text:
    GEORGE D. HOLLE, the younger v. STATE OF MARYLAND
    [No. 934,
    September Term, 1974.]

      Decided May 9, 1975.

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

      Stephen L. Miles for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Howard Grossfeld, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 22 November 1974 in the Criminal Court of Baltimore, GEORGE D. HOLLE, the younger, was tried at a bench trial under indictment No. 17401997 presenting by the first count that on 24 June 1974 he did steal $712 of the monies of St. Matthews Roman Catholic Congregation, Inc. and by the second count that he did receive the monies. He was found guilty generally and a general sentence of five years was imposed and suspended. He was placed under supervised probation for 3 years, and ordered to pay the costs. He appealed. He contends that the trial court committed reversible error in admitting into evidence the property seized from him. We affirm the judgment.

STATEMENT OF THE CASE

When the indictment came on for trial Hollé pleaded not guilty. He elected to be tried by the court and expressly consented that the trial was to proceed on an agreed statement of facts. The transcript of the proceedings reads:

“MR. GROSSFELD [Assistant State’s Attorney]: Your Honor, the agreed statement of facts, agreed to by Counsel for the Defense and the State, are as follows: the State would have first called Reverend O’Dwyer, who is present. What is the proper title?
THE REVEREND O’DWYER: Father.
MR. GROSSFELD: As you can see, he is in the second row. Please be seated. He would testify that he was affiliated with the St. Matthew’s Roman Congregation, Incorporated, in the State of Maryland, and he was affiliated with this particular organization on June 23, 1974; that on June 6, 1974, he had reason to believe that there was a shortage occurring in the collections on Sundays and that he had reason to believe that the person taking the particular count was the Defendant, George Hollé, who he would then identify as seated at the trial table today with Counsel. Father O’Dwyer would further testify that he had occasion to meet with the members of the Baltimore City Police Department on June 16,1974, and discussed this particular matter and at that time they agreed to take a count of the collection for June 23,1974.
On that particular day, after the church services, approximately two o’clock in the afternoon, on the 23rd, Detective O’Connell, who is present today, along with Father O’Dwyer, counted the particular sum of money. Excuse me, Your Honor.
(Mr. Grossfeld referred to a file.)
MR. GROSSFELD: They found that the money was $463 in singles, eight five dollar bills, two ten dollar bills, thirty-seven dollars in singles from the poor box — excuse me, Your Honor.
(Mr. Grossfeld referred to a file.)
MR. GROSSFELD: Your Honor, the total amount would be $564.00. This was not including the envelope money. The Father would explain that the envelopes were always taken where people in the congregation would deposit money in the envelopes and it would be sealed and this would be done for tax purposes. This particular money was undisturbed.
Arrangements between the Father and the detective were made and the loose money, the $564 was stamped with an infra-red light which reflected BCPD, representing the Baltimore City Police Department. After counting the money, it was returned to the safe and the detective at that time marked the safe to assure that it was not disturbed.
On the following day, all the people who were counters came in that particular room. The Defendant was one of them. At approximately 3:30, Father O’Dwyer returned to the counting room and asked whether the total was correct, at which time he was informed that the total was incorrect and that there was a shortage at that time. He walked out and got the members of the Baltimore City Police Department, who at that time returned and at that time requested if they could search everyone present. All agreed except the Defendant. At that time, the officers arrested the Defendant and searched him and found on his possession $712 in currency.
Your Honor, at that time, they took the money out, laid it on the table and turned off the light and applied a fluorescent light and all the bills except one lit up with the code.
The State would have next called Detective O’Connell who is present. Will you please stand?
(Detective O’Connell stood up.)
MR. GROSSFELD: As you can see, he is in the first row. Thank you. You may be seated.
He would have testified that he had a meeting with the Father; that he had arranged to mark all the bills on June 23; that he had occasion to look into the background of the Defendant and was unable to find anything — any income coming in to the Defendant. He also inquired into another charge that the Defendant was counting for and found that there was a shortage there and that he on June 24th made arrangements with Father O’Dwyer to be present when the counting was taking place. He would further testify that he was told by Father O’Dwyer that there was a shortage.
On this particular day, he came into the counting room where the Defendant was present. He asked if he could search everyone and everyone agreed except the Defendant. On probable cause, he arrested the Defendant and when he reached in the Defendant’s pocket, he found an abnormally long pocket going down past the Defendant’s knee and crammed in there was over $700. When he took out the money, he found it all to be coded as he did earlier that particular day.
He would also testify that the funds collected are present today and are sealed in this envelope (indicating) that the State would offer as State’s Exhibit Number 1.
MR. MILES [Defense Counsel]: For the record, I would object.
THE COURT: Objection overruled.
MR. GROSSFELD: The next witness the State would have called would be John Savage (spelled phonetically). He is present. He is in the second row.
He would testify that he is a member of that particular congregation and for the last three years he has been counting coins and been counting the collections along with the Defendant, who he would identify as being seated at the trial table today. He would testify that on June 23, 1974, he was present when the Father and Detective made the count. Again, he was present on the 24th when the count was taken and a shortage did occur. He would explain that there were five or six people who came in to count. All members sorted and this was the only person who actually did the actual counting and he would testify that would be the Defendant.
He would further testify that photographs of the particular counting room, offered as State’s Exhibit Number 2, and Your Honor can see from the photograph that the table is a‘T’ shape.
(A photograph was marked and introduced into evidence as State’s Exhibit Number 2.)
MR. GROSSFELD: All members of the counting team were at one end. The Defendant was at the other end. Excuse me, Your Honor.
(Mr. Grossfeld looked through some photographs during which time Detective O’Connell handed Mr. Grossfeld more photographs.)
MR. GROSSFELD: Your Honor, the State would next offer a photograph which the witnesses would testify is a re-enactment of the way the individuals count. I would offer that as State’s Exhibit Number 3.
(A photograph was marked and introduced into evidence as State’s Exhibit Number 3.)
MR. GROSSFELD: As you can see, Your Honor, there is a gentleman at the closest portion of the photograph with a basket in front of him. That is the position that the Defendant normally took. The witness would also testify that the Defendant always had the basket in front of him when he was counting.
The witness would further testify that he was present when the police came in with Father O’Dwyer and requested everyone if they could search them and everyone agreed except the Defendant. The Defendant was placed under arrest, at which time the Defendant was then searched and recovered from him was the $712 which was marked. The lights were turned off and the symbols showed up.
That would be the State’s case in chief.”

Hollé moved for judgment of acquittal. It was denied. He then expressly (1) chose not to testify; (2) agreed with his counsel’s statement that “we have no witnesses to call in your behalf with regard to the facts of the case”; (3) declared he understood that the court “will decide your guilt or innocence at this point based on the statement of facts as given by the State’s Attorney,” which were “essentially correct” as set out. Whereupon defense counsel said, “That would be all, Your Honor. I will wait for your ruling.” The court asked if the motion for judgment of acquittal was renewed, defense counsel said it was, and the court denied it. The court said: “Based on the evidence as submitted to the Court by an agreed statement of facts, the Court finds you guilty as charged.”

THE LAW

I

It is not always necessary that tangible evidence be physically admitted at a trial. For example, if a felon commits a robbery with a deadly weapon, disposes of it before being apprehended, and it is not recovered, the corpus delicti of the crime may be proved on the testimony of the victim or an eyewitness that the robber used such a weapon. Even when evidence is available it need not be physically offered. Thus, the grand larceny of an automobile may be established merely on competent testimony describing the stolen vehicle without actually producing the automobile before the trier of fact. In such instances, the description of the tangible evidence is the equivalent of the physical production of the evidence, and the failure to produce it goes at most to the weight of the evidence and the credibility of the witness describing it. In other words, “[i]t is not necessary to produce, as distinguished from prove, the object of the crime.” 1 Underhill’s Criminal Evidence, § 35, at 62 (6th ed. 1973). See Foster v. United States, 212 F. 2d 249 (D.C. Cir. 1954).

II

After indictment the admission of property may be challenged by a motion to suppress or exclude it on the ground that it was obtained by an unlawful search or seizure. The motion may be filed before trial or at trial in the court having jurisdiction. Maryland Rule 729, § b 1. Such a motion is not required, however, and the failure to file it shall not constitute a waiver of a defendant’s right to object at the trial to the introduction of such evidence. Rule 729, § c. An objection to evidence, as distinguished from a motion to suppress or exclude it, is generally governed by Rule 522, made applicable to criminal causes by Rule 725, § f. Although Rule 729, § f provides that if such a motion or objection is denied the matter shall be preserved on appeal “even though no further objection was made to the introduction of such evidence at the trial” (emphasis added), Rule 522, § d 2 requires that “Every objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be treated as waived.”

DECISION

Evidence that the marked money, the object of the crime, was recovered from Holle’s person was placed before the trier of fact here by the agreed statement and without any challenge by objection or by motion to suppress or exclude, or otherwise. It was not until after this unchallenged evidence was received, and the State for some reason offered the money itself, that Hollé interposed a bare objection “for the record”. We think it came too late to preserve the question of the admissibility of the money no matter what the grounds of the objection may have been. Proof of the object of the crime, that is the money which was stolen, and where it was obtained, having come in without objection, there was, at that point in the trial, evidence sufficient in law to prove both the corpus delicti of grand larceny and Holle’s criminal agency. It was not necessary to produce the tangible evidence itself to prove the State’s case. The State’s burden had already been met. It made no difference thereafter whether the court admitted the actual money or excluded it, and indeed, as we have indicated, the State had no need even to offer it. Hollé agreed to the statement of facts and did not dispute the assertion contained therein that he was arrested “on probable cause”. He objected only to the introduction of the actual money after all necessary proof regarding it had been received. Objection to the admission of the money was waived because not timely made. We expressly reject, for reasons manifest in this opinion, Holle’s suggestion at oral argument that the proper time for him to object was upon the production of the money rather than upon the proof of it which preceded the proffer of the money itself.

THE JUDGMENT

The general verdict returned carried with it a conviction of both larceny of the money as charged in the first count and cne receiving of it as charged in the second count. These verdicts are inconsistent. Chief Judge Murphy said for this Court in Edwards v. State, 7 Md. App. 108, 114:

“A general verdict of guilty on two inconsistent counts is, of course, defective and the defendant has the right to require the trier of facts to specify on which of the counts he is guilty. The right may, however, be waived where, as here, the matter was not raised below or on appeal. See Fladung v. State, 4 Md. App. 664.”

The matter was so waived in the case subjudice.

Judgment affirmed; costs to be paid by appellant.

      . We note that the total stated cannot be reconciled with the State’s previous statements regarding the money. Nor is it explained how $564 could be marked and thereafter all except one bill in $712 showed the markings.

      . By Rule 522, § d 1, it is not necessary to state the grounds for objections to evidence unless requested by the court. But inherent in Rule 729 is that a motion to suppress or exclude evidence and an objection to its admission indicate that it is on the ground “that it was obtained by an unlawful search or seizure”, §§ b 1, b 2, c and e. Statement of the ground for the challenge is also necessary to comply with the procedure established to determine the validity of the search or seizure. See Cleveland v. State, 8 Md. App. 204, cert. denied, 257 Md. 732; Winebrenner v. State, 6 Md. App. 440.


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    GREYHOUND LINES, INC. v. RUBY ALDERSON et al.
    [No. 972,
    September Term, 1974.]

      Decided May 9, 1975.

      The cause was submitted on briefs to Morton, Moore and Lowe, JJ.
    Submitted by William H. Clarke and Matthew J. Kastantin for appellant.
    Submitted by Samuel Intrater for appellee, Ruby Alderson and by Albert D. Brault and Brault, Scott & Brault for other appellee.
   Morton, J.,

delivered the opinion of the Court.

This is an appeal by Greyhound Lines, Inc., from the refusal of the trial judge to grant its motion for a judgment n.o.v. after a jury in the Circuit Court for Prince George’s County (Couch, Jr., J., presiding) rendered a verdict in favor of Ruby Alderson and her husband who had sued to recover damages for personal injuries.

The case arose out of an accident involving a Greyhound Lines bus which resulted in the death of five passengers and serious bodily injuries to many other passengers. A number of suits for damages were brought against Greyhound Lines, Inc., Gerald T. Koehler, the driver of a pick-up truck, and against Ronald Williamson, the driver of a passenger car. It was stipulated by counsel for all parties, with the approval of the court, that the present case would serve as the vehicle to determine the liability, if any, of the respective defendants. All litigants agreed to abide by the jury’s determination of this issue and if liability were established against any or all of the defendants, the issue of damages to be recovered by the various plaintiffs would be tried in separate actions later.

After a four-day trial and before submitting the case to the jury, the trial judge granted defendant Williamson’s motion for a directed verdict and, pursuant to Maryland Rule 563, reserved ruling on the motions of Greyhound Lines, Inc., and Gerald T. Koehler for directed verdicts. The jury returned a verdict against Greyhound and Koehler on the issue of their liability to the plaintiffs for injuries received in the accident. The trial judge thereafter denied the motions for judgment n.o.v. filed by Greyhound and this appeal by Greyhound Lines, Inc., followed.

Williamson is not involved in the appeal and Koehler appears as an appellee.

Greyhound poses the following questions:

“1. Whether there was sufficient evidence of negligence on the part of the Appellant’s driver to submit the case to the jury.

2. Whether the Lower Court erred in denying Appellant’s Motion for Judgment Notwithstanding the Verdict.

3. Whether the Lower Court erred in admitting into evidence portions of the letter from the Appellant to its driver regarding his failure to comply with driving practices of the Appellant.”

The record indicates that about 6 p.m. on May 4, 1972, a Greyhound Lines bus was being operated by a company employee, Robert Newton, on a daily commuter run between Washington, D. C., and Waldorf, Charles County, Maryland. The bus was traveling south on Maryland Rt. 5, a dual highway separated by a grass median strip. As the bus approached the intersection of Rt. 5 and Beach Drive, in the general area of Marlow Heights, Prince George’s County, the driver moved the bus from the slow lane to the fast lane. A passenger car heading east on Beach Drive and driven by Ronald Williamson was stopped, facing a stop sign, awaiting entrance to Rt. 5. Facing Williamson across the southbound lanes of Rt. 5 was a pick-up truck in the median strip crossover, heading west, preparatory to entering Rt. 5, driven by Koehler.

James F. Donnellan, a passenger on the bus, testified that the highway was very wet and as the bus approached the intersection of Rt. 5 and Beach Drive, it was on a substantial downgrade. He stated that the bus was in the slow lane coming down the hill at about 50 miles per hour and then changed to the fast lane. According to this witness, as the bus approached the intersection, he observed a pick-up truck 40 or 50 yards away in a stationary position in the median crossover. He stated that as the bus was changing from the slow to the fast lane, he observed the pick-up truck start up and enter the fast lane of the highway and attempt to accelerate while remaining in the fast lane. As the bus got to the intersection, the driver applied the brakes and the rear end of the bus began to slide sideways and spin out of control. It then caromed off into a ditch and overturned.

The witness recalled that sometime prior to the accident the driver had applied the brakes of the bus after passing the intersection of Southern Avenue and the bus “skidded over and hit the curb right there.”

The driver of the bus testified that as he was half way down the hill approaching the intersection at a speed of 30 miles per hour, he observed the Williamson car on Beach Drive partially on the shoulder of the highway. Because he feared the driver might proceed on to the shoulder and head south in front of him on Rt. 5, he decided to change lanes. After the bus was substantially in the fast lane, the pick-up truck pulled out of the median crossing and headed south in the fast lane of Rt. 5. At that point, according to the bus driver, the truck was two bus lengths ahead of the bus and this was the first time he had observed the truck. He then applied his brakes and pulled back into the right lane to avoid hitting the truck and ended up turning over into a ditch.

Gerald T. Koehler, the driver of the truck, testified that he was driving a 1968 Chevrolet pick-up truck and just prior to the accident was stopped at the stop sign controlling traffic on Beach Drive, facing west, preparing to enter the southbound lane of Rt. 5. As he looked north, he saw what he believed could have been a bus approximately 200 yards away in the right, or slow, lane. He then drove the truck into the fast lane and proceeded south in that lane at approximately 20 or 30 miles per hour. According to him, he accelerated his truck as fast as possible and purposely stayed in the fast lane to avoid being hit by the bus, which he apparently assumed would stay in the right lane.

Ronald Williamson testified that he was seated in his passenger car, facing east, on Beach Drive awaiting entrance to Rt. 5 when he observed the bus, traveling south on Rt. 5 at a speed of 40 to 45 miles per hour, move from the right-hand lane to the left-hand lane and at the same time he observed the truck pull into the left-hand lane of Rt. 5. It was his opinion that had the bus not applied the brakes and endeavored to swing back to the right-hand lane, the bus would have collided with the truck.

A number of other passengers testified at the trial below, but a summary of their testimony is not necessary to this opinion.

An expert testified that he examined the tires of the bus shortly after the accident and found their condition to be “almost new, if not new.”

There was offered into evidence, over appellant’s objection, a letter from Greyhound Lines, Inc., to the driver of the bus, which read in part:

“On the above date while operating schedule and at location noted you became involved in a serious accident wherein your bus ran off road and turned over resulting in five fatalities and serious injuries to passengers and causing severe damage to bus. Investigation of this accident has revealed that you failed to exercise required defensive and professional driving practices required of a Greyhound driver.”

The trial judge admitted into evidence the excerpt from the letter on the basis that it constituted an admission by the appellant which was relevant to the issue of the bus driver’s negligence. We cannot agree, as appellant argues, that this was error.

In IV Wigmore, Evidence § 1048 (Chadbourn rev. 1972), it is stated: “The statements made out of court by a party-opponent are universally deemed admissible, when offered against him.” This generalization is later qualified with the proviso that the out-of-court statement by the party-opponent must exhibit “the quality of inconsistency with the facts now asserted by him in pleadings or in [his] testimony.” That the position taken by Greyhound in its letter to the bus driver is inconsistent with its position at the trial below where it asserted “that there was no evidence of negligence on the part of its driver” is self-evident. We think it is entirely clear that the statements in the letter were material and relevant for they tended to prove the very fact at issue — the negligence of the bus driver — which appellant now disputes.

In Brumage v. Blubaugh, 204 Md. 144, one of two drivers involved in a collision advised the other, at 147: “He would see that it was fixed — told me to get it fixed, and he would see that it was paid for.” Later, the same driver who had made the gratuitous statement sued for property damage to his automobile. The statement was held to be admissible as an implied admission of fault, affecting the weight of the party-opponent’s cause of action. See also Gordon v. Opalecky, 152 Md. 536.

We cannot agree with the appellant’s contention “that the letter in question cannot be construed as an admission since it merely states the company’s opinion that their driver failed to exercise some unknown, unspecified ‘defensive and professional driving practices’ which were never introduced into evidence.” The company arrived at the conclusion expressed in the letter after “[i]nvestigation of this accident” and while it may not be an expressed admission of the bus driver’s negligence, it is certainly relevant to that issue.

In 31A C.J.S., Evidence § 277, it is stated:

“It is not necessary that the statement should be a direct admission; it may be an indirect admission, as where it bears on the issue incidentally or circumstantially. [Footnote omitted.]

And further, in Simmons v. Haas, 56 Md. 153, the Court of Appeals held simply, at 161:

“Letters of the adverse party are admitted in evidence against those writing them, as admissions against their interest, under the condition that they refer to the matter in controversy, and the whole admission is to be taken together.”

We think the excerpt from the letter was properly admitted into evidence and the weight to be accorded its contents was a matter for the jury.

In assessing the soundness of appellant’s contention that the trial judge erred in denying the motion for judgment n.o.v., because there was insufficient evidence of negligence to support the jury’s verdict, we start with the proposition that the truth of all credible evidence on the issue of the bus driver’s negligence and all inferences fairly deducible therefrom must be examined and considered in the light most favorable to the appellees. “ ‘If there is any competent evidence, however slight, leading to support the plaintiff’s right to recover, the case should be submitted to the jury,’ and a motion for judgment n.o.v. denied. Belleson v. Klohr, 257 Md. 642, 646.” Miller v. Michalek, 13 Md. App. 16, 18. Judged by these standards, we think the trial judge properly submitted the case to the jury and properly denied appellant’s motion for judgment n.o.v.

There is the testimony of the passenger, Donnellan, who testified that the pick-up. truck was some 40 or 50 yards from the bus when it pulled into the fast lane from the median crossing. The colloquy between counsel and the witness bears repeating:

“[Mr. Intrater, Counsel for appellees Alderson, et al.] Q. During that period of time after the truck straightened out what did the driver of the bus do? [Witness Donnellan] A. Nothing.
Q. When you first saw that truck pull out onto the highway and start moving south did the bus driver at that time in any way start to slow the bus?
A. No, sir.
Q. Did the bus driver at that time in any way honk his horn?
A. No, sir.
Q. Did the bus driver do anything when you first saw that truck pull out onto the highway, either to slow the vehicle, give warning or do anything else to avoid coming up rapidly on that truck?
A. No, sir.
Q. So then the bus continued at the same rate of speed down the road, is that correct?
A. Yes, sir.”

Donnellan further testified that he was a driver of 15 years experience and that “when we were way up the road I saw him [Koehler] making his move. I, of course, wasn’t alarmed at all. I saw him getting out into that left-hand lane. I said, ‘Now, gee, he’s just going to stay in that left-hand lane!’ ”

Substantially all of the witnesses described the condition of the highway as “wet” and there was the testimony of Donnellan that the bus had earlier skidded against the curb when the driver applied the brakes.

There was Koehler’s testimony that the bus was at a distance of 200 yards from the intersection when he entered the fast lane of Rt. 5 and since the bus was in the slow lane at the time he saw it, Koehler stayed in the fast lane, assuming the bus would continue in the slow lane.

There was the bus driver’s testimony that half way down the hill he observed the Williamson passenger car at the intersection but did not see the pick-up truck until it was two bus lengths ahead of him.

There was the testimony of Richard L. Davis whose car was stopped at the intersection just to the rear of the Williamson car. Davis, an experienced bus and truck driver, saw the wheels of the bus “locked” as it went into the skid or spin and he explained:

“Well, on wet surfaces when you hit air brakes, especially with a panic brake, you really don’t have to panic with a wet surface. But with a wet surface when you hit those brakes, those air brakes are so great that they will stop a wheel immediately and they will not turn at all, they will just continue to slide there. There is no control over the vehicle whatsoever.”

Finally, there was the letter from Greyhound Lines, Inc., to its driver admonishing him that the company’s “[i]nvestigation of this accident has revealed that you failed to exercise required defensive and professional driving practices required of a Greyhound driver.”

In concluding that a broad overview of the totality of the evidence adduced below warranted submitting the issue of Greyhound’s negligence to the jury, we, of course, recognize that the bus was proceeding upon a boulevard and, thus, Greyhound, as the owner and operator of the favored vehicle, was entitled to all the benefits that flow from Maryland’s rigorous “boulevard rule.” Code, Art. 661/2 § 11-403; Hensel v. Beckward, 273 Md. 426. In Hensel the Court of Appeals reaffirmed, in no uncertain terms, the views it had expressed in Creaser v. Owens, 267. Md. 238, 245, when it said, at 429:

“In order to make crystal clear our holding here, we emphasize that if an unfavored driver is involved in an accident with a favored vehicle under circumstances where the boulevard law is applicable tljen in a suit based on that collision the unfavored driver is deemed to be .negligent as a matter of law. And, if the unfavored driver is a plaintiff, his suit is defeated unless the doctrine of last clear chance rescues his claim. * * * Whereas, if the unfavored driver is a defendant he is liable except in the rare case when the issue of contributory negligence on the part of the favored driver is properly submitted to a jury, ie., whether he was guilty of negligence that was a proximate cause of the accident.” [Citations omitted.]

The Court of Appeals in Hensel and Creaser spoke in terms of a suit between an unfavored driver and the favored driver. Here, however, the suit is not between the favored and unfavored drivers but is between Greyhound Lines, Inc., a common carrier, and its paying passengers. While many aspects of the “boulevard rule” may come into play in assessing the overall negligence of Greyhound, we think the law is clear that because of its status as a common carrier, Greyhound cannot resort to the boulevard rule, under the circumstances here, as a shield to protect it from the high standards of care owed to its passengers. “A bus driver owes passengers the duty to exercise the highest degree of care consistent with the nature of his undertaking.” Miller v. Mass Transit Adm., 18 Md. App. 220, 222.

In Sun Cab Co., Inc. v. Hall, 199 Md. 461, a taxicab was proceeding on a boulevard in Baltimore City.. One of the passengers obtained a judgment against the cab company for damages for personal injuries resulting from a collision at an intersection. The company then appealed from a denial of its motion for judgment n.o.v. Although the evidence showed that the taxi was not proceeding at an excessive rate of speed, there was testimony, at 464, on behalf of the injured passenger that as the favored taxi approached the junction of the other street, the driver was “talking to the man sitting across the seat.” It also appeared that the driver, on turning his head forward just before the accident, made a futile attempt to avoid the other automobile. We think that case presented an enlightening exposition of the problem presented here: a passenger in a favored “common carrier” vehicle pursuing a cause of action against its owner and driver. It was stated, at 467:

“Boulevards are posted for the purpose of accelerating traffic, but they are not constituted speedways for reckless drivers who do not watch what is going on. It is true that the driver on a boulevard is not obliged to anticipate that someone will negligently come into his path, but he is not excused from liability to his passengers if someone does come in, and he fails to avoid a collision because he did not look in time to see what was inevitable. There is testimony in the case before us, as we have said, which would permit the jury to find that had the cab driver been looking, he could have seen the other car entering the intersection, and he could have seen this when he was far enough away to have avoided the accident, unlike the O’Donovan case [Baltimore Transit Co. v. O’Donovan, 197 Md. 274], where there was no such evidence. We do not alter or change or destroy the effect of our previous decisions on the boulevard law when we hold that there was sufficient evidence in this case of the negligence of the cab driver to go to the jury.”

Appellant places great reliance upon Thompson v. Terry, 245 Md. 480. There, a judgment against the operator of a taxicab, Terry, obtained by his passenger, Thompson, was set aside on a motion for judgment n.o.v. and the Court of Appeals affirmed the action of the trial court. The evidence there, however, demonstrated that an unfavored driver, Conway, came heedlessly through a red light and collided with the taxicab. The cab driver had no opportunity to avoid the collision and the court found that there was no evidence that the cab driver did not carry out his duty to the passenger to exercise “the highest degree of care.”

The Court in Thompson v. Terry, supra, went on to say, at 487: “Insofar as Terry’s duty to Conway was concerned, this Court has not imposed upon a taxicab any greater duty of care as a favored vehicle in a boulevard case than an ordinary vehicle.” [Emphasis supplied.] Conway, of course, was the driver of the unfavored vehicle, not the passenger in the taxicab.

In Yellow Cab Co. v. Bonds, 245 Md. 86, a passenger in a taxicab obtained a judgment against the cab driver who, while on a favored highway, ran into the back of a car in front of him when that car was forced to stop in order to avoid colliding with another car which had failed to stop at a stop sign and improperly continued on to the favored highway. On appeal from the judgment, the cab company contended that the negligence of the intruding automobile was the sole proximate cause of the accident. In affirming the action of the trial court denying the cab company’s motion for judgment n.o.v., the Court stated, at 90-91:

“That there can be more than one proximate cause of an accident is clearly established. While the negligence of the cabdriver must have been a proximate cause in order to warrant recovery by the passenger, it did not necessarily have to be the sole proximate cause of the accident. The negligence of the operator of the intruding automobile did not excuse the cab owner and driver from liability for damages. It was enough that the negligence of the cabdriver, in concurrence with that of the other motorist, proximately caused or contributed to the injuries the passenger sustained.”

There was evidence to show, according to the court’s recapitulation, at 90, “that the cabdriver was following too closely behind the automobile in front of him, that he failed to pay attention to traffic conditions ahead of him and that his negligence in each respect contributed to the happening of the accident.” The Court went on to say at 91:

“The argument of the appellants [cab company and driver] is that the boulevard law relieved them from liability because the operator of the cab was the favored driver, but this fact did not relieve the cabdriver of the obligation to use due care under the circumstances of this case. * * * Nor did the fact that a concurrent tort-feasor violated the boulevard law affect the claim of the appellee [passenger] against the appellants.” [Citations omitted.]

While it may well be that the action of Koehler in driving his pick-up truck from the median crossing on to Rt. 5 was an act of negligence contributing to the accident, we do not believe that the jury below, on the state of the evidence before it, was compelled to find that Koehler’s action was necessarily the sole proximate cause of the accident.

The evidence was such that the jury could conclude that the inattentiveness of the bus driver to the hazards of the road condition and the dangers presented ahead by the cars preparing to enter or entering the highway, or the driver’s failure to operate the brakes in a safe and reasonable manner, especially in view of the characteristics of the braking system of the bus, in combination or singly, amounted to a general failure to operate the bus with that high degree of care which the driver owed his passengers.

Otherwise stated, we think there was sufficient, competent evidence of Greyhound’s negligence to support the plaintiffs’ right to recover and, accordingly, the issue was properly submitted to the jury. The trial judge did not err in denying the appellant’s motion for judgment n.o.v.

Judgment affirmed; costs to be paid by appellant.

      . Oral arguments of the parties to this appeal were heard by this Court on September 27, 1974. Thereafter, we dismissed the appeal as premature under the provisions of Maryland Rule 605 a. See Greyhound Lines, Inc. v. Alderson, et al., 23 Md. App. 224. The trial judge^ then entered an order pursuant to Maryland Rule 605 a “that there is no just reason for delay in the entry of judgment absolute on the claims of the plaintiffs, Ruby and Kenneth Alderson, that the defendants, Greyhound Lines, Inc., and Gerald T. Koehler are liable to them for damages.” A new order of appeal was thereafter filed which we now consider to be properly before us.


author: Moore, J.,

text:
    THOMAS J. McCARGO and BERNIE C. HUNTER v. STATE OF MARYLAND
    [No. 645,
    September Term, 1974.]

      Decided May 27, 1975.

    The cause was submitted on briefs to Orth, C. J., and Menchine and Moore, JJ.
    Submitted by Gary Huddles, Assigned Public Defender, for appellants.
    Submitted by Francis B. Burch, Attorney General, Albert Gallatin Warfield, III, Assistant Attorney General, Milton

      B. Allen, State’s Attorney for Baltimore City and William Giuffre, Assistant State’s Attorney for Baltimore City, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellants, Thomas J. McCargo and Bernie C. Hunter, pleaded not guilty to an eight-count indictment and were tried jointly in a bench trial in the Criminal Court of Baltimore, the Honorable Albert L. Sklar presiding. McCargo was found guilty of robbery with a dangerous and deadly weapon and use of a handgun in the commission of a crime of violence for which he was sentenced to a total of 17 years. Hunter was found guilty only on the first count of robbery with a dangerous and deadly weapon for which he received a 12-year sentence.

The appeal is based on three contentions, namely that (1) the court erred in refusing to grant a mistrial because the defendant McCargo was at one point brought into the courtroom in handcuffs and because there was a newspaper article, over the weekend recess, referring to this defendant’s bail having been revoked; (2) an improper foundation was laid for the admission of certain Department of Motor Vehicles’ records; and (3) there was insufficient evidence to sustain a guilty verdict.

There was evidence produced by the State from which the trier of fact could determine that on July 3,1973, Mrs. Helen Bush, a school teacher in the Baltimore City School System, was walking east on Boyd Street at about 1:30 p.m., having just cashed her paycheck for $347, of which she had $272 in cash and the balance in money orders. A yellow car slowed down beside her. A man got out and went towards her with a silver gun in his right hand. Mrs. Bush attempted to flee but her attacker grabbed her from behind, knocking her down on the sidewalk and ran off with her purse, containing the $272 cash. The victim got up, followed the car, and was able to discern the license number which she repeated aloud to herself until she could write it down on a slip of paper. She clearly described the clothing worn by the gun-wielding assailant — orange pink shirt, shiny material, dark blue pants, new tennis shoes, with a purple ornament in his Afro-style hair — as well as the brilliant red shirt worn by the driver of the car, the door having remained wide open during the occurrence.

The police responded to the scene and canvassed the area with Mrs. Bush to find the “yellow” car with Maryland tags ND 7324, the number she had seen and copied. The car was soon spotted and Mrs. Bush identified the driver and passenger as her assailants not only because they were wearing the identical clothing but also because she had “looked very hard at their faces while I was standing there.” The two subjects were arrested and a total of $247 cash was recovered from them, which the police subsequently returned to the victim.

Appellants’ first argument is based on the trial court’s denial of two motions for mistrial based on related matters. The first motion was made by defense counsel on March 15 when appellant McCargo returned to the courtroom handcuffed after he had apparently been taken, at the State’s request, to another courtroom during an hour and a half recess of the principal trial. Although the trial court was not aware of the defendant’s restrained condition until defense counsel brought it to his attention, a mistrial based on a violation of the defendant’s “presumed innocence” was denied for the following reason:

“[T]his is a Court trial. And this Court hears the testimony as one who understands the distinction between what is evidence in this case, and what is not evidence in this case.”

When the trial reconvened, after the weekend recess, on March 18, defense counsel renewed the motion for a mistrial based on the aforementioned ground and upon the additional ground that an article had appeared in the Baltimore (Morning) Sun over the weekend concerning a bail revocation affecting McCargo. The trial court immediately interjected that:

“7 did not read that article that you are going to make reference to. I saw headlines, which said, ‘Bail revoked.’ I thought it might have something to do with Mr. McCargo and deliberately did not therefore read the body of the news article. So, I still do not know exactly why or what happened in that regard.” (Emphasis added.)

Appellant’s attorney again urged a mistrial based on improper and prejudicial inferences the trial court could have made by combining the factors of McCargo’s return to court, on March 15, handcuffed, and the subsequent newspaper headline to the effect, “Bail revoked.” The court again denied the motion, stressing the difference between a court and jury trial and its ability to “discern the difference between what is good evidence, proper evidence attesting to the defendants’ guilt in the course of a trial” and what is not. The trial court did not know the explanation for McCargo’s being handcuffed which, it noted, could have been for various reasons; and the court, quite properly and advisedly, refused to hear from defense counsel concerning the details of the other proceeding. Furthermore, the court’s statement on the record that he had deliberately refrained from reading the newspaper article forecloses that issue.

We find only a proper use of discretion in the denial of these motions by the trial judge. Johnson v. State, 18 Md. App. 571 (1973).

The appellants’ second contention is that the trial court erred because certain records of the Department of Motor Vehicles were received in evidence without “proper foundation and certification.” First, the argument is made that a subpoena duces tecum personally served on an employee of the State Motor Vehicle Administration by the Assistant State’s Attorney, the prosecutor in this case, was not properly issued.

The Motor Vehicle Administration employee was personally served with the subpoena by the Assistant State’s Attorney when he delivered the records to the latter’s office. Since duces tecum may be part of a summons to a witness, Maryland Rule 115 a, and a summons for a witness may be issued “without an order of court by a competent private person over 21 years of age, including an attorney of record,” Maryland Rule 116, the subpoena was properly issued in this manner to Mr. Orndoff. Maryland Rule 116 c 3, providing that failure to make proof of execution shall not affect the validity of execution, is a sufficient answer to appellants’ complaint that no copy or return was filed.

Appellants’ other claims of irregularity are substantially answered by Art. 66V2 § 2-311.1 (b), Vehicle Laws, Maryland Code:

“Whenever any subpoena duces tecum is issued to the Commissioner or any official of the Department for the production in any proceeding in court of a copy or photostat of the . . . records . . of the Department, it shall not be necessary for the Commissioner or official of the Department to whom the subpoena is issued or for any employee of the Department to appear personally; and a copy or photostat duly certified of the . . . records . . . shall be full compliance with the subpoena.” (Emphasis added.)

Mr. Orndoff, as a field agent who delivers subpoenaed records, was an “official of the Department” to whom the subpoena duces tecum was issued. He did not therefore have to establish his own familiarity with the registration records or a chain of custody since there is no requirement that the subpoenaed official or employee appear personally and a copy or photostat duly certified is “full compliance.” Nevertheless, the trial court asked the witness a series of questions concerning the procedure that is followed when a request is made to ascertain the identity of the registered owner of a motor vehicle. The responses disclosed that the “usual practice” was followed in the instant case, including the making and certification of the photostat. The record copy was properly admitted into evidence.

The third issue raised on appellants’ behalf goes to the sufficiency of the evidence to sustain the verdicts of guilty. On our independent review of the trial record, we find that the evidence, heretofore summarized, showed directly or supported a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of appellants’ guilt of the offenses charged. Williams and McClelland v. State, 5 Md. App. 450 (1968).

The trial court’s findings, amply supported, were as follows:

“The Court was very impressed with the testimony of Mrs. Bush, who had the opportunity and clarity of vision to identify both defendants participating in this crime.”
“Mrs. Bush also testified that she ran after the car as it drove away. And she was able to get the license number ND 7324. She also described the car as cream or yellow with a black top.
“Her testimony is corroborated by the testimony of Mr. Donald Brown, an employee of the C and P Telephone Company, who said that at about 1:30 p.m. he was in the 800 block of Boyd Street which is the same alley between Parkton and Freemont Avenues. Mr. Brown described the car as a yellow car with a black top, two-door Ford, going east. The car, with two passengers, was only about two feet from him. And he was able to see the license tag also.
“Officer James Wiley responded to the scene as a result of a police radio call at 1:34 P.M. And after receiving certain information from Mrs. Bush, and then the Commissioner of Motor Vehicles, went to the area of the 1400 block of North Fulton Avenue. At that time, stopped for a stop sign, he saw both defendants in a yellow and black 1969 Ford automobile with that same license number ND 7324. There was this purple ornament in Mr. McCargo’s' hair, which was his purple comb, which had been admitted into evidence as State’s Exhibit Number 2.”

With respect to appellant Hunter’s criminal agency, we observe that Mrs. Bush specifically identified Mr. Hunter as the driver of the car who “looked at her” while the crime was in progress and who effectuated the getaway. Although she testified that Mr. McCargo held the pistol, the participation of appellant Hunter, above described, was that of a principal to the crime of robbery with a dangerous and deadly weapon.

We find no basis for appellants’ claims that their convictions should be set aside. Maryland Rule 1086.

Judgments affirmed.

      . This quotation is from Rule 116 prior to the July 1974 amendment.


author: Orth, C. J.,

text:
    LIBERTY MUTUAL INSURANCE COMPANY v. JAMES JOHN CRADDOCK et al.
    [No. 452,
    September Term, 1974.]

      Decided May 28, 1975.

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

      Sidney G. Leech, with whom were Semmes, Bowen & Semmes on the brief, for appellant, cross-appellee Liberty Mutual Insurance Company.

      E. B. Hams, Jr., with whom were Hardwick, Trípoda & Harris and David D. Patton on the brief, for cross-appellants and appellees, James John Craddock and John Wiley.

      John L. Moving, Jr., with whom were Goff & Moving on the brief, for appellees Lemasters.
   Orth, C. J.,

delivered the opinion of the Court.

We are called upon to ascertain whether the Superior Court of Baltimore City erred in its determination of two issues presented to it by a declaratory judgment action. The action arose from an accident which occurred on 5 December 1969 at the intersection of Fayette and Bond Streets in Baltimore City. The facts as adduced at trial by stipulation, testimony and documentary exhibits were not in substantial dispute. Two motor vehicles were involved. One of them was owned by either James John Craddock or John Wiley and driven by either Craddock or Wiley. In any event, both Craddock and Wiley were “uninsured motorists” within the meaning of Maryland law. The other vehicle was a 1963 Volkswagen Karmann Ghia owned by Wilbur Lemasters and Kathryn Lemasters, his wife, and driven by their son, John Jay Lemasters. John’s wife, Linda Dale, was a passenger therein. A suit in tort was instituted in the Superior Court of Baltimore City, Docket 1970, folio 227, no. 121991, in which John and Linda claimed damages suffered by the negligence of Craddock and Wiley. Although the record before us does not expressly so show, in the light of the acts of the parties, certain assumptions may be fairly drawn. John and Linda thought that they were the innocent victims of the negligence of Craddock and Wiley, who were financially irresponsible. They believed that they were qualified persons, under the Unsatisfied Claim and Judgment Fund Law, and that they had suffered injury to their persons and damage to their property under circumstances which entitled them to indemnification from the Unsatisfied Claim and Judgment Fund. Therefore, they gave notice to the Unsatisfied Claim and Judgment Fund Board of their intention to file a claim and supplied the necessary information. We can only conclude that the Board assigned the claim for investigation and defense to an insurer and that insurer selected an attorney to represent Craddock and an attorney to represent Wiley as financially irresponsible tort feasors and to defend the Fund. Code, Art. 661/2, §§ 150-179 (1967 Repl. Vol.). See Allied American Co. v. Commissioner, 219 Md. 607.

The automobile driven by John was a vehicle named in a liability insurance contract issued by Liberty Mutual Insurance Company (Liberty) to Kathryn and Wilbur Lemasters for the period 20 August 1969 to 20 August 1970. John was covered by the contract as a permitted user of the vehicle. The contract included a clause entitled “Protection Against Uninsured Motorists Coverage” which was subject to “Special State Provisions.” There was a special provision for Maryland.

On 3 October 1972 Craddock and Wiley filed a petition in the Superior Court of Baltimore City for declaratory judgment, naming as defendants, Wilbur Lemasters, John Jay Lemasters, Linda Dale Lemasters, the Unsatisfied Claim and Judgment Fund Board, and Liberty Mutual Insurance Company. It sought, and was granted by order of 3 October 1972, a stay of the tort suit until the declaratory judgment action was heard and determined. Ultimately two issues were presented by the declaratory action:

I “Are John and Linda ‘qualified persons’ entitled to seek compensation under the Unsatisfied Claim and Judgment Fund Law?”
II “Does the ‘uninsured motorist’ clause of the policy issued by Liberty Mutual Insurance Company on the automobile operated by John on December 5, 1969 extend coverage to John and Linda?”

The declaratory judgment action was heard without a jury on 9 April 1974. The Court issued an order on 23 May which included a memorandum opinion. It answered both issues in the affirmative, that is that John and Linda were “qualified persons” entitled to compensation under the Unsatisfied Claim and Judgment Fund Law and that the uninsured motorist clause of the Liberty policy was applicable to them. On 29 May 1974 judgment absolute was entered against Liberty for costs. Liberty appealed, claiming that the trial court erred in its ruling on issue II. Craddock and Wiley also appealed, claiming that the court erred in its ruling on issue I.

I

‘Qualified person’ means a resident of this State or the owner of a motor vehicle registered in this State or a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded to residents of this State, of substantially similar character to that provided for by this subtitle. . . .” Code, Art. 66* A, § 150 (g) (1967 Repl. Vol.); Art. 66V2, § 7-602 (g) (1970 Repl. Vol.); Art. 48A, § 243L (e) (1974 Cum. Supp.).

It is agreed that under the factual posture of this case John and Linda are “qualified persons” only if they were residents of Maryland at the time of the accident. “Resident” within the contemplation of the Unsatisfied Claim and Judgment Fund Law is the equivalent of “domiciliary”. Maddy v. Jones, 230 Md. 172, 179. Thus, issue I is to be resolved upon a determination whether John and Linda were domiciled in Maryland on 5 December 1969. In the recent opinion of Bainum v. Kalen, 272 Md. 490, 497, the Court of Appeals discussed the meaning of domicile and how domiciliary status is determined:

“A person may have several places of abode or dwelling but ‘[h]e can have only one domicile at a time.’ Shenton v. Abbott, [178 Md. 526] at 530. A person’s domicile has been defined as the place ‘with which he has a settled connection for legal purposes’ and the ‘place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning.’ Shenton v. Abbott, supra, 178 Md. at 530. The controlling factor in determining a person’s domicile is his intent. One’s domicile, generally, is that place where he intends it to be. Harrison v. Harrison [117 Md. 607] at 614. Wagner v. Scurlock [166 Md. 284] at 292; Gallagher v. Bd. of Elections, [219 Md. 192] at 198. However, the determination of intent is not dependent upon what one says at a particular time. As this Court has stated, intent regarding domicile ‘may be more satisfactorily shown by what is done than by what is said.’ Wagner v. Scurlock, supra, 166 Md. at 292; Harrison v. Harrison, supra, 117 Md. at 614.”

In Shenton the Court further clarified the concept of intention: “Of course, if a person has actually moved to a new abode, with the intention of remaining there for an indefinite time, and establishing it as a place of fixed present domicile, that place is deemed to be his domicile, notwithstanding he may entertain a floating intention to return to his former domicile at some future time.” 178 Md. at 532-533. In earlier cases, the Court recognized that domicile could be established by showing that a person moved to a new home with a present intention of remaining there indefinitely or for an unlimited time. Shaeffer v. Gilbert, 73 Md. 66, 70 (“the place where one intends to reside permanently or for an indefinite or unlimited period of time. . .. ,”); Brafman v. Brafman, 144 Md. 413, 414 (“a residence at a particular place accompanied by positive or presumptive proof of the intention to remain there for an unlimited time. . . .”). For recent reiterations of this concept see Smith v. Smith, 254 Md. 31, 35 and Bainum, supra, at 498. A person retains a domicile once established until he acquires a new one. Hall, Adm. v. Morris, 213 Md. 396, 404. The first domicile a legitimate child acquires is a “domicile of origin” which is the domicile of the father at the time of the child’s birth. 1 J. Beale, Conflict of Laws § 14.1 (1935); Restatement (Second) of Conflicts § 14 (1971). During minority, or until the minor becomes emancipated, the child’s domicile ordinarily remains that of his father. Sudler v. Sudler, 121 Md. 46, 50; Beale, supra, § 30.1; Restatement, supra, § 22. Once a person attains majority or is emancipated, he may establish a new domicile separate from his parents. Restatement, supra, § 22, comment f. This new domicile, or any domicile subsequently acquired, is classified as a “domicile of choice.” Beale, supra, § 15.2. As the legal domicile of a wife is that of her husband, Rumbel v. Schueler, 236 Md. 25, 27, the question is where was John domiciled on the date of the accident.

As we have indicated, “It is a fundamental rule that, in order to effect a change of domicile, there must be an actual removal to another habitation, coupled with an intention of remaining there permanently or at least for an unlimited time.” Shenton, supra, at 530. Therefore, assuming that an individual has the capacity to do so, there are two requisites for a valid change of domicile, namely, an act and an intent. Harrison, supra, at 613. As shall be seen, the first requisite was satisfied by John and Linda actually moving to Baltimore. “The only question for consideration, therefore, is as to the intent of the parties.” Id. The determination of intention with regard to the acquisition of a domicile of choice is a question of fact, Beale, supra, § 15.1, Gallagher, supra, at 198, depending upon the circumstances of each case. Shenton, supra, at 533. Because the intention here is a question of fact, and because the trier of fact in the instant case was the trial judge, the “clearly erroneous” rule applies. Maryland Rule 1086.

Evidence adduced showed that John’s domicile of origin was Ohio. In 1965, however, his family established a permanent home in Pennsylvania. John entered Yale that year. He was 18 years of age. It appears that he went to New Haven only for educational purposes and considered Pennsylvania his home. He returned home for summer vacation after his first and second years of college, but at the end of his third year remained at Yale because he was employed there. He returned home for Easter and Christmas vacations. See Restatement, supra, § 18, comment f, example 13. A room was maintained for him in his parents’ home. His domicile remained that of his father. Beale, supra, § 22.8; 25 Am.Jur.2d, Domicil § 43; Bainum, supra, at 500. When John was graduated from Yale in 1969 significant changes took place. He was married to Linda and moved to Baltimore to enter the Johns Hopkins University School of Medicine. The question is whether he abandoned his parents’ home and acquired a new domicile of choice in Maryland.

John was 26 years of age at the time of the trial on 10 October 1973. He then lived at 6509 Copper Ridge Road, Apartment 22, Baltimore, Maryland. He was to receive a medical degree in June 1974. He and Linda drove to Baltimore on 9 September 1969. His statement of what he intended at that time was clear. They were going to set up housekeeping in Baltimore as a married couple and remain indefinitely. “[I]t was my intent and my wife’s intent that we were going to Maryland and we were going to set up a household there, and we were going to live there twelve months a year . . . indefinitely.” His intention was iterated on further examination.

“My intention was to come here and live, as I said, an indefinite period of time. My intention was to come here and set up a household to live with my wife as my family, to live here in Maryland. And I was to live here twelve months out of the year, and it would have been essentially indefinitely.”

It was reiterated in answer to a question about the medical school:

“My intention was to go through the program, a medical degree at Johns Hopkins, and also to live in Baltimore twelve months a year.”

At that point he did not know whether he would eventually practice medicine in Maryland or Pennsylvania “or Chicago or anyplace. . . .” John’s intention in moving to Baltimore was corroborated in detail by Linda during the extensive examination of her. She said her personal intention was to make her home with her husband. The move “was quite permanent as far as we knew it.” She declared categorically in reply to a question whether she and her husband had an intention to return to Pennsylvania: “We had none whatsoever. None of us had any intention of returning to live there.” Asked later by the court why she was so positive about there being no intention to go back to Pennsylvania, she explained: “Certainly not to the vicinity of our parents. There was nothing for us: no major hospital in that area. We had no intention of going back.” The court persisted: “To live in the house with your parents?” She answered: “Or live in Pennsylvania. There was never any discussion of that with either of us.” John spoke of the understanding of his parents with respect to the permanency of his move. It was understood “[t]hat I was out of the house. That I was living in Maryland, I mean, I was out of the house, if you would like that expression. I was no longer living at home, for all intents and purposes; when I came home I visited my parents at their home, and I would, you know, sleep in the guest bedroom with my wife.”

The intention as expressed by John and Linda was substantiated by their actions. When they moved to Baltimore they stopped by the home of John’s parents to pick up his belongings. “I sort of cleaned out my bedroom at home and took the dresser and the chair and the desk, and some pictures off the wall, and my room became my sister’s room . . . [I]t was repainted and set up for my younger sister who had not had her own prior to this. She was in high school, and this permitted her to have her own room, and she was quite pleased.” Linda said of John’s former room: “That is now his sister’s room. The wallpaper, drapes have been changed, and everything. It is a girl’s room now. John no longer has the room now.”

When John and Linda moved to Baltimore in 1969 they lived in an apartment at 550 N. Broadway, executing a lease running for 10 months from 1 September 1969. At the expiration of that lease they executed another lease for 12 months for a different apartment in the same apartment house. The following year they moved to 4400 Mannasota Manor and ultimately to 6509 Copper Ridge Drive. Shortly after they moved to Baltimore they opened a checking account at thé Maryland National Bank. A bank statement as of 13 November 1969 showed their address to be 550 N. Broadway. A bill for delivery of the Sunpapers for the period September to October 1969 bore the same address, as did a residence telephone bill dated 5 October 1969. A United States income tax return for the year 1969 was filed by them in April 1970 designating 550 N. Broadway as their address. Maryland income tax returns were filed in 1971, 1972 and 1973. The returns were filed under the address in Maryland at which they were then living. They registered to vote in Maryland in the election of November 1970. He indicated that he had not registered to vote in any state prior to that. Voting registration records of the Board of Election Supervisors of Baltimore City pertaining to John and Linda were received in evidence. They showed that each registered to vote on 5 October 1970. Their address was 550 N. Broadway.

The judge below made the following factual determinations:

“A review of the evidence reveals certain facts: John and Linda set up a home as husband and wife for the first time in Baltimore; they opened a bank account in Baltimore, paid taxes in Maryland, were extended credit in Baltimore, and registered to vote in Maryland (subsequent to December).”

He elaborated on his finding of requisite intention in order to satisfy the demands of the Court of Appeals that “in order to establish a change of domicile, it must be shown not only that a new residence was acquired with the intention of remaining . there, but also an abandonment of the old domicile so permanent as to exclude the existence of an intention to return to the former place.” Shenton, supra, at 534. The trial judge explained:

“Facts which indicate an intention not to return are their declarations that they had so abandoned Pennsylvania domiciliary status, the removal of all of John’s possessions from his parents’ home and the transportation of same to Baltimore via rented vehicle, the fact that John’s mother remodeled his room for John’s sister following his departure, and the statement by John and his mother that John and Linda are guests upon their return visits to his parents’ home. The Court finds, therefore, that there is sufficient evidence in the record to conclude that John and Linda did in fact possess both the intent to remain in Baltimore (animus manendi) and the permanent intention to abandon their old domicile (animus non revertendi) if, indeed, they ever had any domicile in Pennsylvania as man and wife.”

We must determine whether the judge below was clearly wrong when he found that “[t]hese facts clearly demonstrate an intent to establish Baltimore as their new domicile.” In making this determination we view the evidence in a light most favorable to John and Linda as the prevailing parties below. If there is substantial evidence to support the factual conclusions reached by the trial court, its judgments on the evidence were not clearly erroneous and we must accept them. Burroughs Int’l. Co. v. Datronics, 254 Md. 327, 337-338.

Craddock and Wiley do not dispute the lower court’s factual findings as to “animus non revertendi. ’’Indeed, in the light of John’s marriage and the removal of his possessions from his parents’ home, there was ample evidence to justify a finding of intent to abandon the Pennsylvania domicile. They urge, however, that the lower court erred in finding that John and Linda were domiciled in Maryland, contending that “the trial court’s finding of intention is based on unsupported findings of fact and on irrelevant and immaterial facts.” They assert that John and Linda first lived as husband and wife in Connecticut. Although this is true, their residence in that state was obviously a temporary one, as John planned to study medicine in Baltimore. There is legally sufficient evidence to support the trial judge’s finding that John and Linda set up their first home as husband and wife in Baltimore. Craddock and Wiley argue that the only evidence of credit in the record is the apartment lease, the gas and electric, telephone and newspaper bills, and certain educational loans made by John. They contend that even if such items can be considered as credit in the broad sense, they ought not to be considered as relevant to the issue of intention to establish a permanent residence, because they are incidents of both permanent and temporary residence. We think that all the items mentioned have rational probative value. Haile v. Dinnis, 184 Md. 144, 152. The weight given to such evidence is for the trier of fact.

Craddock and Wiley emphasize that John and Linda opened a checking account and not a bank account. We believe that the deposit of funds in a Maryland bank whether it be for savings or checking purposes, is relevant and competent evidence on the question of intention to establish a domicile in this state.

We believe that the registering of John and Linda to vote in Maryland has probative value. In Bainum, supra, at 498, the Court of Appeals noted:

“[T]he two most important elements in determining domicile are where a person actually lives and where he votes. In Harrison v. Harrison, supra, 117 Md. at 615, our predecessors stated: ‘The presumption of the law is that where a person actually lives is his domicile, though this is a rebuttable presumption.’ As to the place of voting, this Court has termed it the ‘highest evidence of domicile,’ Wagner v. Scurlock, supra, 166 Md. at 292.”

Craddock and Wiley argue that any evidence that John and Linda registered “subsequent to December” is irrelevant and immaterial as to the issue of intention as of the date of the accident. They declare that post-accident acts are irrelevant and immaterial on the issue of domicile. The Court of Appeals, both in Maddy, supra, at 180-181, and Walsh, Adm’r. v. Crouse, 232 Md. 386, considered post accident acts in upholding the findings of the lower court. Even though such evidence sheds only “slight illumination” on the state of John and Linda’s intention on the date of the accident, Hawks v. Gottschall, 241 Md. 147, 152, and even though registering to vote after the accident is not conclusive evidence of domicile, see Gallagher, supra, at 199, we note that John registered for the first election held after his move to Baltimore (November of 1970), and that he “actually” lived in Baltimore on the date of the accident.

With reference to the payment of income taxes, Craddock and Wiley point out that the only State income taxes for 1969 paid by John and Linda were the amounts withheld from their earnings and that such amounts would be withheld from any person working in the State regardless of domicile. Code, Art. 81, § 312 (1969 Repl. Vol.). They emphasize that no return was filed for 1969. See n. 5, supra. Maryland law required all persons domiciled in this state on the last day of the taxable year to file a state return. Art. 81, § 294 (a) and § 279 (i) (1969 Repl. Vol.). See Evans v. Comptroller, 273 Md. 172. We note that if John had considered himself a temporary resident because he lived in the state for only four months during 1969, he could have filed a return and demanded a refund of the amount withheld. Section 288 (a) of Art. 81 would impose a state income tax on John for 1969 if he were a “resident”. Section 279 (i) defines resident as one who was domiciled in this state on the last day of the taxable year or who maintained a place of abode within this state for more than six months. See Wood v. Tawes, 181 Md. 155, 160.

As we have indicated, Craddock and Wiley do not challenge the trial court’s finding that John abandoned his family residence in Pennsylvania. They argue, however, that John moved to Maryland solely for the purpose of his education. A similar contention was before the Court of Appeals in Bainum. Bainum argued that he was still domiciled in Maryland because his two year absence to pursue a course of study elsewhere should be viewed as temporary and not sufficient to establish a change of domicile. The Court, at 500, quoted earlier language from Shaeffer, supra, at 72:

“We agree that mere residence at the college for the purpose of pursuing his studies would not, in itself, be sufficient to prove that he meant to abandon his original residence, or to prove that he meant to make his actual home . . . [elsewhere]. In the absence of other proof, the law would presume, he was there for the purpose of prosecuting his studies, and this purpose being accomplished, he intended to return to his former residence.” (emphasis added)

The Court, however, found that “Bainum did much more than temporarily live in Michigan while pursuing his studies there.” Id. at 501. Noting that Bainum registered to vote in Michigan, obtained a Michigan driver’s license and registered his auto there, and considered Michigan his tax domicile, the Court found that he had established a domicile while studying there:

“While a student does not effect a change in domicile merely by living away from home while pursuing his studies, nevertheless a student may abandon his former domicile and establish a new domicile where he attends school. When a student engages in conduct such as Stewart Bainum did here, he will be deemed to have abandoned one domicile and established another.” Id.

Here, there was more than “mere residence” in Baltimore for the purpose of attending medical school. There are John’s abandonment of his Pennsylvania domicile and his declarations and conduct which tend to show an intention to establish a domicile in Maryland. Although John was in Baltimore for only three months before the accident, his actions indicated a domiciliary intent. As the Court of Appeals emphasized in Harrison, supra, at 616: “No certain or definite duration of residence is requisite under the law to accomplish the acquisition of a new domicile. What is required, and all that is required, is that there shall be a clear definite intent and an act done in execution of that intent.” The change of residence was the necessary act, and there was evidence tending to show the intent.

In the legal scheme everyone must have a domicile. Beale, supra, § 11.1. As John abandoned his domicile in Pennsylvania, where was his domicile other than Maryland? The short of it is that viewing the evidence, as we must, in the light most favorable to John and Linda, there was evidence to support the factual findings of the trial court. Those factual findings provided evidence sufficient in law to support the judgment of the lower court that John and Linda were domiciled in Maryland on 5 December 1969. Therefore, its judgment on the evidence was not clearly erroneous, and we may not set it aside. Rule 1086.

II

It appears that a Liberty automobile insurance policy consists of a printed basic contract setting out uniform provisions, terms and conditions. To this is appended from time to time documents tying the basic contract to an individual insured and named vehicles. The basic contract here issued contained a clause providing “Protection Against Uninsured Motorists Coverage”:

“The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle: provided, for the purpose of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so, the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.”

Although the coverage was generally in force across the entire United States, there were “Special State Provisions”, introduced by a clause reading:

“It is agreed that if this policy insures an owned automobile principally garaged in a state named below, such insurance as would otherwise be afforded by the policy with respect to (a) any automobile principally garaged in said state, and (b) any accident, occurrence or loss within said state shall be subject to the special provisions hereinafter specified for said state.”

There was a special provision specified for Maryland:

“Such insurance as is afforded by the policy under the Uninsured Motorist Coverage does not apply to an accident occurring in the State of Maryland.”

It is clear that coverage under the uninsured motorist clause is excluded with regard to an automobile principally garaged in Maryland involved in an accident in Maryland. Therefore, resolution of the second issue turns on whether, in the contemplation of the policy, the automobile driven by John was principally garaged in Maryland on 5 December 1969, the date of the accident.

Liberty first issued an automobile policy to the Lemasters in 1957. It was cancelled and rewritten in 1965 when the Lemasters moved to Valley Forge, Pennsylvania. Wilbur completed an application form as of 20 August 1965 in his name and that of his wife, Kathryn. The named automobiles were a 1964 Ford and a 1965 Mustang and licensed operators named were Wilbur and Kathryn, their daughter, Jeanne, and son, John. It seems that a “declaration sheet” is appended to the basic printed contract each year, apparently from information requested of the insured. In the words of Leslie Isernhage, an underwriter for Liberty, it “forms the back part of the policy itself”, and states the names of the insured and itemizes the vehicles insured and coverage provided. The declaration sheet for the term beginning 20 August 1969 was offered in evidence. The insured were Kathryn and Wilbur. Their address was stated to be 2051 Welsh Valley Road, Box 454, Valley Forge, Pa. 19481. Three automobiles were specified, including the Volkswagen. Also appended to the policy and a part thereof was an “itemized change endorsement” effective 29 May 1968. The endorsement listed the 1964 Ford, the 1965 Mustang and the 1963 Volkswagen as the owned automobiles. It showed the liability and physical damage coverage as to each vehicle and indicated a premium adjustment with respect to the Volkswagen — a $10 credit applying until the next anniversary payment was due. The endorsement expressly provided that, as of its effective date, 29 May 1968, “the insurance provided by the policy and the limits of liability applicable thereto are as indicated herein, subject to all of the terms of the policy having reference thereto.” It declared:

“The owned automobile will be principally garaged in the town and state of the named insured’s address, unless otherwise stated herein:”

The town and state of the named insured’s address was shown to be Valley Forge, Pennsylvania. This itemized change endorsement remained a part of the policy for the period 20 August 1969 to 20 August 1970.

Although the policy clearly provided that with regard to an owned automobile principally garaged in Maryland, there was no uninsured motorist coverage as to an accident occurring in Maryland, the policy itself, through the itemized change endorsement in effect at the time of the accident, declared that the vehicle was principally garaged in Pennsylvania, it not being otherwise stated in the endorsement. In the absence of misrepresentation on the part of the insured, and none is here alleged or shown, we think that the statement in the policy is conclusive of where the vehicle was principally garaged. We so conclude because the statement in the endorsement was not a promissory warranty the breach of which voided coverage. Rather, it was merely an expression of intention or expectation. We observe that the policy contained no language imposing a duty on the insured to notify the insurer of a change of residence much less a change of where a named owned vehicle is from time to time garaged. Nor was there any explicit undertaking or agreement on the part of the insured that the car would be kept principally at the Pennsylvania address. We find Universal Underwriters v. Gran, 114 N.E.2d 501 (Ohio 1952) to be persuasive. In that case, the policy contained the statement that the automobile would be principally garaged in Minneapolis, Minnesota. After the policy had been in effect for less than a month, the insured moved to Ohio. Two months later he was involved in an accident in that state. The insurer argued that the garaging statement amounted to a promissory warranty which had been breached by the insured. The Ohio court rejected this contention:

“There are a number of other reasons for construing the place at which the car would be garaged as merely an expression of expectation. It is a well-known fact that an automobile is extremely movable and, likewise, people oft-times change their residence during the term of a policy, particularly those in certain lines of business.
These facts being well known to the insurance company, surely places the duty upon it as the draftor of the instrument if it so desired to state that it desired to be notified of any change of residence or removal of the car to a new home. In other words, if it was the desire and intention of the insuring company to consider the place at which the car is kept as a warranty, it would be its duty to expressly say so, and its failure to do so is a very strong indication that the place where the car was garaged was not intended to be a warranty, the violation of which would forfeit the policy. . . .
The policy itself, contains many conditions, limitations and agreements but there is no where any reference to an exclusion as to where the automobile was to be used in the United States nor is there any explicit undertaking or any agreement on the part of the assured that he would keep the car principally at the address in Minneapolis.
Therefore, the statement as to the place where the automobile would be principally garaged must be fairly and justly construed as a statement of expectation only. There is no explicit provision of forfeiture and at least the intent of the parties to this contract, as reflected by the language of the policy with regard to this provision, is most certainly not clear enough to exclude the conclusion that it was merely the expression or intention on the part of the policy holder, and that it was not intended that the policy should be void by virtue of a change of residence and use of the car elsewhere.” Id. at 503.

To like effect was Sutton v. Hawkeye Casualty Co., 138 F. 2d 781 (6th cir. 1943). In that case, the policy, under the heading “Warranties”, provided that the automobile would be principally garaged and used in Kalamazoo, Michigan with “No exceptions”. Approximately six months after the beginning of the policy period, the insured moved to Tennessee. Four months later he was involved in an accident. The question presented on appeal was whether the statement as to where the auto would be principally used was merely an expression of intention or expectation or whether it was a warranty. Liberally construing the policy in favor of the insured, the federal court interpreted the statement as one representing the intention of the insured:

“The indefinite phrasing of the statement relied upon as a condition of the contract, when considered in connection with the broad coverage of the policy, its susceptibility of different interpretations, and the requirement that the language be construed to effect the insurance unless it is so clear as to preclude any other construction, likewise commands a construction in favor of the assured against forfeiture.” Id., at 786.

The Court of Appeals of this State had indicated that absent a duty of notification a garaging statement operates only as an expression of intention. In Grain Dealers v. Van Buskirk, 241 Md. 58, the policy provided uninsured motorist coverage almost identical to the coverage provided by Liberty. The policy contained a declaration that the automobile would be principally garaged in Ferrum, Virginia. Eight months after the policy period began the insured moved to Maryland. Three months later he was killed in an accident. When his wife attempted to collect under the uninsured motorist provision, the insurer argued that there could be no recovery, because the insured had failed to notify the insurer thát'he had moved to Maryland. The Court rejected the argument that the garaging statement placed a duty of notification on the insured, the breach of which eliminated coverage. With regard to the operative effect of the garaging statement the Court said, at 71:

“When the policy was issued it was intended that the automobile would be principally garaged in Ferrum and it was. There was, however, no provision in the policy forbidding the named insured from moving the automobile to another location or requiring the named insured to give the company notice of such a change.”

It is true that the circumstances in Universal, Sutton, and Grain Dealers, all supra, are not identical to those in the instant case. In those decisions, an express garaging statement was apparently printed in the policy itself which the insurers contended constituted a promissory warranty breached by the insureds. In the Liberty policy the “principally garaged” language was not inserted to operate as an expression of intended residence but as a method of determining when special territorial limitations come into effect. We think, however, that the rationale of Universal, Sutton, and Grain Dealers with regard to operative effect of garaging language is applicable to a determination as to when the terms in the “Special State Provisions” in the policy before us become effective. The common thread which is found in Universal, Sutton, and Grain Dealers is the absence of any provision in the contract placing a duty on the insured to notify the insurer of a residence change. Since the insured is under no such obligation when moving from one place to another, and since the policy by its own terms applies throughout the United States, his reasonable expectation is that he will receive the same coverage in his new location as he received in his old location. As the federal court noted in Sutton, supra, at 785, “[t]here is no mention in the policy of any provisions relating to notice of address of the assured, change of residence, or removal of the automobile outside the state, which are often found in similar policies — all of which is suggestive that such eventualities would have no effect upon the protection extended by the policy.” (emphasis added). At best the term “principally garaged”, its operative date, and any requirement of notice, are ambiguous. This is especially so in view of the broad geographical coverage afforded under the policy. It is a well established rule that the provisions of insurance policies, prepared as they are by the insurance companies, are, in the case of ambiguities, to be construed strictly against the company preparing the policy and in favor of the insured. Grain Dealers v. Van Buskirk, supra, at 71; Haynes v. Am. Cas. Co., 228 Md. 394, 400. Even if the policy here be considered as ambiguous regarding “principally garaged”, ambiguity would be resolved against the company and in favor of the insured.

In contending that the Volkswagen was principally garaged in Maryland on the date of the accident, Liberty argues that any determination with respect to garaging must be based on the facts as of that date. Applying what it refers to as “a reasonable man” standard, it asserts that the automobile was principally garaged in Maryland for over 75% of the time period between the date of the loss and the inception of the policy period. Conceding that the policy “did not attempt to exact from the insureds a promise that the insureds’ vehicle would be ‘principally garaged’ at any given location at any given time,” Liberty argues that the language “is more analogous to an exclusion”. When a vehicle which was originally garaged at one location is moved to another state and becomes in fact principally garaged there, any special provision referring to that state would automatically come into effect. Therefore, when the Volkswagen became principally garaged in Maryland, which by Liberty’s calculations would be the middle of September 1969, the policy exclusion automatically went into effect.

The Lemasters and Craddock and Wiley contend that the car was not principally garaged in Maryland on the date of the accident. They argue that the terms “principally garaged” must be interpreted according to the existing facts at the time the contract of insurance was rewritten in 1965 to reflect the change of residence by Wilbur and Kathryn. The garaging statement made at that time was merely an expression of intention or expectation which remained operative up to and including the time of the accident. Since there was no duty on the Lemasters to inform Liberty when a change in location was made, the original statement remained effective so long as no change was made in the policy at renewal time based on information supplied by the insureds or at some time during the policy period when knowledge of a change came into Liberty’s hands. Therefore, even though John and Linda brought the car to Maryland and kept it here for the majority of the applicable policy period prior to the accident, it remained “principally garaged” in Pennsylvania for purposes of construing policy coverage under the uninsured motorist provision. The trial court found that the policy language “must be construed to mean where the car was principally garaged when the contract of insurance was originally written.” Emphasizing that the policy afforded coverage throughout this country, the court found that to “adopt the restrictive interpretation suggested by the defendant, Liberty Mutual would destroy the intent and reasonable expectations” of the insured because he would be placed “in the untenable position of having uncertain and unpredictable insurance coverage as he travels from state to state if he decides to spend any length of time in a state other than where the car was garaged when the policy was written.” Therefore, the court held that the car was “principally garaged” in Pennsylvania on the date of the accident and that John and Linda were covered by the uninsured motorist provision.

We reach the same conclusion as did the trial judge, but by a little different route. We believe that when an insurance contract does not require an insured to notify the insurer of a residence change or of a change in the principal place of garaging a named owned automobile during a given policy period, the address set out in the policy governs in the absence of misrepresentation. Here, as the Volkswagen was not principally garaged in Maryland at the beginning of the applicable policy term, the special Maryland provision did not apply. Therefore, the uninsured motorist protection clause was in force and covered John and Linda on 5 December 1969. The trial court did not err in so ruling.

Judgment affirmed; costs to be paid one-half by Liberty Mutual Insurance Company and one-half by James John Craddock and John Wiley.

      . Ch. 836, Laws of 1957, effective June 1, 1957, created the “Unsatisfied Claim and Judgment Fund” in Maryland. First codified in the 1957 Cumulative Supplement to the 1951 Code as Art. 66V2, §§ 145A-145DD, the Law was patterned after earlier New Jersey legislation and was designed primarily to protect Maryland citizens, particularly those who would be least able to bear the loss or injury inflicted by irresponsible or unidentified motorists. Maddy v. Jones, 230 Md. 172. See Unsat. C. & J. Fund v. Hamilton, 256 Md. 56. In the 1957 Code, the Law was renumbered as § 150 to § 179. When ch. 534, Laws of 1970, effective January 1, 1971, repealed, renumbered and re-enacted Article 66V2, the Law was codified as §§ 7-601 to 7-635. Ch. 73, Laws of 1972, effective January 1, 1973, repealed §§ 7-601 to 7-635 and enacted Art. 48A, §§ 243-243L which created the “Maryland Automobile Insurance Fund” (MAIF). All the assets of the UCJ Fund were transferred to MAIF, § 243A (a). Section 243G (a) provides for claims against the UCJ Fund which arose prior to 1 January 1973. See Diamond v. Unsat. C. & J. Fund Bd., 268 Md. 260, 261, note 1. Only a “qualified person” or his personal representative can make application for payment from the UCJ Fund. Code, Art. 66V2, § 158 (1967 Repl. Vol.); Art. 66V2, § 7-611 (1970 Repl. Vol.). See Art. 48A, § 243G (a) (1974 Cum. Supp.)

      . We do not reach the effect on this common law rule of the passage of the Equal Rights Amendment, Article 46 of the Declaration of Rights, ratified Nov. 7, 1972. In the circumstances of this case, where the issue was not raised, Linda accompanied her husband to Maryland in 1969 and lived with him there. See Restatement, supra, § 21.

      . Restatement, supra, § 15, lists three requirements for establishing a domicile of choice. Besides the requisite intention, § 18, and physical presence, § 16, the person must have the legal capacity to change his domicile. John was sui juris when he moved to Baltimore.

      . Representation of the parties was as follows: Craddock by E. B. Harris, Jr., Esquire; Wiley by David D. Patton, Esquire; Wilbur Lemasters and John and Linda Lemasters by John Moring, Esquire; Liberty Mutual Insurance Company by Sidney G. Leech, Esquire. John was called and examined as an adverse witness by Harris. He was cross examined by Patton, Moring and Leech. Harris questioned him further on redirect examination and on rebuttal. There was recross examination by Patton and Moring.

      . The furniture was transported to Baltimore in a rented truck which John drove. Linda drove the Volkswagen.

      . With regard to the 1970 Maryland return John indicated that he considered the amount withheld to cover his tax liability without filing a return. He explained why he did not file a return: “I think because it only involved a couple of dollars, and just a matter of figuring.”

      . The Court of Appeals pointed out in Shaeffer v. Gilbert, 73 Md. 66, 70, that there is a difference between a “fixed and settled abode or actual home” (domicile in the popular sense) and a “residence for a temporary purpose.”

      . In Maddy, Walsh, Rumbel, and Hawks, all supra, which involved eligibility under the UCJ Fund law, the Court held that domiciliary status was not established. A telling factor in all was the inability of the claimant to show that he had abandoned his former domicile.

      . For an excellent discussion of the factors to consider when determining the domiciliary status of a student for voting purposes, see Hall v. Wake County Board of Elections, 280 N. C. 600, 187 S.E.2d 52 (19721. See also, Annot., 98 A.L.R.2d 488, Annot., 44 A.L.R.3d 797. We note that' both annotations state the majority rule that where a student considers the school community his home for the present and entertains no intention of returning to his former home, he is afforded the privilege to vote.

      . The Restatement, supra, notes that one of the factors to consider when determining domiciliary intention is the motives which led the person to change residence, § 18, comment f. Under the heading “To attend educational institutions”, the following example is given as no. 14:
      “A, a young man just graduated from college, definitely leaves his former home, marries and goes with his wife to State X where he enters a professional school. He takes a house there, intending to live there until he secures his professional degree. These facts tend to show that A intends to make his home in X and has acquired a domicil of choice there.”
      See Beale, supra, § 22.8.

      . In Bainum, supra, at 499, the Court listed additional factors to consider, besides particular place of abode and place of voting:
      “These include such things as: the paying of taxes and statements on tax returns; the ownership of property; where the person’s children attend school; the address at which one receives mail; statements as to residency contained in contracts or other documents; statements on licenses or governmental documents; where furniture and other personal belongings are kept; which jurisdiction’s banks are utilized; membership in professional, fraternal, religious or social organizations; where one’s regular physicians and dentists are located; where one maintains charge accounts; and any other facts revealing contact with one or the other jurisdiction. See Gallagher v. Bd. of Elections, supra, 219 Md. at 196-198.”

      . Policy coverage was effective “within the United States of America, its territories, or possessions, or Canada. . . .”

      . A “Classification and Coverage Sheet” completed by Liberty five days after the accident in response to a “medical payment claim” by Linda for $290 showed the automobile as “Garaged at Valley Forge, Pa.” An accident report, dated 18 December 1969 and signed by Wilbur, which from the handwriting was apparently filled in by two different persons, stated the automobile was “Garaged at Baltimore, Md.”

      . Sutton, supra, at 785 emphasized that “principally” is a “vague, indefinite, uncertain term.”

      . Liberty relies on Sutton as a source for its “reasonable man” standard. This method of calculation, however, was used by the court in that opinion only to show that even if the policy statement be construed as a promissory warranty, it was not breached since the automobile was used in Michigan for six months and in Tennessee for only four. The court still found that the statement was one of expectation only. State Farm v. Porter, 186 F. 2d 834 (9th cir. 1951), also cited by Liberty, simply held that an automobile was not principally garaged at a new location. Although the court found that the automobile had been kept in the original location for 53 days and at a subsequent location for only 15 days, it, citing Sutton, was “by no means certain that this language of the policy was a warranty.” Id. at 844.

      . For the purposes of issues raised on this appeal, we need not reach the question of whether the Volkswagen was “principally garaged” in Pennsylvania or Connecticut. Liberty raised the issue of misrepresentation at the lower court but not on appeal.