of the trial court, taken as a whole, even if error, did not amount to prejudicial error.

Judgments N.O.V. reversed and judgments entered on the jury’s verdicts.


author: Menchine, J.,

text:
    HOWARD H. MISHKIN et al. v. RONALD WILLONER and JACOB SHEESKIN, TRUSTEES et al.
    [No. 875,
    September Term, 1976.]

      Decided May 16, 1977.

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

      Sheldon H. Braiterman and James D. Johnson for appellants.

      Lance W. Billingsley, with whom were Meyers & Billingsley, P.A. and William C. Brennan, Jr., with whom were DePaul, Willoner & Kenkel, P.A. on the brief, for appellees Ronald Willoner and Jacob Sheeskin. Robert A. Klein, with whom were Danzansky, Dickey, Tydings, Quint & Gordon on the brief, for other appellee.
   Menchine, J.,

delivered the opinion of the Court.

This is McCully v. Radack, 27 Md. App. 350, 340 A. 2d 374 (1975), revisited, but now entitled Mishkin, et al. v. Willoner and Sheeskin, Trustees.

At issue in McCully was the standing of limited partners, alleging collusion between a general partner and the trustees for a third party detrimental to a limited partnership, to intervene in deed of trust proceedings to foreclose upon property of the limited partnership. We vacated the trial court’s order denying standing to the limited partners and remanded the case for further proceedings. We thus explicated the course to be followed on remand:

“We vacate the order of the circuit court granting the appellees’ motion to dismiss appellants’ exception, and remand the ease for further proceedings. The chancellor shall determine whether there are ‘strong allegations and proof ’ of collusion between the trustees and the general partner, or whether the interest of the general partner in protecting his own financial welfare is so in conflict with the interest of the limited partnership as to render the general partner ‘disqualified.’ In order to determine whether the allegations are ‘strong’, and if so, whether supported by strong ‘proof, the chancellor may conduct, if he deems it necessary, an evidentiary hearing relative thereto.’’ 27 Md. App. at 360, 340 A. 2d at 380.

On remand, the limited partners offered numerous witnesses in person or by deposition in the course of a hearing conducted over a three day period. At the close of the evidence presented by the limited partners, motions to dismiss were made and were granted by the chancellor.

Thereafter the following orders were passed:

1. Dated April 27, 1976, reading as follows:
“Testimony taken At the end of the Plaintiffs case the Trustees moved to dismiss the issue of collusion. Motion granted. The General Partner moved to dismiss the issue that he had disqualified himself. Motion granted.”
2. Dated May 17, 1976, reading as follows:
“ORDERED that the Decrees of this Court dated April 27, 1976 granting the motions to dismiss the issues delineated by the Court of Special Appeals be, and they are hereby, suspended until such time as the exceptions to the Report of the Auditor filed by the West River Marina Limited Partnership are either heard and decided by this Court or withdrawn by the General Partner.”
3. Dated June 9, 1976, reading as follows:
“ADJUDGED, ORDERED, and DECREED: That the General Partner be, and he is hereby, granted leave to withdraw the Exceptions to the Auditor’s Report; and
That the Decree dated 17 May 1976 and filed 18 May 1976 be, and it is hereby, vacated.”

We hasten to explain the necessity for the passage of three orders in the case.

In McCully, supra, we noted that the issue of the standing of the limited partners arose in connection with the propriety of a proposed settlement acceptable to the general partner but alleged to be detrimental to the limited partnership. Under the proposed settlement the limited partnership would have received the sum of $46,646.69 as an agreed net surplus due the limited partnership from the foreclosure sale. The general partner, in turn, agreed to the withdrawal of exceptions to the auditor’s report that had shown a net surplus of $20,822.21.

During the course of the trial on remand it became apparent that the initial offer and acceptance of the proposed settlement of the dispute between trustees and the limited partnership had not been formally consummated. Indeed, there was doubt that such a compromise was a continuing or subsisting possibility.

Accordingly, subsequent to the passage of the order of April 27, 1976, the appellants filed a petition directing the attention of the court to this circumstance and pointed out, inter alia, (a) that exceptions to the auditor’s report had not been withdrawn; (b) that the settlement offer of approximately $26,000.00 more than the surplus shown by the auditor’s report was of doubtful continuing effect; and (c) that, absent such an offer, a withdrawal by the general partner of exceptions to the auditor’s report would be “void and unenforceable for lack of consideration.” The petition further pointed out that in the absence of offer, acceptance and withdrawal of the exceptions to the auditor’s report, a hearing upon such exceptions must follow. In the latter case, the petition suggested, the dispute between the general partner on the one hand and the limited partners on the other, would be moot.

The chancellor then passed the suspending order of May 17, 1976.

Thereafter, however, the offer of $46,669.00 to the West River Marina Limited Partnership was formally repeated; was accepted by the general partner on behalf of the partnership; and the general partner was authorized to withdraw the exceptions to the auditor’s report.

On June 9, 1976, the suspension order of May 17, 1976, was vacated and the order of April 27, 1976, thereby effectively restored.

The limited partners have appealed to this Court asking:

“Does the evidence, taken in the light most favorable to Appellants, demonstrate collusion between the Trustees and the general partner or that the interest of the general partner in protecting his own financial interest is in conflict with the interest of the partnership so as to render him disqualified from pursuing the partnership litigation?”

COLLUSION

The chancellor found that “[t]here are certainly strong allegations but in my opinion the amount of proof is nil of collusion between the trustees and the general partner.”

The Law

In this appeal we are required carefully to examine the evidence from the viewpoint most favorable to the appellants, and to do so in the light of the circumstance that the relationship of the general partner with the limited partners is a fiduciary one. In Allen v. Steinberg, 244 Md. 119, 128, 223 A. 2d 240, 246 (1966), Chief Judge Hammond, speaking for the Court of Appeals, said:

“Further, the partnership relationship is a fiduciary one, a relation of trust. A partner is a trustee to the extent that his duties bind him, a cestui que trust as far as the duties that rest on his copartners. 1 Rowley, Modern Law of Partnership, §§ 341-42; Restatement, Restitution §§ 166 comment d, 190 comment a; 68 C. J. S. Partnership § 76; 40 Am. Jur. Partnership § 128; Hagan v. Dundore, 187 Md. 430. These authorities which consider the matter also hold that generally the principle of utmost good faith covers not only dealings and transactions occurring during the partnership but also those taking place during the negotiations leading to the formation of the partnership. See also Knapp v. first National Bank and Trust Co. (10th Cir.), 154 F. 2d 395, 398; Stephens v. Stephens (Ky.), 183 S. W. 2d 822, 824. Managing partners particularly owe a fiduciary duty to inactive partners. Corr v. Hoffman (N. Y.), 176 N. E. 383; Einsweiler v. Einsweiler (Ill.), 61 N. E. 2d 377.”

Judge Digges, specially assigned, speaking for this Court in Green v. Lombard, 28 Md. App. 1, 343 A. 2d 905 (1975), cert. denied, 276 Md. 743 (1975), declared at 12 [913]:

“Fraud is a generic term and in equity embraces ‘all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.’ 1 Story, Equity Jurisprudence, § 187 (6th ed. 1853). It is not necessarily a single fact but a conclusion which is drawn from all the circumstances of the case, Brogden v. Walker’s Ex’r, 2 Harr & J. 285 (1805), and includes constructive as well as actual fraud. Mead v. Gilbert, 170 Md. 592, 606, 185 A. 668 (1936). It taints and vitiates all that it touches. Figinski v. Modrak, 151 Md. 140, 146, 134 A. 130 (1926).”

The Evidence

There is not the slightest direct evidence of collusion between Radack, the general partner, and the trustees or the cestui que trust under the deed of trust. We are not permitted, however, to end our consideration of the issue with such a statement.

We must as well compare the settlement surplus figure — $46,669.00 — with the appllants’ claimed surplus figure — about $100,000.00 — and examine the evidence relating to calculation of the latter figure. We then must consider whether that comparison and that examination reasonably would permit a conclusion that strong proof of collusion infereniialiy has been shown.

The auditor’s report had shown trustees’ receipts of price, interest and. tax refund totaling $859,363.92 The report recommended disbursements as follows:

To mortgagee, principal and interest $787,376.90
To expenses of sale including Trustees Commissions and
Counsel Fee 51,104^1 $838,481.71
Surplus to Limited Partnership $ 20,882.21

The exceptions filed on behalf of the limited partnership alleged the following errors in the report:

1. Failure to allow mortgagor credit on marina earnings between date of sale and date of settlement $3,589.03
2. Errors in calculations of claim of mortgagee Amount not asserted
3. Erroneous allowance of interest after date of closing Amount not asserted
4. Alternatively, that interest after date of closing was based on excessive principal amount Amount not asserted
5. Alternatively, failure to allow credit against interest for investment, if any, by Trustees pending ratification of report Amount not asserted
6. Erroneous allowance of counsel fee $39,036.51
7. Other and further reasons Amount not asserted

The witness Harold Rosenblatt, a certified public accountant, testified that “the errors in the report of the auditor were sixty-five thousand eight hundred and eighty-four dollars plus interest, and the attorney’s fees which may be disallowed.” He supplemented his testimony with an accounting document that delineated the suggested errors as follows:

“ERRORS IN REPORT OF A EDITOR
AMOUNT OF ERROR
1. Deed of Trust Statement of Debt furnished auditor erroneously charged Partnership with advances on obligations solely the responsibility of the deed of trust holder $ 6,884.69
2. Auditor erroneously added interest of $6,646.69 after date of settlement (5/22/74). 6,646.69
3. Deed of Trust Statement of Debt furnished auditor failed to recognize $48,416.40 pecuniary benefit flowing to Deed of Trust Holder. 48,416.00
4. Limited Partners contest the amount of attorney’s fee, but do not deduct same herein, since this is a legal and not an accounting dispute.
5. Auditor fails to credit Partnership with income of Marina to 5/22/74. 3,589.03
TOTAL: $65,884.43”
Plus: (6) Interest and (added to document during hear' ing) (Amount not listed)
(7) Any attorney’s fees dis allowed (Amount not listed)

Other witnesses who contended that the auditor’s report was erroneous did so substantially on the basis of the Rosenblatt testimony and accounting.

Items 5 and 7 in the Rosenblatt accounting, supra, quickly can be shown to lend no support to appellants’ claim of collusion.

As to item 5 — $3,589.03 — it is conceded that the chancellor found that the purchasers at foreclosure were entitled to that sum. Thus it reflects in no way upon the present issue.

As to item 7 — $39,036.51 — we think that Mortgage Investors of Washington v. Citizens Bank and Trust Company of Maryland, 278 Md. 505, 366 A. 2d 47 (1976), is dispositive. The attorney’s fee claimed and allowed was fixed in the deed of trust and agreed upon by the limited partnership at its execution. The fee was not shown to be unlawful. There was no showing that the fee was tainted by any of the exceptions to the general rule that parties have the right to make contracts and the courts the duty to maintain them in their integrity and entirety. In other words, there was no showing: (a) that the attorney personally was the holder of the document of indebtedness; (b) that the amount designated was grossly in excess of any reasonable amount, or (c) that the fee was in fact payable to the creditor rather than to counsel. See Mortgage Investors, supra, at 508-09 [49-50].

Item 3 — $48,416.00 — stems from a contention by appellants that this sum should have been deducted from the principal sum due the cestui que trust in that it represented his obligation rather than the obligation of the limited partnership. The sum represented future payments required to be made upon equipment utilized in connection with operation of the marina. The nature of the documents under which such payments for equipment are required to be made does not appear in this record. Apparently the validity of the exception depends upon the answer to the question whether the possessory documents evidencing the equipment transactions were leases or conditional sales agreements. Whether they were in fact leases or conditional sales agreements is a matter of the purest conjecture under the evidence produced below.

In any case, the record shows that the general partner, acting upon the advice of counsel, concluded that this exception would not be sustained. There is no evidence that the general partner’s position as to this was a product of collusion with the trustees or their cestui que trust.

Item 1 — $6,884.00 — related to allowances to the cestui que trust for payments made upon equipment obligations during the short lived operation of the marina by the limited partnership. The same lack of evidence to support this claim exists as was the case with respect to item 3. The merit of the claim is left to conjecture.

Item 2 — $6,646.69 — was admittedly a legal conclusion of counsel for the limited partners. The general partner, again relying upon the advice of counsel, reached the conclusion that the claim was without merit.

It is apparent from the above that the validity of all exceptions has been put in question. There is no direct evidence that their validity was questioned because of collusion of the general partner with the trustees or the cestui que trust. Neither do we find any evidence in this record from which such collusion reasonably may be inferred.

We find, in sum, no “strong proof’ of collusion. McCully v. Radack, supra.

CONFLICT OF INTEREST

The Maryland Uniform Limited Partnership Act, Corporations and Associations Article § 10-101, et seq., itself supplies a built-in conflict between a general and a limited partner when the circumstances are such that dissolution appears imminent and partnership assets are insufficient in amount both to pay partnership debts and to provide a return of limited partners’ contributions. This is so: (1) because the general partner alone personally is subject to liability for partnership debts, § 10-108, while the limited partner is not, § 10-101, and (2) because the general partner’s claim to return of capital contributions is subordinate to the claim of a limited partner, § 10-122.

We do not, however, interpret the combined effect of §§ 10-101, 10-108 and 10-122 to mean that the broad managerial powers conferred upon the general partner of a limited partnership by § 10-108 are per se lessened when dissolution of the limited partnership appears imminent.

In the subject case it is true that the general partner — not the limited partners — would be legally liable to the creditors of the partnership and that the settlement assured the payment of all partnership debts and thus would militate to his advantage.

But, it is equally true that the exceptions could be pursued by the limited partners without threat of increased personal liability attaching to them if unsuccessfully litigated. The limited partners could, in short, possibly gain from a successful prosecution of the exceptions but could not lose if the exceptions were not sustained at all or were partially sustained in such a way that a surplus less than $46,669.00 resulted from their disposition.

The general creditors of the partnership would not find themselves in so favorable a tactical position. True, they would be paid in full if the settlement is approved or if the exceptions were sustained in such fashion that the surplus exceeded the settlement amount. On the other hand, if the exceptions were to be overruled or produced a surplus less than $46,000.00, creditors would be left to pursue their rights against the general partner alone. § 10-108.

Thus it appears the statute imposes a conflict placing a tight shoe on the foot of both general and limited partners in circumstances when dissolution is imminent and partnership assets are insufficient for payment of debts and return of capital investment. In such a case we search for evidence that may provide indicia of good or bad faith in the course followed by the general partner.

The record shows that the general partner agreed to forego the proffered settlement and to proceed to litigate the exceptions “if the limited partners would guarantee at least the settlement of forty-six thousand dollars.” The limited partners declined to do so. We recognize, of course, that the limited partners were in no way legally obligated to assume any added burden. Nonetheless, we think these circumstances negate any inference that the course followed by the general partner was undertaken in bad faith.

We see no evidence of any conflict of interest other than is inherent in the statutory scheme for limited partnerships. We think there is no strong “proof’ that the agreement was a product of the general partner’s self-interest or that acceptance of it was detrimental to the partnership entity. McCully v. Radack, supra.

Judgment affirmed.

Costs to be paid by appellants.

      . The appellants, all Class A limited partners in West River Marina, Limited Partnership, are: Howard Mishkin, Abraham Karr, Melvin Beall, John E. Harms, Edward S. Kail ins, Earl V. Wilkinson, Harold Silver, James R. McCully, Vincent Pirro, Chris Papadopoulos and Naron, Wagner & Voslow, Chartered. The appellees are Ronald Willoner and Jacob Sheeskin, Trustees under a deed of trust executed by West River Marina, Limited Partnership and David H. Radack, general partner of the limited. partnership. The capital structure of the limited partnership was as follows: the general partner contributed $70,000.00; the limited partners contributed $230,000.00 (about $21,000.00 each).

      . Authorized by Maryland Rule 535,

      . This sum would have been sufficient to pay all general creditors of the partnership but would admit of little or no distribution to the limited partners.

      . The purchasers at foreclosure were John E. Harms and Vincent Pirro, two of the limited partners, who are among the appellants.

      . Separate exceptions, filed by the general partner for the limited partnership, asserted a right to an escrow account of $17,000. The monies in that account are not part of the trust estate. The present litigation is in no manner concerned with resolution of any dispute concerning that sum.

      . The witness also owned a one-fourth share of the limited partner Naron, Wagner & Voslow, Chartered.

      . The evidence showed that Radack, the general partner, at the time iof hearing had personal assets of $2,500.00 to $3,000.00 and personal liabilities of $20,000.00 to $25,000.00.


author: Liss, J.,

text:
    DARRELL JAY KING v. STATE OF MARYLAND
    [No. 930,
    September Term, 1976.]

      Decided, May 16, 1977.

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

      James E. Kenkel and William C. Brennan, Jr., with whom were DePaul, Willoner & Kenkel, P.A. on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Daniel J. Cassidy, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

The appellant, Darrell Jay King, a minor 14 years of age, was indicted in the Circuit Court for Prince George’s County and charged with rape, attempted rape, assault with intent to rape and assault and battery. The appellant, through counsel, filed a motion requesting a “reverse waiver” from the Circuit Court for Prince George’s County to the Juvenile Court of that county. The petition was filed pursuant to the provisions of Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 594A. The trial judge ordered that a juvenile waiver investigation report be prepared by the Parole and Probation Division and also ordered that the appellant undergo a 20 day evaluation by the Maryland Children’s Center, a division of the State’s Juvenile Services Department. The reports were completed and filed with the trial court and a hearing was held. The presiding judge denied the motion for reverse waiver.

The appellant thereupon entered a plea of not guilty, prayed a jury trial and filed a pre-trial motion to suppress an extrajudicial statement taken from him at the time of his arrest. The appellant requested a hearing on the motion to suppress prior to the commencement of the trial. For reasons which the record does not disclose, the pre-trial hearing on the motion was not held, and the hearing as to whether the extrajudicial statement was voluntary was held in the presence of the jury. The trial court, after hearing the testimony of several witnesses, concluded that the statement was voluntarily made by the appellant and admitted it into evidence.

At the conclusion of the State’s case the appellant moved for a judgment of acquittal which was denied. The motion for acquittal was renewed at the conclusion of all the testimony and again denied. At the end of the case the State entered a nolle prosequi to Count II of the indictment charging attempted rape and to Count III charging assault with intent to rape, and amended Count IV to charge battery only. The case was then submitted to the jury on Count I charging rape and Count IV charging battery. The jury returned a verdict of not guilty of rape and guilty of battery. This appeal was taken from the judgment entered on the verdict and the sentence imposed thereon.

The appellant raises five issues to be considered by this Court. We have carefully considered all of them and find no reversible error and shall affirm. We shall explain the Court’s reasons for this conclusion as to each of the issues raised.

I

The appellant urges that the trial court abused its discretion by ruling that a preponderance of the legally sufficient evidence demonstrated that the appellant was an unfit subject for rehabilitation measures.

The legal principles which govern the decision required to be made by the trial court in a “reverse waiver” case are the same as those which determine the trial court’s action on a request for waiver from the juvenile court to the circuit court level. In a “reverse waiver”, the exclusive jurisdiction is vested in the circuit court (as in this case) and the juvenile seeks to have the circuit court relinquish its jurisdiction and transfer the case to the juvenile court for hearing and disposition.

The applicable statute is found in Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 594A. It provides that in any case involving a child who has reached 14 years of age but has not reached 18 years of age at the time of any alleged offense excluded under the provisions of Maryland Code, Courts and Judicial Proceedings Article (1974, 1976 Cum. Supp.), § 3-804 (d) (1) or (d) (4), the court exercising jurisdiction may transfer the case to the juvenile court if a waiver is believed to be in the interests of the child or society.

In reaching its conclusion whether waiver should be granted the trial court must consider the following factors: age of the child; mental and physical condition of the child; child’s amenability to treatment in any institution, facility or program available to delinquents; nature of the offense and the child’s alleged participation in it; and the public safety. Matter of Trader, 20 Md. App. 1, 315 A. 2d 528 (1974); Matter of Waters, 13 Md. App. 95, 281 A. 2d 560 (1971). We said in In Re Arnold, 12 Md. App. 384, 396-97, 278 A. 2d 658, 664 (1971), that “disposition in a juvenile case is committed to the sound discretion of the juvenile judge, to be disturbed on appeal only upon a finding that such discretion has been abused.” In Re Hamill, 10 Md. App. 586, 271 A. 2d 762 (1970). In Matter of Johnson, 17 Md. App. 705, 304 A. 2d 859 (1972), at page 713 we stated, “What we said in Arnold concerning discretion in juvenile dispositions is equally applicable to waiver hearings.” The same standards are applicable in reverse waiver cases.

The appellant strenuously argues that the various reports filed by the agencies of the Department of Juvenile Services establish the amenability of the appellant to treatment, and that he should have been given the opportunity for rehabilitation. The State just as vigorously contends that there was ample evidence from which the trial court could have reached the conclusion that a waiver to the juvenile court was unwarranted. There was evidence that this was the second charge of sexual assault allegedly committed by the juvenile in a matter of months; that the youth had been placed on probation for the similar offense and had not been cooperative; that he did not recognize any degree of criminal culpability in either incident; and that he had unilaterally discontinued attendance in a rehabilitation program. It is clear from the record that the trial court carefully considered each of the five criteria required to be considered by the statute and was fully familiar with the various reports. The court reached a conclusion that a waiver was not mandated either in the interest of the child or of society. We find no abuse of the trial court’s exercise of discretion.

II

The appellant next contends that the trial court erred in ruling that the appellant understood his constitutional rights under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), and knowingly waived these rights, and in further concluding that the extrajudicial statement made by the appellant to the police was voluntarily made by him.

The appellant mounts a three pronged attack. He first suggests that because of his age, his limited intelligence and his minimal ability to read and write he could not have knowingly waived his rights or voluntarily given the statement. He points out that he was evaluated as being of dull normal intelligence, was 14 years old and a seventh grade student who was characterized as slow learner and a poor reader.

It is conceded by the State that it has the initial burden of establishing by a preponderance of the evidence that the accused's waiver of his Miranda rights was a knowing and intelligent waiver and that the extrajudicial statement was freely and voluntarily given. It is only after the State has met this burden to the satisfaction of the trial court that the statement may be considered by the jury as part of the “beyond a reasonable doubt” fact finding obligation. Hebb v. State, 31 Md. App. 493, 356 A. 2d 583 (1976); Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418 (1973). The age of the accused and his mental capacity are elements which may be considered in determining these issues. So, in Greenwell v. State, 32 Md. App. 579, 363 A. 2d 555 (1976), a confession by an illiterate defendant, who was found to be in the dull normal range of intelligence, was held to be voluntarily given where the Court found that the defendant had been advised of his Miranda rights by police officers, had waived these rights and had voluntarily made an extrajudicial statement. In that case there was no suggestion that the police had done or said anything for the purpose of overbearing the accused's will. Nor does youth coupled with a low I.Q. preclude a finding that an extrajudicial statement is admissible. In Bean v. State, 234 Md. 432, 199 A. 2d 773 (1964), it was held that a 15 year old with an I.Q. of 74 had voluntarily waived his Miranda rights and made a confession. The trial court is required to look at the totality of the circumstances and determine whether or not the extrajudicial statement is admissible. Clewis v. Texas, 386 U. S. 707, 87 S. Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U. S. 737, 86 S. Ct. 1761, 16 L.Ed.2d 895 (1966); Haynes v. Washington, 373 U. S. 503, 83 S. Ct. 1336, 10 L.Ed.2d 513 (1963); Taylor v. State, 238 Md. 424, 209 A. 2d 595 (1967); Keller v. State, 2 Md. App. 623, 236 A. 2d 313 (1967).

In this case the testimony was that the detective had arranged a mutually convenient time for the defendant and his father to come to the police station; that he advised them of the purpose of the investigation; that the father remained in the anteroom adjoining the interrogation room when the accused and the detective discussed the matter; that the Miranda waiver form was read to the accused and he signed a waiver of these rights; that no promises or threats were made to the appellant; that appellant knowingly and willingly made a statement (which he apparently believed was exculpatory); and that after the accused read the statement he signed it. The appellant offered no evidence to contradict any of this testimony. It is clear that the State more than met its burden of proof in establishing by a preponderance of the evidence that the statement was admissible.

The second prong of the appellant’s attack on the extrajudicial statement is his complaint that the hearing on the motion to suppress was not held out of the presence of the jury. W@ agree that the better practice is to hold the initial inquiry on a motion to suppress out of the presence of the jury. We note, however, that no objection was made by the appellant to the procedure utilized in this case. Nor is any prejudice to the appellant alleged or demonstrated by the manner in which the hearing was conducted before the jury. If, in fact, the statement had been found to be inadmissible under this procedure it would have required the granting of a mistrial. Since the statement was ruled admissible, the same evidence would have been required to be submitted to the jury to assist it in its determination of whether the accused’s Miranda rights were knowingly waived and the extrajudicial statement voluntarily given beyond a reasonable doubt. We find no reversible error. Day v. State, 196 Md. 384, 76 A. 2d 729 (1950); Hebb v. State, supra; Mulligan v. State, 10 Md. App. 429, 271 A. 2d 385 (1970).

Finally, on this issue, the appellant contends that the failure of the interrogating officer to admit the father of the accused into the room where the interrogation was proceeding was reversible error. The officer in response to a question from defense counsel admitted that the father was seated in the hallway while the youngster was being interrogated, but he had no recollection of a request by the father that lie be permitted to be present while the boy was questioned. The officer was fair enough to concede that he would not have admitted the father because “it has been my experience that juveniles are quite inhibited around their parents and it might have caused him to be a bit more uninhibited.” The appellant relies principally on Haley v. Ohio, 332 U. S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948), to support his position. This Court’s reading of that case convinces us that It is factually inapposite to the matter we are now considering. The same conclusion is reached with respect to Walker v. State, 12 Md. App. 684, 280 A. 2d 260 (1971).

In Haley, a pre-Miranda decision, the confession was obtained from a 15 year old murder suspect who was arrested at his home around midnight, taken to police headquarters without his parents and subjected to interrogation by relays of police officers for almost six hours before he made a statement inculpating himself. He was not advised of his right to counsel and not charged with the crime until three days after the statement had been given during which time a lawyer employed to represent him was denied the opportunity to talk to him on two occasions five days later. The Supreme Court, after a consideration of the totality of the circumstances, held that due process was violated by the use of the secret custody of either man or child as a device for wringing confessions from them. In Walker v. State, supra, the accused, a 15 year old, was arrested without a warrant and taken to a police station without notification to any member of his family. He was denied communication with anyone for a period of 15 hours, and his mother was refused an opportunity to see her son during that entire period. She did not see him until five days later. He was interrogated by a relay of four police officers and detained overnight in an unlit cell in the basement of the police station. The accused was shown pictures of the murder scene including a picture of the victim whose head had been blown off by a shotgun blast. This Court, applying the test of the totality of the circumstances as set out in Davis v. North Carolina, supra, found the confession elicited under these facts to be involuntary. We point out that in this case the testimony of the police officer as to the voluntariness of the statement and the waiver of the Miranda rights was totally uncontradicted. The appellant did not take the stand nor did he offer any other witness on these issues. The trial court found that the State had met its burden of proof and we agree.

We believe this case falls squarely within the perimeters of State v. Hance, 2 Md. App. 162, 163, 233 A. 2d 326, 329-30 (1967), in which Chief Judge Murphy, speaking for the Court, said:

“We also conclude that the court below erred in its conclusion that Hance’s statement even though voluntary, was nevertheless inadmissible in evidence because he was only fifteen years of age when he made the statement, and his mother was not permitted to attend his police interrogation. It is well established that the single standard or test by which the court is to measure the admissibility of an extrajudicial statement (or confession) is whether the statement was made freely and voluntarily, and at a time when the person making the statement knew and understood what he was saying, [citations omitted] That Hance was only fifteen years of age when he made the statement does not of itself make the statement involuntary, [citations omitted] In other words, as succinctly stated in Green v. State, 236 Md. 334, 339, ‘age alone will not render an otherwise voluntary statement involuntaryAnd, if a statement is found to be voluntary, the fact that the mother of the juvenile making the statement was not permitted to attend the interrogation would have no bearing on the admissibility of the voluntary statement.”

We note in passing that the statement was skillfully used by trial counsel. Once the suppression hearing was concluded and the statement found admissible he did not object to its being submitted to the jury. The reason was obvious. The statement was at least partially exculpatory. That it was effective is found from the circumstances that the jury found the accused not guilty of rape, but guilty of the much less serious charge of battery. The admission of the statement permitted the appellant to get his version of the incident before the jury without the necessity of subjecting himself to cross -examination.

III

The appellant asseverates that the evidence adduced at trial was insufficient to establish beyond a reasonable doubt that there was any unlawful touching of the complaining witness by the accused or that the touching occurred without the victim’s consent. The appellant was found guilty of battery.

We have said that battery is a common law offense which contemplates the unlawful use of force applied directly or indirectly to the person of another. Woods v. State, 14 Md. App. 627, 288 A. 2d 215 (1972). Consent is an absolute defense to the crime of battery. Avery v. State, 15 Md. App. 520, 292 A. 2d 728 (1972).

The record discloses that the prosecutrix testified that while she was with the appellant he had her by the wrist and held her arm behind her back, and at one point, had lifted her off the floor in an attempt to push her into the hallway. She said that there was no one in sight and that she was afraid to scream, that she told the appellant to stop his advances, and that she resisted his attempt to place her on the floor. She attributed her failure to report the incident for about three weeks to the fear induced by the occurrence.

It is true that the appellant’s version as recited in the statement to the police officer was substantially different, and, if believed, would have supported a conclusion that the victim consented to the alleged unlawful touching. This was, however, a conflict to be determined by the jury which was free to disbelieve the appellant’s version of the incident. Jones v. State, 11 Md. App. 468, 275 A. 2d 508 (1971). Under the circumstances we find no error in the submission of the issue to the jury nor in the jury’s conclusion that the appellant was beyond a reasonable doubt guilty of battery.

IV

The appellant’s fourth complaint is that the trial court erred in admitting into evidence the opinion testimony of a lay witness without a sufficient predicate to support it. We find no basis for this contention. The mother of the prosecutrix was permitted to testify, over objection, to a change in the child’s emotional condition. The purpose of the testimony was to explain the failure of the alleged victim to report the incident for about three weeks after it occurred. The appellant urges that the mother was not a qualified witness to give an opinion as to her daughter’s emotional condition. The rule in Maryland is that a lay witness is not qualified to express an opinion about matters which are either within the seope of common knowledge and experience of the jury or which are peculiarly within the specialized knowledge of experts. Hendrix v. State, 200 Md. 380, 90 A. 2d 186 (1952); Wimpling v. State, 171 Md. 362, 189 A. 248 (1936); Watts v. State, 99 Md. 30, 57 A. 542 (1904); Bremer v. State, 18 Md. App. 291, 307 A. 2d 503 (1973), cert. denied, 415 U. S. 930 (1973).

The simple answer to the appellant’s complaint is evident from a reading of the transcript of the trial. The mother of the prosecutrix never rendered an opinion as to why her daughter was acting in a manner other than what she thought to be normal. She was permitted to detail for the jury the changes in behavior and demeanor which the mother observed in the period after the alleged incident took place, but was never asked and never gave an opinion as to the psychological or emotional reasons for her' change in conduct. She testified to the facts as she saw them and offered no opinion. We see no error in the court’s ruling. See Pennsylvania R. R. Co. v. Simmons, 159 Md. 114, 150 A. 263 (1930).

V

Finally, the appellant excepts to the failure of the trial court to give an advisory instruction to the jury as to the caution it must exercise in its consideration of the one-on-one confrontation between the testimony of the victim and the version of the events given by the accused in his statement to the police officer. It is the responsibility of the trial court, when requested, to give an advisory instruction on every essential point of law supported by the evidence in a criminal proceeding. Dillon v. State, 277 Md. 571, 357 A. 2d 360 (1976); Raley v. State, 32 Md. App. 515, 363 A. 2d 261 (1976). However, the instruction need not be given in the language suggested by counsel, but it is sufficient if it advises the jury fairly and covers all the points of law embodied in the requested instructions. In the instant case we conclude from our reading of the trial court’s advisory instructions that the jury was fairly and adequately advised as to its duty in assessing the credibility of the witnesses. England and Edwards v. State, 274 Md. 264, 334 A. 2d 98 (1975); Mumford v. State, 19 Md. App. 640, 313 A. 2d 563 (1974).

For the reasons given we shall affirm.

Judgment affirmed.

Costs to be paid by appellant.

      . Section 3-804 (d) (1) of the Courts Article of the Code provides that the Juvenile Court does not have jurisdiction over a child 14 years or older alleged to have done an act which if committed by an adult would be a crime punishable by death or life imprisonment ... unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A or Article 27. Rape is one of the excluded crimes.

      . See Dempsey v. State, 277 Md. 134, 355 A. 2d 455 (1976).