text:
    SECURITY CONSTRUCTION CO., et al. v. DENNIS MAIETTA & FRANK MAIETTA, d/b/a Maietta Trucking & Contracting Company
    [No. 642,
    September Term, 1974.]

      Decided March 18, 1975.

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

      Frank L. Cowles, Jr., with whom were Howard W. Gilbert, Jr., Lewis, Wilson, Cowles, Cummings & Lewis, Ltd. and Mackley, Gilbert & France on the brief, for appellants.

      Howard D. Venzie, Jr. and Robert E. Kuczynski, with whom were Pepper, Hamilton & Scheetz on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

This case makes its second appearance in the appellate courts of this State. It first emerged in the Court of Appeals as Maietta v. Greenfield, 267 Md. 287, 297 A. 2d 244 (1972). In that proceeding the Court dismissed the appeal and remanded the matter for arbitration in accordance with the provisions of the written contract between the present appellants, Security Construction Company, et al., (Security) and Dennis Maietta and Frank Maietta, doing business as the Maietta Trucking and Contracting Company (Maietta), the current appellees.

As a result of the Court’s remand the issues between the parties litigant were submitted to an arbitration panel that was formulated under the auspices of the American Arbitration Association. The panel met in Philadelphia, Pennsylvania, and heard evidence on January 9, 10, 22 and 23, 1974. The arbitrators, on March 14, 1974, ruled that Security “shall pay to ... Maietta ... the sum of One Hundred Seventy-seven Thousand, Nine Hundred Fifty-two Dollars ($177,952.00).” The arbitrators further determined that Security should pay the “administrative fees of the .. . Association.” Copies of the arbitration award were mailed on the same date to counsel for the respective parties.

On April 24, 1974, forty-one days after the arbitration award had been handed down and mailed, Maietta filed, in the Circuit Court for Washington County, a “Petition to Confirm Arbitration Award and For the Entry of Judgment”. Judge Irvine H. Rutledge entered judgment in the amount of One Hundred Eighty Thousand, One Hundred Two Dollars ($180,102.00) against Security, subject to Security’s showing cause within fifteen days from service of the Order upon counsel for Security why the judgment should be stricken.

Security, on May 9, 1974, filed a “Bill For Injunctive Relief” against Maietta, in which it alleged that evidence had been educed during the arbitration hearing indicating that Security “was fraudulently induced by Maietta to enter into the contract” upon which the arbitration award was bottomed. Security asseverated that it had, on the preceding day, filed in the United States District Court for the District of Maryland an action against Maietta for rescission of the contract. Security requested the Circuit Court for Washington County to enjoin Maietta from pursuing efforts to enforce the arbitration award “until the issue of the validity of the contract . .. has been decided in the” federal court suit.

Subsequently, on May 29, 1974, slightly more than seventy-six days after the arbitration award had been made, thirty-five days after the petition to confirm the award had been filed by Maietta and twenty days in excess of the fifteen day deadline imposed in the show cause order of April 24, 1974, Security filed an “answer and motion to set aside arbitration award and deny entry of judgment thereon.” The same date, Judge Rutledge, after having previously heard oral argument on May 13,1974, the original show cause date, and having received briefs and motions, entered judgement against Security in the amount of One Hundred Eighty Thousand, One Hundred Two Dollars ($180,102.00). The judge, on June 12, 1974, denied Security’s motion to set aside the arbitration award. Security has appealed to this court.

Courts Art. § 3-224, provides:

“(a) Petition. — (1) Except as provided in paragraph (2), a petition to vacate the award shall be filed within 30 days after delivery of a copy of the award to the petitioner.
(2) If a petition alleges corruption, fraud, or other undue means it shall be filed within 30 days after the grounds become known or should have been known to the petitioner.
(b) Grounds. — The court shall vacate an award if:
(1) An award was procured by corruption, fraud, or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral, corruption in any arbitrator, or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown for the postponement, refused to hear evidence material to the controversy, or otherwise so conducted the hearing, contrary to the provisions of § 3-213, as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement as described in § 3-206, the issue was not adversely determined in proceedings under § 3-208, and the party did not participate in the arbitration hearing without raising the objection.
(c) When award not to be vacated. — The court shall not vacate the award or refuse to confirm the award on the ground that a court of law or equity could not or would not grant the same relief.” (Emphasis Supplied)

Security, here, contends that the arbitration award could not be confirmed or considered final because of an unresolved issue of fraudulent inducement and that Security had an absolute right to have that issue determined. The fallacy in Security’s reasoning is that while it had those rights, as is obvious from a reading of the above quoted § 3-224, it did not avail itself of them.

“Fraudulent inducement” means that one has been led by another’s guile, surreptitiousness or other form of deceit to enter into an agreement to his detriment. While Courts Art. § 3-224 (a) (2) does not specifically refer to “fraudulent inducement”, we think the legislative use of the phraseology “corruption, fraud or other undue means” to be sufficiently broad to include “fraudulent inducement” within its ambit. Fraudulent inducement to enter into a contract that is governed by the “Maryland Uniform Arbitration Act” does not give rise to a separate and distinct cause of action without the scope of the provisions of the Act, unless it can be shown that the arbitration clause itself was induced by fraud. Atcas v. Credit Clearing Corporation of America, 292 Minn. 334, 197 N.W.2d 448 (1972). See also Prima Paint Corp. v. Flood & Conklin Mfg. Co. 388 U. S. 395, 87 S. Ct. 1801, 18 L.Ed.2d 1270 (1967), where it is stated at 403-4:

“. . . [I]f the claim is fraud in the inducement of the arbitration clause itself — an issue which goes to the ‘making’ of the agreement to arbitrate — the federal court may proceed to adjudicate it. But the statutory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally.”

Security’s claim of fraudulent inducement is directed toward the contract generally. It alleges that it would not have entered into the contract had it known of the existence of a certain performance bond. As we see it, absent a claim that the fraudulent inducement pertains to the arbitration clause itself, an attack on an arbitration award on the ground that the contract upon which the award is based was fraudulently induced, must be brought solely in accordance with Courts Art. § 3-224 (a) (2). Security’s filing of the suit for rescission in the U. S. District Court and its aborted effort to secure injunctive relief in the Circuit Court for Washington County appear to us to be a flagrant attempt to run a “Green Bay Sweep” around the “Maryland Uniform Arbitration Act”. Patently, the “fraud” about which Security complains had to be discovered by Security during the course of the four-day arbitration evidential hearing. Of necessity, the “fraud” must have been discovered no later than the last day of that hearing, ie., January 24,1974. Even if we construe the statute to mean that the petition to vacate the arbitration award must be brought within thirty days from the date of the award or the discovery of the fraud, whichever shall be the later, Security still did not file its petition within the prescribed thirty days. In fact, Security has yet to file such a petition unless we interpret the answer of May 29th as a petition within the meaning of the statute, an interpretation that we do not make. Security has simply not followed the statute, which statute we note has been adopted in at least fourteen states.

To underpin its argument concerning the vacating of arbitration awards when there is a fraudulent inducement, Security relies upon a number of cases, including Brown v. Scott, 140 Md. 258, 117 A. 114 (1922); Taylor v. State, 73 Md. 208, 20 A. 914 (1890); Loving & Evans v. Blick, 33 Cal. 2d 603, 204 P. 2d 23 (1949); Spectrum Fabrics Corp., 285 App. Div. 710, 139 N.Y.S.2d 612 aff'd, 309 N. Y. 709, 128 N.E.2d 416 (1955); Finsilver, Still & Moss v. Goldberg, M. & Co., 253 N. Y. 382, 171 N. E. 579, 69 A.L.R. 809 (1930); Lummus Co. v. Commonwealth Oil Refining Co., 280 F. 2d 915, 91 A.L.R. 2d 912, cert. denied, 364 U. S. 911, 81 S. Ct. 274, 5 L.Ed.2d 225 (1960) and Rueda v. Union Pacific R. Co., 180 Or. 133, 175 P. 2d 778 (1946). We find those cases to be inapposite and Security’s reliance thereon misplaced. All of the cited cases dealt with fraud in the inducement, but none of them concerned the Uniform Arbitration Act nor did they involve a statutory time period during which the attack on an arbitration award for fraud or otherwise must be lodged.

Judgment affirmed.

Costs to be paid by appellant.

      . According to Aristotle, arbitration is nothing new to the legal system. Aristotle said in Rhetoric, Book 1, Ch. 13: “The arbitrator looks to what is equitable, the judge to what is law; and it was for this purpose that arbitration was introduced, namely, that equity might prevail.” For a scholarly discussion of arbitration, see Bel Pre Med. v. Frederick Contr., 21 Md. App. 307, 320 A. 2d 558 (1974), cert. granted by Court of Appeals September 11, 1974.

      . See Courts and Judicial Proceedings Article, § § 3-227 and 3-228.

      . The difference between the One Hundred Eighty Thousand, One Hundred Two Dollars ($180,102,001 judgment and the One Hundred Seventy-seven Thousand, Nine Hundred Filty-two Dollars ($177,052.00) award by the arbitrators is reflected in “administrative fees” paid by Maietta and for which reimbursement was claimed.

      . Courts Art. § 3-234 provides that the Act may be so cited.

      . Security’s argument relative to the performance bond leaves much to be desired. It claims to have signed the contract because Maietta led it into believing that he was having trouble obtaining the performance bond that he had already obtained. Security states that if it had known of the existence of the bond it would not have signed the contract without that bond. How under the circumstances Security is injured is difficult to comprehend.

      . A term that will conjure up in the minds of football fans a running play around the offensive team’s end in which the ball carrier is led by a host of teammates, running interference. It was designed by the late Vincent Lombardi (1913-1970) literally to sweep the opponents off their teet.

      . For a list of those states, together with the statutory reference thereto, see Maietta v. Greenfield, supra at 291, n. 1.

      . For examples of cases in other jurisdictions applying statutory time periods under state arbitration acts see Component Systems, Inc. v. Murray Enterprises of Minn., Inc., Minn., 217 N.W.2d 514 (1974); Trustees of Boston & M. Corp. v. Massachusetts B.T.A., Mass., 294 N.E.2d 340 (1973); Greene v. Mari & Sons Flooring Co., Inc. Mass., 289 N.E.2d 860 (1972); Emporium Area J.S.A. v. Anundson Const. & Bldg. Sup. Co., 402 Pa. 81, 166 A. 2d 269 (1960); Nix v. Spector Freight System, Inc., 62 N.J. Super. 213, 162 A. 2d 590 (Sup. Ct. App. Div. 1960).


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    CLARENCE JAMES SUTTON, the Younger v. STATE OF MARYLAND
    [No. 643,
    September Term, 1974.]

      Decided March 18, 1975.

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

      Michael S. Libowitz, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Walter Balint, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Clarence James Sutton, appellant, was indicted by the Grand Jury for Baltimore City for the murder of John Herring and for the assault with intent to murder of Tommie Graham. A petit jury, in the Criminal Court of Baltimore, convicted appellant of the lesser charges of manslaughter in the Herring slaying and assault and battery upon Tommie Graham'. The trial judge imposed terms of ten years and five years respectively upon appellant with the latter sentence to be served consecutively to the former. Sutton has appealed to this Court.

Appellant has unleashed a nine pronged attack upon the judgments of the Criminal Court of Baltimore, but because we are compelled to reverse the case, we shall deal with only those issues as are necessary, or we deem advisable to discuss.

THE FACTS

On September 20, 1973, at approximately 4 P.M., Tommie Graham entered the house in which he resided. The premises is designated as 1309 East Federal Street, Baltimore City, and appears from the record to be a rooming house. Graham, John Herring, J. C. Sutton, the appellant’s brother, William Moore and the appellant all resided in the house. The roomers shared the living room, dining room and kitchen facilities.

There is evidence that Graham was brutally beaten by the appellant and an unidentified person described simply as “big man”. The record is unclear as to whether “big man” is a description of the individual or his nickname. During the assault upon Graham, Herring injected himself into the matter by suggesting that appellant and “big man” cease their beating of Graham. At that point appellant, according to Graham, told Herring to “. . . [S]hut up or we will kill you.” Herring told the next door neighbor, his landlady’s daughter, Frieda Anderson, about the on-going beating of Graham. She went into 1309 East Federal Street in what proved to be an aborted attempt to stop the fray. She was told by appellant, “You had better get.. . out of here or we will fuck you up, too.” Shortly afterwards both of Graham’s assailants left the house. Graham was dispatched in an ambulance to a hospital. Herring accompanied him. According to Graham, before appellant and “big man” departed the scene, appellant told Herring, “Nigger, shut up. You are talking too motherfucking much.” Appellant then said, “I’m going to kill you, nigger.”

Later the same date Herring told Frieda Anderson that he “was afraid to go back over there” to his room in 1309 East Federal Street. He said he was fearful that appellant “would kill him.” Another daughter of the landlady testified that during the night she heard “a whole lot of noise going on . . . next door [at 1309] . .. .” It sounded to her as if furniture was being moved and there was “moving around in the room.” The deceased occupied the second floor front of 1309, and the witness had been seated in the corresponding room in the abutting house.

In the early morning hours of September 21, 1973, William Moore returned to 1309 where he discovered the room of Herring to be in shambles. He found Herring’s dead, badly beaten and cut body in the third floor room that had been rented by Graham. The police were called, and a warrant was subsequently obtained for appellant’s arrest. The arrest was consummated in Columbus, Georgia, on November 20,1973.

I.

“The court erred in not granting a severance of the two charges against the appellant.”

Appellant argues that the two separate indictments should not have been called to trial at the same time, and that the trial judge abused his discretion in not ordering a severance. Appellant asserts that there was no link between the assault upon Graham and the killing of Herring. Furthermore, appellant finds something insidious in the fact that the indictment charging the Herring slaying was handed down on December 12, 1973, while the indictment arising from the Graham assault did not occur until April 12,1974.

We know of no rule of law that requires the State to seek all indictments against a particular accused at the same time, and we are unpersuaded that there is no link between the two crimes with which appellant was charged. The State’s evidence shows that the Herring killing arose directly from Herring’s attempt to play the role of the “Good Samaritan” during the beating of Graham, and thus the two crimes were to that extent, at least, interrelated. The case against appellant is built solely on circumstantial evidence, and thus it was necessary for the State to demonstrate a motive or intent on the part of the appellant to kill Herring. That motive or intent is clearly found within the factual situation surrounding the assault upon Graham, the threats emanating therefrom and even, to an extent, the degree of that particular assault.

Md. Rule 734 provides that:

“The court may order two or more indictments tried together if the offenses and the defendants, if there be more than one, could have been found in a single indictment.”

One of the factors to be considered in the trial judge’s determination of whether to grant a severance is the saving of the time and the expense that unnecessary separate trials would entail. Mason v. State, 18 Md. App. 130, 305 A. 2d 492 (1973); Peterson v. State, 15 Md. App. 478, 292 A. 2d 714 (1972) . Moreover, the decision as to whether to order separate trials is vested in the sound discretion of the trial judge. Maloney v. State, 17 Md. App. 609, 304 A. 2d 260 (1973) . If it appears that the facts to be proved in one case are substantially the same as those in the other or that they are so closely related that the evidence necessary to show one crime is intertwined with the other, there is no reason to order a severance unless the joinder is prejudicial. We observe no prejudice to appellant, and conclude that the trial judge properly denied the severance motion.

II.

“The court erred in failing to disclose Grand Jury testimony to the appellant or to examine the prior testimony in camera.”

The appellant proffered that Frieda Anderson, William Moore and two other persons had appeared before the Grand Jury. The appellant then asked the court for the right to examine the Grand Jury minutes in order to ascertain whether those “statements contained exculpatory evidence”, or in the alternative, that the court examine in camera the minutes of the Grand Jury so that the court might determine whether any of the witnesses’s testimony before the Grand Jury was of an exculpatory nature. The State informed the court that there was nothing in the Grand Jury minutes that was exculpatory. The trial judge refused to allow the examination of the minutes and declined to view them in camera.

The Supreme Court in Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) held that there is a violation of due process of law where the prosecution suppresses evidence favorable to the accused, irrespective of whether such suppression was made in good or bad faith by the prosecution, but such holding did not give rise to a per se right to examine Grand Jury minutes. Later in Dennis v. United States, 384 U. S. 855, 86 S. Ct. 1840, 16 L.Ed.2d 973 (1966) the Court stated that an accused in a criminal case may be allowed to view the minutes of the Grand Jury when he demonstrates a “particularized need” to do so. See Avery v. State, 15 Md. App. 520, 292 A. 2d 728 (1972); Silbert v. State, 12 Md. App. 516, 280 A. 2d 55 (1971); Grimm v. State, 6 Md. App. 321, 251 A. 2d 230 (1969). It is apparent from a reading of the record that appellant sought to conduct an egregious fishing trip into the mjnutes of the Grand Jury in the fervent hope that he might possibly stumble across something that would be beneficial to him. The mere hope that Grand Jury minutes may possibly contain some exculpatory evidence is not enough to demonstrate the “particularized need” to which either the Supreme Court alluded in Dennis, supra, or to which this Court referred in Grimm v. State, supra. In the light of the appellant’s failure to exhibit a “particularized need” the trial judge did not abuse his discretion in denying the appellant’s motion to examine the Grand Jury minutes, nor did the judge err in refusing to conduct an in camera examination of the minutes.

III.

“The trial court erred in allowing the State to cross-examine the appellant in regard to a prior statement without first showing the voluntariness of that statement.”

After appellant was taken into custody he was advised of his rights under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). According to a detective, whose testimony the State offered in its case in chief, the appellant elected to exercise his Miranda rights and specifically requested an attorney. Notwithstanding the appellant’s employment of Miranda, the police thereafter engaged appellant in what was characterized by the detective as “general conversation”. The State then sought to introduce into evidence the content of that “general conversation”, but the trial judge, at a hearing out of the presence of the jury, suppressed it on the ground that Miranda expressly forbade its introduction. After the appellant had testified in his own behalf, the State based part of its cross-examination of the appellant upon the “general conversation”. The appellant’s counsel objected to the State’s use of the conversation for cross-examination purposes, but the trial judge ruled that “any inconsistent prior statement is admissible [for impeachment purposes] ”. Patently, the trial court based its ruling upon Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971) wherein the Supreme Court held:

“Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.”

Following the trial judge’s ruling, the State then propounded a series of questions to the appellant, and the appellant disavowed making any statement to the detective or having any conversation with him. After the court’s holding, no objection was interposed to any of the questions put to the appellant. On appeal to this Court appellant argues strenuously that Harris does not erode Miranda in such a way as to sanction the use of a statement, or a “general conversation”, made to the police after Miranda has been invoked.

This question is not properly before us inasmuch as the appellant did not object to the questions when they were posed to the appellant. Cases are legion in the Court of Appeals to the effect that an objection must be made to each and every question, and that an objection prior to the time the questions are asked is insufficient to preserve the matter for appellate review. See S & S Bldg. Corp. v. Fidelity Storage, 270 Md. 184, 310 A. 2d 778 (1973); Spriggs v. Levitt & Sons, Inc., 267 Md. 679, 298 A. 2d 442 (1973); Hyson v. State, 225 Md. 140, 169 A. 2d 449 (1961); Journigan v. State, 223 Md. 405, 164 A. 2d 896 (1960); State Roads Comm. v. Bare, 220 Md. 91, 151 A. 2d 154 (1959); Davis v. State, 189 Md. 269, 55 A. 2d 702 (1947); Wilkins v. State, 11 Md. App. 113, 273 A. 2d 236 (1971); Douglas v. State, 9 Md. App. 647, 267 A. 2d 291 (1970); Veihmeyer v. State, 3 Md. App. 702, 240 A. 2d 649 (1968). See also Md. Rule 522 d 2. Moreover, we are unable to ascertain on the basis of this record whether appellant’s testimony was in conflict with the gist of the “general conversation” and thus useable for impeachment purposes under the holding of Harris, supra.

IV.

“The Court erred in allowing the State to impeach the appellant because of his assertion of his Fifth Amendment rights.”

When the appellant testified, he denied culpability for both of the crimes for which he stood trial. By his testimony appellant endeavored to shift the responsibility for the commission of the offenses to “big man”. He denied any knowledge of the slaying of Herring, and stated that “big man” and Herring were friends. Appellant also said that Herring and “big man” had both worked at “Manpower”. On re-cross-examination the State asked, “Did you ever tell the police that big man worked at ‘Manpower’ or give them any information as to the big man? ” An objection was interposed, and a bench conference ensued at which appellant’s counsel articulated his reasons as to why the objection should be sustained. He opined that the State was using appellant’s “silence” against appellant. The objection was overruled, and the question was repeated in substantially the same form. The appellant responded, “I don’t know. Not that I recall.” The State then continued, “Did you ever talk to the police and tell them what you are telling us today?” The defendant responded, “No.”

Chief Justice Warren in Miranda, supra, stated:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecutor may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” 384 U. S. at 468, n. 37.

The appellant had earlier testified that when the Miranda warnings were given to him he exercised his right to remain silent, and, as we have previously noted, disavowed any “general conversation” with the detective.

The Court of Appeals in Younie v. State, 272 Md. 233, 322 A. 2d 211 (1974) held that the State may not exploit an accused’s standing silent after having relied upon Miranda. The Court quoted with approval our opinion in Burko v. State, 19 Md. App. 645, 652, 313 A. 2d 864 (1974), cert. denied 271 Md. 732 (1974), wherein we stated:

“... To allow the police to make an accusatory statement to one who had elected to remain silent and then to permit the police to testify that when the defendant had been accused he did not answer, would have a devastating effect upon the defense. Such tactics, if allowed, would have cloaked the precepts of Miranda in an armor of gauze.”

■ The rationale of Younie and Burko is applicable here. It is but one small step from the use of silence in the face of accusation condemned in Younie and Burko, to the way in which appellant’s silence was exploited in this case. We observe no rational distinction between the questioning that we found violative of Miranda in the Burko case and what the State did in the present matter. We think the State’s permitted use of the questions, hereinabove quoted, transgresses both Younie and Burko. The State has beaten the shield of Miranda into a sword, and then used it as a weapon against the appellant. Harris, supra, does not permit “the shield provided by Miranda [to] be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” On the other hand, it certainly does not allow the State to fashion the accused’s in-custody silence into a tacit admission.

The State argues that the appellant’s silence was properly used against him for purposes of impeachment. The same contention, based on a similar .factual background, was raised in People v. Calhoun, 33 Mich. App. 141, 189 N.W.2d 743 (C.A. Div. 1, 1971). The court said:

“We read Harris to include inconsistent ‘non-utterances’ as well as ‘utterances’. When defendants introduced ‘Billy’ into the act it was perfectly proper to question him as to the point wherein he first mentioned ‘Billy’s’ complicity in the occurrence.
The adversary process should certainly permit cross-examination as to a defense theory which without any challenge would permit a testifying accused to rely on any hypothesis however nebulous and yet bars the prosecution from subjecting the specifics of it from ‘truth-testing devices’.”

Judge Levin availed himself of the opportunity presented by People v. McColor, 36 Mich. App. 455, 194 N.W.2d 99 (1971), and loosed a scathing attack on the logic upon which Calhoun was based. The judge said in n. 2 of his dissent that:

“The practical effect of Calhoun is that an accused person must decide when he is arrested, without hesitation and without the advice of counsel, whether he will testify at the time of trial. Even if a lawyer were present when he was arrested, the lawyer would have to be omniscient to decide at that time, without consultation with his client, whether the client should take the stand at the time of trial.
In Harris the defendant gave a statement; he did not exercise his privilege to remain silent. At stake in Harris was the enforcement of the Miranda warnings requirement. It was thought that the failure to give the Miranda warnings was not of such importance as to require suppression of a statement actually and voluntarily given.
The issue here concerns the protection of the constitutional right to remain silent. Also at stake is the Fourteenth Amendment right to take the stand. Harris concerns the Miranda warnings. The rights with which we are concerned existed before Miranda. The difficulties experienced in the enforcement of the Miranda requirements should not be seized upon to erode rights existent before Miranda.”

Subsequently, the Supreme Court of Michigan in People v. Bobo, 390 Mich. 355, 359, 212 N.W.2d 190 (1973), overruled Calhoun and stated that the court had nothing to add to Judge Levin’s “analysis and criticism except our endorsement.” The court went on to say:

“We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. ‘Non-utterances’ are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.”

To like effect see Johnson v. Patterson, 475 F. 2d 1066 (10th Cir. 1973), cert. denied 414 U. S. 878, 94 S. Ct. 64, 38 L.Ed.2d 124 (1973); 87 Harv. L. Rev. 882 (1974); United States ex rel. Young v. Follette, 308 F. Supp. 670 (D.N.Y. 1970); State v. Shing, 109 Ariz. 361, 509 P. 2d 698 (1973); Hines v. People, 497 P. 2d 1258 (Colo. 1972); State v. Griffin, 120 N.J. Super. 13, 293 A. 2d 217 (1972). The author of a commentary on Johnson v. Patterson, supra, opined in 87 Harv. L. Rev. at 887-888:

“Since the probative value of a defendant’s silence is significantly less than that of a defendant’s statements, and since allowing prosecution comment on a defendant’s silence has a greater effect on police behavior and constitutional rights, the Tenth Circuit correctly distinguished Harris in refusing to allow the comments in Johnson.”

As we view the case now before us, the appellant’s silence while in custody relative to “big man” could not be used against him when he took th.e stand in his own defense unless appellant testified that he had told the police about “big man”. Where, as here, the appellant interposed his Miranda rights as a buttress against police interrogation, his failure to speak out on “big man’s” involvement in the offenses may not be used by the State as a glaive against the appellant.

The State also contends that the admission of the challenged testimony was “harmless error”. We do not see it that way. We are cognizant that in Collins v. State, 14 Md. App. 674, 288 A. 2d 221 (1972) we anticipated Milton v. Wainwright, 407 U. S. 371, 92 S. Ct. 2174, 33 L.Ed.2d 1 (1972), and held that under certain circumstances a violation of Miranda may be harmless. See Younie v. State, 19 Md. App. 439, 311 A. 2d 798 (1973), rev’d on other grounds by the Court of Appeals of Maryland, Younie v. State, supra. Collins modified our previous decisions in Hutchinson v. State, 9 Md. App. 41, 262 A. 2d 321 (1970), rev’d on other grounds, State v. Hutchinson, 260 Md. 227, 271 A. 2d 641 (1970) and Mulligan v. State, 6 Md. App. 600, 252 A. 2d 476 (1969). In the instant case, however, we observe no circumstances that render the Miranda violation harmless. We believe that when the accused was asked the improper questions concerning his failure to reveal to the police the dastardly role of the elusive, if not ephemeral, “big man”, the answers thereto had a devastating effect upon the jury. We think the jury may well have believed, as the State seemingly intended them to believe, that had “big man” been the real culprit in this tragedy, the appellant would have been the first to so vociferate, and thus cast the blame upon “big man”. Because we cannot say that the error was harmless beyond a reasonable doubt, we must reverse the judgments and remand the matter for a new trial. In view of our holding it is unnecessary for us to discuss the other contentions raised by appellant.

Judgments reversed.

Case remanded for a new trial.

      . How a “general conversation” is distinguished from a “statement” or “confession” is not explained. It would appear, however, that the use of the term “general conversation” is but an exercise in semantics designed to circumvent Miranda.

      . Apparently Judge Levin had, by the time Bobo was decided, joined the Supreme Court of Michigan as a Justice.


author: Orth, C. J.,

text:
    LESTER MOON et al. v. RICHARD IRA WEEKS
    [No. 648,
    September Term, 1974.]

      Decided March 18, 1975.

      The cause was argued before Orth, C. J., and Menchine and Moore, JJ.

      William W. Grant for appellants.

      W. Dwight Stover for appellee.

      . The accident which gave rise to the cause of action in this case occurred on 2 December 1966. Unless otherwise indicated, statutes cited are those in effect at that time. In the main, the substance of the statutes pertinent to this case as then in effect does not differ materially from those currently in effect.
      “The terms ‘street’ ‘highway’, ‘roads’, ‘public highway’ or ‘public roads’ shall include any highway or thoroughfare of any kind used by the public whether actually dedicated to the public and accepted by the proper authorities or otherwise. . . .” Code, Art. 66V2, § 2 (a) (58) (1967 Repl. Vol.). For the current definition of “street” see Code, Art. 66V2, § 1-193 (1970 Repl. Vol.).

   Orth, C. J.,

delivered the opinion of the Court.

This appeal turns on the answer to the question what, in the contemplation of the traffic laws, is a child on a sled travelling on a street — a “vehicle”, a “motor vehicle”, or a “pedestrian”.

STATEMENT OF THE CASE

Before we can answer this keystone question we must ascertain the posture of the case as it is before us on appeal. The true posture is not readily evident because the proceedings below were snarled. They were snarled because both the trial judge and counsel for the parties apparently did not recognize, and certainly did not follow, an applicable rule of the Maryland Rules of Procedure.

The Maryland Rules provide ways by which a civil action may be disposed of at trial by the court without being submitted to the trier of fact. There is one rule in this context for jury trials and another rule for non-jury trials.

Rule 552 concerns an action tried by a jury. Section a provides that in such an action a party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues. Section b permits a party, whose motion for a directed verdict at the close of evidence offered by an opponent was not granted, to offer evidence, but by so doing he withdraws the motion.

Rule 535 concerns a civil action tried without a jury. It provides that a party may, at the close of evidence offered by an opponent, move for a dismissal on the ground that upon the facts and law the opponent has shown no right to relief. If such a dismissal is granted, it operates as an adjudication upon the merits, unless the court otherwise specifies. In the event the motion is not granted, the party making it does not waive his right to offer evidence.

It is manifest that a motion for a directed verdict, applicable in a jury trial, may be made at the close of evidence offered by an opponent or at the close of all the evidence, but that a motion to dismiss, applicable in a non-jury case, is, as we pointed out in Quinn Freight Lines v. Woods, 13 Md. App. 346, 350, “in order only at the conclusion of the opponent’s case and not at the conclusion of the entire case.” Our observation followed the teachings of the Court of Appeals. In Smith v. State Roads Commission, 240 Md. 525, it discussed the motion to dismiss and the motion for a directed verdict. Stating that it was not proper for a party to move to dismiss at the close of all the evidence but was proper only at the close of his opponent’s evidence, it said, at 539-540:

“The main purpose of the rule [Rule 535] is to allow a party to test the legal sufficiency of his opponent’s evidence before submitting evidence of his own. Should he prevail at this point he avoids the necessity of going further and as well the risk that his own evidence may supplement his opponent’s evidence enough to provide the missing legal sufficiency. If he waits until the close of all of the evidence then the motion becomes a nugacity because all of the evidence is then before the trier of facts and the determination of its legal sufficiency becomes an inseparable and necessary part of his decision. In jury cases, where a different climate prevails, a motion for a directed verdict offered at the close of all of the evidence gives the trial judge an opportunity to make r. quantitative evaluation of the evidence, not to inform any decision to be made by him, but only to assess the propriety of allowing the jury to make findings of fact. The jury does the deciding; the judge simply sees to it that they have enough material to work with.”

This was iterated by the Court in Lewis v. Germantown Insurance Company, 251 Md. 535, 540-541. Although Rule 535 says nothing about a waiver of the motion to dismiss, if upon its denial evidence is offered by the party making the motion, it necessarily follows that it is waived upon the offering of evidence. This is so because there is then a different quantum of evidence before the court, the legal sufficiency of all of which becomes, as the Court said in Smith, supra, “an inseparable and necessary part” of the court’s decision.

There has been an unfortunate tendency on the part of both bench and bar to ignore the distinctions between Rule 535 and Rule 552. This was forcefully pointed out by the Court of Appeals in Isen v. Phoenix Assurance Co., 259 Md. 564, 569-570:

“In Smith v. State Roads Commission, 240 Md. 525, 539 (1965), we pointed out that in actions tried by the court without a jury a ‘motion for a directed verdict’ is not a proper motion. We explained carefully and at length that Rule 535 ‘was designed especially for non-jury situations.’ We noted in Duck v. Quality Custom Homes, Inc., 242 Md. 609, 611 (1966), an appeal from the Circuit Court for Montgomery County, that Rule 535 had not been complied with. In Southwestern Mines Inc. v. P. & J. Coal Company, Inc., 244 Md. 180, 184 (1966), we said ‘this [a motion for a directed verdict] is not a proper motion.’ In Lewis v. Germantown Insurance Company, 251 Md. 535, 536-537 (1968), another appeal from the Circuit Court for Montgomery County, we chided the bar for its disregard of the Maryland Rules, especially Rule 535. We cited nine cases in each of which some mention had been made of the bar’s dereliction in this regard. In Antietam-Sharpsburg Museum, Inc. v. William H. Marsh, Inc., 252 Md. 265, 267 (1969), we said, ‘Once again we remind both bench and bar that the motion for a directed verdict, in these circumstances, is improper. Maryland Rule 535.’ (Emphasis added.) Perhaps we should expect that there will always be some members of the bar who will be unaware of the Rules and our decisions concerning them but one would suppose that by now, trial judges, being fully informed, would either reject or refuse to act upon such improper motions. That we have chosen once more to twit both bench and bar in this regard should not provoke speculation that we have done so for any reason other than to focus attention upon the Rules and to remind all hands that they are not guides to the practice of law but precise rubrics ‘established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.’ Brown v. Fraley, 222 Md. 480,483 (I960).”

That there are some who have not yet received the message is apparent from the case before us.

On 7 October 1969 Lester Moon et uxor and Lester Moon as next friend and natural guardian of Kathryn Marie Moon (Moon) instituted an action in tort in the Circuit Court for Garrett County against Richard Ira Weeks (Weeks). The action was tried without a jury on 18 June 1974. At the close of evidence offered by Moon, Weeks moved for a directed verdict. The motion was denied. A motion for a directed verdict was made again at the close of all the evidence. It was then granted. Moon noted an appeal on 5 July 1974. We dismissed the appeal nostra sponte as premature because no final judgment had been entered. On 22 August “final and absolute judgment” in favor of Weeks was entered by order of the court below, with further order that Moon pay the costs. We consider this as a final judgment in favor of Weeks for costs. On 20 September Moon appealed from the judgment. It is this appeal which is now before us.

In Isen the Court declared, at 570, that although at times in the past it had not dismissed an appeal because of disregard of Rule 535, “[i]t must not be supposed”, quoting Lewis, at 543, “that the same degree of forbearance will be displayed, in the future, in respect of a similar disregard of the Maryland Rules.” We observe that under Rule 886, applicable to the Court of Appeals, and under Rule 1086, applicable to this Court, a non-jury case will be reviewed upon the law and the evidence. Such review by the appellate court is in nowise dependent upon a motion made under Rule 535. Therefore, we do not even consider dismissing the appeal. To dismiss the appeal for disregard of Rule 535 in these circumstances, would, in any event, accrue to the benefit of the party who failed to heed the Rule, and this would result in a palpable injustice.

ISSUE FOR DECISION

The propriety of the grant of the motion (which we treat as a motion to dismiss) on which the judgment was entered is not before us. As we have seen, it was a nugacity because made at the close of all the evidence. Thus, we deem that the action was decided on the merits. What is before us, therefore, is whether the trial judge was right or wrong in rendering a judgment in favor of Weeks and against Moon. There are two aspects in the consideration of this. The first concerns the law and the second concerns the evidence. The first aspect is whether the court below was erroneous in its application of the law. The second aspect is whether it was clearly erroneous in its judgment on the evidence. Rule 1086. Knowles v. Binford, 268 Md. 2.

THE FACTS

Tallahassee Street, running east and west, and Shenandoah Avenue running north and south, intersect in a residential area in the town of Loch Lynn, Garrett County, Maryland. Tallahassee Street has a descending grade from east of its intersection with Shenandoah Avenue through its intersection with Roanoke Street, parallel to and a block west of Shenandoah Avenue. On 2 December 1966 there were no traffic control signs or devices at the intersection of Tallahassee Street and Shenandoah Avenue. There was a street light on the northeast corner of the intersection. There was snow on the streets and they were slick and icy. It was about 10 degrees above zero. Kathryn Marie Moon, 7 years of age, and her brother, David, were sledding in the late afternoon of that day. The usual course was down Tallahassee Street through the intersection of Shenandoah Avenue to Roanoke Street. About 6:20 that afternoon the weather was cloudy and the moon was shining. David heard their mother call them for supper and went to fetch Kathryn, who at the moment, was talking to the janitor at a school located at the southwest corner of Tallahassee Street and Shenandoah Avenue. She persuaded David to let her take one more ride down the slope. She went first and David followed on his sled, both on the north side of Tallahassee Street, because that side of the street was clear, although cinders had been spread on the south side. About this time Weeks, driving his automobile north on Shenandoah Avenue, on the way to church to work on the sanctuary, was approaching its intersection with Tallahassee Street. David saw the headlights of Weeks’s automobile and called to Kathryn. She did not see the automobile or its headlights, but heeding her brother’s warning she turned her sled north into Shenandoah Avenue toward a driveway, at right angles to and leading into the east side of Shenandoah Avenue, under the street light. Cinders prevented her from actually entering the driveway. As she was getting off her sled she was struck by the right front fender of Weeks’s automobile.

Weeks, called by Moon as an adverse witness, testified that he lived in the neighborhood and knew Kathryn, David and their parents. He had driven about three blocks when the accident occurred. The car headlights were on, “it was dark”. He had no mechanical trouble with his car during the three block drive, was not suffering from fatigue or illness, had not consumed any alcoholic beverage within the preceding eight hours — “I don’t drink” — and had no need to wear spectacles. As he was proceeding across the intersection of Tallahassee Street and Shenandoah Avenue at a speed of 8 to 10 miles per hour, after looking to the right and left and seeing nothing, he heard “a thump hit my right front wheel, and I looked up the hill and saw David, and then I applied my brakes and slid over the bank” into a ditch. David testified that the automobile went half a block before it stopped, but according to a Maryland State Police Officer, called to the scene, it stopped “just beyond the intersection.” Weeks said he stopped 8 to 10 feet past the intersection. Weeks got out of his car, went back to the intersection and saw Kathryn lying unconscious on the right hand side of the street almost directly under the corner light. He went to a nearby house, called for an ambulance and the police and attempted to notify Kathryn’s parents.

THE LAW

The “Motion for Directed Verdict” was made in writing. One of the grounds stated therein was:

“That Section 1-149 of Article 66V2 of the Annotated Code of Maryland defines a motor vehicle to be ‘motor vehicle means a vehicle which is self-propelled or propelled by electric power obtained from overhead trolley wires, but not operated upon rails’ and a sled is not within the meaning of a motor vehicle. Since a sled is not within the meaning of a motor vehicle, a sled would not have any right of way over a motor vehicle upon the highway.”

In the argument on the motion at the close of the evidence offered by Moon, Weeks’s attorney referred to the above statute and asserted that a sled does not come within that classification. The judge said: “I would have to concur with that.” The attorney continued: “So therefore — that the sled actually does not have a right-of-way upon the road, because if you go back to the section dealing with the right-of-way, it only deals with motor vehicles.” The court replied: “Yes”. When Moon’s attorney was arguing the motion he agreed that a sled is not a motor vehicle and urged that it was a pedestrian. The court interjected: “It’s not a pedestrian, it’s a child on a sled.” The transcript reads:

“BY MR. GRANT [Moon’s Attorney]: Well, yes, sir, but it’s — if the sled is not a vehicle, then it’s obviously a pedestrian. I mean you have to — you either have to be dealing with a vehicle case or a pedestrian case. In either case, you’ve got the same situation. If you want to consider it some kind of a vehicle, which the defendant argues it’s not, you’ve got someone approaching from the right. If you want to consider it a pedestrian, then you’ve got an intersection then, and a pedestrian has a right-of-way at an intersection. Now, as for the matter of the —
BY THE COURT: Mr. Grant, can you show me one case that says that?
BY MR. GRANT: Yes, sir.
BY THE COURT: I’d like to see it.
BY MR. GRANT: I — I — I don’t —
BY THE COURT: Can you show me one case where a child on a sled has the right-of-way on the public highway?
BY MR. GRANT: Yes, sir, I — I’ll — I intend to cite the cases to your Honor.
BY THE COURT: I’d be interested in seeing them.”

In deciding the case at the close of all the evidence, the court said:

“Well, it is a most unfortunate, tragic situation because this child has been very, very seriously injured, but in order to recover damages, the law provides you must prove three things: You must prove that the defendant was negligent and was the sole cause of the injury. You must prove that the defendant was not guilty of any contributory negligence. Thirdly, you must prove your damages. There is no question but that you proved your damages, just no question at all, but I haven’t found one iota of testimony to hold this defendant guilty of any negligence. The motion will be granted, and I would add to that, without even passing on the question of contributory negligence, because of the youth of these children, their tender years, but even so, to permit or to do it, sledding on this street, certainly is an indication that — well, they shouldn’t have been doing it, I’ll put it that way, and I am compelled to grant the motion. I say, it was a most tragic thing and this little girl has suffered untold pain and injury, but I cannot put the blame on the defendant in this case. The motion is granted.”

The court had previously observed in denying the motion:

“I searched my notes and I have one little check mark about the testimony, there is no evidence whatsoever of speed, there’s no evidence whatsoever of the violation of any rules of the road, there’s no evidence whatsoever that he wasn’t on his own side of the road or that he didn’t have a right to properly proceed. But the little check mark that I have here, one of the witnesses, the brother, I think, testified that the car — I don’t know how accurate this testimony is, but his testimony was that the car went a half block beyond the intersection where the impact occurred, now that’s the only testimony in the whole case that is even an iota of negligence.”

What the court and counsel below did not consider is that the vehicle laws of this State distinguish between “motor vehicles” and “vehicles”. Code, Art. 66V2, § 2 (a) (27) (1967 Repl. Vol.) reads:

“Motor Vehicle. Every vehicle which is self-propelled except vehicles operated exclusively upon rails or propelled by electric power obtained from overhead wires, but not operated upon rails or tracks.”

Section 2 (a) (67) reads:

“Vehicles. Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks or propelled by electric power obtained from overhead trolley wires, but not operated upon rails or tracks.”

We agree that a sled is not a “motor vehicle”. But we think it obvious that it falls squarely within the definition of “vehicle” when a person is transported upon it upon a highway. See Weissberg Corp. v. N. Y. Underwriters Insurance Co., 260 Md. 417, 429.

By express terms, certain provisions of the Vehicle Laws speak in terms of “motor vehicles” and others in terms of “vehicles”. In the light of the definitions, we believe that this was deliberate. Thus, we conclude that Code, Art. 66V2, § 231 (a) (1967 Repl. Vol.) applied to “vehicles” within the meaning of § 2 (a) (67). It provided:

“Except as hereinafter provided, all vehicles or trackless trolleys shall have the right-of-way over other vehicles or trackless trolleys approaching at intersecting public roads from the left, and shall give right-of-way to those approaching from the right.” (emphasis supplied)

Therefore, on our finding that the sled in this case was a “vehicle”, § 231 (a) is applicable.

We find support for our view in Hempfling v. Patterson, 229 F. Supp. 391 (D.C. Md. 1964). In that case a child on a sled went through a stop sign and collided with an automobile. Sections 233 and 244 of the traffic laws, dealing with the duty to stop at a stop sign and at the entrance to a through highway, spoke in terms of “vehicles”. The court quoted § 2 (a) (27) and (67) and said, at 395:

“The court has been referred to no Maryland case bearing upon the question of whether or not a sled is a ‘vehicle within the laws relating to traffic. If, as would appear to be the case, the use of the broader word ‘vehicle (rather than motor vehicle) is advertent in sections 233 and 242, a strong argument can be made that one riding in a wagon, or upon a sled or other gravity operated mechanism, is in or upon a device by which person or property may be transported, and is the driver of a ‘vehicle’ required to come to a full stop at the entrance to a through highway or at a stop sign, and yield the right of way. Indeed, apart from the physical problem of how a stop is to be effected, the need for the complete stop by a brakeless vehicle is, if anything, greater than in the case of the ordinary ‘motor vehicle.’ ”

The court observed in a footnote, n. 9, at 395-396: “See the broad language in Fletcher v. Dixon, 107 Md. 420, 427, 68 A. 875, 878, and R. & L. Transfer Company v. State, 1931, 160 Md. 222, 153 A. 87, involving a coasting wagon in which the court quoted with approval from a Pennsylvania case (Eastburn v. United States Express Co., 225 Pa. 33, 73 A. 977) stating the law applicable to sleds.’’ The court said that, if necessary, it was prepared to hold that because the sled was a vehicle, the automobile, in the circumstances, had the right of way. The holding was unnecessary, however, because the court found there was absence of negligence on the part of the driver of the automobile.

DECISION

It is manifest that the judge below based his decision in substantial part on his finding that there was “no evidence whatsoever of the violation of any rules of the road”. He erred in his application of the law. He reached his conclusion because he did not consider that the sled was a vehicle. As a vehicle, however, it had the benefit of the right-of-way statute. It is firmly established that rights of way, created by the Art. 66V2 in 1943, have an important bearing upon the question of negligence and somewhat relax the strict rule of contributory negligence. Crawford v. Baltimore Transit Co., 190 Md. 381; Caryl v. Baltimore Transit Co., 190 Md. 162; Brown v. Bendix, 187 Md. 613. But, as a vehicle, it was also subject to the provisions of Art. 66V2, § 271 (a) (1967 Repl. Vol.):

“Every vehicle upon a highway within this State at any time when there is not sufficient daylight to render persons, vehicles, animals and substantial objects on the highway clearly discernible at a distance of 300 feet ahead, shall display lighted lamps and illuminating devices as hereinafter respectively required for different classes of vehicles subject to exceptions with respect to parked vehicles as hereinafter stated.”

Code, Art. 66V2, § 278 (1967 Repl. Vol.) provided:

“All vehicles, including animal-drawn vehicles, and including those referred to in § 270 (b) not hereinbefore specifically required to be equipped with lamps, shall at the times specified in § 271 hereof be equipped with at least one lighted lamp or lantern exhibiting a white light visible from a distance of 300 feet to the front of such vehicle and with a lamp or lantern exhibiting a red light visible from a distance of 300 feet to the rear.”

We have a further observation. In State, Use of Taylor v. Barlly, 216 Md. 94, 101-102, the Court of Appeals discussed at what age a child may be guilty of contributory negligence. It held, at 102, that a child, 5 years of age or over, may be guilty of contributory negligence, declining to enlarge the ruling in Miller v. Graff, 196 Md. 609, that a child four years of age cannot be guilty of contributory negligence. It affirmed the Miller holding in Farley v. Yerman, 231 Md. 444, 450. But the Court added in Taylor, at 102, “* * * a child of tender years is bound only to use that degree of care which ordinarily prudent children of the same age, experience and intelligence are accustomed to use under the same circumstances, and they assume the risk only of dangers, the existence of which they know, or which, in the exercise of this degree of care, they should have known.” We noted in Oddis v. Green, 11 Md. App. 153, 158:

“However, in Billings v. Shaw, 247 Md. 335, the Court made clear that the ‘tender years rule’ did not apply to a boy of ten, the age of Billings. It said flatly: ‘Billings was old enough to be bound by the rules of the road and to be guilty of contributory negligence, which would bar his recovery as a matter of law.”

See Leonard v. Bratcher, 258 Md. 186; Kane v. Williams, 229 Md. 59. Compare Henkelmann v. Metropolitan Life Ins. Co., 180 Md. 591; Bozman v. State, Use of Cronhardt, 177 Md. 151.

As we have indicated, at the close of the evidence in a civil action tried without a jury, all the evidence is before the trier of fact. The determination of the legal sufficiency of that evidence becomes an inseparable and necessary part of the Court’s decision, which then involves both applicable law and facts adduced. We think that Moon is entitled to a new trial, tried pursuant to the appropriate Maryland Rules and under applicable laws applied to facts duly found upon material, relevant and competent evidence presented.

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

      . This may also. be. accomplished in a criminal cause by a motion for judgment of acquittal, Rule 755 a. That motion may be made at the close of evidence offered by the State, or at the close of all the evidence. If the motion is not granted at the close of evidence offered by the State, the accused may offer evidence without having reserved the right to do so, but by so doing, he withdraws his motion, § b. When trial is by a jury, appellate review of the sufficiency of the evidence may be had only upon a denial of the motion made at the close of all the evidence. Williams v. State, 5 Md. App. 450.

      . On 7 October 1974, Weeks, belatedly recognizing that the proper motion to be made in a non-jury case was a motion to dismiss, moved this Court to return the record to the trial court so that the judgment entered “may be on a motion to dismiss”. We denied the motion. To prevent further and undue delay, we preferred to treat the motion for a directed verdict, patently improper, as a motion to dismiss, and because it was made at the close of all the evidence, it was, as we have indicated, a nugacity in any event.

      . Rule 1086, applicable to the Court of Special Appeals of Maryland, is the same as Rule 886, applicable to the Court of Appeals of Maryland. The Rules read:
      “When an action has been tried by the lower court without a jup-, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”
      In reviewing the action of the court below, when the question is one of the evidence, we must consider evidence in a light most favorable to the prevailing party; and if substantial evidence was presented in support of the trial court’s determination, then it is not clearly erroneous. Delmarva Drill Co. v. Tuckahoe, 268 Md. 417, 424, citing A. S. Abell Co. v. Skeen, 265 Md. 53, 55; Crosse v. Callis, 263 Md. 65, 70-71; Frisoen v. Trapp, 258 Md. 629, 633. When the question is one of the law, the “clearly erroneous” provisions do not apply. Sica v. Retail Credit Co., 245 Md. 606, 611; Pappas v. Modern Mfg. Co., 14 Md. App. 529, 538.

      . There is noted thereon in handwriting under the date 6-18-74 and over the initials of the trial judge:
      “Denied at the end of Pltf ,’s case. Granted at end of Def .’s case.”

      . The record does not disclose the citation of such cases. In denying the motion at the close of the evidence offered by Moon, after argument by counsel, the court said: “All right, Mr. Grant, let me do it this way, and I think we can save everybody a lot of time. Mr. Stover [Weeks’s Attorney], I am strongly inclined to grant your motion, but I think for the sake of the record I will deny the motion at this time. All right, that will resolve the matter for the time being.”

      . As we have indicated, evidence offered through the Maryland State Police Officer, was in conflict with the testimony of David that Weeks’s automobile went a half a block before it stopped. According to the Officer it was “just beyond the intersection”. By ultimately finding not “one iota of testimony to hold [Weeks] guilty of any negligence”, it is apparent that the court assessed the Officer’s credibility, weighed his testimony, and accepted it.

      . Now Art. 66V2, § 1-149. It defines motor vehicle to mean “a vehicle which is self-propelled or propelled by electric power obtained from overhead trolley wires, but not operated upon rails.”

      . Now Art. 66V2, § 1-209. It defines vehicle to mean “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.”

      . We also agree that a child upon a sled on a street is not a pedestrian. The meaning of pedestrian was not set out in the motor vehicle laws until 1970. Acts 1970, ch. 534, § 1, codified as Art. 66V2, § 1-159 reads: “Pedestrian means any person afoot.” See Braswell v. Burrus, 13 Md. App. 513. It seems that this was in substance the meaning of pedestrian accepted in appellate opinions prior to the enactment of the statute. See Harris v. Bowie, 249 Md. 465.

      . We note that Article 66V2, formerly entitled “Motor Vehicle Laws”, is now titled “Vehicle Laws”. Acts 1970, ch. 534, § 1.

      . As now codified as Art. 66V2, § 11-401, the words “trackless trolleys” are deleted, “highways” is substituted for “public roads” and an exception, “except at through highways, for which separate provision is made in this article”, is added at the end of the section.

      . There are numerous decisions in other states involving motor vehicle — sled accidents and the relative duties of the parties involved, but they are not helpful in the posture of this case. See Annot., 109 A.L.R. 941, supplementing Annot., 20 A.L.R. 1433 and the subsequent case service.

      . The evidence showed that the motorist was proceeding along an icy through street at 15 to 20 miles an hour when he saw a 9V2 year old child coasting on a sled in an intersecting street. He had brought his automobile to a stop within 65 to 70 feet and had pulled over almost to the left curb when the sled ran into his automobile.

      . As amended by Acts 1970, ch. 534, § 1, it is now codified as Art. 66V2, § 12-201 and reads:
      “Every vehicle upon a highway within this State at any time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 1,000 feet ahead shall display lighted lamps and illuminating devices as hereinafter respectively required for different classes of vehicles, subject to exceptions with respect to parked vehicles, and further that stoplights, turn signals, and other signaling devices shall be lighted as prescribed for the use of these devices.”

      . Now codified as Art. 66V2, § 12-216, it provides as amended:
      “Every vehicle, including animal-drawn vehicles and vehicles referred to in § 12-101 (c) [(e)], not specifically required by the provisions of this part to be equipped with lamps or other lighting devices, at all times specified in § 12-201 of this article shall be equipped with at least one lamp displaying a white light visible from a distance of not less than 1000 feet to the front of the vehicle, and shall also be equipped with two lamps displaying red lights visible from a distance of not less 1000 feet to the rear of the vehicle, or as an alternative, one lamp displaying a red light visible from a distance of not less than 1000 feet to the rear and two red reflectors visible from all distances of 600 to 100 feet to the rear when illuminated by the upper beams of head lamps.”

      . An action at law shall be tried before the court without a jury unless an election be made for a jury. Rule '343 a. A plaintiff shall make such election at the time of filing of the original declaration. Rule 343 b. A defendant shall make such election at or before the time of filing his first responsive pleading to the merits»which places the case at issue as to him. Rule 343 c.
      The Rule concerning election of a jury trial was proposed to eliminate the time consuming business of docket calls in open court and to permit those responsible for assignment of cases to ascertain, at an early stage, which cases must be set for jury trial and which cases may be assigned for trial by the court. Maryland Community Developers, Inc. v. State Roads Commission, 261 Md. 205, 211. It appears from the docket entries in the case before us that “the time consuming business of docket calls in open court” is still conducted in the Circuit Court for Garrett County.


author: Lowe, J.,

text:
    JAMES LOUIS WILLIAMSON v. STATE OF MARYLAND
    [No. 690,
    September Term, 1974.]

      Decided March 18, 1975.

      The cause was argued before Thompson and Lowe, JJ., and Robert F. Sweeney, Chief Judge of the District Court of Maryland, specially assigned.

      Gerald A. Kroop, with whom was Harry A. E. Taylor on the brief, for appellant.

      James I. Keane, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Cornelius D. Helfrich, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Trial by Court or Jury

In State v. Zimmerman, 261 Md. 11, where the record reflected only defense counsel’s verbalization of the election of a bench trial, the Court of Appeals decided that a post-conviction proceeding was the most appropriate forum for deciding in the first instance whether the defendant had knowingly foregone his right to jury trial. The Court concluded that a “preferable practice” in accepting an election of trial by the court was for:

“. . . the trial judge to determine on the record whether this is a knowing election on the part of the accused of a court trial in lieu of a jury trial . . . .” Zimmerman, 261 Md. at 25.

Appellant seizes upon that closing paragraph, and asks us to go two steps beyond. He would have us not only elevate the foregoing “preferred practice” to a compulsory ritual — an alternative this court expressly rejected in Miller v. Warden, 16 Md. App. 614, 624 — but also require that the procedure apply in the opposite situation, viz., where the accused elected a jury trial in lieu of a court trial. He would have the court educate the defendant upon the advantages of trial by judge alone.

We note at the outset that, unlike the facts before the Zimmerman Court, this appellant personally chose to be tried by a jury:

“THE COURT: Trial by Judge Perrott or a jury?
MR. WILLIAMSON: By a jury.”

As in Zimmerman, however, appellant has never indicated that he wanted anything other than the mode of trial he selected and made no objection on that basis at the trial. We therefore decline to decide the ultimate question of appellant’s voluntary and knowledgeable election. The evidentiary basis for his argument, if there is one, has not as yet been established and thus must await post-conviction proceedings. Md. Rule 1085; Zimmerman, supra, 261 Md. 11.

We will, however, decide the penultimate question of the trial court’s responsibility when the accused elects a jury trial. Appellant directs our attention to Maryland Rule 741 which provides that he “may elect to be tried by jury or by the Court.” Pointing out the historical (and somewhat unusual) importance of the court trial in Maryland law, he then warms over dishes we have served to others and serves them back to us morsel by morsel:

“[J]udges are men of discernment . . . .” State v. Babb, 258 Md. 547, 550.
A judge presides impartially because of his “professional expertise, experience and judicial temperament . . . .” State v. Hutchinson, 260 Md. 227, 233.
The court trial “is a boon.” Rose v. State, 177 Md. 577, 581.
Judges have “wisdom and experience.” Gunther v. State, 4 Md. App. 181, 184.

Using our pride, like that of Brutus, as the fatal flaw with which he would ensnare us, appellant reasons that, at the very least, he should have been advised of the multitude of admirable qualities he was foregoing by electing trial by jury.

Hoist as we are upon our own petard we dare not grimace lest we show signs of hurt. We are amused, if not bemused, by appellant’s argument, but find ourselves none the less unpersuaded. Having decided that the trial judge need not affirmatively inquire into an accused’s decision to forego a jury trial, Miller v. Warden, 16 Md. App. at 624, we are certainly not going to impose that obligation when the defendant chooses to exercise his jury trial right. Trial by jury is the manner of trial guaranteed a defendant by both the Maryland Declaration of Rights, Articles 5 and 21; and the Federal constitution, 6th and 14th Amendments, Duncan v. Louisiana, 391 U. S. 145. The court trial in Maryland has been provided as an alternative to defendant as a matter of governmental largesse; and our self-laudatory remarks, when read in context, were meant simply to point out that the court trial alternative is not necessarily a deprivation, and indeed has some advantages including “expertise” and “experience.” In any event, the trial judge need only ask which mode of trial is preferred, and if counsel responds, satisfy himself that the decision was the defendant’s. Miller, 16 Md. App. at 624.

The Facts

While hardly so aristocratic as the Montagues and Capulets, nor quite as bloody as the Hatfields and McCoys, an interfamily feud became a bitter reality for appellant, James Louis Williamson, the woman with whom he lived and her children among whom were Denise (Nessie) Short and Calvin (Lee) Matthews. On August 8, 1973, sometime during the day, Lee got into a “fuss” with a Mrs. Kane. Nessie accompanied Lee to Mrs. Kane’s house to talk with her. The discussion degenerated rapidly into an exchange of threats. Lee “reasoned” with a stick and Mrs. Kane with an iron pipe. From the combat that ensued one of the gladiators, Mrs. Kane, emerged with a bloody nose.

Later that day, Mrs. Kane’s daughter, Jacqueline, related these events to her brother-in-law, Charles Kessler. He went to Lee’s house, purportedly armed with a shotgun, and threatened Lee. In addition to blaming Lee for bloodying Mrs. Kane’s nose, Mr. Kessler accused him of hitting his four year old son.

Upon hearing shots outside, Nessie, who was by then home, called the police. When they arrived, Nessie could no longer see Mr. Kessler from her house and was afraid to leave. After the police departed, appellant Williamson arrived home. Nessie and Lee told him what had happened. Thereafter it is unclear whether Mr. Kessler reappeared and resumed his threats or whether Mr. Williamson and Lee sought Mr. Kessler. It is clear that the argument over their families’ squabblings resulted in Mr. Kessler’s death. The day ended when Mr. Williamson shot and killed Mr. Kessler — in self-defense according to Mr. Williamson. The jury did not agree. He was convicted of second degree murder and the use of a handgun in commission of a crime of violence, following trial in the Criminal Court of Baltimore, presided over by the Honorable James A. Perrott.

Reputation Evidence

Appellant claims that the trial court erroneously excluded evidence of the deceased’s reputation which he sought to establish both generally and by testimony of specific acts. Appellant’s counsel below somewhat inartfully articulated the purpose or purposes the evidence was to serve. The trial court apparently treated the evidence as offered to prove the appellant’s reasonable apprehension of danger and consequent need to defend himself at the time of the killing, and ruled accordingly:

“. . . you have to sufficiently establish a knowledge of the defendant of the propensity of the victim.”

The trial judge was correct with respect to reputation evidence offered to prove the defendant’s state of mind. Contrary to the general reputation rule which prohibits evidence of specific acts, a defendant asserting self-defense may offer evidence of specific acts of which he was aware at the time of the killing. Such evidence bears on the reasonableness of his actions:

“It is, of course, generally true that the reputation of the deceased cannot be shown by evidence of specific acts. However, where there is testimony tending to support the theory of self-defense, the presence of such testimony entitles the defendant to the benefit of certain rules of evidence which would not otherwise be available. It is competent for him to prove his knowledge of facts which would have a reasonable tendency to justify his asserted belief as to the existence of a deadly purpose in the overt acts of the deceased . ... On the issue whether or not the accused had reasonable . grounds to believe himself in imminent danger, he may show his knowledge of specific instances of violence on the part of the deceased. Previous acts of violence by the deceased, especially if committed recently, known to the defendant, might have an even stronger influence on his mind than would be produced by knowledge of the reputation of the deceased for violence.” Jones v. State, 182 Md. 653, 659; accord, Gunther v. State, 228 Md. 404, 410; Barger v. State, 2 Md. App. 565, 568-569, cert. denied, 249 Md. 731. [Emphasis supplied].

Although counsel had proffered that he could prove specific violent acts of which his client was aware before the killing, after arguments and the trial court’s ruling permitting him to do so, he was unable to produce the proffered evidence.

Trial counsel did, however, continue to doggedly assert the admissibility of evidence of deceased’s reputation irrespective of appellant’s prior knowledge. Throughout a substantial portion of the transcript, there is a recurring colloquy between trial court and counsel on its admissibility. In response to the trial judge’s previously mentioned ruling, appellant’s counsel at various times protested:

“I am not attacking it from that viewpoint. I am only bringing it in as a matter of the man’s reputation.”
“Your Honor, I am entitled to bring in as many witnesses as I wish to show a reputation in the neighborhood.”

Then, after the court quoted dictum from Jones v. State, 13 Md. App. 677, 684, suggesting the admissibility of evidence of the deceased’s reputation for violence the appellant’s counsel stated:

“I have contended that all along.”

Although we must strain to do so, we will give appellant the benefit of any doubt and interpret his counsel’s remarks as arguing the admissibility of the proffered evidence on an alternative, and conceptually distinct basis, i.e., to bolster or corroborate his version of the circumstances of the encounter with the deceased. After reciting the prior knowledge of specific acts rule 1 Wharton, Criminal Evidence, § 236 goes on to explain that alternative:

. . after the defendant has laid a proper foundation by adducing some evidence tending to show that he acted in self-defense, he may introduce evidence of the turbulent and dangerous nature of the victim. Where the purpose of the evidence is to show that the defendant had reason to apprehend harm, it must appear that at the time of the encounter he had knowledge of the victim’s reputation, because otherwise his conduct could not have been influenced thereby. But where the purpose of the evidence is to corroborate testimony for the defendant as to the circumstances of the encounter, such corroborative evidence is admissible whether the defendant had knowledge of the victim’s reputation or not.” [Emphasis supplied].

The issue thus resolves itself into one of relevancy. Does evidence of the victim’s reputation, whether or not known to the defendant, make the testimony regarding appellant’s encounter with the deceased “more probable than it would be without the evidence?” C. McCormick, Evidence (2d ed.), § 185 at 437, Gray v. State, 10 Md. App. 478, 487, cert. denied, 261 Md. 725. In the case at bar the appellant had introduced evidence tending to show that he shot the victim in self-defense. The State had produced only one witness, the victim’s sister-in-law, who testified that although she knew the victim well, she had never seen him carry a gun. Since appellant testified that he shot Mr. Kessler because he was armed with a shotgun and threatened him and children in the house, evidence of the victim’s propensity for violence and shotguns was crucially important, if for no other purpose than to counter the inference of pacifism conferred by the sister-in-law’s testimony.

Although this Court has dealt many times with the admissibility of reputation as bearing on the accused’s state of mind when self-defense is raised, we have never dealt directly with reputation evidence as tending to corroborate appellant’s account of the circumstances of the killing. In Jones v. State, 13 Md. App. 677, 685, n. 1, Judge Thompson expressly declined, as unnecessary, to rule upon that issue, notwithstanding the fact that he had included significant dictum on the point in his opinion:

“At the conclusion of the testimony the appellant proffered as a witness, the deceased’s mother stating that she would testify to the violent reputation of the deceased. The court declined to permit the witness to testify, ruling that since she had been present in the courtroom during the entire trial, and not sequestered as were all other witnesses, pursuant to Md. Rule 753, she could not testify. Appellant also proffered the daughter and sister of the deceased for the same purpose but the court also declined to permit their testimony on the same basis. Even though the admission of the testimony of witnesses who violate a sequestration order is in the sound discretion of the trial judge, Hill v. State, 9 Md. App. 65, 262 A. 2d 573, we think the trial judge probably should have admitted the testimony of the mother, daughter and sister of the deceased as to his reputation for violence. We do not need to rule upon the point since we find reversible error elsewhere.” Id. p. 684.

We now declare what Judge Thompson implied. Assuming the requisite of relevancy, evidence of the victim’s violent reputation is admissible as corroborative of appellant’s self-defense account of the crime. Unlike the state-of-mind exception allowing evidence of specific acts, however, the customary rule allowing only evidence of general reputation applies.

Here, despite the trial judge’s expressions to the contrary, as each defense witness was called he permitted appellant to elicit that the victim’s reputation was bad and that he had a penchant for shotguns. Objections to questions regarding specific acts were consistently and properly sustained. Regardless of the condition of prior knowledge erroneously expressed as a prerequisite in the court’s ruling, the trial judge properly admitted the evidence appellant sought to introduce. Whatever the judge’s reasons, the admissible evidence of the victim’s general reputation that appellant wanted in, came in. The evidence of specific acts of violence was properly precluded for reasons above stated. The appellant has no ground to complain.

The Bloody Nose

Appellant’s objection to introduction of a photograph of Mrs. Kane’s bloodied nose may be summarily dealt with. We have examined the photograph and in the light of the criteria set out in Carroll v. State, 11 Md. App. 412, cert. denied, 262 Md. 745 we cannot say the trial judge abused his discretion in admitting it.

Although the photograph showed an injury inflicted by someone other than the appellant, the event depicted was the causa belli precipitating the day’s events and thus obviously relevant. Peterson v. State, 15 Md. App. 478, 501-502, cert. denied, 266 Md. 735, 738, 741. As we see it, dramatization of the fight between Mrs. Kane and Lee aided rather than detracted from appellant’s argument of self-defense.

Reconsideration of New Trial Grant

After guilty verdicts were rendered against appellant, sentencing was postponed pending presentence investigation. At the disposition hearing three months later, appellant’s counsel moved and argued for a new trial on the basis that the motions for judgment of acquittal should have been granted. The Assistant State’s Attorney who had tried the case had since departed from the office and another Assistant was sent in his stead. Claiming no notice of the new trial motion and confessing no knowledge of the facts of the case, the Assistant asked that the matter be continued to allow him to prepare. Judge Perrott, obviously perturbed at what he termed the lack of “continuity” in the State’s Attorney’s Office, told appellant’s counsel:

“I will grant your motion for new trial, Mr. Kaplan.”

The State strongly protested and asserted:

“I am sure there is an argument to be presented.”

The court agreed, saying “I know there is,” and acquiesced in the State’s request for a two-day continuance, but with the following caveat:

“. . . let the message go out that there is to be continuity.”

At the subsequent hearing the original prosecutor argued as amicus curiae and the motion was denied. When appellant’s counsel objected to the reversal of the apparent grant of the motion, the court responded:

“I didn’t grant it.”

Appellant acknowledges that the majority of jurisdictions permit reconsideration of the grant of a motion for new trial, 24 C.J.S., Criminal Law, § 1510, 58 Am.Jur.2d, New Trial, § 217, but argues that the Maryland rule should be that once the motion is granted, reconsideration is prohibited. Although there may be situations where reconsideration of the grant or denial of a new trial is arguably inappropriate, the present case is clearly not such a situation. Sentencing had not taken place, thus judgment had not been entered.

We further note the use of the word “will” in the trial court’s language, “I will grant your motion.” We are told by The American Heritage Dictionary of the English Language that use of that verb as an “auxiliary followed by a simple infinitive [grant] . . . can indicate:

1. Simple futurity . . .
2. Likelihood or certainty . . .
3. Willingness . . .
4. Requirement or command . . .
5. Customary or habitual action . . .
6. Capacity or ability . . .
7. . . . Probability or expectation . . .

The fact that the judge did not treat the matter as ended by his statement — which if interpreted as appellant urges would have concluded the case — but rather granted the continuance urged upon him by the State to permit argument to be presented thereafter, clearly indicates his intention in using the term to express either a “probability or expectation” or a “simple futurity.” In context it cannot be seriously argued that it indicated “certainty.” We interpret the language in accordance with the court’s actions and expressions as meaning a future intention to grant, rather than a present order. Furthermore, appellant’s argument of insufficiency of evidence was the same he had unsuccessfully made twice before on motions for judgment of acquittal. At no time did the trial court indicate concurrence with the merits of appellant’s argument; on the contrary, Judge Perrott acknowledged the significance of the State’s argument, criticizing only “the system.” While perhaps over-reacting, the trial judge was merely dramatizing his displeasure with the State’s unpreparedness. Even if the motion had been granted, the reversal of that decision was within the trial judge’s discretion under the circumstances indicated. Annot., 145 A.L.R. 400.

Judgments affirmed.

      . We intimate no opinion thereon.


author: Singley, J.,

text:
    WARREN HALLE v. SANDRA HALLE
    [No. 719,
    September Term, 1974.]

      Decided March 18, 1975.

    The cause was argued before Morton and Menchine, JJ., and Frederick J. Singley, Jr.,'Associate Judge of the Court of Appeals of Maryland, specially assigned.

      Jeffrey N. Greenblatt, with whom was Jackson Brodsky on the brief, for appellant.

      Robert B. Ostrom for appellee.
   Singley, J.,

delivered the opinion of the Court.

The appellant, Warren Halle, and the appellee, Sandra Halle, were married on 16 October 1961. Two sons were born of the marriage: Gerald, in 1964 and Jonathan, in 1969. The marriage foundered in November, 1973, when Mr. Halle filed a bill of complaint in the Circuit Court for Prince George’s County Tor a divorce a vinculo matrimonii on grounds of adultery. Mrs. Halle answered, denying the allegations of her husband’s bill and later filed a cross-bill in which she sought an absolute divorce on grounds of desertion.

In August of 1974, when the case came on for hearing before Judge William B. Bowie, the parties had reached an agreement on all issues except the question of child support. By stipulation, the husband’s bill was dismissed; the wife waived any present or future right to maintenance, support and alimony; the husband agreed that she was to have custody of their two sons, and agreed to transfer title to his interest in the family home to trustees, to be held for the children’s benefit. The case went forward on her cross-bill for an absolute divorce on grounds of desertion.

Mrs. Halle testified that she had been living with her sons in a house in College Park, Maryland which she and her husband owned as tenants by the entireties. She said that her husband had deserted her in January, 1973; that the desertion had continued, and that there was no hope of reconciliation.

There was introduced a schedule prepared by Mrs. Halle on a form provided by the Court, detailing the monthly expense involved in providing a home for the children:

House payment $ 185.00
Food 200.00
Clothing 106.00
Medical, dental 65.00
Transportation 98.00
Recreation 185.00
Insurance lO.OOH
Realty taxes 75.00
Light, gas, telephone 46.00
Heat (average [12 months]) 26.00
Incidentals 210.001[2]
Water 7.00
Necessary home repairs 81.00
$1,294.00
[ 1 ] Not including automobile insurance.
[ 2 ] Including ordinary maintenance on house.

Mrs. Halle testified that she was not employed; that she had no resources or income of her own, and that during the period of her separation, although she had received about $400.00 per month from her husband, who had also made the monthly house payments of $185.00 as well as paid major medical insurance premiums, it was necessary for him to supplement support payments from time to time. During the period, she had been forced to exhaust her savings.

Introduced in evidence was a statement of Mr. Halle’s net worth — $440,644.00 at 30 June 1973, which included his 100% interest in Halle Construction Company, Inc. with a book value of $264,343.00. Also introduced was Mr. Halle’s 1973 United States income tax return which recognized a gross income of $94,097.00 for the year and a taxable income of $82,398.00.

At the conclusion of the case, Judge Bowie entered a decree granting Mrs. Halle an absolute divorce on grounds of desertion; awarding custody of the two children to Mrs. Halle, subject to Mr. Halle’s- rights of visitation; directing that Mr. Halle pay “suit money” in the amount of $327.00 to Mrs. Halle, the fee of Mrs. Halle’s counsel in the-amount of $1,250.00, together with court costs, and ordering that Mr. Halle’s interest in the College Park residence be transferred to trustees for the benefit of the children, pursuant to the stipulation entered into by the parties.

There was a final provision that Mr. Halle pay $1,000.00 per month, accounting from 1 August 1974 for the support of the minor children. Although a timely appeal was taken from the decree, it is only the amount of child support which is at issue before us.

Mr. Halle’s attack on the allowance for maintenance and support is three pronged: (i) the right to alimony and maintenance and support was waived by Mrs. Halle; (ii) the amount of child support properly depends on the needs of the children, not on those of the wife, and (iii) the chancellor’s determination of the amount of child support, on the facts before him, was clearly erroneous.

Because the contentions are interdependent and are, at least in part, posited on a misunderstanding of the manner in which Judge Bowie rationalized the result which he reached, they can best be considered together.

Briefly stated, the facts before Judge Bowie were these: the sons of the parties were ten and four years of age, respectively. Mr. Halle had stipulated that they were to remain in Mrs. Halle’s custody, and that his interest in the house was to be held for their benefit. By stipulation, Mrs. Halle had waived all claim to maintenance, support and alimony. Mr. Halle’s net worth was nearly $500,000.00; his income some $90,000.00 annually. Mrs. Halle had no resources of her own, and no earning capacity so long as she made a home for the boys.

Mrs. Halle presented a schedule of monthly expenses totaling $1,294.00, which the chancellor reduced to $1,000.00 because of duplications. While the statement could have been more exact, and support of it could have been more precisely articulated, the fact remained that during the period of separation, Mrs. Halle had been receiving about $600.00 per month, at a time when a substantial portion of her additional expenses were either being provided for by her husband directly, or from her own funds.

The chancellor put it this way in his colloquy with counsel:

“We accept that, as I told you before, but I have also told you and I reiterate, and I don’t know why I have to keep repeating it, it amounts to the same thing. If you give maintenance and support to the children and the children require the care of the mother and the mother is not going to work, . . . included in the maintenance and support of those children are all the considerations that the Appellate Courts tell us we must look to in arriving at an amount are[:] his earnings, her requirements, their station in life, that certainly has a bearing. The mere fact that the wife has waived alimony and maintenance and support does not take away, in the Court’s view, from the children the right to be maintained in the manner that they were maintained prior to the divorce, and of necessity if you’ve got two young children and they’ve got to have a mother’s care.and [it’s] not required that she work, certainly not in this case, and the children are going to benefit from her care, an allowance has to be made within the maintenance and support money to them to take care of someone, whether it’s the natural mother or someone else, to look after them. If that someone is going to look after them and live in, they’re going to have to have clothing on their back, going to have to have food and going to have to have lodging. It’s as simple as that.
“So, you end up with the same thing regardless of what she has waived. She.’s waived it as a separate and independent requirement for her, and when the Court considers it, we have to consider that she’s required to look after the children and the house and so forth. So, I won’t repeat that anymore.”

Judge Bowie took the very realistic position that should Mrs. Halle be forced to seek employment (she testified that she had worked earlier during her marriage) it would be necessary for the boys to have someone to care for them. Because this could well involve an expenditure of a sum greater than the difference between $650.00 and $1,000.00, if Mr. Halle’s income and the family’s standard of living were taken into account, the solution fashioned by the chancellor was a less expensive one.

Under the facts of this case, the chancellor’s determination was essentially dictated by what he regarded as being in the best interests of the children.

Nothing could be clearer than the rule of the cases that there is no set rule fixing the amount of child support, which must be tailored to meet the circumstances of each case, Bowis v. Bowis, 259 Md. 41, 267 A. 2d 84 (1970); Wooddy v. Wooddy, 258 Md. 224, 265 A. 2d 467 (1970); Wagshal v. Wagshal, 249 Md. 143, 238 A. 2d 903 (1968); Chalkley v. Chalkley, 240 Md. 743, 215 A. 2d 807 (1966); Pet v. Pet, 238 Md. 492, 209 A. 2d 572 (1965).

A court of equity has wide discretion in a case of this sort and its award will not be set aside or modified unless clearly wrong, Wooddy v. Wooddy, supra, 258 Md. at 228, 265 A. 2d at 470; Pet v. Pet, supra, 238 Md. at 496, 209 A. 2d at 574. There was neither an error of law nor an abuse of discretion in the determination reached by the chancellor.

Decree affirmed, costs to be paid by appellant.

      . The monthly amount which Mr. Halle contended Mrs. Halle had for her use during the period of separation: $433.00 in direct payments, $185.00 for the house, apparently rounded off at $650.00.