text:
    ANDREW R. BECKER v. THERESA M. BECKER
    [No. 264,
    September Term, 1975.]

      Decided December 4, 1975.

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

      Joseph F. Lentz, Jr., with whom were Lentz & Hooper on the brief, for appellant.

      Gordon L. Peltz for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Alison Lurie penned a recent novel, a best seller, entitled “The War Between the Tates.” The appeal now before us, brought by Andrew R. Becker against his former wife, Theresa M. Becker, makes the sometimes hilarious war that existed between the Tates look like a minor skirmish by comparison and there is no comedy in this litigation.

The present case started its journey to this Court when a Bill of Complaint was filed by the appellee in the Circuit Court for Baltimore County on May 12, 1970 seeking alimony, support and maintenance. After the appellant’s answer to the bilL was filed the pleadings became voluminous. There was an amended bill asking a divorce on the ground of desertion, a cross-bill on the same ground, a supplemental cross-bill in which appellant alleged adultery on the part of the appellee, and a supplemental bill by appellee alleging voluntary separation. Interrogatories and supplemental interrogatories were propounded and answered, and other discovery methods were utilized. At one point, for want of a plea to a supplemental bill, the appellee obtained a decree pro confesso against appellant, but on motion of appellant and order of court, it was stricken.

Finally, the controversy was heard in open court. Appellee prevailed, and she was awarded a divorce a vinculo matrimonii. She was, however, denied alimony. The appellant’s amended cross-bill in which he had charged appellee with adultery was dismissed. The appellee was awarded custody of the parties’ minor child. The decree was detailed and specific as to the visitation rights of the appellant. It provided:

“It is further ADJUDGED, ORDERED and DECREED that the custody and guardianship of the minor child of the parties, Joseph Andrew Becker, is awarded to Theresa M. Becker subject to the continuing jurisdiction of this Court with the right of visitation unto Andrew R. Becker beginning on Saturday, December 15, 1973 from 1:00 P.M. to 8:30 P.M. and on Sunday, December 23, 1973 from 1:00 P.M. until 8:00 P.M. and continuing on alternate Saturdays and Sundays at and during the times above set forth until February 24, 1974 and thereafter from Saturday, March 2, 1974 from 1:00 P.M. until Sunday, March 3, 1974 until 8:00 P.M. and continuing on alternate week-ends thereafter and provided further said Andrew R. Becker shall have the right of visitation for part of major holidays and additionally, part of the birthday of said minor child and provided further that said Andrew R. Becker shall have the right of visitation for a period of one or two weeks during summer vacation and that said Andrew R. Becker shall have the right of visitation at any times not herein stipulated by agreement of the parties hereto. Further, that the parties hereto shall not remove the said minor child from the State of Maryland for a period of more than forty eight (48) hours without Order of Court with the exception of such longer periods for summer vacation and that the provisions hereof with regard to custody and visitation shall be under the supervision of the Probation Department of Baltimore County. . . .”

Feeling aggrieved at the Chancellor’s decree in the divorce case, appellant entered an appeal. On motion by the appellee the appeal was “stricken” by the circuit court on the ground that it was noted one day after the thirty day period provided by Md. Rule 1013 had expired.

Approximately five months after the decree was entered, the appellee sought modification of the edict. She recited as reasons therefor:

“3. That said Decree contained certain restrictions with regard to the removal of said minor child from the State of Maryland by either party.
4. That since the date of the aforesaid Decree, the Plaintiff has married on February 22, 1974 to David Benfield. That said David Benfield is a member of the United States Navy and has been stationed in the State of Florida. That in September, 1974, said David Benfield will be temporarily assigned for duty in Sicily, Italy for a period of five months after which he will return to Florida.
5. That the best interests of the aforesaid minor child would be served by a modification of the abovementioned Decree to permit the removal of said minor child from the State in accord with the present circumstances of the parties and to provide for the right of suitable visitation unto the Defendant.”

The record is silent as to the ruling the court made on the Petition for Modification, but it does show that a meeting occurred between counsel for the parties and the late Judge Walter M. Jenifer. We deduce from the judge’s letter to counsel that the meeting took place on September 17,1974.

One month after the meeting the appellant fired a double-barreled shot at the appellee. He asked, in contemporaneously filed petitions, that custody of the child be granted to him, and that appellee be adjudged in contempt for violating the clear provisions of the divorce decree by removing the minor child of the parties from the State, without permission of the court, for longer than the divorce decree’s prescribed 48 hour period. The “Petition for Contempt” avers that appellee was at that time in Florida and that she did not intend to return to Maryland. A “Show Cause Order” was issued by Judge Jenifer. Appellee’s solicitor promptly responded that he was experiencing difficulty in locating the appellee because she had “. . . left the country as she was permitted to do by . . . [the] Court’s ruling of September 17, 1974 and that she is not scheduled to return until December 20,1974.”

The hearing on the “Petition for Contempt” was held before Judge Walter R. Haile on April 3, 1975. The appellee was not personally present although her counsel was there. The record of the proceeding before Judge Haile seems to indicate that either Judge Jenifer, at the September 17, 1974 meeting with counsel, permitted appellee to leave the country for six weeks, or counsel agreed between themselves with the apparent consent of their clients that appellee could leave the country for two months. If Judge Jenifer did, in fact, allow the appellee temporarily to alter the terms of the custody portion of the divorce decree, the better practice is for an order to have been passed to that effect, and such order to be a part of the record. On the other hand, if counsel and the parties agreed among themselves temporarily to modify the decree, they were without authority to do so, but such fact is certainly evidence of lack of wilful contempt. Judge Haile was informed that there was presently pending in a Florida court another part of this conflict. The Florida case is an attempt by the wife to change the decree. Appellant has seemingly submitted to the jurisdiction of the Florida court and is contesting the appellee’s suit.

Patently, appellee could not be in contempt at the time the petition to cite her for contempt was filed. As we read the record, and as Judge Haile found, appellee was permitted, on September 17, 1974, to leave not only the State, but the country for a period of six weeks. It is possible that her absence was sanctioned by the parties themselves for a period of two months. The “Petition for Contempt” was brought by the husband, appellant, two weeks before the expiration of the time permitted by Judge Jenifer to be absent, or four weeks before the time authorized by the parties came to an end. Notwithstanding appellant’s allegation that he had reason to believe the appellee would not return to Maryland, his petition was premature. Appellant appears to have endeavored to invoke a sort of anticipatory breach of faith on the part of the appellee. Be that as it may, Judge Haile found that appellee was not in contempt for leaving the State without permission as alleged in appellant’s petition to cite appellee for contempt. Appellant has appealed. Although we shall dismiss the appeal for the reasons stated infra, we opine that if this case were properly appealable and, the issue thus before us, we would have no hesitancy in holding that Judge Haile’s judgment was correct for the reason that, irrespective of appellee’s subsequent conduct with regard to the decree, at the time the “Petition for Contempt” was brought, appellee was permissibly absent from the State and, hence, not then in contempt.

We have indicated that we shall dismiss this appeal. We explain our reasons. Maryland Ann. Code, Courts and Judicial Proceedings Article § 12-301 provides:

“Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended.”

Courts Art. § 12-302 (b) states:

“Section 12-301 does not apply to appeals in contempt cases, which are governed by §§ 12-304 and 12-403.”

Courts Art. § 12-304 (a) mandates, in pertinent part:

“Any person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court. . . .”

The statute requires that two (2) prerequisites be satisfied before an appeal may be successfully maintained in a contempt case. Firstly, there must be an “order or judgment passed to preserve the power or vindicate the dignity of the court” and, secondly, the appeal must be prosecuted by the person adjudged to be in contempt. Neither prerequisite is met in the instant case.

Furthermore, the Court of Appeals in Tyler v. Baltimore County, 256 Md. 64, 259 A. 2d 307 (1969) considered a case wherein Tyler appealed from a refusal by the late Judge Jenifer to hold certain Baltimore County officials in contempt for failure to comply with a Writ of Mandamus that had been directed to those officials ordering that they issue a permit to Tyler “. . . to operate a sanitary landfill on a site in the lower end of the County known as the Norris Farm. . . The County moved to dismiss the appeal on the ground that . . the appeal of one adjudged in contempt is the only appeal the law allows in contempt cases. . . .” 256 Md. at 69. Chief Judge Hammond, for the Court in Tyler, traced the history of appellate review of “. . . a finding of contempt or a refusal to find contempt. . . .” He noted that no appeal existed at common law. By statute or constitutional provision the common law rule has been relaxed in most jurisdictions. At the time Tyler was decided, former Md. Ann. Code art. 5, § 18 was controlling. It provided the same as what is now the above quoted portion of § 12-304 (a) of the Courts Art. Tyler makes it vividly clear that in this State only those adjudged in contempt have the right to appellate review. The right of appeal in contempt cases is not available to the party who unsuccessfully sought to have another’s conduct adjudged to be contemptuous. Tyler v. Baltimore County, 256 Md. at 71.

Tyler points out, however, that

“There may be occasional instances in which the order imposing the punishment for civil or criminal contempt or refusing to impose the order for civil contempt is so much a part of or so closely intertwined with a judgment or decree which is appealable as to be reviewable on appeal as part of or in connection with the main judgment. . . .” 265 Md. at 71.

Tyler was held to be not such a case. Likewise, the matter now before us is not such a case because the only “judgment” before us is the finding that appellee was not in contempt. If the main question of change of custody had been decided along with the contempt proceeding, we might be required, under Tyler, to examine whether the failure to hold appellee in contempt was an interwoven part and parcel of the “main judgment”; but even if that were the situation in this case, we have already expressed our belief that Judge Haile correctly found appellee free of contemptuous conduct as of the time the appellant’s petition was filed.

Appellant in the instant case has no standing to appeal; he is not the party who has been adjudged in contempt, the issue is not intertwined with an appealable decree or judgment and thus his unsuccessful attempt to have appellee held in contempt is not under Courts Art. § 12-304, nor Tyler, appealable.

Appeal dismissed.

Costs to be paid by appellant.

      . Section 12-403 is concerned with appeals from the District Court.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    JAMES STEVEN SETZER v. STATE OF MARYLAND
    [No. 287,
    September Term, 1975.]

      Decided December 4, 1975.

    The cause was argued before Moylan, Gilbert and Melvin, JJ.

      Melvin J. Kodenski, Assigned Public Defender, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Stephen Sachs, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

In this appeal we are required to reverse the judgment of the Criminal Court of Baltimore, entered upon a jury verdict finding the appellant, James Steven Setzer, guilty of the crime of rape. We take that action because the prosecution, over objection, was allowed to inject into the trial of appellant, in the guise of rebuttal testimony, the “bad man” theory that we strongly condemned in Dobson v. State, 24 Md. App. 644, 335 A. 2d 124 (1975), cert. denied 275 Md. 747 (June 2, 1975).

Although the appellant disputes what he perceives as two rulings relating to the intromitting of evidence, we view the two as being so intervolved that they are virtually inseparable.

The State in its case in chief against appellant showed that he had met the prosecutrix on the morning of March 11, 1974. They had known each other for approximately six years. The intensity of their acquaintanceship is a matter of dispute. The prosecutrix told the jury that appellant offered to take her to a shoe manufacturing company in order that she could seek employment there. En route the appellant stopped his vehicle in front of the building in which he resided in a basement apartment. He told the prosecutrix that he was expecting a telephone call from his cousin, but that he wanted to take a bath before going to work. The prosecutrix was asked to wait in appellant’s apartment and to answer the telephone if it rang while the appellant was taking his bath. She agreed. The apartment consisted of a large, combination livingroom-bedroom, a kitchen and a bathroom. Instead of immediately proceeding to take his bath, appellant, according to the prosecutrix, took a “gun” from the wall, told her “this is a rip-off’, and ordered her to disrobe. The young woman refused to obey and appellant produced a knife which he placed against her throat, and “ .. . the blade just came right out of it [the knife].” He unbuttoned some of her clothing and she removed the rest. When she was nude, she was thrown on the bed and ravished. After completing the sexual attack, appellant began to cry, apologized for what he had done and requested that the prosecutrix not tell the police. Appellant filled the bathtub, hopped in and hopped out, all the time keeping the prosecutrix with him in the bathroom. Appellant drove the prosecutrix to a place near her home, and she “ran” into the house crying. Later that day she telephoned her stepmother, told her what had occurred, and on the stepmother’s advice, called the police. Appellant was apprehended and charged.

Appellant’s version of the events differed sharply with those of the prosecutrix. He testified that the sexual relationship that took place between himself and the prosecutrix was consensual. In fact, he related a series of times that sexual intercourse had occurred between the two, and he supplied a witness. The witness told the jury that appellant and the prosecutrix had used the witness’s apartment on a number of occasions for their sexual gratification.

During the course of his direct examination appellant was asked:

“Did you at any time during the 11th day of March hold a knife up to her body, or threaten her with a knife of any kind?”

He responded:

“No sir. There was never a knife.”

The transcript of the cross-examination of the appellant’s wife by the Assistant State’s Attorney reveals:

“Q Does your husband own a knife?
A Not that I know of.
Q Okay. Now, particularly attempting to describe a knife, that it’s almost like a cutting box cutter kind of knife which sort of appears to be a switch-blade, where you would push something on the side and push out a blade, do you ever recall seeing any knife like that in your apartment?
A No.
Q Do you recall seeing your husband with possession of a knife like that in or outside of the apartment?
A No.
Q You never saw a knife like that in or outside of the apartment?
A No.
Q Ever seen a knife like that in the car?
A No.
Q To the best of your recollection, both today and that day, there was no knife as I described to you on your premises, or that you had ever seen your husband in possession of, that may have been on your premises, correct?
A Wait a minute. What was the question again?
Q I’ll simplify it. What I’m saying is that you had no reason to believe that there was a knife that I have described to you either on your premises, from having personally seen it, or in your husband’s possession at anytime? You had no reason to believe that the knife was in your premises?
A I never saw that kind of knife. My husband never had a knife like that that I know of.
Q The only kind of knife you had, would be the normal kitchen knives or utility things?
A Yes.”

Over strenuous objection, the State, in rebuttal, produced another young woman who testified that she had known the appellant for about five years. Sometime during the early part of 1974 — she could not remember whether the event about which she testified took place before or after the date of the happenings in the instant case — she was picked up by the appellant and taken in his vehicle to an area in Baltimore County near Sparrows Point. There appellant produced a knife, a “box cutter”, that he held to her throat, and he ordered her to undress. After a conversation in which she steadfastly refused to disrobe, he and she alit from the car. After some conversation between appellant and the witness, she re-entered the vehicle, and he drove her to a bar in the Highlandtown area of Baltimore City.

It is, of course, the testimony of the rebuttal witness that the appellant strenuously assails in this Court. He argues that the obvious purpose of the State’s using the rebuttal witness was to show that the appellant was a “bad man”, likely to have committed the offense in the instant case because, according to the rebuttal witness, he had attempted to commit a similar offense in a time frame encompassing three months, and occurring during that time, either before or after the events of the case now before us. Patently, the witness was also used to underpin the prosecutrix’s statement that the appellant had a knife where “ . . . the blade just came right out of it,” that he held to her throat. The evidence was further intended, we think, to demonstrate that appellant was in the habit of carrying, and threatening to use, a retractable blade knife.

The State, in response to the appellant’s argument, seizes upon appellant’s above quoted answer, “No sir. There was never a knife,” as a blanket denial by appellant that he had ever owned a knife. Therefore, the State reasons, the testimony of the rebuttal witness was proper in that it indicated that appellant had, in fact, owned a knife similar to that described by the prosecutrix. We think the State reads the appellant’s response completely out of context. We do not view it as a blanket denial of his ever having owned a knife, but rather as a specific answer to the question “Did you at any time during the 11th day of March hold a knife up to her [the prosecutrix’s] body, or threaten her [the prosecutrix] with a knife of any kind?” The answer, as given by the appellant, “No sir. There was never a knife” means that the appellant did not hold a knife against the body of the prosecutrix nor did he threaten her with a knife because there was no knife. In sum, appellant was but denying explicitly that he used a knife on the appellant at the time, date, and place of the alleged rape.

Furthermore, the testimony of the rebuttal witness cannot be said to be a rebuttal of the evidence as given by the appellant’s wife because what she said was that her “ . . . husband never had a knife like that that I know of.” The rebuttal witness’s evidence did not serve to rebut the wife’s testimony inasmuch as there was no showing that the husband ever possessed such a knife, under circumstances where the wife knew, or should have known, of its existence. See Dobson v. State, 24 Md. App. at 659, 335 A. 2d at 133.

The State advances a further theory as to why the rebuttal testimony concerning an alleged prior attack upon the rebuttal witness was proper. The State says “ . . . her testimony was clearly relevant, for it tended to establish the primary fact at issue in the case, whether or not the sexual relations with the victim were undertaken with her consent, in addition to its relevance for the purpose of impeaching the credibility of the Appellant.” The State concludes that the rebuttal testimony “ . . . was not offered to prove the Appellant’s guilt by establishing a prior offense or ... a lustful propensity, but rather was offered only to impeach his testimony as to consent and as to the use of the knife.” Whatever the State’s purpose in introducing the rebuttal testimony, it clearly tended to convey to the jury that the appellant had committed, or attempted to commit, a similar sexual assault upon another woman, and, ergo, he must be guilty of the assault upon the prosecutrix.

Our perusal of the trial judge’s jury instructions does not disclose that the jury was advised that the rebuttal testimony was for the limited purpose of impeaching the credibility of the appellant and his wife. If the jury had been so instructed, the rebuttal evidence was, nevertheless, not properly admissible even for that limited purpose because it did not serve to rebut any defense evidence.

At the outset we said that this case would be reversed on the strength of Dobson v. State, supra. In Dobson, 24 Md. App. at 660-61, 335 A. 2d at 133-34, we opined:

“The general rule is that in the trial of a criminal case, evidence showing that the accused has committed other independent crimes is not admissible for the purpose of proving guilt or of showing that because a person committed one crime, he is likely to have committed the offense charged. 1 Wharton’s Criminal Evidence, ... § 240 [(13th ed. C. Torcía 1972)]. ‘Evidence of other crimes is irrelevant where it does not tend to prove some material fact in connection with the crime charged, or where it merely tends to show that the defendant is a criminal.’ See also Bryant v. State, 207 Md. 565, 115 A. 2d 502 (1955); Wood v. State, 191 Md. 658, 62 A. 2d 576 (1948); Jennings v. State, 8 Md. App. 312, 259 A. 2d 543 (1969). Of course, evidence of prior criminal acts is admissible if it tends to show a common scheme, plan, design, motive, intent or identity. Wilson v. State, 8 Md. App. 653, 262 A. 2d 91 (1970).” (Footnote omitted).

In our view, evidence of a single alleged prior abortive attempt to rape, if true, does not demonstrate the “common scheme, plan, design, motive, intent or identity” required by Wilson v. State, supra, nor can we say that the rebuttal evidence indicating that the appellant at some time before or after the instant offense set about to have forced carnal connection with the rebuttal witness, “ . . . tend[s] to prove some material fact in connection with the crime charged,” 1 Wharton’s Criminal Evidence § 240 (13th ed. C. Torcía 1972). We are unpersuaded by the State’s argument that such evidence bolsters the prosecutrix’s testimony that she did not consent or that the appellant, in this case, used a knife. All we can glean from the rebuttal witness’s evidence is that she did not consent and that the appellant had a “box cutter” type of knife at the time he endeavored to force her to submit to his will. We think, as we said in the beginning, that the rebuttal witness’s “ . . . narration was adduced for the purpose of demonstrating that the appellant was a bad man, a criminal, and thus likely to have committed the offenses for which he was indicted.” Dobson v. State, 24 Md. App. at 661, 335 A. 2d at 134. The evidence was inadmissible. It was error of such magnitude that a reversal is required.

Appellant further has attacked the trial judge’s advisory instructions to the jury. We need not and' do not reach that issue in view of our disposition, but, in any event, the correctness, vel non, of the instruction is not properly before us by reason of the failure of appellant to note any exceptions to the instruction. Thus, under Md. Rule 756 g the question has not been preserved for our review.

Judgment reversed.

Case remanded for a new trial.


author: Lowe, J.,

text:
    THOMAS H. DRIVER, SR. et al. v. PARKE-DAVIS & CO. et al.
    [No. 297,
    September Term, 1975.]

      Decided December 4, 1975.

      The cause was argued before Orth, C. J., and Davidson and Lowe, JJ.

      John T. Enoch, with whom were Goodman, Meagher & Enoch on the brief, for appellants.

      Donald L. DeVries, Jr., with whom were John H. Mudd, Charles E. Iliff, Jr., and Semmes, Bowen & Semm.es on the brief, for appellee Parke-Davis & Company. E. Dale Adkins, III, with whom were John F. King and Anderson, Coe & King on the brief, for other appellees.
   Lowe, J.,

delivered the opinion of the Court.

As unrelenting as Juno’s hate, Md. Rule 530 once again brings about an “inexorable dismissal” where “no proceedings of record have been taken within a period of eighteen months. . . .”

On December 10, 1969, appellants sued in the Circuit Court for Harford County, for the wrongful death of Mary Driver which, according to appellants, was caused by a prescription of an antibiotic drug known as Chloromycetin. In answer to demurrer timely filed and granted, an amended declaration was filed July 24, 1970. Appellees put the case at issue by pleas on August 7 and 14, 1970. The docket reflects substantial activity until after October 20, 1972, upon which date an entry indicates the filing of an unanswered supplemental interrogatory by appellee Parke-Davis & Co.

Nearly two years elapsed before the next entry on October 15, 1974 indicating that notice was sent of contemplated dismissal pursuant to Md. Rule 530. That rule prescribes that a pending action in which proceedings of record have not taken place within an eighteen month period shall be dismissed, unless for good cause shown, the court suspends the operation of the rule.

Pursuant to a motion filed by appellants on October 25, 1974, Judge Albert Close signed an ex parte order suspending the operation of Md. Rule 530, as provided by subsection c, on October 29, 1974. Without knowledge of this ex parte order signed four days after the motion, appellee Parke-Davis & Co. filed its timely answer to the motion on October 31, 1974. Appellee doctors filed their answer on November 12,1974.

On or about November 16,1974 notice was sent that a trial date for April 2,1975 had been assigned. Upon receipt of this notice, appellee Parke-Davis & Co., still unaware of the ex parte order, requested a hearing on the motion to suspend the rule which it had answered.

A full hearing was held on February 11, 1975 before Judge Edward Higinbothom, which resulted in an order subsequently filed rescinding Judge Close’s ex parte suspension of Rule 530. Appellants then moved for reconsideration by Judge Higinbothom under Md. Rule 625. Additional grounds were added to their original petition under Md. Rule 530 c. The court consented to the reconsideration, considered the additional grounds suggested by appellants, and reaffirmed its former decision by memorandum opinion and order rescinding the suspension of dismissal, dismissing the case under the Rule, and assessing costs to appellants.

The three issues raised below and answered adversely to appellants are brought to us on appeal. Essentially appellants contend that:

1. Md. Rule 1211, as supplemented by an order of the Circuit Court for Harford County dated January 2, 1970, requires the Clerk of the Court of Harford County, acting as assignment clerk, to notify all parties of a trial date within two weeks after the case becomes at issue. Since this was admittedly not done in the instant case, appellants argue that they are relieved from the onus of dismissal under Rule 530;
2. Because Judge Close suspended the Rule’s operation by ex parte order, another judge of the same court cannot reconsider or reverse his action;
3. Because it has been the practice of the Third Judicial Circuit to waive the operation of Rule 530 upon request, the court abused its discretion by denying that relief.

Md. Rule 1211, as Supplemented

Md. Rule 1211 lays the supervisory responsibility for trial assignments upon the County Administrative Judge, “. . . to the end that maximum use of available judicial manpower is obtained, and pending actions brought to trial and disposed of as expeditiously as feasible.” The Rule then provides that he will institute procedures designed among other purposes, to

“ ... Establish trial and motion calendars and other appropriate systems under which actions ready for trial will be assigned for trial and tried, after proper notice to parties, without the necessity of a request for assignment from any party.”

A Committee note under the rule recognizes “that it may be inexpedient to require a uniform assignment procedure in all jurisdictions”; however, it then suggests a desirable procedure “which may be adopted in whole or in part. . . .” Apparently by Order No. 69, the Administrative Judge of the Circuit Court for Harford County promulgated a procedure patterned after the committee’s recommendations, to take effect on the second Monday of January, 1970. It provides that when a law case is at issue “. . . it shall automatically have a tentative trial date, six months from the date of issue.” In addition to maintaining a trial calendar showing details of all cases at issue, the assignment clerk was required to notify all counsel in writing of the tentative trial date within two weeks after the case is at issue and again by written notice when the trial date is firm.

Appellants admit that the case was “at issue” after appellees filed their general issue pleas in August of 1970 and contend that they were entitled to, but did not receive from the assignment clerk, either a trial date or notice thereof, “without the necessity of a request for assignment from any party.” By analogizing the mandatory reissuance of a summons returned non-est pursuant to Md. Rule 1211, appellants cite Piersma v. Seitz, 10 Md. App. 439, to support their premise that the implementation of Order No. 69 pursuant to Md. Rule 1211 placed the mandatory duty of trial assignment and notice upon the assignment clerk. They argue that the imposition of those duties upon the clerk relieves counsel and parties plaintiff from prosecuting their cases under Md. Rule 530, which provides for dismissal upon lack of prosecution.

“One plain purpose of the Rule [1211] and Administrative Order [No. 69] was to assure that . . . Counsel need have no concern about jeopardizing his client’s case by failing to request a trial assignment.”

In short, they contend inferentially, if not overtly, that the combined impact of Rule 1211 and Order No. 69 not only augments the underlying purpose of Rule 530, i.e., to “focus on the dead case, the case left unprosecuted for years at a time, ...” Mut. Benefit Soc’y v. Haywood, 257 Md. 538, 539, but negates or in effect repeals it.

Judge Higinbothom ruled that Order No. 69, dated January, 2, 1970, is not applicable to cases filed before its. effective date. Hence it should not apply to this case filed in December of 1969. Furthermore, he said,.

“The Rules do not make the operation of Rule 530 contingent upon receipt of a trial date.”

We agree with the trial court. If the Court of Appeals intended to repeal or negate the self-executing effect of Md. Rule 530 by its enactment of Md. Rule 1211, it would have so stated.

In Cooney v. Bd. of Co. Comm’rs, 21 Md. App. 57, 59, Judge Thompson quoted the Court of Appeals’ holding in Stanford v. District Title Insur., 260 Md. 550, 554, that Md. Rule 530 was

“ ‘. . . self-executing, in the sense that it is actuated by inaction of the parties and the passage of time.’ ”

The Stanford Court had made it abundantly clear that

“ .. . nothing except the presence of proceedings of record will toll the operation of Rule 530; . . ..” Id. at 555.

Even if we assume that the assignment clerk was responsible for setting a trial date and sending notification thereof under Order No. 69 in this case, and failed to do so, we interpret Stanford as saying that the plaintiff is not relieved of prosecuting his case and providing proof of proceedings therein on the record. If the clerk has failed in his responsibility (and we do not so decide) under one Rule, that does not relieve appellants from their responsibility under another.

Horizontal Appeal

Appellants contend that, because Judge Close had signed an ex parte order suspending operation of Md. Rule 530, it was beyond Judge Higinbothom’s authority to reverse the discretionary decision of Judge Close. In his first memorandum opinion, Judge Higinbothom pointed out that the ex parte order was signed by Judge Close well before the fifteen days for an answer to be filed had elapsed. He noted further that timely answers were filed and that appellees were entitled to a hearing under Md. Rule 1210 c.

Appellants rely heavily on the decision of the United States Court of Appeals for the Second Circuit in In re Hines, 88 F. 2d 423. They quote this 1937 case as stating:

“ . . . [i]t is well established that a judge may not overrule the decision of another judge of coordinate jurisdiction made in the same case.”

Appellees point out to us, however, that Hines was expressly founded upon the Second Circuit case of Commercial Union of America v. Anglo-South American Bank, 10 F. 2d 937 which was overruled in Dictograph Products Co. v. Sonotone Corporation, 230 F. 2d 131, cert. dismissed 352 U. S. 883. In a long discussion of the question the Dictograph court viewed the question as

“ ... in substance the same as that which arises when an appellate court upon a second appeal is faced with an earlier decision of its own, especially if the earlier decision happens to be that of a different panel of judges. The second panel has unquestioned power — ‘jurisdiction’ — to deviate from the first, but as a matter of practice it rarely does so. . . .
So far therefore as our original opinion must be read as meaning that the question is not one of discretion, and that on no occasion may the second judge reconsider a ruling of the first judge, we now overrule it. .. .” Id. at 135-136.

Thus “ ... happily, the Second Circuit has repudiated its older doctrine and now subscribes to the general doctrine.” IB Moore’s Federal Practice Sec. 0.404 [4].

Our own Court “ . . . has never . .. doubted that a judge presiding at a trial, unless specifically precluded, is free at any time during the trial to reconsider any prior ruling in the case, whether made by him or by another judge.” Layman v. State, 14 Md. App. 215, 230. In Layman we recalled that in Walker v. State, 12 Md. App. 684, 689, we had held that:

“While we agree that a trial judge may accept the pre-trial finding as res judicata and is under no obligation to readjudicate a settled question, we do not agree that he need feel bound by a pre-trial ruling with which he is in strong disagreement.”

And in State v. Coffield, 17 Md. App. 305, 314, we observed that it was error for one trial judge to feel bound by another trial judge’s opinion, relying on our own authority in Walker and Layman.

The Court of Appeals' authority for this principle is of less recent vintage. In 1858 a slave was convicted of larceny and ordered “to be sold as a slave for life ... to some person who should convey him beyond the limits of this State. . . .” He was evaluated by Judge Albert Constable whose order required that any excess paid over the valuation was to go to the Commissioners of Harford County and any deficiency of the selling price below the valuation was to be paid to the owner by the Commissioners. Subsequently, Judge Constable’s successor, Judge Price, reevaluated the slave at a lesser amount. Upon appeal the precise question, also having come from the Circuit Court for Harford County, went to the Court of Appeals. In Robinson, et al. v. Commissioners of Harford County, 12 Md. 132, 141-142, the Court said:

“The appellants deny that Judge Constable had any authority to revise or reconsider the valuation, or to pass any order for such a purpose, on the 2nd of December 1853; and they say, admitting he then had the authority, still no successor of his, as judge, could in any manner change or modify the first valuation. But we cannot yield our assent to this view of the subject. On the contrary, we think Judge Price could exercise the same authority over the case which would have been possessed by his predecessor, if he had been living, and still in office.”

The authority of a judge to reverse the decision here at issue of a fellow judge of the same court is clear. When that authority is exercised, the question becomes whether to do so was a proper exercise of discretion. Castner v. First Nat’l Bk. of Anchorage, 278 F. 2d 376. Here Judge Higinbothom explained his exercise of discretion in that the ex parte order had been signed too precipitously, denying appellees the right to answer (which they did in timely fashion) and the right to be heard. To avoid conflict with his fellow judge, Judge Higinbothom explained:

“Judge Close was advised in detail of this Court’s action and raised no objection thereto.”

We hold that Judge Higinbothom did not abuse his discretion. Indeed, had his discretion not been so exercised, a review of the discretion exercised on the original ex parte order to suspend, without allowing time to appellees to answer or be heard, would have caused us more concern than does its recision.

Abuse of Discretion

Because appellants produced court clerks who could remember no case which was dismissed under similar circumstances pursuant to Md. Rule 530, they contend that Judge Higinbothom abused his discretion. We do not agree. In Stanford v. District Title Insur., 260 Md. at 555 Judge Digges said:

“The decision to permit the redemption of a cause lost through delay involves subtle judgment, requiring the trial judge to balance the individual litigant’s right to ultimately have his day in court against the public’s paramount interest in insuring that all citizens can obtain a prompt resolution of conflicts while they still remain current. The primary focus of his inquiry should be on diligence and whether there has been a sufficient amount of it during an eighteen month period of inaction for the court to affirmatively conclude that the case should not be automatically dismissed. That decision, whatever it may be, rests in the sound discretion of the trial judge and we will only invade his province on appeal in extreme cases of clear abuse. Tydon v. Spong, supra [237 Md. 107] at 110.
... We answer first that nothing except the presence of proceedings of record will toll the operation of Rule 530; otherwise, its effect of speeding up litigation would be lost on happenstances that rarely interfere in other areas of human affairs. We answer secondly that even with these excuses, which are appealing on their face, the trial judge was fully justified in determining there was no evidence of diligence or of any valid reason for the delay in this case.”

Here too appellants note appealingly that through • correspondence with their adversaries, they had acquiesced in every alternative trial date advanced by appellees. The short answer to that is found in Cooney, 21 Md. App. at 59 where:

“To halt the inexorable dismissal of his complaint, appellant interposes a copy of a letter which he contends was sent . . . thirteen months after the case was at issue, to the Clerk of the Court requesting that the cause be set for hearing.
The opinion of the lower court explicates that this letter did not constitute good cause, which subsection c requires to sustain a suspension of this self-executing rule of dismissal:
‘ ... It is the responsibility of the party or parties, as the case may be, to have the matter set for a hearing when so desired. No such effort was received by the Court and consequently the matter has laid dormant for the eighteen months prescribed under Rule 530.’ ”

Such efforts must be manifested by proceedings of record to toll the operation of the rule. Stanford, supra, 260 Md. at 555. The period of dormancy upon which the trial judge is required to focus to determine whether there has been diligence in an amount sufficient to redeem for good cause a suit lost through delay, Md. Rule 530 c, Cooney v. Bd. of Co. Comm’rs, 21 Md. App. at 60, lasted in this case for two years before dismissal was indicated (which was also five years after suit was filed and seven years after the death sued upon had occurred). We find no clear abuse of the trial judge’s discretion in failing to suspend the Rule’s operation. Stanford v. District Title Insur., 260 Md. at 555.

Judgment affirmed.

Costs to be paid by appellants.

      . Although Md. Rule 530 has been changed, effective July 1st, 1975, the language of the Rule under which the dismissal occurred in this case is as follows:
      “Rule 530. Dismissal for Lack of Prosecution.
      a. Dismissal of Action Pending Eighteen Months Without Proceedings.

      Except as provided in subsection (e) of this Rule any pending action in which no proceedings of record have been taken within a period of eighteen months shall be. subject to dismissal for lack of prosecution under the provisions of this Rule. Proceedings under this Rule, under Rule 124 (Appearance) or under Rule 125 (Attorney — Striking Appearance) are not proceedings of record for purposes of this Rule.
      b. Notification of Contemplated Dismissal.

      In all such actions the clerk shall notify counsel of record that an order of dismissal for lack of prosecution will be entered after the expiration of thirty (30) days unless prior to the expiration thereof a motion is filed under section c of this Rule. In the event counsel has died or his appearance has been stricken pursuant to Rule 125 (Attorney — Striking Appearance), and the party represented is not represented by another attorney of record, the clerk shall send the notification required by this section to such party at the address shown on the pleadings. The notification shall be served in the manner provided by Rule 306 (Service of Pleadings and Other Papers).
      c. Motion for Suspension of Dismissal Rule.

      On motion filed at any time prior to thirty days after service of such notice, computed according to section c 3 of Rule 306 (Presumptions in Case of Service by Mail), the court for good cause shown may suspend the operation of this Rule. The order of suspension shall prescribe the duration and any other terms of the suspension.
      d. Entry of Dismissal and Assessment of Costs.

      Thirty days after service of such notice, computed according to section c 3 of Rule 306 (Presumptions in Case of Service by Mail), the clerk shall enter on the docket “Dismissed for want of prosecution without prejudice,” unless prior to that time a motion shall have been filed under section c of this Rule, or unless the court shall previously have suspended the operation of this Rule. The clerk shall thereafter assess costs against the plaintiff.
      e. Exceptions.

      This Rule shall not apply to actions involving the military docket, continuing trusts, guardianships, estates of incompetents, or issues from an Orphans’ Court. An action for divorce a mensa et thoro shall be subject to dismissal under this Rule only if no proceedings have been taken within a period of two and one-half years.
      f. Powers of Trial Courts.

      Courts may by rule or order provide for a period longer than, but not less than, eighteen months in all actions or in certain classes of actions other than those actions provided for in section e of this Rule.”

      . We note in passing that appellants “analogous situations” are of no help to us. They contend that:
      “In analogous situations, the Maryland Court of Appeals has said that a judgment or decree rendered by a court of competent jurisdiction and not void on its face may be modified, annulled, vacated, or set aside only by the court which rendered it or by a court exercising appellate jurisdiction, and not by any other court, especially not a court of equal or concurrent jurisdiction. Messall v. Merlands Club, Inc., 244 Md. 18, 222 A. 2d 627 (1966) certiorari denied, 386 U. S. 1009; Loft Inc. v. Buckler, 148 Md. 647. 129 A. 914 (1925).”
      These cases are totally inapposite as are the cases cited in them. Each deals with questions of res judicata or the principle that where a subject^ of controversy is in possession of a court of competent jurisdiction, its action should not be interfered with by a court of concurrent jurisdiction. See Withers v. Denmead, 22 Md. 135.


text:
    MARSIDE, INCORPORATED v. TAMARA MOSLEY
    [No. 303,
    September Term, 1975.]

      Decided December 4, 1975.

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

      Robert G. Dumal for appellant.

      Michael Bowen Mitchell, with whom were Clifton J. Gordy, Jr., and Harry A. E. Taylor on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

On May 27, 1975 we granted certiorari to review an interpretation of Real Property Art., § 11-110 (f) by the Circuit Court for Anne Arundel County. That section provides for the enforcement of a lien against a condominium unit arising from assessments permitted by the Horizontal Property Act, to maintain the common elements of the condominiums.

Sec. 11-110 (d) declares that any such assessment:

“. . . constitutes a lien on the unit on which it is assessed, if a statement of lien is recorded within two years after the date the assessment becomes due. . . .” (Emphasis added).

There follows § 11-110 (f) purporting to discuss “Enforcement of lien.” That section contains the equivocal sentence calling for interpretation under the facts of this case:

“(f) Enforcement of lien. — The lien may be enforced and foreclosed by the council of unit owners, or any other person specified in the bylaws, in the same manner, and subject to the same requirements, as the foreclosure of mortgages or deeds of trusts on real property in the state containing a power of sale, or an assent to a decree. Suit for any deficiency following foreclosure may be maintained in the same proceeding AND SUIT TO RECOVER A MONEY JUDGMENT FOR UNPAID ASSESSMENTS MAY BE MAINTAINED WITHOUT WAIVING THE LIEN SECURING THE SAME. No action may be brought to foreclose the lien unless brought within three years following the recordation of the statement of condominium lien. No action may be brought to foreclose the lien except after ten days’ written notice to unit owner given by registered mail — return receipt requested, to the address of the unit owner shown on the books of the council of unit owners.” (Emphasis added).

We find ourselves factually limited in our review because of the absence of any transcript of testimony. This is due to the unique procedure utilized by the judge below for obtaining the facts he felt necessary to his determination. The court served an order upon the parties calling upon them to admit or deny certain factual predicates set forth by him. We too are restricted to the admissions or explanations in the affidavits of response to these factual “propositions.” Although the procedure helped narrow the issue for which we granted certiorari, it also makes more difficult a review on the merits.

It appears that appellant, Marside Incorporated (Marside), purchased for $525.00 at a constable’s sale a condominium unit owned by appellee Tamara Mosley. Marside filed an action of forcible entry and detainer in the District Court of Anne Arundel County to obtain possession of the property. The District Court issued a Warrant of Restitution. This was appealed by appellee to the Circuit Court. That court ruled that the deed was a nullity, based upon its interpretation of § 11-110 (f), and rescinded the Warrant of Restitution.

Mrs. Mosley had been indebted to the Council of Co-Owners of Warfield Condominium for the sum of $330.83 as a result of ássessments to maintain the common elements of the property. To collect the debt due it, Warfield declined to perfect a lien pursuant to § 11-110 (d), but chose rather to sue in District Court where it obtained a money judgment for $330.83. This judgment was recorded on June 14, 1974 among the District Court judgment records filed in the Circuit Court. There is no evidence or allegation that “a statement of condominium lien [was] recorded among the land records of the county. . .” in compliance with prerequisites of § 11-110 (d) which reads in full as follows:

“(d) Assessment constitutes lien. — Any assessment, until paid, together with interest, late charges, if any, and actual costs of collection, and reasonable attorney’s fees, constitutes a lien on the unit on which it is assessed, if a statement of lien is recorded within two years after the date the assessment becomes due. The lien shall be effective against a unit from and after the time a statement of condominium lien is recorded among the land records of the county where the unit is located, stating the description of the unit, the name of the record owner, the amount due and the period for which the assessment was due. The clerk shall index the statement of condominium lien under the name of the record owner in the grantor index and in the block index if one is maintained by the clerk. The statement of condominium lien shall be signed and verified by an officer or agent of the council of unit owners as specified in the bylaws and then may be recorded. On full payment of the assessment and other permitted amounts for which the lien is claimed the unit owner shall be entitled to a recordable satisfaction of the lien in any form used for the release of mortgages in the county in which the condominium is located.”

Still following the common law procedure for enforcement of a money judgment for debt, a writ of fieri facias was issued out of the District Court and levied on Mrs. Mosley’s condominium. A constable’s sale was subsequently held and Mrs. Mosley’s condominium was sold to Marside. A deed was then executed by the constable to Marside. The fourth and final proposition set forth for affirmance or denial by the court below, and the parties’ affidavits in response, sharpens the question before us: i.e., does the enactment of § 11-110 (f), effective July 1, 1974, provide an additional, simplified procedure for lien security and enforcement of assessments for common elements of condominiums, or is the new remedy an exclusive one, precluding all other procedures for recovery of the debt?

The court’s “MEMORANDUM OF DECISION AND ORDER” held, in effect, that the procedure provided in § 11-110 (f) for enforcement of a lien is an exclusive remedy for recovering money owed as assessments for common expenses of the common elements. The court said in part that:

“Section 11-110 (f) of the Real Property Article, Maryland Code, as enacted in 1974 requires that a condominium lien be enforced and foreclosed — in the same manner as foreclosure of mortgages or deeds of trust on real property. Therefore, the “W” Rules of Maryland Rules of Procedure apply. Rule W72 b requires that an action to foreclose a mortgage shall be filed in an equity court of the county in which the mortgaged property is located.
Therefore, it is obvious that all actions undertaken by Appellee in the District Court subsequent to the obtaining of the judgment were contrary to the statutes and rules of procedure in such cases made and provided. The District Court, lacking jurisdiction to foreclose a condominium lien, the deed upon which the warrant of restitution was based was void and the warrant improperly issued. Scarlett v. Robinson, 112 Md. 202, 206.”

Our opinion differs from that of the trial judge only in his use of one word, “requires.” We think that § 11-110 (f) “permits” enforcement of a condominium lien in the same manner as a mortgage foreclosure, but does not require it. The language of § 11-110 (f) is permissive, not mandatory, indicating that the legislative intent was to provide an additional procedure of collection but not to restrict recovery to that procedure alone. The section begins, “The lien may be enforced. . . .” (Emphasis added). The court below reached its erroneous conclusion by misreading a compound sentence in § 11-110 (f). The opinion reasoned that:

“While Marside maintains the Council of Co-owners availed itself of the ‘suit to recover money judgment’ provisions of Section 11-110 (f), such provision may be availed of ‘for any deficiency following foreclosure’ Foreclosure never having been conducted, it follows that there could be no such deficiency.”

The court was referring to the sentence of § 11-110 (f) which reads:

“Suit for any deficiency following foreclosure may be maintained in the same proceeding and suit to recover a money judgment for unpaid assessments may be maintained without waiving the lien securing the same.”

As interpreted below, the suit for money judgment could be maintained only to recover a deficiency “following foreclosure.” If that were so, since a lien is wiped out by foreclosure, the sentence following “and” would be meaningless because there would be no lien left that the “suit to recover a money judgment . . . may be maintained without waiving. . . .” We do not read the subject of the second half of that sentence (“suit”) following the conjunction “and,” as being limited by the prepositional phrase which qualifies the subject in the first half of the sentence — “for any deficiency following foreclosure.” When the subject (“suit”) is repeated, it is again immediately modified by the prepositional phrase that follows, i.e., “to recover a money judgment,” and thus should be read separately from the first. This sentence simply provides that the customary common law action for debt — “suit to recover a money judgment...” may be maintained without fear of losing the special lien provided — if that lien has been perfected pursuant to § 11-110 (d).

“Since assessments for common expenses are not a lien until the recordation of the ‘Statement of Condominium Lien’ has been accomplished . ..” see Comment following § 11-110, we fail to see how § 11-110 (f) is relevant here at all, in light of the fact that there had been no assertion of the lien nor evidence to indicate that the Warfield Council of Co-owners had perfected their lien by compliance with § 11-110 (d). The constable’s sale did not arise from foreclosure of a condominium lien provided for by the statute. It was the result of execution on a money judgment. We must, therefore, reverse the judgment of the circuit court which rescinded the Warrant of Restitution.

We will remand, however, for a new trial, in a more customary manner, because of the complete absence of any trial record. The allegations of fraud asserting that Warfield (who brought about the sale) and Marside, (who bought the condominium) were both represented throughout by the same attorney, together with the highly suspicious purchase price of $525.00 for a property allegedly valued at $18,500, cause us concern in the absence of explanation. In Garland v. Hill, 28 Md. App. 622, Judge Gilbert reminded us that the Court of Appeals long ago held that “... inadequacy of price is to be regarded as a strong auxiliary argument, in combination with circumstances calculated to cast doubt or suspicion upon the correctness of a sale.” Johnson v. Dorsey, 7 Gill 269, 294. The circumstances alleged (which the lower court found did not amount to fraud) together with the apparently grossly inadequate purchase price, leave us with an uncomfortable sense that justice may be denied due to the absence of facts before the court; notwithstanding that the evidentiary void at the first trial appears to lay at the feet of the counsel below. Retrial may determine the facts necessary for justice to be done, provided counsel are prepared, although it appears that the rights of the appellee could be more appropriately asserted in an equity proceeding to test the validity of the sale and resulting deed.

We commend the trial judge below for attempting to acquire information that would help him avert “a complete travesty of justice.” We are confident that he will insist on additional facts upon retrial in the light of our opinion.

Judgment vacated.

Case remanded for new trial.

Costs to be paid by appellee.

      .
      “(4) That at no point during these entire proceedings did the Council of Co-Owners of Warfield Condominium 2-D avail itself of the foreclosure provisions of Section 11-110 (f) of the Real Property Article of the Maryland Code, as enacted by the 1974 Session of the Legislature, Chapter 641.”
      Marside’s response was “That it admits proposition 4, and says further that the Council of Co-Owners of Warfield Condominium 2-D availed itself of the ‘suit to recover money judgment’ provision of Section 11-110 (f) as referred to in the Order.” Mrs. Mosley stated that she had no knowledge or reason to believe that the condominium council availed itself of said provisions.

      . The trial court’s opinion carried an explanation of the lack of facts in the record which should also serve as sufficient admonition to counsel on remand:
      “At the hearing on the appeal counsel for Appellant was not only late in appearing in court, but so completely unprepared on both the law and on the facts that it became obvious to the court that to proceed further on defendant’s nebulous allegations of fraud without proof thereof could result in a complete travesty of justice. All that was shown was that while counsel for Appellee may have exhibited questionable professional ethics in representing or attempting to represent so many interests throughout the entire matter which brought the case before the court, there was no fraud. On the other hand, Appellee exhibited a constable’s deed for the property in question, asserted the finality of a prior judgment in the District Court, and rested.”


author: Eldridge, J.,

text:
    MARYLAND STATE FAIR AND AGRICULTURAL SOCIETY, INCORPORATED v. RIDGELY LEE ET AL.
    [No. 1135,
    September Term, 1974.]

      Decided December 4, 1975.

      The cause was argued before Moylan and Lowe, JJ., and John C. Eldridge, Associate Judge of the Court of Appeals of Maryland, specially assigned.

      John H. Bolgiano, with whom were Smith, Somerville & Case on the brief, for appellant.

      John H. Zink, III, with whom were Cook, Murray, Howard & Tracy on the brief, for appellees.
   Eldridge, J.,

delivered the opinion of the Court.

This is an action for damages resulting from the death of Aimee Britton when she was thrown from a runaway horse on the defendant’s premises.

In April 1971 Ridgely Lee, a horse breeder and trainer, applied to stable horses at Pimlico Race Track for upcoming race events there. Because the available stalls were filled, the Pimlico Racing Secretary assigned her to accommodations at her second preference, Timonium Fair Grounds. Mrs. Lee accepted the assignment since it was closer to her home than the other available sites at Bowie or Laurel and because it was the preference of her twenty-four year old daughter, Aimee Britton. Additionally, Mrs. Lee testified that the alternative sites would “most likely” be exhausted by the time she appealed the Secretary’s decision and requested another racetrack.

The Timonium racetrack facility is comprised of an oval track elevated approximately five feet above the barn area. The barns, located south of the track, were separated by asphalt paving from the track entrance. To the east the barns were bordered by an approximately three and one-half foot high stone wall which separated the stabling area from York Road, a public highway.

On the morning of April 14, 1971, Mrs. Lee’s daughter, Aimee Britton, was preparing to exercise one of her mother’s horses. Aimee had about 8 to 10 years’ riding experience, including previous experience at Timonium. She rode the horse from her mother’s assigned barn to a track entrance about 500 feet east of the barn; a closer and allegedly safer “paddock gate” was kept closed by the track authorities during the training hours. The track entrance was composed of an area enclosed by two gates, and was connected to a “chute” through which Aimee proceeded on her horse in order to enter the elevated track. According to Mrs. Lee, who witnessed Aimee’s attempt to enter the track, a gust of wind blew sand and dirt which hit the horse, causing it to become slightly “fractious.” The horse backed out of the entrance and, after a horse already on the track had passed, Aimee again attempted to enter the track. The horse became “more frightened,” and again backed “sideways” out of the chute. The horse was then going in circles in the area between the two gates, and, despite Aimee’s attempt to direct it towards the track area, it went out of the gate area towards York Road. In so doing, the horse had to traverse an asphalt path which separated the gate entrance from York Road. It then “hit the asphalt surface which also had sand on it, slipped and when it slipped, it panicked, and went in a straight line towards the wall at York Road.” As the horse jumped over the wall, Aimee fell off the horse and struck her head on the stone wall. She died a week later from the injuries to her head.

Ridgely Lee, individually and as personal representative of the estate of Aimee Britton, filed suit against the Maryland State Fair and Agricultural Society, Inc., the owner of the Timonium racetrack facility (hereinafter referred to as “Timonium”), in the Circuit Court for Baltimore County (Maguire, J.). The suit alleged that Timonium negligently maintained the racetrack and negligently permitted certain hazardous conditions to exist which caused the injuries to Aimee.

At the trial, after the presentation of the plaintiffs case, and again at the close of all the evidence, Timonium moved for a directed verdict, contending that (1) as a matter of law, the alleged defective conditions were open and obvious to Aimee, and therefore the defendant is not liable for injuries resulting from those conditions; (2) there was no legally sufficient evidence of negligence on the part of Timonium which caused or contributed to the accident; and (3) the sole proximate and legal cause of the injury was the runaway horse ridden by and in the sole control of Miss Britton. The trial judge rejected the contentions, permitting four allegations of negligence to go to the jury: (1) the failure to properly maintain the racetrack by watering the racetrack prior to training horses; (2) failure to provide a dirt pathway (instead of asphalt) from the stable area to the racetrack; (3) the failure to allow the paddock gate entrance to be opened and used during training hours; and (4) the failure to enclose the stable area with chain link fencing. The jury returned a verdict for the plaintiff, and Timonium appeals.

On appeal, Timonium advances four contentions. First, it argues that none of the alleged defective conditions were latent perils; rather, it claims that the conditions were “open and obvious and fully known to ... decedent, who nevertheless chose to use the premises with full knowledge of those conditions.” Timonium asserts that under these circumstances Aimee, as a matter of law, had assumed the risks and the landowner violated no duty owed to her. Second, it is contended that there was no proof that the conditions complained of were the proximate cause of the accident, and that therefore there should have been a verdict directed against the plaintiff. Third, Timonium asserts that the trial court erroneously instructed the jury that the “defense of assumption of risk failed if the.jury found that the rider of the runaway horse acted reasonably in the face of an emergency situation.” Fourth, Timonium argues that Mrs. Lee was improperly allowed to express certain “expert” opinions at trial.

(1)

A landowner owes a duty to invitees to keep his premises in a reasonably safe condition and to protect them against dangers of which he knows, or which with reasonable care he should have discovered. Lloyd v. Bowles, 260 Md. 568, 572, 273 A. 2d 193 (1971); Mondawmin Corporation v. Kres, 258 Md. 307, 315, 226 A. 2d 8 (1970); Yaniger v. Calvert Bldg. & Con. Co., 183 Md. 285, 288, 37 A. 2d 263 (1944); Maryland Sales & Serv. Corp. v. Howell, 19 Md. App. 352, 357, 311 A. 2d 432 (1973). However, the. landowner is not an insurer of the safety, of his business invitees. Lloyd v. Bowles, supra, 260 Md. at 572. Thus, the general rule is that where an invitee knows of a dangerous condition and appreciates the risks involved, yet nevertheless voluntarily chooses to negotiate it, he will be barred from recovering for the risk he chose to assume. Lloyd v. Bowles, supra, 260 Md. at 572; Finzel v. Mazzarella, 248 Md. 227, 230, 235 A. 2d 726 (1967); Gibson v. Beaver, 245 Md. 418, 421, 226 A. 2d 273 (1967); Evans v. Johns Hopkins Univ., 224 Md. 234, 238-239, 167 A. 2d 591 (1961).

Timonium’s principal contention is that the instant case falls within this general rule because Aimee both knew of and appreciated the allegedly dangerous conditions, and voluntarily assumed the risks. Thus, Timonium argues that its motion for directed verdict should have been granted because it breached no duty owed to her, or because she was barred by the defense of assumption of risk.

In reviewing the denial of Timonium’s motion for directed verdict, the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the plaintiff. Moran v. Faberge, 273 Md. 538, 540, 332 A. 2d 11 (1975); Jacobson v. Julian, 246 Md. 549, 555-556, 229 A. 2d 108 (1967); Greyhound Lines, Inc. v. Alderson, 26 Md. App. 277, 283, 336 A. 2d 811, cert. denied, 275 Md. 749 (1975); Tippett v. Quade, 19 Md. App. 49, 56, 309 A. 2d 481 (1973).

The record reveals that Aimee did have knowledge of three of the allegedly negligent conditions: (1) the existence of the asphalt pathway (instead of a dirt pathway); (2) the closure of the paddock gate; and (3) the three and one-half foot stone wall bordering the stable area. Mrs. Lee testified that Aimee knew of the asphalt pathway and the stone wall, and that she and Aimee had complained, at least to each other, about the asphalt pavement. When asked whether Aimee knew of the paddock gate being closed, Mrs. Lee answered, “You can see that it was closed.” However, while Mrs. Lee said she herself had complained about the paddock gate and the stone wall, she testified that Aimee had not done so.

While Mrs. Lee’s testimony shows that Aimee had prior knowledge of the above-mentioned three conditions, the evidence does not disclose Aimee’s knowledge of the sandy conditions caused by Timonium’s alleged failure to properly water the track. Although the testimony showed that Aimee knew the track was dry and sandy on the day before the accident, the condition was not a permanent one, and Aimee could reasonably have expected it to be remedied by the next morning. In fact, a track official testified that the race course was watered “as it needs watering.” The previous day’s dry conditions, then, could have reaffirmed her expectations that the track would be appropriately watered the next day. According to Mrs. Lee, on the day of the accident Aimee did not realize that the course was dry and sandy until the horse became unruly at the gust of wind-blown sand. Thus, despite her attempt to reenter the track, the transaction had arguably begun, and a jury could reasonably find that she had no prior knowledge of the alleged dangerous condition created by the dry track surface.

As to the three conditions of which Aimee had knowledge, arguably a jury question was presented as to whether she appreciated the risks involved. Although Aimee had been riding for over eight years, and “complained” about one of the conditions, the conclusion is not inescapable that she appreciated the risks involved. In McKenzie v. Egge, 207 Md. 1, 113 A. 2d 95 (1955), a tenant continued to use her rear porch despite previous notice to the landlord that it was defective, and the landlord argued that the tenant was either contributorily negligent or had assumed the risks of personal injury sustained when the railing collapsed. The Court of Appeals held that the issues were for the jury’s consideration, noting that “it does not follow that because she knew of the defective condition and complained of it, she was necessarily aware of the full extent of the risk.” 207 Md. at 10, 113 A. 2d at 99.

An objective test is to be applied in determining whether an invitee realizes the risks, Glaze v. Benson, 205 Md. 26, 33, 106 A. 2d 124 (1954). As stated in Prosser, Torts § 55, 303 (2d ed. 1955), and quoted with approval in Gibson v. Beaver, supra, 245 Md. at 421, “where it is clear that any person of normal intelligence in his position must have understood the danger, the issue must be decided by the Court.” In the present case, however, the record does not show that the dangers posed by negligent conditions such as those alleged would be necessarily comprehended by “any person of normal intelligence in . . . [Aimee’s] position.” Absent proof of sufficient expertise, an invitee at the Timonium racetrack like Aimee cannot be said to have fully appreciated certain dangers merely because he or she was aware of them. The trial court below, in rejecting defendant’s motion for a directed verdict, concluded that “it is a matter for the jury’s determination as to the risk of injury, whether or not it was evident to the Plaintiff. . . .” (Emphasis supplied.) In light of the directed verdict standard to be applied here, a jury issue was presented as to whether Aimee had both knowledge and appreciation of the negligent conditions.

Moreover, there is an additional reason why the issue of assumption of risk was properly submitted to the jury in this case. The trial judge instructed the jury

“that the defendant cannot rely on contributory negligence or assumption of risk as a defense if the negligence of the defendant interfered with a right or privilege of Aimee Britton to use the race track facilities, unless the conduct of Aimee Britton was unreasonable under the circumstances. In any event, if the conduct and behavior of Aimee Britton was not unreasonable under the circumstances, she is not guilty of any contributory negligence or assumption of the risk which would preclude a recovery in this case.”

The issuance of this instruction was not objected to below. However, even if the instruction had been objected to, we believe that it embodies a correct statement of Maryland law in light of the facts of this case. Even if Aimee knew of and appreciated the risks inherent in the allegedly negligent conditions, the jury was entitled to find that she acted reasonably under the circumstances and therefore was entitled to recover.

In certain situations, an invitee will not be barred from recovery, despite his comprehension of the dangerous conditions presented, unless he acted unreasonably under the circumstances. As expressed in Restatement of Torts (2d) § 343A (1) (1965) (emphasis supplied):

“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm, despite such knowledge or obviousness. ”

Comment (f) to that section provides (emphasis supplied):

“There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
“Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, . .. where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk.... It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

While the Maryland appellate courts have not expressly dealt with § 343 (1) of the Restatement 2d, the Court of Appeals has expressly endorsed a somewhat similar section, Restatement of Torts (2d) § 473 (1965). which provides with respect to contributory negligence:

“If the defendant’s negligence has made the plaintiff’s exercise of a right or privilege impossible unless he exposes himself to a risk of bodily harm, the plaintiff is not guilty of contributory negligence in doing so unless he acts unreasonably.”

Ensor v. Ortman, 243 Md. 81, 89, 220 A. 2d 82 (1966); McKenzie v. Egge, supra, 207 Md. at 11.

Although, by its terms, § 473 does not deal with the doctrine of assumption of risk, it appears that some cases have adopted the section in that context. In Sacks v. Pleasant, 253 Md. 40, 251 A. 2d 858 (1969), a tenant sought recovery from the landlord for damages sustained when she fell from a defective toilet seat in her apartment. The landlord contended that the plaintiff had either assumed the risk or was contributorily negligent because she was aware that the toilet seat was loose. The Court noted that it did not regard the tenant’s use of the toilet seat as an “exposure to a known or obvious danger,” since, although she knew the seat to be loose, it had never come off before and she was surprised when it did. After approving the Restatement rule expressed in § 473 the Court stated (id. at 48, emphasis supplied):

“. . . Mrs. Pleasant was not, as a matter of law, contributorily negligent, nor did she, as a matter of law, assume the risk. Whether she acted reasonably or unreasonably under the circumstances was a question properly submitted for determination by the jury.”

See also McKenzie v. Egge, supra, 207 Md. at 10-12.

In Finzel v. Mazzarella, supra, 248 Md. at 230, the Court said that “a possessor of land is usually under no obligation to protect an invitee against dangers which are known to the invitee.” (Emphasis supplied.) In support, the opinion cited Prosser, Torts § 61, at 403 (3d ed. 1964), where it is stated:

“[I]n the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them.... But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true . . . where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough.”

In the instant case, assuming arguendo that Aimee had knowledge and appreciation of the risks, the evidence was sufficient for the jury to conclude that she was acting reasonably under the circumstances. While Aimee’s use of the track may have been “voluntary” in one sense, it cannot be said Timonium was the “choice” of Ridgely Lee or Aimee. In the first place, while trainers could indicate preferences for assignment to track facilities, they could not “choose” a particular track. Instead, the location of their training site was determined by the Racing Secretary at Pimlico. Consequently, Mrs. Lee’s and Aimee’s first preference, the allegedly safer Pimlico Race Track, was denied them. Instead they were assigned to their second preference, Timonium Race Track.

Moreover, at the time the assignment to Timonium was made there was evidence that it would have been too late to go to the other training sites at Bowie or Laurel. Mrs. Lee testified that “[I]f you refuse to go where you are assigned, then you just may appeal and request another place, but more than likely, the other places have been assigned. You are told if you don’t want the stalls allotted to you, then you have nowhere to go.” Also, while Aimee and Mrs. Lee may have “picked” the Timonium racetrack as a first alternate, this was not a true “choice” on their part, but rather the expression of a preference, since ultimately the Racing Secretary had the power of assignment. Along with this must be considered the relatively slight chance of injury Aimee apparently exposed herself to. The record shows that Timonium went for “years and years” without a similar accident.

In conclusion, we believe that the evidence viewed in the light most favorable to the plaintiff was sufficient in this case for a jury issue to be presented as to whether Aimee, under the circumstances, acted reasonably in choosing to negotiate the risks, even if she was aware of them, rather than forego use of the racetrack entirely.

(2)

Timonium also contends that its motion for a directed verdict should have been granted because “[t]here was a total absence of proof that any of the conditions complained of were a proximate cause of the accident.” As noted by the Court of Appeals in Jubb v. Ford, 221 Md. 507, 513, 157 A. 2d 422 (1960), whether proximate cause “exists is to be decided in a common-sense fashion in the light of the attending facts and circumstances, and, unless the facts are undisputed and admit of but one inference, the question is for the jury.”

In the present case, we think that the evidence, viewed in the light most favorable to plaintiffs, justified submission of the question of proximate cause to the jury. Mrs. Lee, who was properly qualified to testify as an expert witness (as hereinafter discussed), provided evidence to establish that each of the negligent conditions contributed to the accident. For example, she testified that the paddock gate was a safer entrance to the track than the gate which Aimee was required to use on the day of the accident. Because of the paddock gate’s narrower width and physical construction, as compared with the entrance Aimee was forced to use, it would have been more difficult for a horse to turn around. Thus, if the horse were frightened, the horse would “more than likely go straight forward to the race track.” The gate which Aimee used, however, was constructed so as to permit the horse to turn around and escape toward the wall at York Road. As to the failure to provide a dirt pathway instead of an asphalt path, Mrs. Lee testified that asphalt provides a “slippery” surface, and that a horse needs a sand or dirt surface so that it “can get some grab with his feet.” There was evidence that the horse was not fully out of control until it left the gate, at which point it slipped on the asphalt and “panicked.”

The evidence was also sufficient to show that the failure to water the track, resulting in the dry track condition, may have been a proximate cause of the accident. Mrs. Lee testified that the wind was blowing steadily at 30-40 miles per hour, and that a gust of wind blew sand and dirt towards Aimee’s horse, “cutting it in the eyes,” and causing it to become “fractious.” Although Mrs. Lee did not actually see the sand hit Aimee’s horse, the sand also hit her, despite the fact that she was standing in a more sheltered spot. If the track had been properly watered, Mrs. Lee said, the sand and dirt would have been prevented from blowing.

Finally, a jury question was presented as to whether the failure to construct a tall chain link fence, rather than a three and one-half foot stone wall, was a proximate cause of the injury. According to Mrs. Lee:

“If there had been an eight to ten foot high fence when the horse ran towards that fence, it would not have tried to jump it. The horse would have more than likely had reared away from the fence and gone in another direction. Even if it had gone straight into the fence, it would have stopped the horse and . . . there would not have been the possibility of my child going off when the horse jumped.”

(3)

Timonium also argues that the trial court erroneously instructed the jury that the defense of assumption of risk is not available if the jury found that Aimee Britton acted reasonably in the face of an emergency situation. The trial judge told the jury:

“You are further instructed when an individual is confronted by an emergency situation, the conduct of the person involved in the emergency is to be judged with respect to a standard of care by considering how a reasonable person would react under similar circumstances, and an error of judgment, if reasonable under the circumstances, is not contributory negligence or assumption of the risk.”

Timonium contends that the emergency doctrine is available only as a shield against the defense of contributory negligence; it has no application, Timonium asserts, to the defense of assumption of risk. Timonium also seems to argue that there was no factual basis for the instruction in this case.

We believe that the emergency doctrine does have application to the assumption of risk defense and that the instruction was properly given under the facts of this case.

The decision of the Court of Appeals in Scott v. Hampshire, Inc., 246 Md. 171, 227 A. 2d 751 (1967), illustrates the applicability of the emergency doctrine to the assumption of risk defense. In that case, a workman was injured while trying to avert injury to other workmen. While working on a roof, he noticed that a steel crane was being operated unsafely, and came down to warn nearby workmen of the dangerous situation. As he was approaching the other workmen, the overloaded crane dropped its load of steel and injured the plaintiff. The defendant contended that the plaintiff had either assumed the risk or was contributorily negligent. The Court noted that the two defenses were similar and that, in the case before it, the distinction was without importance. The Court then stated (246 Md. at 175):

“[N] either defense is applicable in this case where the conduct of the defendant appears to have created such a situation as to justify, if not compel the plaintiff to undergo the risk of being injured in order to warn others and avert their harm.”

If the doctrine of assumption of risk is inapplicable where the plaintiff tries to avert harm caused to others by defendant’s negligence, then a fortiori it has no application where the plaintiff, confronted with an emergency created by the defendant, attempts to save himself, unless under the circumstances he acts unreasonably.

Furthermore, we do not believe that the trial judge erred in giving the instruction under the facts of this case. The jury was instructed generally as to the defense of assumption of risk. That instruction was not limited, as Timonium apparently argues, to the situation presented when Aimee initially chose to use the Timonium training facilities, or when she first mounted the horse in preparation for exercising it on the day of the accident. The instruction also encompassed any subsequent risks which Aimee encountered after she initially mounted the horse and attempted to enter the racetrack. There were at least two such emergency conditions with which Aimee was subsequently confronted where the judge might have found that she assumed risks. First, there was testimony that after Aimee’s horse became unruly by the,wind-blown sand, she again attempted to enter the track, rather than dismount or return to the stables. Under these facts, it is arguable whether she had assumed the risk of further loss of control of the horse. Additionally, there was evidence that Aimee either fell or jumped from the horse. As a result, there may have been a question in the jurors’ minds as to whether Aimee voluntarily assumed the risks created by jumping from the horse.

Thus, when Aimee first decided to ride the horse no emergency was presented, and the emergency doctrine was inapplicable to that situation. Subsequently, when Aimee acted in an emergency caused by Timonium’s alleged negligence, her conduct would not amount to an assumption of the risks unless her actions were unreasonable.

(4)

Timonium’s last contention is that the trial court improperly allowed Mrs. Lee to express certain opinions as an expert witness. These opinions included the following:

1. The track was too dry and needed sprinkling.
2. There should have been a dirt path across the road.
3. Instead of a three and one-half foot fence, there should have been a ten foot fence.
4. The paddock gate should have been opened.
5. The accident could have been avoided had there been a ten foot fence even if the horse had run into it and caused her daughter to fall.
6. The accident could have been avoided if the track had been sprinkled.

We find no merit to this contention. A trial court has wide discretion to determine the qualifications of a witness as an expert. Nizer v. Phelps, 252 Md. 185, 249 A. 2d 112 (1969); Brinsfield v. Baltimore City, 236 Md. 66, 72, 202 A. 2d 335 (1964). Mrs. Lee testified that for twelve years she had been breeding, boarding and training race horses, and that she was familiar with the tracks in Maryland and surrounding states. The trial judge, after reviewing her qualifications, determined that she had sufficient “expertise in the preparation of tracks for a meet and for the purpose of exercising, etc. I think she can testify to that.”

A similar situation was presented in Scott v. Hampshire, Inc., supra. In that case the plaintiff claimed that defendant negligently used a chain to lengthen a steel cable on a crane. The court allowed the plaintiff to give his opinion that it was safer to use a cable rather than a chain in the operation of a crane, stating (246 Md. at 176):

“With further reference to the testimony of the plaintiff, who, over objection, was allowed to give his opinion that it was safer to use a cable rather than a chain as a choker, we see no reason for precluding him from stating that a chain should not have been used in unloading steel from a truck with a crane. As a seabee in the Navy, the witness had not only learned that the unloading of steel with a chain instead of a cable as a choker was unsafe, but also had operated a crane in the building of naval installations and aviation facilities. It is probable therefore that the plaintiff could be considered qualified to testify as an expert witness. As a general rule, a witness who in studying or by experience has acquired knowledge of a particular subject or activity — not within the ken of an ordinary person — is considered to be an expert and as such is qualified to give an opinion as to the matter of his expertise.”

In light of Mrs. Lee’s experience we believe that she was similarly qualified to give an expert opinion.

Judgment affirmed.

Appellant to pay costs.

      . Timonium, in its motion for directed verdict at the close of all the evidence, also contended that there was no evidence that the failure to provide an outrider or ambulance during training hours showed negligence on its part, as it was contended by Mrs. Lee. The trial judge, in effect, granted this part of the motion for directed verdict by instructing the jury that the alleged absence of an outrider or ambulance “in no way contributed to the happening of the accident or injury.”

      . Timonium, in its brief, at times seems to view the alleged obviousness of the dangers as relieving it from liability on the ground that it breached no duty owed to Aimee. At other times Timonium appears to suggest that the obviousness of the danger gives rise to the affirmative defense of assumption of the risk. This reflects no confusion on Timonium’s part as to the rationale for denying recovery based on a plaintiff’s encountering a known risk, but rather is a source of debate and discussion in the law of torts generally. As to whether the obviousness of a hazardous condition goes toward the landowner’s duty, or creates an affirmative defense, compare 2 Harper and James, Torts § 21.1 (1956); James, Assumption of Risk, 61 Yale L. J. 141 (1952); Bohlen, Voluntary Assumption of Risk, 20 Harv. L. Rev. 14, 18 (1906); with Keeton, Personal Injuries Resulting From Open and Obvious Conditions, 100 U. Pa. L. Rev. 629, 633 (1952); Prosser, Torts § 68 (4th ed. 1971). Also, with respect to Maryland law, compare Bull Steamship Lines v. Fisher, 196 Md. 519, 525, 77 A. 2d 142 (1950) with Maryland Sales & Serv. Corp. v. Howell, supra, 19 Md. App. at 358.

      . We note that counsel for Timonium conceded at oral argument that the racetrack was negligent in failing to maintain a chain link fence, and that this dangerous condition has since been rectified. No concession was made, however, as to whether the absence of a tall fence was a proximate cause of the injury.