author: Menchine, J.,

text:
    ASSOCIATED BUILDERS AND CONTRACTORS OF MARYLAND, INC. et al. v. COMMISSIONER OF LABOR AND INDUSTRY et al.
    [No. 490,
    September Term, 1975.]

      Decided April 13, 1976.

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

      Joseph I. Huesman, with whom were Lerch & Huesman on the brief, for appellant Associated Builders and Contractors of Maryland, Inc. Fulton P. Jeffers, with whom were James P. Bailey and Heame, Fox & Bailey on the brief, for appellant Board of Education of Wicomico County.

      Henry R. Wolfe, Special Assistant Attorney General, with whom was Francis B. Burch, A ttomey General on the brief, for appellee Commissioner of Labor and Industry. Stephen B. Caplis, with whom was Peter G. Angelos on the brief, for appellee Baltimore Building and Construction Trades Council AFL-CIO.
   Menchine, J.,

delivered the opinion of the Court.

The common issue in these appeals is the question whether the provisions of the Prevailing Wage Law (Md. Code Article 100, §§ 96-107, 1975 Cum. Supp.) apply to separate construction projects in Wicomico and Talbot Counties.

The issue had been raised before the Commissioner of Labor and Industry by separate actions by the Board of Education of Wicomico County and by the Board of Education of Talbot County. The facts giving rise to the issue are not in dispute and will be set forth herein under the headings: (a) The Wicomico County Project; and (b) The Talbot County Project.

The Facts

(a) The Wicomico County Project. .

The Board of Education of Wicomico County had proposed an addition to the existing Delmar Elementary School that included: (a) the use of maple wood flooring within a gymnasium; and (b) replacement of the roof over the existing multi-purpose room of the school. The Interagency Committee of the Board of Public Works of Maryland excluded the use of State funds for the recited items. Wicomico County thereupon undertook to pay for the items, a contribution of $25,000.00 to the total project cost of $2,278,565.00. The project then was to be contracted as initially planned.

(b) The Talbot County Project.

The Board of Education of Talbot County had proposed an addition to the Easton Area Senior High School consisting of a new auditorium with a seating capacity for 1270 persons. The Interagency Committee of the Board of Public Works of Maryland had excluded the use of State funds to provide a seating capacity exceeding 1000 persons. Talbot County thereupon undertook to pay the cost of the additional 270 seats, a contribution of $110,000.00 to the total project cost of $1,087,997.00. The project then was to be contracted as initially planned.

The Proceedings Before the Commissioner

(a) The Wicomico County Project.

The Board of Education of Wicomico County, by letter dated August 7, 1974, requested the Commissioner of Labor and Industry to determine that § § 96-107 of Code Article 100 did not apply to the Delmar Elementary School project. After investigation and hearing and purporting to act under § 101 of that Article, the Commissioner reached, inter alia, the following conclusions:

“In Wicomico County a contribution of $25,000.00 represents approximately one cent on the real property tax rate.

“It is agreed by all parties that the contribution is not being made for the purpose of avoiding the effect of the prevailing wage statute.

“The purpose of the contribution is bona fide within the meaning of the law.”

He then made a determination that Code Article 100, §§ 96-107 “is not applicable to the Delmar Elementary School Project, Wicomico County, Maryland.”

Associated Builders and Contractors of Maryland, Inc.; Baltimore Building and Construction Trades Council, AFL-CIO and the Board of Education of Wicomico County had been interested parties at the hearing. Baltimore Building and Construction Trades Council, AFL-CIO, aggrieved by the Commissioner’s decision, filed an appeal to the Baltimore City Court.

fb) The Talbot County Project.

The Board of Education of Talbot County, by letters dated September 30, 1974 and October 11, 1974, requested the Commissioner of Labor and Industry to determine that §§ 96-107 of Code Article 100 did not apply to the Auditorium Addition to Easton Area Senior High School Project. After investigation and hearing, and purporting to act under § 101 of that Article, the Commissioner reached, inter alia, the following conclusions:

“That the plans and specifications submitted by Talbot County provide for the construction of the auditorium with seating capacity increased to 1270.

“That the increased seating capacity of the auditorium by Talbot County is for the stated purpose that said auditorium will be used as a cultural center for residents of Talbot County.

“That the contribution of Talbot County towards the estimated total cost of the project is the cost of the additional seating over and above the 1000 seat capacity approved by the State Interagency Committee.

“That the contribution by the County for the additional seating is for a community purpose rather than an education purpose, and is not a bona fide purpose within the meaning of Article 100, Sections 96-107, Annotated Code of Maryland f 1974 Supplement).”

He then made a determination that Code Article 100, §§ 96-107 “is applicable to the Talbot County Auditorium Addition to Easton Area Senior High School [Project], Talbot County, Maryland.”

Associated Builders and Contractors of Maryland, Inc., Baltimore Building and Construction Trades Council, AFL-CIO and the Board of Education of Talbot County had been interested parties at the hearing. Associated Builders and Contractors of Maryland, Inc. and the Board of Education of Talbot County, aggrieved by the Commissioner’s decision, filed an appeal to the Baltimore City Court.

The Proceedings in the Baltimore City Court

Both appeals were heard in the Baltimore City Court on March 3, 1975. The Commissioner’s decision in the appeal concerning the Wicomico County Project was reversed; his decision in the appeal concerning the Talbot County Project was affirmed. In sum, the trial court decided that both projects came within the purview of the Prevailing Wage Law.

The Decision

We shall reverse. We hold that both projects are without the purview of the Act. That public school construction contracts may be public works within the purview of the provisions of the “Prevailing Wage Law” is not open to doubt. Demory Brothers v. Board of Public Works, 20 Md. App. 467, 316 A. 2d 529 (1974), affirmed 273 Md. 320, 329 A. 2d 674 (1974). This is not to say, however, that the provisions of the Prevailing Wage Law become enlarged in scope or broader in application when a particular contract involves in whole or in part the construction of public schools. Otherwise stated, the issue or question whether the Prevailing Wage Law is applicable in a particular case depends upon whether such project falls within the definitions of “construction” of “public works” by a “public body” as defined in § 96, subsections (b), (c), (d) (1) and (d) (2) of Code Article 100. That issue or question is not influenced by the circumstance that the contract for the “construction” of “public works” perchance involves school construction.

The above noted subsections of § 96 of Code Article 100 read as follows:

“(b) ‘Construction’ includes all construction, reconstruction, improvement, enlargement, painting and decorating, alteration, maintenance or repair.
(c) ‘Public works’ includes all buildings, bridges, roads, streets, alleys, ditches, sewage disposal plants, waterworks, and all other structures or works, constructed for public use or benefit or paid for wholly or in part out of public funds, except work done by any public utility company pursuant to order of the Public Service Commission or other public authority, whether or not done under public supervision or direction or paid for wholly or in part out of public funds, unless let to contract provided, however, that for the purposes of this subtitle contracts of less than $500,000 shall be excluded.
(d) (1) Public body’ means the State or any department, officer, board, commission, agency or instrumentality of the State, and shall include any other agency, political subdivision, corporation, person or entity of whatever nature when State public funds are the only funds used for the construction of a particular public works, but, except when made applicable pursuant to the provisions of paragraph (2) of this subsection, this term shall not mean any State agency or instrumentality funded wholly from sources other than the State, nor shall it mean any county or municipal corporation, or any department, officer, board, commission, or agency thereof, when funds other than State funds are used either in whole or in part for the construction of public works.
(2) The governing body of any political subdivision of this State may provide by resolution or ordinance that the political subdivision shall be covered by this subtitle and included within the scope of its provisions and any such political subdivision shall constitute a ‘public body’ within the meaning of this subtitle when the Commissioner is notified in writing by the governing body that such action has been taken.” (Emphasis added.)

We note at the outset that neither Wicomico County nor Talbot County has provided by resolution or ordinance that those political subdivisions shall be covered by the Prevailing Wage Law. Thus subsection (d) (2) has no application to either County.

Unlike the contract under consideration in Demory, supra, the items in both the Wicomico County and Talbot County projects for which each County provided funds, plainly fell within the words “Construction” and “Public Works” as defined in the Prevailing Wage Law. In short, it is undisputed here that in both projects County funds were used “in part for the construction of public works.”

We believe it to be immaterial that Wicomico County’s expenditure was limited to but $25,000.00. The Court of Appeals in Demory, supra, questioned the propriety of application of the doctrine of de minimis non curat lex qnd although finding it unnecessary to decide the question, commented:

“Since we have found that no real cost was incurred by the payment of these permit fees, it is not necessary that we decide whether the de minimis doctrine is applicable in this case. We point out, however, that the legislative history of the ‘Prevailing Wage Law’ could make it extremely difficult to apply that law to a project in which any funds other than State funds were utilized. It must be remembered that when the law was enacted in 1969, its provisions were excluded from projects funded ‘primarily from sources other than the State.’ Chapter 558, Laws of Maryland, 1969. The 1971 amendment, however, deleted that provision and specifically provided that the law should be applicable ‘when state public funds are the only funds used for the construction of a particular public works.’ Chapter 220, Laws of Maryland, 1971. We assume, without deciding, that when the Legislature said ‘only,’ it meant ‘only.’ ” 273 Md. at 332, 329 A. 2d at 680.

In the subject case, the Wicomico County funding operated to impose an added cost upon the property owners within its borders equal to one cent upon the tax rate. Moreover, the uncontradicted evidence shows that “the contribution [was] not being made for the purpose of avoiding the effect of the prevailing wage statute.” Under such circumstances, we too find it unnecessary to decide the de minimis question.

It is also wholly immaterial that Talbot County’s very substantial expenditure of $110,000.00 was made “for a community purpose other than an education purpose.” The uncontradicted evidence shows that the increase of 270 seats in the school auditorium was provided for the benefit of the citizens of Talbot County and plainly fell within the definitions of “Construction” and “Public Works” in the Prevailing Wage Law.

In the proceedings before the Commissioner, the architect and engineer of the Talbot County Project explained at some length the basis of need for an auditorium seating 1270 rather than 1000 persons. He testified, inter alia, as follows:

“Is there anything you want to tell us about this particular project? Anything you could tell us, such as why it’s being enlarged — and the nature —
A You mean why the auditorium is —
MR. SAUL: No.
A Why it’s larger than — well, Talbot County goes in for a lot of plays and concerts and things like that and it’s really an auditorium for the entire county and not just for Easton High School, but they treated it as to Easton High School....
Q Will the auditorium be located on the school grounds?
A Attached to existing building.
Q And look like a part of the existing building, upon completion?
A That’s right.
Q ... As I understand it, the Talbot County Board of Education, did apply to the interagency commission, to fund this entire project.
Is that correct?
A That’s correct.
Q But the interagency commission has indicated by this letter of October 21, exhibit 1, declining to do so?
A That’s correct.
Q And it was on that basis that the county then agreed, according to their letter of October 16, exhibit 9, to budget an estimated $115,000?
A 115 -
Q For this project?
A And they will go more if necessary, based on the formula that I mentioned. ... 11 square feet per seat. See, it takes seven and a half per seat in the auditorium, plus the aisles and corridors which we rounded off at 11 square feet per seat, plus the cost of the seat.
Q Mr. Elliott, you said that the local citizens wanted at least 170 [sic] seats?
A That’s right.
Q Is that the community council of some sort?
A Well, it is the county council, formerly county commissioners — they are called the county council now and the citizens.
[Talbot County citizens] have to go to Queen Anne for all their concert and plays, which has a 1260 seat capacity.
Q You say —
A In other words, they want a larger auditorium that is normally allowed for —
Q Cultural and social activity for the county in general?
A That’s right.
Really the county council went along with it because it’s for the whole —
Q Right, and the county commission, which is now the county council, has, as you have indicated here — they had a request by the citizenry and so on, and the leaders of the community, and they agreed to put up the differential, which is roughly $115,000?
A That’s right.
Q Would it also be fair to say, as you testified, that the county commission or county council consistent — with their decision — prepared to pay even more to accomplish this extra —

A They expected to pay in excess of $115,000 when they started out.

First, they wanted to pay for two sets of plans, one with 1270 and one with 1,000. That didn’t work out, even though it made a bigger fee for me.
It wasn’t fair to the contractors or to anybody, so then, we worked out this formula with the interagency and it’s better for all concerned.”

The Talbot County project was no less a “Public Works” because it served both education and other “public uses and benefits.” Code Article 100, § 96 (c), supra.

Because both projects involve “funds other than State funds . . . used ... in part for the construction of public works” (§ 96 (d) (1), supra), neither is within the purview of the Prevailing Wage Law.

Judgments reversed.

Three-fourths of the costs to be paid by the appellee Baltimore Building and Construction Trades Council, and one-fourth of the costs to be paid by the appellee Commissioner of Labor and Industry.

      . Three appeals in one record. Two cases were docketed in the Baltimore City Court. Baltimore City Court case No. 096057 related to the Wicomico County Project and was docketed as entitled: “Baltimore Building and Construction Trades Council, Appellant [below] v. Associated Builders and Contractors of Maryland, Inc. and the Board of Education of Wicomico County, Appellees [below].” Both Associated Builders and Contractors of Maryland, Inc. and the Board of Education of Wicomico County, appellees below, are the appellants in the appeal of that case to this Court. Baltimore City Court case No. 096292 related to the Talbot County Project and was docketed as entitled: “Request for Waiver of Applicability of Prevailing Wage Law for Talbot County Auditorium Addition to Easton Area Senior High School, Talbot County, Maryland.” In the latter case Associated Builders and Contractors of Maryland, Inc. was the actual appellant below and is the appellant in the appeal of that case to this Court. Baltimore Building and Construction Trades Council and Commissioner of Labor and Industry were the actual appellees below in the latter case and are appellees in all cases in this Court.

      . Gymnasium flooring $12,000.00; roof replacement $13,000.00.

      . Article 100, § 101 reads as follows:
      “§ 101. Investigations.

      (a) Object of investigations; observation of work; interviewing employees; review of books and records; complaints; statements by employee treated as confidential. — The Commissioner shall cause investigations to be made as may be necessary to determine whether there has been compliance with provisions of this subtitle and the regulations promulgated thereunder. Contractors and subcontractors on public works shall permit representatives of the Commissioner to observe work being performed upon the work site, to interview employees and to review the books and records on the project being investigated to determine the correctness of classifications, ratios of apprentices to mechanics and payment of proper regular and overtime wage rates as required. Complaints of alleged violations shall be investigated promptly and statements, written or oral, made by an employee shall be treated as confidential and shall not be disclosed to his employer without the consent of the employee.
      (b) Procedure upon determination of violation. — Following investigation as provided in subsection (a), if the Commissioner determines that any of the provisions of this subtitle may have been violated, the Commissioner shall immediately notify the public body interested, which shall withhold any payment on account thereof, due the contractor or the subcontractor constructing said public works, sufficient moneys to satisfy said sums as may be considered necessary (1) to pay the workmen and apprentices employed by the contractor or any subcontractor the full amount of wages required by the provisions of this subtitle; and (2) to satisfy any liability of any contractor for liquidated damages as provided herein, pending a final determination.
      (c) Hearing; filing of order. — Within thirty (30) days after an investigation has been completed, the Commissioner shall order a hearing thereon at a time and place to be specified and shall give notice thereof, together with a statement of the facts disclosed upon such investigation, which notice shall be served personally or by mail on all interested persons, including the interested public body. Every interested person shall have an opportunity to be heard in respect to the matters complained of, at the time and place specified in such notice, which time shall not be less than ten (10) days from service of the notice. The Commissioner in such an investigation and hearing shall be deemed to be acting in a judicial capacity and shall have the right to issue subpoenas, administer oaths, and examine witnesses. The investigation and hearing shall be expeditiously conducted, and upon such hearing and investigation, the Commissioner shall determine the issues thereon and shall make and file an order in his office stating such determination and forthwith serve a copy of such order, together with notice of filing upon the public body interested, and the parties to such proceeding, either personally or by mail.
      (d) Payment of wages due and satisfaction of liquidated damages; rules and regulations; suit by employee not precluded by determination of restitution. — Upon the entry and service of such order, the public body interested shall pay to the workmen and apprentices the full amount of wages due and shall satisfy the liquidated damages, as determined by the Commissioner, from the moneys due the contractor or subcontractor. The Commissioner is hereby authorized and empowered to make any and all rules and regulations from time to time, that may be necessary to effectuate the purposes of this subtitle, including, but not limited to, the authority to make a determination as to the amount of restitution and the amount of liquidated damages to be assessed for violations of the provisions of this subtitle. In no event shall such determination of restitution preclude an employee from instituting suit to recover any payments due him.
      (e) Contractor may withhold sums from, subcontractor. — It shall be lawful for any contractor to withhold from any subcontractor under him sufficient sums to cover any amounts of money withheld from him pursuant to this section by the awarding body on account of said subcontractor’s failure to comply with the provisions of this subtitle, and if payment has already been made to him, the contractor may recover said sums from him in a suit at law.”

      . The question whether the proceedings before the Commissioner constituted a “contested case” within the meaning of the Administrative Procedure Act (Md. Code Article 41, §§ 244-256) was not raised below or in this Court. In the absence of briefing and argument and because we hold that both of these projects are not within the purview of the “Prevailing Wage Law”, we shall not discuss the question sua sponte under Rule 1085. But see the Statute under which Commissioner acted as set forth herein in footnote 3, supra, and Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 499, 331 A. 2d 55, 63, 64 (1975).

      . See footnotes 3 and 4, supra.


source: Caselaw Access Project

license: Public Domain

text:
    MARY F. HAROLD et vir v. H. MELVIN RADMAN
    [No. 721,
    September Term, 1975.]

      Decided April 13, 1976.

    The cause was argued before Morton, Menchine and Mason, JJ.

      Joseph F. Lentz, Jr. and Richard B. Jacobs for appellants.

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

delivered the opinion of the Court.

Mary F. Harold, individually, William H. Harold as her husband, and both as husband and wife jointly, (appellants) sought damages for permanent injury, medical expense and loss of consortium respectively against Dr. H. Melvin Radman (appellee) for alleged medical malpractice in performing a hysterectomy operation and in subsequent aftercare. At trial before a jury in the Baltimore City Court, verdicts in favor of the defendant were directed by the trial judge at the end of the plaintiffs’ cases. Appellants have appealed from the judgments thereafter entered.

The narrow issue presented in this appeal relates to the refusal by the trial judge to permit Dr. Harold Hirsh to testify as an expert witness. In consequence of the trial court’s rejection of the proffered witness, the appellants were left without expert testimony in the medical malpractice case. They maintain that the ruling of the trial judge constituted reversible error.

Prior to the rejection of the proposed witness a voir dire examination had been directed to the qualifications of the proffered witness.

The Voir Dire Examination of the Proposed Witness

On direct examination it was shown that the witness graduated from the Georgetown Medical School in 1942, and trained as an intern and resident for three years at the Gallinger Municipal Hospital, now known as the District of Columbia General Hospital. Thereafter, he became a Fellow in Medicine at that institution. He has been engaged in the practice of medicine since 1947. In 1950 he was certified by the Board of Internal Medicine. Certification in Internal Medicine meant that he had completed five years of training and had passed written and oral examinations and was allowed to practice the most skilled kinds of problems in medicine.

At the time of trial he was a Clinical Associate Professor of Medicine at Howard University School of Medicine. His teaching duties at Howard University School of Medicine occupied him from two to six months annually.

He had written about ninety medical articles and was the author or contributor to five medical text books. His writing primarily was in the area of infections and diseases of the urinary tract or bladder and the use of antibiotics.

He is a consultant of the Department of Health, Education, and Welfare, and in the past had been a consultant for the Food and Drug Administration, and the United States Public Health Service.

At the time of trial he was engaged as a consultant to the Armed Services Institute of Pathology with respect to medical problems in the Armed Services, the Veterans Administration and the National Institutes of Health. His duties for the Armed Services Institute of Pathology required the review of cases for determination whether there had been violations of medical standard of care in any of the Armed Services.

In the course of his practice, he had had privileges at Suburban Hospital; Holy Cross Hospital in Montgomery County, and Prince George’s County Hospital. He had been Chief of Staff for a home for the aged located in Montgomery County.

At one hospital he supervised the treatment of some thirty to sixty ward patients who were under the day to day care of two interns and a resident. This duty required him to review their diagnoses and treatment and note the progress of the patients until discharge.

He declared that he was familiar with the standard of medical care and skill exercised or expected to be exercised by physicians and surgeons engaged in the field of gynecology and urology in the Baltimore area.

Cross-examination developed that at the trial of the case his practice of medicine was confined primarily to consultation. He acknowledged that he had seen but two private patients within the month preceding trial. He acknowledged that his last operating room activity had been about one year before the trial, when he was in attendance for the purpose of teaching students during an operation by a surgeon. His last association as non-operating member of an operating team performing a hysterectomy occurred about three years prior to trial.

The witness acknowledged that he had never personally conducted any kind of significant surgery and that in the conduct of his specialty of internal medicine he would call in a surgeon for any recommended surgical procedures.

His cross-examination then continued with the following questions and responses:

“Q Have you ever done a hysterectomy?
A No, sir.
Q Do you feel yourself qualified to do the repair of a fistula?
A Personally?
Q Yes.
A No, sir.
Q Do you feel yourself qualified to do a hysterectomy?
A No, sir.
Q And isn’t it true that an internist who is not a surgeon, when such procedures are deemed necessary, the internist consults or calls in the surgeon and follows the advice and procedure of the surgeon?
A 1 don’t think I would like to use the term follows.
I think that we have a — come to an understanding as to whether the operation has to be done, and what kind of operation, and on many occasions, depending on the condition of the patient, and 1 have always participated with the surgeon or sometimes even by myself in explaining to the patient the need for it, because even before you start, you call a surgeon, and you have to explain to the patient why you are calling the surgeon, so you have to know the surgical indications, and I think that the internist also has a duty to his patient, and that his patient has to know what the complications are, and what will happen if those complications — show that from a technical point of view, no, I can’t do the technology, but from the point of view of knowing whether the surgery is indicated, what the problems are, what complications could be expected, what should be done with the complications, I think that I know those as well as any surgeon, particularly in this kind of operation, which is so relatively common.”

His redirect examination on voir dire included the following:

“Q Doctor, have you ever diagnosed the need for a hysterectomy?
A Many times.
Q Have you ever diagnosed fistulas?
A On a number of occasions, yes.
Q Are you familiar with the procedure to repair a fistula?
A You are talking — where, sir?
Q Bladder or —
A Yes.
Q And are you familiar with the procedure used by a surgeon in hysterectomys?
A Yes, sir.
Q The reason you have not operated in Maryland, or any other place, is because you are not a surgeon; is that right?
A That is true, sir.
Q Are you familiar with the complications which may or do arise in hysterectomys and fistulas?
A Yes, sir.
Q Are you familiar with what to do when these complications arise?
A Yes, sir.
(The Court) But did you, yourself, do it?
(The Witness) No, sir.
By Mr. Lentz:
Q You are not licensed to do it?
A Well, in truth, I am licensed, but I am not trained to do it, and I would not undertake it, because I am not equipped or qualified to do it. My license actually is as a physician-surgeon, but my own self-discipline and my profession, which is what does not allow me to do it.”

Th( trial judge then ruled that the doctor was not qualified to testify as an expert witness. He said:

“Well, gentlemen, the Court was hopeful, as it always is in medical malpractice cases, in particular, never having reached the point where he has got to make an official ruling on an important part of the case, and unfortunately I have been confronted with that issue, and I have heard argument of counsel. Mr. Lentz argued that Dr. Harold Hirsh is qualified to give an opinion in this case, and that Mr. Bolgiano questioned seriously the qualifications of the physician to give an opinion on surgical procedures. It is my conclusion in this case that Dr. Harold Hirsh is not qualified to give an opinion as to pass judgment upon a gynecologist and surgeon, who has to face disclaim for malpractice and for the following reasons: Dr. Hirsh has testified that while he teaches in Georgetown Medical Center and Howard University and is a clinical professor, that he is a board certified internist, his testimony is very clear that he is not a gynecologist, nor a urologist, and indeed he has never performed any type of surgery at all during his entire medical career. The only times that he has been in the operating room were as an observer together with his students, and as an internist, either in the course of surgery or after surgery, to take care of a patient medically, but not surgically.
“He has said that he has never performed any surgery. He has never had a knife in his hand, and that he is familiar with the infections or urinary tract and the bladder, but at no time has ever performed any surgery of any kind, let alone in the specialty of gynecology and urology.
“So, that for me to permit Dr. Hirsh to give an opinion as an expert in the field in which he is indeed not an expert, would simply permit this jury to conjecture and to speculate as to the issue of negligence, or not on the testimony of Dr. Hirsh. I don’t know what Dr. Hirsh’s opinion would be, but it does seem to me that / cannot permit him, because, in my opinion, he is not qualified as an expert in this particular specialty, and for that reason, or these reasons, I will grant the motion to exclude his testimony and any opinion which may be forthcoming. I will say, too, that I am making this decision not lightly, but after a great deal of soul-searching and full consideration of it.” (Emphasis added.)

The Law

In II Wigmore, Evidence, § 561 (3d Ed. 1940) it is suggested that the issue of expert witness qualification should be the exclusive prerogative of the trial judge:

“Looking at the complication of facts often entering into a witness’ competency and best understood by the trial judge alone, — looking at the comparatively trifling character (in relation to all the issues of a trial) of the topics over which controversy arises, — looking at the ample and sure safeguard of cross-examination to reveal the witness’ real qualifications, — looking at the injustice of requiring the busy judges of the Supreme Courts to investigate such trifles, — in view of all these considerations, it cannot be doubted that the rule of the future ought to be:
The experiential qualifications of a particular witness are invariably determined by the trial judge, and will not be reviewed on appeal.”

It is manifest, however, that Maryland does not subscribe to that suggested course. In Marder v. Baltimore, 232 Md. 299, 192 A. 2d 512 (1963), while reiterating the view that the issue is largely discretionary with the trial judge, it was said at 303 [514]:

“The rule that the determination of the competency of an expert witness as to whether or not he is qualified to testify is largely within the discretion of the court is too well fixed in the law of this State to require citations. This Court will not normally reverse the court below in its ruling on the competency of an expert witness unless the discretion has been abused.”

The Court, after pointing out that the trial judge’s refusal to allow the expert witness to express an opinion created a condition where the appealing parties “were left with practically no evidence supporting their side of the controversy,” said at 304 [514]:

“We think on the whole the record before us discloses that the trial judge should have exercised his discretion in determining the witness’s qualifications so as to allow him to express an opinion as an expert in order that the jury might consider it. Such opinion could have been of some help to the jury in determining its award of compensation, giving the opinion such weight as in the judgment of the jury it felt it merited. Having reached this conclusion the judgment must he reversed and the case remanded for a new trial. ” (Emphasis added.)

To the same effect is Stewart v. Baltimore City, 250 Md. 569, 244 A. 2d 231 (1968), wherein the Court of Appeals, again recognizing the-“frequently affirmed principle that the competency of an expert witness is usually left to the discretion of the trial court” (581 [238]), nonetheless reversed because “... we think the lower court was overly exacting in the qualifications it felt that an expert should meet before being competent to testify (582 [238]).

We are aware of no Maryland appellate decision relating to the precise issue presently before us, namely: propriety of the rejection of a medical witness in a surgical malpractice case when grounded upon suggested lack of professional qualifications.

In an annotation in 46 A.L.R.3d 275, et seq., entitled: “Medical Malpractice: Necessity and Sufficiency of Showing of Medical Witness’ Familiarity With Particular Medical or Surgical Technique Involved In Suit,” it is stated, inter alia, that decisions in other jurisdictions suggest three differing views upon the subject, namely:

1. That the proposed witness must have personally performed the technique in issue; (§ 3 of Annotation, p. 279, et seq.)
2. That the proposed witness must have familiarity with the technique in issue; (§ 4 of Annotation, p. 282, et seq.) and
3. That the proposed witness need not be familiar with the technique. (§ 5 of Annotation, p. 286, et seq.)

See also 31 A.L.R.3d 1163.

The View Requiring Showing of Personal Performance of the Technique

Cases seemingly tending to such a view include:

Moore v. Belt, 212 P. 2d 509 (Cal., in Bank, 1949), wherein it was said at 513:

“A medical expert is not qualified as a witness unless he is shown not only to have the required professional knowledge, learning and skill to express his opinion, but is also familiar with the standards required of physicians under similar circumstances. Sinz v. Owens, supra, 33 Cal.2d at pages 753 et seq., 205 P.2d at page 5. A party is entitled to examine an expert witness as to his qualifications and experience so that the full weight to be accorded his testimony will become apparent. Salmon v. Rathjens, 152 Cal. 290, 299, 92 P. 733. But in view of the witness’ admitted lack of practice in urology the extent of the examination as to his qualifications in relation to the subject matter of his opinion was within the sound discretion of the trial court.
“It is urged that the trial court unduly limited the plaintiff’s examination of his expert witness. It appeared from the testimony of this witness that he had practiced as an autopsy surgeon for twenty-nine years, that he did not practice urology, did not conduct genito-urinary examinations in the diagnostic or treatment fields, and did not know the methods of practice therein, but that he had learning and knowledge of the anatomy and of infections in relation to the genito-urinary system.”

Harris v. Campbell, 409 P. 2d 67 (Ariz. App. 1965), wherein the proffered witness: “ . .. was not a specialist in the field of gynecology or obstetrics and had not practiced in any of the offices of the specialists in Phoenix specializing in the field of gynecology and obstetrics. He . . . had no direct way of knowing ‘what the standard of practice is for gynecologists and obstetricians in Phoenix, Arizona, or was in 1958.’ ” (p. 72)

Under those circumstances the Court held at 73:

“A reading of the record does not show that trial court abused its discretion in not permitting the witness to testify.”

Appellee cites Peterson v. Carter, 182 F. Supp. 393 (W.D. Wisc. 1960); Carbonneau v. Lachance, 29 N.E.2d 696 (Mass. 1940); DiFilippo v. Preston, 173 A. 2d 333 (Del. 1961); Harris v. Campbell, supra; Hunt v. Bradshaw, 251 F. 2d 103 (4th Cir. 1958); Huttner v. MacKay, 293 P. 2d 766 (Wash. 1956); Peters v. Gelb, 303 A. 2d 685 (Sup. Ct. Del. 1973), affirmed 314 A. 2d 901 (1973); and Pearce v. Linde, 248 P. 2d 506 (C.A. Cal. 1952) as authority for the proposition “that the trial court properly exercised its discretion in refusing to allow opinions from non-qualified physicians against surgeons.” (Appellee’s Brief, p. 5).

We do not believe the above cited cases declare so broad a view. The following quotation from Hunt v. Bradshaw, supra, will serve to explain our belief. In Hunt it was said at 107:

“[H]ere, the Judge acted within the limits of his allowable discretion. He did not disqualify Dr. Walker as a matter of law because he was not a specialist in surgery but, after weighing the witness’ professional background and qualifications, reached the conclusion that he had not shown such familiarity with the subject upon which he was being interrogated as to entitle him to express the opinion called for. Reading the testimony in all its detail, we cannot say that the District Judge acted unreasonably in restricting the scope of Dr. Walker’s testimony to radiological matters. The general rule, adhered to by the Supreme Court of North Carolina and this court as well, is that the qualification of a witness to express an expert opinion should be left to the sound discretion of the trial judge.” (Emphasis added.)

In the discussion of this view in the annotation in 46 A.L.R.3rd, supra, the author had said, inter aim, at 279, et seq.:

“§ 3. View that witness must have personally performed technique

In a series of California cases, the courts have taken the ‘occupational experience’ test set forth by Professor Wigmore and have developed it, with respect to medical experts, to the point where it is apparently now required in California that such an expert, in order to qualify as an expert witness in a malpractice action not involving a unique or extremely rare technique, must show that he has personally performed the particular medical or surgical technique that the defendant was alleged to have negligently performed.
Thus, while earlier cases appeared to recognize that a medical expert’s acquaintance with the particular technique involved in a malpractice case need not be derived from personal performance of the technique, the requirements were tightened in subsequent cases requiring ‘occupational experience’ with the particular medical or surgical technique in question.”

However, in a recent decision, Brown v. Colm, 522 P. 2d 688 (1974) the Supreme Court of California, In Bank, clearly altered the California rule, saying at 692:

“The unmistakable general trend in recent years has been toward liberalizing the rules relating to the testimonial qualifications of medical experts. Thus, whereas a number of earlier cases held that a physician of necessity must possess the skill ordinarily practiced only in the same locality (see, e. g., Trindle v. Wheeler (1943) 23 Cal.2d 330, 333, 143 P.2d 932), only six years later this requirement was relaxed so that a physician was deemed qualified as an expert if he could testify to the practice in a similar community. (Sinz v. Owens, supra, 33 Cal.2d 749, 756, 205 P.2d 3.) Some early cases were unbending in requiring expertise as to the precise injury involved in the litigation, as, e. g., not permitting an autopsy surgeon to testify on urology (Moore v. Belt (1949) 34 Cal. 2d 525, 212 P.2d 509). Other authorities, however, have permitted variations, as, e. g., a pathologist was qualified to testify as to causes of aseptic necrosis (Agnew v. City of Los Angeles (1950) 97 Cal.App.2d 557, 566, 218 P.2d 66); an expert in otolaryngology to testify regarding plastic surgery (Mirich v. Balsinger (1942) 53 Cal.App. 2d 103, 127 P.2d 639); a homeopathic physician and surgeon to testify on the degree of care required of a physician educated in the allopathic school of medicine (Hutter v. Hommel (1931) 213 Cal. 677, 681, 3 P.2d 554); a pathologist and professor of pathology to testify on the subject of gynecology (Cline v. Lund, supra, 31 Cal.App. 3d at p. 766, 107 Cal.Rptr. 629).
“There are sound and persuasive reasons supporting this trend toward permitting admissibility more readily, rather than rigidly compelling rejection of expert testimony. It is obvious that an overly strict standard of qualification would make it difficult and in some instances virtually impossible to secure a qualified expert witness. In the present case, for example, it is doubtful that plaintiff could produce a medical doctor who was qualified to testify as to the standard of care in view of the rarity of the operation and the fact that the surgery had occurred in a comparatively small and isolated community 23 years prior to trial.
“On the other hand, if the threshold test of general testimonial qualification is found to be met and the witness is permitted to testify on direct examination, he is subject to as penetrating a cross-examination as the ingenuity and intellect of opposing counsel can devise. This inquiry may challenge not only the knowledge of the witness on the specific subject at issue but also the reasons for his opinion and his evaluation of any written material upon which he relied in preparation for his testimony. (Evid. Code, § 721.) Further, a defendant is free to argue that the witness’ testimony is not entitled to acceptance or credibility because he lacks personal acquaintance with the subject at the time the alleged negligent act occurred, and defendant may produce his own witnesses in rebuttal. These measures are more than adequate to protect a defendant’s interests.
“It is true, as defendant contends, that the question whether a witness qualifies as an expert is a matter addressed in the first instance to the sound discretion of the trial court. (Sinz v. Owens, supra, 33 Cal.2d 749, 755, 205 P.2d. 3.) It is also elementary, however, that the court will be deemed to have abused its discretion if the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go before the jury. (Seneris v. Haas, supra, 45 Cal.2d 811, 833, 291 P.2d 915.) Indeed, the exclusion of the sole expert relied upon by a party because of an erroneous view of his qualifications is, in a case where expert testimony is essential, an abuse of discretion as a matter of law requiring reversal.”

The View Requiring Showing of Familiarity With the Technique

A leading case espousing this view is Carbone v. Warburton, supra, (see note 4). The trial judge, on objection, declined to allow a general practitioner to testify as an expert witness in a malpractice action against an orthopedic surgeon. After declaring that mere licensing as a physician, without further proof of knowledge of the particular subject may not qualify a medical witness to testify as an expert, the Court said at 522:

“ ... we hold that in considering the competency of a proffered expert medical witness who is a licensed physician, a trial court should have regard for the proof difficulties .. . , and to the fundamental concept that where a right exists the law would be deficient if there were no remedy for violation of that right, and consequently should exercise his discretion liberally toward the acceptance of the qualifications. Where there is any reasonable evidence of qualification in addition to the license, he should be permitted to testify. Cross-examination will expose any weakness in or limitations on his knowledge and experience. And then the weight to be accorded his testimony may be left where it has rested traditionally, namely, with the jury.”

The Court added at 523, et seq.:

“On cross-examination it appeared that while he had neither treated nor observed the treatment of fractures in 1946 he knew what the method of treatment was and he knew what was being done in hospitals in 1946 for fractures. This knowledge came from his reading and study of books and medical journals. On being asked, he furnished the names of the authorities whose books he had read on the subject. These statements stand unqualified and uncontradicted.
“As we already pointed out, a person can become an expert through actual experience or study or through both. This record presents a witness of substantial educational background in his profession and many years of practice. While it is true that he is not a specialist in the field of orthopedics he asserted knowledge of the method of treatment of fractures both in hospitals and generally and supported the assertion by the specific references to which we have adverted. In refusing to allow him to testify, in effect the trial court declared that he had no qualifications that would render him competent as an expert. In the light of the evidence on the subject and the requirement of liberal appraisal thereof, the rejection of the witness was erroneous and constituted a mistaken use of discretion. In the situation presented he should have been permitted to testify and the weight of his statements left for the jury to determine.”

Many other cases have adopted the same view. Examples are: Pridgen v. Gibson, 139 S. E. 443 (N.C. 1927), where the Court said at 445-46:

“ .. . if, as in substance he [the witness] said, he could form an opinion satisfactory to himself upon assumed facts as to the proper method of treating the eye, the mere circumstance that he was not a specialist in this particular field would not as a matter of law disqualify him from expressing an expert opinion. If the ruling had been put upon the broad ground that his professional knowledge and training were not such as to satisfy the court of his competency to testify as an expert witness, it is not improbable, in the absence of abuse or palpable error, that a case of ‘irreviewable discretion’ would have been presented; but to say that a witness may not express an expert opinion unless he can qualify as a specialist raises an entirely different question.”

Brisendine v. Hunt, 158 S. E. 469, 471 (C.A. Ga. 1931), wherein it was said:

“... if the witness had been practicing medicine for twenty-nine years, and was ‘a practicing physician and surgeon,’ and had numerous patients who had been operated on for internal hemorrhoids by reputable surgeons under his direct supervision and treatment, we are of the opinion that the witness was competent to testify as he did, over the objection interposed. It was not necessary for him to qualify as a specialist in surgery.”

Baerman v. Reisinger, 363 F. 2d 309 (D.C. Cir. 1966), wherein a general pratitioner had been rejected as a witness in a malpractice case against a cardiologist “on the ground he was not shown to be an expert in cardiology.” In reversing, Judge Burger (now Chief Justice) speaking for the Court, said at 310:

“It is settled law that ‘[a] physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks.’ Sher v. De Haven, 91 U.S.App. D.C. 257, 262, 199 F.2d 777, 782, 36 A.L.R.2d 937 (1952), cert. denied, 345 U.S. 936, 73 S.Ct. 797, 97 L.Ed. 1363 (1953). The training and specialization of the witness goes to the weight rather than admissibility of the evidence, generally speaking.”

Hawkins v. Schofman, 204 So. 2d 336 (D. Ct. of App. of Fla. 3rd Dist. 1967) where it was said at 338:

“We hold, as contended by appellants, that the trial court committed error in excluding the testimony of Dr. McIntyre.
“The trial court held Dr. McIntyre was unqualified to give opinion testimony concerning the operative procedure involved here because he had had no personal experience in performing such an operation. Regarding his qualifications it was shown that Dr. McIntyre had received a degree as a medical doctor from Columbia University in 1944, had been a practicing physician for twenty-two years, had served in the field of neurology at various named hospitals, was licensed to practice in Florida in 1952 and since had practiced in this state as a specialist in neurology and psychiatry, having acted as court appointed physician on occasions in Dade and Broward Counties; and Dr. McIntyre professed knowledge of the standard and procedure for an operation of the kind performed in this instance, through study thereof and observation including the witnessing of one performed a week previously.
“The fact that Dr. McIntyre had not performed such an operation himself could have a bearing on the weight and credibility given to his testimony, but did not render him incompetent under the law to express an opinion as an expert in a case of this character in view of his medical training and professed knowledge of the standard and procedure for such an operation through study and observation.”

Harris v. Smith, 372 F. 2d 806 (8th Cir. 1967) in reversing the decision of the trial judge who had sustained an objection to use of a proffered medical witness, the Court said at 814-15:

“ a careful reading of the record compels the conclusion that when Dr. Harris’ testimony was offered it was not excluded because there was a failure to show that he had sufficient experience with the treatment of compound fractures, as is contended by the appellee but, rather, his testimony was excluded because, although he was a medical doctor, he was not an orthopedic specialist.
T am going to sustain the objection on the ground that this doctor has already testified that he is not in the orthopedic field, and he may not express his opinion on the field.’ (Emphasis supplied.)
“In an action of this gravity, we believe appellant was entitled to place into evidence the testimony of all properly qualified expert witnesses and it constituted prejudicial error for the trial court to exclude the opinion testimony of Dr. Harris. The weight to be afforded this testimony was, of course, within the discretion of the jury.” (Emphasis in original and emphasis added.)

The Decision

We are persuaded that the better view is that a medical witness should be permitted to testify in a malpractice action if it is shown: (a) that he knows the standard of required care fixed by Shilkret, supra; and (b) that based upon his professional knowledge, training and experience he is familiar with the techniques claimed to have been negligently performed.

We conclude that adoption of such a course accords with the great weight of authority. More, such a view accords with decisions of the Court of Appeals as laid down in cases concerned with issues of causation of illness or injury.

In Wolfinger v. Frey, 223 Md. 184, 162 A. 2d 745 (1960), it was said at 189-90 [748]:

“[The] contention was that because Dr. Brings was a general practitioner and not a specialist, he was not qualified to testify at all as an expert on the cause of Mrs. Frey’s illness. Because of the importance in this case of Dr. firing’s testimony, we may observe that we see no validity to a contention that unless he were a specialist in the medical field involved he could not testify to his opinion, basing it upon a case history and his examination of the injured person.

See also: Raitt v. Johns Hopkins Hospital, 22 Md. App. 196, 203, 322 A. 2d 548, 553 (1974) (reversed on other grounds). Raitt v. Johns Hopkins Hospital, 274 Md. 489, 336 A. 2d 90 (1975), itself a malpractice case, where the Court of Appeals explicitly approved the same test for the qualification of medical witnesses as that earlier applied to other kinds of expert witnesses, saying at 500-01 [96]:

“On the subject of an expert witness’s qualifications, we said in Casualty Ins. Co. v. Messenger, 181 Md. 295, 298-99, 29 A. 2d 653 (1943):
‘ ... It is a familiar rule of evidence that a witness, in order to qualify as an expert, should have such special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate. It is sufficient if the court is satisfied that the expert has in some way gained such experience in the matter as would entitle his evidence to credit. ... A witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion is of some value, whether such knowledge has been gained from observation or experience, standard books, ... or any other reliable sources. .. .’”

Applying the above test to the subject case we conclude that the voir dire examination clearly qualified the proffered witness to testify upon the medical issues involved in the litigation. Under such circumstances the rejection of the proffered witness was an abuse of discretion and constituted reversible error.

Judgments reversed.

Case remanded for new trial.

Appellee to pay costs.

      . The rejection of the witness did not turn upon any alleged lack of knowledge of a required standard of care. See: Shilkret v. Annapolis Emergency Hospital, 276 Md. 187, 349 A. 2d 245 (1975). Rather, the trial judge’s decision turned upon his finding that the witness “was not qualified as an expert in this particular specialty.”

      . The single case cited in the annotation as adopting this view was Quinley v. Cocke, 192 S.W.2d 992 (Tenn. 1946). We do not read the case as announcing so broad a view, but, in any case, we reject such a view and shall otherwise not discuss it.

      . A dissenting Justice in Moore v. Belt expressed the view that the majority decision was overly restrictive, saying at 523:
      “The majority opinion states that the exclusion of Dr. Webb’s testimony was not erroneous for the reason that ‘A medical expert is not qualified as a witness unless he is shown not only to have the required professional knowledge, learning and skill to express his opinion, but is also familiar with the standards required of physicians under similar circumstances.’ This statement and the cases cited in its support are inapplicable to the present case. It may be conceded that a medical expert called to testify that a defendant did not exercise that degree of care and skill ordinarily exercised by members of the profession under similar circumstances must be familiar with the standard of care prevalent among the members of the profession. A medical practitioner who testifies as to the standard of care ordinarily exercised by a specialist in a given case must either be a specialist himself or must show familiarity with the methods of such specialists.” (Emphasis added.)

      . Although in surface appearance this case seems to place it within the more restrictive view, a careful reading of the opinion would seem to indicate that the ultimate holding was grounded upon the acknowledged lack of knowledge of medical standards. The Court cited with apparent approval Carbone v. Warburton, 91 A. 2d 518 (N.J. App. 1952) (a leading case contra) which will be fully discussed herein infra.

      . The author made reference to Moore v. Belt, supra; Bennett v. Los Angeles Tumor Inst., 227 P. 2d 473 (D.C.A. Cal. 1951); Huffman v. Lindquist, 234 P. 2d 34 (Cal. 1951) and Pearce v. Linde, supra, (also cited in appellee’s brief) as supportive of the stated position.

      “2. A general practitioner who was not a specialist was held qualified to testify as a medical expert in Annapolis Gas & Electric Light Co. v. Fredericks, 109 Md. 595, 72 A. 534 (injury due to contact with live electric wire); and in Armour & Co. v. Leasure, 177 Md. 393, 9 A. 2d 572.(food poisoning case; testimony .re kind and condition of food likely to harbor germs of particular disease). Cf. United Rys. & Electric Co. v. Corbin, 109 Md. 442, 450, 72 A. 606, where one doctor admitted that because of lack of familiarity with the effects of electric shock, he could not tell whether the patient’s condition was due to such shock or to fright, and his testimony was held inadmissible. In a number of cases the testimony of a general practitioner (frequently an attending physician) has been held admissible on questions of mental capacity or condition, though the witness was not a specialist in such matters: Crockett v. Davis, 81 Md. 134, 31 A. 710; Jones v. Collins, 94 Md. 403, 413, 51 A. 398 (30 years’ acquaintance, prescribed only twice); United Rys. & Electric Co. v. Corbin, supra, 109 Md. at page 453, 72 A. at page 609; Mitchell v. Slye, 137 Md. 89, 102, 111 A. 814; Donnelly v. Donnelly, 156 Md. 81, 143 A. 648; Love v. Love, 158 Md. 481, 148 A. 814; Johnston v. Schmidt, 158 Md. 555, 149 A. 283; Davidove v. Duvall, 160 Md. 345, 153 A. 417; Doyle v. Rody, 180 Md. 471, 25 A. 2d 457; Marshall v. Sellers, 188 Md. 508, 53 A. 2d 5 (sufficient opportunity to observe is required). See also McCormick, Evidence, § 13, p. 29; 20 Am. Jur., Evidence, §§ 785, 865. Usually the degree of expertness required is left to the discretion of the trial court. General Automobile Owners Ass’n. Inc. v. State, Use of Penn., 154 Md. 204, 212, 140 A. 48; Baltimore C. & A. Ry. Co. v. Moon, 118 Md. 380, 392, 84 A. 536; 20 Am. Jur., Evidence, § 786.
      “This note makes no effort to catalogue the cases in which opinion testimony by non-specialist medical experts has been involved, but the qualifications of the witness have not been challenged or commented upon.”


author: Lowe, J.,

text:
    BENJAMIN JOSEPH THORNTON v. STATE OF MARYLAND
    [No. 824,
    September Term, 1975.]

      Decided April 13, 1976.

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

      Karl G. Feissner and Ronald S. Schimel, Assigned Public Defenders, with whom were Edward P. Camus, Public Defender for Prince George’s County and Feissner, Garrity, Levan & Schimel on the brief, for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall Jr., State’s Attorney for Prince George’s County and Howard Shemler, Assistant State’s Attorney for Prince George’s County on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Appellant and a co-defendant “late of Prince George’s County” were indicted for burglary, housebreaking, larceny and receiving stolen goods “at Prince George’s County aforesaid.” The specified “goods and chattels, monies and properties” belonged to Abraham Lincoln, from whose dwelling they were taken “on or about the 25th day of February, 1975.” The jury found appellant not guilty of burglary, larceny or housebreaking, but guilty of receiving stolen goods.

On appeal, appellant argues that this conviction should be reversed on two grounds:

1) “The trial court committed reversible error when it failed to permit a question on voir dire relating to possible racial prejudice of prospective jurors.”; and
2) “There was insufficient evidence to show that the Appellant had received stolen goods in the State of Maryland.”

Since we agree with appellant’s second contention and will reverse his conviction on that ground, we will discuss it first.

Sufficiency of the Evidence

The evidence introduced at trial showed that appellant was seen with an acquaintance on the day following the burglary in the 3800 Block of Hayes Street, N.E., in Washington, D.C., unloading equipment that later proved to be that stolen from Lincoln’s house. At the conclusion of the State’s case, the appellant moved for judgment of acquittal. That motion was denied essentially because the State had proven the theft from Mr. Lincoln’s household at night and the subsequent possession of the stolen property by appellant (and his co-defendant who was tried separately). The court said:

“With respect to the principal matter raised, that of criminal agency of the Defendant, the possession of recently stolen property permits the inference in this State that the possessor is the thief. This property was stolen on the 25th and found in the Defendant’s possession on the 26th.”

With regard to the receiving count and the larceny count, the court simply said:

“With respect to the incompatibility of the third [larceny] and fourth [receiving] counts, it is true of course that a conviction cannot be had on both those counts. They are mutually exclusive. However, that is once again the decision to be made by the jury and not appropriate matter for motion for determination by the Court at this point.”

For purposes of the motion, the judge did not comment upon, if he then considered, what evidence there was that the stolen goods had been “received” in Prince George’s County. He did, however, properly instruct the jury on that issue:

“Now, there is in this State law which permits you ladies and gentlemen to infer that the unexplained possession of recently stolen goods is evidence that the possessor is the thief. The testimony would seem to show that the property in this case was taken from a home in Prince George’s County and subsequently recovered in the District of Columbia. It is for this reason that I explained to you that the elements must occur in Prince George’s County. If you do not choose to infer that the possession indicates that the possessor was the thief, but rather that he was a receiver of these goods, and you find that the receiving occurred entirely in another jurisdiction, other than Prince George’s County, then he must be acquitted of receiving. You would have to be satisfied from the evidence that the receiving occurred in Prince George’s County.”

Although the instruction is sound, there was not the slightest evidence upon which the jury could base its finding that the stolen goods were received in Prince George’s County. Although it concedes that the prosecution presented no direct evidence establishing appellant’s presence in Maryland, the State contends that, because appellant’s counsel asked the arresting officer several times on cross-examination whether appellant was free to “return to Maryland,” these questions “acted as an admission that appellant had recently come into the District of Columbia from Maryland.”

It hardly seems necessary to note that neither arguments nor questions of counsel are evidence. Moreover, we do not see how an inference that appellant had theretofore received stolen goods in Maryland could be drawn from an indication that appellant wanted to “return to Maryland.” Finally, the questions were asked out of the presence of the jury during what appears to have been a suppression hearing.

Straining mightily, the State next argues that the geographical proximity of Washington, D.C., where appellant was apprehended, to Prince George’s County, from whence the goods were stolen, “supports the rational inference that, thereafter, the goods were received by Appellant within the confines of the State.” It cites Commonwealth v. Obshatkin, 307 N.E.2d 341 (Mass. App.) as persuasive precedent. We do not find Obshatkin to be either persuasive or precedent. A decision of another jurisdiction is not binding on this Court and is instructive only insofar as it deals with similar facts and is reasoned convincingly. Obshatkin is not convincingly reasoned, nor is it factually apposite. In that case, the Court held:

“. . . while there was no direct testimony in the instant case that the defendant actually received the stolen property within the Commonwealth, the jury could have found from the evidence that the defendant lived in Taunton, that the goods were stolen in Taunton, and that the defendant possessed the goods in nearby Warwick shortly thereafter. From those circumstances the jury were warranted in inferring that the receipt did take place in Massachusetts. While it is true that ‘possession out of the commonwealth of goods stolen in the commonwealth would not of itself warrant a conviction for receiving them . . . here’ (Commonwealth v. Phelps, 192 Mass. 591, 593-594, 78 N.E. 741, 742 [1906]; emphasis supplied), we think that there was sufficient additional evidence presented here to warrant the defendant’s conviction.” 307 N.E.2d at 343.

In the instant case, there was no evidence introduced that appellant lived in Pepper Mill Village where the goods had been stolen. Indeed, there was no proof at all of his residence. Nor was there any proof offered to connect appellant with Prince George’s County except the possession of goods that had been stolen there. That possession may have given rise to a logical inference that the possessor had stolen them in Prince George’s County since testimony showed that situs as the scene of the theft. When the jury found that appellant had not stolen the goods and, thus, that the theft was committed by someone else, the inference was that he was a receiver of stolen goods, Jordan v. State, 219 Md. 36, 46, but there was no evidence from which it could be inferred that his receipt of the goods occurred in Prince George’s County. To the contrary, his possession of them, to the extent proven, was shown to be solely in Washington, D. C. which gives rise to the opposite inference. Wé must, therefore, reverse the conviction.

Because we remand this case for retrial subject to the holding in Gray v. State, 254 Md. 385, we will respond to appellant’s second question which may again arise if he is retried.

Racial Prejudice Inquiries on Voir Dire

Until the middle of the twentieth century, this country (as was said of M. de Lessay) flattered itself on being without prejudice. In 1954, the Supreme Court abruptly ended this delusion by demonstrating that our pretension was itself a very great prejudice. A conscience-piqued nation then began an honest and intense self-evaluation in an effort to recognize and discard prejudices, especially racial ones, within ourselves and inherent within our judicial system. The pendulum of national awareness of our racial prejudices, once jarred loose from its extreme position of obscurity, began its swing to the opposite extreme where its new visibility would cause it to become the focal point of our national conscience.

In 1959, as the pendulum started its swing, the Court of Appeals heard the appeal of Johnnie Brown, a black man who had never been in trouble with the law until, on September 5, 1958, he shot a white policeman (who had arrested him on a charge of uttering bad checks) in the back. The case was removed from Salisbury, Maryland where the crime occurred, to Dorchester County.

At his trial, Brown proffered a series of questions to be asked prospective jurors. Among these questions were several seeking to ascertain

“. . . whether the jurors had any prejudice against a Negro which would prevent them from giving a Negro as fair and impartial a trial as they would a white man. Question ten, for example, was: ‘Can you, without bias or prejudice, pass your verdict in this case solely on the evidence produced from the witness stand without regard to the race, creed or color of the Defendant?’ ” Brown v. State, 220 Md. 29, 33-34.

On Brown’s appeal from his conviction, he took issue with the trial court’s refusal to include such questions in the voir dire examination of prospective jurors. The Court found that:

“Although some courts have found no error in refusal to question prospective jurymen as to such prejudice, the majority, and we think the far better reasoned, of the cases, holds to the contrary.” Id. at 34.

Quoting from the opinion in State v. Higgs, 120 A. 2d 152 (Conn.), Judge Hammond reasoned for the Court that:

“ ‘In line with this thought, it is almost uniformly held in other jurisdictions that it is reversible error in a criminal case in which a Negro is the defendant to exclude questions, propounded by him on the voir dire, designed to bring out that a prospective juror is so prejudiced against the Negro race that it would take less evidence to convince him that a Negro was guilty of the crime charged than to convince him that a white person had committed a similar crime. . . .
‘We cannot be blind to the fact that there may still be some who are biased against the Negro race and would be more easily convinced of a Negro’s guilt of the crime of rape than they would of a white man’s guilt. .. .
‘So long as race prejudice exists, even in a relatively few persons, there is a substantial chance that one of those few will appear in court as a venireman. Consequently, the fact that most people in the state are not prejudiced against Negroes is not of controlling importance.’ ” Id. At 35.

Judge Hammond also relied upon language of the Supreme Court in Aldridge v. United States, 283 U. S. 308, to emphasize that the required question was not aimed at revealing the dominent sentiment of the community, see Smith and Nelson v. State, 12 Md. App. 130, but at revealing the bias of the particular jurors who were to try the accused:

“ ‘If in fact, sharing the general sentiment, they were found to be impartial, no harm would be done in permitting the question; but if any one of them was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit. * * * we do not think that it can be said that the possibility of such prejudice is so remote as to justify the risk in forbidding the inquiry. And this risk becomes most grave when the issue is of life or death.’ ’’Brown v. State, 220 Md. at 36.

Then presumably to point out that this view was not of recent vintage based on the tenor of the times, Judge Hammond pointed out that:

“In Lee v. State, 164 Md. 550, 556, there was at least an implication that the accused would have been entitled to have asked the questions that the appellant here requested.” Id. at 36.

Finally, and most conclusively, the Court stated:

“We hold that the failure to elicit from the jurors the essence of the information sought by the appellant was reversible error.” Id. at 36.

Two years later, in Contee v. State, 223 Md. 575, wherein a black man appealed his conviction of raping a white woman, the Court went even further. In that case, the lower court had rejected six questions, all proffered by appellant in an apparent attempt to ascertain racial prejudice of prospective jurors. In spite of the fact that the questions were so improperly couched that they

. . all appear[ed] to be examples of what not to request the court to propound to prospective jurors on voir dire in a case of this type which is likely to have aroused some racial feelings in the community where it is to be tried.” 223 Md. at 580,

the Court reversed the conviction below, observing that the trial court “had no intention of making any inquiry as to whether the jurors could or would set aside the feelings he or she might have as to racial differences and fairly and impartially decide the case solely on the evidence and the applicable law.” Id. at 581. The Court went well beyond the ruling in Brown v. State, supra, and held:

. - that where, as here, a defendant is denied the opportunity of submitting or requesting proper questions relating to racial bias or prejudice to be propounded by the court to prospective jurors on voir dire, such denial constitutes reversible error.” 223 Md. at 581.

While recognizing the importance of protecting defendants against racially prejudiced jurors, in Humphreys v. State, 227 Md. 115, also an appeal from the conviction of a black man of the rape of a white woman, there is language indicating that the right to question veniremen as to racial bias is not an absolute which is available to all black defendants. Rather, it is only mandated

“. . . where prejudice against the Negro race may be a factor in determining a prospective juror’s attitude toward a particular defendant. . . .” Humphreys, supra, 227 Md. at 118.

Similarly, the Court in Contee, supra, at 580, recognized that:

“. . . a case of this type ... is likely to have aroused some racial feelings in the community where it is to be tried.”

In summary, Maryland seems to require the interrogation of veniremen with respect to racial prejudice upon request,

1) where racial prejudice may be a factor because of the facts of the case, but
2) no specific question or procedure is compelled so long as the “essence” of the information sought as to prejudice is inquired into.

Notwithstanding the fact that Judge Hammond had Aldridge v. United States, supra, to guide him in Brown v. State, and obviously followed the Supreme Court’s views therein, it is equally apparent that the Court of Appeals did not feel bound by Aldridge, since only passing reference is made to it in the Brown decision. Both Aldridge and Brown were black defendants charged with killing white policemen. Both of their convictions were reversed in opinions holding that essential elements of fairness require voir dire inquiry as to racial prejudice under the circumstances of the case. However, had the Court of Appeals considered Aldridge binding under the Fourteenth Amendment, there would have been little need to cite authority from the State of Connecticut to bolster its holding in Brown.

The misconception which prevailed in Maryland as to the effect of Supreme Court rulings on state criminal procedure was shared by other jurisdictions. It was not until 1973 that the Supreme Court finally held in Ham v. South Carolina, 409 U. S. 524, that the Fourteenth Amendment requires states having statutory framework permitting challenges for cause and voir dire examination of potential jurors, to permit an accused to have the jurors interrogated on the issue of racial bias. 409 U. S. at 527. The defendant in Ham was a young, black, civil rights activist who was convicted of possession of marijuana.

As is often the case, we find that the holdings of the Maryland Courts have anticipated the direction later taken by the Supreme Court. On March 3, 1976, in Ristaino v. Ross, 424 U. S. 589, 18 Cr. L. 3082, the Supreme Court decided that the Haw, requirement was not absolute but applicable only when there is an element in the case which raises the possibility that racial considerations could play a role in the jury’s deliberations. In Ristaino, the defendant was a black man charged, among other offenses, with assault and battery with intent to murder a white security guard. The Court said:

“The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Ham, supra, at 527-528. Voir dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ Connors v. United States, 158 U. S. 408, 413 (1895); see Ham, supra, at 527-528; Aldridge v. United States, 283 U. S. 308, 310 (1931). This is so because the ‘determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.’ Rideau v. Louisiana, 373 U. S. 723, 733 (1963) (Clark, J., dissenting). Thus, the State’s obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant. Ham, supra, at 527-528.
In Ham, however, we recognized that some cases may present circumstances in which an impermissible threat to the fair trial guaranteed by due process is posed by a trial court’s refusal to question prospective jurors specifically about racial prejudice during voir dire.” (Footnote omitted). Ristaino, 18 Cr. L. at 3084.

This is precisely the limitation which may be found in the Maryland case law. See Humphreys and Contee, both supra. In the absence of some special circumstance warranting an inquiry as to racial prejudice, such examination is not mandated. To hold otherwise would allow the defendant in every case to bypass the discretion of the trial judge and use a blind scatter shot in hopes of having a pellet find some degree of prejudice in a prospective juror.

Charles P. Curtis, in A Commonplace Book, remarked that “Bias and prejudice are attitudes to be kept in hand, not attitudes to be avoided.” It is the circumstances of the case which cause dormant prejudices to stir. To require a prospective juror under oath to say he is without prejudice would indeed leave us with a dearth of honest venire persons or, possibly, only with jurors who are too insensitive to recognize their own biases.

Parenthetically, we note that the right to question prospective jurors as to racial prejudice is not unique to the black defendant. Cf. Aldridge v. United States, supra, 283 U. S. at 313. Circumstances may exist whereby a white defendant could be jeopardized by the unchecked prejudice of a black juror. Considering the amalgam of minorities which constitute our juries, if Maryland requirements were not subject to a Ristaino limitation, a voir dire racial prejudice inquiry would be mandated in every case. It is thus apparent why Maryland, like the Supreme Court, holds that whatever the ethnic background of the accused, he or she is not entitled to promiscuously probe for racial prejudice absent circumstances in the case warranting such inquiry. Ristaino, supra, at 3084.

The Case Under Consideration

The appellant in the case at bar is a black man. The only two witnesses who testified on behalf of the State, including the victim, were also black. The defendant chose not to testify. The proposed question which the judge refused to ask of potential jurors was:

“Would any member not believe a witness because that witness was black?”

The question at issue in Ristaino, supra, was:

“Are there any of you who believe that a white person is more likely to be telling the truth than a black person?” 18 Or. L. at 3082, n. 1.

In this case, there was no possibility that racial bias would influence the outcome since the defendant, victim and only other witness were all black. Here, as in Ristaino:

“The circumstances . . . did not suggest a significant likelihood that racial prejudice might infect [the] trial. This was made clear to the trial judge when [the accused] was unable to support his motion concerning voir dire by pointing to racial factors such as existed in Ham [and Brown, etc.] or others of comparable significance. In these circumstances, the trial judge acted within the Constitution in determining that the demands of due process could be satisfied by his more generalized but thorough inquiry into the impartiality of the veniremen.” 18 Cr. L. at 3085.

We do not reach the collateral issue of whether the question appellant sought to ask jurors in the instant case was improper under Lee v. State, 164 Md. 550, since we hold that no question as to racial bias, either towards the defendant or witnesses, was proper under the circumstances of this case. We note, however, that the holding in Lee, based on the propriety of the question itself, has never been overruled by the Court of Appeals. In Lee v. State, supra, relied upon as implicit authority by Judge Hammond for his holding in Brown v. State, supra, one of the questions at issue was:

“ ‘Would you believe a colored man’s story just as quickly as a white man’s?’ ” 164 Md. at 556.

The Lee Court noted that there was a “vast difference” between that question and an inquiry as to whether a juror has any prejudice against a “negro, as a negro, that would induce you to return a verdict on less or slighter evidence than you would return a verdict of guilty against a white man under the same circumstances.” The Court explained that:

“Credibility does not depend on the color of the witness, and a juror may disbelieve a witness no matter what his race.” 164 Md. at 556.

The Court then concurred in the ruling of the trial judge that the question was “ ‘too general’.” In affirming the trial court’s denial of the proffered voir dire, the Court of Appeals also noted that the very

“. . . question as asked has been held to be an improper test. Jenkins v. State, 31 Fla. 196, 12 So. 677; State v. Dyer, 154 La. 379, 97 So. 563; State v. Buford, 158 Iowa, 173, 139 N. W. 464; State v. Bethune, 93 S. C. 195, 75 S. E. 281; Cavitt v. State, 15 Tex. App. 190. See note, 73 A.L.R. 1209.” Id. at 556-557.

Opinions of our own Court have also dealt with questions aimed at eliciting racial prejudice from prospective jurors. In Smith and Nelson v. State, supra, we held that the failure to permit the question,

“ ‘Would the fact that the accused is a Negro or black, affect the ability to pass fairly on the innocence of the accused?’ ”, 12 Md. App. at 131,

was reversible error. Two months later, in Tunstall and Alton v. State, 12 Md. App. 723, we reversed the conviction of an appellant who was not allowed to pose a question to prospective jurors, strictly on the authority of Smith, supra. However, the question in Tunstall didn’t seek to elicit prejudice as influencing a finding of guilt or innocence, but instead asked:

“ ‘Would you be more likely to believe a white witness rather than a Negro witness?’ ” 12 Md. App. at 726.

Without referring to the Lee holding, and without the clarity of Ristaino to guide us, in Tunstall we stated:

“We think that the question strikes at the very heart of racial prejudice. The Appellants were entitled to have excluded from the jury those persons who would believe the testimony of one witness as true, in preference to another because of the pigmentation of the skin of the witness.” Tunstall, supra, at 727.

Because we found that the trial judge had not covered the subject of racial prejudice in any manner, we reversed without any reference to whether racial prejudice appeared as a factor from the circumstances of the case, Humphreys, supra; or as likely to arouse some racial feelings in the community where tried, Contee, supra; or whether the circumstances suggested a significant likelihood that racial prejudice may infect the trial, Ristaino v. Ross, 18 Cr. L. at 3085.

Because of the brevity of our holding on the issue of prejudice, Tunstall may be construed to stand for the proposition that whenever any question as to racial bias is proffered upon voir dire, it must be asked.

“The proposed question was directed specifically to a harboring of racial prejudice. Failure to ask it on voir dire is reversible error.” Id. at 727.

To the extent that Tunstall “announcefd] a requirement of universal applicability,” Ristaino, supra, we limit it as the Supreme Court limited Ham. In doing so, we qualify that holding for precedential purposes to conform to limitations implicit in the holdings of the Court of Appeals in Humphreys and in Contee, both supra. Tunstall, like Ham:

“. . . did not announce a requirement of universal applicability. Rather, it reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be as ‘indifferent as [they stand] unsworne.’ ” (Footnote omitted.) Ristaino v. Ross, at 3084.

To hold otherwise would provide a trap for an unwary trial judge when, as here, the circumstances show that no question of prejudice is apparent nor likely to arise. Asking the question might very will rekindle a dormant spark of prejudice, the fire of which had all but died, and thus enure to the detriment of the defendant who asked. An assessment of the circumstances in the case here on appeal does not indicate that there was a constitutionally significant likelihood that racial prejudice might be a factor in the jury’s decision.

Having completed its full swing, the pendulum has found its proper position between the two extremes of complete indifference and oversensitivity to possible racial prejudice.

Judgment reversed.

Case remanded for retrial.

      . The State indicates by brief that:
      “Although the issue has overtones of a jurisdictional attack, Appellee submits that it is more properly categorized as an evidentiary question.”
      Appellant having submitted and appellee conceded it thus, we will not treat the jurisdictional aspect.

      . Anatole France, The Crime of Sylvestre Bonnard, Ch. 4.

      . In Brown v. Board of Education of Topeka, 347 U. S. 483, the Court recognized that the doctrine of separate but equal espoused in Plessy v. Ferguson, 163 U. S. 537, had no place in public education.

      . Colloquy during voir dire indicated that only one prospective witness was white, a Prince George’s County investigating officer, and the record reveals that he was not called,
      “MR. PEISSNER: The Defendant respectfully excepts to your failure to ask questions 5, 8, 9 and 11 of the proposed voir dire of the Defendant, and question number 12 which we gave you orally in chambers which would read as follows:
      ‘Would any member not believe a witness because that witness was black?’
      MR. SHEMLER: For the record, I would point out that all of the State’s witnesses are black except for the Prince George’s County Detective who is white, and he was not an eyewitness to this offense. He was just the investigating County Police Officer.
      THE COURT: Very well, you have your exception.”