author: Gilbert, C. J.,

text:
    JAMES MONROE HENDERSON v. STATE OF MARYLAND
    [No. 818,
    September Term, 1981.]

      Decided March 4, 1982.

    The cause was submitted on briefs to Gilbert, C. J., and Morton and Mason, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Stephen B. Caplis, Assistant Attorney General, William A.

      Swisher, State’s Attorney for Baltimore City, and Mark P. Cohen, Assistant State’s Attorney for Baltimore City, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

On September 16,1980, the Court of Appeals decided Eley v. State, 288 Md. 548, 419 A.2d 384 (1980).

Eley mandates that if the State does not produce possible other relevant evidence or explain its failure to produce that evidence, the defendant is permitted to comment to the fact finder on the State’s shortcoming. The clear purpose of comment by the defense is to create an inference that had the State introduced the non-produced or non-explained missing evidence, the introduction would be beneficial to the defendant. Ergo, the defense would probably assert that the State, put to the choice of producing evidence helpful to the accused or ignoring such evidence, would opt for the latter. Such an argument might well convince a jury that there is a reasonable doubt of the defendant’s culpability.

The message sounded by Eley is clear: Possible relevant evidence not introduced, or its absence explained, may be used against the State.

In Eley the defendant was charged, inter alia, with assault with intent to murder a Mr. Johnson and of robbing Ms. Ada Jones of her car. There was testimony that Eley took the Jones’ vehicle and drove from the crime scene. The vehicle was recovered the next day. The State at trial did not introduce any evidence concerning Eley’s fingerprints being found on or about the Jones’ automobile. For that matter, fingerprints were apparently not mentioned until defense counsel proposed, in his closing argument to the jury, to allude to the absence of fingerprint evidence. The trial judge refused to allow that argument. Eley was convicted. On ■appeal to this Court, the judgment was affirmed in an unreported per curiam opinion. The Court of Appeals granted certiorari and reversed.

The majority quoted with approval People v. Carter, 73 Ill. App. 3d 406, 392 N.E.2d 188 (1979). There, identification was made of two handcuffed persons immediately after a robbery. There was no line-up. Defense counsel asked the jury, "Shouldn’t there have been a line-up?” The prosecution objected and in the presence of the jury exclaimed that " '[t]his Court has ruled ... [the identification] was a proper procedure.’ '[T]his Court has ruled that the procedure was constitutional,’ and '[t]he Court has already ruled in pre-trial.’” The defense objected to those remarks. The appellate court, while reversing on other grounds, commented:

"One can reasonably draw some adverse inference from the use of an inferior method when a superior was readily available. In the course of an argument that the method used was flawed, counsel should not be restricted from comparing that method with others that the evidence showed were not used. The defense here was discussing the evidence. Counsel never suggested that the police had done anything illegal, immoral, or improper, or anything else not in evidence.” 73 Ill. App. at 410, 392 N.E.2d at 192. (Emphasis in original.)

There was evidence in Carter that the defendants were apprehended almost immediately after the commission of the crime. They were taken in handcuffs to the place where the crime occurred. A victim was told by the police that "they thought they had caught the criminals, .and [the victim was] asked ... to go downstairs and see if she could identify the suspects.... The defendants [whom she identified] were the only people .. . [in] handcuffs.” The Carter Court could and did readily conclude that the identification procedure was in evidence.

Eley steps beyond Carter. There was, as we have said, no evidence introduced at Eley’s trial concerning fingerprints. There was, however, evidence that Eley had fled in a victim’s vehicle; but whether Eley was wearing gloves, wiped his fingerprints from the car, or the police simply did not "dust” the car for fingerprints is left unstated. The failure to produce evidence of fingerprints or explain the reason for not producing the "prints” proved to be the prosecution’s Achilles’ heel because the Eley Court held: The "unexplained silence concerning a routine and reliable method of identification especially in a case where the identification testimony is at least subject to some question ... is within the scope of permissible argument. .. .”

The instant case involves, inter alia, what might be termed an inverse application of Eley. We explain.

The appellant, James Monroe Henderson, was charged with murder, robbery with a dangerous and deadly weapon, and the usual related counts. At a jury trial in the Criminal Court of Baltimore, Judge Marshall A. Levin, presiding, Henderson was convicted of felony murder, robbery with a dangerous and deadly weapon, and two counts of the use of a handgun in the commission of a crime of violence. To avoid any possible confusion, it should be understood that the murder victim was not the same person who was robbed.

Prior to the actual trial, the appellant asked Judge Levin to grant a motion in limine so as to preclude the State’s offering evidence showing that appellant was residing at a prerelease center at the time of arrest. Judge Levin, in granting the motion, instructed the State not to introduce evidence that the appellant was apprehended at a prerelease center. The judge, however, cautioned defense counsel that, "if the Defendant opens the door, then I am not going to preclude the State from having a fair shake, so to speak. So, all I’m saying now is that it can be brought out that .. . [appellant] was arrested ... and that there can be no mention of rehabilitation or any other indication that Mr. Henderson has a criminal record.... [Nevertheless,] if .. . [the defendant] open[s] the door,... [he is] liable to cause ... [this] ruling to be different.”

The State proved that the murder victim was shot to death, that a robbery was committed with the use of a handgun, that a gun was seen in the hands of the murderer-robber and that appellant was arrested at 902 Greenmount Avenue. No State witness mentioned that the prerelease center was located at that address.

The defendant-appellant, in his presentation of evidence, asked Detective Lawrence O’Brien of the Baltimore City Police Department: "During the course of your investigation, has the weapon been recovered?” The detective responded, "I have not recovered any weapon.” The defense continued by asking, over objection, whether there was "any tangible evidence” such as fingerprints, foot prints, or any "other kind of... tangible evidence ... which ... [may have] been recovered from the crime scene.” The detective answered, "Not to my knowledge.”

Those questions alerted the State to the defendant’s possible reliance upon Eley when the time for closing argument arrived. Consequently, the State asked to be allowed to establish that a search of the place where appellant was arrested was not conducted because of the improbability of carrying a weapon into the prerelease center. Over the strenuous objection of the appéllant, Judge Levin permitted the State to inquire as to the place where appellant was apprehended. The judge observed: "[I]t was unnecessary for the defense to bring out an undisputed fact by putting on the witness” and asking about the non-recovery of the gun. We think it transpicuous that the appellant sought to give himself an "Eley edge” with "the State powerless to counteract that advantage....”

The appellant asserted that his inquiry about the recovery of the murder weapon did not open the door to the State’s use of the fact that appellant was arrested at the prerelease center. In any event, Judge Levin allowed the State to ask Detective O’Brien where the arrest of appellant was made and whether a search warrant was obtained in order to "look for the gun.” O’Brien said that appellant was arrested at the prerelease center, and that no warrant was obtained because he "felt it would be futile to” conduct a search of the Center.

Judge Levin then almost immediately instructed the jury:

"[T]he reference to where the Defendant was arrested, you will not consider ... as being significant at all, the place where he was arrested and the nature of the place where he was arrested, that should not enter into your viewpoint or deliberations.”

We think Judge Levin properly allowed the State to educe testimony as to why the murder weapon was not located and presented at trial. Although appellant disavows any intent "to show that Detective O’Brien had not aggressively investigated the case,” Eley would have allowed such an argument had appellant advanced it to the jury. Even considering appellant’s assurance that there was no intention "in closing argument to say whether or not the police did anything wrong in their investigation in the matter,” the inference to be drawn from Detective O’Brien’s testimony was clear. Judge Levin explained that the examination extracted a "suspicious motive or suspicious fact” from which the jury could have inferred that the police were "less than aggressive in pursuing [the] case ... because if there was a gun, the detective should have gotten a search warrant and searched the [appellant’s] premises for that gun.” Judge Levin, as with all trial judges, is not permitted the luxury of hindsight when he is called upon to rule during a trial. Based on what was then before him, and cognizant of Eley, he took the appropriate measure to assure that the State was not treated unfairly.

We note that the evidence elicited from Detective O’Brien had no real bearing on establishing the criminal record, if any, of the appellant. The testimony did not reveal that appellant was a resident of the prerelease center. He, on the basis of that testimony, could have been there as a visitor, employee, or there in a variety of other capacities.

At trial, the robbery victim made a positive in-court identification of appellant and testified that appellant had brandished a "nickle-plated .38 ... brown [handled], snub nose revolver.” The State also produced a witness who knew appellant and placed him at the scene of the robbery and murder. As we see it, even if the trial court committed error, it was harmless beyond a reasonable doubt. Bartram v. State, 33 Md. App. 115, 153, 364 A.2d 1119 (1976), aff'd, 280 Md. 616 (1977).

II.

Appellant next asserts that the trial judge erred in the "manner of questioning defense witness James Smith.”

The record reflects that the witness testified that he had seen the murderer-robber. He described the culprit as having a "thick mustache,” "real bushy like; sideburns,” "a light skinned fellow,” "about six-two or maybe six-three, and he was real skinny.”

It was developed in the testimony that Smith was a friend of the appellant’s cousin, and although he had seen photographs of the appellant as supplied by the cousin, he had never seen appellant before the trial. Smith said that appellant was not the person who committed the crime. Significantly, we think, the witness had no idea how tall the appellant was because he had only seen him in a seated position.

Judge Levin asked the witness a number of questions including, "But, you don’t know how tall this Defendant is, do you?” Counsel for the appellant objected to the court’s "impeaching the witness.” The judge responded that, "I think the judge must be interested in justice and bring out before the trier of fact those things which are mentioned. It is in that spirit that I have attempted to bring out some evidence from this witness. I am not trying [the case] for the defense and I am not trying [it] for the State. I am trying to bring out before the trier of fact enough facts so that they will have a reasonable opportunity to reach a just verdict.”

Appellant argues that it was improper for the judge to "cross-examine” the witness in a manner that conveyed to the jury that the judge disbelieved the witness. From our reading of the record, the questioning by Judge Levin did not convey to the jury that the judge disbelieved the witness. We observe no impropriety.

Approximately thirty-seven years ago, Judge Learned Hand explained that "a judge is more than a moderator; he is charged to see that the law is properly administered, and it is a duty which he cannot discharge by remaining inert.” United States v. Marzano, 149 F.2d 923, 925 (2d Cir. 1945); Patterson v. State, 275 Md. 563, 580, 342 A.2d 660, 670 (1975).

The line between adjudicator and advocate may sometimes be indistinct, but we are satisfied that, while Judge Levin was not "inert,” he did not cross the line. We perceive no transgression in his inquiries directed to the witness, Smith.

III.

Lastly, appellant finds error in the judge’s instructions to the jury. Appellant asseverates that Judge Levin "did not make sufficiently clear that a not guilty verdict could be rendered.” We have carefully read the instructions to the jury and observe that during the course of them, the judge said:

"In these eases, as well as in any other criminal case, the burden of proof is on the State to prove every element of the crimes charged against this man. Therefore, I say to you that he is presumed innocent until proved guilty beyond a reasonable doubt. This presumption stays with him throughout the entire trial until overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty. He is entitled to every inference in his favor which can reasonably be drawn from the evidence.
Now, let’s recapitulate. As to Robert Herman Brown, your verdict can be as follows: You can find him guilty of robbery with a deadly weapon, first count. If so, ignore robbery. And you can also find him guilty of the eighth count, use of a handgun.
Or you can find him not guilty of all of it. Okay?
Now, let’s go to William Moore, the murder charge. You can find him guilty of murder in the first degree, premeditation and deliberation. If so, ignore second degree murder, and first degree murder, felony murder.
Then come to the second count, which is use of a handgun.
So, understand that theoretically you can find him guilty of first degree murder and use of a handgun or you could find him guilty of second degree murder, use of a handgun, or you could find him guilty of felony murder and use of a handgun, or you could find him not guilty of everything.
. . . [I]f you were to find this man guilty, it becomes the important function of this Court to dispose of the case. I know that you can consider your function accordingly, and I consider mine seriously, too, but you should not be concerned with anything except whether this man is guilty or innocent, and the rest is — and I say this with no offense — it is not your affair.
Now, then, I tell you that your verdict must be unanimous.” (Emphasis supplied.)

The instructions read as a whole clearly informed the jury that they could find the appellant "not guilty.” Moreover, the written verdict sheets that Judge Levin distributed to the jury provided for the jury’s finding of a not guilty verdict should they have been so inclined. Manifestly, the jury was not of the belief that the State had fallen short in meeting its burden.

Judgments affirmed.

Costs to be paid by appellant.

      . Eley was decided by a divided Court. Chief Judge Murphy dissented with Judge Rodowsky joining therein.

      . Eley v. State, No. 1039, September Term, 1978, filed September 17, 1979.

      . In addition to Carter, the Court of Appeals cited an Alaska decision, Jacobson v. State, 551 P.2d 935 (Alaska 1976).

      . Eley follows one approach to this problem. For a contra view see: Jordon v. State, 267 Ala. 361,102 So.2d 4 (1958); State v. Terry, 472 S.W.2d 426 (Mo. 1971), vacated as to sentence and remanded for imposition of proper sentence, 408 U.S. 940 (1972); Commonwealth v. Wright, 255 Pa. Super. Ct. 512, 388 A.2d 1084 (1978); U.S. v. Wilkins, 422 F. Supp. 1371 (B.D. Pa. 1976), aff'd, 601 F.2d 578, cert. denied, 444 U.S. 877 (1979); State v. McKinney, 554 S.W.2d 488 (Mo. Ct. App. 1977).


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    KATHLEEN ELAINE HOWLETT v. STATE OF MARYLAND
    [No. 824,
    September Term, 1981.]

      Decided March 4, 1982.

    The cause was submitted on briefs to Morton, Liss and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Gary S. Offutt, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Stephen Rosenbaum, Assistant Attorney General, and John

      R. Salvatore, State’s Attorney for Washington County, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On January 7, 1980, Kathleen Elaine Howlett, the appellant, was convicted on a guilty plea in the Circuit Court for Washington County of two counts of forgery. On May 18, 1980, she was sentenced to the custody of the Division of Correction for a five-year period for each offense to be served consecutively thus making a total of ten years. The sentence then was suspended in favor of a three-year probation. The conditions of probation included obeying all laws. No appeal was taken from this judgment of the Circuit Court for Washington County.

At a hearing on May 28, 1981 in the Circuit Court for Washington County, the appellant was before the court charged with violation of probation. She pleaded guilty to the charge and appellant’s probation was revoked and the ten-year sentence re-imposed. On appeal appellant raises the sole issue that the record fails to show that the appellant voluntarily entered her plea of guilty to the violation of the conditions of her probation, or that she understood the nature of the charge or the consequences of her plea.

At the commencement of the hearing, the State proffered to the court that the appellant had violated her probation by being convicted in Pennsylvania of receiving stolen goods and of criminal conspiracy. Her trial counsel advised the court that the appellant admitted the convictions. The following colloquy then occurred:

THE COURT: You admit that, Miss Howlett?
DEFENDANT: Yes sir.
THE COURT: All right. The Court is satisfied that the Defendant, Kathleen Howlett, has in fact violated the terms and conditions of her probation as previously imposed and her admission to that violation will be accepted.

Appellant argues initially, without citing any authority to support her contention, that Maryland Rule 731 c applies to guilty pleas offered at a probation revocation hearing. The rule states in pertinent part as follows:

c. Plea of Guilty

The court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea. The court may accept the plea of guilty even though the defendant does not admit that he is in fact guilty if the court is satisfied that there is a factual basis for the plea. If the court refuses to accept a plea of guilty, the court shall enter a plea of not guilty.

The Court of Appeals, in State v. Bryan, 284 Md. 152, 395 A.2d 475 (1978), held that Maryland Rule 723 requires that a probationer have the assistance of counsel at a revocation hearing. The Court did, however, add the following caveat, found at 284 Md. 159 n. 6:

Rule 723 does not elevate a probation revocation hearing to the status of a "criminal prosecution” within the meaning of U.S. Const, amend. VI and Md. Const. Declaration of Rights, art. 21. Thus, the probationer is not invested with all the rights constitutionally accruing to a defendant in a criminal prosecution, and the hearing, although judicial, is not subject to all of the limitations imposed by law upon a trial leading to conviction. The proceedings are to be tested by fundamental fairness — the touchstone of due process. [Citations omitted]. [ 284 Md. at 159 n. 6 ].

The Court of Appeals and this Court have held that probation is a matter of grace which lies solely within the discretion of the trial judge. Scott v. State, 238 Md. 265, 208 A.2d 575 (1965); Sweeney v. State, 1 Md. App. 233, 229 A.2d 141 (1967). The State has the burden of establishing that which would induce a reasonable and impartial mind to believe that a violation of the probation granted had occurred. Knight v. State, 7 Md. App. 313, 255 A.2d 441 (1969). Unless the act of revocation is arbitrary and capricious, it will not be set aside on appeal. Edwardsen v. State, 220 Md. 82, 151 A.2d 132 (1959); Smith v. State, 11 Md. App. 317, 273 A.2d 626, cert. denied, 262 Md. 749 (1971).

A revocation of probation hearing is not a criminal prosecution and appellant is entitled to fundamental fairness but not to all the constitutional protections afforded a defendant at a criminal prosecution. In the absence of any authority to the contrary, we hold that a probation hearing is not within the ambit of Maryland Rule 731.

Appellant finally argues that the record reveals that she was not afforded due process of law at the probation revocation hearing. We do not agree. Appellant was represented by counsel. It is clear that the prosecutor, before the guilty plea was offered, stated in open court in the presence of the appellant and her counsel that appellant had violated her probation by being convicted in Pennsylvania of receiving stolen goods and criminal conspiracy. Her trial counsel advised the court that the appellant admitted the convictions. The court then asked the appellant, "You admit that, Miss Howlett?” and the appellant answered, "Yes, sir.” Appellant called her probation officer as a witness in mitigation and availed herself of the opportunity of allocution. The record makes it clear to us that appellant voluntarily and intelligently admitted the violation of probation and that the hearing amply complied with the requirements of fundamental fairness.

Judgments affirmed, costs to be paid by appellant.


author: Lowe, J.,

text:
    CARL M. TEAYS v. SUPREME CONCRETE BLOCK, INC. et al.
    [No. 864,
    September Term, 1981.]

      Decided March 4, 1982.

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

      Eugene B. Benson, with whom was Elizabeth Renuart on the brief, for appellant.

      Russell R. Marks, with whom were Maekley, Gilbert & Marks on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

The appellant, Carl M. Teays, sued his former employer Supreme Concrete Block, Inc., (and its manager) for wrongfully discharging him from its employment. The defendants (appellees here) demurred on the ground:

"That the Declaration fails to make out a cause of action cognizable in Maryland. Specifically, in Maryland an employment contract which is for an indefinite term may be terminated at will by either party, without regard to the reasons for such termination.”

Finding the law of Maryland to be as alleged, Judge John P. Corderman sustained the demurrer in the Circuit Court for Washington County on June 23, 1981, without leave to amend. He was right.

Before the time expired during which that final judgment could be appealed, however, the Court of Appeals judicially enacted a comparable cause of action for Maryland, recognizing that it was adopting anew an extension of the common law theretofore unrecognized in Maryland. On July 16, 1981, the Court decided Adler v. American Standard Corp., 291 Md. 31, holding that at least from that date on

"Maryland does recognize a cause of action for abusive discharge by an employer of an at will employee when the motivation for the discharge contravenes some clear mandate of public policy. . . .” Id. at 47.

On July 17, 1981 Mr. Teays appealed, citing substantial authority to support his claim that despite the correctness of the judgment below at the time it was rendered, he is entitled to the application on appeal of the new law.

In his usual careful and exhaustive manner, our former Chief Judge Orth examined that principle in Firstman v. Atlantic Constr. & Supply, 28 Md. App. 285 (1975). Quoting from Yorkdale v. Powell, 237 Md. 121, 124 (1964), decided by the Court which he was destined to join, Judge Orth noted in Firstman that:

"'Maryland consistently has followed the rule that 'an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence,’ as Judge Markell, for the Court, repeated in Woman’s Club v. State Tax Comm., 195 Md. 16, 19 (or, it may be noted, even when a judgment wrong when rendered is made right by the change in the law). See also for this proposition that a change in the law after a decision below and before final decision by the appellate Court will be applied by that Court unless vested or accrued substantive rights would be disturbed or unless the legislature shows a contrary intent, Keller v. State, 12 Md. 322; Day v. Day, 22 Md. 530; Gordy v. Prince, 175 Md. 688; Cockerham v. Children’s Society, 185 Md. 97; and Tudor Arms Apts. v. Shaffer, 191 Md. 342.’ ” Id. at 296-297.

Caught midstream, appellees were forced to change horses, despite President Lincoln’s admonition to the contrary. Compelled to acknowledge the Firstman concept, they orally, and unconvincingly, argued to us that the concept of entitlement to a change in the law should be restricted to statutory or rules changes. Somehow, it seems, they find a difference when the Court of Appeals changes the common law. They contend that none of the cases referred to by appellant, or presumably in Firstman, apply when the common law is changed by the Court.

But even that argument is not entirely correct. In Pope v. State, 284 Md. 309 (1979), the Court of Appeals acknowledged that we were correct in concluding that misprision of felony was a common law crime which thereby became part of Maryland law. It then assumed its prerogative to change the common law, and abolished that common law crime in Maryland. Notably, Mrs. Pope, who had been convicted of that crime, was given the benefit of the change made at her final level of appeal. Her conviction was reversed. A similar accord was provided in McClain v. State, 288 Md. 456, 470 (1980), where Judge Smith explained the concept on the principle of fundamental fairness:

"We have no constitutional question in this case. However, we believe that the legal principles enunciated by Justices Douglas, Harlan, Marshall, Powell, and Stevens more nearly conform with fairness and traditional Maryland holdings than would a determination that Johnson [v. State, 282 Md. 314 (1978)] is not applicable to this case. As Mr. Justice Cardozo said for the Court in Great N. Ry. v. Sunburst Co., 287 U.S. 358, 365, 53 S.Ct. 145, 77 L. Ed. 360 (1932), 'The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature.... In making this choice, she is declaring common law for those within her borders.’ In our view it would be unjust and unfair to hold that Johnson, who raised an issue, is to have the benefit of the holding in his case, but McClain, who raised the same issue, is not to have the benefit of that holding. It makes fish of one and fowl of the other. It simply does not comport with the American tradition of equal justice under the law. We hold that Johnson is applicable to McClain’s case.”

See also Williams v. State, 292 Md. 201 (1981). Certainly, if a convicted murderer, and one who suppressed knowledge thereof, are entitled to the "fundamental fairness” of a retrospective application of the changed common law concept, an ordinary citizen untainted by criminality should receive commensurate consideration.

While we will reverse the judgment of the circuit court, a further issue undecided below should be addressed for the guidance of that court to avoid a possible unnecessary appeal. Md. Rule 1085. Adler clearly indicated the necessity for a substantial degree of particularity in the allegations to make out a cause of action for wrongful discharge. The Court found that Adler had himself failed to do so because his declaration, like the one conceded by appellant before us, was "too general, too conclusory, too vague and lacking in specifics to mount up to a prima facie showing”, that the misconduct of which he complained contravened the public policy of this State. Id. at 44.

Despite the concession that the declaration here is insufficient in substance, we will remand the case for the trial judge to designate an appropriate time within which appellant may amend, in line with Maryland’s liberal policy of allowing amendments. Crowe v. Houseworth, 272 Md. 481, 485 (1974). While the allowance of amendments is discretionary, to deny it in this case would be to deny the "fundamental fairness” that has impelled us to reverse in the first instance. Whether appellant can so amend, or whether his proposed amendments conform to the Adler requisites, is a matter we expressly refrain from deciding.

Judgment reversed.

Case remanded to the Circuit Court for Washington County for further proceedings pursuant to this opinion.

Costs to be divided equally between the parties.


author: Wiener J.,

text:
    MARK DOWNS, INCORPORATED et al. v. McCORMICK PROPERTIES, INCORPORATED et al.
    [No. 874,
    September Term, 1981.1

      Decided March 5, 1982.

      The cause was argued before Lowe and Wilner, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      H. Patrick Stringer, Jr., with whom was Edward L. Blanton, Jr., on the brief, for appellants.

      C. Gordon Haines, with whom was Christopher Russo on the brief, for appellee Noxell Corporation. Robert J. Aumiller for appellees MacKenzie & Associates, Clark F. MacKenzie and Roland R. MacKenzie. Laurie R. Bortz, with whom were William B. Somerville and Arnold Jablon on the brief, for appellee Board of Education. Ernest C. Trimble for appellee McCormick Properties, Incorporated. Stanley J. Schapiro, Assistant County Solicitor for Baltimore County, with whom was Leonard S. Jacobson, County Solicitor for Baltimore County, on the brief, for appellee Baltimore County, Maryland.
   Wiener J.,

delivered the opinion of the Court.

Appellants (hereafter referred to as complainants) own or lease property in the Cockeysville area of Baltimore County near the intersection of York Road and Beaver Run Lane. In September, 1979, their property was flooded and substantially damaged as an aftermath of tropical storm "David”; and, through this lawsuit, they seek to place at least part of the responsibility for that damage on the activities of appellees.

The Circuit Court for Baltimore County, by sustaining appellees’ demurrers, and in one case a motion raising preliminary objection, decided that the storm was an "Act of God” and that none of the earthly defendants could be held liable for the destruction wrought by it. This appeal followed.

I. Procedural History

The original bill of complaint named as defendants McCormick Properties, Inc. (McCormick), MacKenzie & Associates (MacKenzie, Inc.), Noxell Corporation (Noxell), Friends Lifetime Care Center (Friends), the county Board of Education (Board of Education), Baltimore County, and two county officials (Donald P. Hutchinson, County Executive, and John D. Seyffert, Director of Planning and Zoning). It alleged, in relevant part, that:

(1) Complainants’ properties, acquired by them in 1973 or later, have an elevation of between 240 and 243 feet and are in a ten-year flood plain emanating from the confluence of Beaver Dam Run and Western Run, "just north and east of the property”;

(2) Their properties had been inundated in 1933, 1956, and 1972, when flood waters crested at 251.4 feet, 252.9 feet, and 263.3 feet, respectively;

(3) The 1972 flood, brought on by tropical storm "Agnes,” had been deemed an "Act of God”;

(4) Despite these conditions, the county failed to implement certain flood control measures that had been recommended to it by consultants, and the county officials failed to stop development within the Beaver Dam and Western Run watersheds or to refrain from "issuing permits for construction of property” in those watersheds; and

(5) The other defendants, who own property upstream from complainants, proceeded to develop their properties in various ways .which reduced the absorption capacity of the land and increased the storm water run-off.

The net effect of all this, said complainants, was to increase the amount of storm water run-off across complainants’ property during tropical storm "David,” thereby increasing the depth of the flood water across complainants’ property. They asked the court to enjoin the county officials from issuing any further construction permits for property within the two watersheds, to enjoin the defendant property owners "from any further construction or improvement of any type whatsoever” within the watersheds, and to require all defendants to pay, as damages, the $668,177 in losses suffered by complainants less the amount of any flood insurance benefits recovered by them.

The two county officials demurred on the ground of governmental immunity. The county responded with a motion raising preliminary objection on that ground and on the further ground that complainants had failed to provide the notice of claim required under Courts article, § 5-306. The court ultimately accepted that response and (1) sustained the officials’ demurrer without leave to amend, and (2) granted the county’s motion raising preliminary objection.

The other defendants also demurred for varying reasons. Their demurrers were sustained as well, but with leave to amend. Eventually, an amended, and then a second amended, bill of complaint were filed. Demurrers to the latter pleading were filed and sustained, without leave to amend.

The appeal now before us is from the orders (1) granting the county’s motion raising preliminary objection, filed in response to the original bill of complaint, and (2) sustaining, without leave to amend, the demurrers of the other defendants filed in response to the second amended complaint.

The second amended bill of complaint was directed against the upstream property owners previously named — McCormick, MacKenzie, Inc., Noxell, Friends, and the Board of Education — plus two new ones, Clark and Roland MacKenzie. It sought essentially the same relief, namely, an injunction against any further development by the defendant property owners and damages for losses incurred as the result of tropical storm "David.” With respect to the damage claim, it purported to set out three causes of action: trespass, negligence, and nuisance.

Complainants again averred that their property is located in a ten-year flood plain created by the confluence of Beaver Dam Run and Western Run to the north and east, but they made no mention in this pleading of the prior flooding in 1933, 1956, and 1972. The elevation of their property was claimed in this new pleading to be eight to nine feet higher than had been averred in the original complaint.

With respect to McCormick, complainants alleged that: (1) it owned a large tract of industrial land east of Interstate 83 and south of Shawan Road, which is at a higher elevation than complainants’ property and which drains into the Beaver Dam and Western Run watersheds; (2) since 1971, McCormick filled and graded the land and constructed improvements on it, "thereby reducing the natural absorption capacity of the property, causing the discharge of surface water in a different manner than the usual and ordinary natural course of drainage, and artificially and materially increasing the velocity and amount of storm water run-off’; (3) the increased run-off into Beaver Dam Run and Western Run filled those streams beyond their natural capacity, causing them to overflow onto complainants’ land and thus add to the depth of the flood waters which inundated appellants’ land during tropical storm "David.” The crux of the complaint was not the actual flooding of their property, but rather that, by reason of McCormick’s development, the storm water backed up onto complainants’ property "at a greater depth than otherwise would have occurred.” They claimed damage to their property "[b]y reason of the increased height of flood waters attributable in part” to McCormick’s development activities.

Essentially the same allegations were made as to the other defendants as well — that their property was within or adjacent to a flood plain and that they developed their property so as to reduce its natural absorption capacity which caused, sequentially, an increased run-off and discharge into one or both streams, a filling of the streams beyond their natural capacity, and an exacerbation of the flooding of complainants’ property during tropical storm "David” by adding to the depth of the flood waters.

There were some minor variations in the allegations regarding the location of the defendants’ respective properties. Unlike the allegations concerning McCormick, the exact location of the other properties was not specified; they were, however, claimed to be "upstream and in close proximity to the Complainants’ property,” at a higher elevation, and within the Beaver Dam or Western Run watershed. None of the defendants’ properties was alleged to be adjacent to that of complainants; the closest complainants came to that was a statement that the Board of Education property was "upstream and just west and north of Complainants’ property.”

All three claims — trespass, negligence, and nuisance — were built upon these basic factual allegations, which were incorporated into each claim.

The trespass action arose from the averment that, by reason of their development activities, the defendants "increased the run-off of surface water, silt, mud and debris from [their] property onto the Complainants’ property during the tropical storm 'David’....” The negligence action proceeded from the assertions that, in undertaking their respective development activities, the defendants had a duty to take reasonable precautions to prevent harm to appellants’ property "caused by the increase in surface water run-off which foreseeably accompanied the development of the land,” and that they violated that duty by failing to take "adequate and reasonable precautions.” In particular, appellants claimed that the defendants "failed to provide adequate storm water management to control the increased volume and velocity of surface water run-off caused by the development of [their] property.”

Finally, in the nuisance action appellants averred that the increased run-off attributable to the defendants’ development activities "caused and continues to cause flooding, deep mud and stagnation on the Complainants’ property, which constitutes a health menace and otherwise damages the Complainants’ property.”

The demurrers filed in response to this second amended complaint asserted in general that it failed to establish the breach of any duty owed to complainants that was the proximate cause of their injury. They claimed (1) with respect to the trespass action, a failure to allege that the defendants or "a person, object or element in [their] control ... made an unauthorized entry onto the Complainants’ land”; (2) as to the negligence action, that the facts alleged would not establish that the defendants’ activities were "unreasonable or in contravention of any duty owed to Complainants” or that such activities were the proximate cause of Complainants’ injuries; and (3) with respect to the alleged nuisance, that no facts were set forth which would demonstrate that the defendants’ activities "were such as to result in unreasonable storm water run-off’ and that the facts alleged establish that defendants’ activities "could not have been the proximate cause of the Complainants’ injuries.”

In sustaining the demurrers, the court noted the 1972 flooding that resulted from "Agnes,” and by referring to a map supplied by one of the defendants, concluded that the defendants’ properties "are a substantial distance from [complainants’] property.” It also found as a matter of law, if not fact, that tropical storm "David” (and the damage wrought by it) was an "Act of God,” and thus, that "the essential damages were not proximately caused by action of the defendants but were the direct and proximate result of an Act of God.” Referring to Laird, Rock & Small, Inc. v. Harry T. Campbell & Sons, 200 Md. 627 (1952), the court noted that, although the extra run-off from defendants’ development may have added somewhat to the water in Western Run, given the "devastating and overwhelming hurricane, such as David,” that would fall "within the de minimis doctrine.”

Although recognizing that the trespass and negligence actions are traditionally law rather than equity actions, the court decided the issue not on that basis, but rather on the basis that the allegations themselves were insufficient to state causes of action. In that regard, it stated that

"there being no allegation that the respondent’s [sic] properties were used unreasonably, there is nothing to indicate in this case that the injury resulting from hurricane David would have been significantly added to by any increase of run off attributable to merely developing a piece of ground. In this case there was no direct channelization alleged.”

The premise underlying the court’s ultimate ruling was that "[t]he Complainants are trying to extend the liability of an upper land owner to a degree that is neither reasonable or equitable.”

II. Issues Raised by Complainants

In this appeal, complainants present the following issues:

"I. Whether the Court erred by sustaining the upper landowners’ demurrers to the Second Amended Bill of Complaint without leave to amend?
A. Whether the law of surface water gives a lower landowner a cause of action where the development of upper land caused an increase in flow of surface water into a stream, causing the stream to overflow its banks and flood the lower land?
B. Whether an upper landowner may drain so much surface water into a stream that the natural capacity of the stream is exceeded to the injury of a lower landowner?
C. Whether, for an invasion of an interest in land by surface water, recovery can be sought in equity, or in an action at law for negligence, nuisance or trespass?
D. Whether the defense of an Act of God is available where an intervening human agency contributes to cause the damage complained of, and where the injury could have been avoided by precautions?
II. Whether private property has been taken, within the meaning of the Maryland Constitution, by developing land for the Board of Education of Baltimore County that caused an increase in the flooding of lower land?”

III. Analysis

A. Taking by Board of Education

We shall address the last issue raised by complainants first. The simple answer to it is that it was not raised in the second amended bill of complaint, and therefore was not considered by the lower court. The only complaints made against the Board of Education were that its development activities constituted a trespass, negligence and a nuisance; there was no assertion that its actions amounted to a constitutional "taking” of appellant’s property. We shall therefore not consider this belated charge on appeal. Maryland Rule 1085.

B. Dismissal of Baltimore County

As noted, Baltimore County was dismissed as a defendant, essentially on the ground of governmental immunity, upon its motion raising preliminary objection. Although in the section of their brief entitled "Statement of the Case,” appellants advise us that, along with the court’s rulings on the various demurrers, they are appealing the order dismissing the county, they do not include in the "Questions Presented” or in their argument any complaint about or further mention of that aspect of the case. They do not, in short, tell us why they think the court erred in its ruling on the county’s motion. Cf. footnote 2, supra. Their argument is directed entirely at whether a cause of action was stated against the various upstream property owners, and no reason is cited to us for reversing the court’s decision as to the county’s defense of governmental immunity. Accordingly, we shall not address or disturb that decision. Maryland Rule 1031; Jacober v. High Hill Realty, Inc., 22 Md.App. 115, cert. den. 272 Md. 743 (1974); Federal Land Bank of Baltimore, Inc. v. Esham, 43 Md.App. 446, 457-58 (1979), and cases cited therein. See, moreover, Irvine v. Montgomery County, 239 Md. 113 (1965); Spriggs v. Levitt & Sons, Inc., 267 Md. 679 (1973).

C. Actions Against Other Property Owners

The remaining issues raised by complainants must be addressed in the context of their procedural setting; namely, whether the court erred in disposing of the matter on demurrer. In judging that question, we are obliged (1) to consider only the allegations contained in the second amended complaint, and not any, evidence or averments extraneous thereto, and (2) to assume the truth of all relevant facts well pleaded in that complaint, as well as all inferences which may reasonably be drawn from those facts. Zion Evangelical Lutheran Church of the United Church of Christ v. State Highway Administration, 276 Md. 630 (1976); Hall v. Barlow Corporation, 255 Md. 28, 42 (1969), appeal following remand 260 Md. 327 (1971); Schwartz v. Merchants Mortgage Co., 272 Md. 305 (1974). Those constraints require that we disregard the consultants’ reports and maps included in the record extract and referred to in appellees’ brief, as well as those allegations made in the earlier bills of complaint but not repeated in the second amended complaint presently before us.

Complainants’ actions of trespass, negligence, and nuisance, though distinct from one another in their constituent elements, all derive in this instance from the correlative rights (and obligations) of neighboring landowners with respect to the natural flow of surface water. The basic law in that regard is fairly clear; the problems lie with its application.

Because it displaces valuable land and has great destructive potential, surface water has often been regarded as a common enemy by property owners. No one wants it, but someone must have it. This has produced a raft of lawsuits over the years, usually — at least in the early years — arising from attempts by the owners of lower lying property to stem or reverse the natural flow of the water by means of embankments or other artificial changes to their land.

In that context — the extent to which a lower property owner may act to reverse or neutralize the natural gravitational flow — two schools of thought developed. One, denoted the "common law” rule, holds that "the ordinary right of an owner of land to make any use whatever of his land either by erections thereon or changes in the surface, is regarded as independent of the effect which such erections or changes may have in causing water which naturally flows off on his land to collect or flow on other land.” Whitman v. Forney, 181 Md. 652, 656-57 (1943), quoting from 3 Tiffany on Real Property, § 743 (3d ed. 1939). The other rule, known as the "civil law” rule, holds that "land on which surface water naturally flows from another tenement is regarded as subject to a servitude of receiving such flow, and consequently the owner has no right, by any erection or improvement to prevent the escape thereon of water from the higher land.” Id. at 656.

Maryland has long (and consistently) followed the "civil law” rule; however, beginning at least in 1943 with Whitman v. Forney, supra, and possibly earlier (see Neubauer v. Overlea Realty Co., 142 Md. 87 (1923), and cases cited therein), the Court of Appeals attempted to ameliorate some of the harshness of that rule by adopting a qualification to it. As stated in Baer v. Board of County Commissioners, 255 Md. 163, 168 (1969), "[o]nto the civil law rule our decisions have engrafted a 'reasonableness of úse’ test, where a balance of benefit and harm is struck in hardship cases, to make sure that the owner of the servient estate is not unreasonably denied use of his property.” In Kidwell v. Bay Shore Development Corp., 232 Md. 577, 584 (1963), the Court characterized this "test” as follows:

"The application of this [reasonableness of use] doctrine does not change the adopted [civil law] rule of law, but provides mitigation from harsh results which may be reached by a strict application thereof. It depends upon the facts of each particular case, is peculiarly appropriate for an equity court to follow, and, in cases where undue hardship will ensue to one or the other of property owners by a rigid application of the civil-law rule, it has the advantage of flexibility, whereby the rights of the respective owners may be equitably determined by an assessment of all the relevant factors relating to the disposition of surface waters.”

The basic civil law rule, though apparently fashioned in the context of "self-help” measures undertaken by the lower lying property owner, is equally applicable where judicial relief is sought. This is also true with respect to the "reasonableness of use” qualification to the basic rule; indeed, the qualification is more particularly applicable (and more frequently applied) in the latter context than in the former.

The rule of reasonableness of use is one of fairness, and its application depends upon the circumstances evident in the particular case. That is why the manner of its use in one case does not require the same manner of its use in another. Yet, the scope of the rule — when its application, and what manner of application, are appropriate — may only come from a distillation of the principles announced and applied in other cases.

It is not necessary to recount the complicated fact situations in each of the many cases discussing and applying the qualification in order to discern the applicable standards that both justify and circumscribe its use. The doctrine, or something akin to it, has been applied to prevent the dominant landowner from:

(1) increasing materially the quantity or volume of water discharged onto the lower land;

(2) discharging water in an artificial channel or in a different manner than the usual and ordinary natural course of drainage;

(3) putting upon the lower land water that would not have flowed there if the natural drainage conditions had not been disturbed;

(4) causing dirt, debris, and pollutants to be discharged onto the lower land; or

(5) otherwise creating a health hazard.

Even where these types of situations have existed, the Court has unhesitatingly recognized the right of the dominant owner to the continuance of natural drainage, thus making clear that, in Maryland, the doctrine of "reasonableness of use” is but a qualification to, and not a substitute for, the civil law rule. Primarily, what the Court has done in applying the qualifying doctrine is to fashion, as part of the relief granted, conditions designed to lessen, if not avoid, some special harm to the servient land, or to prevent the dominant owner from continuing to use his property in an unreasonable manner to the detriment of his neighbor. Absent sufficient evidence (or, in the case of a demurrer, sufficient allegations) of an unreasonable use by the dominant owner or of special harm to the servient land from causes other than the natural drainage of water, the doctrine is inapplicable because, in that circumstance, it has no raison d’etre.

The trial court, in ruling on the demurrers, correctly stated the law. We think, however, that it erred in applying that law in light of the allegations contained in the second amended complaint.

The court began its analysis by focusing on the locations of the various properties. Stating that there was "no allegation in the bill of complaint as to how far away the respondents’ properties are from the complainant’s [sic] property,” it referred to the maps supplied by defendants and concluded, from them, that the properties were "a substantial distance” apart. This apparently had some significance, for it followed directly the court’s observation that "[i]f this surface run off had been direct from an adjacent, or even a nearby, land owner, one might argue that the flooding would have been a foreseeable injury to the complainant, as the lower land owner, but in this case there is no allegation that any of the respondents are adjacent land owners.”

Our problem with this is three-fold. First, the second amended complaint, though not alleging that the various offending properties were "adjacent,” did aver that they were "in close proximity to the Complainants’ property,” and, in the case of the Board of Education, that it was "just west and north” thereof. Second, the maps used by the court to support a contrary finding — that the defendants’ properties were not "in close proximity” — were not part of the complaint. They constituted extrinsic evidence, which may well be trustworthy, but which should not have been used in ruling on the demurrers. Although at the beginning of its remarks, the court indicated that the allegations of the complaint could be "augmented by the doctrine of judicial notice,” its comments regarding the locations of the various properties (save one) indicate that the maps were used more as independent evidence than as a source of judicial notice. In any event, we do not regard the juxtaposition of the several tracts involved here, or the distances between them, as being of such common knowledge to permit the taking of judicial notice.

Third, it is not necessary that the offending property abut, or be "adjacent” to, that of the complainants to afford a cause of action. See, for example, Battisto v. Perkins, supra, 210 Md. 542, where the defendant’s property was some 1,400 feet (over a quarter mile) from the plaintiffs land. That is not to say, of course, that the distance between the properties is immaterial. It is an important element to be considered in determining reasonableness of use, and, indeed, it may in some cases be a most critical element; but it is not, of itself, dispositive.

The court also concluded that there was "no allegation to show that the defendants used their land in any unreasonable manner.” That simply is not the case. Each defendant property owner was charged with filling, grading, and otherwise altering his land so as to "caus[e] the discharge of surface water in a different manner than the usual and ordinary natural course of drainage, and artificially and materially increasing the velocity and amount of storm water run-off.” That increase, it was alleged, contributed to the flooding of complainants’ property. As we have already observed, in Case II, alleging negligence, complainants specifically averred that appellees "failed to take adequate and reasonable precautions” to prevent foreseeable harm to the complainants by "fail[ing] to provide adequate storm water management to control the increased volume and velocity of surface water run-off caused by the development of [their] property.”

Those averments constitute sufficient allegations of an unreasonable and actionable use of appellees’ lands. As the Court made clear in Biberman v. Funkhouser, supra, 190 Md. 424, 429, "the upper owner has no right to discharge water into an artificial channel or in a different manner than the usual and ordinary natural course of drainage, or put upon the lower land water which would not have Bowed there if the natural drainage conditions had not been disturbed.” (Emphasis supplied.) See also Parklawn, Inc. v. Giant Food, Inc., 262 Md. 148 (1971); Laird, Rock & Small v. Harry T. Campbell & Sons, supra, 200 Md. 627, and the other cases cited in footnotes 4-8, supra.

Finally, we come to the question of whether appellees may escape liability, as a matter of law, based upon a finding that tropical storm "David,” and the flooding caused by it, amounted to an "Act of God.” Once again, we have to pay careful attention to the averments of the second amended complaint.

Although it has never been definitively determined in Maryland, following the lead of the Court of Appeals in Freter v. Embassy Moving & Storage Co., Inc., 218 Md. 12 (1958), we shall assume that it was appropriate for the court to take judicial notice that tropical storm "David” was, in fact, an "Act of God.” That does not end the inquiry, however; the mere fact that "David” was an "Act of God” does not, of itself, serve to exonerate appellees from liability.

An "Act of God” will excuse mortal man from responsibility only if God is the sole cause. As the Court noted in Fergusson v. Brent, 12 Md. 9, 31 (1858) — where a shipowner interposed that defense to escape liability for loss of cargo when its ship sank — the defense of "Act of God” "excludes all circumstances produced by human agency, so that if divers causes concur in the loss, the act of God being one, but not the proximate cause, it does not discharge the carrier. To relieve him, the act of God must be the immediate cause of the loss, and without which it would not have occurred.” This same concept was applied a century later in Freter v. Embassy Moving & Storage Co., Inc., supra, 218 Md. 12, 15, where, in the context of a warehouseman’s offering of the defense, the Court observed that, "[a]n act of God does not exonerate a warehouseman from liability for damage to goods in its care if it contributed to the damage, in whole or in part, by its negligence.” Cf. True v. Mayor and Commissioners of Westernport, 196 Md. 280 (1950); Annot., Liability for OverBow or Escape of Water from Reservoir, Ditch, or Artificial Pond, 169 A.L.R. 517, 533, et seq. (1947); Annot., Determination of Quantum of Damages for Injury to Property Recoverable Against Defendant Whose Wrong Concurred With Act of God, 112 A.L.R. 1084 (1938); Bowman v. Columbia Telephone Company, 179 A.2d 197 (Pa. 1962); Davis v. Country Club, Inc., 381 S.W.2d 308 (Tenn.App. 1963); Note, "Act of God” as a Defense in Negligence Cases, 25 Drake L. Rev. 754 (1976); Note, Responsibility and Measure of Damages for Negligence Concurring With Act of God, 33 Ill. L. Rev. 113 (1938); Comment, Water Law — Act of God Defense Flood Damage from Reservoir Overflow, 50 Denver L.J. 381 (1973); Note, Act of God, 4 S.C.L.Q. 421 (1952).

The same principle applies in the case at hand. Where God and man collaborate in causing flood damage, man must pay at least for his share of the blame. See Burton v. Douglas County, 539 P.2d 97 (Wash.App. 1975); Dougherty v. California-Pacific Utilities Company, 546 P.2d 880 (Utah 1976); Bodick v. Harcliff Mining Company, 222 A.2d 615 (Pa.Super. 1966); Baum v. County of Scotts Bluff, 109 N.W.2d 295 (Neb. 1961); Fred Drew Construction Co. v. Mire, 89 A.2d 634 (D.C. 1952); Stiers v. Mayhall, 248 P.2d 1047 (Okla. 1952); Carlson v. A & P Corrugated Box Corporation, 72 A.2d 290 (Pa. 1950). The prevailing rule, in terms of apportioning the loss, seems to be as stated in the aforementioned annotation, 112 A.L.R. 1084, 1085:

"In the majority of the cases involving the flooding of lands in which it appeared that part of the waters doing the damage complained of were the result of an act of God and part were the result of defendant’s negligent or wrongful acts, it has been held that defendant was liable only for the proportionate amount of the damage caused by the waters attributable to his fault.”

In crediting the "Act of God” defense, the trial court concluded that the complainants’ damages were directly and proximately caused by the Act of God, rather than by the actions of the defendants, and that, to the extent their development activities added in any way to the flooding, their share of the blame was "de minimis.” Those conclusions, however, necessarily rested upon a number of factual assumptions that were not only extraneous to the second amended complaint but which were actually in derogation of its averments.

In summary, we think that the second amended complaint does suffice to state a cause of action — in trespass, negligence, and private nuisance. When all of the relevant facts are considered, it may well be that a trier of fact could properly reach the same ultimate conclusions reached here — that appellees’ activities were either not unreasonable in the first instance or, if they were, that they were not the cause of any substantial injury suffered by complainants. We simply do not think that those conclusions can appropriately be drawn from the present state of the pleadings. As the Court observed in Fiorita v. McCorkle, 222 Md. 524, 526 (1960), "if parties intent to seek a decision without trial by amplifying the pleadings, they should in almost every instance, resort to motion for summary judgment and not to demurrer.”

Judgment as to Baltimore County affirmed; judgments as to other appellees reversed; case remanded for further proceedings; costs to be allocated one-third to appellants, two-thirds to appellees.

      . Complainants did not appeal the order sustaining the demurrer of Friends, and they dismissed their appeal from the order sustaining the demurrer of the two county officials.

      . At oral argument, counsel informed us that, in Issue II, quoted above, appellants intended to refer to Baltimore County rather than to the county Board of Education, and that an allegation of taking was made against the county in the original bill of complaint. This is based upon a general allegation in that complaint that, as a result of the actions of all the defendants, "the Complainants have been deprived of the use and quiet enjoyment of [their] property and buildings....” We do not regard that statement as a sufficient allegation of an implicit exercise of the county’s Sower of eminent domain; nor are we impressed by the contention that Issue [ was intended to refer to anyone other than the entity to which it plainly refers — the Board of Education, which has its own statutory power of eminent domain. Md. Code, Education Article, § 4-118.

      . Unlike an amendment to a complaint, an amended complaint replaces the earlier complaint in its entirety. The earlier complaint is regarded as withdrawn or abandoned, and is no longer part of the complainant’s averments against his adversary. The sufficiency of his case thereafter depends upon the allegations of the amended complaint, without regard to what preceded it. Sec Shapiro v. Sherwood, 254 Md. 235 (1969); Conklin v. Schillinger, 255 Md. 50, 75 (1969); 3 Sachs, Poe’s Pleading and Practice, § 189 (6th Ed. 1975).

      . Biberman v. Funkhouser, 190 Md. 424 (1948); Hancock v. Stull, 199 Md. 434 (1952), and 206 Md. 117 (1955); Battisto v. Perkins, 210 Md. 542 (1956).

      . Biberman v. Funkhouser, supra; Turner v. Washington Suburban Sanitary Commission, 221 Md. 494 (1960), appeal following remand 228 Md. 105 (1962); O.F.C. Corp. v. Turner, 228 Md. 105 (1962); Baer v. Board of County Commissioners, supra, 255 Md. 163.

      . Laird, Rock & Small v. Harry T. Campbell & Sons, supra, 200 Md. 627 (1952); Battisto v. Perkins, supra.

      . Neubauer v. Overlea Realty Co., supra, 142 Md. 87; Bishop v. Richard, 193 Md. 6 (1949); County Commissioners v. Hunter, 207 Md. 171 (1955); Sainato v. Potter, 222 Md. 263 (1960).

      . Whitman v. Forney, supra, 181 Md. 652.

      . In Battisto, the Court reversed a directed verdict entered in favor of the defendants, who were the owners of the dominant ground. In their unsuccessful argument in defense of the verdict, they took pains to point out that their land was not contiguous to or adjoining the plaintiffs’ properties, but was more than 1,400 feet away. See appellees’ brief, Battisto v. Perkins, Oct. Term, 1955, No. 227, pp. 1, 2.

      . To take judicial notice that a particular occurrence is an "Act of God” presupposes some clear definition of that term. In that regard, see Fergusson v. Brent, 12 Md. 9, 31 (1858), and Kirby v. Wylie, 108 Md. 501, 512-13 (1908), where, after suggesting that the legal meaning of the term "is not perhaps susceptible of a definition which will include every case to which it may be applied,” the Court adopted Lord Mansfield’s definition as being "about as accurate and specific as, perhaps, any that could be given”; namely, "By the act of God, is meant a natural necessity, which could not have been occasioned by the intervention of man, but proceeding from physical causes alone, such as the violence of the winds, or seas, lightning, or other natural accidents.”


author: Wilner, J.,

text:
    ED. WINKLER & SON, INC. et al. v. THE OHIO CASUALTY INSURANCE COMPANY et al.
    [No. 896,
    September Term, 1981.]

      Decided March 5, 1982.

    The cause was argued before Gilbert, C. J., and Moylan and Wilner, JJ.

      Joseph P. Rieger for appellants.

      John E. Mudd, with whom were Douglas W. Biser and Mudd & Harrison on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

We are concerned here with a question of insurance coverage. Is appellee, Ohio Casualty Insurance Co., obliged under its Special Multi-Peril Policy to defend appellant, its insured, in an action brought against appellant by Nina and Benjamin Cromwell? The Circuit Court for Baltimore County answered in the negative and we shall do likewise.

The Cromwells sued appellant for slander, malicious prosecution, and false arrest. They alleged in their Declaration that, while a customer in appellant’s jewelry store on October 30,1980, Mrs. Cromwell was wrongfully accused by appellant of stealing a $600 diamond and substituting for it a $20 zircon. When Mrs. Cromwell denied the accusation and refused to "replace” the diamond, appellant called the police, repeated and embellished his accusation, and caused Mrs. Cromwell to be arrested. As a result of the arrest, it was claimed, Mrs. Cromwell was detained for several hours in a police station, questioned, and strip-searched. Subsequently, according to the Declaration, it was shown that the alleged zircon was indeed a real diamond, that Mrs. Cromwell had done nothing wrong, and that appellant ultimately "decided not to prosecute.”

In support of her action for damages, Mrs. Cromwell claimed "pecuniary loss, humiliation, embarrassment, indignity, mental anguish, fright, emotional distress, physical trauma, nervous upset and damage to reputation” and the Cromwells together claimed "loss of consortium, society, affection and assistance of the other.”

When presented with the Cromwells’ "suit papers,” appellant demanded that appellee defend the action in accordance with its policy, and, when it declined to do so, appellant brought this proceeding for declaratory judgment. The court, as noted, declared that the policy did not afford coverage for this type of action, and thus decided that appellee was not obliged to defend appellant or to pay any resulting judgment.

In St. Paul Fire & Marine Insurance Company v. Pryseski, 292 Md. 187 (1981), the Court of Appeals instructed us that:

"In determining whether a liability insurer has a duty to provide its insured with a defense in a tort suit, two types of questions ordinarily must be answered: (1) what is the coverage and what are the defenses under the terms and requirements of the insurance policy? (2) do the allegations in the tort action potentially bring the tort claim within the policy’s coverage? The first question focuses upon the language and requirements of the policy, and the second question focuses upon the allegations of the tort suit. At times these two questions involve separate and distinct matters, and at other times they are intertwined, perhaps involving an identical issue.” Id. at 193.

We start with the first question — what coverage is afforded by the policy?

The relevant policy language here is as follows:

"The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted at or from the insured premises, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.” (Emphasis supplied.)

The key phrase, in terms of this dispute, is that which we have underscored: "damages because of bodily injury ... to which this insurance applies, caused by an occurrence....” An "occurrence” is defined in the policy as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Emphasis supplied.)

The word "accident,” unfortunately, is not defined in the policy. The term "bodily injury” is so defined, however; it means "bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom.”

It is apparent from these provisions that coverage is afforded in this case if, from the allegations in the Cromwells’ Declaration, it appears that (1) any of the injuries claimed by the Cromwells are "bodily injuries” or "property damage,” and (2) such injuries were "caused by an occurrence.” The first of these is not really in doubt; appellee does not dispute that at least some of the injuries claimed by the Cromwells amount to "bodily injuries.” The real issue is the second one, and, given the definition of "occurrence” and the lack of any suggestion that the Cromwells’ injuries arose from any "continuous or repeated exposure to conditions,” it boils down in the end to whether the injuries were caused by an "accident.” Coverage here depends on the interpretation of the word "accident,” in light of the allegations in the Declaration.

This is the type of issue that is "intertwined” between the two considerations mentioned by the Court in Pryseski; it involves both an interpretation of policy language and a careful look at the tort action. We proceed with this synthesis by restating the general principle laid down in Brohawn v. Transamerica Insurance Co., 276 Md. 396, 407-08 (1975):

"The obligation of an insurer to defend its insured under a contract provision such as here involved is determined by the allegations in the tort actions. If the plaintiffs in the tort suits allege a claim covered by the policy, the insurer has a duty to defend. . . . [citations omitted] Even if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the policy.” (Emphasis in the original.)

The question, in other words, is whether the acts and actions charged to appellant by the Cromwells, from which their injuries allegedly arose, can clearly or potentially be regarded as an "accident.”

Maryland follows the rule that, in construing the language of an insurance policy, the words used "are to be given their customary and normal meanings.” Harleysville Mutual Casualty Company v. Harris & Brooks, Inc., 248 Md. 148, 151 (1967). Thus, to determine what is meant by an "accident,” we look first to a dictionary, as we did in Simkins Industries, Inc. v. Lexington Insurance Company, 42 Md. App. 396, cert. den. 285 Md. 730 (1979), and as the Court of Appeals did in Harleysville Mutual Casualty Company. We find there (Webster’s Twentieth Century Dictionary) that an "accident” is "a happening; an event that takes place without one’s foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected.” The key ingredient is not merely a "happening,” for that would make every act or event an "accident”; rather, it is the unexpected nature of the event or its aftermath. 7A Appleman, Insurance Law and Practice, § 4492 (Berdal ed. 1979), states;

"An accident is anything that happens or is the result of that which is unanticipated and takes place without the insured’s foresight or anticipation.... As used in insurance policies it is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force, but it does not mean the natural and ordinary consequences of a negligent act.” (Emphasis supplied.)

With this focus on the expectability of the event or its consequences we can avoid the need to consider appellant’s subjective state of mind. There is no express disclaimer in the policy for acts "intentionally” done, and so it would make no difference whether appellant’s acts were prompted by malice or negligence, or some other motivating force. The only relevant consideration is whether, according to the Declaration, the chain of events leading to the injuries complained of was set in motion and followed a course consciously devised and controlled by appellant without the unexpected intervention of any third person or extrinsic force. Compare Pryseski, supra, where the Court discussed the undefíned word "occurrence” in the context of intentional conduct.

The Declaration plainly and unmistakably alleges that the injuries complained of by the Cromwells were the natural consequence of appellant’s charging Mrs. Cromwell with theft and causing her to be arrested. The implication is clear that, whether prompted by negligence or malice, (1) appellant’s acts were committed consciously and deliberately, without the unexpected intervention of any third force, and (2) the likely (and actual) effect of those acts was well within appellant’s foresight and anticipation. The Declaration permits no suggestion that it was by chance that appellant accused Mrs. Cromwell of being a thief, or that it was either by lack of design on his part or the unanticipated intervention of any third party or extrinsic force that she was arrested, or that he could have failed to anticipate that, once arrested, she would be subjected to the embarrassment, deprivation of liberty, and other indignities claimed by her. In short, if the events and consequences occurred as alleged in the Declaration, the Cromwells’ injuries cannot be said to have been caused by "an accident,” or, thusly, by "an occurrence.”

Appellant seeks support for his position from Levy v. Duclaux, 324 So.2d 1 (La.App. 1975), cert. den. 328 So.2d 887-88 (La. 1976), but we find that case to be unpersuasive. The court there did construe similar policy language as providing coverage where the insured shopowner was sued by a customer whom he had wrongfully accused of shoplifting. However, it appears that the court reached that conclusion merely upon a finding that the injuries claimed by the customer constituted "bodily injuries.” The court never addressed the more fundamental question of whether those injuries arose from an "occurrence”; at least the opinion does not reflect any such consideration. Compare American Home Assurance Company v. Osbourn, 47 Md. App. 73 (1980).

Upon the record before us, it is clear that the acts complained of in the tort suit did not constitute an "accident” or "occurrence,” and accordingly, there is not even the "potentiality” of coverage under the policy.

Judgment affirmed; appellant to pay the costs.

      . There are two appellants — Ed. Winkler & Son, Inc., the named insured, and Edward P. Winkler, the president of the corporation. As their respective interests in this proceeding are essentially the same and as appellee conceded in its answer to their bill for declaratory judgment that both are insureds under the policy, we shall refer to them collectively in the singular. The tortious acts complained of by the Cromwells were allegedly committed by Mr. Winkler, as an agent and employee of the corporation.


text:
    HARVEY FRANKLIN BOYD v. STATE OF MARYLAND
    [No. 905,
    September Term, 1981.]

      Decided March 5, 1982.

    The cause was submitted to Gilbert, C. J., and Moylan and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General,

      Michael A. Anselmi, Assistant Attorney General, AndrewL. Sonner, State’s Attorney for Montgomery County, and Robert Dean, Assistant State’s Attorney for Montgomery County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant was convicted in the Circuit Court for Montgomery County of armed robbery and use of a handgun in the commission of a felony, for which he was sentenced to a total of thirty-five years in prison. He claims in this appeal that because of a violation of the Interstate Agreement on Detainers (IAD), codified as Md. Code art. 27, §§ 616A — 616R, the indictment upon which his convictions rested lost its vitality, and that he never should have been brought to trial on it.

The circumstances here are most unusual, and the issue raised by appellant is a novel one.

It appears that in the spring of 1978, appellant, being at the time an escapee from the Patuxent Institution, sought to support himself by robbing Safeway stores in and around the District of Columbia. He seems to have been a bit too careless in some of his ventures, however, for (1) on May 10, 1978, he was indicted in Prince George’s County for armed robbery and various associated offenses arising out of the robbery of a Safeway store on March 31,1978; (2) on May 25, 1978, he was indicted in Montgomery County for similar offenses arising from the robbery of another Safeway store on April 18,1978; and (3) on June 22,1978, he was indicted in the District of Columbia for robbing a third Safeway store on April 7, 1978.

Although the District of Columbia was the last of the three jurisdictions to indict appellant, it was the first to acquire custody of him. He was arrested there on April 19, 1978 — the day after the last robbery — and incarcerated in lieu of $200,000 bond. Instead of being placed in the District of Columbia Jail, appellant was apparently committed to the Lorton Reformatory, a correctional institution located in Lorton, Virginia, but owned and operated by the D. C. correctional authorities.

On May 26, 1978, a bench warrant was issued in Montgomery County for appellant’s arrest. On June 5, the county sheriff sent a copy of the indictment and the bench warrant to the Fugitive Squad of the (D. C.) Metropolitan Police Department, advising that appellant was in the D. C. Jail and requesting that the warrant be filed as a detainer. At some point, the Montgomery County action was communicated to the District of Columbia correctional authorities, for on June 9, 1978, the Records Administrator of the D. C. Department of Corrections made a note of the Montgomery County detainer and gave appellant written notice that "A DETAINER HAS BEEN PLACED AGAINST YOU BY: METROPOLITAN POLICE DEPARTMENT IN FAVOR OF: MONTGOMERY COUNTY, MARYLAND CHARGING YOU WITH: A/ROBBERY, ASSAULT, AND USE OF HANDGUN (FELONY).”

Notwithstanding the obvious awareness of the D. C. authorities that appellant was in their custody, several weeks later the Metropolitan Police Fugitive Squad responded to the sheriffs request with the advice that appellant was not in their custody, but "that they were familiar with Mr. Boyd [appellant] and they would like to keep the warrant down there in their jurisdiction and they would attempt to locate Mr. Boyd on the street.” (Emphasis supplied.)

With this news, supposedly from "the horse’s mouth,” the sheriff entered appellant’s name in the National Criminal Information Center data bank so that the county would be notified if appellant were arrested anywhere in the country, but apparently did nothing more of an affirmative nature to locate him. Though presumably advised of the county detainer, appellant did not immediately pursue his rights under the IAD, to which both the District and Maryland are parties.

On August 30, 1978, appellant proceeded to trial in the District. Pursuant to a plea bargain, he pled guilty to armed robbery and, following a presentence investigation, he was, on November 1, 1978, sentenced to a term of from ten to thirty years. Appellant was recommitted to Lorton to begin serving his sentence.

On December 19, 1978, the State’s Attorney for Prince George’s County filed with the Superintendent of Lorton a request for temporary custody of appellant pursuant to Art. IV (a) of the IAD (Md. Code art. 27, § 616E) in order to try him on the open indictment in that county. He proposed to take custody of appellant at Lorton on January 29, 1979, for trial to commence on February 5, 1979. Pursuant to that request, appellant was in fact brought into Maryland where, on February 5, 1979, he pled guilty to one count of armed robbery and was sentenced to a term of ten years, consecutive to that being served in the District of Columbia.

Despite the D. C. Record Administrator’s awareness of the Montgomery County detainer, and despite the clear mandate of Art. IV(b) of the IAD that the D. C. authorities "furnish all other officers and appropriate courts in the receiving state [i.e., Maryland] who have lodged detainers against the prisoner.. . with notices informing them of the request for custody,” no one bothered to notify the Montgomery County authorities of the Prince George’s County request or that appellant would be in Maryland pursuant to it.

When he appeared in court in Prince George’s County, appellant mentioned, in the course of his plea for leniency, that "I got to go to Montgomery County sometime, I don’t know when, for armed robbery charge over there.” The remark passed without comment. Thus, his business finished in Prince George’s County, appellant was returned to the District of Columbia without the Montgomery County authorities ever knowing he was in the State.

Nothing more happened until May, 1980, when the Metropolitan Police Department advised the Montgomery County sheriff that it was still "unable to locate Mr. Boyd in the District of Columbia,” that D. C. would be returning the warrant, and that appellant might possibly be incarcerated in Prince George’s County. The sheriff thereupon recalled the warrant from the District of Columbia and filed a detainer with Prince George’s County.

Eventually, the Montgomery County authorities learned that appellant was indeed at Lorton. On June 10, 1980, the sheriff refiled the warrant with the Metropolitan Police Department, and on September 26, 1980, Montgomery County filed a request under IAD with the District of Columbia Department of Corrections for temporary custody of appellant, proposing to try him on the open indictment on November 13, 1980.

Appellant’s response to the Montgomery County action was a motion to dismiss the indictment for failure to comply with Art. IV (e) of IAD (Md. Code art. 27, § 616E (e)). Specifically, he argued that, once he was brought into Maryland pursuant to the Prince George’s County request, it was incumbent upon the State to try all open indictments upon which detainers had been lodged, and that any such indictment not disposed of prior to his return to the District had to be dismissed. The circuit court rejected that motion, following which appellant was tried, convicted, and sentenced.

In this appeal, appellant raises the single issue of whether the court erred in denying his motion to dismiss based on the requirements of IAD.

The history of IAD was summarized by the United States Supreme Court in United States v. Mauro, 436 U.S. 340 (1978); see also Parks v. State, 41 Md.App. 381, 383 (1979), aff'd 287 Md. 11 (1980); Abramson, Criminal Detainers, 91, et seq. (1979). Its function, a dual one, was well stated by Abramson, supra, at 93: "The IAD not only provides the inmate with a method of resolving the charges underlying detainers from another jurisdiction, but also provides prosecutors with a method for securing inmates incarcerated in other jurisdictions for trial before the expiration of their sentences.”

This dual aspect of the Agreement is evident in both its history and its provisions, and it ought to be kept firmly in mind. The Agreement recognized a commonality of interest among the accused, the accuser, and the current custodian in having open charges in the "accuser” jurisdiction efficiently resolved, and established procedures to achieve that end. It did this, essentially, by (1) requiring the custodial jurisdiction to inform the prisoner of all detainers filed against him by other jurisdictions (Art. Ill (c)); (2) enabling the prisoner to force a speedy trial on the charges underlying such detainers by demanding a prompt hearing and thus setting in motion procedures for his release to the accusing State for that purpose (Art. Ill (a)); (3) enabling the accusing State to secure the prisoner’s attendance for purposes of trial with or without a request by the prisoner (Arts. IV and V); and (4) providing acceptable procedures for the prisoner’s temporary release, interim custody, and return (Art. V (e)).

In creating this mechanism, the Agreement not only serves to protect the legitimate interests of the prisoner in having open charges expeditiously resolved, but also to harmonize the conflicting sovereign interests of the two States involved and to minimize any disruption to the prison regimen and the prisoner’s participation in it. To that latter end, the Agreement seeks to limit the interjurisdictional transfer of prisoners by requiring that the receiving State, once it has obtained custody of the prisoner under the Act, wrap up its business with him, so to speak, before returning him to the' custodial (sending) State.

This is ordinarily not too difficult when there is but one set of charges pending in the receiving State, or where, if there are multiple sets of charges, they emanate from the same prosecuting authority. The Agreement recognizes, however, the possibility that more than one prosecuting authority in a single State may want a prisoner for trial, and it places an initial coordinative responsibility on the correctional authorities of the custodial State in such cases. Whether a request for temporary custody emanates from the prisoner under Art. Ill or a prosecutor in the receiving State under Art. IV, the correctional authority of the custodial State is plainly responsible for notifying all other prosecutors in the receiving State who have lodged detainers against the prisoner of the request, and thus of his availability for trial.

It is in that context that the Agreement further provides, in Art. Ill (d) and Art. IV (e), that "[i]f trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment [pursuant to Article V (e) hereof,] such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” (Emphasis supplied.)

Those sections of the Agreement have been generally construed literally, and, with few exceptions, if a prosecutor acquires custody of a prisoner under the Agreement and permits his return before the completion of trial, the indictment has been dismissed. See, for example, Commonwealth v. Merlo, 364 A.2d 391 (Pa.Super. 1976); People v. Reyes, 98 Cal.App.3d 524 (1979); United States v. Sorrell, 413 F.Supp. 138 (E.D.Pa. 1976), aff'd 562 F.2d 227 (3d Cir. 1977), cert. den. 436 U.S. 949 (1978); and cf. United States v. Ford, reported with United States v. Mauro, supra, 436 U.S. 340. Compare, however, People v. Dye, 371 N.E.2d 630 (Ill. 1977); Neville v. Friedman, 367 N.E.2d 1341 (Ill. 1977), cert. den. 437 U.S. 903 (1978); People v. Bernstein, 344 N.Y.S.2d 786 (Dutchess Co.Ct. 1973); State ex rel. Stanley v. Davis, 569 S.W.2d 202 (Mo.App. 1978); United States v. Chico, 558 F.2d 1047 (2d Cir. 1977), cert. den. 436 U.S. 947 (1978).

Relying primarily on State v. Keener, 577 P.2d 1182 (Kan. 1978), cert. den. 439 U.S. 953 (1978), appellant argues that Art. IV (e) is applicable here and thus requires that the indictment be dismissed. We find Keener to be distinguishable, however, and conclude that Art. IV (e) is not applicable.

Mr. Keener, a Federal prisoner, was released to the State of Kansas under IAD pursuant to Art. IV requests by two Kansas counties — Sedgwick and Harvey. Sedgwick County was aware of the Harvey County charges; not only were they listed in the Federal warden’s response to the Sedgwick County request, but Sedgwick actually released Keener to Harvey County after his arrival in Kansas in order that he could be arraigned on the Harvey County charges. Following his arraignment in Harvey County but before trial, Keener was returned to Sedgwick County where he was convicted on a guilty plea. Without the knowledge or consent of Harvey County, he was then returned by Sedgwick County to Federal jurisdiction.

Over Keener’s objection, he was subsequently sent back to Harvey County where he was tried and convicted. The Kansas Supreme Court reversed the conviction in Harvey County, concluding simply that "[w]hen the state returned defendant without having tried him on all the outstanding charges pending in this state, defendant was entitled to have them dismissed with prejudice.” 577 P.2d at 1184.

The distinctions to be drawn between Keener and the case now before us are obvious ones. The Federal authorities delivered Keener to Kansas pursuant to both requests; Sedgwick County was aware of the open charges in Harvey County and presumably, of Harvey County’s invocation of IAD; and Harvey County was aware that Keener was in the State. In that set of circumstances, the appellate court’s conclusion is not unreasonable. The State had every opportunity to try Keener on all open charges and, through its own negligence, failed to do so. In that regard, the situation was not qualitatively different from the more frequent one in which the State, proceeding through a single prosecuting authority, erroneously returns the defendant prior to completion of the proceedings. Indeed, the cases relied upon by the Kansas court all involved that type of situation.

The key to this case lies in the actual language of Art. IV (e). That section does not require the dismissal of every indictment remaining untried after return of the prisoner, but only of those indictments "contemplated hereby.” Those words are obviously limiting ones, and they surely have some importance.

The Agreement, as we have seen, is a comprehensive one, and all of its parts have to be read together, in harmony, in order to carry out its dual purpose. In that light, an indictment "contemplated” in Art. IV (e) can only mean an indictment which (1) forms the basis of a detainer lodged against the prisoner pursuant to Art. Ill (a), and (2) is the object of either a request for final disposition by the prisoner pursuant to Art. Ill (a) or a request by the prosecutor for temporary custody under Art. IV (a). That is the clear thrust of United States v. Mauro, supra, 436 U.S. 340. See also Fasano v. Hall, 476 F.Supp. 291 (D.Mass. 1979), aff'd on other grounds, 615 F.2d 555 (1st Cir. 1980), cert. den. 449 U.S. 867, 101 S.Ct. 201 (1980).

Unlike Keener, however, the Montgomery County indictment does not meet that two-part test. Although, at the time of appellant’s first presence in Maryland pursuant to the Prince George’s County request a detainer had been lodged against him based upon the Montgomery County indictment, no request had been made by either appellant or Montgomery County for the disposition of that indictment, and appellant was not delivered to Maryland in order to be tried on that indictment. The second, critical, prong is therefore absent. For that reason, we find that the indictment before us was not one "contemplated” by Art. IV (e) in the context of appellant’s earlier appearance in Prince George’s County, and that that article does not, therefore, require its dismissal.

Judgment affirmed; appellant to pay the costs.

      . According to the sheriff, all detainers directed to the District of Columbia had to be filed through the Metropolitan Police Fugitive Squad.

      . The document given to appellant, as it appears in the record before us, contains only the information quoted above, and not the additional advice required by Art. Ill (c) of IAD: "his right to make a request for final disposition of the indictment ... on which the detainer is based.” Whether that information was given to appellant in some other way is not clear.

      . It is not clear what prompted this bit of misinformation. Although it appears that appellant was not at the D. C. Jail, as the Montgomery County prosecutor and sheriff thought, he was clearly in the custody of the D. C. Correctional authorities. The records before us indicate that at some point after his arrest, appellant was temporarily released by the D. C. authorities to Prince George’s County in order that he could be arraigned on the charges pending there. The arraignment took place on June 8,1978, following which appellant was returned to the District authorities.

      . This second hit of misinformation emanating from the Metropolitan Police Department touched off a comedy of errors. It turned out that appellant’s brother, Roger Boyd, who on one or more occasions had used appellant’s identification, was incarcerated in Prince George’s County; and, on two occasions, he (the brother) was erroneously produced in Montgomery County to be arraigned on appellant’s open indictment. The confusion was compounded by an apparent lack of communication between the Montgomery County sheriff and the prosecutor. The sheriff learned in June that appellant was at Lorton and, on June 10,1980, refiled the warrant with the Metropolitan Police Department. The prosecutor, apparently unaware of this, had Roger brought from Prince George’s County for arraignment on July 25, 1980. It was not until.August, 1980, said the prosecutor, that he learned from the Public Defender’s office (which was representing Roger) that appellant "was located in the D. C. or Federal system.” He then directed his staff to ascertain appellant’s whereabouts and to proceed under IAD.

      . See United States ex rel. Esola v. Groomes, 520 F.2d 830, 837 (3d Cir. 1975):
      "When a prisoner is needlessly shuttled between two jurisdictions, then any meaningful participation in an ongoing treatment program is effectively foreclosed for two reasons. First, participation requires physical presence and the continuous physical presence of a prisoner is not possible when multiple trips to a foreign jurisdiction are made. Secondly, the psychological strain resulting from uncertainty about any future sentence decreases an inmate’s desire to take advantage of institutional opportunities.” (Footnote omitted.)

      . Art. Ill (d) provides that any request for final disposition made by a prisoner operates as a request for disposition of all untried charges "on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed.” The custodial authority in that instance "shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner.” Similarly, Art. IV (b) provides that, upon receiving a request for custody from a prosecutor, the custodial authority "shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner... with notices informing them of the request for custody or availability and of the reasons therefor.”

      . The bracketed phrase appears in Art. IV (e), but not in Art. Ill (d). That is the only relevant difference between the two provisions. Art. V (e) provides that "[a]t the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.”

      . Although the Federal warden responded to the Sedgwick County request, the Harvey County request for custody had already been filed, and the charges underlying it were, as noted, specifically mentioned in the offer of custody.

      . By reason of this analysis, we need not consider the State’s curious argument that the sheriffs communication with the Metropolitan Police Department in June, 1978, enclosing a copy of the warrant and the indictment did not constitute a "detainer,” and that IAD is not applicable because no detainer had been filed by Montgomery County at the time of appellant’s appearance in Price George’s County. See, however, State v. Boone, 40 Md.App. 41, 44 (1978): "The LIAD] itself does not define the word 'detainer’ but it is generally recognized that the term refers to a notice directed to prison authorities informing them that charges are pending in another jurisdiction against an inmate.” Also Bean v. United States, 409 A.2d 1064 (D.C. 1979); United States v. Candelaria, 131 F.Supp. 797, 805 (S.D.Cal. 1955), quoting from Handbook on Interstate Crime Control; State v. Newman, 367 A.2d 200, 202 (R.1.1976); Lawrence v. Blackwell, 298 F.Supp. 708 (N.D.Ga. 1969); Hystad v. Rhay, 533 P.2d 409 (Wash.App. 1975).