author: Orth, C. J.,

text:
    WALTER EDWARD BROADWAY v. STATE OF MARYLAND
    [No. 877,
    September Term, 1973.]

      Decided October 15, 1974.

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

      James P. Salmon, Assigned Public Defender, with whom was Edward P. Camus, District Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George’s County and Richard P. Arnold, Assistant State's Attorney for Prince George’s County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 9 January 1973 an indictment was filed in the Circuit Court for Prince George’s County against WALTER EDWARD BROADWAY charging him in the first count with robbery with a deadly weapon and in eight other counts with related offenses, including under the ninth count that he unlawfully used a handgun in the commission of a crime of violence. When the indictment came on for trial on 10 April 1973, Broadway filed a motion to dismiss it. The ground for the motion was that he was 17 years of age on 6 December 1972, the date of the commission of the crimes. He claimed that the juvenile court had original jurisdiction over him, and had not waived it. Upon a hearing on the motion, at which it was stipulated that Broadway was born on 10 November 1955, the motion was denied. Broadway noted an appeal from the denial, but dismissed it on 11 May 1973. He was tried before a jury and on 14 September 1973 was found guilty under the first and ninth counts. Upon receipt of a pre-sentence report he was sentenced on 16 October to 11 years on the robbery conviction and to a consecutive sentence of 5 years on the handgun violation. He filed a timely appeal.

I

Broadway’s first two contentions attack the propriety of the denial of his motion to dismiss the indictment.

Chapter 514, Acts 1972, § 1, effective 1 July 1972, codified as Code, Art. 26, § 70-2 (d) (3), designated an additional exemption in the general law to the exclusive original jurisdiction of a juvenile court. It provided that the court does not have jurisdiction over “A proceeding involving a child who has reached his sixteenth birthday, alleged to have done an act in violation of § 488 of Article 27 concerning the crime of robbery with a deadly weapon, unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A of Article 27.” Chapter 772, Acts 1973, effective 1 July 1973, amended the exemption to read:

“A proceeding involving a child who has reached his sixteenth birthday, alleged to have done an act which, if committed by an adult, would be punishable by § 488 of Article 27 as robbery with a deadly weapon, unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A of Article 27.”

The exemption now appears in the Courts and Judicial Proceedings Article (Courts Art.) as § 3-808 (4) in these words:

“The court does not have jurisdiction over:
* * *
(4) A child 16 years or older alleged to have committed the crime of robbery with a deadly weapon, unless an order removing the proceeding to the juvenile court has been filed pursuant to § 594A of Article 27.”

The Revisor says in his note: “Paragraph (4) reflects the change made by ch. 772, Acts of 1973, clarifying the language concerning jurisdiction over the crime of robbery with a deadly weapon.”

(i)

Broadway first argues, as he argued below, that the exemption as in effect at the time he was indicted was “so uncertain, incomplete, or conflicting” that it cannot be executed and must be “declared inoperative and void.” The premise of this argument is that Code, Art. 27, § 488 does not create a substantive crime but only authorizes a penalty for the common law crime of robbery more severe when the robbery is committed with a deadly weapon than when it is not. He cites as authority for the premise the decisions of this Court — McChan v. State, 9 Md. App. 311, 315; Parker v. State, 7 Md. App. 167, 197; Barnes v. State, 5 Md. App. 144, 146; Jones v. State, 3 Md. App. 608, 613; Darby v. State, 3 Md. App. 407, 413. Therefore, he posits, he could not have been “alleged to have done an act in violation of § 488 of Article 27” because the statute creates no offense to be violated. It follows that the exemption is meaningless and the juvenile court had exclusive original jurisdiction over him which it did not waive. Thus, he claims, the indictment was improperly returned, he cannot be tried under it, and it should have been dismissed.

The argument gave the lower court no pause, and it gives us none. The court below found the clear legislative intent to have been that a child of 16 years or older, alleged to have committed the crime of robbery with a deadly weapon, is without the jurisdiction of the juvenile court. We are in complete agreement. It may be that the statute as originally enacted could have been more artfully drafted, but the legislative intent, as obviously demonstrated by the subsequent clarifying amendments, was clear and unambiguous. We note that all presumptions favor the constitutionality of a duly enacted statute, and it will not be declared unconstitutional unless it plainly contravenes the federal or state constitution. Woodell v. State, 2 Md. App. 433. We said in Bacheller v. State, 3 Md. App. 626, 632: “The formulation of statutory language is, at best, an inexact exercise vulnerable to varying degrees of doubt and ambiguity. Therefore, the enunciation of the meaning and ambit of a specific statute by judicial construction strives to ascertain and define the legislative intent and purpose, and upon making of a determination of the legislative meaning the efficacy of the statute is more clearly and precisely promulgated.” As indicated, we have no doubt here of the legislative intent and purpose. We hold that the statute was not unconstitutionally vague or indefinite. See Anderson v. State, 12 Md. App. 186.

(ii)

Broadway’s second contention follows the rationale of our decision in Matter of Trader, 20 Md. App. 1. Under the public general law an order waiving juvenile jurisdiction is interlocutory and not immediately appealable. Under the public local law applicable to Montgomery County such an order is final and immediately appealable. We held the public general law to be void because the differences between the public general law and the public local law mounted up to an invidious discrimination violative of the equal protection clause of the constitution. The Court of Appeals on grant of certiorari to this Court did not see it that way on the record submitted. It said: “Since no evidence was adduced in the proceedings below to demonstrate the lack of a reasonable basis for the statutory distinction, and since the difference in treatment is not so irrational as to be invidiously discriminatory on its face, we hold on the record in Trader’s case that he was not denied equal protection of the laws by reason of the provisions of § 3-817 of the public general law declaring that a waiver is interlocutory.” Matter of Trader, 272 Md. 364. In its Trader opinion the Court of Appeals decided three other cases spinning off of our Trader holding. One of them, State v. Stokes, is determinative of Broadway’s contention. We give its factual posture in the words of the Court of Appeals, Matter of Trader, 272 Md., at 375, 376:

“Appellee Stokes was charged with armed robbery in the Criminal Court of Baltimore; he was then 16 years old. He moved to dismiss the indictment on the ground that § 3-808(4) of the public general law, excluding a child 16 years or older from the juvenile jurisdiction of the court, was unconstitutional because no similar provision exempted children from treatment as juveniles under the Montgomery County law. The court (Liss, J.), relying principally upon Matter of Trader, supra, granted the motion to dismiss, holding § 3-808(4) violative of the equal protection clause. * * * The court concluded as a matter of constitutional law ‘that whenever any substantial right or privilege is granted to a juvenile in Montgomery County, all other juveniles in the State are entitled to the same right or privilege.’ The State appealed the dismissal of Stokes’ indictment to the Court of Special Appeals; we granted certiorari prior to decision by the Court of Special Appeals upon the State’s petition seeking our review of the judgment of the Criminal Court of Baltimore.”

The Court of Appeals said, at 401, 402:.

“As in Matter of Trader, the record before us in Stokes contains no evidence to support the trial judge’s conclusion that no state of facts conceivable exists to justify the treatment of a 16-year-old child who commits armed robbery as an adult offender under the public general law while requiring a similarly situated child under the Montgomery County law to he waived before becoming subject to criminal prosecution. Nothing in Long v. Robinson [316 F. Supp. 22 (D. Md. 1970), affirmed in Long and Robinson, 436 F. 2d 1116 (4th Cir. 1971)] compels such a result and we reject the notion espoused by the trial judge in Stokes ‘that whenever any substantial right or privilege is granted to a juvenile in Montgomery County, all other juveniles in the State are entitled to the same right or privilege.’ The difference in treatment afforded 16-year-old armed robbers by the two laws is not, on its face, so irrational and invidiously discriminatory as to constitute a denial of the equal protection clause, particularly in view of the reverse waiver provisions contained in the public general law. In the absence of the requisite showing of unconstitutionality by the party attacking the legislative classification, it cannot be said that it does not rest upon any reasonable basis.”

As in Stokes, the requisite showing of unconstitutionality by the party attacking the legislative classification was here absent. We hold that the court below did not err in denying the motion to dismiss the indictment.

II

By ch. 13, Acts 1972 the General Assembly devised a scheme to curb the commission of violent crimes involving the use of handguns. To effectuate its declared policy it met the problem in two ways. First, it attempted to curtail the ready accessibility of handguns, and second, it discouraged the use of them in the commission of crimes. With respect to the first, it made the wearing, carrying, or transporting of handguns a misdemeanor and fixed penalties to be imposed upon conviction of the misdemeanor. Code, Art. 27, § 36B (b). Subsection (b) provided, inter alia:

“Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots generally ' used .by the public in this State shall be guilty of a - misdemeanor; and it shall be a rebuttable - presumption that the person is knowingly transporting-the handgun;

It also empowered the seizure and forfeiture of handguns, § 3.6C, and as an aid thereto, authorized a “limited search” in the nature of a “stop and frisk”, § 36D. It authorized -the Superintendent of the Maryland State Police to. issue -permit's to carry handguns, carefully 'spelling out the conditions under’which such .permits could be issued, and designated those, persons authorized to- wear' or carry a handgun without a permit, § 36É. -, - .

With respect to the second way the General Assembly attempted to effectuate its declared policy, it created the separate offense of using a handgun in the commission of certain- crimes. and specified a mandatory sentence. See Bremer v. State, 18 Md. App. 291. Section 36B (d) provides:

"Any person who shall us'e a handgun in the commission of any felony or any crime of violence .as defined in § 441 of this article, shall be guilty of a. separate misdemeanor and on' conviction thereof shall, in addition to any other sentence imposed by virtue of commission of . said felony or misdemeanor; be sentenced to the Maryland Division of Correction for -a term of not less than -five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”

Finally, the General Assembly expressly pre-empted the right of regulation in such matters.

(i)

As we have indicated, Broadway was convicted of robbery with a deadly weapon and with violation of Code, Art. 27, § 36B (d). The victim of the robbery was George VanDuzer, in charge of the 4:00 to 11:00 p.m. shift at a gas station. He testified that shortly after 11:00 p.m. on 6 December 1972 he was sitting at his desk in the station sorting the money collected during the shift. Two men were at the cigarette machine and complained that it was hot working. When VanDuzer said he had nothing to do with the machine, one of the men pointed a chrome plated revolver at him and told the other man to take the money. The other man, positively identified in court by VanDuzer as Broadway, took the money. Both men fled. The testimony of VanDuzer was legally sufficient to establish the corpus delicti of the felony of robbery with a deadly weapon and the criminal agency of Broadway therein as a principal in the first degree. Wiggins v. State, 8 Md. App. 598, 603-604; Ham v. State, 7 Md. App. 474, 479; Darby v. State, 3 Md. App. 407, 412-414; Agresti v. State, 2 Md. App. 278, 280-281. VanDuzer was the only eyewitness to the robbery, and there was no evidence adduced to show that the handgun described by him was ever in the actual possession of Broadway or that Broadway had actual possession of a handgun used in the commission of the felony.

(u)

Broadway bases his third and final contention on a construction of § 36B (d). He claims:

“In order to convict a person of violation. of Article 27, Section 36B (d) the State must prove that the appellant personally used a handgun while committing a crime of violence.”

He presented the point below in moving for a judgment of acquittal at the close of evidence offered by the State. He renewed the motion at the close of all the evidence. The motion was denied. The point goes to the sufficiency of the evidence and was preserved for appellate review by the motion for judgment of acquittal at the close of all the evidence. Code, Art. 27, § 593; Rule 755; Williams v. State, 5 Md. App. 450.

The crime created by § 36B (d) is designated a misdemeanor. At common law all participants in misdemeanors are principals. 1 Wharton’s Criminal Law and Procedure, § 104. This rule is the law of Maryland. Agresti v. State, supra, at 280.

It was shown, as we have indicated, that Broadway was a principal in the first degree in the commission of the robbery. It was established that a handgun was used in the commission of that felony. The handgun used was in the actual possession of a co-perpetrator of the robbery, who, it is clear from the evidence, also committed the separate misdemeanor proscribed by § 36B (d). Broadway would be a principal with respect to that misdemeanor if he participated in it, abetted it, or procured it.

We do not construe § 36B (d) as does Broadway. We see nothing in subsection (d) to indicate that the Legislature intended that a handgun be in the “personal possession” of a person to bring him within the ambit of its prohibitions. In its detailed and comprehensive legislative scheme, the General Assembly made clear that possession was an element of the misdemeanor created by § 36B (d), for it specified that the weapon worn, carried, or transported, whether concealed or open, be “upon or about his person” or “in any vehicle” traveling on certain roads. But no such phrase appears in subsection (d). There the prohibition is against the “use” of a handgun. We think it obvious, for example, that a person who gives a handgun to another, or obtains one for him, for use in the commission of the crime, abets the misdemeanor, and as an abettor is a principal subject to the provisions of the statute. We think it equally obvious, for further example, that a person who hires another to commit the crime with a handgun, or importunes another to commit it, procures the misdemeanor, and as a procurer or inciter is a principal subject to the provisions of the statute. Here, however, there is no evidence sufficient to show that Broadway was an abettor or procurer in the frame of reference discussed, so the question is, therefore, whether he “participated” in the misdemeanor in the light of the evidence adduced.

It is correct that Broadway was not shown to have a handgun in his personal possession during the commission of the robbery. But he stole the money under its threat. He “used” the weapon to commit the robbery as effectively as if he personally held it. Just as Broadway’s companion in the robbery stole the money even though he did not personally take it, Broadway used the gun in the commission of the robbery even though he did not personally hold it. To say in such circumstances that Broadway was not a participant in the use of the handgun in the commission of the robbery would be to circumvent the declared policy of the Legislature and render impotent in no small measure its carefully designated scheme to effectuate that policy. We find that Broadway was a participant in the misdemeanor , proscribed by § 36B (d). As a participant he was a principal. As a principal he was chargeable with the misdemeanor and. punishable for its commission. We hold that the court below did not err in denying the motion for judgment of acquittal.

Judgments affirmed.

      . Broadway was jointly indicted with Secret Nathaniel Williams, III and Russell Andrew Lane, Jr. They were separately tried.

      . Code, Art. 27, § 594A, as amended by eh. 514, § 2, Acts 1972, effective 1 July 1972, provides:
      “In any case involving a child who has reached his fourteenth (14th) birthday but has not reached his eighteenth (18th) birthday at the time of any alleged offense excluded under the provisions of § 70-2 Td) (1) or (3) of Article 25, the court exercising jurisdiction may transfer the case to the juvenile court if a waiver is believed to be in the interests of the child and/or society.”
      See Code, Art. 1, § 21.

      . Code, Art. 27, § 488 provides:
      “Every person convicted of the crime of robbery or attempt to rob with a dangerous or deadly weapon or accessory thereto, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof, and be sentenced to imprisonment in the Maryland Penitentiary for not more than twenty years.”

      . The issue presented by the second contention was not tried and decided below, but Broadway claims that it is jurisdictional and thus can be raised at any time under Maryland Rule 1085'.

      . State of Maryland v. Emmit W. Stokes and Matter of Roger Faulkner were docketed as No. 32, September Term, 1974. Matter of Calvin Thomas was docketed as No. 54, September Term, 1974.

      . The statute was approved 27 March 1972 and was effective from the date of passage. It is codified as Art. 27, §§ 36B-36F, under the subheading “Handguns”.

      . “The term ‘handgun’ as used in this subheading shall include any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun and a short-barreled rifle as these terms are defined below, except it shall not include a shotgun, rifle or antique firearm as those terms are defined below.” Code, Art. 27, § 36F (a). “Antique firearm”, “rifle”, “short-barreled shotgun”, “short-barreled rifle”, and “shotgun” are defined in sub-subsections (1), (2), (3), (4), and (5), repectively, of subsection (a), section 36F.

      . The policy is declared in Code, Art. 27, ij 36B (a):
      “The General Assembly of Maryland hereby finds and declares that:
      (i) There has; in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;
      (ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
      (iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
      (iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.”

      . As defined in Code, Art. 27, _§ 441 (e), “The term ‘crime of violence’ means abduction; arson; burglary, including common-law and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; robbery; and sodomy; or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.”

      . Section 6 of ch. 13, provided that “all restrictions imposed by the law, ordinances, or regulations of the political subdivisions on the wearing, carrying, or transporting of handguns are superseded by this Act, and the State of Maryland hereby pre-empts the right of the political subdivisions to regulate said matters.”
      For other prohibitions against wearing or carrying a weapon see Code, Art. 27, § § 36, 36A and 36A-1.

      . Broadw'ay, although denying that he participated in the crime, concedes that the evidence adduced was sufficient in law for the jury to find him guilty of robbery with a deadly weapon as charged.

      . The statutory proscription runs not only to “any crime of violence as defined in § 441” but also to “any felony.”

      . “So too in ‘misdemeanors’ and in all crimes under the degree of felony, there are no accessories either before or after the fact; but all persons concerned therein, if guilty at all, are principals; the same rule holding with regard to the highest and lowest offences, though upon different reasons.” 4 Bl. Comm. 36.
      “In misdemeanors: (a) Perpetrators, abettors and inciters are all principals, because the law ‘does not descend to distinguish the different shades of guilt in petty misdemeanors.’ ” Perkins on Criminal Law, 2nd ed., p. 647.
      “All persons found guilty are punishable as principals, whether present or absent,... in misdemanors.” Clark & Marshall, Law of Crimes, 7th ed., § 8.04.
      “All who participate in, abet or procure the commission of a misdemeanor are principals. If several act in concert, though sustaining separate parts and in different places, each is chargeable with the complete misdemeanor.” Hochheimer’s Criminal Law, lsted., § 30.

      . For a construction of “upon or about his person” as used in Code, Art. 27, § 36, see Corbin v. State, 237 Md. 486, 491; Evans v. State, 11 Md. App. 451, 459; Shifflett v. State, 3 Md. App. 550, 554.


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    MONTGOMERY WARD & COMPANY, INC. et al. v. ALPHONSE KEULEMANS
    [No. 52,
    September Term, 1974.]

      Decided October 16, 1974.

      The cause was argued before Thompson, Gilbert and Menchine, JJ.
    . Kevin J. McCarthy, with whom were Willard G. Hoeltzel and Sasscer, Clagett, Channing & Bucher on the brief, for appellants-cross-appellees.

      James J. Casey for appellee-cross-appellant.
   Menchine, J.,

delivered the opinion of the Court.

This is an appeal by Montgomery Ward & Company, Inc. (Montgomery Ward), Carleton R. Johnson (Johnson) and Allen Gilgenberg (Gilgenberg) from judgments entered in the Circuit Court for St. Mary’s County in favor of Alphonse Keulemans (Keulemans) after jury verdicts for $1,350.00 and $25,000.00.

Keulemans claimed compensatory and punitive damages from Montgomery Ward, Johnson, Gilgenberg and another in a four count amended declaration alleging (1) false arrest, (2) false imprisonment, (3) malicious prosecution, and (4) defamation.

Before reaching the substantive issues raised after the actual trial of this case in the lower court, it is necessary to pass upon a motion by the appellants to restrict the scope of that trial.

Motion to Restrict Scope of Trial

The judgments in the subject appeal were entered in the second trial of the cause. Verdicts in favor of Keulemans against the appellants in an earlier trial had been set aside on motion for new trial.

At the earlier trial, the jury rendered general verdicts for the plaintiff of $25,000.00 for compensatory damages and of $15,000.00 for punitive damages against all defendants. Before that verdict was recorded, however, counsel for the defendants declared: “If the Court please, I would like that broken down into four counts.”

The trial judge thereupon addressed the jury as follows:

“Ladies and gentlemen of the jury, Mr. Foreman, we ask you to return to the jury room and break down your verdict as to the four counts of false arrest, false imprisonment, malicious prosecution and defamation of character and also against which defendants you assess or find against. There are four defendants in the case; Montgomery Ward, Carleton Johnson, Allen Gilgenberg and Charles Davis. So you may return and reconsider your verdict.”

At that point counsel for the defendants seems to have had a change of heart, saying, “I would move for a mistrial at this point, your Honor. I think the verdict is improper and I do not think the jury can remedy it.” The court overruled the motion.

After further deliberation, the jury returned to the courtroom and rendered the following verdicts:

“For punitive we find $15,000.00 against Montgomery Ward;
Under false arrest for compensatory $6,000.00 against Mr. Johnson;
False imprisonment $6,000.00 against Mr. Johnson; Malicious prosecution, compensatory, $6,000.00 against Montgomery Ward; and defamation, compensatory, $7,000.00 against Montgomery Ward, Mr. Johnson and Mr. Gilgenberg.”

The verdicts of the jury were then recorded.

It should be noted that the aggregate of the verdicts as amended or corrected by the jury totaled $40,000.00 (as did. the aborted general verdicts for $25,000.00 and $15,000.00). It should be noted also that at least one verdict was rendered against each of the present appellants.

A motion, unconditional in terms, for judgment N.O.V. and/or for a new trial was filed in behalf of all defendants. After hearing, the following order was passed by that trial judge:

“Upon consideration of the Motion of Judgment NOV and/or New Trial, it is by the Circuit Court for St. Mary’s County, Maryland, this 28th day of March, 1973,
“ORDERED, that the defendants are granted a new trial in the case unless the plaintiff files a remittitur of $29,000.00 within ten days from the signing of this order.
“Said Remittitur represents a reduction of $19,000.00 on the compensatory damages and $10,000.00 on the punitive damages bringing the total damages assessed to $11,000.00 instead of the original $40,000.00 verdict.”

The plaintiff having declined to file the remittitur, the cause was brought to trial a second time. Before commencement of the second trial a motion was made by the appellants to restrict the scope of the new trial. The trial judge, properly we think, denied the motion.

The appellants urge that the new trial granted by the first trial judge was only partial in character. They argue that the verdicts rendered by the first trial jury operated with finality to discharge Montgomery Ward and Gilgenberg from all liability under the false arrest and false imprisonment counts and to discharge Montgomery Ward from all liability under the malicious prosecution count. Careful scrutiny demonstrates that the argument is ingenious but unsound.

It is true that the verdicts were in varied amounts and some were rendered as to less than all defendants and were attributed to specific counts of the declaration. Nonetheless, the motion for a new trial or for.judgment N.O.V. was couched in general terms and relief from the verdicts was sought by all defendants. The motion did not make reference to a particular verdict or a particular defendant, or to any separate count of the declaration. The overturn of every verdict was sought. Each verdict was affected by the court’s conditional grant of a new trial. We hold that in such circumstances every verdict became a nullity when the plaintiff declined to file a remittitur. We point out that the remittitur required of the plaintiff was declared in a single sum of $29,000.00. This fact also tends to show an intent and purpose by the trial judge to grant a new trial as to all defendants under all counts absent the filing of a remittitur in that amount.

Maryland Rule 567 c. reads as follows:

“c. Partial — Severable Matter.
Where it appears to the court upon a motion for a new trial that any grounds for a new trial affect only a severable part of the matters in controversy, or only some or one of the parties, the court may grant a new trial as to such part, or as to such party and either enter final judgment as to the remaining parts or parties, or stay the entry of final judgment until after the new trial.”

While this rule plainly permits a trial judge to grant a partial new trial, we conclude that in the subject case the general character of the motion for new trial and/or for judgment N.O.Y. and the all-inclusive words used by the trial court in the order passed pursuant to that motion, combine to show that the grant of a new trial was absolute and not partial in effect. Cf. Cavey v. Srnec, 256 Md. 483, 488, 260 A. 2d 292, 294-95. The second trial properly was permitted to proceed against all of the subject appellants.

Appellants next attack the judgments upon the grounds:

(a) That there was probable cause, as a matter of law, for the arrest and prosecution and thus the motion for a directed verdict as to all defendants should have been granted;
(b) That there was no evidence legally sufficient to support an action against Gilgenberg; and
(c) That the verdict and judgment for punitive damages should have been stricken on motion for judgment N.O.V. because no compensatory damages had been found in the malicious prosecution action.

Probable Cause

The threshold question of what facts are sufficient to show probable cause is one of law for the court; but whether such facts are proved is for the jury. Banks v. Montgomery Ward & Co., 212 Md. 31, 42, 128 A. 2d 600, 606. In Banks it was said at page 39 [604]:

«* * *Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty. Mere belief, however sincere, is not sufficient. There must be such grounds of belief founded upon actual knowledge of facts as would influence the mind of a reasonable person.” (Interior citations omitted.)

See also Brewer v. Mele, 267 Md. 437, 447, 298 A. 2d 156, 163.

The rules of law controlling the determination of the question were clearly and succinctly declared in Durante v. Braun, 263 Md. 685, 284 A. 2d 241, wherein it was said at page 688-89 [243]:

“In deciding this question [existence of probable cause] we must keep in mind that although sound public policy affords protection to persons who in good faith and on reasonable grounds cause prosecution of another (Stansbury v. Luttrell, 152 Md. 553, 565, 137 A. 339 (1927)), nonetheless, the rule of law prevails, that where the court directs a verdict in favor of one of the parties, we must assume the truth of all credible evidence in the case tending to sustain the contentions of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom. Trionfo v. R. J. Hellman, Inc., 250 Md. 12, 15, 241 A. 2d 554 (1968); Smack v. Whitt, 249 Md. 532, 536, 240 A. 2d 612 (1968).
“The trial judge correctly stated the respective roles of court and jury with relation to the issue of ‘probable cause’ in a malicious prosecution action, paraphrasing what we said in W. T. Grant Co. v. Guercio, 249 Md. 181, 187, 238 A. 2d 855 (1968), to the effect that:
‘If the facts or inferences drawable from the “probable cause” that motivated a criminal charge are clear and undisputed, the question is one of law for the court, but if such facts or inferences are disputed, it is a question of fact for the jury. [Citation of cases omitted].’ 249 Md. at 187.”

The record would support the following facts:

Alphonse Keulemans, a native of Brussels, Belgium, was a naturalized citizen of the United States. Upon arrival in the United States he gained employment with the Giant Food Stores and remained in their employ for ten years. While so employed, the former operating manager of Montgomery Ward sought out Keulemans and asked him to become receiving stock and shipping manager at Montgomery Ward’s store in the Capital Plaza Shopping Center, Hyattsville, Maryland. He accepted. For eight years, up to the day of the events giving rise to the subject action, Keulemans pursued that employment.

A position of some responsibility, Keulemans was supervisor of twenty-six employees in his department, receiving merchandise on the dock; handling freight bills; shipping merchandise for delivery; getting merchandise to the marking room. Keulemans’ personal duties included spending about an hour a day on the store floors checking merchandise on the shelves to see that it was priced and coded correctly. In that part of his job he was required from time to time to pick up merchandise for examination, and, if necessary, for correction of improper marking. Such was Keulemans’ status on June 22, 1971. Carleton R. Johnson, a member of Montgomery Ward’s security force, had been employed at the store for about one year before the incident. He knew the status of Keulemans at the store.

The arrest, with the ensuing prosecution, was precipitated by events occurring in the store on the afternoon of June 22, 1971. The versions of those events by Keulemans and by Johnson are materially different.

Keulemans thus described his actions:

“Q Did there come a time during that day when you went to the counter in Montgomery Ward where sunglasses were sold?
A Yes, I found out in the receiving area upstairs that we had two racks of polaroid glasses that came in, and naturally we cannot touch them upstairs because that was against the regulations in the company.
Nobody can buy anything or pick something and put it on the side to be bought later. So I said, well as soon as I have a break I’ll go down on the floor and take a look and see what kind of glasses they have. The pair over People’s Drug Store didn’t fit right because that was the only thing available at that time. So I went down on the floor around 4:00 o’clock in the afternoon and went to the racks and picked up one or two pair of glasses and matched them up with my sunglasses that I had already to see that I could find, the pair that would fit better my regular glasses, and while I was doing this they paged me and called me on the intercom.
So I put the glasses that I had in my hand, I was trying to match up, back on the shelf, put mine in my pocket and went to the phone and answered my page, and they wanted me to do something right away. So I forgot about the whole thing. I just kept on doing my work.
Q Well, this display of sunglasses, did they have any of the clip-on type that you were looking for?
A Yes, but they were all the way down on the bottom. That is the way the rack comes, the regular, all Polaroid glasses are hanging on top, full glasses, and the clip-on, all the way down on the bottom.
Q How far from the floor are the clip-ons, were the clip-ons on that day?
A The clip-ons were right on the bottom of the shelf. That is no higher than this. So I had to stoop down to look at it.
Q I show you these clip-on sunglasses and ask you to identify them.
A Yes, this is the pair that I bought over People’s Drug Store.
Q When you were looking at the glasses at Montgomery Ward were you trying them on?
A On my face, you mean?
Q On your glasses?
A No; I didn’t try them on these glasses. I tried them with my glasses.
Q But you were trying them on?
A I was not trying them on' my face. I was just matching them up, you know, like this, and putting them over the pair I had already to see what — if they were bigger or smaller.
Q Did you find any bigger?
A Well, I didn’t look long enough because I got paged on the intercom, you see, and I thought this was more important than to fool around with this.
Q If you didn’t have them in your hand where did you have them?
A I was down on my knees, bent down, and I had my pair in my hand and I took a couple pairs off the shelf and compared them with mine and then every time I found one that didn’t fit I put it back on the shelf, and I took another one and fitted it.
Q What do you mean you tried two pair?
A I just took 2 pair, [off the rack] one at a time * * * I compared them and put them back.”

Johnson had arrested Keulemans solely on the basis of observations that he thus detailed:

“Q Where did you first observe him?
A I observed Mr. Keulesman down in front of the glass case, sunglass case.
Q Where were you at that — at that time?
A I was walking down the main aisle.
Q What did you see Mr. Keulesman do when he was stooping down?
A I seen Mr. Keulesman reach out and pick up three pairs or two pairs of clip-on glasses. He had three pairs in his hand, and he was reaching to get more glasses.
Q Then what did you see Mr. Keulesman do?
A He looked at the glasses and about that time he got a page. Mr. Keulemans got a page, and then they gave him a phone number to call. At that time he put two pair of glasses back. He palmed the third pair and instead of using the ■phone right directly behind him, he moved around the counter, used the phone approximately fifty feet away. And at that time he got behind the pole, got on the phone, slipped the glasses in his pocket.
Q Can you described these three glasses to me? Were they all similar?
A Yes, sir.
Q Was there anything differentiating one pair from another? Did they all look the same?
A The same. Yes, sir.”

Johnson testified that he kept Keulemans under surveillance until the latter left the store and entered his automobile at about 6:30 p.m. Again there are two versions of what then occurred.

The Keulemans version:

“Well, I worked until about 6:30 that day when I left the store I walked out to the parking lot and got in my car, started the car, and I was ready to go home when I saw Mr. Johnson running out the garage of the store.
So when I saw him running out the garage I said it looks like he’s running after a shoplifter, because I did help Mr. Johnson sometimes on security purposes. So I got — I stopped the motor of the car, got out of my car and walked to him and asked him, ‘Can I help you?’ He said, ‘No.’ He said, ‘You can’t help me.’ He said, ‘But I like to talk to you.’ I said, ‘Well,’ I said, ‘is it that important to talk to me now?’ I said, ‘because I am ready to go home.’ He said, ‘Yes; it is important. I like to talk to you in my office.’ I said, ‘Okay.’
So I walked with him to his office and when we get in his office he looked at me with a smile on his face, and he said, T finally got you, did I?’ I said, ‘What do you mean, you got me?’ He said, ‘Yes, I saw you taking a pair of clip-on sunglasses off the shelf this afternoon.’ I said, T didn’t take any clip-on sunglasses off the shelf.’ I said, — and I went in my pocket then, you see, and I showed him the glasses. I said, ‘You mean those?’ He said, ‘Yes. You took them off the shelf this afternoon.’ I said, ‘You’re wrong.’ I said, T bought them from People’s Drug Store.’ I said, ‘And I can prove that.’ So he said, — ' -
Q What if anything happened then?
A Well, then he told me I was under arrest. So when — as soon as I was under arrest I said, ‘Well, —’ I said, T better talk to the store manager or my operating manager, but none of the two were there. They were already gone. And then I said, — I asked him if I could talk to Mr. Gilgenberg.
Q Who is he?
A He is in charge of all security in the District for Montgomery Ward.
Q Did you talk to him?
A I talk to Mr. Gildenberg.
Q How did you talk to him?
A I told him what happened to me. I said to him, ‘What are you trying to do to me?’ after I explained to him what happened. So the answer he gave me, he said, ‘Well, we got laws into this country and if you didn’t take it,’ he said, ‘you don’t have anything to worry about.’ He said, ‘In the meantime,’ he said, T got to go by what Mr. Johnson told me.’ ”

The Johnson version:

“Q Did there subsequently come a time when you talked to Mr. Gilgenberg — excuse me — Mr. Keulemans after he had left the store?
A Yes, sir. To be sure to make — see if he was going to pay for the glasses or not. This occurred about four-thirty, quarter-to-five. We followed him around the store until he left. He left the store, was going to his car, and as he got to his car I stopped him and asked him would he come to the office.
Q Did he subsequently go to the office?
A Yes; he did.
Q When he came to the office did he tell you where he allegedly purchased the glasses?
A Well, I asked him about the glasses, at first. And then he got all flustered, and all, and said, T bought them at People’s.’ ”

After Keulemans had been arrested, but before he had been compelled to surrender himself to police, Johnson and Keulemans’ attorney talked with the manager of the Peoples Drug Store. The manager told them that the drug store “didn’t carry these glasses any more.” It does not appear that the manager was asked whether the drug store carried the glasses at the time Keulemans claimed he had purchased them. Two days after his arrest Keulemans contacted Mrs. Helen Temple at the Peoples Drug Store. Mrs. Temple recalled the purchase vividly. In the course of her testimony .she said:

“Q How long had you been employed at People’s Drug Store?
A Well, this July would be ten years, and I was there nine years and eight months. From 1963.
Q At the same store, Capital Plaza?
A Same store, same place.
Q Directing your attention to the month of March of 1971, at that time were you selling this type of clip-on sun glasses?
A I was. I was.
By Mr Casey:
Q Mrs. Temple. I show you Plaintiffs Exhibit No. 2 [Envelope for film bearing the date 3/12/71 and Keulemans’ name.] and ask you if you can identify that?
A Yes; I can. I can identify it as People’s — this isn’t my writing. I didn’t take this work in. But I delivered this film.
Q Do you remember who you delivered it to?
A Yes; I do. I delivered it to Mr. Keulemans.
Q At any time — at the time you delivered this film to Mr. Keulemans was there any other purchase made?
A A pair of sun glasses, the style that you have right there in your hand.
Q Is there any serial numbers or anything else on this?
A No. I mean to order I order by numbers which would describe the style, but no serial numbers.
Q Each individual glass can’t be identified?
A When I ordered them there were six in a box, , and I ordered them, I had a picture to go by by the style, and when I wanted that style I had an order number; I filled in the order number which would replace that style.
Q Now, do you recall when you made this sale of glasses to Mr. Keulemans?
A Well, it would be around in the month of March right after our new racks came in. They came in usually around February or first of March.
Q Did you know Mr. Keulemans personally?
A Not personally. No; I didn’t.”

Two of Keulemans’ fellow employees testified that they had seen him wearing clip-on glasses when he arrived at work on the morning of his arrest. Keulemans was found not guilty of shoplifting on July 26,1971.

The issue here essentially involves a determination of the question whether the facts and circumstances were such as to require the private prosecutor to make further investigation before effecting the arrest and initiating the criminal proceedings.

The Restatement of Torts, § 662, at 403-04 (1938) states the rule determining the existence of probable cause, and comments upon a duty to investigate as follows:

“TOPIC 3. PROBABLE CAUSE § 662. EXISTENCE OF PROBABLE CAUSE.
One who initiates criminal proceedings against another has probable cause for so doing if he
(a) reasonably believes that the person accused has acted or failed to act in a particular manner, and
(b) (i) correctly believes that such acts or omissions constitute at common law or under an existing statute the offense charged against the accused, or
(ii) mistakenly so believes in reliance on the advice of counsel under the conditions stated in § 666.”

Commenting on clause (a) it is said (at 405-06):

“Comment on Clause (a):
e. Mistake of fact Circumstances known to private prosecutor. It is the facts known or reasonably believed by the private prosecutor which determine the existence or non-existence of probable cause and not the facts which, although within the knowledge of third persons, are not communicated to him. If, in the light of the facts as he knows or reasonably believes them to be, a reasonable man would believe that the conduct of the accused was such as to make him guilty of the offense charged against him, the existence of exonerating facts is immaterial unless such facts would have been disclosed by such an investigation as the prosecutor should have made before initiating the proceedings, as to which see Comment i.” (Emphasis added.)

In Comment i of the Restatement the factors to- be considered in determining whether investigation should be undertaken are set out (at 408-09):

i. Mis take of fact — Necessity for inves tigation.
Circumstances known or believed by the accuser may be incriminating to the accused and yet may not so clearly indicate guilt that a reasonable man would initiate criminal proceedings without investigation. In determining whether an investigation should be made, the following factors are important; the necessity of prompt action to prevent escape; the availability of information other than that in the possession of the accuser; the existence of a ready opportunity to obtain an explanation from the person accused or to ascertain his reputation; the character of the source from which the accuser’s information comes. The accuser may properly be required to make inquiry as to the veracity of his informants where his belief is founded upon their information. He may even be required to distrust the accuracy of his own observations when they are made under such circumstances that they may be suspected of inaccuracy. In all these cases the fact that an investigation might prove dangerous, or the probability that it would be futile, are matters to be taken into account.”

The import of the Restatement rule and comments is that a failure by a private prosecutor to pursue a course of further investigation may bear heavily upon the question whether probable cause exists, if the circumstances are such that a reasonable man would have pursued such a course.

While we have been referred to no Maryland case, and we have found none, that directly related to the effect of a failure to investigate upon a determination of the existence of probable cause, some Maryland cases imply that it may be a factor of importance. See Johns v. Marsh, 52 Md. 323, 337; W. T. Grant Co. v. Guercio, 249 Md. 181, 183-84, 238 A. 2d 855, 856-57.

In Brewer v. Mele, supra, although holding that probable cause had been shown as a matter of law, the Court of Appeals discussed the question, saying at pages 449-50 [164]:

“He raises the questions, at what stage the existence of a ‘satisfactory explanation’ must be sought out and by whom? Our own prior decisions in Dorsey v. Winters, 143 Md. 399, 122 A. 257 (1923) and Lasky v. Smith, 115 Md. 370, 80 A. 1010 (1911), are not particularly helpful, both dealing with situations where explanations (in the former case, bad; in the latter case, good) were actually thrust upon private prosecutors in advance of the initiation of proceedings. Having the explanation, they could, not with impunity ignore it. Not addressing themselves to the question whether the prosecutor must seek the explanation, these cases simply speak of the inference having force in the absence of a reasonable explanation.
“As to the extent of the initial responsibility, at least so far as a law enforcement officer is concerned, we agree with the reasoning of Knapp v. Chicago, B. & Q. R. Co., 113 Iowa 532, 85 N. W. 769 (1901), where it w'as held:
‘True, an explanation is admissible, but the prosecutor is not bound to seek it unless the circumstances are such as to call for an investigation.’85 N. W. 770.
Once the investigating policeman has crossed the threshold of probable cause, we will not place upon him the additional burden of seeking out and negating possible explanations of possession, lest he press charges at his own peril.” (Emphasis added).

An excellent exposition of the rationale when and why a failure to investigate may destroy probable cause is found in Scott v. Dennett Surpassing Coffee Co., 64 N.Y.S. 1016 (S.Ct. App. Div., 2d Dept., 1900) at 1017-18:

“Probable cause, unlike malice, is not determined by standard of the particular defendant, but of the ordinarily prudent and cautious man exercising conscience, impartiality, and reason without prejudice upon the facts. Heyne v. Blair, 62 N. Y. 19, and cases cited. And so mere honest belief in guilt is not enough; it must be founded upon reasonable grounds. Farnam v. Feeley, 56 N. Y. 451; Fagnan v. Knox, 66 N. Y. 525. For though he have belief, and yet act negligently and irrationally, the prosecutor may not have probable cause. The test, then, is not exclusively limited to the actual knowledge in fact of the defendant, but may be put to any knowledge which he could or ought to have gained in the exercise of ordinary prudence and caution; and if, by such exercise, a proper investigation might have cleared away suspicious circumstances, and yet was omitted, there may be evidence of no probable cause. Add. Tort, 221; Sweet v. Smith, 42 App. Div. 502, 509, 59 N. Y. Supp. 404; Farnam v. Feeley, supra; Grinnell v. Stewart, 32 Barb. 544; 2 Greenl. Ev. 452; Barron v. Mason, 31 Vt. 189; Abrath v. Railway Co., 11 Q. B. Div. 440, 442, 450; Tabert v. Cooley, 46 Minn. 366, 49 N. W. 124, 13 L. R. A. 463. Were the rule otherwise, the omission of ordinary care and prudence would equal the exercise thereof, and rashness would rank with caution; and then, too, the question would not turn on the belief of the ordinarily prudent and cautious man, as the law is, but upon the belief of a defendant who might have been imprudent and incautious.”

Other out of state cases of similar import are: LuFont v. Richardson, 119 S.W.2d 25, 29 (Springfield Ct. of App., Mo., 1938); Eastman v. Leiser, 181 N. W. 109, 112 (S. Ct., Minn. 1921).

In the subject case, the evidence viewed in the light most favorable to Keulemans, would permit the trier of facts to reach the following conclusions:

1. That the private prosecutor received a spontaneous explanation entirely exculpatory to the accused at the very moment of confrontation, before the arrest was effected or the criminal proceedings initiated;
2. That such explanation was readily and easily susceptible to investigation before an arrest was made or the criminal proceedings initiated;
3. That the known background of the accused would militate against the likelihood of his commission of such an offense;
4. That such investigation, if made, would have persuaded a prudent and cautious man that the exculpatory information probably was true; and
5. That there were no countervailing circumstances motivating against investigation, such as personal danger to the prosecutor or a likelihood that one guilty of a crime might thereby escape justice.

We conclude, accordingly, that under these facts and circumstances the question whether there was probable cause for the arrest and for the ensuing prosecution was for the jury.

Legal Sufficiency of the Evidence as to Gilgenberg

What we have said with respect to probable cause as to Johnson applies with equal force to the appellant Gilgenberg. Gilgenberg was Johnson’s superior. It was to Gilgenberg that Keulemans turned before arrest. Gilgenberg fully sustained Johnson’s decision to arrest and to initiate criminal proceedings against Keulemans. Gilgenberg was possessed of the same basis of knowledge of the facts and circumstances then existing as was Johnson. Thus, he and Johnson are equally responsible. Banks v. Montgomery Ward & Co., supra, at 38 [603].

The Verdict for Punitive Damages

Appellants seek to isolate the jury’s determination that appellee was entitled to punitive damages in the amount of $25,000.00 and by virtue of such isolation to contend that there vps no finding of the compensatory damages essential to support a grant of punitive damages.

The case had been submitted to the jury on ten issues. On issues 1 and 3 the jury found Johnson and Gilgenberg, respectively, guilty of false arrest; on issues 2 and 4 the jury found that Johnson and Gilgenberg, respectively, were employees of Montgomery Ward acting within the scope of their employment. On issues 6 and 8 the jury found Johnson and Gilgenberg, respectively, guilty of malicious prosecution; on issues 7 and 9 the jury found Johnson and Gilgenberg, respectively, were employees of Montgomery Ward acting within the scope of their employment.

The necessary effect of the jury’s answers to issues 1, 2, 3, 4, 6, 7, 8 and 9 was that a cause of action for false arrest and malicious prosecution had been shown by the evidence against all appellants. No other conclusion is permissible.

Appellants argue, however, that the manner in which the jury responded to issues 5 and 10 demonstrates that the verdict fixing punitive damages is not supportable in law. Issues 5 and 10 (with the jury’s answers shown) were as follows:

“5. If your answer to question 1 or 3 is Yes, what damages do you assess?
Compensatory $1350.00
Punitive _
10. If your answer to question 6 or 8 is Yes, what damages do you assess?
Compensatory_
Punitive $25,000.00.”

In a “Motion for judgment N.O.V. and remittitur,” the defendants (appellants here), alleging: “There was no award of at least nominal compensatory damages to justify or to serve as a basis for the jury award of $25,000.00 punitive damages,” prayed that judgment N.O.V. as to the “verdict of $25,000.00 punitive damages” be granted or, in the alternative, that $25,000.00 of the total verdict be remitted.

In the course of his opinion denying the motion, the trial judge stated:

“In the present case, there is no doubt but that the Plaintiff proved actual loss as a result of the Defendants’ prosecution of the criminal action (which became the basis for malicious prosecution count, covered by Special Issues 6-10). There is unrebutted evidence that the Plaintiff expended Three Hundred Fifty Dollars ($350.00) in defense of the criminal charges.
“It cannot be argued that this cost was a result of the tort of false arrest. That the jury included the legal fees in the compensatory award for false arrest is insufficient to take the punitive award away for failure to prove actual damage under malicious prosecution.
"In Poe, Pleading and Practice (4th Edition Vol. I, Section 758), it is said that ‘in order to destroy the validity of a verdict, the defect must be a substantial one’. It also says that ‘the court shall work the verdict into form, and make it serve’. This Court will implement this doctrine to effectuate the intention of the jury in the present case, and not upset the verdict for the technical defect put forth by the Defendants. It is clear to the Court that the jury intended to award at least Three Hundred Fifty Dollars ($350.00) to compensate the Plaintiff for the pecuniary loss due to the malicious prosecution, and to award Twenty-five Thousand Dollars ($25,000.00) as punishment to the Defendants and to set an example to others similarly situated.
“The Court finds that the Defendants’ Motion for Judgment Non Obstante Verdicto [sic] should not be granted for the reasons stated above.”

It is appropriate here to note that proof of two, and only two, items of special compensatory damages was attempted, i.e. (a) the loss of five weeks income between the date of arrest and the date of acquittal, at $200.00 per week or $1,000.00, and (b) the $350.00 fee of counsel who represented Keulemans in the trial at which he was acquitted.

Whether or not the item of lost income may be attributable to the false arrest or to the malicious prosecution claim, or both, it is crystal clear that the damages represented by the $350.00 counsel fee are attributable to the malicious prosecution claim.

The appellants rely upon Shell Oil Co. v. Parker, 265 Md. 631, 291 A. 2d 64. We find their reliance misplaced. In Shell, Judge Barnes, speaking for the Court of Appeals, pointed out at 646 [72] that the jury was instructed [at the plaintiffs own request]:

“* * * to consider only nominal damages as defined in the charge as one cent to one dollar for a violation of a technical right of the Parkers, and is awarded to a plaintiff ‘ whose legal rights have been technically violated but who has proved no real damages.’ (Emphasis supplied.) We must conclude, therefore, that ‘the nominal one dollar’ awarded by the jury was awarded in accordance with the trial court’s instructions and was for a technical violation of the Parkers’ legal rights, and was not for compensatory damages the amount of which was not proved by the Parkers.”

In the subject case, however, the trial judge in his opinion declared in substance, that the totality of the jury’s answers to the issues compelled the conclusion that compensatory damages sufficient to support an award of punitive damages actually had been found by the jury. That conclusion is fully supported by uncontradicted evidence that actual pecuniary loss was sustained by Keulemans solely as the result of the malicious prosecution.

The trial court properly authorized extension of the punitive damage judgment under the circumstances. His right and power to do so was anciently established. In Browne v. Browne, 22 Md. 103, it was said at 115:

“We now proceed to consider the question of the sufficiency of the verdict in form. This is a material inquiry, because, if the verdict be insufficient in law, indefinite, vague or uncertain, as alleged by the appellant, no judgment could be rendered thereon by the Orphans’ Court, and a new trial would be necessary. A verdict must finally determine the issues, and be decisive between the parties. Lord Mansfield said in Hawks v. Crofton, 2 Burrows, 699: ‘Where the intention of the jury is manifest and beyond doubt, the court will set right matters of form.’ And in the same case, Justice Denison said, citing Hob. 54: ‘Though the verdict may not conclude formally or punctually to the words of the issue; yet if the point in issue can be concluded out of the finding, the court shall work the verdict into form and make it serve.’ Construed by this rule, we are of opinion, that the verdict in this case is sufficient. Looking at the issues submitted to the jury, it is absolutely certain the jury could not have found as they did, without deciding every issue in favor of the defendants. In Hawks v. Crofton, supra, Mr. Justice Foster makes this the test of the sufficiency of the verdict. Here the verdict is to the same effect as if the jury had said they found for the defendants on all the issues, which has always been held sufficient.”

Another case illustrating the principle is Davis v. Board of Education, 168 Md. 74, 176 A. 878. There, a jury had rendered a “verdict finding for the defendant damages assessed at (one cent)” in a condemnation case. The verdict failed to state the jury’s finding on the right of the plaintiff to condemn. The trial judge ordered entry of judgment for the right to condemn on the basis that the jury’s verdict implied that such right had been found by it. The action of the trial court was sustained, the Court saying at 78-79 [880]:

“What does the verdict here mean and what does it imply? If there had been an unqualified verdict for the defendant, under the terms of section 11 of article 33A, it would have been a denial of the petitioner’s right to condemn, but a verdict for the defendant with an assessment of damages means that the petitioner had the right to condemn, and, by reference ‘to the pleadings and issues,’ as Judge Miller said, the court could mold the verdict into proper shape. As said by Lord Mansfield in Hawks v. Crofton, 2 Burrows, 699, ‘where the intention of the jury is manifest and beyond doubt, the court will set right matters of form,’ and by Justice Denison, in the same case, ‘Though the verdict may not conclude formally or punctually to the words of the issue, yet if the point in issue can be concluded out of the finding, the court should work the verdict into form and make it serve’ — both quotations taken from Browne v. Browne, 22 Md. 103, 115; Diamond State Co. v. Blake, 105 Md. 570, 575, 66 A. 631. See Mitchell v. Smith, 4 Md. 403; 22 Enc. Pl. & Pr. 962.”

Because the verdict of the jury itself furnished the compensatory damage cornerstone upon which its verdict for punitive damages rested, we expressly do not pass upon the question whether proof of pleaded compensatory damages standing alone, would support a verdict for punitive damages. Judge Barnes had made reference to a line of cases sustaining such view in Shell v. Parker, supra, at 641 [70].

Judgments affirmed.

Costs to be paid by appellants.

      . An earlier appeal was dismissed as prematurely taken, the record reflecting the absence of a final judgment. See Montgomery Ward & Co., Inc. v. Keulemans, No. 517, September Term, 1973, per curiam, January 21, 1974.

      . A fourth defendant, Charles Davis, is not a party to this appeal, the action having been dismissed as to him in the trial court, without appeal.

      . The trial court granted defendants’ motion for directed verdict on the defamation count. No appeal was taken from that determination.

      . Prosser, Law of Torts, Ch. 22, § 119, at 842 (4th Ed. HB, 1971) states that, “* * * where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so.”


author: Gilbert, J.,

text:
    ALLSTATE INSURANCE COMPANY et al. v. FEDERAL INSURANCE COMPANY et al.
    [No. 56,
    September Term, 1974.]

      Decided October 16, 1974.

      The cause was argued before Thompson, Gilbert and Menchine, JJ.

      F. Gray Goudy and Herbert Burgunder, Jr. for appellants -cross-appellees.

      Delverne A. Dressel and Emanuel H. Horn, with whom were Dickerson, Nice, Sokol & Horn and Hal C. B. Clagett and Sasscer, Clagett, Channing & Bucher, on the brief, for appellees-cross-appellants.

      William L. Kaplan, with whom were Feissner, Kaplan, Smith, Joseph, Greenwald & Laake on the brief, for appellees Billy N. and Katherine Fragnoli.

      Samuel O. Jackson, Jr., with whom were Max R. Israelson, Israelson, Pines & Jackson P.A. and Louis F. Friedman and Miles & Friedman on the brief, for appellee Sarah E. Allison.
   Gilbert, J.,

delivered the opinion of the Court.

On January 10, 1972 a Cadillac, operated in a southerly direction on the Baltimore-Washington Parkway, apparently went out of control, crossed the median strip situate between the north and southbound lanes of the Parkway, and entered the northbound lane. A four car collision occurred. A number of personal injury and property claims arose against the then driver of the Cadillac, its owner, a company licensed by the Interstate Commerce Commission to transport, for a fee, motor vehicles from New York to Florida, and the individual who had contracted with the carrier to drive the vehicle to Florida.

The direct result of the multiplicity of tort actions brought against the alleged tort-feasors is that the insurance carriers for the defendants have been unable to agree as to which of them is cast in the role of primary insurer.

Max Schwartz (Schwartz), the owner of the Cadillac, together with his insurance carrier, Federal Insurance Company (Federal), filed, in the Circuit Court for Prince George’s County, a petition for a declaratory decree. The petition joined (I) the common carrier Dominick Spinelli, trading as Direct Way Auto Shippers (Spinelli), (2) Allstate Insurance Company (Allstate), the insurance carrier for Spinelli, (3) Market Insurance Company (Market), the admitted excess coverage carrier for Spinelli, (4) the contract driver of the, vehicle, Richard C. Frank (Frank), (5) the person who was driving the car at the time of the collision, James J. Straz (Straz), and (6) various persons whose claims arose out of the accident.

The record reflects that Schwartz was desirous of spending some time in Florida. In response to a newspaper advertisement he contacted Spinelli, who agreed to have Schwartz’s vehicle driven to Florida for a charge made in accordance with the tariff promulgated by the Interstate Commerce Commission (ICC). Schwartz executed a Bill of Lading in which he agreed to pay Spinelli ninety dollars. Fifty dollars was paid to Spinelli at the time of execution of the Bill of Lading, and the balance was to be paid in Florida upon the delivery of the automobile. Schwartz further agreed that his vehicle was insured by a responsible automobile insurance carrier.

At the same time that the newspaper advertisement for the solicitation of business was appearing in the New York Times, another advertisement was placed by Spinelli in The Village Voice. The Village Voice advertisement solicited persons to drive motor vehicles to Florida. Frank answered that advertisement and agreed to drive Schwartz’s Cadillac to its destination. By the terms of Frank’s written agreement with Spinelli, Frank paid forty dollars to Spinelli. Spinelli was then in receipt of the total ninety dollars tariff. Frank was, upon arrival in Florida, to collect from Schwartz the forty dollars balance and to keep the same. Patently Frank’s only payment was free transportation, but he was responsible for gas and oil used in the course of the trip.

Frank had arranged with two other persons, Straz and Katherine Fragnoli, to travel with him to Florida. There is a conflict in the depositions filed in this proceeding as to whether either Schwartz or Spinelli knew that other persons would accompany Frank. In any event, the Bill of Lading provided that the carrier might transport persons other than the driver if the same was not done for hire. Frank, Straz and Fragnoli had agreed amongst themselves that they would share equally the cost of the drive to Florida. No one paid Spinelli to ride in the Cadillac and the “for hire” exception is not before us. Frank drove the Cadillac from New York to somewhere in New Jersey where Straz took over the driving, and, as we have previously stated, he was the driver at the time of the incident giving rise to the instant ligitation.

Allstate and Spinelli argue that because Straz was driving the Schwartz vehicle with the permission of Schwartz, Federal is responsible for primary coverage under its policy, and Allstate is responsible only for any excess over and above Federal’s policy limits. Schwartz and Federal take a different view. They contend that Allstate is the insurer responsible for primary coverage because of its ICC endorsement on the policy issued to Spinelli. Secondly, Federal and Schwartz assert that Straz drove the vehicle without the consent, expressed or implied, of Schwartz, and Straz’s driving was unauthorized. Ergo, Federal argues that it is not responsible for primary coverage and, in fact, is not even responsible for excess coverage.

Judge James F. Couch, Jr. held Allstate responsible for primary coverage, and Market, by virtue of its policy with Allstate, liable to the limits of its policy for any excess. Federal, Judge Couch ruled, is liable for any excess sum, to the limits of its policy, that may be required for settlements or satisfaction of the judgments arising from the personal injuries or property claims if they exceed the combined policy limits of Allstate and Market. Allstate and Federal take issue with the judgment of the trial court, and both have appealed to this Court. We conclude, however, for the reasons stated infra, that Judge Couch was substantially correct, and we accordingly affirm the judgment as herein modified.

At the outset of our discussion we note that one of the parties to this litigation filed a “Notice of Intent to Rely Upon Foreign Law”, “Uniform Judicial Notice of Foreign Law Act.” See Courts and Judicial Proceedings Article, §§ 10-501 — 10-507. But, whether the case is governed by the law of the State of New York, i.e., where the agreement between Spinelli and Schwartz was made; New Jersey, where Federal’s policy to Schwartz was “countersigned”; or Maryland, where the accident actually happened, does not present any difficulty. All three of the jurisdictions follow the principle that insurance coverage exists where, as here, the use of the vehicle at the time of the accident was within the scope of the permission granted. Cohen v. Am. Home Assurance Co., 255 Md. 334, 258 A. 2d 225 (1969); Hanover Insurance Co. v. Miesemer, 42 Misc. 2d 881, 249 N.Y.S.2d 87 (1964); Indemnity Ins. Co. v. Metropolitan Cas. Ins. Co. of N. Y., 33 N. J. 507, 166 A. 2d 355 (1960).

Federal argues that its policy does not provide coverage because Straz was operating the Schwartz vehicle without the permission of Schwartz, the named insured. It points to the terms of its policy, which in pertinent part provides:

“1. The first paragraph of ‘Persons Insured’ is amended to read: Persons Insured
The following are insureds under Part 1:
(a) with respect to the owned automobile,
(1) the named insured and any resident of the same household,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation of (if he is not operating) his other actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a) (1) or (2) above; . . .”

The policy further provided:

“If the insured has other insurance against a loss covered by Part 1 of this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile, shall be excess insurance under any other valid and collectible insurance.”

Federal reads the above quoted language to mean that it is not responsible as either primary or excess carrier.

We, however, agree with Allstate that Federal afforded coverage to Frank and Straz because both were “permissive” drivers. Frank’s permission was obtained by implication as a result of the Bill of Lading signed by Schwartz, while Straz’s authority to drive Schwartz’s vehicle is derived through Frank. Frank’s grant of authority to Straz conferred upon Straz the permission necessary to bring Straz within Federal’s coverage. In Maryland Indem. Ins. v. Kornke, 21 Md. App. 178, 319 A. 2d 603 (1974) we discussed a situation wherein a minor son was given permission by his father to operate the father’s automobile. The father specifically forbade his son’s allowing anyone else to drive the car. The son was injured in an attempt to fix the motor vehicle, and he, notwithstanding his father’s admonition relating to someone else’s driving the car, allowed Lynanne Hampshire to drive. While operating the vehicle, Miss Hampshire struck a bridge abutment. Maryland Indemnity maintained that Nationwide, Miss Hampshire’s insurance carrier, was primarily responsible because Miss Hampshire was operating the Kornke vehicle without the expressed or implied permission of the owner. It contended that Mr. Kornke’s instructions to his son that no one else drive the car other than the son precluded coverage by Maryland Indemnity. Judge Moore, speaking for this Court, said at 191 -192:

“From our review of Court of Appeals decisions dealing with the construction of omnibus clauses and with appropriate deference to United States District Court decisions making ‘informed predictions’ as to future Maryland appellate rulings, we conclude that in Maryland:
(1) Where coverage is extended by the omnibus clause only to persons using the vehicle with the permission of the named insured (or other designated person) coverage depends upon the scope of the permission granted.
(6) Nevertheless, the thrust of Maryland decisions is that in determining whether the operation is within the permission required by the omnibus clause ‘one must examine the total facts,’ and the facts of paramount significance respecting a clause for permitted use (as against permitted operation) do not pertain to the identity of the driver but to whether at the time of the accident the operation of the car was for a purpose germane to the permission granted, whether it was for the convenience of the named insured or the first permittee, and whether the latter was present in the car at the time of the accident.”

The construction placed by Judge Moore upon the automobile insurance policy omnibus clause is supported by Melvin v. American Auto. Ins. Co., 232 Md. 476, 194 A. 2d 269 (1963) and Casualty Co. v. Mitnick, 180 Md. 604, 26 A. 2d 393 (1942). In the latter case, Chief Judge Bond, for the Court of Appeals, said that “using a car in the ordinary acceptation of the words seems clearly to include a borrower’s making use of it by riding while driven by another.” See also 7 Am.Jur.2d Automobile Insurance § 117, where it is stated:

“The ‘general rule’ that a permittee may not allow a third party to ‘use’ the named insured’s car has generally been held not to preclude recovery under the omnibus clause where (1) the original permittee is riding in the car with the second permittee at the time of the accident, or (2) the second permittee, in using the vehicle, is serving some purpose of the original permittee. The courts generally reason that under such circumstances the second permittee is ‘operating’ the car for the ‘use’ of the first permittee and that such ‘use’ is within the coverage of the ominbus clause. While some courts apparently would limit this qualification of the general rule to situations where the named insured has not specifically forbidden driving by a third person, it is more generally -held that operation by a third person under such circumstances falls within the protection of the omnibus clause even where such operation is specifically forbidden by the named insured.” (Footnotes omitted).

Judge Moore, after examining the “total facts” in Kornke, opined at 193:

“. . . [T]hat William, Jr. was still ‘using’ his father’s car, even though Lynanne Hampshire was driving the car at the time of the accident, and that the ‘actual use’ was with the permission of William, Sr. Certainly, at the time of the accident, the operation of the car by the second permittee [Miss Hampshire] was for a purpose germane to the permission granted by father to son; it was, at the very least, for the convenience of the first permittee [the son] (if not, indeed, a matter of necessity in the light of the son’s testimony), and, of course, the first permittee [the son] was present in the car at the time of the accident.”

The instant case is analogous on its facts to Md. Indem. Ins. v. Kornke, supra. Spinelli was authorized to ship the car. Schwartz knew that a driver would be retained to drive the vehicle to Florida, and, by the terms of the Bill of Lading, he authorized a person selected by Spinelli, who happened to be Frank, to drive the car. Frank was present in the vehicle while Straz was driving. Although Schwartz now says that he had a verbal understanding with Spinelli’s representative that only one person would drive the vehicle, the Bill of Lading is silent as to such a provision. Moreover, Schwartz’s statement is categorically denied by the Spinelli employee who picked up the car from Schwartz. The Bill of Lading allows persons other than the contract driver to be in the car. In clear and unambiguous language the Bill of Lading provides:

“(1) The owner consents that the driver may transport persons authorized by the carrier but not for hire. Subject to the terms and conditions published herein.”

We have perused the terms and conditions of the Bill of Lading and fail to find any prohibition relative to persons in the vehicle other than “for hire”. We think the above quoted proviso of the Bill of Lading obviously places a shipper on notice that others may be in the car and gives rise to a strong inference that the other person may even drive the car.

We do not observe anything in the facts of this case that would remove Straz from the category of a permissive driver. The use being made of the Schwartz car at the time of its involvement in the collision was within the scope of the permission granted by Schwartz. Cohen v. Am. Home Assurance Co., supra. We are persuaded that Straz’s operation of Schwartz’s vehicle was in keeping with Schwartz’s 'purpose, that being the transportation of the car to Florida.

Federal further argues that Spinelli was engaged in the “automobile business” and that Federal’s policy specifically excludes coverage for such use. It points to the case of Midwest Mutual Ins. Co. v. Federal Ins. Co. of N.J., 289 So. 2d 760 (Fla. App. 1974), cert. denied, 289 So. 2d 760 (1974) to support its contention. While Midwest, supra, held a drive-away operation to be an “automobile business”, we are not persuaded by the opinion in that case. “Automobile business”, as defined by Federal in its policy, “means the business or occupation of selling, repairing, servicing, storing or parking automobiles.” Spinelli’s business of transporting automobiles does not, as we see it, fall within Federal’s own definition.

We, therefore, hold that Federal is responsible under the terms of its policy for the negligence, if any, of Straz. Ordinarily, under the rationale of Maryland Indem. Ins. v. Kornke, supra, Federal would be deemed to be the primary carrier, but the interposition of the ICC Rules and Regulations causes us to view the matter in a different light.

Judge Couch reasoned that “ . . . Federal law is applicable for the determination of rights and obligations of the respective insurers.” The trial judge patently was guided by Tudor Arms Apts. v. Shaffer, 191 Md. 342, 62 A. 2d 346 (1948); Hettleman v. Frank, 136 Md. 351, 110 A. 715 (1920); and Barsallo v. Barsallo, 18 Md. App. 560, 308 A. 2d 457 (1973), in which it has been held that the courts of this State shall take judicial notice of the Acts of Congress and the rules and regulations of the Federal agencies. In Hettleman, supra, the Court of Appeals quoted from 26 R.C.L. 1430 wherein it is said:

“It may be laid down as a general rule, deducible from the cases, that whenever, by the express language of an Act of Congress, power is entrusted to either of the principal departments of government to prescribe rules and regulations for the transaction of business in which the public is interested, and in respect of which they have a right to participate, and by which they are to be controlled, the rules and regulations prescribed in pursuance of such authority become a mass of that body of public records of which the courts take judicial notice. Such regulations cannot be questioned or defined, because they may be thought unwise or mistaken; and are regarded as having the force of law.”

The Interstate Commerce Act provides in § 315:

“No certificate or permit shall be issued to a motor carrier or remain in force, unless such carrier complies with such reasonable rules and regulations as the Commission shall prescribe governing the filing and approval of surety bonds, policies of insurance, qualifications as a self-insurer or other securities or agreements, in such reasonable amount as the Commission may require, conditioned to pay, within the amount of such surety bonds, policies of insurance, qualifications as a self-insurer or other securities or agreements, any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from the negligent operation, maintenance, or use of motor vehicles under such certificate or permit, or for loss or damage to property of others. . . . The Commission may prescribe, with respect to motor carriers operating within the United States in the course of engaging in transportation between places in a foreign country or between a place in one foreign country and a place in another foreign country, such reasonable regulations concerning security for the protection of the public as the Commission is authorized, by this section, to prescribe for other motor carriers.”

In order to comply with the Rules and Regulations of the ICC, Spinelli was required to demonstrate that he possessed the requisite insurance coverage. He obtained from Allstate an endorsement on the policy issued to him. The endorsement is entitled, “ENDORSEMENT FOR MOTOR CARRIER POLICIES OF ' INSURANCE FOR AUTOMOBILE BODILY INJURY AND PROPERTY DAMAGE LIABILITY UNDER SECTION 215 OF THE INTERSTATE COMMERCE ACT.” The endorsement reads in pertinent part:

“Within the limits of liability . . . provided it is further understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, or any other endorsement thereon or violation thereof, or of this endorsement, by the insured, shall relieve the Company from liability hereunder or from payment of any such final judgment. . . .” (Emphasis supplied).

The United States Court of Appeals, Tenth Circuit, in Argonaut Insurance Co. v. National Indemnity Co., 485 F. 2d 718 (1971), had before it a case similar to the instant matter. There, Argonaut issued a liability policy to Auto Driveaway Company whose business was to transport motor vehicles from one location to another. National Indemnity issued a policy to Executive Car Leasing Company which was engaged in the business of leasing cars to the public. Both policies, as in the instant case, were in force at the time of the accident. One Nancy Blankenship, through arrangements made with Driveaway, took possession of a motor vehicle owned by Executive in order to transport it to Los Angeles. While en route to her destination, she disobeyed a stop sign in Oklahoma and collided with another car. The motorist in that car sustained fatal injuries. The decedent’s estate sued both Driveaway and Blankenship. Executive’s insurer refused to defend. Argonaut defended the case and ultimately made a settlement of fifty-five thousand dollars. Argonaut then sued National Indemnity in the belief that National, being the insurer of the automobile being driven by Blankenship, was responsible for primary coverage. The Court said at 720-721:

“Blankenship had possession of the car under authority from Driveaway and drove negligently. The ICC endorsement [which endorsement is identical to that in the case now before us], although not expressly referring to the ‘other insurance’ provisions, says that no condition, provision, stipulation, or limitation of the policy ‘shall relieve the Company [the insurer] from liability hereunder.’ If the Argonaut position is accepted, it will be relieved from any liability except for excess coverage. We believe that the effect of the endorsement was to make Argonaut the primary insurer.
Whatever may be the liability of National under ’ its policy, we agree with the trial court that ‘. . . Argonaut escape the plain terms of its insuring agreement in this case.’ The ICC endorsement imposes primary liability and eliminates any need for consideration of the effect of the identical ‘other insurance’ clauses. We have no question of excess because the recovery was within the limits of the Argonaut policy.”

The Argonaut decision has been followed in Aetna Casualty and Surety Company v. Arkin, 365 F. Supp. 813 (N.D. Ill. 1973) and Hagans v. Glens Falls Insurance Co., 465 F. 2d 1249 (10th Cir. 1972). We are persuaded that the reasoning of Argonaut is sound, and we adopt it. In so doing, we expressly reject the rationale of Marwell Const., Inc. v. Underwriters at Lloyd’s, Lon., 465 P. 2d 298 (Alaska, 1970), National Mutual Ins. Co. v. Liberty Mutual Ins. Co., 196 F. 2d 597 (1952), and American Fidelity & Cas. Co. v. Pennsylvania Cas. Co., 97 F. Supp. 965 (1950), relied upon by appellant, and which hold to the contrary. Moreover, we think that Carolina Casualty Insurance Company v. Transport Indemnity Company, 488 F. 2d 790 (10th Cir. 1973), also relied upon by Allstate, to be factually inapposite. There the court was concerned with two ICC endorsements and the relative position of each carrier with respect to liability. The court suggested, however, that- its decision was predicated upon an attempt to avoid circuity of actions.

Under Allstate’s theory of the coverage afforded by its policy, the only exposure to which it would ever be subjected, insofar as transporting vehicles of another is concerned, would be that of an excess carrier. It would never provide primary coverage because it would always be in a position to contend successfully that the vehicle was insured by another company even though it was being transported by Allstate’s insured. We think, however, that such a theory is unsound and is in conflict with the endorsement contained in its policy to Spinelli as well as with Section 215. In our view the intent of Congress and the ICC was that the insurance company which wrote the ICC endorsement would be responsible for primary coverage, both as a matter of law and of public policy. Aetna Casualty and Surety Company v. Arkin, supra.

Paraphrasing Mr. Justice Jackson, dissenting, in United States ex rel. Marcus v. Hess, 317 U. S. 537, 557, 63 S. Ct. 379, 391, 87 L. Ed. 443, 456 (1943), if ever we were justified in reading a required endorsement in an insurance policy, ICC rule and statute, not narrowly as through a keyhole, but in the broad light of the evils at which they are aimed and the protection they seek to accomplish, it is here.

Hagans, supra, follows “the teaching of Argonaut” that the ICC endorsement on an insurance policy makes the company issuing the endorsement responsible for primary coverage both as a matter of law and public policy.

Although Spinelli’s policy from Allstate was written in limits of $50,000 to each person arising out of each accident and $100,000 each accident, the ICC endorsement limited liability to $25,000 each person and $100,000 each accident. We hold, therefore, that Allstate, because of the ICC endorsement, is the primary coverage insurer to the extent of $25,000 per person and $100,000 per accident.

As we have previously stated, under the rationale of Maryland Indem. Ins. v. Kornke, supra, Federal would be the primary carrier, and it is only the ICC endorsement that projects Allstate into the primary position ahead of Federal. Federal is then relegated to the second position immediately behind Allstate’s ICC coverage of $25,000/$100,000. If Federal’s policy limits are then exceeded by way of settlement or judgment, Allstate reenters the matter as an excess carrier to the extent of its original policy limits, less payment made to any one person or one occurrence under the ICC endorsement limit. Market is responsible to the extent of its policy limits for all settlements or judgments that exceed the Allstate, Federal, Allstate policies. To recapitulate, we hold that each insurance carrier is liable in the order and amount as follows:

1. Allstate is the primary carrier, under the ICC endorsement, for all settlements or judgments to the policy limits of $25,000 each person, $100,000 each occurrence.
2. Federal is then liable for excess, to the extent of its policy limits.
3. Allstate, as an excess carrier, is then responsible to the extent of its unused policy proceeds, if any.
4. Market as an excess carrier is responsible, to the extent of its policy limits, for any recovery by way of settlements or judgments over and above the combined coverage of Allstate and Federal as set forth in 1, 2 and 3 above.

Judgment modified mid, as modified, affirmed.

Costs to be paid: one-half by appellants cross-appellees, Allstate Insurance Company and Market Insurance Company; one-half by appellee cross-appellant, Federal Insurance Company.

      . The Bill of Lading, signed by Schwartz, also provided that Spinelli could make such repairs to the vehicle as may have been necessary during the course of the drive if no one repair exceeded twenty dollars, but any repair in excess of twenty dollars required Schwartz’s permission. It so happened that between the time the vehicle was picked up from in front of Schwartz’s residence and its delivery to Frank, the water hose burst and a repair of approximately twenty-two dollars was made. The twenty-two dollars was also collected by Spinelli from Frank. Frank also was to obtain reimbursement for that sum from Schwartz when he delivered the car and collected the forty dollars balance. No explanation is contained in the record as to why the expenditure for this item was not first approved by Schwartz.

      . Part II of the Interstate Commerce Act. Feb. 4, 1887, c. 104, Pt. II, § 201, as added Aug. 9, 1935, c. 498, 49 Stat. 543, and amended Sept. 18, 1940, c. 722 Title I, § 15, 54 Stat. 919.

      . Enacted by the 74th Congress, Sess. 1, Ch. 498, August 9, 1935 as § 215, “Security for the Protection of the Public”, as part of the “Motor Carrier Act, 1935”. It is now codified as Part II, Interstate Commerce Act. It may be found at 49 U.S.C.A. § 315.

      . See n. 3.

      . The Court of Appeals in Consol. Ins. Co. v. Bankers Ins. Co., 244 Md. 392, 223 A. 2d 594 (1966) dealt with “Other insurance” clauses. They said at 396:
      “In cases where two or more of these ‘other insurance’ clauses conflict, most courts resolve the problem of double coverage by attempting to reconcile the conflicting clauses. This Court has followed this approach. Celina Mutual Casualty Co. v. Citizens Casualty Co., 194 Md. 236, 71 A. 2d 20, 21 A.L.R.2d 605 (1949); Citizens Casualty Co. of N.Y. v. Allied Mutual Ins. Co., 217 Md. 494, 144 A. 2d 73 (1958); Zurich Insurance Co. v. Continental Casualty Co., 239 Md. 421, 212 A. 2d 96 (1964). . . ." (Footnote omitted).
      The Court went on to state at 399:
      “Where an excess clause and a pro-rata clause appear in concurrently effective automobile liability policies, the majority of courts have'disregarded the pro-rata clause and given full effect to the excess clause, making that insurer the ‘excess' insurer only.”
      The Court held that “in a conflict between an excess clause and a pro-rata clause, the excess clause” controls.
      In the instant case there is a conflict between the pro-rata clause and the excess clause of the Federal policy. The conflict is brought about largely because of the ICC endorsement in the Allstate policy. Therefore, under the case of Consol. Ins. Co. v. Banker, supra, the excess clause, not the pro-rata clause, controls.