text:
    DIANE M. BELL v. STANLEY A. BELL
    [No. 92,
    September Term, 1977.]

      Decided November 10, 1977.

      The cause was argued before Thompson, Melvin and Wilner, JJ.

      William C. Miller, with whom were James Robert Miller, Harvey B. Steinberg and Miller, Miller & Steinberg on the brief, for appellant.

      William Blanton McDanald for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Diane M. Bell, the appellant, appeals from an order from the Circuit Court for Montgomery County which dismissed her bill of complaint for cancellation of a separation and property settlement agreement between her and her husband, Stanley A. Bell, the appellee, and the cancellation of eleven deeds executed pursuant to that agreement. She raises three questions on appeal: (1) was the chancellor’s decision clearly erroneous when he found that the agreement and deeds were not obtained by duress or undue influence, (2) was there an error in the admission of evidence, and (3) was the chancellor clearly erroneous in finding that the appellant ratified the agreement and the deeds.

The facts that gave rise to this suit are as follows. Diane Bell consulted an attorney in July of 1975, concerning the preparation of a separation agreement. The agreement was prepared and Mrs. Bell presented it to Mr. Bell at home on the morning of August 27, 1975. After examining the agreement at his place of business Mr. Bell inserted several changes and gave it to his secretary for retyping. Two significant changes were made in the agreement. The original provided for child support in the amount of $700 per month. This figure in the amended agreement was reduced to $300. Mr. Bell’s agreement also provided for the disposition of the eleven houses owned by the parties as tenants by the entireties. Under his agreement Mrs. Bell was to receive one of the houses while he retained the other ten. After his agreement was completed he telephoned the appellant and asked her to come to his office in Wheaton to sign the agreement. At that time no mention was made of the changes.

When Mrs. Bell arrived, Mr. Bell suggested that they go to the nearby offices of Ralph Duane Real Estate Co. so that they could discuss the agreement in private. Prior to Mrs. Bell’s arrival Mr. Bell had prepared a series of sixteen 3x5 cards containing phrases such as “the man,” “the kids,” “his carrer,” “your name,” and “Ingrid (accessory).” During the course of the meeting he used these cards to inform the appellant of an investigation of her activities by private detectives and his knowledge of her adulterous affair with a police lieutenant. He also informed her that he knew that many of the contacts occurred at the apartment of her friend, Ingrid Gibson. He then presented his version of the separation agreement and made it clear that unless she signed it he would reveal her relationship to the Internal Affairs section of the police department and to the newspapers. Several times during the course of the conversation Mrs. Bell threatened to leave or requested an opportunity to consult with her attorney, but on each occasion, Mr. Bell threatened to “start the ball rolling” if such attempts were made before the agreement was signed. Mr. Bell placed a tape recorder in the office and recorded the entire conversation without the knowledge of Mrs. Bell. The tape was introduced into evidence.

After Mrs. Bell registered several protests, she read through the agreement and negotiated with Mr. Bell to make several changes. Among these changes was the receipt of a total of $15,000 in cash in addition to the one house. Under the agreement that was signed Mr. Bell received approximately $163,000 worth of property that was previously owned as tenants by the entireties while Mrs. Bell settled for approximately $45,000 in cash and property.

The appellant argues that a confidential relationship existed between the parties and the burden was on the appellee to show the agreement was fair in all respects. In order to establish a confidential relationship one must show that by virtue of the relationship between them, he is justified in assuming the other party will not act in a manner inconsistent with his welfare. Unlike many jurisdictions, Maryland does not presume the existence of a confidential relationship in transactions between husband and wife. Owings v. Currier, 186 Md. 590, 47 A. 2d 743 (1946). In Maryland there has been a presumption that the husband is the dominant figure in the marriage. In Manos v. Papachrist, 199 Md. 257, 262, 86 A. 2d 474 (1951), the Court noted:

“Ordinarily the relationship of husband and wife is a confidential one. Of course, in any given case it is a question of fact whether the marital relationship is such as to give the husband dominance over his wife or to put him in a position where words of persuasion have undue weight. Generally, however, on account of the natural dominance of the husband over the wife, and the confidence and trust usually incident to their marriage, a court of equity will investigate a gift from a wife to her husband with utmost care, especially where it strips her of all her property; and the burden of proof is on the husband to show that there was no abuse of confidence, but that the gift was fair in all respects, was fully understood, and was not induced by fraud or undue influence.”

We noted the questionable foundation upon which this presumption rests in light of Article 46 of the Maryland Declaration of Rights, better known as the Equal Rights Amendment, in Trupp v. Wolff, 24 Md. App. 588, n. 15, 335 A. 2d 171 (1975), cert. denied, 275 Md. 757. Since that decision, the Court of Appeals has held that sex classifications are no longer permissible under the amendment. Rand v. Rand, 280 Md. 508, 374 A. 2d 900 (1977). Consequently, the presumption of dominance cannot stand.

When the presumption is disregarded the question of whether a confidential relationship exists between husband and wife becomes a question of fact. Among the various factors to be considered in determining whether a confidential relationship exists are the age, mental condition, education, business experience, state of health, and degree of dependence of the spouse in question. Treffinger v. Sterling, 269 Md. 356, 305 A. 2d 829 (1973); Hoffman v. Rickell, 191 Md. 591, 62 A. 2d 597 (1948); Gaggers v. Gibson, 180 Md. 609, 26 A. 2d 395 (1942); Gaver v. Gaver, 176 Md. 171, 4 A. 2d 132 (1939).

The testimony shows that Mrs. Bell was born in Europe, moved to this country when she was eleven years old, and left school at the age of fifteen. Although she is employed as a beautician, she has relatively little experience or expertise in business matters. On the other hand, Mr. Bell is an experienced businessman, possesses a real estate license, and has a college degree. The chancellor considered these facts, but found that no confidential relationship existed primarily because Mrs. Bell negotiated several changes in the agreement and questioned other provisions, as is clearly shown by the tape recording. He found there was a lack of trust and confidence in the other party necessary to the establishment of a confidential relationship. We are unable to say his decision on this issue was clearly erroneous. Md. Rule 1086.

Absent proof of a confidential relationship between the parties, separation agreements, not disclosing any injustice or inequity on their face, are presumptively valid and the burden is on the party challenging the agreement to show its execution resulted from coercion, fraud, or mistake. Cronin v. Hebditch, 195 Md. 607, 74 A. 2d 50 (1950); Owings v. Currier, supra; Jackson v. Jackson, 14 Md. App. 263, 286 A. 2d 778 (1972).

The only inequity claimed by the appellant is that she relinquished her one half interest in approximately $210,000 worth of real estate for approximately $45,000 in property and cash. This disparity in consideration is not sufficient to show that the agreement was unjust or inequitable. The cases which have found agreements to be unjust or inequitable on their face involved agreements that were completely lacking in any reasonable consideration. Cronin v. Hebditch, supra; Eaton v. Eaton, 34 Md. App. 157, 366 A. 2d 121 (1976). In Cronin the wife signed an agreement releasing all her rights in property totalling more than $700,000 for a mere $10,000 and the Court of Appeals voided the agreement. More recently, in Eaton we struck down an agreement in which rights in $200,000 to $250,000 worth of property were released for $4,300. There we said:

“ ‘[The] defendant in this case has ostensibly purchased far more cheaply than a Court of Equity can condone all of the plaintiff’s rights “of whatsoever kind or nature originating in and growing out of the marriage status.” ’ ” 34 Md. App. at 162.

As we are unable to say the agreement in question was lacking in any reasonable consideration, Cronin and Eaton cannot be used to relieve the appellant from proving the agreement was the product of duress or undue influence.

The appellant’s claim of duress or undue influence rests on the threats of Stanley Bell to notify the Internal Affairs section of the Police Department and the newspapers of her adulterous relationship unless the agreement was signed. Mr. Bell also stated that such disclosures would ruin the career of her lover and Ingrid Gibson, as well as her reputation in the community. The chancellor construed these statements as being no more than a threat to institute a divorce action on the grounds of adultery.

In order to establish duress there must be a wrongful act which deprives a person of the exercise of his free will. See Central Bank v. Copeland, 18 Md. 305 (1862); Restatement (Second) of Contracts § 316-318 (Tent. Draft No. 12, 1977); 13 Williston on Contracts, §§ 1606-1607 (3d ed., W. Jaeger ed. 1970). Although we have found no Maryland case discussing the issue whether a threat to institute a civil suit can furnish a legally sufficient basis for duress, the question has been considered by a number of courts in other jurisdictions. Under these cases such suits do not form a legally sufficient basis for duress where the threat to institute the suit is made in good faith. Jack Winter, Inc. v. Koratron Co., 329 F. Supp. 211 (N.D. Calif. 1971); Blalock v. Blalock, 51 Ala. App. 686, 288 So. 2d 747 (1974); Dunbar v. Dunbar, 102 Ariz. 352, 429 P. 2d 949 (1967); Del Carlo v. County of Sonoma, 245 Cal. App.2d 36 53 Cal. Rptr. 771 (1966); Kaplan v. Kaplan, 25 Ill. 2d 181, 182 N.E.2d 706 (1962); Eggleston v. Humble Pipe Line Co., 482 S.W.2d 909 (Tex. Civ. App. 1972). The courts have stated the assertion of a claim with the knowledge there is no reasonable belief of success or that it is false, amounts to bad faith and is a sufficient basis for a claim of duress. Jack Winter, Inc. v. Koratron Co., supra; Kaplan v. Kaplan, supra; Louisville Title Insurance Co. v. Surety Title & Guaranty Co., 60 Cal. App.3d 781, 132 Cal. Rptr. 63 (1976). Even though a particular act is legal, if it is wrongful in the moral sense a number of authorities have held that it can be used to establish a claim of duress. Fowler v. Mumford, 48 Del. 282, 102 A. 2d 535 (1954); Kaplan v. Kaplan, supra; Hochman v. Zigler’s, Incorporated, 139 N. J. Eq. 139, 50 A. 2d 97 (1946); Link v. Link, 278 N. C. 181, 179 S.E.2d 697 (1971); Restatement (Second) of Contracts § 318 (Tent. Draft No. 12, 1977); 13 Williston on Contracts, §§ 1606-1607 (3d ed. W. Jaeger ed. 1970).

The appellant argues that a threatened civil suit can be wrongful in a moral sense where it is used to coerce a settlement in a transaction unrelated to the subject matter of the suit. In support of this argument she relies on Link v. Link, supra. In Link the husband threatened to institute divorce proceedings against the wife and seek custody of their children unless the wife signed an agreement transferring her individual property to the husband. In deciding the case the Court noted that the general rule that threats to institute civil proceedings are not wrongful but went on to state:

“The law with reference to duress has, however, undergone an evolution favorable to the victim of oppressive action or threats. The weight of modern authority supports the rule, which we here adopt, that the act done or threatened may be wrongful even though not unlawful, per se; and that the threat to institute legal proceedings, criminal or civil, which might be justifiable, per se, becomes wrongful, within the meaning of this rule, if made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings.” 179 S.E.2d at 705.

See Restatement (Second) of Contracts § 318 (Tent. Draft No. 12, 1977); 13 Williston on Contracts §§ 1606-1607 (3d ed. W. Jaeger ed. 1970).

We find the reasoning of Link to be persuasive. Applying this approach to the case before us we think there was a legally sufficient basis for a finding of duress.

Mr. Bell threatened an action for divorce on the grounds of adultery to force a property settlement between the parties. Although the threatened action and the separation agreement both relate to the marital status of the parties, their substance is significantly different. A court in an action for divorce does not have jurisdiction to settle the property rights of the parties to real estate. Md. Code, Courts and Judicial Proceedings Article § 3-603; Flage v. Flage, 35 Md. App. 619, 371 A. 2d 729 (1977). Mr. Bell’s threats of a civil suit for divorce were unrelated to the dispute over the property and were made to obtain Mrs. Bell’s signature on an agreement.

Even though the chancellor concluded that there was no wrongful conduct he went on to note in his opinion that even if the actions were considered wrongful, they did not deprive Mrs. Bell of her free will, citing Treffinger v. Sterling, supra. In support of this finding he noted that Mrs. Bell actively negotiated with Mr. Bell concerning various provisions in the agreement. At one point in the conversation she stated:

“Umn, I’m just trying to get you know as much as I can which is, you have to admit, you’d do the same thing.”

Although there was testimony that Mrs. Bell was extremely upset after the agreement was signed, there was other testimony to the contrary. The chancellor considered this evidence and concluded:

“[T]he negotiations and the tenor of the parties’ meeting indicate quite clearly that the Plaintiff, in order to avoid an embarrassing incident involving her and close friends, freely and voluntarily negotiated with her husband.”

The question of whether Mrs. Bell was deprived of her free will was one of fact and as there is ample evidence to support this finding, we are unable to say it was elearly erroneous. Md. Rule 1086. In other words, there is no rule of law that precludes a woman from giving away a substantial portion of her property to save her reputation, if it is her voluntary act. Although on the evidence we may have found the act involuntary, we must accept the chancellor’s findings because of his superior position to make this subtle distinction.

The appellant also argues the chancellor erred in excluding the testimony of Ingrid Gibson as to what Mrs. Bell told her immediately after the transaction in question. The record shows that after the deeds and the agreement were signed at a nearby notary’s office, both parties returned to the appellee’s place of business about an eighth of a mile away. There the appellee wrote a check to the appellant for $15,000 and they discussed arrangements for dinner that evening. The appellant left and telephoned her friend, Ingrid. After the conversation, the appellant drove five or ten minutes to meet her at Roy Rogers Restaurant. Mrs. Bell testified that at the time of the conversation she was scared. Ingrid Gibson testified as follows:

“Q. About how long was it from the time of the phone call until you met at Roy Rogers?

A. I would say about five or ten minutes.

Q. When you saw Mrs. Bell did you notice anything unusual about her physical appearance?

A. Yes, I did.

Q. What was that?

A. She was crying, she was visibly upset. She was shaking and she had a very difficult time explaining to me what was wrong.

Q. Did you have some conversation with her at Roy Rogers?

A. Yes, I did.

Q. Could you relate what she told you in reference to what happened to her earlier in the day?'

Mr. McDanald: Objection.

[Sustained].”

The appellant argues that the statement was admissible as part of a spontaneous declaration citing Patterson v. B. & O. R.R. Co., 133 Md. 276, 280, 105 A. 159 (1918), and 6 Wigmore on Evidence, § 1750 (Chadbourn Rev. 1976). In order for the statement to be admissible under the spontaneous declaration exception to the hearsay rule the statement must have been made in response to a startling occurrence and before there has been time for reflection. Moore v. State, 26 Md. App. 556, 338 A. 2d 344 (1975), cert. denied, 276 Md. 747; Wigmore, supra.

In Moore v. State, supra, at 566-67, we said:

“A case such as this illustrates the wisdom of reposing in the trial judge, the man upon the scene, the ultimate discretion as to admissibility. It is he who can best assess the need and can best assess the circumstantial guarantees of trustworthiness. As was stated in McCormick, Law of Evidence (1st Edition 1954), at 562:
‘[T]he trial judge has the duty to consider the circumstances under which the declarations were made and to determine (largely in his discretion) whether they were uttered spontaneously or designedly with a view to making evidence.’ ”

As we have indicated, the chancellor found on the merits that the appellant did not act under duress or undue influence. We have accepted his finding because there was evidence to support it. In like manner we cannot say that he was in error in excluding the evidence. There was evidence to support the finding that she was not under stress at the time she made the statement to Ingrid Gibson.

We do not reach the question of ratification.

Decree affirmed.

Appellant to pay the costs.

      . The property Mr. Bell received had a gross value of $597,000 but was subject to mortgages totalling $434,339.

      . We are aware that some cases in other jurisdictions have created a presumption of invalidity where the consideration given is grossly disproportionate to the consideration received or is otherwise unfair. See Le Bert-Francis v. Le Bert-Francis, 194 A. 2d 662 (D.C. 1963) (where separation agreement is unfair it is presumed to be invalid and the burden is on the party seeking to enforce it to prove otherwise); Demaggio v. Demaggio, 317 So. 2d 848 (Fla. App. 1975) (presumption of fraud created where agreement was grossly disproportionate, husband concealed assets, and wife was unrepresented by counsel); Davis v. Davis, 24 Ohio Misc. 17, 258 N.E.2d 277 (1970) (where provisions are disproportionate burden is on party seeking to uphold agreement to show there was full disclosure and the agreement was signed voluntarily).
      In the absence of a confidential relationship, we see no reason to shift the burden of proof because the parties were husband and wife and one of them made a bargain which now seems unfair, but is not grossly unfair.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    BETTY BOWERS and HOBART BOWERS v. STATE OF MARYLAND
    [No. 101,
    September Term, 1977.]

      Decided November 10, 1977.

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

      Harriette Cohen, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Ronald Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.

        Reporter’s Note: Powers, J., participated in the hearing of this case and the decision thereof, but retired before the opinion was filed.

   Melvin, J.,

delivered the opinion of the Court.

On August 18,1976, the appellants, Betty Bowers (Betty) and Hobart Bowers (Hobart), were found guilty by a jury in the Circuit Court for Anne Arundel County of violating Maryland’s Child Abuse Statute. The convictions arose from an incident that occurred on February 25, 1976, in which Betty’s 15 year old daughter, Patricia, was beaten with a belt when Betty and Hobart learned that she had played hookey from school that day. At the same trial, Hobart was also found guilty of raping Patricia on February 23, 1976. Following the trial, the trial court granted Hobart’s motion for a new trial as to the rape charge. The trial court then accepted Hobart’s guilty plea to a charge of carnal knowledge contained in a separate information filed by the State’s Attorney and the rape charge was nol prossed. The carnal knowledge charge arose out of the same incident that allegedly occurred on February 23,1976.

Timely appeals were filed by both appellants from the judgments of conviction of child abuse. No appeal was filed by Hobart from the judgment of conviction of carnal knowledge. Appellants present six questions for our review. Two of the questions relate solely to Hobart’s conviction of carnal knowledge. As he took no appeal from that conviction, those questions are not properly before us and we do not consider them. The other four questions will be considered in the order presented.

I

“Is the Maryland Child Abuse Statute .. . unconstitutionally vague and indefinite?”

The statute under consideration is codified in the Maryland Code (1976 repl. vol.) as § 35A of Article 27. In relevant part it provides as follows:

“(a) Penalty. — Any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years who causes abuse to such minor child shall be guilty of a felony and upon conviction shall be sentenced to not more than fifteen years in the penitentiary.
(b) Definitions. — Wherever used in this section, unless the context clearly indicates otherwise:
7. ‘Abuse’ shall mean any: (A) physical injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts by any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for supervision of a minor child . ... ”

(a)

Both appellants contend that the words “cruel or inhumane treatment” contained in the definition of “abuse” are not sufficiently definite to define the conduct proscribed, and that “those terms have a wide range of [dictionary] meanings and that men of common intelligence could clearly differ as to what sort of conduct falls within the various meanings .... ”

The test for determining whether a statute is so vague as to be unconstitutional under the due process clause has been set out by this Court in Lashley v. State, 10 Md. App. 136, 142, 268 A. 2d 502 (1907), cert. denied, 259 Md. 733 (1970), appeal dismissed, 402 U. S. 991 (1971), wherein Chief Judge Murphy (now Chief Judge of the Court of Appeals) said:

“The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed of what State law commands or forbids; consequently, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Lanzetta v. New Jersey, 306 U. S. 451; Connally v. General Construction Co., 269 U. S. 385.”

While it is settled that a “reasonable degree of certainty in legislation” is required, it is equally well settled that, as we said in Bacheller v. State, 3 Md. App. 626, 632, 240 A. 2d 623 (1968), “[t]he formulation of statutory language is, at best, an inexact exercise vulnerable to varying degrees of doubt and ambiguity”. As the Court of Appeals said in State v. Magaha, 182 Md. 122, 32 A. 2d 477 (1943):

“It is desirable, of course, that penal statutes and ordinances should be expressed in language as specific as the subject matter will permit, but it is obviously impossible to define some types of crime by a detailed description of all possible cases that may arise. The prohibited act may be characterized by a general term without definition, if the term has a settled common-law meaning and a commonly understood meaning which does not leave a person of ordinary intelligence in doubt as to its purport, even though there may be in the definition of the term an element of degree as to which estimates of reasonable men might differ.” 182 Md. at 129-130.

Consonant with these principles is the following language of the Supreme Court in Jordan v. De George, 341 U. S. 223, 231 (1951):

“We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 280 U. S. 396, 399 (1930). Impossible standards of specificity are not required. United States v. Petrillo, 332 U. S. 1 (1947). The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 269 U. S. 385 (1926).”

Applying the above principles to the case at hand we hold that the terms “cruel or inhumane treatment” in the context of the statute as a whole are not so vague and indefinite as to render the statute void for vagueness. Each term has “a settled common-law meaning and a commonly understood meaning which does not leave a person of ordinary intelligence in doubt as to its purport, even though there may be in the definition of the term an element of degree as to which estimates of reasonable men might differ.” State v. Magaha, supra.

In State v. Fabritz, 276 Md. 416, 348 A. 2d 275 (1975), the Court of Appeals construed the statute, as amended in 1973, as reflecting the legislative intent to broaden the area of proscribed conduct in child abuse cases. In Fabritz, the Court held that where a mother’s failure to obtain medical assistance for her child, known by the mother to have been severely beaten by another, caused the child to sustain bodily injury additional to and beyond that inflicted upon the child when originally assaulted, the evidence was sufficient under the circumstances to permit a conviction under the statute. The Court said:

“... [I]n these circumstances Virginia’s treatment of Windy was ‘cruel or inhumane’ within the meaning of the statute and as those terms are commonly understood.” (Emphasis added.) Id. at 426.

Thus, although the constitutionality of the statute was not an issue in Fabritz, we regard the above quoted statement by the Court as authority for the proposition that the terms “cruel or inhumane treatment” as used in the statute do indeed have a commonly understood meaning. Their use to describe the forbidden conduct does not, therefore, render the statute void for vagueness. Jordan v. De George, State v. Magaha, both supra. Our conclusion in this regard is fortified by decisions in other jurisdictions where similarly or even more vaguely worded child abuse statutes have survived void-for-vagueness attacks. See, e.g., State v. Fahy, 201 Kan. 366, 440 P. 2d 566 (“ . . . [S]uch words as torture, beat, abuse, cruel punishment or inhuman punishment are hardly vague”. (Emphasis supplied)); Campbell v. State, 240 So. 2d 298 (Fla.) (“unnecessarily or excessively chastises”); People v. Curtiss, 116 Cal. App. Supp. 771, 300 P. 801 (“unjustifiable” treatment of child); Hunter v. State, 360 N.E.2d 588 (Indiana) (“unnecessary” punishment or infliction of pain).

(b)

As part of their void-for-vagueness argument, appellants further contend that the statute “does not clearly define or name the class of persons to whom it applies”. By its terms the statute applies to, “Any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child . . . . ” This language is sufficiently explicit, we think, to inform a person of ordinary intelligence whether or not he comes within the class of persons against whom the statute is directed, and this is enough to defeat a claim of unconstitutional vagueness.

Appellants in their brief suggest, “An argument could be made that the language is so broad that it would apply to a babysitter, as well as to a 16 year old boy on a date with a 15 year old girl.” To this argument we find apposite what was stated by the Supreme Court of Illinois in People v. Vandiver, supra at 683:

“To support his contention that the statute is vague the defendant poses several questions such as: Would a parent be violating the statute if he permitted his child to play in a busy street or to take part in sports such as boxing or mountain climbing, etc.?’ We need not be concerned with the hypothetical situations posed by the defendant or the many other situations which may present questions as to the applicability of the statute. These borderline facts are not involved in this case. This court will consider the validity of a statutory provision only at the instance of one who is directly involved thereby unless the unconstitutional feature is so pervasive as to render the entire act invalid. (People v. Reiner, 6 Ill. 2d 337, 341, 129 N.E.2d 159; Huckaba v. Cox, 14 Ill. 2d 126, 150 N.E.2d 832; Edelen v. Hogsett, 44 Ill. 2d 215, 254 N.E.2d 435.) The hypothetical situations do not involve this defendant nor this case and the validity of the statute in light of the same will therefore not be considered.”

In summary, we hold that the Maryland Child Abuse Statute is not unconstitutional for the reasons assigned by the appellants.

II

“Was the evidence insufficient to convict Appellant, Betty Bowers, of child abuse?

At the conclusion of all the testimony, the trial judge denied Betty’s motion for judgment of acquittal. On appeal Betty contends the ruling was in error. After a careful review of the record, viewed in the light most favorable to the State, we agree with her contention. To help explain our conclusion, we briefly summarize the evidence as follows. Prior to February 25, 1976, Betty and Hobart had lived together as man and wife without benefit of marriage for some twelve years. Patricia, Betty’s daughter by another man, was about five years old when Hobart came to live with her and her mother. On February 25, 1976, Patricia, who was then fifteen years old, played hookey from school for part of the day, spending the time with a boyfriend on a parking lot “getting high” on drugs. This was not the first time she had skipped school. As a disciplinary measure for the prior occasions Patricia had been denied “telephone privileges”. On February 25, 1976, when Betty returned home from work and learned that Patricia had again skipped school, she struck Patricia “two or three” times on the legs with a leather belt. Patricia described the incident as follows:

“Q. Can you describe how she hit you, I mean, did she hit you like this, a little tap, did she move her arm all the way back or partially back?

A. Yes, she moved her arm back like that to hit me.

Q. Did it hurt?

A. Not really.

Q. Where was Mr. Bowers?

A. Standing there watching.

Q. What was your mother saying to you as she hit you?

A. She was saying to me ‘now, when you go back to school you’re going to go to school, aren’t you? I says ‘yes’, she said ‘you’re not going to hook any more classes, are you’, and I said ‘no’. And then he — my stepfather said ‘let me have the belt now’, and he took it and he began to hit me.”

Patricia further testified that Hobart then proceeded to strike her with the belt about her back, neck, arms and legs. He hit her “around fifteen — twenty times”.

The State does not contend that Betty’s actions in striking her daughter “two or three” times was, under the circumstances, “cruel or inhumane”. Rather, it is argued that Betty is guilty as a principal because by giving up the belt to Hobart she “instigated or encouraged” the brutal attack that followed and did nothing to stop it. The evidence does not support the argument. Patricia, the State’s principal witness, testified that although her mother did not physically attempt to restrain Hobart, she twice told him to stop “after she seen he was really going to hurt me”. Moreover, there is no evidence to show that Betty could have reasonably foreseen that Hobart would beat Patricia as severely as he did.

“Under the common law, parties to a felony are classified as principals or accessories. Principals in the first degree' are those who commit thé deed as perpetrating actors, either by their own hand or by the hand of an innocent agent. Persons present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it, are principals in the second degree .... But in this State there is no practical distinction between principals in the first and second degree.” Butina v. State, 4 Md. App. 312, 318, 242 A. 2d 819 (1968).

In the circumstances, we think the evidence was legally insufficient to enable the jury to find beyond a reasonable doubt that Betty, though present at the time, aided or abetted Hobart in his “cruel or inhumane treatment” of Patricia. As we said in Coleman v. State, 4 Md. App. 386, 390, 243 A. 2d 24 (1968):

“It is well settled that the presence of the accused at the immediate and exact spot where a crime is in the process of being committed is a very important element that may be considered in determining guilt. Equally well settled is the proposition that such presence, standing alone, is insufficient to establish participation in the perpetration of the crime .... ” (Emphasis supplied.)

As Betty’s motion for judgment of acquittal was wrongfully denied, her conviction will be reversed.

Ill

“Was the evidence insufficient to convict Appellant, Hobart Bowers, of child abuse?

On this issue Hobart does not contend that his actions toward Patricia do not fall within the conduct proscribed by Article 27, § 35A. His sole contention here is that “the State failed to prove that he had a parental or custodial relationship to Patricia sufficient to bring him within the definition of Sec. 35A”. He points to the fact that although he had lived with Patricia and Betty since 1964, he had no “legal” relationship to either of them on February 25, 1976, the date he beat Patricia, and contends that his “official status was simply that of Betty’s paramour”. At the same time, however, he concedes that the statute was meant to encompass, at least, those who have “quasi-parental authority, i.e., those who stand in loco parentis to the minor”.

Without attempting to define the limits of all relationships that may exist to bring one within the statute’s application, we agree with the appellant that the proscriptions of the statute do apply to one who stands in loco parentis to the minor who is abused.

“A person is said to stand in loco parentis when he puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption. Some definitions add that he must discharge those obligations, as well as assume them . . . .”
“The relationship of in loco parentis is established only when the person intends to assume toward the child the status of a parent. It has been said that when a person takes a child not his own into his custody as a member of his own family, this constitutes the clearest evidence of consent to stand in loco parentis. However, it has been held that the fact that a child was part of a man’s household and received its support entirely from him is not enough to establish an in loco parentis relationship; it must also be shown that the man intended to assume parental responsibility. The assumption of the parental relationship is largely a question of intention, which, it has been said, should not be lightly or hastily inferred, but which may be shown by the acts and declaration of the person alleged to stand in that relation. Its existence is normally a factual question, to be determined on the trial.” (Emphasis added.) 59 Am. Jur. 2d Parent and Child, § 88.

There is evidence in the case that Hobart lived with Betty on a continuous basis as husband and wife for at least ten years; that during that time he regarded Patricia as part of “my family”; that he “accept[ed]” her “like one of .. . [his] own children”; that he “provided” for her and had undertaken to discipline her on prior occasions (though not with the severity of the February 25th incident). We think this evidence and the inferences that may be drawn therefrom were clearly sufficient to permit the jury to find beyond a reasonable doubt that at the time Hobart beat Patricia he was in loco parentis to her. The trial judge was correct in denying his motion for judgment of acquittal.

IV

“Did the trial court err in allowing the State during rebuttal to produce extrinsic evidence solely for the purpose of impeachment?”

The short answer to this issue is that it is not properly before us for review. The record does not reflect that the appellants made any objection below to the question that elicited the now challenged evidence. Nor was there any motion to strike such evidence. We therefore do not consider its admissibility. Md. Rule 1085; Lohss v. State, 272 Md. 113, 321 A. 2d 534 (1974). We would add that were the question properly before us we would hold the error, if any, in admitting the testimony was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976).

Judgment of conviction against Betty Bowers under Indictment No. 18,365 reversed.

Judgment of conviction against Hobart Bowers under Indictment No. 18,366 affirmed.

Costs to be paid one-half by Hobart Bowers and one-half by Anne Arundel County.

      . Betty and Hobart were married approximately one month before the trial below.


author: Menchine, J.,

text:
    DANIEL J. PLACIDO et al. v. CITIZENS BANK AND TRUST COMPANY OF MARYLAND et al.
    [No. 128,
    September Term, 1977.]

      Decided November 10, 1977.

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

      Jack H. Olender and Sherman L. Cohn, with whom were Josiah Lyman and Joseph Lyman on the brief for appellants Placido, Laz and Bednarik. Donald Joseph Sheehy for appellant Edmond R. Leach, II.

      Ronald A. Baradel, with whom were Hartman & Crain on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Two general and six limited partners in Suitland Medical Arts Building, a Limited Partnership (Suitland), doubtless envisioned their proposed edifice as a joy in their youth and a support in old age. Unhappily, its completion brought only the “comfort of the miserable to have partners in their woes.”

Suitland in 1971 contracted for the construction of a building, the construction financing of which was to be supplied by Citizens Bank and Trust Company of Maryland (Citizens) in the maximum sum of $1,125,000.00. Upon completion of the building permanent financing was to be supplied by Monumental Life Insurance Company (Monumental) but with a contingency, the non-occurrence of which would lessen the amount of its total obligation. Construction financing by Citizens required it to advance $1,125,000.00 without limitation. On the other hand, Monumental’s commitment for permanent financing in that amount was conditioned upon proof of certain leasing contingencies. Monumental’s absolute obligation for permanent financing, in the absence of fulfilled contingencies, was limited to the sum of $956,000.00.

This circumstance created a condition whereby Citizens might be required to advance $169,000.00 more than the permanent financing by Monumental would return to it upon completion of the building. Otherwise stated, Citizens undertook a risk that it may become a creditor secondary to Monumental to the extent of $169,000.00 if the leasing contingencies could not be met.

For protection of its potentially greater obligation, Citizens demanded and received as additional security a demand note for $169,000.00 executed in behalf of the partnership, and endorsed by the general and limited partners as individuals. Such a note was made and endorsed on November 11,1971.

At the time of its execution and endorsement all parties knew that it was not certain whether full use of Citizens obligated sum would be required or whether, upon completion of the building, the contingencies upon which full permanent financing by Monumental depended would have been met. In due course, however, it became clear that: (a) the leasing contingencies would not be met; (b) Monumental’s permanent financing would be limited to $956,000.00; and (c) Citizens would be required to advance the $169,000.00 to complete the building.

Thus it was that on March 27, 1973, John B. Stauch and Ronald B. Sellers, the two general partners, were called to the bank. After being apprised that Citizens was required to advance $169,000.00 for Suitland’s account, the face of the note was altered by striking out the date November 11, 1971 and inserting the date March 27, 1973 thereon. Stauch and Sellers placed their signatures at the top of the note near the changed date.

There was evidence showing that none of the appellants who had placed their endorsements on the reverse side of the note on November 11, 1971, were aware of and none consented to or ratified the alteration of the date of that note.

On January 21,1974, Citizens filed suit against the general and limited partners in the Circuit Court for Prince George’s County. The declaration alleged that appellants had “on or about March 27, 1973 ... promised to pay the sum of . . . $169,000.00.” In due course judgment in favor of Citizens against all eight partners, both general and limited, were entered. Four limited partners, namely, Daniel J. Placido, Edmond R. Leach, John S. Bednarik and Andre Laz, have appealed from the judgment entered against them. They have appealed as well from judgment entered against them in favor of John E. Stauch, one of the general partners under count I of Stauch’s cross-claim for contribution.

The manner in which the judgments appealed from were entered against the appellants was quite unusual, i.e., by the grant of summary judgment after the plaintiff (Citizens) had offered testimony in seven days of trial and before any evidence had been presented by or on behalf of the defendants-appellants. Appellants contend that the grant of summary judgment under such circumstances was erroneous both procedurally and substantively and should be reversed, with the ease remanded for a new trial wherein the appellants would be accorded the right to offer evidence.

The unusual posture of the case as it reaches this Court compels an extensive recitation of the circumstances preceding the grant of summary judgment.

Citizens filed a motion for summary judgment supported by affidavit along with its declaration. The appellants filed amended affidavits which opposed the granting of the motion.

The facts recited in the amended affidavit of the appellant Placido were as follows:,

“My name is Daniel J. Placido and I am competent to testify in the matters stated herein. I am a defendant in this action. I am a limited partner in the Suitland Medical Arts Building Associates, a Maryland limited partnership. Based on my personal knowledge and information I did not know that the note upon which plaintiffs action is based was altered from a date of November 11, 1971 to March 27,1973.1 did not give my consent to such alteration by the plaintiff, Citizens Bank and Trust Company of Maryland, or by John E. Stauch or Ronald B. Sellers, general partners of the limited partnership.
“I further state that this alteration of the promissory note from a date of November 11, 1971 to March 27, 1973, was not only totally unknown to me, but that I never acquiesced in this alteration nor did I ever at any time by any act or deed, ratify the action of the Bank, Stauch or Sellers in altering the note.
“I further state that based on my personal knowledge and information no money or other consideration was advanced by the plaintiff after November 11, 1971 and prior to the alteration of said date to March 27, 1973; that between November 11, 1971 and March 27, 1973 I made substantial contributions in money to the Suitland Medical Arts Building Associates and that there had been material changes in the financial condition of the limited partnership during this period of more than sixteen months. Further, on March 27, 1973 I would not have signed as an endorser of the note upon which the plaintiff sues and would not have agreed to the advancement of any money to the partnership for which I would be personally liable.”

The facts recited in the amended affidavit of the appellant Bednarik were identical with the above. The amended affidavits of the appellants Laz and Leach, although in slightly different form, were substantially the same as the above and presented no other suggested factual dispute.

On this state of the record Citizens’ motion for summary judgment came to hearing before Judge William B. Bowie. In the course of a written opinion dealing, inter alia, with the issue of summary judgment, Judge Bowie denied the same, saying in pertinent part:

“As to the Motion for Summary Judgment itself, defendant guarantors [endorsers] maintain that the change of date on the face of the instrument constitutes a material alteration. The original note was dated November 11,1971, and was endorsed by the several defendants. The conflict arises over determining who, among all the endorsers, consented to the imposition of the new date of March 27,1973. Defendants refer the Court to 4 Am Jur 2d, Alteration of Instruments, Section 40, where it is stated:
‘As a general rule of law ... a change in the date of an instrument of which a date is a necessary or usual part, made after its execution and delivery, whether from an earlier to a later date or vice versa, is a material alteration .... The date is material, because the time of payment and the bar of the statute of limitations depend thereon.’
Furthermore, it is stated in Article 95B, Section 3-407 of the Annotated Code of Maryland, Comment 1, that ‘. . . any change in the contract of a party, however slight, is a material alteration . . . .’ In Mason v. Henderson, 14 Md. App. 370, the Court states: ‘Any alteration is material which changes the contract of any party thereto in any respect, including such change in writing as signed, by adding to it or by removing any part of it ... .’ In our matter, the change in date extends the obligation of the endorsers for an additional 16 months and we are unable to presume, with nothing further, that they still intended to borrow the money after such a substantial lapse of time. By changing this date, the effect is to change the date of issue, presumed or otherwise, and seems to constitute a material alteration. The simple problem left is to determine whether the endorsers under the original note consented to that change. Otherwise, plaintiff can only sue on the note ‘in its original tenor’, Article 95B, Section 3-407(2)(b). The plaintiff has chosen to sue on the note with the later date. The alteration appears on the face of the instrument but the consent of the endorsers other than defendants Sellers and Stauch, do not so appear. This gives rise to a genuine dispute as to a material fact as to whether there was proper consent on behalf of the remaining endorsers and therefor summary judgment should be denied.”

It was in this setting that the case came to trial before Judge James H. Taylor. At the conclusion of plaintiff Citizens’ case counsel for defendants — appellants here — filed motions to dismiss. After hearing arguments of counsel, Judge Taylor denied appellants’ motion to dismiss.

Citizens thereupon moved for summary judgment, urging that there was no genuine dispute as to any material fact. Judge Taylor granted Citizens’ motion for' summary judgment, saying in the course of his oral opinion:

“I don’t believe that consent, ratification, or estoppel plays any part in these proceedings as far as this case is concerned. Although the addition is an alteration, it did not affect a change in the contract of the parties, and as a consequence, is not material under our case law. The note speaks for itself in that it’s a promise to pay $169,000 with certain set forth interest on demand. Since there was not a fraudulent and/or material alteration then I don’t see how we can possibly conclude that these defendants were discharged. Thus, the plaintiffs would be entitled to judgment on the instrument. Oral testimony would not be admissible to vary the terms of the writing so we are left with the note, as the Court sees it, valid and viable as against the defendants, a note the terms of which cannot be altered by any oral testimony.
“Inasmuch as there is no denial of the signature of these parties on this note, I’ve got to ask where is there a factual issue cognizable by the Court and material to the question of liability on this note. I think my colleague saw the same thing that I see and the only thing that caused him to deny the summary judgment at that time was the question of consent. I don’t find that issue relevant because I don’t feel and do not find that we need to go that far. The alteration did not affect the agreement. I see no reason to deny the cross-plaintiff’s motion for summary judgment. I will grant the motion for summary judgment... .”

In short, Judge Taylor granted the summary judgment that previously had been denied by Judge William B. Bowie.

Although a separate brief by one of the appellants states the issues before us in somewhat different style, the following submitted issues cover the contentions of all appellants:

“1. Whether a trial judge, consistent with due process, may grant a plaintiffs motion for summary judgment at the end of the plaintiffs case-in-chief, considering the plaintiffs evidence and denying the defendants a day in court for the presentation of their evidence.
2. Whether the law-of-the-case doctrine as it is applied in Maryland permits a trial judge to overrule and alter the law set forth at an earlier stage by a different trial judge in the same case.
3. Whether the law of Maryland discharges an endorser on a promissory note when there has been an alteration of the note, without the consent of the endorser, so as to change the date of issue of a demand note and thus to enlarge significantly the time in which the endorsers are vulnerable under their endorsements.
4. Whether an endorser is liable for contribution to the maker of a promissory note where the maker is also an endorser.”

Time of Entry of Judgment

Under Maryland Rule 610 a. 1., a motion for summary judgment may be made at any time. Although we have been referred to no case and have found none wherein the motion for summary judgment was made during the actual course of a trial, we find nothing in Rule 610 prohibiting entry of summary judgment at such a point in time if it then appears that there is no genuine dispute as to any material fact. Unnecessary use of judicial time need not be continued merely because it had earlier been expended. Cf. Myers v. Montgomery Ward & Co., Inc., 253 Md. 282, 252 A. 2d 855 (1969).

We see no denial of due process in such a course. Rule 610 d. 2. reads as follows:

“d. Proceedings on Motion.
2. Affidavit of Defense Not Available.
Should it appear from the affidavits of a party-opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition,, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as justice may require.”

In the context of this litigation the issue whether due process of law has been denied is governed by the rule restated in Blue Cross v. Franklin Sq. Hosp., 277 Md. 93, 352 A. 2d 798 (1976), namely, “Generally, due process requires that a party to a proceeding is entitled to both notice and an opportunity to be heard on the issues to be decided in a case.” 277 Md. at 101, 352 A. 2d at 804.

The record shows that a clear opportunity was accorded to the appellants at the time of the motion to permit them to suggest the existence of an additional material factual dispute. They failed to do so.

There was, in short, no asserted factual dispute before the trial court beyond the allegations contained within the several previously filed amended affidavits.

We see no denial of due process.

The trial judge was required to assume the truth of all facts encompassed within the affidavits of the appellants and to accord to them all reasonable inferences deducible therefrom in making a determination whether the right of Citizens to judgment should be declared as a matter of law. This Court is required to do likewise.

Judge Finan, for the Court of Appeals, in Brown v. Suburban Cadillac, Inc., 260 Md. 251, 255, 272 A. 2d 42, 44 (1971), said:

“An appellate court, in reviewing a motion for summary judgment, should be concerned primarily with deciding whether or not a factual issue exists, and in this regard, all inferences should be resolved against the party making the motion. Hilton v. Williams, supra, at 288; Lipcomb v. Hess, supra, at 118; Lawless v. Merrick, supra, at 70. Be that as it may, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact. Foreman v. Melrod, 257 Md. 435, 441, 263 A. 2d 559 (1970); Fishman Const. Co. v. Hansen, 238 Md. 418, 422-23, 209 A. 2d 605 (1965), and cases cited therein. And, the opposing party must make such a showing by facts which would be admissible in evidence. Maryland Rule 610 b; Foreman v. Melrod, supra; Fishman Construction Co. v. Hansen, supra; Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, 100, 122 A. 2d 563 (1956).” (Footnote omitted.)

In brief and argument in this Court appellants have offered bald allegations of fraud between Citizens and building contractor Baldi (subsequently a director of Citizens). The inadequacy of such bald allegations to prevent the award of summary judgment is beyond question. Tri-State v. Middleman, 238 Md. 41, 47, 207 A. 2d 499, 502 (1965).

We shall, accordingly, give full consideration to the facts set forth in the several affidavits suggested as requiring rejection of summary judgment but in the absence of any suggestion of admissible evidence of fraud in the obtention of the endorsements of the appellants, or fraudulent conduct in the alteration of the date, shall not give consideration to the bald allegation of fraud.

Law of the Case Doctrine

Appellants contend that the earlier decision of Judge Bowie, denying summary judgment, had a binding effect upon Judge Taylor under the “law of the case doctrine.” They rely upon Philpot v. Gelston, 126 Md. 589, 95 A. 485 (1915); Cumberland Coal & Iron Co. v. Sherman, 20 Md. 117 (1863), and Thomas v. Doub, 1 Md. 252, 324-25 (1851-52). We find their reliance misplaced.

Thomas v. Doub dealt with a chancellor’s exercise of discretion that was “not in the power of [the appellate] court to remedy.” (1 Md. at 324.)

Cumberland Coal & Iron Co. v. Sherman dealt with a second appeal in which the appellate court, asked to reverse its prior decision in litigation between the same parties, declined to do so, saying: “ ‘Where, upon appeal, the Appellate Court decides a question presented by the record, and the cause is remanded, the decision is binding both upon the court below and the Appellate Court, and cannot be reversed upon a second appeal.’ ” (20 Md. at 131.)

Philpot v. Gelston also dealt with a third appeal by which earlier appellate decisions involving the same parties were sought to be reversed. The Court declared: “If the Court of Appeals have disposed definitely of the subject, and fully and explicitly determined the rights of the parties, this Court ought to yield to the judgment, whatever our individual opinions may be of its correctness.” (126 Md. at 595, 95 A. at 487.)

Assuming, without deciding, that the “law of the case doctrine” continues to be applicable where determination of the rights of parties have been established by final judgment, either by appellate decision or by unappealed nisi prius decision, we reject its application to non-dispositive pre-trial rulings by a judge of equal station.

Although expressly declared to be a question not required to be answered in Insurance Company v. Thrall, 181 Md. 19, 27 A. 2d 353 (1942), we find the language used in that case so persuasive upon the issue now clearly before us, that we adopt it without qualification. Judge Sloan, speaking for the Court of Appeals in Thrall, said:

“This naturally suggests the question as to whether a trial judge is bound at the trial to accept the rulings on the pleadings which have been passed upon by another judge. Trial courts are bound by the decisions of the Court of Appeals, until they may be overruled. Until then they are precedents to be followed and obeyed. There is no decision or statute which requires one nisi prius judge to accept as final and conclusive the decisions on the law before trial of another judge or court. There seems to be some sense, however, in the idea that the trial judge, who occupies a position of greater responsibility, should have the right to reject a prior decision of a judge of equal jurisdiction in the same case which he may believe to be erroneous.” 181 Md. at 22-23, 27 A. 2d at 355.

This question was the subject of an in depth discussion by Judge Lowe for this Court in Driver v. Parke-Davis Co., 29 Md. App. 354, 348 A. 2d 38 (1975), in the course of which he said at 362 [42]:

“Our own Court ‘. .. has never . .. doubted that a judge presiding at a trial, unless specifically precluded, is free at any time during the trial to reconsider any prior ruling in the case, whether made by him or by another judge.’ Layman v. State, 14 Md. App. 215, 230. In Layman we recalled that in Walker v. State, 12 Md. App. 684, 689, we had held that:
“While we agree that a trial judge may accept the pre-trial finding as res judicata, and is under no obligation to readjudicate a settled question, we do not agree that he need feel bound by a pre-trial ruling with which he is in strong disagreement.’ And in State v. Coffield, 17 Md. App. 305, 314, we observed that it was error for one trial judge to feel bound by another trial judge’s opinion, relying on our authority in Walker and Layman.

Judge Lowe added at 362 [43]:

“The authority of a judge to reverse the decision here at issue of a fellow judge of the same court is clear. When that authority is exercised, the question becomes whether to do so was a proper exercise of discretion.”

We find no abuse of discretion here.

Alteration as Discharging Endorsers

In the consideration of the question whether Citizens is entitled to summary judgment as a matter of law, we are obliged to accept as true that the date on the demand promissory note upon which appellants were endorsers was altered by Citizens by striking out the date November 11, 1971 and inserting March 27, 1973, (a) without the knowledge and consent of the endorsers; and (b) without subsequent ratification of such alteration by the endorsers.

The circumstances under which an endorser will be discharged by alteration of a negotiable instrument are fixed by Md. Code Ann. Com. Law § 3-407 (1975) that reads in pertinent part as follows:

“§ 3-407. Alteration.
(1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in
(a) The number of relations of the parties; or
(b) An incomplete instrument, by completing it otherwise than as authorized; or
(c) The writing as signed, by adding to it or by removing any part of it.
(2) As against any person other than a subsequent holder in due course
(a) Alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense;
(b) No other alteration discharges any party and the instrument may be enforced according to its original tenor, or as to incomplete instruments according to the authority given.”

Judge Taylor concluded that alteration of the date of this demand note from November 11, 1971 to March 27, 1973, under the circumstances of this case, was not a material alteration within the meaning of the statute. We agree.

There is a surface appearance that the altered date would change the contract of a party by extending the period of liability of the endorsers beyond that date to which, in the absence of such change, a plea of limitations successfully might be interposed. Analysis of the facts of this case, however, demonstrates that such a contention is illusory rather than real.

In the subject case the action was commenced within three years of the date originally placed upon the instrument. The endorsers would have been unable to interpose a plea of limitations even if the original date had been left unchanged. They would, in short, have been liable to Citizens even if no change had been made. Under such circumstances it is apparent that the change was not material. We do not reach the question whether the change may have been material had suit been deferred to a time beyond three years from the date entered upon it at the time of its making.

The evidence shows that the monies were in fact advanced by Citizens on the date ultimately placed upon the document. It is crystal clear that the endorsers knew, at the time of the execution of their endorsements upon the note, that advance by Citizens of the monies required by its tenor would not occur until some date subsequent to that appearing upon the face of the document. The advance was made within three years from the execution date of the instrument. Suit was instituted within three years of that date. The alteration was not, in those circumstances, a material alteration changing the contract of any party. See Official Comment to § 3-407 n. 1; Katski v. Boehm, 249 Md. 568, 241 A. 2d 129 (1968).

The motion for summary judgment in favor of Citizens against appellants was properly granted.

Cross-Claim of Endorser for Contribution

The cross-claim of John E. Stauch against the appellants and other co-endorsers of the instrument was grounded upon his and their agreement to be jointly and severally liable for its payment. It is patent, accordingly, that Stauch was entitled to contribution from his co-endorsers, if at all, only upon payment by him of Citizens’ note and then only to the extent of the obligation shared by all solvent endorsers. Billingsley v. Kelly, 261 Md. 116, 129, 274 A. 2d 113, 120-21 (1971); Jackson v. Cupples, 239 Md. 637, 640, 212 A. 2d 273, 274-75 (1965).

The record extract in the subject case fails to establish that Stauch made any payment to Citizens either upon the note or upon the judgments extended against the several endorsers. In such circumstances, the judgment in favor of Stauch against his fellow endorsers was premature.

Motion to Dismiss Appeal

Citizens filed a motion to dismiss the appeal, charging violation of Maryland Rules 1035 b. 7, 1031 a. and 1028 a. Although our examination of the record extract shows extensive departures from the requirements of the cited rules, it does not appear that the appellees were prejudiced thereby. Consequently, the motion to dismiss is denied. East Washington Railway Co. v. Brooke, 244 Md. 287, 223 A. 2d 599 (1966).

Judgment in favor of Citizens against appellants affirmed.

Judgment in favor of Stauch vacated without prejudice to his right to show entitlement to contribution.

Four-fifths of the costs to be paid by appellants; one-fifth to be paid by appellee John E. Stauch.

      . Cervantes, Don Quixote pt. I bk. Ill ch. 10.


author: Gilbert, C. J.,

text:
    ALTON VANN, SR. et ux. v. WILBUR WILLIE et al.
    [No. 145,
    September Term, 1977.]

      Decided November 10, 1977.

      The cause was argued before Gilbert, C. J., and Thompson and Moore, JJ.

      Samuel D. Hill, with whom were Lynn D. Tanner, Jr., and White, Mindel, Clarke & Hill on the brief, for appellants.

      C. Russell Fields, with whom were Charles S. Keyes and Keyes & Simmons on the brief, for appellee Wilbur Willie. Austin W. Brizendine, Jr., with whom were Austin W. Brizendine and Brizendine & Brizendine on the brief, for other appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The Chesapeake Bay and its tributaries are described in a well-known television commercial as “The Land of Pleasant Living.” * It sometimes happens, however, as the instant case evidences, that living in the Bay area can be not so pleasant.

The skeletal scenario of this appeal is relatively uncomplicated. The record discloses that late on the afternoon of August 16, 1973, Alton Vann, Sr. (Vann), the appellant, launched himself on his daily swim in a placid part of Bush River. Vann’s swim was abruptly halted when he was struck by a motorboat. The collision resulted in injury to Vann’s head and right arm.

While the plot line is simplicity itself, the details of the narrative lead to considerable complication. Although the offending motorboat was the property of H.E. Koontz Creamery, Inc., (Koontz), it was kept at Bush River for the use and enjoyment of Koontz’s trusted executive employees. Immediately prior to the injury of Vann, the boat was used by one such employee, appellee, Wilbur Willie (Willie), for water-skiing. Willie had just released the tow line so as to “drop off” near shore when the boat, piloted by Willie’s son-in-law, Richard Varnedoe (Varnedoe), struck Vann.

During the three-year period preceding the collision, Willie and through him, Varnedoe had access to the boat and used it. Neither Willie nor Varnedoe ever received more than cursory instructions on operating the boat. Neither had boating experience prior to 1969 or 1970, and they were not familiar with water safety regulations. Furthermore, neither Willie nor his son-in-law ever availed himself of any courses on boating procedure or safety.

The main stage prop in this drama was an Aristocraft 66 fiberglass boat approximately sixteen (16) feet in length and powered by a sixty (60) horsepower outboard motor. At full throttle, the boat was capable of a land speed equivalent to twenty-five (25) to thirty (30) miles per hour. As with any stereotype villain, the vessel bore an identifying scar. Stretching from the top to the bottom of the windshield, just to the right of the helm, forming a jagged line about one-quarter (V*) of an inch wide was a crack. A storm or accident caused the fracture in the windshield sometime in 1969 or 1970. When the crack occurred and continuing thereafter, George C. Oursler, president of Koontz, and another employee, rejected the idea of replacing the windshield. Instead, they had the crack secured by bolts, nuts, and washers. The washers were described in1 Vann’s brief as being the size of quarters, and they were three (3) or four (4) inches apart, in the right front of the pilot. Oursler testified that the method of repair he chose left the windshield stronger and better able to withstand the bumping action that comes from propelling the boat at high speeds over the wave motion of the water.

The scene now shifts to Alton Vann who, as we have previously noted, was, at the time of the incident, taking his daily late afternoon swim. Vann was habituated to following a set course at approximately the same time each day. Oursler had observed Vann’s swimming on about a dozen prior occasions, but he never warned Vann to stay away from in front of the Koontz property, nor did he alert guests at the Koontz beach house as to Vann’s recurrent jaunts.

On the day of the happening of the impact giving rise to this litigation, Vann chose to swim a slow crawl, a stroke in which he brought one arm and then the other out of the water, with his face submerged on the stroke with his right arm but turned out of the water in order to breathe when he raised his left arm. His kick was a flutter under water. While swimming, Vann noticed a boat on the same side of the river on which he was swimming, but he paid no attention. He did not check again to see what course the vessel was following, although he did occasionally look up to get his bearings. Vann told the jury that he never heard the sound of the boat motor.

The record shows that both Vann and Varnedoe were oblivious to the sight and sound of Mrs. Varnedoe, Mrs. Willie and Mrs. Haas (Mr. Haas was at that time the observer in the boat), frantically waving and yelling in an attempt to alert Vann and Varnedoe that they were in danger of hitting each other. Varnedoe said that he noticed his wife running along the pier gesturing and calling out, but he did not think her behavior particularly unusual. The women saw that the boat and the swimmer were on a collision course with the distance between them rapidly closing. The parties could not agree, however, on whether the swimmer was out beyond “the safety point.” In any event, their attempts to signal the parties amounted, in the end, to a charade with both boat and swimmer being stumped as to its meaning.

Ignorant of the Maryland Agency Rules and Regulations, Title 08, Department of Natural Resources, Rule 08.04.22 mandating that when water-skiing the towing boat must not be within one hundred (100) feet from shore, piers, bridges, people in the water, or passing other boats, Varnedoe operated the boat as close as twenty-five (25) to forty (40) feet from piers north of the Koontz property. Rule 08.04.22 contains an exception not applicable to the case sub judice, and that is that it is permissible for “a person . . . [to] begin skiing on land or shore.”

After Willie had released the tow line, Varnedoe cut back on the throttle, put the gear shift in neutral, and turned sharply to starboard, i.e., toward the center of the river. While in the midst of the starboard turn, Varnedoe felt “a bump.” He had not seen anyone in the water, nor did he realize that he had struck Vann until the boat stopped and he heard a yell. Varnedoe then saw Vann and jumped overboard so as to assist Vann in making his way to shore. An ambulance was called and Vann was transported to the hospital.

Subsequently, Vann brought suit against Varnedoe, Willie and Koontz. After a series of pleadings and demurrers, the case finally went to trial before Judge Edward D. Higinbothom and a jury in the Circuit Court for Harford County on Vann’s fourth amended declaration. At the close of the evidence presented by Vann, Judge Higinbothom directed a verdict in favor of all defendants.

On appeal to this Court, Vann raises seven (7) issues for our review. He asserts:

“1. The evidence of the condition of the windshield of this boat as it had remained for several years with the irregular crack held together by a number of nuts, bolts, and large washers was sufficient to submit to the jury the question whether it was unsafe for proper vision and lookout through that part of the windshield.
2. Maritime Law does apply to this collision and operation of this boat on the navigable waters of the Bush River, so that the jury could have found that the Appellee Koontz provided an unsea worthy boat and/or crew.
3. Also, if question 1 is answered affirmatively, there was sufficient evidence to submit to the jury the negligence of the Appellees, or at least the Appellee Koontz, for negligent entrustment of an unsafe boat to Varnedoe.
4. There was also sufficient evidence to submit the negligence of the Appellees, or at least the Appellee Koontz, to the jyry for negligent entrustment of this boat to those not properly trained to operate it.
5. There was evidence from which the jury could find that the Appellee Willie was liable for the negligence of Varnedoe as bailee from Koontz in charge of this boat.
The Trial Court erred in excluding the testimony of the Appellee Willie at the District Court hearing on the charge against Varnedoe that ‘It is certainly our fault that we could not see him.’ and later ‘It’s no excuse why we did not see him.’ 6.
The Trial Court erred in sustaining Demurrers to the Fourth Amended Declaration claim for punitive damages against Koontz arising out of negligent entrustment of this boat with the cracked, repaired windshield to those not trained in the safe operation of a boat.” 7.

Issues one (1) through six (6) are all interwoven with a common thread, namely, an attempt by Vann to reach Koontz on the theory of negligent entrustment. In order to do so, Vann asserts that the mere allowing of the use of the boat with its cracked windshield was negligent. He then couples to that hypothesis that Varnedoe was an inexperienced boat operator, completely lacking in training. Vann stresses that Varnedoe received no schooling on boat safety or the watermen’s “rules of the road.”

Our review of the record discloses that despite the valiant effort of Vann’s counsel to elicit testimony that the crack in the windshield prevented Varnedoe from seeing Vann in the water, his effort fell short of the mark. Of the four witnesses who testified regarding the cracked windshield, not one of them said that the crack or the bolts and washers materially impaired the vision of the operator. Vann’s attorney sought to have the trial court and this Court take judicial notice “that an object right in one’s line of vision a couple feet away distorts vision beyond.” To bolster his contention, he seeks to have us employ “[a] simple test of holding a pencil or coin at arm’s length from the eyes.” Such a test, he says “reveals two images of that object, if the viewer is looking beyond the object, or, upon looking at the object, reveals two images of the background.” Counsel then asserts that, “The testimony was that the head of the pilot was 2 or 3 feet from the windshield. Thus, the operator attempting to keep a lookout through the windshield to the water beyond would see 2 images of each large [quarter size] washer and the crack as he looked through that area of the windshield.. . .”

We do not know of any rule of evidence which would permit us to conduct experiments and then take judicial notice of the result. Furthermore, the entire windshield was quite expansive in comparison to the area of the crack, and there would appear to be nothing that impaired vision through the uncracked portion of the windshield. Even with respect to the cracked area, the washers were four (4) or five (5) inches apart, so that there was no unbroken obstruction to vision. More important, however, is the uncontradicted testimony of witnesses produced by Vann that the crack in the windshield did not materially interfere with their ability to see through the windshield. That a similar crack in the windshield of a Koontz truck would require replacement, Md. Ann. Code Art. 66V2, §§ 11-1104 (c) and (d) (Repl. Vol. 1970), does not mean that the crack in the windshield of the boat also requires that the boat windshield must be replaced. The legislature has not seen fit to address itself to that subject and the rules and regulations of the Department of Natural Resources do not prescribe replacement of a cracked windshield.

Aside from the “simple test” regarding the pencil, Vann urges that we hold that a photograph, depicting the vessel with its cracked windshield secured by bolts and washers, was sufficient evidence to take the case to the jury. Patently, he invokes the Chinese proverb that, “One picture is worth more than ten thousand words.” The difficulty with Vann’s position is that the “live” witnesses called by Vann said that the cracked windshield did not materially interfere with their vision, and Vann may not use the photograph so as to impeach his own witnesses and simultaneously create a jury issue. Thus, negligent entrustment, which is grounded on the loaning of a defective chattel was not proven because the “defect” in the chattel was not proven.

We note that while Varnedoe was not schooled in boating safety or operation, he did successfully run the boat for three (3) years, apparently without incident. The fact that he did not receive formal training in boat operation does not, under existing law, give rise to a rational inference that his ability to operate the boat was somehow so wanting as to involve “unreasonable risk of physical harm to himself and others.” 2 Restatement (Second) of Torts § 390 (1965).

We' turn now to a discussion of whether the law of admiralty applies to a collision between a sixteen (16) foot pleasure craft and a swimmer. We do so, because, if it does apply, the standard for measuring the unseaworthiness of the Koontz vessel would be quite different than that of ordinary negligence.

Traditionally, admiralty jurisdiction has encompassed “all waters, salt or fresh, with or without tides, natural or artificial, which are in fact navigable in interstate or foreign water commerce, whether or not the particular body of water is wholly within a state, and whether or not the occurrence or transaction that is the subject matter of the suit is confined to one state.” Gilmore & Black, Admiralty 29 (1957); Note, Pleasure-Boating and the Admiralty Jurisdiction, 10 Stan. L. Rev. 724, 725 (1958). See also Note, Admiralty Jurisdiction Over Pleasure Craft Torts, 36 Md. L. Rev. 212, n. 2 (1976). This definition has been applied to actions involving boats and adequately embraces bodies of water such as Bush River. Id.

Historically, the determinative test of admiralty jurisdiction has been a simple locality test. The Plymouth, 70 U. S. (3 Wall.) 20, 18 L. Ed. 125 (1866). The Plymouth was interpreted by many to mean that if the tort was committed on navigable waters it was within the admiralty jurisdiction. See Victory Carriers, Inc. v. Law, 404 U. S. 202, 205-06, 92 S. Ct. 418, 421-22, 30 L.Ed.2d 383, 387-88 (1971), and cases cited therein, rehearing denied, 404 U. S. 1064, 92 S. Ct. 731, 30 L.Ed.2d 753 (1971). Recently, however, the Supreme Court decided that its language in Plymouth does not mean what it seems to say, and that there is nothing magical about navigable waters. The locality test is not the sole determinant of maritime jurisdiction. Retreating from the mystical attraction of the navigable water site, the Court, in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249, 93 S. Ct. 493, 34 L.Ed.2d 454 (1972), held, unanimously, that in addition to the locality test, there must be shown some connection with “traditional maritime activity.” Id. at 261, 93 S. Ct. at 501, 34 L.Ed.2d at 463. In Executive Jet, the Court had before it a fact pattern involving a plane crash into Lake Erie. The crash was caused by some seagulls becoming ingested into the plane’s jet engines with a resulting “almost total loss of power.” Id. at 250, 93 S. Ct. at 496, 34 L.Ed.2d at 457. The owner of the aircraft, Executive Jet, invoking federal admiralty jurisdiction, sued the City of Cleveland in a United States District Court, which dismissed the action. Mr. Justice Stewart, writing for the Court, noted that the locality test was conceived in 1813 by Mr. Justice Story, on Circuit, in Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13, 902) (CC Me. 1813), at a time when it was difficult to imagine “a tortious occurrence on navigable waters . . . [except those involving] a waterborne vessel.” Id. at 254, 93 S. Ct. at 497, 34 L.Ed.2d at 459. The Court then said that it had “never explicitly held that a maritime locality is the sole test of admiralty jurisdiction. The last time the Court considered the matter, the question was left open. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, [34 S. Ct. 733, 58 L. Ed. 1208] (1914).” Id. at 258; 93 S. Ct. at 499, 34 L.Ed.2d at 461. The Court declared:

“In sum, there has existed over the years a judicial, legislative, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test.” 409 U. S. at 261, 93 S. Ct. at 501, 34 L.Ed.2d at 463.

Thus exits The Plymouth litmus paper locality test as the sole test for ascertaining when admiralty jurisdiction exists in a particular case.

Since the decision in Executive Jet, the test is whether there exists some nexus between the tort and traditional maritime activity. If there is such a bond, admiralty law applies. In the absence of the link, however, admiralty law does not apply, and the case is governed by the law of negligence.

Save for those small pleasure craft used in charter service, motorboat owners and operators have no discernible commercial or maritime interests to protect. Executive Jet makes manifest that admiralty jurisdiction necessitates a connection “with traditional maritime activity.” The Court, in Executive Jet, indicated, without deciding, that such activities as swimming and waterskiing are not within the scope of “traditional maritime activity.” Drawing on the Supreme Court’s rationale that a maritime nexus test is required to cover those situations “where the invocation of admiralty jurisdiction seems almost absurd,” Id. at 255, 93 S. Ct. at 498, 34 L.Ed.2d at 460, the Fourth Circuit echoed the Supreme Court’s disapproval of decisions holding claims by injured swimmers and waterskiers against owners and operators of towing motorboats within the admiralty jurisdiction of the federal courts. Richards v. Blake Builders Supply Inc., 528 F. 2d 745 (4th Cir. 1975); Crosson v. Vance, 484 F. 2d 840 (4th Cir. 1973).

Therefore, although we think Vann met the requisites of the erstwhile locality test, neither he nor either of the appellees was engaged in any “traditional maritime activities.” While swimming and waterskiing may be pleasurable pursuits performed in or on water, they cannot be said to fall within the ambit of “traditional maritime activity” as that phrase is employed in Executive Jet.

In our view, the law of admiralty has no application to the case subjudice, and Vann’s allegation of unseaworthiness of the Koontz boat must fail. It follows that the directed verdict on Vann’s unseaworthiness claim was properly granted.

We agree with Judge Higinbothom that Willie’s testimony in the Maryland State District Court at the trial of Varnedoe should not have been permitted to go to the jury. Consequently, we reject Vann’s argument that Willie was liable, as bailee from Koontz, for the negligence of Varnedoe, his son-in-law.

The evidence clearly shows that Willie had “dropped off” from the tow line prior to the boat’s striking of Vann. Moreover, the skier, as was Willie, is not the operator of the boat, and unless he falls or lets go of the tow line, he is pulled wherever the operator chooses to steer the boat.

We have already seen that there was no evidence presented which would demonstrate that Varnedoe had displayed any prior signs of negligent or careless operation of the vessel so that Willie’s permitting Varnedoe to pilot the craft was certainly not a negligent act. The main point that Vann makes is that his counsel wanted to inform the jury in opening statement that Willie “had made an admission before the [District] Court at another hearing arising out of the same accident ... to the effect that he [Willie] and Mr. Varnedoe were at fault for not seeing Mr. Vann ..., and that he also admitted that there was no excuse why we did not see him, we still should have seen him.” Counsel for each defendant objected. Among the reasons assigned for the objections were 1) the transcript was incomplete because of inaudible portions of the recording from which it was transcribed; 2) Vann’s testimony was unavailable because of the inaudible portion of the record; 3) Willie was not in the boat at the time of the incident and since the only allegation against Willie was negligent entrustment, the statement would have no bearing upon that issue; 4) Willie’s utterance could not be used to bind Varnedoe.

Judge Higinbothom refused to permit Vann’s attorney to “make any reference to the District Court hearing or statements of Mr. Willie at that time.” We perceive no error. We agree with the trial judge that inasmuch as Willie was sued on the basis of negligent entrustment/ his “admission” against Varnedoe’s interest was inadmissible. Moreover, it was, under the circumstances of the case, no more than a conclusory opinion. Furthermore, the transcript of the hearing was never offered into evidence.

In the light of what we have discussed, it is unnecessary for us to consider the remaining issues posed by Vann.

Judgment affirmed.

Costs to be paid by appellants.

      . A phrase used in advertisements for The National Brewery.

      . Prior to trial, Varnedoe reached a settlement with the appellant for a Joint Tort-Feasor Release.

      . Such courses are available from the United States Power Squadron and the Coast Guard Auxiliary at little or no charge.

      . The crack may be visualized by creating a mental picture of the dial of a clock. The crack, as you face the clock, would run, irregularly from eleven o’clock to ten to nine to eight to seven.

      . What effect such a warning would have is not explained. We note, however, that the use of tidal waters to the mean high water mark is for all of the people, not just the abutting land owner.

      . Vann, in response to a question of whether he swam the American or Australian crawl answered that it was “my crawl.”

      . The observer’s task was to watch the skier so that he would not be lost if for any reason he fell from the skis.

      . The term “the safety point” is undefined in the record. We glean, however, that the term as used in the case meant twenty-five (25) feet beyond the poles off the end of the Koontz pier. Just how this determination was made is not explained.

      . Md. Nat. Res. Code Ann. § 1-202 (1974), authorized the Secretary of the Department of Natural Resources to enforce “all natural resource [resources] laws of the state” and rules and regulations. Md. Nat. Res. Code Ann. § 1-104 (g) (1974) provides that the “Secretary is responsible for promulgating rules and regulations for the department.” Md. Nat. Res. Code Ann. § 2-310 (1974) prescribes the penalty to be imposed by a court for violation of the “subtitle or any rule or regulation promulgated pursuant to” the subtitle and classifies such violation as a misdemeanor. It is apparent that the Secretary’s properly adopted rules and regulations are law'.

      . See n. 2, supra.

      . By 1904 Md. Laws, ch. 518, the General Assembly provided for licensing of motor vehicle operators, speed limitations, lighting on vehicles, license plates, a ban on automobile racing and penalties for violation of the provisions of Maryland’s first motor vehicle code. At that time, there were, according to the United States Department of Commerce, Bureau of Public Roads, Highway Statistics Summary to 1955 (1957), 590 automobiles registered in this State. Trucks were not registered until 1905, and buses were first registered in 1925.
      The Department of Natural Resources reports that there were, in 1976, 130,072 boats registered with it. That figure does not include an additional 7,000 boats of five (5) tons or over that have been documented by the Coast Guard. In addition, boats from Delaware, Virginia, Pennsylvania and the District of Columbia regularly ply Maryland waters. There is, as yet, no statute regulating the licensing of boat operators nor is there any requirement that boat owners or operators undergo any type of formalized training before setting forth upon the water. Our policy seems to follow the 1670 English proverb that, “In a calm sea every man is a pilot.” In short, if you can buy, rent, borrow or beg a boat, you are free to operate it upon Maryland tidal waters.
      Rule 08.04.11 of the Maryland Agency Rules and Regulations, Title 08, Department of Natural Resources, provides that equipment requirements for motor boats are governed by the federal regulations “set forth in the Boating Act of 1940” as amended in 1958. Significantly, the federal regulations do not require a windshield. They are concerned primarily with fire control and running lights. Motorboat Act of 1940, 46 U.S.C. § 526 et seq. (1958).

      . Negligent entrustment, as adopted by the Court of Appeals in Curley v. General Valet Service, Inc., 270 Md. 248, 255, 311 A. 2d 231, 235 (1973), reversing General Valet Service, Inc. v. Curley, 16 Md. App. 453, 298 A. 2d 190 (1973) quotes with approval 2 Restatement (Second) of Torts § 390 (1965). That section provides:
      “One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”
      The doctrine is an outgrowth of the principle that:
      “[I]n all cases in which any person undertakes [or authorizes] the performance of an act which, if not done with care and skill, will be highly dangerous to the persons or lives of one or more persons, known or unknown, the law, ipso facto, imposes as a public duty the obligation to exercise such care and skill.”
      Van Winkle v. American Steam-Boiler Co., 52 N.J. Law 240, 247, 19 A. 472, 475 (1890), quoted in Rounds v. Phillips, 166 Md. 151, 166, 170 A. 532, 537 (1933).

      . See n. 3, supra.

      . The appropriate test of “seaworthiness” is whether the boat was reasonably fit for its intended use. M. Norris, Your Boat and the Law 156 (1965).

      . In The Plymouth, 70 U. S. at 35-36,18 L. Ed. at 128 (1866), the Court said:
      “[T]he wrong and injury complained of must have been committed wholly upon the high seas or navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within the admiralty jurisdiction....
      “... The jurisdiction of the admiralty over maritime torts does not depend upon the wrong having been committed on board the vessel, but upon its having been committed upon the high seas or other navigable waters.
      “. . . Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.”
      The “Plymouth Test” was reiterated in Victory Carriers, Inc. v. Law, 404 U. S. 202, 205-06, 92 S. Ct. 418, 421-22, 30 L.Ed.2d 383, 387-88 (1971), citing 40 cases as supporting the test.

      . If the language of The Plymouth, n. 14, supra, was taken literally, a collision between two swimmers resulting in injury to one or both would be subject to admiralty law.

      . But see Victory Carriers, Inc. v. Law, 404 U. S. at 205, 92 S. Ct. at 421, 30 L.Ed.2d at 387, citing Atlantic Transport Co. v. Imbrovek, supra, as authority for the locality test. In Atlantic Transport, Mr. Justice Hughes (later Chief Justice), speaking for the Court, said:
      “Even if it be assumed that the requirement as to locality in tort cases, while indispensable, is not necessarily exclusive, still in the present case the wrong which was the subject of the suit was, we think, of a maritime nature and hence the District Court, from any point of view, had jurisdiction....
      ... If more is required than the locality of the wrong in order to give the court jurisdiction, the relation of the wrong to maritime service, to navigation and to commerce on navigable waters, was quite sufficient.” 234 U. S. at 61-62, 34 S. Ct. at 735, 58 L. Ed. at 1212-13.

      . For a thought-provoking discourse on admiralty law and pleasure craft, see Note, “Admiralty Jurisdiction Over Pleasure Craft Torts,” 36 Md. L. Rev. 212-232 (1976).

      . We construe the phrase to mean “traditional maritime commerce” and not merely any activity usually performed for pleasure on or in navigable waters.