author: Lowe, J.,

text:
    JOHN OWEN BISHOP v. STATE OF MARYLAND
    [No. 1071,
    September Term, 1977.]

      Decided May 12, 1978.

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

      Julian B. Stevens, Jr., with whom were Walter D. Murphy, Jr., and Rullman & Stevens on the brief, for appellant.

      Sally B. Gold, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert C. Ozer, Assistant Attorney General, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

This case is remarkable, if at all, not so much for the law involved as for the prominence of its actors, who include a Bishop (John Owen), two pawns and a knave. At play, the bishop is a miter-shaped chessman that is empowered to make diagonal movements across any number of unoccupied spaces on a chessboard — and takes whatever lies in its path. Although a very dangerous piece, because of its directional limitations it is more effective when working with others, and, because its distance movements are unrestricted, it is more effective when obscured in the background, letting other pieces face the danger of confrontation.

It is in just such a role that the State sees the appellant, John Owen Bishop. He was accused in the Circuit Court for Anne Arundel County (and convicted by a judge sitting as factfinder) of bribing Alford Robus Carey, Jr. (the then Executive Director of the School Construction Committee), and of assisting Carey in receiving bribes. Bishop was sentenced to five years imprisonment, but unlike the recipient of his questionable largess, he was not confined. However, he was fined $10,000 and required to restore to the State that which he, or his designee, received from the illegal transactions.

But we are not asked to decide here which was the more morally culpable and pecuniarily avaricious — he who gave or he who received — we are asked only to decide whether the testimony of the two persons through whom Bishop moved was sufficient to convict him in the absence of independent corroboration of their testimony.

One of the two persons, George Hargest, is conceded here to have been an accomplice in the criminal sense, leaving the corroborative problem revolving about the other person, Vernon Morton. The nature of the record is such that Morton’s testimony, though it varied in some aspects from that of Hargest, clearly corroborated it. As pointed out by the trial judge, however, the combined testimony of these two men manifestly demonstrated the guilt of the appellant Bishop. But if Morton is an accomplice, Harriday v. State, 228 Md. 593, 599, makes it clear that his testimony cannot be corroborated by another accomplice’s testimony.

Appellant progresses his evidentiary contentions in a short series of moves by which he hopes swiftly to place the State in check, vulnerable to his final move mating the State on grounds of evidentiary insufficiency. He suggests (and we agree) that without the testimony of the two immunized participants in the bribery scheme the remaining evidence would be insufficient to convict him. He then contends that both Hargest and Morton are accomplices in the scheme and that there is no independent evidence sufficient to corroborate their testimony, despite the fact that very little of such evidence is required. Brown, supra, at 244. While our review of the record would cause us to take issue with the allegation that there is no other corroborative evidence, sequentially we do not reach that question because appellant’s attack does not progress beyond his gambit, i.e., that because of his participation and immunization Morton is an accomplice as a matter of law. Because we hold that the evidence is not such as to indicate that Morton is an accomplice as a matter of law, Bishop’s attack is unable even to sacrifice his pawn, and he never reaches the second phase of his gambit, which would require our quantitative evaluation of whether other evidence sufficiently corroborated Morton’s testimony.

Appellant argues initially that reasonable minds could not differ on the question of whether Morton was an accomplice and urges that Morton be so proclaimed as a matter of law (citing Trovato v. State, 36 Md. App. 183, 189). Failing that, he would bind the State to its position taken during argument on the motion for judgment of acquittal at the close of the case, wherein the State explicitly (although parenthetically) conceded that both Hargest and Morton were accomplices, and argued simply that there was other corroborative evidence.

— the “concession” —

Looking at appellant’s contentions inversely, the record reveals the State’s “concession” as follows:

“ ... and I might say that there is no contention that Mr. Morton and Mr. Hargest are not accomplices for the purpose of needing corroboration. We are not about to contend that people who have knowingly participated in a bribery scheme are not accomplices to it, so our contention is not corroboration is unnecessary but rather that ample corroboration exists.”

It appears that appellant’s argument (that such concessions are binding upon the trial judge) rests upon cases that deal with the binding effect of attorneys’ stipulations, e.g., Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 45-46, or those cases submitted upon “admissions at the bar”, e.g., Bloom v. Graff, 191 Md. 733 (a reference which, in that case, related to the amount of damages “stipulated and agreed between counsel”. Id. at 735-736). Both of the cases cited, however, deal solely with stipulations read into the record during the evidentiary phase of the trial. That is a far cry from a negative concession made prefatory to argument (i.e., a statement of what will not be contended), which is obviously made for the purpose of quickly passing less persuasive points to reach, and emphasize, those which counsel feels are more in his favor. See generally Warner v. State, 202 Md. 601, 608.

Citing 2 Jones, Evidence (6th ed.), § 13:34, and presumably still contending that this argumentative “concession” was an evidentiary admission of fact, appellant argues that he was prejudicially misled into not putting on evidence, and that the concession operated as a fraud upon him. This argument is hardly convincing since the record reflects no objection, request to reopen the case, or similar protest when the State submitted a memorandum three days later in which it expressly withdrew its “concession”. Indeed, appellant acknowledged — and replied argumentatively to — that memorandum in his own memorandum, apparently having accepted the concession for what it was without decrying its withdrawal. If the State’s “ill-advised concession” operated as a fraud, appellant’s silent submission to the changed posture kept the trial judge from taking action to correct any prejudice such as is now claimed. Furthermore, had appellant’s subsequent silence been motivated by having descried the potential appellate argument, it was a judicial sandbag that belies his present claims of being fraudulently misled to his prejudice.

Whatever motivated his acquiescence, appellant had every opportunity to speak out and seek remedial action, either by written memorandum or in open court when the verdict was handed down after having been held sub curia. We will not, at this late hour, entertain his present complaints which hint at, but do not directly address, the serious charge of prosecutorial misconduct by intentionally misleading appellant to his detriment. Md. Rule 1085; Lohss and Sprenkle v. State, 272 Md. 113, 118-119.

— a factfinder’s decision —

The State’s case, sketchily stated, was that Alford Carey had provided State contracts for Globe Industries in exchange for which he received cash payments. These payments were initially arranged for by Bishop during a meeting in North Carolina at which he first approached Morton. Upon meeting adamant refusal by Morton, Bishop demanded, and Morton arranged for him, to meet with Morton’s employer, George Kane.

As a result of instructions given to Morton by Kane, Morton began paying Hargest commission checks. Although Hargest was entitled to commissions as a representative of materials manufacturers for Globe, his checks from Globe were used as a conduit through which Carey’s payoffs were conveyed. The commissions were inflated, the checks cashed and the proceeds shared with Carey in progressively increasing amounts. This procedure was arranged by Bishop at the Carolina meeting and was subsequently shepherded by him, with the pecuniary increments being made at his instance throughout the continuation of the scheme.

Acknowledging for purposes of this appeal that Hargest is an accomplice as has been conceded by the State, we must address appellant’s contention that Morton is an accomplice “as a matter of law”. To so hold, all of the testimony related thereto must be so clear and decisive that reasonable minds could not differ in reaching that conclusion. Trovato, supra, at 188. Since the generally accepted test of whether a witness is an accomplice is whether he could be convicted for the offense charged against the defendant, either as principal or accessory before the fact, Watson v. State, 208 Md. 210, 217, the court must find, in effect, that the testimony was so conclusive that, were a directed verdict of guilty available in a criminal trial, and had the witness been the party charged with the crime, it would have been the witness’s fate to have such entered against him. However:

“When the evidence relating to whether or not a witness is an accomplice is capable of being determined either way and justifies different inferences in respect thereto, the question is for the determination of the trier of fact and in a jury case should be submitted to the jury with proper instructions. 2 Wharton’s Criminal Evidence, supra, § 446, pp. 225-226. See cases cited in 23 C.J.S., Criminal Law, § 796c, p. 20, notes 31-34. So when a witness connected with the crime committed testifies to facts exculpating him or by his testimony endeavors to show his innocent intention or denies criminal complicity, his relation to the crime becomes a question for the determination of the trier of fact. Therefore, our function on appellate review, when the question is properly before us, is a matter of the sufficiency of the evidence. In a case tried by the court sitting as a jury, we determine whether the court was clearly wrong in its judgment on the evidence, Md. Rule 1086; in a case tried by a jury, we determine whether the court erred in submitting the evidence to the jury, Md. Rule 755. Cases in this jurisdiction support what we have said as to the determination of the complicity of a witness and as to our function on appeal.” (footnote omitted). Burley v. State, 5 Md. App. 469, 473-474.

The interpretive potential of the testimony is not, as a matter of law, restricted to the rigid contours maintained by appellant. To the contrary, we found not only the testimony inferentially flexible, but the argument logically persuasive that at worst Morton knew or should have known that his otherwise usual and legitimate role of issuing commission checks was likely to be the conduit for suspect payments to Carey. Furthermore, because a factfinder could have reasonably decided that notwithstanding that implicit suspicion, Morton’s participation — even so limited — was involuntary and without the prerequisite criminal intent, the question is one of fact and not of law. See Anno., Accomplices — Questions of Law or Fact, 19 A.L.R.2d, 1352, 1381. Judge Childs’ opinion set forth certain factual findings which support his conclusion.

“ ... from Wigmore in 2060 supplement page 135 it is manifest that a person acting under duress is not an accomplice because he could not be convicted of his participation in the crime charged. Under Maryland law an accomplice is defined as one who knowingly voluntarily and with common criminal intent with the principal offender unites with him in the commission of a crime either as principal or as an accessory before the fact, and this is from Butler vs. State, 19 Md. Appeals, 601, Watson vs. State, 208 Md., pg. 210, tested under these standards it appears to the Court that Morton did not [participate] voluntarily or with criminal intent — in his testimony he twice stated emphatically that he did not voluntarily participate in the scheme. When first approached by Mr. Bishop he adamantly refused to make payments to Carey. This refusal provoked a heated exchange between the two and was only after he was instructed to do so by his employer, Mr. Kane, who at the time was protecting his one hundred seventy-five thousand dollar investment in Globe Industries, that he agreed, that is Mr. Morton agreed, to the arrangement whereby Carey was to be paid through the means of a portion of George Hargest’s commissions said by Hargest to be approximately one-half of the net.”

We agree with the holding of the trial judge implicit in his denial of the appellant’s motion for judgment of acquittal, that a reasonable factfinder (in this case the same judge) could decide that Morton’s conduct was without criminal intent and amounted to an involuntary submission to participate with blinders in a scheme initiated by, and for the benefit of, others. There was no evidence that he participated for ill-gotten gain, despite his apparent awareness (or at least strong suspicion) that the scheme was in being and that his otherwise proper conduct aided in its completion. Morton’s initial refusal to participate and his subsequent reluctant participation followed only upon instructions from his employer after the arranged meeting with appellant relating to the payment of commissions and manner of invoicing. Moreover, he thereafter protested at least twice. Such deprecatory reluctance to participate in an otherwise legitimate — if suspect — act, together with an inferential fear of losing his employment by refusing his employer’s directives, without illicit gain or common purpose, constitutes sufficient evidence to raise the voluntariness issue to a question of fact. It would have been error to rule otherwise.

“We have held repeatedly that when evidence relating to whether a witness is an accomplice is capable of being determined either way and justifies different inferences in respect thereto, the question is for the determination of the trier of fact____” State v. Foster, 263 Md. 388, 393-394, cert. denied, 406 U. S. 908; Williams v. State, 19 Md. App. 582, 594, cert. denied, 271 Md. 747.

And see Trovato v. State, supra, 36 Md. App. at 187-188.

Thus, without regard to the absence of a prerequisite mens rea, the issue here regarding the coercion to participate is itself one of degree only. If after refusal, Morton’s life had been overtly threatened, there would be no question that such threat would give rise to a jury question. See Anno., supra, at 1358. So it is, although to a far lesser degree, when his livelihood has inferentially been threatened. A reasonable man (the judge as factfinder) decided the issue against appellant. The issue was properly before him and we do not find his decision to have been clearly erroneous. Md. Rule 1086. Since Morton was found by the factfinding judge not to be a voluntary accomplice, his testimony not only required no corroborating, it served to corroborate Hargest.

Finally, we find that the record does not support appellant’s two-sentence contention that despite our affirmance that Morton was not an accomplice, the evidence was so contradictory as to be insufficient. The testimony of Hargest and Morton, if believed, was overwhelmingly conclusive of Bishop’s guilt despite some inconsistencies.

And so it is as often happens, despite their limitations, the pawns who have been lined up by the more powerful pieces to buffer them (and are themselves subsequently offered for sacrifice), provide no protection at all, and, indeed, bring the game to its ultimate conclusion.

Judgments affirmed.

Costs to be paid by appellant.

      . His prison sentence was suspended.

      . It has recently been reaffirmed by the Court of Appeals in Brown v. State, 281 Md. 241, 244, that there must be some independent corroborative evidence — minimal though it need be — to establish, with some degree of cogency:
      1) the identity of the accused with the perpetrator of the crime, or
      2) the participation of the accused in the crime itself.

      . A “gambit” is an opening chess move in which one or more pawns are offered in exchange for a favorable position.

      . Corroboration of the testimony of Hargest and-Morton, if such were needed, need only be slight. Brown v. State, supra, at 244.

      . But for the concession it may not be so as a matter of law. The issue was not addressed to us and we make no such holding.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    JO ANN KEAHEY v. BILLY AVON DUNAGAN
    [No. 1108,
    September Term, 1977.]

      Decided May 12, 1978.

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

      John Noble, with whom were Vivian V. Simpson, Dennis M. McHugh and Simpson & Simpson on the brief, for appellant.

      James T Wharton, with whom were McCarthy & Wharton on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

In the early morning hours of June 3,1975, a car driven by Billy Avon Dunagan (appellee), in which Jo Ann Keahey (appellant) was a passenger, collided with a tree in Chevy Chase, Maryland, causing substantial injuries to Ms. Keahey. Claiming that she was, at the time of the accident, in the employ of Mr. Dunagan or his company, Ms. Keahey filed a claim under the California Workmen’s Compensation Act, and ultimately collected $30,000 under a compromise agreement approved by that State’s Workers’ Compensation Appeals Board. She also sued Mr. Dunagan in tort in the Circuit Court for Montgomery County. That court granted summary judgment against her, however, on the theory that, (1) if the accident arose out of and in the course of her employment for Mr. Dunagan or his company, workmen’s compensation benefits constituted an exclusive remedy, (2) by filing for, receiving, and accepting such benefits under the California Act, she is estopped from relitigating the issue of her employment status, and (3) by entering into the compromise agreement and accepting the benefits under it, she has released her employer. Ms. Keahey appeals from the action of the Circuit Court, but, because we believe that the court was correct, we affirm.

We need not recite all of the claims, counter-claims, and amended claims with respect to Ms. Keahey’s employment status. Suffice it to say that, beginning January 1,1975, and for some period of time thereafter (that being the issue in dispute) she was employed by Coast Merchandising Company which, at the time, was a sole proprietorship owned by Mr. Dunagan. The company was located in California and was insured, in accordance with the California Workmen’s Compensation laws, by Republic Indemnity Company. On April 19, 1975, Dunagan and Keahey set out on a three- to four-month business trip around the country. The purpose of the trip was to solicit potential investors in a venture known as the “Santa Claus Letter Program” and to sell Santa Claus masks; and it was in the course of that trip, on the leg from Lancaster, Pennsylvania to Washington, D.C., that the accident occurred.

On September 5, 1975, Ms. Keahey filed her claim for benefits under the California Workmen’s Compensation law. In her claim application, she alleged, among other things, that “the injured employee ... while employed under contract of employment made in California as a Secretary and Sales Representative on June 3, 1975 at Chevy Chase, Maryland, by the employer sustained injury arising out of and in the course of employment ... ”. She listed her “employer” as Coast Merchandising Company. Republic Indemnity Company, Coast’s insurer, filed an answer to the claim in which it denied Keahey’s allegations as to “Injury”, “Liability for self procured treatment”, “Liability for future medical treatment”, “Medical-legal costs”, “Earnings”, “Periods of disability”, and “Permanent disability”. Significantly, however, although a simple “x” would have sufficed to accomplish the result, it did not deny Keahey’s allegations of “Employment”, “Occupation”, or “Insurance coverage”.

While the California proceeding was pending, Keahey, on May 13, 1976, filed this action against Dunagan in Montgomery County. The Declaration makes no specific mention of Keahey’s employment status at the time of the accident. Dunagan’s plea to this Declaration was filed on July 16,1976, part of which was a “special plea” claiming that Keahey’s claim “is barred by the exclusiveness of the Workmen’s Compensation remedy.”

On August 3, 1976, aware of the Maryland proceeding, Keahey’s California counsel filed a Trial Brief with the California Workers’ Compensation Appeals Board, in which he stated, in relevant part:

“JO ANN KEAHEY, applicant, was injured on June 3,1975 as a result of an automobile accident which took place in the State of Maryland. The automobile in which she was a passenger was driven by Billy Dunagan, who lost control and struck a stationary object----On the date of the accident both Mr. Dunagan and applicant were employees of Coast Merchandising Company, a California corporation----The applicant and Mr. Dunagan were traveling from Lancaster, Pennsylvania to Washington, D.C. for the purpose of keeping a business appointment. The accident took place during the course of an extended business trip. ” (Emphasis supplied.)

Later in this Trial Memorandum, with particular reference to the issue of whether the accident arose in the course of Keahey’s employment, counsel asserted that “[t]he journey from Lancaster, Pennsylvania to Washington, D.C. was contemplated when the sales trip was commenced. The applicant was engaged in a business trip as a commercial traveler and thus should not be denied compensation.” Pointing out the existence of the action in Maryland, counsel urged:

“No personal injury award is certain until judgment. At this point applicant’s right to recovery in Maryland is not litigated. Her statutory right to Workers’ Compensation benefits is established. Defendants should argue exclusivity in the Maryland court, not before the Workers’ Compensation Appeals Board in California____No election has been made by applicant. The complaint in Maryland was filed to protect her rights under that State’s laws.”

That same day, August 3, 1976, Keahey appeared before the Workers’ Compensation Appeals Board, the result of which apparently was a settlement of the matter. The official minutes of the hearing show as the disposition, “Fifteen days to the parties to file Compromise and Release.” Indeed, on August 11, the parties entered into a formal Compromise and Release. That agreement states that, “for the purpose of compromise only”, the parties submitted certain “agreed statements of fact”, among which were:

(1) That Keahey “claims that [s]he was employed on the 3rd day of June, 1975 at Chevy Chase, Maryland as a secretary & sales representative by Coast Merchandising Co. ... and that [s]he sustained an injury arising out of and in the course of her employment”;
(2) That “[t]he employee’s present disability is in dispute..
(3) That “[t]he parties hereby agree to settle any and all claims on account of said injury by the payment of the sum of $30,000..

In the paragraph of the agreement captioned “Reason for Compromise”, the parties stated:

“Defendants deny the applicant sustained injuries arising out of and occurring in the course of employment. A serious issue exists in that regard involving complex legal and factual disputes. Further, other substantial issues exist as to the nature, extent and duration of disability and liability for past and future medical expenses. Applicant has a third party matter pending in connection with the accident in Maryland. All parties desire to settle the matter at this time for one lump sum and to avoid the hazards and delays of litigation.”

Finally, paragraph 11 of the agreement provides:

“Upon approval of this Compromise Agreement by the Workers’ Compensation Appeals Board or a Referee, and payment in accordance with the provisions hereof, said employee releases and forever discharges said employer and insurance carrier from all claims and causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury----”

On August 24, 1976, the Compromise Agreement was approved by the Board, and thereafter the $30,000 was paid out in accordance with the agreement.

Appellant makes two contentions in her appeal. First, she claims that the court erred in ruling, as a matter of law, that she was estopped from maintaining a tort action after entering into the compromise agreement. Second, she argues that the court erred in ruling, as a matter of law, that by accepting the workmen’s compensation benefits she released Dunagan from tort liability.

Upon close examination, her first contention embodies two propositions. She first states the issue to be whether the application for and acceptance of benefits under the agreement precludes the maintenance of a tort action against the party identified as the employer in the workmen’s compensation proceeding. She moves from that, however, to contend that, because she has asserted under oath in this case that she was not an employee of Coastal on June 3,1975, there exists a genuine dispute of material fact — her employment status — and, for that reason, summary judgment was inappropriate. We need deal only with the first of these sub-propositions; if, as a matter of law, her acceptance of the agreement and the benefits under it precludes her from maintaining this action, it would make no difference whether she raised, or purported to raise, an issue as to her employment status.

We start with the general proposition that, both in Maryland and California, where recovery of workmen’s compensation benefits is available, that remedy is normally an exclusive one, and a tort action against an employer who is in compliance with the requirements of the workmen’s compensation laws is not permitted. Thus, if appellant had applied for and received benefits under the Maryland workmen’s compensation law, this action would clearly have been barred; and, if she had received the scheduled benefits under the California law, she would not have been permitted to maintain this action in the California courts.

The narrow questions, then, are (1) will the application for and receipt of benefits under the California Act bar a suit in Maryland, and (2) does the acceptance of benefits under the compromise agreement have the same effect as would the acceptance of scheduled benefits awarded by the Workers’ Compensation Appeals Board.

Article 101, § 21 (c) (4) provides that an employee and his employer who are not residents of Maryland, and whose contract of employment is entered into in another State, are exempt from the provisions of Article 101 while the employee is temporarily within Maryland doing work for the non-resident employer if (1) the employer has furnished workmen’s compensation insurance coverage under the laws of its State so as to cover the employee’s employment while in Maryland, and (2) provisions similar to this are included in the workmen’s compensation laws of that other State (i.e., there is reciprocity). In such event, § 21 (c) (4) provides:

“The benefits under the workmen’s compensation act or similar laws of such other state shall be the exclusive remedy against such employer for any injury, whether resulting in death or not, received by such employee while working for such employer in this State.”

Both conditions set forth in § 21 (c) (4) are met in this case. That Coastal furnished workmen’s compensation coverage for Keahey is evident from the proceedings in California, in particular the failure of the insurer to deny coverage in its answer to Ms. Keahey’s claim and the compromise agreement itself. Statutory reciprocity of the type required by the Maryland statute is found in California Labor Code, § 3600.5 (b), a provision nearly identical to the Maryland one. It is therefore clear that Maryland must, and therefore does, recognize the exclusivity of the California workmen’s compensation remedy where, as here, that remedy was in fact available and utilized by the injured employee. Accordingly, the first of the questions must be answered in the affirmative.

With respect to the second question, appellant asserts that the agreement did not foreclose this action because her employment status was never truly litigated or resolved. The intent of the parties, she says, was to leave open the Maryland tort case and settle only the California Compensation case; and she points to Bugg v. Fairview Farms, Inc., 189 N.W.2d 291 (Mich., 1971), Johnson v. Dave's Auto Center, Inc., 476 P. 2d 190 (Or., 1970), and Rich v. Dyna Technology, Inc., 204 N.W.2d 867 (Iowa, 1973), as authority for the proposition that this case may proceed. Those cases, however, are distinguishable.

Each of these cases involved a situation where a claimant had entered into a settlement or compromise agreement in a workmen’s compensation proceeding and was nevertheless allowed to pursue a pending or subsequent action at law; but that is where the similarity ends. In Bugg, the Michigan court made clear that its decision rested on a finding that the Agreement specifically reserved the issue of employment status at the time of the accident for determination in the wrongful death action. All right of subrogation was waived by the compensation carrier, and the parties made clear that it was a settlement “based upon our defense that the injury to Mr. Bugg and his resulting death did not arise out of and in the course of the employment.” It was in that context that the Court stated (189 N.W.2d at 298):

“We hold that in light of the agreement of the parties to the compensation case that the disputed conditions of liability under the act would be reserved for determination in this law action, these defendants are estopped to raise the claim of release____We regard the payment by the employer pursuant to the redemption agreement under the circumstances of this case as tantamount to a voluntary payment... and hold that it may not be pleaded in bar in the instant law suit.” (Emphasis supplied.)

Johnson v. Dave’s Auto Center, Inc. appears to be a case of somewhat strained reasoning applied to avert an unjust result. A claim had been made under the Workmen’s Compensation Act, which the employer defended on the ground that the claimant was not its employee at the time of the accident. Eventually, a compromise agreement was reached in which, without admitting employment, the employer paid the employee’s outstanding medical bills and nothing more. The Court viewed this compromise as settling only the claim for medical bills, not the claim for disability payments, a situation due primarily to the employer’s denial of the requisite employment status. Yet, in the subsequent action at law, the employer asserted both that the plaintiff was an employee and that the workmen’s compensation remedy was exclusive. Concluding that the inconsistency of the employer’s position was at least as great as that of the plaintiff, the court, in effect, held that the employer was estopped from raising the defense of estoppel against the plaintiff, stating, at .476 P. 2d 197, "Under these facts and circumstances, and for these reasons, we hold that the compromise settlement ... does not bar plaintiff from proceeding with this action against defendants, either as a matter of election of remedies, estoppel or res judicata.” (Emphasis supplied.)

Finally, in Rich v. Dyna Technology, Inc., the agreement in the workmen’s compensation case stipulated that the claimant did not receive a compensable injury during and in the course of his employment, and that his injuries “were in no way work connected.” It was stipulated that if the matter went to hearing, the claimant had grave doubts as to whether he could recover. On that basis, in return for payment of his medical expenses, the claimant agreed to dismiss the workmen’s compensation claim. This agreement, the court concluded, did not serve to preclude an action to recover benefits under the employer’s group health and accident policy. No tort action against the employer was involved.

In both Bugg and Johnson, the employer had taken entirely inconsistent positions, claiming in the compensation case that the claimant was not an employee and claiming in the action at law not only that he was but that the compromise in the compensation case, no doubt induced by the denial of employment, was exclusive. In both cases, the question of whether the claimant was an employee was clearly reserved for resolution in the law action. This case is different. The record does not disclose that the compensation carrier ever denied that Keahey was an employee; and neither the agreement nor the order approving it gives any clear indication that that issue was to be reserved. Indeed, the trial memorandum submitted on behalf of Ms. Keahey in the compensation case suggests that the employer argue “exclusivity” in the pending Maryland action.

In these circumstances, appellant’s argument cannot stand under the plain and unambiguous provisions of § 21 (c) (4). The Compromise Agreement at issue here has validity only to the extent that it is authorized by and comports with the requirements of the California workmen’s compensation law. Thus, benefits paid under such an agreement, approved by the Appeals Board, are “benefits under the workmen's compensation ... laws of such other state” and, under § 21 (c) (4) are therefore “the exclusive remedy against such employer for any injury ... received by such employee while working for such employer in this State.”

In general comformance with this view is Kelly v. Eclipse Motor Line, 305 F. Supp. 191 (D. Md., 1969), aff’d 432 F. 2d 1009 (4th Cir., 1970). The plaintiff there, a Pennsylvania resident injured in Maryland, sought workmen’s compensation benefits under the Pennsylvania law. In accordance with that law, he entered into a compromise agreement with his “employer” (Eclipse) and received the benefits thereunder. In disposing, on summary judgment, of his subsequent action at law against Eclipse, the District Court stated (305 F. Supp. at 201):

“Kelly seeks herein to establish de novo that he was an independent contractor and not an employee. However, a plaintiff such as Kelly is not permitted to run a horse and wagon through the provisions of the Pennsylvania law and to upset an agreement thereunder by raising de novo in a tort proceeding the question of whether he was an employee or an independent contractor, and by contending in a tort case that he entered into the compensation agreement because of a mistaken assumption on his part that he was an employee.”

A “wrinkle” in that case was the fact that, unlike California, Pennsylvania did not extend extra-territorial reciprocity to Maryland employers and employees, thus precluding the automatic application of § 21 (c) (4). Nevertheless, the court assumed that the Maryland court would apply the Pennsylvania exclusivity of remedy provision in any event; and upon that premise, it granted summary judgment against the plaintiff. Given the fact that California does extend reciprocity, we need not engage in assumptions; § 21 (c) (4) is clearly applicable and requires the result we reach.

No claim is made by Ms. Keahey that the California agreement is invalid. Therefore, notwithstanding the somewhat ambiguous language concerning the pending lawsuit in Maryland in the part dealing with “Reason for Compromise”, the unambiguous provisions of paragraph 11, releasing and forever discharging the employer “from all claims and causes of action” arising or developing “as a result of said injury” must be given effect in accordance with their plain language.

Judgment affirmed; appellant to pay the costs.

      . This enterprise was incorporated as Coast Merchandising Corp. under the laws of California on September 12, 1975.

      . The only reference in the Declaration to her employment was the claim that, as a result of the injuries sustained, Keahey “nas lost, and may in the future lose, time from her employment, thereby suffering a great loss of income.”

      . The California Workmen’s Compensation law permits the interested parties to compromise any liability claimed to exist under the Act by means of a written release or compromise agreement filed with and approved by the Workers’ Compensation Appeals Board. See California Labor Code, §§ 5000-5003. Compare an analogous provision in Md. Annot. Code, art. 101, § 52.

      . Md. Annot. Code art. 101, § 15, requires every employer subject to the provisions of the article to pay or provide for compensation, according to schedules set forth in the article, for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault. It further provides, with an exception not relevant here, that this liability “shall be exclusive.” See Wood v. Aetna Cas. & Surety Co., 260 Md. 651 (1971), interpreting Victory Sparkler Co. v. Francks, 147 Md. 368 (1925); also Baltimore Transit Co. v. State, 183 Md. 674 (1944). The same exclusivity of workmen’s compensation benefits is expressed in the California law. See California Labor Code, § 3601: “Where the conditions of compensation exists, the right to recover such compensation ... [with an exception not relevant here] is the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment ” Also Shook v. Jacuzzi, 59 Cal. App. 3d 978 (1976); Pacific Gas & Electric Co. v. Morse, 6 Cal. App. 3d 707 (1970); Solari v. Atlas-Universal Service, Inc., 215 Cal. App. 2d 587 (1963).

      . Labor Code, § 5000 authorizes the parties to compromise liability “subject to the provisions herein contained”. Among those provisions are: (1) § 5001 providing that no “release of liability or compromise agreement is valid unless it is approved by the appeals board or referee”; (2) § 5002 requiring that a copy of the agreement, signed by both parties, must be filed with the appeals board; and (3) § 5003 setting forth the required form and contents of such agreements.

      . At the time, the provision was codified in § 67 (3) of article 101.


author: Gilbert, C. J.,

text:
    THE CALVARY PRESBYTERIAN CHURCH OF BALTIMORE CITY etc., et al. v. THE PRESBYTERY OF BALTIMORE OF THE UNITED PRESBYTERIAN CHURCH, IN THE UNITED STATES OF AMERICA et al.
    [No. 1114,
    September Term, 1977.]

      Decided May 12, 1978.

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

      Gerald E. Topper for appellants.

      Richard W. Kiefer and Dorothy M. Beaman for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

The commandment of Watson v. Jones, 80 U. S. (13 Wall.) 679, 20 L. Ed. 666 (1871), addressed to the courts, is that thou shalt not delve deeply into jurisdictional disputes among churches. That precept is a direct outgrowth of the First Amendment’s fiat that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof----” U.S. Const, amend I. That language, as Thomas Jefferson viewed it, built “a wall of separation between church and State.” The “wall of separation” does not mean that courts havé been stripped of all power to inquire into disputes arising among church members. Indeed, “[t]he state has a legitimate interest in keeping title and ownership in land settled and secure.” Note, Judicial Intervention in Church Property Disputes Some Constitutional Considerations, 74 Yale L.J. 1113, 1130 (1965). The State’s interest in the protection of its citizenry necessitates that it know “at all times the owners of property within its borders,” Id., so that in the event one is injured on that property, the owner may be readily located. Id. Moreover, the State is cognizant of the words of Sir Henry Wotton (1568-1639) that “[t]he itch of disputing will prove the scab of churches,” and it affords the disputants a forum for “some recourse other than the sword for settling their disputes.,..” Id. See also The Maryland and Virginia Eldership of the Churches of God v. The Church of God at Sharpsburg, Inc., 249 Md. 650, 677, 241 A. 2d 691, 706-07 (1968), vacated and remanded, 393 U. S. 528, 89 S. Ct. 850, 21 L.Ed.2d 750 (1969).

The Circuit Court for Baltimore City was the forum in which the parties to this appeal went to resolve a church property ownership question. The late Judge Robert L. Sullivan decided the matter in favor of the appellees, The Presbytery of Baltimore of the United Presbyterian Church in the United States of America (United), an unincorporated association. The appellants, The Calvary Presbyterian Church of Baltimore City (Calvary), a body corporate of the State of Maryland, unmistakably aggrieved at Judge Sullivan’s decision, have appealed to this Court.

Calvary advances two (2) issues, videlicet:

“1. Where there was no provision in its corporate charter, deeds or religious constitution, if THE CALVARY PRESBYTERIAN CHURCH OF BALTIMORE CITY voted to withdraw from THE PRESBYTARY OF BALTIMORE OF THE UNITED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA to affiliate itself with another branch of the Presbyterian Church, The Presbyterian Church in America, did the right of possession and control of the local church property remain in CALVARY or could UNITED thereafter determine to dissolve CALVARY and seize CALVARY’S property even though CALVARY remained Presbyterian in doctrine and affiliation?
2. Where the Appellant Church was incorporated in the year 1911, and thereafter acquired property in its name, under United States and Maryland Constitutions and stated circumstances, what was the legal effect of a subsequent legislative enactment calling for amendment of Appellants [s/c] Church’s Charter without CALVARY’S consent or notice.”

More ingeniously, the question before us is who owns the church property, Calvary or United?

THE FACTS.

From the “Agreed Statement of Facts,” we learn that United is organized and functions pursuant to a constitution which consists of two (2) parts: The Book of Confession and. The Book of Order. It is the latter with which we are concerned.

The Book of Order is divided into three (3) main subdivisions: 1) “The Directory for the Worship of God”; 2) “The Form of Government”; and 3) “The Book of Church Discipline.” The first and third subdivisions deal with “questions of discipline, or of faith, or ecclesiastical rule, custom or law.” Watson v. Jones, 80 U. S. at 727, 20 L. Ed. at 676. As such, we are precluded from inquiring into them by the constitutional barrier, erected by the First Amendment, between the church and the State. We, therefore, turn our attention to The Book of Order subdivision entitled, “The Form of Government.”

It is necessary to know that Calvary is one of the seventy-nine (79) United Presbyterian Churches located in Baltimore City and the counties of Allegany, Anne Arundel, Baltimore, Carroll, Frederick, Harford, Howard, and Washington. United is an association of Presbyterian churches governed by four (4) bodies styled as “judicatories.” In ascending ordér of authority, the four (4) are:

1) the session which is “charged with maintaining the spiritual government of the congregation,” The Book of Order, “The Form of Government,” Ch. XI § 41.06 (1967), and those matters appertaining thereto. The session has “exclusive authority over the uses to which the church buildings and properties may be put...” Id. at § 41.07;
2) the presbytery “consists of all the ministers ... and at least one ruling elder commissioner from each church, within a certain district ... [composed of not less than] twelve churches.” Id. at Ch. XII § 42.01. It “has power to ... decide [all] appeals, complaints, and references,” Id. at § 42.08, properly brought, “and in cases in which the session cannot exercise its authority,” Id., the presbytery may assume original jurisdiction. Of more direct importance to the instant case is the fact that the presbytery possesses the power “to review and approve the records of church sessions, and to require their correction; to redress whatever they may have done contrary to order, and to take effectual care that they observe the Constitution of the Church ...” Id.;
3) the synod is comprised “of the ministers and ruling elders of not fewer than three presbyteries within a specific geographic region.” Id. at Ch. XIII § 43.01. Inter aha, it decides appeals from presbyteries;
4) “The General Assembly is the highest judicatory ... and ... represents] in one body all the particular churches thereof. It ... bear[s] the title of The General Assembly of the United Presbyterian Church in the United States of America.” Id. at Ch. XIV § 44.01. (Emphasis supplied.)

The “Agreed Statement of Facts” contains the following background eventually leading to the matter’s being before us:

“A particular church can be organized only by the authority of the presbytery. The organization of the CALVARY congregation was approved by the Presbytery on October 4,1910, and a corporation to hold title to property for the congregation was formed on February 3,1911. Article VI of its charter provides:
‘ARTICLE VI. The “Calvary Presbyterian Church of Baltimore City” shall forever remain a Presbyterian Church in doctrine, government, and worship in accordance with the standards of the Presbyterian Church in the United States of American (sic), that is to say, the Confession of Faith, and the Larger and Shorter Cathechisms (sic), and in ecclesiastical connection with the “Presbytery of Baltimore,” in accordance with its organization by said Presbytery, on the 4th day of October, in the year one thousand nine hundred and ten____’
At the time CALVARY was incorporated, the Presbytery of Baltimore was part of the Presbyterian Church in the United States of America. At the 505th stated meeting of the Presbytery held on April 22 and 23, 1957, at which CALVARY’S minister and one of its elders were present and voting, the Presbytery voted for the proposed plan of union with The United Presbyterian Church of North America. On May 28, 1958, The Presbyterian Church in the United States of America and The United Presbyterian Church of North America united to form the Church now known as THE UNITED PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA (UNITED). At the Presbytery’s 511th stated meeting held on June 10, 1958, at which representatives of CALVARY were present and voting, the Presbytery took official notice of the union and the Church’s new name.
In 1913, the Presbyterian Association, an arm of the Presbytery, acquired title to unimproved land on the west side of Patuxent Street, now Linwood Avenue, and bounded on the south by McElderry Street and to the north by the center of Logan Street, and sold and conveyed a portion to CALVARY in 1914. CALVARY borrowed Eight Thousand Dollars ($8,000.00) from the Church Erection Fund of the General Assembly of The Presbyterian Church in the United States of America secured by a mortgage on the property. In 1930, The Presbyterian Association sold and conveyed the remainder of the land to CALVARY. CALVARY Church borrowed Four Thousand Five Hundred Dollars ($4,500.00) from the Board of National Missions of The Presbyterian Church in the United States of America secured by a mortgage on the property. All loans and mortgages have been paid, and title to the real property remains in the name of CALVARY.
CALVARY has been a member of and subject to the jurisdiction of the Presbytery of Baltimore since its founding in 1911 and has, until the latter part of 1975 or early part of 1976, been a full voting participant in the affairs of the Presbytery. For the past 64 years, from 1911 through 1975, the CALVARY session regularly submitted its records to the Presbytery for review and approval in accordance with the Form of Government....
The first official record of any conflict between the members of the CALVARY session and the Presbytery appears in the minutes of the regular meeting of the session held June 11, 1975. The minutes relfect [s/e] the following entry:
‘Because of recent developments a motion was made, seconded and approved to send a complaint to the Synod of the Piedmont.[]
TO THE SYNOD OF THE PIEDMONT
Rev. Charles F. Kukal and the Session of Calvary Presbyterian Church, complainant, hereby complains to the Synod of the Piedmont, against the action of the Presbytery of Baltimore, made at the Deer Creek Harmony Church in Darlington, Maryland, on the 22nd day of May, 1975* * *
Complainant says he has a right to complain because he is a minister enrolled as a member of the Presbytery of Baltimore, and as a session subject to and submitting to the jurisdiction of the Presbytery of Baltimore.’

The CALVARY session met on December 17, 1975, and the minutes of that meeting contain the following:

‘RECOMMENDATION: The following motion made, seconded and approved:
The Session of Calvary Presbyterian Church recommends to the congregation that we, as a church, disassociate ourselves from the United Presbyterian Church, United States of America, and ecclesiastical connection with the Presbytery of Baltimore and seek affiliation with the Presbyterian Church in America.’

A special meeting of the CALVARY congregation was held on .December 28, 1975, the minutes of which reflect ... [the adoption of the recommendation].

In addition to UNITED, there are a number of other denominations using the word ‘Presbyterian’ in their names.... [There are two (2) large Presbyterian churches, United and the Presbyterian Church in the United States.] There are a number of smaller splinter denominations, one of which is the Presbyterian Church in America, which the Appellants have joined. Because of their Presbyterian form of government, all of these churches have sessions governing the individual churches, presbyteries, synods and General Assemblies. However, though there may be local churches in the Baltimore area associated with some of these other Presbyterian Churches, none of them have a presbytery located in Baltimore.

[The Calvary session issued its ‘call to arms’ on January 9, 1976. In a letter to the membership of Calvary, the session enumerated nine (9) specific items of discontent with United, and made clear that the nine (9) were ‘not a complete list.’ The session correctly prophesied that United would not sanction the ‘dismissal of a congregation with its property.’ The membership was informed that ‘[a] legal fight to retain the property’ would come about if Calvary disassociated itself with United.]

At the regular annual meeting of the congregation held on January 18, 1976, the CALVARY congregation reaffirmed its action of December 28, 1975.

The Presbytery at its regular monthly meeting on January 22, 1976, adopted the following resolution:

‘WHEREAS, the Presbytery of Baltimore is informed that the Calvary United Presbyterian Church at a congregational meeting on January 18,1976 did arbitrarily and illegally vote to disassociate itself from the UPCUSA and that it is affected by this and other possible disorders,
Therefore, BE IT RESOLVED:
A. That the Presbytery of Baltimore authorize an Administrative Commission for the purpose of investigating and formulating recommendations to the Presbytery of Baltimore with respect to possible disorders in the Calvary United Presbyterian Church, and particularly to recommend to the Presbytery whether or not the Session should be dissolved and replaced by an Administrative Commission as described in Book of Order 41.15. * * *
E. That the Administrative Commission shall complete its investigation and submit its recommendations at an adjourned meeting of this Presbytery on Tuesday, February 3, 1976 at Faith Church in Baltimore at 4:00 P.M. * * *
G. That the Stated Clerk and the Moderator shall communicate promptly and directly to the members of the Calvary United Presbyterian Church this action taken by the Presbytery of Baltimore. * * * ’
The Administrative Commission investigated the alleged disorders, advised the Clerk and individual members of the Session of CALVARY, by a letter dated January 27, 1976, and sent to each of said members, both by registered and ordinary mail, that the Commission intended to recommend to the Presbytery at its meeting to be held on February 3, 1976 that Presbytery appoint a new Administrative Commission composed of ministers and ruling elders with the full power of a Session to take the place of the existing Session of CALVARY, after which the present Session of CALVARY would cease to act until such time as Presbytery should otherwise direct and further advising said Appellants that they would be afforded an opportunity for a hearing before said Presbytery at said meeting.
The Presbytery met on February 3, 1976, at 4:00 P.M., at the Faith Presbyterian Church, for the purpose of hearing and acting on the report of the Administrative Commission. The Commission presented its report and unanimously recommended that the Session of CALVARY be dissolved and a new Administrative Commission assume the duties of said Session. No members of the CALVARY Session nor any other members of the congregation of CALVARY made known his presence, if in fact any were present, or raised any defenses to said recommendations and the Presbytery unanimously adopted the following resolution:
‘That the Session of the Calvary Presbyterian Church be dissolved effective February 3, 1976, and that the moderator appoint an Administrative Commission to assume the duties of the Calvary Session until such time as the Commission so appointed and charged recommends other actions to the Presbytery.’
The individuals named as Appellees in this action were appointed to be the Administrative Commission to assume all the duties and responsibilities of the CALVARY Session.
Thereafter, by arrangement of legal counsel for both parties, the Administrative Commission met informally with members of the deposed session on March 24, 1976 at the Church. At this meeting, the leaders of the deposed session made it clear that the members of the deposed session and the Board of Trustees refused to recognize the authority of the Administrative Commission and the Presbytery.
Further offers by the Commission to meet with members of the deposed session were rejected and finally the Commission, acting in its capacity as Session of the CALVARY Church, called a meeting of the congregation on Sunday, October 17,1976, at the Church. When members of the Commission arrived at the Church, they were requested to leave the premises by Officers of the Baltimore City Police Department, who had been summoned to the premises by members of the deposed session.”

After issue was joined in the circuit court, United filed a motion for summary, judgment, under Md. Rule 610. Judge Sullivan granted the motion.

THE LAW.

Calvary asserts that the chancellor “delved deeply into the religious law and usage to arrive at his decision,” citing the concurring opinion of Mr. Justice Brennan in Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U. S. 367, 369, 90 S. Ct. 499, 500-01, 24 L.Ed.2d 582, 584 (1970) (concurring opinion). Justice Brennan wrote:

“Under Watson civil courts do not inquire whether the relevant church governing body has power under religious law to control the property in question. Such a determination, unlike the identification of the governing body, frequently necessitates the interpretation of ambiguous religious law and usage. To permit civil courts to probe deeply enough into the allocation of power within a church so as to decide where religious law places control over the use of church property would violate the First Amendment in much the same manner as civil determination of religious doctrine.” (Footnote omitted.)

We observe that Mr. Justice Brennan’s remarks were contained in a concurring opinion, not the opinion of the Court, and secondly, they are pure dicta as any reading of Judge Barnes’s opinion in The Maryland and Virginia Eldership of the Churches of God v. The Church of God at Sharpsburg, Inc., 254 Md. 162, 254 A. 2d 162 (1969), will reveal. Both Sharpsburg cases, 249 Md. 650, 241 A. 2d 691 (1968), vacated and remanded, 393 U. S. 528, 89 S. Ct. 850, 21 L.Ed.2d 750 (1969), and 254 Md. 162, 254 A. 2d 162 (1969), appeal dismissed, 396 U. S. 367, 90 S. Ct. 499, 24 L.Ed.2d 582 (1970), decided by the Court of Appeals made manifest that the Court was not passing upon “any doctrinal or theological issue,” 254 Md. at 173, 254 A. 2d at 169, but was deciding the case upon “neutral principles of law.” Id. See also Hayman v. St. Martin’s Evangelical Lutheran Church, 227 Md. 338, 176 A. 2d 772 (1962).

We do not read Watson as proscribing all inquiry by a court of church disputes, but only those dealing with “questions of discipline, or of faith, or ecclesiastical rule, custom, or law....” Watson v. Jones, 80 U. S. at 727, 20 L. Ed. at 676. Were it otherwise, controversies such as in the case subjudice might never be resolved, and the title to the church property would be enmeshed in a quagmire from which extrication would be nearly impossible. Title to property cannot be allowed to drift about in an atmosphere of uncertainty. It must be vested in someone, Georges Creek Coal and Iron Co. ’s Lessee v. Detmold, 1 Md. 225, 238 (1851), “and in such force, that an injury to the possession can be redressed by an action at law.” Id. Neither Watson nor the First Amendment condemn the courts’ deciding ownership of church property, so long as the relevant inquiry is whether the question can be decided “on the basis of neutral principles of law which do not involve the resolution by the court of ecclesiastical issues,” Polen v. Cox, 259 Md. 25, 30, 267 A. 2d 201, 204 (1970), or doctrinal proprieties.

We think Judge Finan stated it as well as it can be said when he wrote that “[t]he standard [used by the courts] must be whether the parties by the acts and documents which have governed their relationship have made it possible for a civil court to resolve control of property without the court itself having to make ecclesiastical determinations.” Id. at 32, 267 A. 2d at 205.

Applying the dictates of Polen to the instant case, we note that the corporate charter of Calvary provided in Article VI, quoted textually above, that Calvary “shall remain forever a Presbyterian Church in ... government... in accordance with the standards of the Presbyterian Church in the United States of American (sic).” On May 28,1958, the Presbyterian Church in the United States of America merged with The United Presbyterian Church of North America. By the union of the two (2) churches, there was formed the present The United Presbyterian Church in the United States of America.

Calvary seeks refuge behind the conveyance to it in 1913, as a corporate body, of the real property heretofore described. Calvary earnestly contends that it, as a corporation, owns the property in its own name free and clear of United. We think that Calvary’s reliance on the 1913 deed is akin to standing on quicksand. There are two (2) decisive factors that cause Calvary to fail to hold its position. First, Chapter XI § 41.08 of “The Form of Government” by which Calvary agreed to be bound provides in pertinent part:

“8. The church session shall have authority over all of the affairs and activities of the particular church, except such matters as may, by this Form of Government, be specifically accorded “to ... a higher judicatory. The session may from time to time delegate administrative responsibilities in respect to the care and management of church properties and in respect to the financial affairs of the church either to the board of trustees or to the board of deacons or in part to one and in part to the other, subject always to the superior authority and direction of the session.”

The session is the overseer of the church property subject, however, to a higher, judicatory, if “The Form of Government” specifically accords that authority to the higher judicatory. Chapter XXXII § 62.11 of “The Form of Government” provides:

“11. Whenever hereafter a particular church is formally dissolved by the presbytery, or has become extinct by reason of the dispersal of its members, the abandonment of its work, or other cause, such property as it may have, both real and personal, shall be held, used, and applied for such uses, purposes, and trusts as the presbytery may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the United Presbyterian Church in the United States of America.”

Moreover, the Legislature has provided in Md. Corp. & Ass’ns. Code Ann. § 5-331 (a) (Cum. Supp. 1977):

“Certain charters deemed amended. — To the extent not prohibited by the Constitution of the United States or of this State, the charter of each religious corporation subject to this part and incorporated before June 1, 1957, is deemed to be amended to conform to the constitution of the United Presbyterian Church in the United States of America and its successors, as from time to time in effect.”

Second, Judge Barnes, in Sharpsburg I pointed out that:

“[T]here are three methods by which a hierarchical denomination may maintain control of local church property:
1. It may require reverter clauses in the deeds to the property of the local churches.
2. It may provide in its constitution or by some other authoritative source for the reverting of the local church property to the hierarchical body upon withdrawal by a local congregation with an implied consent by the local church to this provision.
3. It may obtain from the ... [Legislature] an act providing for such a result.” 249 Md. at 663, 241 A. 2d at 699.

It may readily be seen that United has exercised two (2) of the three (3) methods of maintaining “control of local church property.” Id. Either of the two (2), in our view, would have been sufficient.

We think it apparent that Calvary holds title to its physical property for the benefit of United. “The Form of Government” manifests that all church property is owned by United. When Calvary became associated with United’s predecessor, which association continued with United, it did so with the clear understanding that the Calvary church buildings became and continue to be the property of United. Moreover, lest there be any lingering doubt, the Legislature has eradicated it by virtue of Md. Corp. & Ass’ns. Code Ann. § 5-331 (a) (Cum. Supp. 1977).

We hold that Judge Sullivan did not delve into an area in which the courts are prohibited from entering; nor did he err in determining, on the basis of neutral principles, that control of the Calvary church property belongs to United.

Judgment affirmed.

Costs to be paid by appellants.

      . “[W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of ... [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Watson v. Jones, 80 U. S. at 727, 20 L. Ed. at 676.

      . See also Maryland Declaration of Rights Article 36.

      . A “[r]eply to ... a Committee of the Danbury Baptist Assn, of Connecticut. January 1, 1802, in The Complete Jeffersonian p. 518-19 (assembled and arranged by Saul K. Padover (1943). A completely different concept of the church-state relationship was expressed by Pope Leo XIII, who referred to it as, “the fatal theory of the separation of Church and State.”

      . A Panegyric to King Charles (1651).

      . The other appellees are Wayne L. McCoy, Milton Leininger, James Riddell, John Klier, and Jean Rowlands, constituting an Administrative Commission of United. All appellees shall be referred to jointly as “United.”

      . In addition to Calvary, the appellants are Louis C. Cerny, Leroy W. Bennett, John C. Duke, Jr., John C. Duke, Sr., Frank J. Cavanaugh, III, John J. Nickel, Sr., Clifford R. Nickel, Louis W. Lautenberger, and John A. Koutnik. For purposes of simplicity, the appellants are jointly referred to as “Calvary.”

      . The full name of the text is, The Constitution of the United Presbyterian Church in the United States of America Part II The Book of Order (1967).

      . “If nowhere else, in the relation between Church and State, ‘good fences make good neighbors,’ ” said Mr. Justice Felix Frankfurter in McCollum v. Board of Education, 333 U. S. 203, 232, 68 S. Ct. 461, 475, 92 L. Ed. 649, 669 (1948) (concurring opinion).

      . Obviously the name by which the particular synod to which Calvary belongs is known.

      . That title must be vested is the principle behind the rule against perpetuities as well as intestacy and testacy laws. What a chaotic condition would arise if titles were held “in abeyance.”

      . The “Agreed Statement of Pacts” discloses that “Calvary’s minister and one of its elders were present and voting” at the time the proposal for union was adopted at the 505th stated meeting of the Presbytery.

      . The current statute is, according to the Revisor’s note, derived without substantive change from former Md. Ann. Code art. 23, § 314 (c).


author: Liss, J.,

text:
    PHILIP GORDON CONNOLLEY v. HERBERT M. COLLIER, Personal Representative of the Estate of Beulah R. Anthony et al.
    [No. 1111,
    September Term, 1977.]

      Decided May 15, 1978.

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

      SusanneH. Sehmoldt, with whom were DavidM. Williams and White & Williams on the brief, for appellant.

      Ernest M. Thompson for appellees.
   Liss, J.,

delivered the opinion of the Court.

Philip Gordon Connolley, appellant, as plaintiff below, filed a negligence action in the Circuit Court for Kent County against Herbert M. Collier, personal representative of the estate of Beulah Anthony, deceased, and Dudley Crossley, defendants. The trial judge granted appellees’ motions for summary judgment grounded on the contention that the appellant’s claim was barred by limitations; appellant appeals from that judgment.

Two questions are presented for decision by this appeal:

1) Whether the Circuit Court for Kent County erred in holding that in cases where insurance exists, Maryland Code (1974) Estates and Trusts Article, Subsection 8-104 (e) — in effect at the time the action arose — required an action against an estate to be instituted within a six month period; and

2) Whether the running of the period of limitations contained in Section 8-103 of the Estates and Trusts Article will bar a suit based upon the doctrine of respondeat superior against the alleged master of a deceased servant.

On November 18, 1974, an automobile owned by Dudley Crossley and operated by Beulah Anthony, with the owner’s permission, crossed the center line of Maryland Route 291 and struck an on-coming vehicle operated by the appellant. As a result of the collision, Mrs. Anthony was killed and the appellant sustained serious injuries. At the time of the accident, the vehicle driven by Mrs. Anthony was covered by liability insurance.

Letters of administration were granted on the estate of Mrs. Anthony on December 9, 1974, and notice to creditors was first published on December 11, 1974. On June 16, 1977, the appellant sued the personal representative of Mrs. Anthony’s estate and joined Crossley as a co-defendant under the legal theory of respondeat superior. All defendants filed special pleas of limitations and moved for summary judgment based on the contentions 1) that the appellant had failed to bring his suit against the estate within the period of time prescribed by Code (1974) Estates and Trust Article, §§ 8-103 and 8-104 and 2) that the bar of limitations also prevented a suit against the alleged master of the deceased servant.

In granting the motion for summary judgment by each of the defendants, the trial judge found:

‘‘[T]hat this suit was not brought within six months after the first appointment of the personal representative as required by § 8-103 and § 8-104 and, therefore, the Motion for Summary Judgment must be granted.
“Since the decedent was the operator of the motor vehicle which allegedly caused the injuries to the Plaintiff, and the responsibility of Dudley Crossley is based upon the doctrine of respondeat superior, the Defendant, Dudley Crossley, is not liable to the Plaintiff because the estate of Beulah R. Anthony is not liable. Therefore, the Motion for Summary Judgment on behalf of Dudley Crossley must be granted.”

Subsection 8-103 (a) of the 1974 Code, in effect at the time the action arose, provided as follows:

“(a) General. — Except as otherwise expressly provided by statute with respect to claims of the United States and the state, all claims against an estate of a decedent, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are forever barred against the estate, the personal representative, and the heirs and legatees, unless presented within six months after the first appointment of a personal representative.”

Subsections 8-104 (d) and (e) stated in pertinent part:

“(d) Commencement of suit. — When a cause survives death, the claimant is not required to file a claim under subsections (b) or (c). He may commence an action against the estate or against a person to whom property has been distributed, but the commencement of the action must occur within the time limited for the filing of claims.
“(e) Where insurance emsts. — Notwithstanding the other provisions of this section, an action against the estate may be instituted after the expiration of the time designated in this section but within the period of limitations generally applicable to actions against the estate in the event the decedent was covered by an existing liability insurance policy at the time of the occurrence.” (Emphasis supplied).

1.

Appellant contends that subsection 8-104 (e) of Code (1974) Estates and Trusts Article permitted the filing of this negligence action within the three year period generally applicable to such actions due to the fact that Mrs. Anthony was covered by an existing liability insurance policy at the time the accident occurred. The trial court rejected this argument, concluding that the language of former subsection 8-104 (e), which stated that claims against the estate of an insured decedent must be filed “within the period of limitations generally applicable to actions against the estate,” clearly and unambiguously referred to the six month period stated in subsection 8-103 (a), to the exclusion of any longer time period, thus obviating the need for the court to construe the meaning of the statute.

The Court of Appeals has stated on many occasions that in the absence of ambiguity, a court should confine itself to construction of the statute as written and not attempt to remedy possible defects. Scoville Serv., Inc. v. Comptroller, 269 Md. 390; Md. Nat'l. Bk. v. Comptroller, 264 Md. 536; Amalgamated Ins. Co. v. Helms, 239 Md. 529. We, however, cannot agree with the trial court’s conclusion that the relevant portion of the controlling statute was so clear and unambiguous as not to require the court to determine the intent of the legislature in enacting the statute.

Subsection 8-104 (e) of the 1974 Code was prefaced with the statement, “Notwithstanding the other provisions of the section ..indicating an exception to the other provisions regarding limitations in § 8-104. Cf. Dixon v. Checchia, 249 Md. 20; Cromwell v. Ripley, 11 Md. App. 173. Subsection 8-104 (e) then referred to two time periods in which suit could be brought: First, “an action against the estate may be instituted after the expiration of the time designated in this section” — which refers to subsection 8-104 (d), which in turn refers to the six month period stated in subsection 8-103 (a). Second, where insurance exists, the action must be brought “within the period of limitations generally applicable to actions against the estate.” This language the trial court concluded was also a clear reference to the six month period designated in subsection 8-103 (a). Were we to accept this conclusion, subsection 8-104 (e) would in pertinent part read as follows:

“Notwithstanding the other provisions of this section, an action against the estate may be instituted after the expiration of the time designated in this section [, or the subsection 8-103 (a) six month period to which subsection 8-104 (d) refers,] but within the period of limitations generally applicable to actions against the estate [, or the subsection 8-103 (a) six month period,] in the event the decedent was covered by an existing liability insurance policy at the time of the occurrence.”

We consider it absurd to believe that the legislature intended to include a separate subsection to § 8-104 distinguishing the claim against the estate of an insured decedent from all other types of claims — and in the same paragraph provide for a limitations period identical to that applicable to all other claims. In Coerper v. Comptroller, 265 Md. 3, the Court stated:

“The cases hold that we should shun a construction of a statute which will lead to absurd consequences. Pan Am. Sulphur v. State Dep’t., 251 Md. 620, 627, 248 A. 2d 354 (1968), and cases there cited. It is a hornbook rule of statutory construction that in ascertaining the intention of the General Assembly all parts of a statute are to be read together to find the intention as to any one part, and that all parts are to be reconciled and harmonized if possible. Thomas v. Police Commissioner, 211 Md. 357, 361, 127 A. 2d 625 (1956).”

We conclude that subsection 8-104 (e) of the 1974 Estates and Trusts Article, which is controlling in this case, is sufficiently unclear and ambiguous to require that we apply the principles of statutory construction.

Prior to July 1,1974, the provisions regarding the time for filing suit against the estate of a decedent covered by liability insurance at the time of the accident were contained in Code (1957, 1969 Repl. Vol.) Art. 93, § 8-104. By Chapter 11, § 1 of the Laws of 1974, Article 93 was repealed in its entirety; and by § 2 of that Chapter, the Estates and Trusts Article was enacted to take effect as of July 1, 1974. Subsection 8-104 (e) of the newly enacted Article contained substantially the same limitations provisions regarding the time for filing suit against the estate of an insured decedent. However, where Article 93, subsection 8-104 (c) stated that such actions could be instituted “within the period of limitations generally applicable to such actions...”, subsection 8-104 (e) of the -1974 Estates and Trusts Article permitted such actions to be filed “within the period of limitations generally applicable to actions against the estate____” (Emphasis supplied).

The Legislature, apparently recognizing the inconsistency in subsection 8-104 (e) of the 1974 Code, enacted Chapter 464 of the Laws of 1977 (H.B. 676) as an amendment to the subsection, for the stated purpose “of correcting certain errors in the revision of the law relating to ... presentation of claims against the estate.” This corrective legislation, effective July 1, 1977, represented a return to the language of repealed Article 93 by providing that actions against an insured decedent's estate could be brought “within the period of limitations generally applicable to such actions____” (Emphasis supplied). See: Code (1974, 1977 Cum. Supp.) Estates and Trusts Article, § 8-104 (e).

Judge Smith, speaking for the Court of Appeals in Thomas v. State, 277 Md. 314, 317, stated:

“We have said many times that a hornbook rule of statutory construction is that in ascertaining the intention of the Legislature all parts of a statute are to be read together to find the intention as to any one part and that all parts are to be reconciled and harmonized if possible and that a corollary to that rule is that if there is no clear indication to the contrary and it is reasonably possible, a statute is to be read so that no word, clause, sentence or phrase shall be rendered surplusage, superfluous, meaningless, or nugatory.”

See: Kadan v. Bd. Sup. of Elections, 273 Md. 406; A.H. Smith Sand & Gravel v. Dep’t., 270 Md. 652; Thomas v. Police Comm’r., 211 Md. 357.

This Court stated in Becker v. Crown Central Corp., 26 Md. App. 596, 608 that “statutes are to be construed reasonably with reference to the purpose sought to be accomplished and in accordance with declared legislative policy.” State v. Wagner, 15 Md. App. 413, and cases there cited.

That the 1977 amendment to subsection 8-104 (e) was described as “corrective” legislation and embodied the clearer language previously used in Article 93 indicates that the legislature intended at the time of the recodification to allow the longer limitations period in the case of claims against the estate of a decedent who was covered by liability insurance at the time of the accident. 2A, Sutherland, Statutes and Statutory Construction, § 49.11 (Sands ed. 1973) states:

“Where a former statute is amended, or a doubtful meaning of a former statute rendered certain by subsequent legislation a number of courts have held that such amendment or subsequent legislation is strong evidence of what the legislature intended by the first statute. But a subsequent legislative construction of a statute is not conclusive of the meaning of the former statute____It has been judicially declared that ‘If it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.’
“Whether or not a subsequent statute sheds light upon the meaning of a former statute depends upon a number of circumstances. Where the original law was subject to very serious doubt, by permitting subsequent amendments to control the former meaning a great deal of uncertainty in the law is removed. And the legislature is probably in the best position to ascertain the most desirable construction. In addition it is just as probable that the legislature intended to clear up uncertainties, as it did to change existing law where the former law is changed in only minor details. Thus it has been asserted that ‘one well recognized indication of legislative intent to clarify, rather than change, existing law is doubt or ambiguity surrounding a statute.’ ” (Footnotes omitted).

Additionally, as we have noted, the Revisor’s Note to Estates and Trusts § 8-104 stated that the only changes from Art. 93, § 8-104 were in “style and language.” The Court of Appeals in Welch v. Humphrey, 200 Md. 410, 417, stated:

“It is true that a codification of previously enacted legislation, eliminating repealed laws and systematically arranging the laws by subject matter, becomes an official Code -when adopted by the Legislature, and, since it constitutes the latest expression of the legislative will, it controls over all previous expressions on the subject, if the Legislature so provides. However, the principal function of a Code is to reorganize the statutes and state them in simpler form. Consequently any changes made in them by a Code are presumed to be for the purpose of clarity rather then change of meaning. Therefore, even a change in the phraseology of a statute by a codification thereof will not ordinarily modify the law, unless the change is so radical and material that the intention of the Legislature to modify the law appears unmistakably from the language of the Code.”

Bureau of Mines v. George’s Creek Coal and Land Co., 272 Md. 143; Welsh v. Kuntz, 196 Md. 86; Matter of Anderson, 20 Md. App. 31.

We conclude that the legislative intent in recodifying subsection 8-104 (e) of the 1974 Estates and Trusts Article, as disclosed by the 1977 corrective legislation, was not to change the extended limitations period contained in repealed Article 93 in the case of claims against the estate of an insured decedent. For the reasons given, we shall strike out the summary judgment granted the estate of Beulah R. Anthony. This will, of course, reinstate the case for trial.

2.

In view of our conclusion, the summary judgment in favor of Dudley Crossley is also stricken and it is not necessary that we reach the second issue raised by this appeal.

Judgments in favor of appellees, Estate of Beulah R. Anthony and Dudley Crossley, reversed: case remanded to trial court.

Costs to be paid by appellees.

      . Code (1974, 1977 Cum. Supp.) Courts and Judicial Proceedings Article, § 5-101.

      . The Revisor’s Note to § 8-104 states, “This section formerly appeared as Article 93, § 8-104. Two additional subsections are drawn. The only other changes are in style and language.”


author: Davidson, J.,

text:
    DANIEL W. DAIL et ux. v. TRI-CITY TRUCKING COMPANY et al.
    [No. 450,
    September Term, 1977.]

      Decided June 7, 1978.

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

      Richard T Rombro, with whom were Wartzman, Rombro, Rudd & Omansky, P.A. on the brief, for appellants.

      SamuelS. Smalkin, with whom was William K. Connor on the brief, for appellee Tri-City Trucking Company. M. Natalie

      McSherry, with whom were William B. Whiteford and Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for other appellee.
   Davidson, J.,

delivered the opinion of the Court.

In the Circuit Court for Harford County, appellants Daniel W. Dail (Dail) and Hannah Dail, his wife, sued appellees Tri-State Motor Transit (Tri-State) and Wright Contracting Company (Contractor). The Dails claim damages for injuries sustained on 8 April 1974 when the pickup truck Dail was driving was struck by a tractor-trailer owned by Tri-State and driven by George E. Lewis.

The accident occurred in the intersection of Joppa Road and U.S. Route 40. At this location, Joppa Road was a two-lane highway running north and south. Ordinarily, U.S. Route 40, running east and west, was a four-lane highway with two eastbound lanes separated from two westbound lanes by a grass median strip. Stop signs on Joppa Road controlled the intersection.

At the time of the accident, the Contractor was repairing and resurfacing U.S. Route 40. The two westbound lanes had been closed to through traffic. One eastbound lane was being used for eastbound traffic while the other was being used for westbound traffic. There is conflicting evidence as to whether there were signs, warning signals, barricades or other devices to indicate that the westbound lanes were closed and that the eastbound lanes were being used for both eastbound and westbound traffic.

At the time of the accident, Dail was driving his pickup truck south on Joppa Road. It was dusk and a heavy rain was falling. When he reached the stop sign, he came to a complete stop and looked to his left for westbound traffic. Seeing none, he proceeded to the median strip, where he again stopped. He looked to his right for eastbound traffic and saw none. Because he “wasn’t expecting traffic from the east,” he did not look to his left for westbound traffic. As he moved forward, his pickup truck was struck by Tri-State’s tractor-trailer, which was traveling west in a lane ordinarily used by eastbound traffic. He was seriously injured.

The Contractor and Tri-State filed motions for summary judgment. On 28 March 1977, Judge Edward D. Higinbothom, assuming that the disputed facts were not material because the boulevard rule applied, found that Dail was contributorily. negligent as a matter of law. He granted summary judgment in favor of the Contractor and Tri-State. Judgment absolute was entered on 1 April 1977. This appeal followed.

The boulevard rule establishes that a driver who enters a through highway at an intersection controlled by a stop sign (unfavored driver) must stop and yield the right of way to all drivers of vehicles proceeding in a lawful manner on the through highway (favored drivers). If the unfavored driver fails to yield the right of way, and an accident results, the unfavored driver is contributorily negligent as a matter of law. Because the unfavored driver’s negligence is a contributing cause of the accident, he cannot recover against the favored driver unless the doctrine of last clear chance applies.

Dail initially contends that he is not barred from recovery against Tri-State. He maintains that he is not contributorily negligent as a matter of law because the boulevard rule is inapplicable. He relies upon Covington v. Gernert, which held that that rule does not apply if a “favored” driver is not proceeding in a lawful manner.

While Dail’s declaration alleged that Tri-State, the “favored” driver, was proceeding in the wrong direction and at an excessive speed, there was no evidence, either in his answer to the motions for summary judgment, or in supporting depositions, to show that the “favored” driver was proceeding in an unlawful manner. Accordingly, he does not here contend that the boulevard rule is inapplicable because the “favored” driver was not proceeding in a lawful manner, but rather claims that the Contractor’s negligence in failing to warn of changed traffic patterns “render[ed] unlawful those vehicles traveling in the wrong direction.” This contention is without merit. Accordingly, we shall affirm the judgment in favor of Tri-State.

Dail further contends that he is not barred from recovery against the Contractor. He asserts that the boulevard rule is inapplicable and that therefore he is not contributorily negligent as a matter of law.

Here there was no genuine dispute as to the fact that an unfavored driver (Dail) directly interfered with a favored driver’s (Tri-State) right of way, thereby disrupting the flow of traffic on a through highway. The facts, viewed most favorably to Dail, show that the Contractor failed to post warning signs. They also support an inference that, but for that omission, Dail would have looked for and seen the approaching tractor-trailer. Under these circumstances, if the boulevard rule were inapplicable, Dail would not be contributorily negligent as a matter of law and possibly could recover from the Contractor. Thus, this case presents the novel question of whether the boulevard rule applies to bar recovery by an “unfavored” driver against a party other than the “favored” driver when that party’s negligence may have been a proximate cause of the “unfavored” driver’s failure to yield the right of way.

The Court of Appeals has applied the boulevard rule only in suits between favored drivers, unfavored drivers, and their passengers. In these cases, that Court has “jealously guarded and upheld the favored driver’s right of way on the favored boulevard,” in order to discourage interference with the flow of traffic. Nevertheless, that Court has declined to apply the boulevard rule in certain cases in which there was a direct interference with the favored driver’s right of way and the flow of traffic on a through highway, as well as in cases in which there was no such interference. The Court of Appeals has never applied that rule in a suit between an unfavored driver and a party other than a favored driver or passenger. We decline to do so here.

The Court of Appeals has repeatedly stated the purpose of the “exacting” and seemingly “harsh” boulevard rule. In Belle Isle Cab Co. v. Pruitt, that Court said:

“The obvious and essential purpose of such rules is to accelerate the flow of traffic over through highways by permitting travellers thereon to proceed within lawful speed limits without interruption. That purpose would be completely frustrated if such travellers were required to slow down at every intersecting highway, and the vast sums which have been spent in their construction in an effort to accommodate the great volume of automobile traffic which is so indispensable a part of modern life, would be largely wasted. On the other hand the safety of the travelling public demands that the rules defining the relative rights of travellers on through highways and on highways intersecting them be clear, unmistakable and definite. If the duty of stopping and of yielding right of way, is positive and inflexible, the inhibited traveller may know that he violates it at his risk, while the traveller on the favored highway may know that he may safely exercise the privilege of uninterrupted travel thereon which the statute gives. If, however, the relative rights of travellers on the two types of highway are held to depend upon nice calculations of speed, time and distance the rule would encourage recklessness and the privilege of uninterrupted travel would mean little more than the privilege of having a jury guess in the event of a collision whose guess was wrong.”

The boulevard rule’s purpose of facilitating the flow of traffic is fully effectuated if uninterrupted travel is encouraged by protecting the favored driver’s right of way and recklessness is discouraged by penalizing the unfavored driver for failure to yield the right of way. The favored driver is protected by “virtual immunity against actions brought by the unfavored driver.” The unfavored driver is penalized by being found contributorily negligent as a matter of law.

The rule’s purpose would not be significantly advanced by barring an unfavored driver from recovery against a negligent party other than the favored driver. Indeed, it would be antithetical to the rule’s purpose to immunize such a negligent party from liability when that party’s actions caused the disruption of the flow of traffic on a through highway by causing the unfavored driver’s failure to yield the right of way. In addition, it would be unfair to immunize that negligent party under such circumstances by applying the boulevard rule.

We decline to apply the boulevard rule here because it would not serve that rule’s purpose and would be unfair. We shall not immunize the Contractor from liability by holding Dail contributorily negligent as a matter of law where, but for the Contractor’s alleged negligence in failing to post warning signs, Dail may not have failed to look for and see the approaching tractor-trailer. Accordingly, we shall reverse the judgment in favor of the Contractor and remand the case for further proceedings in accordance with this opinion.

Judgment as to Tri-City Trucking Company affirmed.

Judgment as to Wright Contracting Company reversed.

Case remanded for further proceedings consistent with this opinion.

Costs to be equally divided between Daniel W. Dail and Wright Contracting Company.

      . In the declaration this defendant was named as Tri-City Trucking Company. In its general issue plea, Tri-State noted the mistake. Although the declaration was not amended, later entries in the file were captioned correctly.

      . Although Lewis was named as a defendant in Dail’s declaration, he was never served. No appearance or pleading was filed for him. Under these circumstances, Md. Rule 605 a is inapplicable because Lewis was never a party.

      . Covington v. Gernert, 280 Md. 322, 324-25, 373 A. 2d 624, 625 (1977); Dean v. Redmiles, 280 Md. 137, 143-44, 374 A. 2d 329, 333-34 (1977); Gazvoda v. McCaslin, 36 Md. App. 604, 607-12, 375 A. 2d 570, 573-75 (1977); Md. Code Ann., art. 66%, §§ 1-175 & 11-403 (1970 Repl. Vol.), now codified as Md. Transp. Code Ann., §§ 21-101 (o) & 21-403 (1977); Note, The Maryland Boulevard Rule: A Time for Change, 6 U. of Baltimore L. Rev., 223, 224, 239 (1977); Survey of Maryland Court of Appeals Decisions 1975-1976, Torts, Developments in the Boulevard Rule, 37 Md. L. Rev. 61, 171, 173 '(1977) [hereinafter cited as Developments in the Boulevard Rule],

      . Dean v. Redmiles, 280 Md. at 147, 374 A. 2d at 335; Greenfeld v. Hook, 177 Md. 116, 134, 8 A. 2d 888, 896 (1939); Gazvoda v. McCaslin, 36 Md. App. at 608, 375 A. 2d at 573.

      . 280 Md. 322, 373 A. 2d 624 (1977).

      . Rea Constr. Co. v. Robey, 204 Md. 94, 99-100, 102 A. 2d 745, 747 (1954); see East Coast Freight Lines v. Mayor of Baltimore, 190 Md. 256, 278-79, 58 A. 2d 290, 300-01 (1948); State ex rel. Biggs v. Mayor of Baltimore, 129 Md. 686, 690-91, 99 A. 860, 862 (1917); Baltimore County v. Stitzel, 26 Md. App. 175, 177, 182, 337 A. 2d 721, 723, 725-26, cert. denied, 275 Md. 745 (1975).

      . Dean v. Redmiles, 280 Md. at 144, 374 A. 2d at 334. The Court identified eight categories: 1) favored driver v. unfavored driver; 2) unfavored driver v. favored driver; 3) passenger of unfavored driver v. favored driver; 4) passenger of unfavored driver v. both drivers; 5) passenger of favored driver v. both drivers; 6) passenger of favored driver v. unfavored driver; 7) passenger of favored driver v. favored driver; and 8) counter-claims, favored driver and unfavored driver suing each other.

      . Creaser v. Owens, 267 Md. 238, 243, 297 A. 2d 235, 238 (1972).

      . Boulevard rule does not apply to pedestrians, Folck v. Anthony, 228 Md. 73, 76, 178 A. 2d 413, 414-15 (1962), or vehicles leaving the highway, Palmer v. Scheid, 223 Md. 613, 616-17, 166 A. 2d 244, 246 (1960) (vehicle making U-turn); Safeway Trails, Inc. v. Smith, 222 Md. 206, 211-12, 159 A. 2d 823, 826 (1960) (vehicle making left turn).

      . Boulevard rule does not apply to vehicle which, having entered through highway, is already in flow of traffic. Grue v. Collins, 237 Md. 150, 157, 205 A. 2d 260, 263-64 (1964).

      . Creaser v. Owens, 267 Md. at 246, 297 A. 2d at 239.

      . 187 Md. 174, 179, 49 A. 2d 537, 539 (1946); see Covington v. Gernert, 280 Md. at 324, 373 A. 2d at 625; Dean v. Redmiles, 280 Md. at 147, 374 A. 2d at 335; Gazvoda v. McCaslin, 36 Md. App. at 608, 375 A. 2d at 573.

      . Developments in the Boulevard Rule, 37 Md. L. Rev. at 173.