author: Wilner, J.,

text:
    FRANK B. RYAN et al. v. STELLA KASASKERIS
    [No. 356,
    September Term, 1977.]

      Decided December 13, 1977.

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

      Steven A. Charles, with whom were Hardwick, Trípoda ■<& Harris on the brief, for appellants.

      James S. Brocard for appellee.
   Wilner, J.,

delivered the opinion of the Court.

The issue before us is a narrow one, but with important and widespread consequences. We are asked to determine whether an injury sustained by a domestic servant, whose transportation expenses are reimbursed by her employer, arises out of and in the course of her employment, and is therefore compensable under the Workmen’s Compensation Act, if it occurs while she is in transit to or from her employer’s home.

The question comes to us because of an unfortunate episode in the life of Stella Kasaskeris. Ms. Kasaskeris, appellee here, was employed as a domestic servant in the home of Frank B. Ryan. She worked three days a week at a compensation of $20.00 a day. When she was first employed, she was unfamiliar with the public transportation system, and also apparently with the English language; and so Mrs. Ryan drove her to and from work. Each day that appellee worked at the Ryan home, Mrs. Ryan would pick appellee up at her home in Wheaton, transport her to the Ryan home in Chevy Chase, and, in the afternoon, drive her back to Wheaton. By automobile, this was a 15- to 25-minute trip, one way, depending on traffic.

After several months, Mrs. Ryan became disenchanted with this arrangement, and, through a mutual friend, advised appellee that she (Mrs. Ryan) preferred not to drive appellee to and from work any longer. At this point, appellee appeared to be somewhat more comfortable with the public transit system, so the friend suggested that, in lieu of driving appellee, as before, Mrs. Ryan pay the cost of public transportation, which was estimated to be $3.80 per week. This was agreed to by both sides; thenceforth, appellee travelled to and from the Ryan home by public transit bus, and Mrs. Ryan added $3.80 to her compensation, paying her $63.80 per week for the three days’ work.

A complicating feature in this story is the fact that the nearest bus stop was about two blocks from the Ryan home, and this leg of the trip appellee walked.

The tragedy struck on January 28, 1976, at which time the new arrangement had been in effect for about eighteen months. Appellee had alighted from the bus, walked the two blocks, and was nearly across the street in front of the Ryan home when she was struck by a car. Her injuries were substantial. Appellee filed a claim with the Workmen’s Compensation Commission, which disallowed it on the ground that she did not sustain an accidental injury arising out of and in the course of employment. On appeal, the Circuit Court for Montgomery County reversed the Commission’s decision, and the employer-insurer has appealed from that action.

Three basic principles are involved in the resolution of the issue:

FIRST: An injury is compensable under the Workmen’s Compensation Act only if it arises “out of and in the course of” the employment.

SECOND: An injury occurring while an employee is going to or returning from his place of employment is generally not compensable because it is not considered to have arisen out of and in the course of employment.

THIRD: Where, however, the employer arranges for, provides, or, in some instances, reimburses the employee for the expense of, transportation to and from the jobsite, that journey may be considered as part of the employment, thereby making an injury occurring during the journey compensable.

The precise question is whether, and to what extent, the circumstances of appellee’s employment and injury caused her to fall within the protective ambit of the third principle. To answer the question, we must consider the true scope and rationale of the principle, as gleaned from the circumstances of its prior application, the nature of appellee’s employment, and her status at the time the injury occurred.

The genesis of the third principle, in Maryland, was Harrison v. Central Con. Co., 135 Md. 170 (1919). The claimant there lived in Baltimore City. He was employed by Central Construction Company to work on a construction project at the Edgewood Arsenal in Magnolia; and it was part of his employment contract that the employer would furnish him with free transportation between Baltimore and Magnolia. The employer arranged with the Pennsylvania Railroad for special “work trains” to carry the laborers between the two points, and the claimant, along with his fellow workmen, was issued a “button” that entitled him to ride the train without charge.

One day, the claimant boarded what he thought, and was told, was the “work train.” He soon discovered that he was on the wrong train — a regular passenger train that did not stop in Magnolia. He was then told to get off that train at Back River and wait for the “work train.” This he did, and it was while boarding the second train that he was injured.

On these facts, and relying on out-of-State cases, the Court of Appeals inaugurated the “free transportation” rule in Maryland with this statement (135 Md. at 177):

“When the injury occurs before the beginning or after the termination of work there are two general rules applicable to the question as to whether it arose out of and in the course of the employment. The first is that an employee, while on his way to work, is not in the course of his employment. The second is that where the workman is employed to work at a certain place, and as part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of employment.”

Upon this theory, the Court held that it was error for the lower court to have ruled, as a matter of law, that the injury did not arise out of and in the course of claimant’s employment.

The Court next dealt with this doctrine in Miller v. United Rwys. & Elec. Co., 161 Md. 404 (1931). The claimant’s husband, for whose death she sought compensation, was employed by United Railways to clean streetcars at the West Baltimore Street carbarn between the hours of 7:00 P.M. and 6:00 A.M. He, and all other employees, had passes entitling them to free transportation on the company’s streetcars, and the decedent regularly rode the streetcars to go to and from work.

The employee’s weekly salary was due on Friday, and he was able to pick it up at any one of four carbarns in the city, including the one where he worked. He found, however, that the “pay car” did not arrive at the West Baltimore Street carbarn until Friday afternoon; and, rather than wait, he took the streetcar to another carbarn where he could get his pay earlier in the day. The trip apparently involved taking two streetcars. On the Friday in question, he completed his work, took the first streetcar, and, while crossing a public street in order to transfer to the second streetcar, was struck by an automobile and suffered fatal injuries.

The claimant relied on Harrison and another case involving a salesman that is not in point here to support her claim. The Court characterized Harrison as a case in which “it might have been found that the employee was being taken charge of by the employer while he was attempting to board a train provided by the employer to bring men to the work”, and rejected it as controlling the situation then before it. Though acknowledging some similarities, the Court warned:

“Indeed, as has been remarked by some other courts, in almost any application now of this statutory provision, that only injuries which have arisen out of and in the course of the employment are compensable, examination of the reported decisions brings forward a multitude of similar cases which might be cited as precedents on one side and another, and not only is dependence upon precedents for a guide made difficult, but evidently it is attended with some danger of losing touch with the statute. It is only the simple direction of the statute that is being applied to each set of facts, and there is danger that in following the lead of resemblances in the facts of decided cases we may use them as stepping stones to foreign ground.”

The Court concluded that the decedent’s injuries did not arise out of and in the course of his employment. He had finished his work, and was free to get his pay at any one of several places which he could get to by any one of several means. That he chose to take the streetcar was of no consequence.

In Boyer v. Pennsylvania R. Co., 162 Md. 328 (1932), the Court was called upon to interpret the Federal Employers' Liability Act. The case is not particularly relevant except for the fact that Harrison and Miller were cited for the proposition that an employee is not covered when going to work unless “in transportation furnished by the employer as part of his contract of employment.” The employee in that case was proceeding to work in a private automobile driven by a fellow worker, and the claim was denied.

In Lancaster v. Celanese Corp., 163 Md. 516 (1932), an employee had completed his work, left the plant, and was crossing a street to catch a bus when he was killed. The employer did not furnish transportation, and the Court had no difficulty in affirming the denial of coverage. It did, however, make this statement, at page 518:

“The circumstances under which injury sustained during transportation may be compensable, as stated in the Harrison case .., depend 'upon whether the conveyance has been provided by him (employer), after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right are permitted to use, by virtue of that contract.”

From the facts in Harrison, and the characterization of the case in Miller, Boyer, and Lancaster, it appeared that the extension of coverage might be limited to those situations in which the employer actually furnished the transportation. However, in Heaps v. Cobb, 185 Md. 372 (1945), the Court indicated that such extension would be applicable “whether it [the travel] be in a vehicle supplied by the employer or one of his [the employee’s] own substituted for the same mission.” Heaps involved a claim under the Baltimore City Retirement System, and was not a Workmen’s Compensation case, although the Court held workmen’s compensation principles to be applicable. The claimant was the surviving spouse of the City’s Chief Engineer, who had been supplied a city car for both commuting and business. On the day in question, he used his own car to go to work, and, on the way, was involved in an accident from which he died. It was that circumstance that led to and explains the comment quoted above.

The next Maryland case to consider the question was Watson v. Grimm> 200 Md. 461 (1952); but, before considering that case, it is first necessary to review a decision of the Supreme Court in Cardillo v. Liberty Mut. Ins. Co., 330 U. S. 469 (1947), involving the District of Columbia Workmen’s Compensation Act.

The employee there, a resident of the District, was employed by an electrical contractor doing work in the District and its environs. At a certain point, he was transferred from a job in the District to work on a project at Quantico, Virginia. The union contract required the employer to furnish “transportation and any necessary expense such as board and lodging... for all work outside the District of Columbia.” The parties (whether the union or the individual employees is not clear) agreed that the employer would pay the employees involved $2 a day as a transportation expense, which was estimated to be the cost of travel between the District and Quantico and was in lieu of the employer actually furnishing the transportation.

The jobsite was several miles away from the Quantico bus and train terminals, and it was therefore necessary for the employees to make the trip by automobile. This they did by means of a carpool: the employees drove their cars to a central point and then proceeded in one car to the jobsite. On the fateful day, the claimant’s decedent, one of these employees, had finished work and was driving himself and some of his carpooling co-workers home when a large stone was propelled through the windshield from the rear tire of a passing truck, striking the employee and causing his death. The Deputy Commissioner, acting for the D. C. Compensation Commission, found that the injury arose out of and in the course of employment, and awarded benefits.

The Court began its discussion of the issue by noting that the statutory phrase is “deceptively simple and litigiously prolific.” As applied to injuries occurring during travel between home and work, “this phrase has generally been construed to preclude compensation” because “they arise out of ordinary hazards of the journey, hazards which are faced by all travellers and which are unrelated to the employer’s business.” The Court then observed that certain exceptions to this “rule” had been fashioned, which it characterized as follows:

“These exceptions relate to situations where the hazards of the journey may fairly be regarded as the hazards of the service. They are thus dependent upon the nature and circumstances of the particular employment and necessitate a careful evaluation of the employment terms.”

The exception relevant to the case was “where the employer contracts to and does furnish transportation to and from work.” As to this, the Court stated:

“To be sure, there are many holdings to the effect that, where the employer merely pays the costs of transportation, an injury occurring during the journey does not arise out of and in the course of employment; there must be something more than mere payment of transportation costs. But assuming those holdings [which were cited in a footnote] to be correct and assuming the Deputy Commissioner’s findings in this case to be justified, there is more here than mere payment of transportation costs. It was found that Ticer’s employer paid the costs as a means of carrying out its contract obligation to furnish the transportation itself. Where there is that obligation, it becomes irrelevant in this setting whether the employer performs the obligation by supplying its own vehicle, hiring the vehicle of an independent contractor, making arrangements with a common carrier, reimbursing employees for the use of their own vehicles, or reimbursing employees for the costs of transportation by any means they desire to use. In other words, where the employer has promised to provide transportation to and from work, the compensability of the injury is in no way dependent upon the method of travel which is employed.” (Emphasis supplied.)

The key to compensability, in the Court’s view, as the emphasized portions of its Opinion make clear, was the underlying contractual commitment tp furnish the transportation, not the mere reimbursement of transportation expenses.

Turning now to Watson v. Grimm, supra. The employer, Grimm, was the garbage collector for the City of Hagerstown. The claimant’s decedent, Watson, was his helper. Watson received a salary of $50 per month and board and lodging on Grimm’s farm. The standard practice was for Grimm to drive his truck each day from the farm to Hagerstown, taking Watson with him and picking up two other helpers on the way. The three helpers customarily rode on the “running board” on the side of the truck.

On the day of the accident, after completion of the day’s work, the truck ended up in the northern part of the city, about a mile from the center of town. Watson and one other helper stated that they wanted to get off downtown, rather, in Watson’s case, than riding back to the farm. While en route downtown, Watson fell off the running board and sustained injuries that proved to be fatal.

Weaving together Harrison, Heaps, and the principles announced in Cardillo, the Court held, citations omitted:

“We have stated that where an employer provides free transportation for his employee, the employee is deemed to be on duty during transportation, whether the employer supplies the vehicle or compensates the employee for the use of his own---It is held by the overwhelming weight of authority that where the employer agrees to provide transportation for his employee to and from work, compensability of injury sustained during transportation is in no way dependent upon the method of travel employed.” (Emphasis supplied.)

The Court, though citing Cardillo, made no mention of the Supreme Court’s tacit acceptance of the principle that the mere payment of transportation costs would not suffice to establish coverage. Indeed, there was no reason for it to do so, as that was not involved in the case before it. Instead, the Court concluded:

“The fact that for three years the employee lived on the employer’s farm three miles away from the city, and the fact that the place where he finished work was often more than a mile from the center of the city, considered together with the other facts and circumstances in the case, warranted the finding of the Commission that the employment continued from the time he got on the truck until he got off.”

The last relevant decision of the Court of Appeals bearing on the issue was in Tavel v. Bechtel Corporation, 242 Md. 299 (1966). The claimant there was a truck driver for Bechtel. He was assigned to work at Chaulk Point, some 38 miles from his home, and about 27 miles from the District of Columbia. He drove to and from work in his own car. Under a former collective bargaining agreement, employees living more than 25 miles from the jobsite were entitled to $1.20 per day “travel expense”; and, although the agreement currently in effect made no provision for such expense, the employer continued to pay it. The $1.20 had no relationship whatever to either the cost of transportation or the time it took to go back and forth. It was purely a fringe benefit to attract workers from the Washington area.

On these facts, the Court did not feel the case came within the Harrison-Watson principle, noting, at page 304, “the employer did not furnish the means of transportation nor pay its equivalent.”

Finally, in terms of Maryland cases, there is Western Electric Co. v. Engleman, 13 Md. App. 374 (1971), in which Tavel was distinguished and coverage afforded. The claimant was an “installer” for Western Electric. He was based in Baltimore. Under the applicable collective bargaining agreement, if an installer was assigned to work at another location within range of daily travel, he was considered to be on “local assignment.” In that event, the employer had two options: one, to furnish transportation to the jobsite by assigning him to travel as either a driver or a passenger in a company car; or, two, pay a “daily transportation expense allowance” and a “daily travel time allowance.” The claimant, Engleman, was on “local assignment”, and was not furnished a company car. Thus, he was entitled to and did receive these two allowances.

In fact, the claimant and another employee “carpooled” to the jobsite. The injury arose from an automobile accident that occurred while the claimant was a passenger in his fellow employee’s car, as they were driving home from the jobsite. The question of whether the injury was compensable depended upon whether the two allowances bore a relation to reasonable travel expenses; for, if they did, the Court stated that the case would fall within the “free transportation” exception to the “going and coming” rule. After examining these allowances, the Court concluded that “Western did in fact, under an agreement to provide transportation, make payments which bore a relation to reasonable travel expenses.” Thus, we distinguished Tavel and held that Engleman’s injuries arose out of and in the course of his employment.

We have summarized these prior decisions of the Maryland courts in some detail because of the admonitions in Miller and Cardillo about the danger of blindly accepting general statements in this most prolific area. None of these cases involved precisely the point at issue here. What they do establish, in our judgment, is that, in terms of the “free transportation” exception to the “going and coming” rule, an injury occurring while an employee is on his way to or from work, which otherwise would be noncompensable as being the result of normal hazards unconnected with the employment, becomes compensable only if, under the terms of the employment, the employer is under some obligation to provide the transportation to the employee. It is that underlying obligation which brings the travel within the scope of the employment. Where that obligation exists, the method of carrying it out becomes irrelevant; but where it does not exist, there is no coverage under this exception.

This seems to be the general view. Schneider states:

“Where the payment of transportation costs is in reality one way of carrying out an original contract obligation to furnish transportation itself, an award of compensation is generally recoverable for accidental injuries sustained by an employee while travelling to or from his employment, and the compensability of the injuries is in no way dependent upon the method of travel which is employed. The obligation to furnish transportation must exist, however. The mere payment of the cost of transportation by the employer will not in itself justify an award.”

Thus, as so many courts have stated, we must look first and always to the employment relationship itself. What was the contract between the parties?

There are very few cases, anywhere in the country, dealing with domestic servants vis a vis the Workmen’s Compensation Act. This is because, until very recently, domestic servants were not covered under these acts, or, for that matter, under any of the “protective” labor laws. In looking at this industry, and the general nature of the employment relationship, we note that it is characterized largely by “day work” in private households, and that the payment by the employer of “carfare” — i.e., reimbursement in some form for the cost of what is generally intraurban transportation — is not uncommon. We have, then, a rather sizable'industry with certain common characteristics that emanate from more than a million private contracts between individual employers and individual employees. The problem in fashioning any general rule to these myriad of contracts was commented upon by Larson:

“Suppose, for example, that Mrs. A pays her cook $40 a week plus $1 with which to buy a streetcar pass, while Mrs. B pays her cook $41, out of which $1 is destined to go for a pass, although it is not so labeled in the agreement for compensation. This technical difference in the name of the payment surely should not thrust upon Mrs. A a liability which extends throughout the streetcar journey, while relieving Mrs. B of the same liability. Yet this is what would happen under the oftenheard generalization that whenever the employer pays or reimburses the employee for travel expenses the travel becomes part of the employment. It should be apparent that, in some cases at least, the transportation allowance is merely a form of added compensation.”

We are aware of only two instances in which the issue of coverage of a domestic servant receiving a “carfare” allowance has been adjudicated by an appellate court. Both were New Jersey cases, and both, relying on the above-quoted statement from Larson, denied coverage.

In Lewis v. Ward, 126 A. 2d 664 (1956), the claimant was employed as- a domestic, one day a week, at a rate of $8 per day plus 20 cents carfare and one meal to be supplied by the employer. The actual carfare was in excess of 60 cents; and although the employee mentioned that fact to her employer, the allowance was not increased. The injury in that case arose, not during the course of public transportation, but when, for the second time in three years, the employer drove the claimant home after work. The principal question at issue was whether the 20 cents travel cost reimbursement brought the period of travel within the scope of the employment. The Court held that it did not, stating, at pages 666 and 667:

“Although an exception is made to the general [going and coming] rule in those instances where the employer furnishes transportation to and from the place of employment, nevertheless, no exception is made where the employer provides transportation costs, as counsel for petitioner suggests....
“This court comes to the conclusion that under the facts in this case the payment of 20 cents for carfare was merely an additional compensation and nothing more.”

In Watkins v. Cowenhoven, 216 A. 2d 15 (1965), certif. denied, 218 A. 2d 405 (1966), the claimant, as in Lewis, was employed as a domestic servant one day a week. She claimed that her salary was $10 and $1 for carfare; the employer did not recall whether carfare was mentioned in the arrangement, but stated, “when I paid her the $111 presumed she was including her cost of transportation whether she drove herself or whether she came with her friend next door.”

In fact, the claimant drove in her own automobile, and it was while returning home that the accident producing the injury occurred. Citing other language in Larson’s all-purpose work, the Court stated, at page 17:

“The criterion applied by the majority of cases in this type of situation is that the employee’s travel to and from work should be deemed a part of the employment when a considerable distance is involved and deliberate and substantial payment is made by the employer for the expenses of travel.”

Noting that the distance involved was 10 to 12 miles, the Court concluded, also at page 17:

“In these days of suburban living this is not an uncommon distance for an employee to travel, and it does not appear that Mrs. Cowenhoven made special arrangements with petitioner because of the distance involved. She simply agreed to pay petitioner the going rate of $11 per day for domestic work. While the expression $1 carfare may have been used, it would appear that this was merely a form of added compensation. Certainly it was not shown that the $1 was related to petitioner’s actual expenses.”

These two cases, like all of the others, are, in one respect or another, factually distinguishable from the one sub j'udice; at best, they carry forward the doctrine that mere reimbursement alone does not suffice to extend coverage.

We thus turn, as inevitably we must, to the contract between the Ryans and Stella Kasaskeris. In the beginning, whether because of appellee’s difficulties with the public transportation system and the English language, or otherwise, Mrs. Ryan provided complete transportation for Ms. Kasaskeris. Clearly, while that arrangement was in effect, transportation was singled out for special consideration and it therefore formed part of the employment. This arrangement was changed, however; and what we must resolve is whether the change was in substance or only in form.

In this context, an agreement to provide, or to continue to provide, transportation “need not be express but may be implied from the nature, conditions and circumstances of the employment and the custom of the employer to provide transportation.” Watson v. Grimm, supra, 200 Md. at 470. The record in this case establishes that the only reason for going to the new arrangement was that, in driving appellee home, Mrs. Ryan had to leave a small child alone in the house. The switch, therefore, was for her convenience, and not for the purpose of withdrawing the element of transportation from the total employment relationship. As she put it, “When I took it upon myself to ask her to supply her own transportation, I felt it was fair and right that I reimburse her for that.”

From this, we conclude that there was more here than mere reimbursement. The substantive relationship continued as before, with the employer remaining responsible, under their private arrangement, for appellee’s transportation. The only change was in the form of satisfying that obligation: reimbursement for carfare in place of the employer acting as chauffeur. Thus, in light of this conclusion, we believe that appellee fell within the “free transportation” exception.

Had appellee’s injury occurred during the bus ride, we would need say no more. But it didn’t. It occurred two blocks from the bus stop, along the “walking” leg of the journey. This raises another question: how much of the total journey is covered — that for which the employer has paid or all of it?

Once again, we find no cases directly in point, and must proceed by analogy. In Pariser Bakery v. Koontz, supra, the Court said, at 239 Md. 590, “An injury arising in the course of employment is one which occurs while the workman is doing the duty which he is employed to perform at a place where he reasonably may be in the performance of his duties. ” (Emphasis supplied.) The very rationale of the “free transportation” doctrine is that the travel is part of the employment, that the day’s employment therefore commences when the employee starts on the course of his journey, and that the employee is performing his job-related duties while in transit. Upon that premise, at least from the time appellee stepped on the bus, she was in the course of her day’s employment. That being so, appellee, during the course of her walk from the bus stop to the Ryan home, was “at a place where [s]he reasonably may be in the performance of [her] duties.” If she was working for Mrs. Ryan while riding the bus, she was also working for her when crossing the street. Accordingly, the underlying base upon which the “free transportation” doctrine itself rests, necessarily compels extension of the doctrine to include this last leg of the journey.

For these reasons, the judgment of the lower court is affirmed.

Judgment affirmed; appellants to pay the costs.

      . As it turned out, the actual fare was only $3.00 per week, rather than $3.80. We do not deem the mistake, amounting to $.13 a trip, to be of any consequence.

      . Md. Ann. Code art. 101, § 15.

      . Tavel v. Bechtel Corp., 242 Md. 299 (1966); Pariser Bakery v. Koontz, 239 Md. 586 (1965).

      . Watson v. Grimm, 200 Md. 461 (1952).

      . The case was remanded for a new trial, at which the order of the State Industrial Accident Commission awarding benefits to the claimant was affirmed. In a second appeal, the Court of Appeals also affirmed. Central Construct. Co . v. Harrison, 137 Md. 256 (1920).

      . Weston-Dodson Co. v. Carl, 156 Md. 535 (1929).

      . Cf. Cong. Country Club v. B. & O. R. Co., 194 Md. 533 (1950); Rumple v. Henry H. Meyer Co., Inc., 208 Md. 350 (1955).

      . Schneider’s Workmen’s Compensation, 3rd Ed., 1951, § 1744.

      . Coverage under the Maryland Act did not occur until 1975. Laws of Md., 1975, Ch. 686; Md. Ann. Code art. 101, § 21 (b) (9).

      . Coverage under the Fair Labor Standards Act was provided in 1974 (P.L. 93-259); Social Security coverage was provided in 1954 (P.L. 83-761); and Unemployment Compensation coverage not until 1976 (P.L. 94-566).

      . According to a publication of the United States Department of Labor (U.S. Gov’t Printing Office: 1974 0-550-774) entitled “Private Household Workers”, submitted to Congress in 1974, based on 1971 data and excluding “babysitters”, there were nearly 1.8 million “private household workers” in the United States. Of these, all but about 100,000 were paid on a daily or hourly basis for the days worked, and more than half worked three or less days a week. Approximately 287< worked for more than one employer. The report found at page 29:
      “Three-tenths of the domestics received transportation on at least one of the days they worked while only 15 percent received transportation on at least half of the days they worked during the survey week. Of the 267,000 domestics receiving transportation on at least half of the days they worked, two-thirds indicated the value of their fare or transport averaged less than $1.00 per day.”

      . 1 Larson’s Workmen’s Compensation Law, § 16.30 (Payment for expense of travel).

      . See also Guenesa v. Ralph V. Rulon, Inc., 189 A. 524 (Pa., 1937); Public Service Co. of Northern Illinois v. Industrial Commission, 18 N.E.2d 914 (Ill., 1938); Pappas v. Sports Services, Inc., 243 N.W.2d 10 (Mich., 1976). Cf. Pearce v. New Jersey Highway Authority, 300 A. 2d 358 (N.J., 1973) and Ricciardi v. Aniero Concrete Company, Incorporated, 312 A. 2d 139 (N.J., 1973).

      . That circumstance distinguishes this case from the facts, and therefore the holdings, in Pariser and Md. Paper Products Co. v. Judson, 215 Md. 577 (1958).

      . We need not, and therefore do not, decide whether the employment might have commenced at some earlier point.

      . There is no evidence in the record, arid no claim is made, that appellee did other than take the most direct route, without deviation, from the bus stop to the Ryan home.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    FRANK EDWARD HENSLEY v. DEBORAH S. RICH et al.
    [No. 361,
    September Term, 1977.]

      Decided December 14, 1977.

      The cause was argued before Moylan, Mooke and Liss, JJ.

      I. Steven Seigelwith whom were Robert W. Fox and Steen, Hughes & Seigel on the brief, for appellant.

      Richard R. Beauchemin, with whom were Arnold, Beauchemin & Huber, P.A. on the brief, for appellees.
   Moylan, J.,

delivered the opinion of the Court.

On July 10, 1972, at approximately 12:40 p.m., an automobile driven by the appellant, Frank Edward Hensley, struck and injured the nine-year-old appellee, Deborah S. Rich. She sustained a fractured leg. A jury in the Baltimore City Court found the appellant liable for negligence and rendered verdicts against him in favor of Deborah Rich and her parents, also appellees, in total amounts of $30,000. On this appeal, the appellant claims that two erroneous evidentiary rulings constituted reversible error:

(1) He claims that the trial judge erroneously excluded testimony as to an out-of-court declaration made by the infant appellee approximately one hour after the accident while she was being treated at the Union Memorial Hospital; and
(2) He claims that the trial judge erroneously excluded an expert opinion by the investigating officer as to the point of impact in this pedestrian-vehicular collision.

In view of our decision with respect to the first claim of error, it will be unnecessary to consider the second.

The accident occurred at the intersection of Coleman Avenue and Sinclair Lane in Baltimore City. Sinclair Lane runs north and south. The intersection is a “T” intersection, with Coleman Avenue extending westward from Sinclair Lane. A stop sign controls traffic entering Sinclair Lane from Coleman Avenue. There is no traffic control device at the intersection for vehicles proceeding along Sinclair Lane.

The appellee was one of five girls walking eastbound on Coleman Avenue, preparatory to crossing Sinclair Lane and then proceeding north on Sinclair Lane on their journey to the Herring Run Swimming Pool. All five girls came initially to the northwest corner of the Sinclair Lane-Coleman Avenue intersection. One of them successfully crossed Sinclair Lane to its eastern side. She called to the appellee to follow and the appellee stepped into Sinclair Lane. At that moment, the appellant was proceeding southbound on Sinclair Lane and his vehicle struck the appellee. The accident occurred in broad daylight. The weather was clear. The conditions of both the pedestrian-appellee and the driver-appellant were apparently normal. There was no evidence of speeding on the appellant’s part.

When Officer Charles Gallagher arrived at the accident scene, the appellee victim had already been removed to the Union Memorial Hospital. After making his appropriate investigation of the crime scene, including an interview of the appellant, Officer Gallagher proceeded to the Union Memorial Hospital, arriving there at approximately 1:40 p.m., one hour after the accident. According to his testimony, he there interviewed the infant appellee and obtained a certain amount of information from her about the accident. The plaintiff’s testimony, including that of the nine-year-old appellee and her mother and father, was to the effect that no interview even took place. That dispute, however, is exclusively a jury question. The evidentiary question before the trial judge was, assuming that the appellee made certain statements to the policeman, were they admissible in evidence as exceptions to the rule against hearsay?

The declaration, if made, clearly had relevance to the case. The appellant’s attorney made the following proffer with respect to the out-of-court declaration:

“Before I close my case, I wish to proffer the testimony of the police officer had he been allowed to answer the questions which had been objected to.... Furthermore, if he would have been allowed to testify as to the statement made by Deborah Rich in the hospital, he would have stated that when he walked into the hospital room she stated she was running across Sinclair Lane and was struck by a car. Then upon questioning of her, his questions were, did you look before you crossed. Her answer was yes, but did not see anything coming. Question: Was you crossing by parked cars? Answer: Yes, sir. Question: Was you crossing at the corner? Answer: No, sir, down a little from the corner. That would be all, your Honor. At this point, I would close my case.”

The trial judge declined to receive the ostensible out-of-court declaration into evidence on the ground that the appellee-declarant was in a too nervous, upset and excitable condition. The exchange over admissibility went as follows:

“Q. Let me ask you this. Did there come a time when you went to Union Memorial Hospital?

A. Yes, sir.

Q. And did you see Deborah Rich at Union Memorial Hospital?

A. Yes, I did.

Q. What time did you see her?

A. I spoke to her at 1:40 P.M.

Q. How do you know that, Officer?

A. Because I wrote it on my statement, what time I talked to her.

Q. What else did you write there? What do you write at the time you are talking to a person?

A. I write her name, address, physical description, date of birth, and then where the accident occurred, when it happened, what hospital she was in, what day, what time, and then I question her with reference to the accident.

Q. When did you fill this form out?

A. While I am talking to her.

Q. Did you have an opportunity to speak with Deborah Rich'/

A. Yes, sir.

Q. And do you know how long this conversation took?

A. Fifteen or twenty minutes.

Q. Who was present while you were talking to her, do you know?

A. Her mother, Frances.

Q. How about her father?

A. No, just her mother.

Q. Did you ask her any questions about this accident?

A. Yes, sir.

Q. What questions did you ask her?

(Mr. Beauchemin): Objection.

(The Court): You can give the question, but you can’t go further than that at this point. Do you understand?

A. Yes, sir. I can give the question, but not the answer. I asked, did you look before you crossed the street? Was you crossing by parked cars? Was you. crossing at the corner? Then she started crying and the nurse gave her a needle, and I asked no further questions.

Q. (By Mr. Seigel): Before you asked these questions, did she say anything to you without you asking any questions?

(Mr. Beauchemin): Objection.

(The Court): Sustained.

(Mr. Seigel): May we approach the bench?

(The Court): Surely.

(Counsel approached the bench and the following occurred out of the hearing of the jury.)

(Mr. Seigel): I certainly feel he can testify to what she said when he first — or blurted out when he first saw her as an obvious exception to the res gestae or spontaneous statement. Furthermore, all the statements made are admissible as admissions against her interest under hearsay.

(The Court): Not while she is in the hospital in the state of, he said, crying and screaming.

(Mr. Beauchemin): This was actually an hour after the accident.

(The Court): He said he got there at 1:40.

(Mr. Beauchemin): The accident was 12:40.

(The Court): Yes.

(Mr. Seigel): Are you disagreeing with me; they are not admissions against interest?

(The Court): They may be, but not in the conditions that she was. I am not going to allow her to give answers in her condition.

(Mr. Seigel): What’s the difference what her condition is?

(The Court): You have heard my decision.”

We hold that it was an abuse of discretion not to have admitted the out-of-court declaration of the infant appellee. In terms of qualifying as an exception to the rule against hearsay, it might well have come in upon either of two distinct theories — by virtue of being an excited and spontaneous utterance or by virtue of having been a declaration against interest. The court, however, appeared to have ruled it inadmissible upon the grounds that it was, by virtue of the pain and fright of the declarant, too excited as opposed to being too cool and unexcited. We note that the condition of the declarant at the time of the alleged declaration was that she was suffering pain and fright but not that she was thereby out of her head, delirious or raving. Officer Gallagher, indeed, testified that although she was at one point “moaning, crying, or screaming,” she was not “hysterical.” He testified further that her condition changed, that she “calmed down a little bit, stopped crying.” He concluded that, “She was just a little upset, but she wasn’t crying.” If the ruling as to inadmissibility was based, as it seems to have been, on lack of competence in the declarant as opposed to a lack of an adequate guarantee of trustworthiness, we note that the test for competence was well set out by the Court of Appeals in Perlin Packing Co. v. Price, 247 Md. 475, 489:

“As additional grounds for appeal they have objected to the court’s striking the testimony of Lorenza Price, an eight-year-old passenger on the bus. A reading of the responses of this youthful witness to the questions of counsel fully demonstrates that, as was stated by the court, she either did not understand the questions as asked or did not know what she was saying when she attempted to answer them. The lower court exercised sound discretion in striking out her testimony. Robert v. State, 220 Md. 159, 165, 151 A. 2d 737, 739 (1959). We should also add that her testimony was of no probative value and it is not discernible that the appellants were prejudiced by its being stricken. Maryland Chemical v. Monn, 241 Md. 127, 215 A. 2d 731 (1966).”

In the instant case, we note that the answers allegedly given by the appellee-declarant, were cogent, knowledgeable and clearly responsive. They do not indicate incompetence in any regard.

In Terry v. O’Neal, 194 Md. 680, objection was made to an out-of-court declaration in the nature of an admission upon the grounds that the declarant was incompetent due to mental incapacity. The Court of Appeals ruled that the declaration should have been admitted, saying at 687-688:

“The appellant contends that the statements made by Terry to the police officers should not have been admitted. We find no merit in that contention. Regardless of whether the statements were admissible as spontaneous utterances or verbal acts ... they were admissible as admissions----
The appellants contend, however, that the statements should have been excluded because of the testimony that Terry was not in his right mind when they were made. However, there was undisputed testimony that Terry understood what was said to him and answered other questions intelligibly and accurately. Even imbeciles and lunatics have been permitted to testify where there is a showing of probable capacity. ‘A witness should not be debarred from testifying on the ground of mental incapacity unless the proof of such disqualification is clear and conclusive.’ Johnston v. Frederick, 140 Md. 272, 281, 117 A. 768; Weeks v. State, 126 Md. 223, 227, 94 A. 774; Wigmore, Evidence, 3d Ed., § 492.”

The very physical shock, stress and nervous excitement which still the reflective faculties and remove their control are deemed by our jurisprudence to be the necessary precondition for the admissibility of a spontaneous, out-of-court declaration and not an impediment thereto, as the trial judge here felt them to be. The theory of admissibility was expressed in Moore v. State, 26 Md. App. 556, 562-563:

“The circumstantial probability of trustworthiness underlying this exception (as well as the superior quality of the evidence) has been thoroughly explored and well set out by the recognized authorities in this field. Dean Wigmore said at § 1747, ‘General Principle of the Exception’:
“This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations. of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least,' as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.’ ”

See also Mazur v. Scavone, 37 Md. App. 695 (1977); Jackson v. State, 31 Md. App. 332, and Estep v. State, 14 Md. App. 53.

Since this case is being remanded for a new trial, it is unnecessary to discuss in any detail the appellant’s second contention for the reason that the testimony from the investigating officer as to his expertise and, if admissible, as to his opinion as to the point of impact may come to the Court in slightly altered mode and might well generate a different ruling by a different trial judge. By way of general guidance, however, we would point out that police and fire investigators, with requisite experience, are frequently permitted to testify as to matters within their expertise, where that testimony would be of help to a jury in resolving the issue. Nizer v. Phelps, 252 Md. 185; Home Insurance Company v. Metropolitan Fuels Company, 252 Md. 407.

Judgment reversed; case remanded for new trial; costs to be paid by appellees.


text:
    BRUCE GRAY v. STATE OF MARYLAND
    [No. 384,
    September Term, 1977.]

      Decided December 14, 1977.

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

      Mark Colvin, Assistant Public Defender; with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State's Attorney for Baltimore City, and Samuel Brave, Assistant State's Attorney for Baltimore City, on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, March 8,1978.

   Wilner, J.,

delivered the opinion of the Court.

As a result of having “shoplifted” a set of glass tumblers worth $1.88, Bruce Gray was sentenced to eight years imprisonment. Lest one think this sentence somewhat harsh ^and disproportionate, we hasten to add that, at the time of his arrest, Mr. Gray had in his possession 70 bags of heroin; and it was for the possession of that amount of that substance that he was convicted and sentenced.

He complains in this appeal that (1) the trial court should have suppressed the heroin as evidence, (2) the court erred in requiring him to admit guilt of an unrelated crime, and (3) the evidence was insufficient to support his conviction. The first and third of these charges have no merit; the second is justified. •

I. SUPPRESSION OF THE HERION

Prior to the commencement of trial, appellant moved to suppress evidence, to wit, the heroin, on the ground that it was obtained by the State by virtue of an unreasonable search and seizure. What happened, based on the evidence produced at a pretrial suppression hearing, was this.

Glen Brooks was a commissioned special police officer ' employed by Reads Drug Stores. On the evening of October 1, 1976, he observed appellant enter the Reads store at the Mondawmin Shopping Center in Baltimore City, carrying two large and unmarked shopping bags. Noting that “we normally are skeptical of large bags coming into the store,” Officer Brooks kept his eye on appellant while he was in the store. According to Brooks, appellant just browsed around for a while, but, at one point, stooped down and put a set of glasses into one of the shopping bags. Brooks said that he had an unobstructed view of this event. Appellant then hurriedly left the store, with the glasses in his bag, walking past the cash registers without paying for the merchandise.

Brooks followed appellant out of the store and stopped him about ten feet from the store. Appellant first denied having taken any glasses, and, when Brooks confronted him with the glasses in his bag and offered him the opportunity to pay for them, appellant claimed he had no money. At that point, appellant was placed under arrest for shoplifting and was promptly taken by Brooks to a storage room that was used also for detention.

In the “detention” room, Brooks conducted a “pat down,” of appellant during the course of which he felt a “bulge” in appellant’s right front pocket. He stated that although it “didn’t appear to be a weapon-type bulge,” he was not satisfied that appellant was unarmed until appellant had emptied his pockets. Specifically, he noted that merely because the “bulge” in appellant’s pocket didn’t feel like a weapon, “that didn’t mean it wasn’t a weapon.” What it turned out to be was 70 individually wrapped bags of heroin.

Appellant’s suppression argument rests on two bases. First, he claims that Officer Brooks had no probable cause to make the initial arrest. This, we find to be utterly frivolous in light of Brooks’ testimony. Second, he contends that assuming, arguendo, the validity of the arrest, Brooks had no authority to conduct the type of search that produced the heroin. His argument here is that (i) the authority of a special policeman is derived from Md. Ann. Code art. 41, § 64; (ii) that statute permits a special policeman to exercise police power only in connection with the care, custody, and protection of his employer’s property; (iii) this means that the authority of a special policeman to conduct a search incident to an arrest is limited to a search for property belonging to his employer or (for his own protection) for weapons; (iv) he therefore has no authority to conduct a “general exploratory search” once he is satisfied that the accused is unarmed and any suspected stolen goods have been recovered; (v) any stolen goods had been recovered and Brooks had satisfied himself that appellant was unarmed before he discovered the heroin; ergo (vi) the “extended” search producing the heroin was unauthorized and therefore unlawful.

The simplest answer to this sophistic argument is that, according to his testimony at the suppression hearing, notwithstanding that the “bulge” was soft and didn’t appear to be a “weapon-type bulge,” Brooks was not satisfied that appellant was unarmed until after he had emptied his pockets and the nature of the bulge was determined. Thus, even if Brooks’ power to search was as limited as appellant urges, he still would have been authorized to conduct the search he did.

A more basic flaw in the argument is that it rests upon an entirely erroneous reading of the statute. Section 64 provides, in relevent part:

“Each person appointed under this subtitle as a special policeman is charged with the protection and preservation of peace and good order on the property described in the application for the commission. He has the power to arrest persons who trespass or commit offenses thereon. He has, and may exercise, the powers of a police officer upon the property described in the application for the commission and may exercise these powers in any county or city of the State in connection with the care, custody, and protection of other property of the requesting authority or other property, real or personal, for which it has assumed an obligation to maintain or protect.” (Emphasis supplied.)

Appellant somehow reads the italicized part of the statute as supporting his claim that a special policeman’s authority to conduct a search incident to a valid arrest is limited to the recovery of his employer’s property. This is an unjustifiably strained interpretation, which is supported neither by logic nor legislative intent.

The italicized language is part of a sentence, and one must read the entire sentence to ascertain its meaning. The sentence gives a special policeman the powers of a police officer, and then describes where he may exercise those powers. First, he may exercise them on the property described in the application for his commission. Second, he may exercise them any place in the State (i.e., away from particular property described in the application) but only “in connection with the care, custody, and protection of other property ... for which [the employer] has assumed an obligation to maintain or protect.”

It is not the police power itself that is limited, but only the circumstances under which it may be exercised off the particular property described in the application for the commission. So long as the special policeman is acting in connection with the care, custody, or protection of his employer’s other property, he may exercise to the full the powers of a police officer; and that includes the same power to search incident to a valid arrest as is possessed by a regular police officer. This is abundantly clear from the legislative history of the statute, which is quite extensive.

Special policemen were first authorized in 1880, when the General Assembly authorized the Governor, upon application by a>corporation owning or using a railroad, steamboat, canal, furnace, colliery, or rolling mill, to appoint persons “to act as policemen for the protection of the property of said corporation ... and for the preservation of peace and good order on their respective premises, railroad trains or steamboats.” The Act provided that these special policemen,

“shall possess and exercise, in the counties and cities in which the railroads, canals, colleries, furnaces, rolling mills and premises of the corporation for which he may have been appointed are respectively situated, all the authority and powers held and exercised by constables at common law and under the statutes of this State, and also all the authority and powers conferred by law on policemen in the City of Baltimore.”

The Court of Appeals had a number of occasions to construe this statute, primarily in the context of the extent to which the sponsor/employer was civilly liable to third parties for the acts of the special policemen employed by them. What emerged from these cases was that special policemen had a dual identity, being primarily State officers but also agents of their sponsor/employer. When engaged in enforcing the criminal law, as distinct from the rules, regulations, or procedures of the “employer,” their duty was held to be “the same as any other policeman or constable” and was exercisable in the counties in which the “employer’s” premises were located. From these cases, the Attorney General later concluded that “the power which a special officer exercises under authority of the subtitle is a power of government, not his employer.

Over the years, the General Assembly extended the provisions of the 1880 Act to the point that nearly any business establishment was able, by action of either the Governor or the Police Commissioner of Baltimore City, to employ special policemen.

Throughout the years these provisions were in effect, they were the subject of numerous opinions of the Attorney General. In fact, it was these opinions that, in a practical sense, determined the nature and scope of the special policeman’s authority. They addressed two principal questions: (1) what was the special policeman’s authority while on his employer’s property, and (2) what was his authority when off the employer’s property?

With respect to the first question, Attorney General Finan concluded, in 1964:

“On the enumerated premises the authority to act as a police officer of the State is completely concurrent with that of regular officers. Even if a crime so pure as to bear no relationship to the interest of the employing business could be distilled, as a crime it would, historically and constitutionally, be ‘against the peace, government and dignity of the State.’ Constitution, Article IV, Section 13. By definition, therefore, it would fall within that portion of Section 342 of the subtitle which authorizes special police to act for the preservation of ‘peace and good order’ on the enumerated premises.”

Thus, the words “peace and good order” sufficed to permit a special policeman, when on his employer’s property, to enforce the criminal law generally. By virtue of that phrase, his jurisdiction there was quite broad, and was not limited only to those offenses of some particular interest to his employer.

The second question — the scope of authority off the employer’s property — arose in a number of different contexts; and, over the years, it was held that:

(1) a special policeman could, under the doctrine of fresh pursuit, make an arrest off his employer’s property for an offense committed on the employer’s property and in his presence;

(2) he was authorized to direct traffic on public streets and highways adjacent to the employer’s property, and to enforce the traffic laws while engaged in that activity, including the making of arrests for traffic violations;

(3) he was authorized to maintain order in a picket line on an adjacent public street;

(4) at least within the same county as his employer’s “plant,” he could exercise jurisdiction away from the plant — i.e., off the employer’s real property — in order to protect some piece of movable or personal property of the employer;

(5) his exercise of “extra-territorial” jurisdiction was, in any case, limited to the confines of a county (or city) in which hi& employer had one of the types of property mentioned in the statute (railroad, canal, plant, etc.).

It was with this interpretative background that House Bill 299 was introduced into the 1968 session of the General Assembly. It sought to repeal the public general laws relating to special policemen, then codified in Article 23, as well as some peculiar provisions in Article 41 authorizing the appointment of special policemen upon application of the Governor of another State that owned property in Maryland, and to create in Article 41 an entirely new subtitle concerning special policemen. What would have been new § 64 of Article 41 stated, in relevant part:

“Each person appointed under this subtitle as a special policeman shall be charged with the protection and preservation of the property-described in the application for the commission. He shall have the power to arrest persons who trespass or commit offenses thereon. He shall have, and may exercise, the powers of a police officer, but only upon the property described in the application for the commission.” (Emphasis supplied.)

As so worded, this provision would have repealed virtually all of the “extra-territorial” authority of special policemen that had previously been supplied by the Court of Appeals in the early cases under the 1880 Act and later by the Attorney General. There would have been no power to make an arrest or to exercise any police jurisdiction other than on the particular property of the employer described in the application; and, by not including the words “peace and good order,” that were contained in the existing law, the basis for the special policeman’s general criminal jurisdiction exercisable on the employer’s property may also have been considerably restricted.

The basic thrust of House Bill 299 was to develop some quality standards in the issuance of special police commissions. Instead of applications being submitted directly to the Governor, as under the then-current law, they would go to the State Police, who would investigate the character, reputation, and qualifications of the prospective special policeman before making a recommendation to the Governor. The Superintendent of the State Police would also have been authorized to promulgate rules and regulations as to the conduct of these special policemen.

House Bill 299 was not passed, but was instead referred to the Legislative Council. During the interim before the 1969 session, the Judiciary Committee of the Council considered the bill, made some changes in it, and recommended an amended version to the Council. That amended version, which, overall, the Council stated was “similar to House Bill 299”, was introducted as Senate Bill 40 in the 1969 session and was enacted. The principal differences between the two bills were in section 64, which was changed by the Senate Bill in three respects, as follows:

“Each person appointed under this subtitle as a special policeman shall be charged with the protection and preservation of peace and good order on the property described in the application for the commission. He shall have the power to arrest persons who trespass or commit offenses thereon. He shall have, and may exercise, the powers of a police officer [but only] upon the property described in the application for the commission and may exercise these powers in any county or city of the State of Maryland, in connection with the care, custody, and protection of other property of the requesting authority or other property, real or personal, for which it has assumed an obligation to maintain or protect. In order to facilitate the orderly ingress and egress of traffic to and from the property described in the application, he shall have authority to direct and control traffic on public highways and roads adjacent to and in the immediate vicinity of the property described in the application when this activity is approved in advance by the Superintendent of the Maryland State Police....”

Each one of these changes is traceable to some area of extended jurisdiction supplied by the Court of Appeals or the Attorney General in connection with the pre-existing law that had been omitted in House Bill 299. In particular, the language in question here has a direct and unmistakable reference to the “extra-territorial” powers discussed in the various opinions of the Attorney General.

With this background, it is clear that, rather than expressing a limitation on the authority of a special policeman, as alleged by appellant, this language was intended to ratify, and in fact broaden, the extended authority engrafted into the then-current law, primarily by the Attorney General. By these words, the General Assembly authorized special policeman to exercise jurisdiction away from the particular property described in the application for their commission, and in any county — not just those in which the employer had property described in the application — if the exercise of such jurisdiction was in connection with the care, custody, or protection of other property oí the employer. By “other property” was obviously meant property other than that described in the application.

Thus, reading the various parts of the section in harmony with each other, and in the light of the authority actually exercised by special policemen under the then-current law, we find that the language in question was intended, and, in its natural meaning has the effect, of vesting special policemen with the same general police power off the employer’s premises described in the application for their commission as they have on such premises, provided that such general police power may only be exercised off the described premises in connection with other property in which the employer has some ownership interest or over which the employer has assumed an obligation to maintain or protect.

We therefore conclude that, having had probable cause to arrest appellant for committing the offense of shoplifting on and of the property of his employer, and having validly effected such an arrest, Officer Brooks had all of the ordinary powers of a police officer to conduct a search of appellant incident to that arrest. The scope of such a search is not, of course, limited to property known to be stolen or weapons.

We find the search to have been entirely reasonable, and the motion to suppress properly denied.

II. SUFFICIENCY OF THE EVIDENCE

The case against appellant proceeded on an agreed statement of facts. That statement showed that, when arrested, appellant had in his pocket 70 individually wrapped bags of heroin, and that, if called to testify, Lieutenant Tomlin, of the City Police Department, would be qualified as an expert in the enforcement of narcotic laws and would state that “seventy bags of heroin is the quantity which is beyond personal use, and that seventy bags of heroin is much more consistent with the quantity that is being kept for distribution to others____” The evidence clearly was sufficient to support the conviction.

III. REQUIRED ADMISSIONS

When the case was called to trial, after completion of the suppression hearing, the State’s Attorney advised the court that he and defense counsel had agreed to proceed in the following manner:

(1) Defendant would plead not guilty to possession with intent to distribute;
(2) The case would consist of the State reading an agreed statement of facts — a stipulation as to all of the facts pertinent to that charge;
(3) If the court found guilt on that charge, the State would:
(i) remain mute at disposition;
(ii) nol pros a charge of shoplifting (the offense that led to appellant’s arrest); and
(iii) nol pros five other charges arising from an entirely unrelated incident. These included attempted robbery with a deadly weapon, two assaults, receiving stolen goods, and possession of a handgun.

The court considered this as being a plea bargain that required its approval, and, under that belief, questioned counsel as to appellant’s complicity in these other charges. The court was advised that the State in all likelihood would not be able to prove any of the unrelated charges other than possession of a handgun and possibly receiving stolen goods, the handgun being the stolen goods. Defense counsel continually objected to this line of inquiry, but the court insisted on knowing whether appellant was willing to admit his guilt to the handgun and receiving charges before determining whether the “bargain is an acceptable bargain or not.” The end result was that possession of the handgun was admitted, but knowledge that it was stolen was denied.

The State then proceeded with the statement of facts, resulting in a verdict of guilty on the one count of possession of heroin with intent to distribute. The court then considered appellant’s past criminal record, which showed previous convictions for possession of heroin, shoplifting, various minor charges, and one conviction in 1969 for possession of a pistol. Following this, the court imposed an eight-year sentence; in doing so, it made this comment:

“What we have is a long term heroin addict, who, off his criminal record, shoplifts and sells heroin to support his habit. The possession on two separate occasions during the period of his apparent addiction of a pistol is a matter of serious concern.” (Emphasis supplied.)

It would appear from this statement that the court was considering the 1969 conviction as well as the current charge that the State intended to (and did) nol pros. This is indicated also by an earlier statement by the court, prior to hearing the stipulated evidence, that “I will in imposing sentence, take into account only those facts pertaining to the charge that is being tried, and the handgun violation, and I’ll totally ignore the fact that he was also charged with armed robbery or attempted armed robbery, and assault.” (Emphasis supplied.)

As noted, the court proceeded on the premise that this arrangement was a plea bargain that required the court’s approval. From this, the court assumed a duty to make an independent determination of whether the “bargain” was a fair and appropriate one; and it was in pursuance to that assumed duty that the court felt obliged to ascertain the extent of appellant’s complicity in the charges that, technically, were not then before the court.

The error was in the underlying premise, as this was not a plea bargain that required the court’s approval. Thus, there was no basis, and therefore no justification for the court’s further inquiry.

Traditionally, a “plea bargain” or “plea agreement” contemplates a conditional plea of guilty or nolo contendere to one or more pending charges, the condition usually being either the dismissal or lessening of other charges by one means or another, or some concession being made with respect to disposition, or both. In this case, appellant did not plead guilty or nolo contendere, but maintained his plea of not guilty to all charges against him. The court accepted the State’s representation that the arrangement was “in the nature of a plea bargain” apparently on the theory that appellant’s stipulation to an “agreed statement of facts,” from which a verdict of guilt would most likely arise, was tantamount to a plea of guilty. In a practical sense, this was undoubtedly the case; but there is, in our judgment, a significant legal distinction between the two types of arrangements that is controlling in determining the appropriate role of the court.

Maryland Rule 733b. provides for court involvement in the plea bargining process only where the agreement concluded between the parties “contemplates a particular sentence, disposition or other judicial action.” Even before this Rule took effect, most of the standards and rules that had been developed with respect to plea bargains made no provision for court interference or involvement unless the agreement contemplated some particular discretion required to be exercised by the court.

A traditional type of plea bargain, founded upon a plea of guilty or nolo contendere, necessarily invokes the exercise (or non-exercise) of judicial,discretion, and therefore satisfies that test, in that:

(1) Under former Maryland Rule-721 and current Maryland Rule 731, the court is not obliged to accept a guilty plea, and, indeed, is not permitted to accept it unless satisfied that it is voluntarily made and that a factual basis exists for it. This, of itself, necessitates a judicial inquiry into the circumstances surrounding the plea.

(2) Under former Maryland Rule 720, and current Maryland Rule 731d., court approval is required for the entry of a plea of nolo contendere; and the requirements for the exercise of judicial discretion in the acceptance of that plea are the same as with respect to accepting a plea of guilty.

(3) To the extent the agreement involves disposition, either through the granting of probation or the imposition of a particular sentence, the court is most directly involved.

In those circumstances, which would also pertain under current Maryland Rule 733, where the exercise, or non-exercise, of the court’s discretion is directly or tacitly required in order to implement the agreement, the court has a right, in determining whether and how to exercise its discretion, to inquire into the agreement and satisfy itself that it is appropriate.

This case is quite different, however, in that:

(1) Appellant had an absolute right, without court approval, to enter and maintain his plea of not guilty. The discretion available to the court with respect to pleas of guilty and nolo contendere, and, consequently, the need to inquire into the circumstances of those pleas, does not extend to a plea of not guilty.

(2) Provided it was done in open court, as in this case it was, the State had an absolute right, without court approval, to enter a nolle prosequi to the other charges. Former Maryland Rule 711; Greathouse v. State, 5 Md. App. 675, 685, cert. denied, 253 Md. 734 (1969).

(3) Although subject to the overall discretion of the court with respect to the general course and conduct of a trial, as well as to rulings on the admissibility of particular evidence, the State’s Attorney had the right, without court approval, to determine what evidence he would present as well as the form in which it was to be presented. This is necessarily implied from the basic prosecutorial discretion described in Murphy v. Yates, 276 Md. 475 (1975); Sinclair v. State, 278 Md. 243 (1976); Brack v. Wells, 184 Md. 86 (1944).

(4) Appellant had an absolute right, with the assistance of competent counsel, to waive his constitutional right to be confronted with the witnesses against him, and either to stipulate to facts that may prove to be incriminating, or to agree to ultimate facts that would suffice to warrant a conviction. Barnes v. State, 31 Md. App. 25 (1976); Mullins v. State, 35 Md. App. 605 (1977); State v. Leach, 362 A. 2d 1286 (N.J., 1976); People v. Polk, 167 N.E.2d 185 (Ill., 1960). We are unaware of any requirement in this State that such a waiver be approved by the court. Cf. Stevenson v. State, 37 Md. App. 635, 378 A. 2d 209 (1977).

For these reasons, whatever may have been its similarity to a “plea bargain” in its practical consequence, this arrangement was not one that invoked the exercise of the court’s discretion. The presumed justification for the court’s extended inquiry, therefore, simply did not exist.

The court’s insistence on eliciting an admission from appellant, as a condition to approving an arrangement it had no power to disapprove, placed appellant in a highly precarious — an improperly precarious — position. He could either waive his rights under the Fifth and Fourteenth Amendments and incriminate himself or see a perfectly proper arrangement negotiated with the State, which presumably was to his advantage and which both parties were anxious to implement, frustrated by the court. Under these conditions, the admissions made by appellant, directly and through his counsel, can only be considered as having been coercively induced.

Had the court not considered the admissions resulting from its inquiry in .imposing sentence, this procedure may have been harmless error since the State ultimately nol prossed the unrelated charges. But it is evident that the admitted possession of a handgun was an important factor in the determination of appellant’s sentence; and, to that extent, and that extent alone, it clearly acted to his prejudice.

The State urges that we ignore the impropriety of the procedure and the prejudice to appellant from it on the basis that defense counsel could have avoided the problem by instructing appellant not to answer the court’s questions and by steadfastly refusing to accede to the procedure demanded by the court. Such truculence is not necessary in order to preserve the objection that was pressed throughout the procedure.

Because the only prejudice to appellant was in the court’s determination of his sentence, the appropriate remedy is to remand the proceeding to the trial court for resentencing, with instructions that the court give no weight or consideration to any of the unrelated charges pending against appellant at the time of his trial other than the presumption of his innocence with respect to them.

Conviction affirmed; sentence vacated; case remanded for resentencing in accordance with this opinion; costs to be paid by the Mayor and City Council of Baltimore.

      . Omitted from the quotation is the language added by Laws of Md., 1974, ch. 353, and Laws of Md., 1975, ch. 534, restricting the power of arrest to those special policemen with a probationary or permanent appointment as a security officer or who are members of an industrial police.'force and have completed a basic training course established by the Police Training Commission. Although the record is silent as to whether Officer Brooks met those criteria, appellant has not challenged Brooks’ statutory authority to make the arrest.

      . The record is silent as to what property was described in the application for Brooks’ commission.

      . Laws of Md., 1880, ch. 460.

      . See, for example, Tolchester Imp. Co. v. Steinmeier, 72 Md. 313 (1890); Balto. & Ohio R. Co. v. Deck, 102 Md. 669 (1906); Tolchester Co. v. Scharnagl, 105 Md. 199 (1907); B., C. & A. Ry. Co. v. Ennalls, 108 Md. 75 (1908); Balto. & Ohio R. Co. v. Strube, 111 Md. 119 (1909).

      . Tolchester Imp. Co. v. Steinmeier, supra, 92 Md. 313.

      . 49 Op. Atty. Gen. 353,355 (1964).

      . In 1906, by Laws of Md., 1906, ch. 471, the Legislature created a parallel procedure for the appointment of special policemen by the Baltimore City Board of Police Commissioners. That authority, now exercisable by the Police Commissioner, is still extant. See Public Local' Laws of Baltimore City, § 541; Laws of Md., 1966, ch. 203. As Officer Brooks stated that he had a Commission from the State, rather than from the Police Commissioner, it Would appear that his authority is governed by § 64, rather than the public local law. See also Laws of Ma., 1918, ch. 217, directly extending the 1880 Act to a wide variety of business establishments. This extension, in fact, was held to include a number of State agencies, such as the University of Maryland, the State Colleges, and the State Roads Commission. See 49 Op. Atty. Gen. 353.

      . We need not express agreement or disagreement with these opinions. Their importance, from the perspective of legislative history, is as an expression of what the law was thought to be, an expression of which the General Assembly is presumed to have been cognizant. Read Drug & Chemical Co. v. Claypoole, 165 Md. 250 (1933); Vaughan v. Boone, 191 Md. 515 (1948).

      . Op. Atty. Gen. 353, 357.

      . 20 Op. Atty. Gen. 367 (1935); 49 Op. Atty. Gen. 353 (1964). In the 1964 Opinion, Attorney General Finan concluded that, “This authority to pursue and arrest is not expressly conferred; but it is an inherent power of law enforcement officers as an attribute of their ordinary jurisdiction.”

      . Ibid.

      . 45 Op. Atty. Gen. 180 (i960).

      . 26 Op'. Atty. Gen. 286 (1941); 21 Op. Atty. Gen. 295 (1936).

      . 45 Op. Atty. Gen. 353 (1964).

      . See Laws of Md., 141, ch. 681, the title to which stated its purpose as “providing for the interstate protection of public property [and] authorizing the appointment of special policemen for such purpose....”

      . Report and Recommendations of the Legislative Council, Dec. 20, 1968, Item No. 111, p. 291. Senate Bill 40 was enacted, without change in § 64, as Laws of Md., 1969, ch. 581. It is the current law at issue in this case.

      . Emphasized language was added by Senate Bill 40; bracketed words were in House Bill 299 ana were deleted by Senate Bill 40.

      . See in particular, 26 Op. Atty. Gen. 286 (1941); 49 Op. Atty. Gen. 353 (1964).

      . This was before the enactment of the handgun law. Although the record is not entirely clear, it appears from the court’s comments that the conviction was for possession of a deadly weapon which happened to be a pistol.

      . See Maryland Rule 733 (promulgated but not yet in effect at the time of trial); ABA Minimum Standards for Criminal Justice, Pleas of Guilty, Standard 3.3; Fed. Rule Crim. Proc, 11; Santobello v. New York, 404 U. S. 257 (1971); Guilty Plea Bargaining, 112 U. Pa. L. Rev. 865 (1964); State v. Brockman, 277 Md. 687 (1976).

      . Id., note 20.

      . See Davis v. State, 278 Md. 103 (1976), particularly the Court’s advice at page 118 that “fbjeyond the constitutional minimum inquiry, however, we encourage trial judges to engage those persons seeking to enter guilty pleas in a dialogue as detailed as time, resources and circumstances permit.”

      . McCall v. State, 9 Md. App. 191, cert. denied, 258 Md. 729 (1970). See also Palmer v. State, 19 Md. App. 678, 681, cert. denied, 271 Md. 742 (1974).

      . Current Maryland Rule 782a. retains that discretion in the State’s Attorney, but requires that a “statement of the reasons” for entering the nol pros be made part of the record. Had the charges been “stetted” rather than nol prossed, the situation would have been different. Former Maryland Rule 718; current Rule 782e.

      . Cf. Purnell v. State, 241 Md. 582 (1966); Henry v. State, 273 Md. 131 (1974), permitting a court to consider evidence, properly before it, of criminal activity that has not resulted in a conviction, or even ‘‘opprobrious conduct” not amounting to a crime, in determining a sentence.


author: Thompson, J.,

text:
    BETTY ESTELLE LOVERING v. ROBERT DONALD LOVERING
    [No. 212,
    September Term, 1977.]

      Decided December 20, 1977.

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

      Theodore L. Mast, with whom were Bill L. Yoho, Steven M. Jacoby, Robert S. Hoyert and Hoyert & Yoho on the brief, for appellant.

      John R. Foran, with whom were Horowitz, Oneglia, Goldstein & Foran, P.A. on. the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Betty Estelle Lovering, the appellant, filed a suit for divorce a mensa et thoro in the Circuit Court for Prince George’s County. Robert Donald Lovering, the appellee, filed a motion raising preliminary objections alleging that the parties had been previously divorced a vinculo matrimonii by the Court of Common Pleas of Dauphin County, Pennsylvania. The chancellor, Robert J. Woods, gave full faith and credit to the Pennsylvania divorce and dismissed the complaint. The appellant wife’s primary contention is that the Pennsylvania Court never acquired personal jurisdiction and, therefore, its decree is not entitled to full faith and credit.

The parties were married on June 26, 1952. The wife had a history of mental illness dating back to 1960, and had been in and out of mental institutions during 1970 and 1971. There is no claim the wife was at any time non compos mentis. On January 28, 1971, the husband filed a suit for divorce in the Court of Common Pleas of Dauphin County, Pennsylvania. The wife, who was hospitalized in Illinois at the time suit was filed, was not served with the complaint. When the wife was discharged on April 17, 1971, she returned to Pennsylvania, and her husband asked her to sign a separation agreement. No mention was made of the pending divorce action. The separation agreement had been drafted by the husband’s attorney and was signed by the wife on April 22, 1971 at the office of her attorney, Bruce Grove, Jr. Immediately after signing the separation agreement, the wife returned to Illinois and soon thereafter was admitted to another mental institution. On June 1, 1971, the divorce complaint was reinstated, and Bruce Grove, Jr. entered his appearance as attorney for the wife. He accepted service of process but did not file an answer or appear at the hearing of the case. Based upon the appearance of Bruce Grove, Jr. the Pennsylvania Court found that it had jurisdiction over Mrs. Lovering and on September 30, 1971 granted a divorce to the husband.

In 1972, the husband moved from Pennsylvania to Maryland and on June 11, 1976, the wife filed this suit for divorce. The wife maintained that the Pennsylvania divorce was invalid because the appearance of Bruce Grove did not confer jurisdiction on the court as his appearance was unauthorized. According to her testimony, she never communicated with Mr. Grove other than during the signing of the separation agreement and at that time no mention was made about the suit for divorce. She also stated that Mr. Grove had been retained by her husband and she had never authorized him to represent her in any capacity. On cross-examination Mrs. Lovering did admit receiving various letters from Mr. Grove, including one about the filing of the divorce action, while she was in Illinois, but she did not pay any attention to them. She admitted at the time she received these letters that she regarded Bruce Grove as her attorney. The chancellor found Mrs. Lovering had failed to prove the appearance of Bruce Grove was unauthorized.

I Jurisdiction of the Pennsylvania Court

Relying on Sanders v. Sanders, 12 Md. App. 441, 278 A. 2d 615 (1971), appellant argues that procedural due process requires a strict adherence to the statutory rules of service of process upon the defendant in the Pennsylvania proceedings. While it is conceded that the wife was not served with process according to the rules of service in Pennsylvania, both the Pennsylvania court and Judge Woods found that the court acquired personal jurisdiction over her by virtue of the appearance of Bruce Grove, a licensed Pennsylvania attorney. Mrs. Lovering mounts a twofold attack on this finding. First, she argues there was no evidence to show Mr. Grove was authorized to enter his appearance for her, and, second, mere entry of an appearance is insufficient to confer jurisdiction on the court under Pennsylvania law.

The appellant’s first argument mistakenly places the burden of proving authorization on the appellee when she had the burden of showing the entry was unauthorized. The general rule is that there is a presumption that the entry of an attorney in an action for a party is authorized and in order to overcome that presumption there must be clear and convincing evidence of a lack of authority. Bethlehem Steel Corp. v. Devers, 389 F. 2d 44 (4th Cir. 1968); Grey v. First National Bank, 393 F. 2d 371 (5th Cir. 1968); In Re 125 Criminal Appeals, 113 R. I. 365, 321 A. 2d 294 (1974). The chancellor found that Mrs. Lovering’s testimony was too equivocal to meet this standard of proof. There is no basis on which-we can say the finding was clearly erroneous under Md. Rule 1086, particularly when we consider she waited almost five years after she admittedly knew of the divorce before mounting her attack.

The appellant also argues that even if the appearance was authorized, the mere written entry of appearance was insufficient to confer jurisdiction. Generally, a party who enters a general appearance either in person or by counsel consents to the jurisdiction of the court and waives the defense of a lack of jurisdiction over the person. See McGinnis v. Rogers, 262 Md. 710, 733-734, 279 A. 2d 459 (1971); Downey v. Baltimore Transit Co., 197 Md. 245, 78 A. 2d 666 (1951); Restatement (Second) of Conflict of Laws § 33, Comment b (1971).

The appellant implicitly recognizes this general rule but maintains the mere entry of a general appearance by an attorney is insufficient to confer jurisdiction under Pennsylvania law. In support of this argument she cites McCune v. McCune, 31 Pa. Super. 248 (1906), as well as some old trial court decisions. In McCune the Court noted that the entry of an appearance by counsel was not sufficient, in and of itself, to confer jurisdiction over a party in a divorce case. The rationale for this decision was that if a party attempted to waive a defect in service of process by entering an appearance the suit was deemed to be collusive. This result was changed by 1929 Pa. Stat. Ann. tit. 23 § 31, which provided:

“The respondent may, in any case brought under the provisions of this act, cause an appearance to be entered, and file an answer to the petition or libel, and the entry of a general appearance shall be equivalent to personal service of the subpoena and libel.
“The entry of a general appearance by, or in behalf of, a respondent shall not be deemed collusion.” (emphasis added).

The first paragraph of § 31 was suspended by Rule 1459 of the Pennsylvania Rules of Civil Procedure but this did not substantially change the effect of a general appearance. The suspension was put in perspective in Bentley v. Bentley, 66 Pa. D. & C. 596, 598 (1948) when the court stated:

“[W]e think that the suspension of this provision of the divorce law was made because the matter was already covered by the Rules of Civil Procedure____
“It is, therefore, our opinion that it was the intention of the authors of the new rule and of the Supreme Court to make no change in the law relating to the effect of a general appearance in [a divorce case]____”

In Hohlstein v. Hohlstein, 223 Pa. Super. 348, 296 A. 2d 886 (1972), the Court discussed the effect of an appearance. A suit for divorce was instituted in a county where venue was improper. The husband entered his appearance through an attorney but did not contest the case. After the master had filed his opinion the trial judge dismissed the suit on the ground of improper venue. On appeal the dismissal was overturned. In its opinion the Court noted the defense of improper venue was not waived by virtue of the entry of an appearance but found the failure of the husband to raise the defense by way of preliminary objection under Rule 1032 amounted to a waiver of the defense. The Court stated:

“Although it is clear that appellee’s entry of appearance did not constitute a 'general appearance’ so as to waive all defenses, it is likewise evident that by failing to raise the defense by way of preliminary objection and by failing to contest in any form whatsoever the proceedings before the Master, appellee acted by way of a general appearance thereby waiving his right to raise improper venue.” 296 A. 2d 888.

The defense of a lack of personal jurisdiction, like that of improper venue, is waivable. See Rule 1032 (quoted in note 2). Under the reasoning of Hohlstein, Mrs. Lovering consented to the jurisdiction of the court by virtue of her failure to file a preliminary objection after she had entered her appearance. As the appellant in the instant case made no preliminary objection in the Pennsylvania proceedings, we affirm the decree below.

II Memorandum Opinion

The appellant’s second assignment of error centers around the chancellor’s refusal to file a memorandum opinion. The appellant argues that a written opinion was required under Md. Rule 18 but the chancellor h&ld that the rule does not require the filing of a written opinion unless the case is tried upon its merits. Although it would have been helpful to this Court had the chancellor filed a memorandum opinion, we agree that he is not required to do so under the clear language of the rule.* *

Decree affirmed.

Appellant to pay the costs.

      . Restatement (Second) of Conflict of Laws § 33, Comment b states: “A defendant makes an appearance in an action whenever, either in person or by an authorized attorney, he takes any part in the action, whether by formal entry of appearance or by an answer or demurrer or motion....” (emphasis added).

      . Rule 1032 of Pennsylvania Rules of Civil Procedure provides:
      “A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply, except
      “(1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and
      “(2) that whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or that there has been a failure to join an indispensable party, the court shall dismiss the action.”

      . Md. Rule 18 b. “Memorandum of Grounds for Decision.

      “Before or within fifteen days after entry of an appealable final judgment in a contested action tried upon the merits without a jury, the court shall dictate to the court stenographer or reporter, or prepare ana file in the action, a brief statement of the grounds for its decision and the basis of determining the damages, if any.”