author: Liss, J.,

text:
    WILLIAMS CONSTRUCTION COMPANY, INCORPORATED, et al. v. JESSE R. GARRISON, JR.
    [No. 958,
    September Term, 1978.]

      Decided April 19, 1979.

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

      Steven A. Charles, with whom were Frank J. Trípoda and Hardwick, Trípoda & Harris on the brief, for appellants.

      Sidney Blum, with whom was Eugene A. Alexander, III, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Williams Construction Company, Inc., employer and American Automobile Insurance Company, insurer (hereinafter jointly designated as appellants), have filed this appeal from an order of the Circuit Court for Baltimore County which granted a summary judgment in favor of the claimant, Jesse R. Garrison, Jr. (hereinafter designated as appellee).

Appellants contend that the trial court erred in affirming an order of the Workmen’s Compensation Commission dated August 9, 1977 by which the Commission found that the appellee was entitled to additional temporary total disability and was permanently totally disabled as a result of an accidental injury sustained by the appellee on July 25, 1974 which arose out of, and in the course of, his employment.

Appellants raise the following issues in support of their contention that the trial judge should not have granted appellee’s motion for summary judgment:

(1) That the injuries and disability suffered by the appellee were caused by the claimant’s own reckless and unreasonable conduct; and (2) that the initial compensable injury of July 25, 1974 was not the proximate cause of the injuries sustained by the appellee on December 28,1974, and that the appellee’s permanent total disability occurred by reason of appellee’s own intervening unreasonable conduct.

The facts in the case are virtually undisputed. On August 13, 1974, appellee filed a claim for compensation with the Workmen’s Compensation Commission in which he stated that on July 25, 1974, while in the employ of Williams Construction Company as a bulldozer operator, he fell from the tracks of a pusher-tractor and sustained injuries to his back. The appellants did not contest the claim, and the Commission found the claim to be compensable. The insurer paid temporary total benefits for the period the appellee did not attend work and for the medical expenses incurred. No claim for permanent partial benefits was filed by the appellee. Appellee returned to his same employment with Williams Construction Company on August 13, 1974 and worked for an additional four months as a bulldozer operator until December 6,1974 when he was laid off. Appellee then began to work for himself as a tree trimmer. On December 28,1974, the appellee, while carrying a chain saw, ascended a forty-foot ladder and was engaged in trimming a tree when he fell from the ladder, struck the ground and sustained extremely serious injuries. In the latter part of 1976, after extensive medical treatment, the appellee requested that the claim involving his accident of July 25, 1974 be reopened on the theory that the injuries sustained by the claimant in his fall from the ladder on December 28,1974 were caused by the disability which resulted from his accident of July 25, 1974. Appellants raised issues before the Commission as to whether the appellee sustained an accidental personal injury arising out of, and in the course of, employment with Williams Construction Co. on December 28,1974. They also raised the issue of whether the disability of the employee was the result of an accidental personal injury arising out of, and in the course of, employment on July 25,1974. The Commission held that the appellee was entitled to additional temporary total benefits and was permanently totally disabled as a result of the accident of December 28,1974, and that that accident was attributable to the disabilities he sustained as a result of his injury on July 25, 1974. An award of benefits was made reflecting the Commission’s decision, and the appellants appealed from the award to the Circuit Court for Baltimore County. Depositions were taken and filed with appropriate affidavits by the parties, and after a hearing, the trial judge granted appellee’s motion for summary judgment affirming the decision of the Workmen’s Compensation Commission. It is from this action that this appeal was taken.

The depositions and affidavits submitted in support of the several motions for summary judgment filed respectively by the appellants and appellees established that shortly after the original fall by the appellee in the accident of July 25, 1974, the claimant began to experience dizzy spells intermittently which required him to take medication prescribed by the treating physician, but which were not so severe as to prevent claimant from working. Although the claimant complained of dizziness to the attending physician on three separate visits, the doctor allowed him to return to work and placed no restrictions on the appellee. The claimant testified that when he returned to work for Williams Construction he noticed that he would from time to time suffer dizzy spells in which everything would “go round and round,” and during which he would hang on to something until the dizzy spell subsided.

Appellants admit they have no evidence to contradict the appellee’s contention that the dizzy spells which ultimately resulted in his fall from the ladder were related to the dizzy spells he experienced as a result of the original fall in July. They urge, however, that the appellee was aware of his condition; that he acted in a reckless and unreasonable manner in climbing the ladder knowing that he was having dizzy spells; and that if, in fact, the dizzy spells did cause his fall, then his reckless and unreasonable conduct in climbing the ladder amounted to a break in the direct causal relationship between the accident of July, 1974 and the injuries sustained in the fall in December of 1974.

Appellants rely for legal sustenance on Watts v. Young Co., 245 Md. 277, 225 A. 2d 865 (1967), a case which is factually distinguishable from the case sub j'udiee. In Watts, the Court of Appeals had before it the ease of a claimant who had sustained injuries and who refused to undergo corrective surgery. The Court, in holding that the refusal to undergo surgery justified the withholding of an award for permanent partial disability, gave as one of its reasons the conclusion that the claimant’s intentional and unreasonable conduct broke the'chain of causation between his employment and his injury. It held that to the extent the claimant’s disability was found to relate to his arbitrary refusal to assent to treatment, such disability did not arise out of his employment. In support of this holding, the Court cited 2 Larson, Workmen’s Compensation Law sec. 13.22 (1952).

In a discussion of the range of compensable consequences, Larson suggests the rule should be that when the primary injury is shown to have arisen out of, and in the course of, employment every natural consequence that flows from the injury likewise arises out of the employment, unless the injury is the result of an independent intervening cause attributable to claimant’s own intentional conduct. The employee’s own contributory negligence with regard to the primary injury is ordinárily not an intervening cause preventing initial compensability. But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, Larson suggests the basic rule should be that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury. He then suggests that when a subsequent injury arises out of what he designates a “quasi-course” activity, such as a trip to the doctor’s office, the chain of causation should not be deemed broken by mere negligence in the performance of that activity, but only by intentional conduct which may be regarded as expressly or impliedly prohibited by the employer. Larson further develops his legal theory by stating that when the injury following the initial compensable injury does not arise out of a “quasi-course” activity, as when a claimant with an injured hand engages in a boxing match, the chain of causation may be deemed broken by either intentional or negligent claimant misconduct. 2 Larson, supra, sec. 13.11.

Although our courts have not expressly adopted the proposition that Larson posits, the law in Maryland, by statute and case law has considered the effect of the conduct of a claimant on his right to compensation benefits.

The Court of Appeals, in Dayton v. Davis, 218 Md. 614, 618, 147 A. 2d 699 (1959), speaking through Chief Judge Bruñe, said: “There are very few unavoidable accidents; negligence produces most of them and an employee’s non-wilful negligence — his lapse from care — does not keep an injury producing occurrence from being an accident nor bar his right to compensation.”

Pursuant to the Workmen’s Compensation Law, the right to compensation exists without reference to the care of the employee, and compensation is not denied by reason of contributory negligence on his part.

The Legislature of Maryland has explicitly stated the circumstances under which an employee otherwise eligible for compensation benefits will be denied those benefits in Article 10, Section 45 of the Annotated Code of Maryland (1957, 1979 Repl. Vol.):

Notwithstanding anything hereinbefore or hereinafter contained, no employee or dependent of any employee shall be entitled to receive any compensation or benefits under this article on account of any injury to or death of an employee caused by self-inflicted injury, the willful misconduct, or where the injury or death resulted solely from the intoxication of the injured employee or solely from the effect upon him of any narcotic, depressant, stimulant, hallucinogenic or hypnotic drug or from the effect upon him of any other drug which renders him incapable of satisfactorily performing his job, except when such drug has been administered or taken in accordance with a physician’s prescription.

The only portion of this section which might even remotely be applicable in this case is the segment involving the willful misconduct of an employee. 99 C.J.S. Workmen’s Compensation Sec. 258 (1958) defines willful misconduct as the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences. Ford Motor Co. v. Smith, 283 Ky. 795, 143 S.W.2d 507 (1940); Caraher v. Sears Roebuck & Co., 124 Conn. 400, 200 A. 324 (1938); Belyus v. Wilkinson, Gaddis & Co., 116 N.J. Law 92, 182 A. 873 (1936).

Misconduct includes the exposure by an employee to an injury if he knows of, and appreciates, his liability to injury. An employee is not guilty of willful misconduct because he is negligent; Mancini v. Scovill Mfg. Co., 98 Conn. 591, 119 A. 897 (1923); or because he acted imprudently, Hoodenpyle v. Patterson, 197 Tenn. 621, 277 S.W.2d 351 (1955); thoughtlessly, American Mutual Liability Ins. Co. v. Garth, 174 Tenn. 297, 125 S.W.2d 140 (1939); or unwisely, Carvey v. W. D. Young & Co., 218 Mich. 342, 188 N. W. 392 (1922).

In Harris v. Dobson & Co., 150 Md. 71, 132 A. 374 (1926), the Court of Appeals said that willful misconduct may consist of a disregard of rules or orders, but there must be something more than thoughtlessness, heedlessness, or inadvertence; there must be at least a willful breach of the rule or order.

In Karns v. Liquid Carbonic Corporation, 275 Md. 1, 338 A. 2d 251 (1975), the Court of Appeals said willful misconduct may be found where the employee intended to place himself in a position whereby he might expect to meet with injury or death, and in carrying out his intention meets his death as a result of the injuries sustained. The actions of the employee must be such as to show that he intended thereby to place himself in such a hazardous position that injury or death might result as the reasonable consequence of his act.

We do not reach the conclusion that the appellee’s conduct in this case amounted to such willful misconduct as to create an intervening superseding cause which was sufficient to break the chain of causation between the original injury and the subsequent injury so as to preclude the claimant from being entitled to compensation benefits flowing from the original accident.

We note from the testimony of the various witnesses included in the record extract that there is no evidence that the employer imposed any restrictions on the appellee’s performance of his duties for the employer subsequent to the claimant being able to return to work. The appellee performed essentially the same climbing duties in the operation of the tractor bulldozer during the four months he remained employed by the appellant after the initial injury. The attending physician had knowledge of the appellee’s complaint of giddy spells and dizziness. He was also aware of the circumstances of the fall from the bulldozer and that the claimant had struck his head in the fall. In addition, the doctor had made a notation in his records that several days after the accident the appellee had attempted to return to work but was too dizzy to continue to perform his duties. Although the complaints of giddiness continued on three separate visits to the doctor, the doctor, nevertheless, felt the appellee was ready to return to work by August 13,1974. The doctor did not place any restrictions on the claimant’s activities. And although the doctor felt that the dizzy spells were caused by a cerebral contusion, he did not feel it was warranted to send the appellee to anyone for additional tests. The attending physician indicated that he felt the appellee was capable of performing his functions when he discharged him. Not only were there no work restrictions placed on the appellee by the doctor, but the doctor’s advice was also devoid of any restrictions whatsoever regarding any other activities in which the claimant might engage. In the light of this factual situation, the conduct of the employer and the paucity of instructions by the physician, we think it totally unreasonable to hold that the actions of the appellee were of such a reckless and unreasonable nature as to amount to conduct which would break the chain of causation between the initial injury and the subsequent injury.

Thus it is clear that in the case sub judice, as there were no restrictions placed on the employee’s activities either by the prior employer or the attending physician, the appellee’s conduct in ascending the ladder in view of his prior episodes of dizziness was, at the most, poor judgment rather than willful misconduct.

The trial judge in his consideration of the depositions and exhibits filed in support of the motion for summary judgment by the appellee concluded that there was no disputed issue of fact as to whether the accident of December 28, 1974 was the direct result of the injuries sustained by the appellee, and that as a matter of law and of fact that the appellee’s conduct in climbing the ladder, in view of his prior episodes of dizziness, was not sufficient to be an intervening cause so as to destroy the chain of causation between the original injury and the subsequent fall which resulted in the appellee’s paralysis.

As a reviewing body, we are bound by our own Maryland Rule 1086 which states that this Court will review the case upon both the law and the evidence, but the judgment will not be set aside unless clearly erroneous. We find that the conclusions of fact by the trial judge are not erroneous and are correct as to the law.

Judgment affirmed; costs to be paid by appellants.


source: Caselaw Access Project

license: Public Domain

text:
    RONALD S. WATKINS v. STATE OF MARYLAND WADDELL KINGWOOD v. STATE OF MARYLAND
    [No. 959,
    September Term, 1978.]
    [No. 962,
    September Term, 1978.]

      Decided April 19, 1979.

      The cause was submitted on briefs to Lowe, Melvin and Liss, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Bradford C. Peabody, Assistant Public Defender, for appellant Watkins. Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant Kingwood.
    Submitted by Stephen H. Sachs, Attorney General, F Ford Loker, Assistant Attorney General, Warren B. Duckett, State’s Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellants Ronald S. Watkins and Waddell Kingwood, after being convicted of the crime of common law escape in the Circuit Court for Anne Arundel County, were each sentenced to terms of imprisonment consecutive to the terms they were then serving for other offenses. Each appellant appealed the judgment against him, and the cases were thereafter consolidated in this Court.

(1)

While the cases have been argued and briefed jointly, there are differences which we believe require that they be considered individually. We shall first discuss the Watkins case. Watkins was charged in a two count indictment, the first of which charged him, pursuant to Maryland Code (1957,1976 Repl. Vol.) Art. 27, Sec. 139, with the statutory crime of escape. He filed a motion to dismiss that count of the indictment on the ground that the statute was unconstitutional in that its provisions imposed differing penalties for escape from different institutions. The trial judge agreed with that contention, ruled that Art. 27, Sec. 139 was, indeed, unconstitutional, and dismissed the first count charging statutory escape.

Appellant Watkins was also charged in a second count with the crime of common law escape and filed a motion to dismiss that count on the ground that the crime of common law escape had been abrogated by the enactment of the statutory crime of escape. The trial judge denied that motion and Watkins proceeded to trial. Before the trial began, the trial court was advised by counsel that the defendant desired a court trial, the language as recorded in the record being as follows:

[DEFENSE COUNSEL]: Your Honor, John Welsh of the Office of the Public Defender for [the appellant]. Your Honor, we wish to be tried before this Court and will enter our plea of not guilty.
COURT: Alright.

The case then proceeded as a court trial, and after hearing the evidence the trial court found the appellant guilty and imposed a six month consecutive sentence. No question has been raised by the appellant as to the sufficiency of the evidence. He does, however, urge that he is entitled to a reversal because the trial judge failed to comply with Maryland Rule 735 d. He is correct. We held in Biddle v. State, 40 Md. App. 399, 392 A. 2d 100 (1978), that before a trial court may accept an accused’s election of a court trial, the court must comply with the mandatory requirements of that rule. The rule requires that after inquiry of the defendant, the trial court must determine on the record that the defendant has elected to be tried by the court with full knowledge of his right to a jury trial, and that the defendant has voluntarily and knowingly waived his right to a jury trial. It is obvious from the record that the trial court did not comply with Rule 735 d. Under these circumstances, we must reverse the judgment entered against the appellant.

(2)

Kingwood’s appeal does not raise the issue of an alleged violation of the provisions of Rule 735 d, nor is there any contention that the evidence was insufficient to support his conviction for common law escape. The principal question raised by his appeal is whether the adoption of Art. 27, Sec. 139, the statutory law of escape, abrogated the common law offense of escape.

At common law, escape was of three kinds, as stated in Fabian v. State, 3 Md. App. 270, 275, 293 A. 2d 100 (1968):

1. By the person that hath the felon in his custody, and this is properly an escape; and
2. When the escape is caused by a stranger, and this is ordinarily called a rescue of a felon.
3. By the party himself, which is of two kinds, viz.
i. Without any act of force, and this is a simple escape.
ii. With an act of force, viz. by breach of prison.
1 Hale P.C. 590 as quoted in Perkins Criminal Law (1957) Ch. 5, p. 428.

In 4 W. Blackstone, Commentaries *130, stated that: “Breach of prison by the offender ... was felony at the common law; [A]nd to break prison ... when lawfully confined upon any inferior charge, is still punishable as a high misdemeanor by fine or imprisonment.”

The Legislature enacted Art. 27, Sec. 139, which provides as follows:

(a) If any offender or person legally detained and confined in the penitentiary or jail, or house of correction, or reformatory, or station house, or any other place of confinement, in this State, escapes he shall be guilty of a felony and on conviction by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place, be sentenced to confinement in the penitentiary, jail or house of correction for whatever additional period, not exceeding ten years, as the court may adjudge. The sentence so imposed shall be consecutive to the sentence under which the inmate was originally confined and may not be suspended. However, for escapes from the Maryland Correctional Institution — Hagerstown or the Maryland Correctional Training Center — Hagerstown or any juvenile institution which have not involved an assault, the sentence may not exceed confinement for three years.
(b) Upon conviction for a violation of this section, an escapee shall be liable for all expenses incurred in his return to the jurisdiction of the Division of Correction. The Commissioner of Correction may establish whatever regulations and procedures as may be appropriate for charging an escapee with expenses, collection of those expenses, and for conduct of any hearing challenging those expenses. However, the Commissioner shall notify the returned escapee of any charges. A hearing shall be granted to any returned escapee who wishes to challenge the reasonableness of any charges.
(c) If any keeper, deputy, assistant keeper or other person aids or assists in the escape of any offender or person detained and confined, he is guilty of a felony and on conviction by the Criminal Court of Baltimore City or by the circuit court of the county in which the escape takes place, that person shall be sentenced to whatever confinement in the care and custody of the Commissioner of Correction as the court may adjudge, for not more than ten years.

In Lutz v. State, 167 Md. 12, 15, 172 A. 354 (1934), the Court of Appeals stated:

In 25 R. C. L. 1054, it is said that: “It has been said that statutes are not presumed to make any alterations in the common law further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law. The rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language. In order to hold that a statute has abrogated common law rights existing at the date of its enactment, it must clearly appear that they are repugnant to the act, or the part thereof invoked, that their survival would in effect deprive it of its efficacy and render its provisions nugatory.”
Where, however, a statute and the common law are in conflict, the common law yields to the statute to the extent of the inconsistency {Sutherland on Stat. Const, sec. 294; 12 C.J. 186), and a statute which deals with an entire subject-matter is generally construed as abrogating the common law as to that subject. (Emphasis added.)

The rule is that where a statute and the common law are in conflict the common law yields to the statute to the extent of the inconsistency, but where the legislative intent is shown to encompass an entire area then that statute preempts the common law. Lutz, supra. We find that the statute simplified the common law by consolidating the three types of escape into one statute and making all escape a felony. The statute as adopted represented the entire subject matter of the .law of escape in Maryland and thereby abrogated the common law of escape and its several classifications as well as the distinction among various acts of escape as misdemeanors or felonies. We hold that the adoption of the escape statute was, in effect, the equivalent of the wooden stake in the heart of Dracula which made impossible the resurrection of the common law by the declaration of the trial judge that the escape statute was unconstitutional. This is evidenced by our holding in State v. Magliano, 7 Md. App. 286, 288, 255 A. 2d 470 (1969), where we said:

We concluded [in Fabian v. State, supra,] that it was the legislative intent under the statute in effect today, Maryland Code, Article 27, Section 139, to create a new crime of escape, although analogous to the common law crime, and that the statutory crime encompasses both the common law “simple escape” and “breach of prison.” (Emphasis added.)

See also Baker v. State, 205 Md. 42, 106 A. 2d 692 (1954).

Although the defendants succeeded in convincing the trial judge that Art. 27, Sec. 139 was unconstitutional, that ruling has since been reversed in a series of cases in the Court of Appeals. Clark v. State; Stutzman v. State; Pritchard v. State, 284 Md. 260, 396 A. 2d 243 (1979).

When the trial judge erroneously declared, at the request of the defendants, that Art. 27, Sec. 139 was unconstitutional, trial could neither proceed pursuant to charges founded upon an “unconstitutional” statute nor upon the abrogated common law. The appellant’s trial on the common law offense of escape was a nullity and the judgment must be reversed.

(3)

Appellant Watkins raises one other issue: whether a testimonial foundation must be established before a commitment record of an inmate may be admitted into evidence under the business record exception to the hearsay rule. In Maryland, before a document is admissible into evidence to prove an act, transaction or event under the business record exception to the hearsay rule, Code (1974, 1978 Cum. Supp.) Cts. and Jud. Pro. Art. sec. 10-101, there must be a showing that when the record was made, it was made in the regular course of business as a memorandum or record of that act, transaction or occurrence.

We said in Thomas v. Owens, 28 Md. App. 442, 448, 346 A. 2d 662 (1975): “While normally this foundation is shown by testimonial evidence, the statute [Cts. Art. sec. 10-101, supra\ sets forth no such requirement. At times a court may properly conclude from the circumstances and the nature of the document involved that the proffered document was made in the regular course of business.” Levine v. Beebe, 238 Md. 365, 370, 209 A. 2d 67 (1965); Tellez v. Canton Railroad Co., 212 Md. 423, 432, 129 A. 2d 809 (1957); Morrow v. State, 190 Md. 559, 59 A. 2d 325 (1948); Gordon v. State, 14 Md. App. 245, 257, 286 A. 2d 833, 841 (1972).

Furthermore, the rule in Maryland is that business records may be introduced, even though hearsay in nature, “when the entry meets the test of ‘necessity and circumstantial guaranty of trustworthiness.’ ” Burroughs International Co. v. Datronics Engineers, Inc., 254 Md. 327, 348, 255 A. 2d 341 (1969).

In the present case, the commitment record was introduced into evidence to show that the appellant was legally detained and confined as required by the elements of the offense of common law escape. The fact that the Department of Correction maintains a base file on every prisoner which includes among other documents a commitment document indicates that the record was made in the regular course of business.

However, even if, arguendo, the document was incorrectly admitted into evidence, the error was harmless beyond a reasonable doubt, as the guard testified that the appellant was in his custody when the appellant was transported to the hospital. Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976).

Judgment as to Ronald. S. Watkins reversed.

Costs to be paid by Anne Arundel County.

Judgment as to Waddell Kingwood reversed.

Costs to be paid by Anne Arundel County.


author: Gilbert, C. J.,

text:
    STATE OF MARYLAND v. JAMES LINWOOD STRICKLAND
    [No. 971,
    September Term, 1978.]

      Decided April 19, 1979.

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

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Stephen C. Orenstein, Assistant State’s Attorney for Prince George’s County, on the brief, for appellant.

      Reginald W. Bours, III, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The appellee, James Linwood Strickland, for whatever else he may lack, suffers not for want of chutzpah. Strickland set out to bribe Judge Sylvania W. Woods, a District Court Judge in Prince George’s County. The purpose of the bribe was to have Judge Woods show leniency toward a friend of Strickland who had a case pending before the judge. Contact with the State’s Attorney was promptly made by Judge Woods. Apparently, the judge was asked to play along with Strickland until the actual payment of money occurred. Strickland turned twenty-five hundred dollars ($2500) over to the judge who immediately gave it to agents of the State’s Attorney. Strickland was indicted for bribery, pled guilty and was sentenced to imprisonment for a term of four (4) years. At the time of the acceptance of the guilty plea on November 17, 1977, the State offered the money as an exhibit. It was received into evidence by the Court. Strickland did not appeal the judgment of the Circuit Court for Prince George’s County which was entered on March 1, 1978.

Almost three months after the criminal trial, Strickland filed a “MOTIONFOR MODIFICATION OR REDUCTION OF SENTENCE, RETURN OF PROPERTY, AND OTHER APPROPRIATE RELIEF. ” A hearing was held in the circuit court, and the judge, on August 10, 1978, ordered that the twenty-five hundred dollars ($2500) be returned to Strickland. It is the return of the property portion of the motion that the State promptly appealed.

Strickland has moved to dismiss the State’s appeal on the ground that the return of the money was ordered as part of the criminal trial, and the State may not appeal in a criminal case except in certain circumstances which are inapplicable here. State v. Stanley 34 Md. App. 393, 367 A. 2d 27 (1977). See also Maryland Courts and Judicial Proceedings Code Annotated § 12-302c. Obviously, we must first determine whether the matter before us is a criminal case. If it is, we shall not reach the merits because the appeal must be dismissed. Courts art. § 12-302c; State v. Stanley, supra.

There is no dispute that the motion for the “RETURN OF PROPERTY"was filed in the criminal case, after the case had been tried and the time for appeal had expired. The trial court did, however, possess the power to modify by way of reduction its original sentence, but that authority would have ceased on May 30, 1978, Md. Rule 774 b, one day after the motion was filed. A motion to modify or reduce a sentence is directed to the sound discretion of the trial court and is not appealable.

It does not follow, however, that simply because a motion is filed in a court that exercises criminal jurisdiction, that the proceeding arising from the motion must, ipso facto, be criminal in nature, e.g., civil contempt. The motion for the return of the money was, in our view, more akin to a replevin, a civil action, rather than a criminal proceeding. The Court of Appeals, in Novak v. State, 195 Md. 56, 72 A. 2d 723 (1950), considered a case wherein there was a petition filed in a criminal cause, following conviction for violation of the gambling laws, to recover monies seized as a result of the execution of a search and seizure warrant. The Court said that it considered the petition to be filed appropriately in the criminal case as “an equivalent of an action of replevin (if the money was still held in specie) or of trespass or trover for the determination of title (so far as necessary) or right of possession to the money.” Id. at 64, 72 A. 2d at 726. Hence, it is manifest that the Court recognized in Novak that irrespective of whether the petition was filed in a criminal case, it was, nevertheless, “equivalent of an action of replevin.” That, however, was before the enactment of Courts art. § 4-401, which vested “exclusive original civil jurisdiction in:... (2) An action of replevin, regardless of the value of the thing in controversy,” in the District Court. That jurisdiction may not be ousted except in the most narrow of circumstances. Courts art. § 4-402 (e) (2). Consequently, if the Novak dicta now has any meaning, it must be that the petition for the return of the money should have been brought as a replevin in the District Court, or that because it was filed in the circuit court, where the money was, it is in the nature of “trespass or trover for the determination of title.” Novak v. State, 195 Md. at 64, 72 A. 2d at 726.

We think Strickland’s petition, even though filed in the criminal case, was a request that the court determine title to personal property. As such, regardless of what Strickland chooses to call it, that aspect of the case is civil, not criminal, and it matters not one whit that the money was introduced as evidence in a trial for violation of a criminal statute.

We hold that the proceeding in the circuit court to recover money that was introduced into evidence, in a bribery trial, was civil in nature, and that the State has the right to appeal an order of court directing that the money be paid over to the briber. The appellee’s motion to dismiss is denied.

Having determined that the appeal is properly before us, we shall now undertake to decide whether the trial court was correct in ordering the refund of the bribe to the briber. Md. Rule 1217 f 2, Strickland says, entitled him to the return of the money. The rule provides:

“All exhibits introduced into evidence or marked for identification during the trial of a case, and not filed as a part of or with the pleadings, shall be retained by the clerk of court or such other person as may be designated by the court. After either (i) the time for appeal has expired, or (ii) in the event of an appeal, the mandate has been received by the clerk, the clerk shall send written notice to all counsel of record advising them that if no request to withdraw such exhibits is received within ten (10) days from the date of the notice, the exhibits will be disposed of. Unless such a request is received by the clerk within ten (10) days from the date of notice, or unless the court within such period shall order otherwise, the clerk shall dispose of the exhibits in such manner, including destruction, as may be appropriate.”

Strickland argues that “[t]he record herein fails to demonstrate any compliance by the Clerk of this mandate, nor any request by Appellant [the State] to withdraw the exhibits in the procedure required.” Therefore, Strickland moved that the twenty-five hundred dollars ($2500) be turned over to him. We do not read Rule 1217 f 2 in the same manner as Strickland. We think the rule means that the clerk of the court is required to notify all counsel in the case that the evidence will be disposed of in such manner as may be appropriate unless the party who put the exhibit into evidence moves for its return within ten (10) days after the notice to counsel.

The rule is clearly framed in terms of requests to “withdraw” exhibits. The word “withdraw” means, inter alia, to “take back.” Webster’s Third New International Dictionary of the English Language Unabridged (1976 ed.); The American Heritage Dictionary of the English Language (1970 ed.). Since only one who gives something may take it back, the plain meaning of Rule 1217 is that only the party that placed an exhibit in evidence may make a request to withdraw it. As Mr. Justice Holmes said in United States v. Brown, 206 U. S. 240, 244, 27 S. Ct. 620, 621, 51 L. Ed. 1046, 1047 (1907), “[W]hatever the consequences, we must accept the plain meaning of plain words.” A consequence of the plain meaning of the word “withdraw” is that we do not believe that the rule permits a party to a case to recover the exhibit unless that party is the one who placed it in evidence, absent a showing of ownership.

From the record it is apparent that the hearing judge believed that to permit the State to retain the twenty-five hundred dollars ($2500) that was used in the bribe constituted a violation of the Maryland Declaration of Rights, Article 27. That Article provides “[t]hat no conviction shall work corruption of blood or forfeiture of estate.” The hearing judge reasoned that for the State to keep the twenty-five hundred dollars ($2500) was a forfeiture within the meaning of the Maryland Declaration of Rights. Our view is entirely different. The constitutional proscription against forfeiture has nothing whatsoever to do with this case, as there was no forfeiture. As we see it, when Strickland paid the money over to Judge Woods, Strickland parted with all title to that money. While he testified that he never intended it to be a “gift” to the judge, he, nevertheless, freely and voluntarily relinquished both possession and title in and to the money. The possession and title then passed to Judge Woods, as agent for the State. Hence, the title was then vested in the State of Maryland. Title to the money having passed to the State through Judge Woods, Strickland had no interest in the money. If there was no interest, there was nothing to forfeit.

A basic principle of contract law is that agreements to commit a crime are illegal, void. Without question, courts will not order damages for breach of such a contract. Parties of that ilk are left where they are found, to stew in their own juice. Certa v. Whittman, 35 Md. App. 364, 370, 370 A. 2d 573, 577 (1977) (“The law will not aid a man who founds his cause of action upon his own illegal acts. The courts should leave such parties where they found them.”); Zalis v. Blumenthal, 254 Md. 265, 267, 254 A. 2d 692 (1969); Thorpe v. Carte, 252 Md. 523, 529, 250 A. 2d 618 (1969); Gotwalt v. Neal, 25 Md. 434, 446 (1866); Bayne v. Suit, 1 Md. 80, 86 (1851); Womack v. Maner, 227 Ark. 786, 301 S.W.2d 438 (1957); 60 A.L.R.2d 1271; 17 C.J.S. §§ 223, 232, 272; Williston on Contracts, 3rd ed. § 1787. So that, even if it be postulated that Judge Woods breached a contract with Strickland, or that there was a complete failure of consideration between the parties, Strickland would be devoid of legal means of recovering whatever money he paid for the sought performance of an illegal act. In Clark v. United States, 102 U. S. 322, 26 L. Ed. 181 (1880), the Court said that bribery “placed the claimants and the man they corrupted in pari delicto. They could not recover back from him the money they paid, neither can they from the United States after it has been taken from him as a punishment for his faithlessness to his trust.” Id., at 331-32; 26 L. Ed. at 184.

Generally, unless a statute expressly permits the return of the bribe money, courts have denied the briber the benefit of the money used in the commission of the crime. See State v. Gunzelman, 200 Kan. 12, 434 P. 2d 543 (1967); Womack v. Maner, supra. Strickland notes that the Attorney General, in 58 Op. 61 (1973), opined that “unless otherwise provided by law, and in the absence of a claim filed by some other person, property should be returned, as a general rule, to the person from whom it was taken.” The Attorney General then observed that there were seven (7) exceptions to the general rule. 58 Op. at 62-68. Bribery is not identified as one of those exceptions. The list compiled by the Attorney General is based on statutory provisions. Strickland contends that because bribery is not one of those seven (7) exceptions, the legislative intent is that the bribe money be turned over to the culprit that paid the bribe. In so concluding, Strickland misreads the Attorney General’s opinion. It did not say that there are only seven (7) exceptions. We note that the opinion was prefaced with “unless otherwise provided by law.” Money paid in a bribe falls into that category.

Over and above statutes declaring that certain things shall not be returned to the party from whom they were seized or taken, 58 Op. at 62-68, is the public policy of the State. That policy makes it unthinkable that courts of justice will aid a briber in recovering the money with which he voluntarily parted in furtherance of his unlawful venture. United States v. Galbreath, 8 F. 2d 360 (N.D. Cal. 1925); see Thorpe v. Carter, supra; Bayne v. Suit, supra.

According to 60 A.L.R.2d 1271, Annot. Bribe Recovery by Briber, § 2, “the modern rule,... supported by the weight of authority [is that] one cannot maintain an action to recover money paid or property transferred to another person for the purpose of bribing him,” even if the person bribed expressly promised to repay it. Malatkofski v. United States, 179 F. 2d 905 (1st Cir. 1950).

The public expects that the courts will administer justice both fairly and impartially. Any attempt to bribe a member of the judiciary, or one of the satellites of the judiciary, is a reprehensible, odious act striking at the heart of the judicial system. Gunzelman, supra. For the bribe then to be repaid to the briber, on order of a court, erodes the public’s confidence in the court’s common sense and judgment. The law is firm that a murderer may not inherit from his victim. Pannone v. McLaughlin, 37 Md. App. 395, 377 A. 2d 597 (1977). It is equally as firm that a briber cannot recover the bribe.

We hold the law of Maryland to be that, absent a statute directing the return of monies used in a bribe, public policy forbids the return of the money to the briber whether his efforts be a success or failure.

It follows from what we have said that the order of the Circuit Court for Prince George’s County is reversed.

Motion to dismiss denied.

Order reversed.

Costs to be paid by appellee.

Mandate to issue forthwith.

      . Chutzpah is of Yiddish origin. It means that a person has “gall, moxie, nerve and audacity compounded with brazen assertiveness.” Morris, Dictionary of Word and Phrase Origins. (1977) pg. 132. According to William and Mary Morris, “a lad with real chutzpah is one who would kill both his parents and then demand leniency of the court on the ground that he is an orphan.” Ibid.

      . Had the State not placed the money in evidence, something it did not need to do, it is doubtful that this appeal would be here.

      . That section provides:
      “(c) In a criminal case, the State may appeal:
      (1) From a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition; and
      (2) From a final judgment if the State alleges that the trial judge failed to impose the sentence specifically mandated by the Code.

      4. See cases cited in 60 A.L.R.2d 1271, § 2.


author: Lowe, J.,

text:
    GREGORY MARTIN AMOS v. STATE OF MARYLAND
    [No. 975,
    September Term, 1978.]

      Decided April 20, 1979.

    The cause was argued before Lowe, Melvin and Liss, JJ.

      John W. Sause, Jr., District Public Defender, for appellant.

      Ray E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Donaldson C. Cole, Jr., State’s Attorney for Cecil County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Gregory Martin Amos would have us reverse the judgment of the Circuit Court for Cecil County, wherein a jury convicted him of conspiracy to distribute methamphetamine. He provides us with alternative reasons: evidentiary insufficiency, and improper chain of custody of the controlled dangerous substance which he purportedly conspired to distribute.

— sufficiency of the evidence —

An undercover officer, Trooper Michael H. Pasker, testified to that which constituted the conspiracy:

“A We went into the house and met with Greg. And then we went up to his room which is located in the attic. We began a drug related conversation,
Q Just tell us what the conversation was between-you and the Defendant? What did you talk about? What did you say and what did he say?
A He said, ‘Do you have anything for your head?’
MR. EVANS [Defense Attorney]: I object. Who is this that says this?
THE WITNESS: Gregory.
MR. EVANS: Said what?
THE WITNESS: ‘Do you have anything for your head?’
BY MR. COLE:
Q What happened next.
A I said ‘No. That is what we are here to see you about.’ And Gregory said he didn’t have anything at that time, but if we came back or called him around 5:00 he would see what he could do for us.
Q He said come back or call?
A Around 5 that afternoon.
Q Did you do it?
A Yes. At about 5 that afternoon I returned to the house. Again with Dennis, we went into the house and into the kitchen. And Gregory said he didn’t have anything at that time, but he had talked to Ralph Quincy Richardson and that he had two quarter-tees of crank for sale, which means he had a quantity of methamphetamine for sale. And that he would meet us at the Howard Hotel in Elkton to make the transaction.
Q Did he say anything else?
A He also said that he would call at that time and tell him that we were on our way.
Q Okay. Now, did you go to the Howard Hotel?
A Yes, I did. I arrived there at approximately 5:30 and I met with Ralph Quincy Richardson at that location. I identified myself that I had just talked to Gregory Amos, and asked Richardson if Amos had contacted him, at which time he said, ‘Yes, he did.’
A Richardson and I then went into the bathroom, at which time he said he had two quarter-tees of crank. And I asked him what the price would be. And he said $30 to me. I produced a $20 bill and a $10 bill and handed it to him, at which time he removed from his shirt pocket a silver cigarette case and had a pack of Kool cigarettes there. And on the side or in the bottom of the case he had two small packages of methamphetamine.
Q And they were — what happened to them?
A I then took them into my custody, and subsequently had them analyzed by a certified chemist for the State of Maryland.”

While this evidence is admittedly thin, it is sufficient evidence from which a factfinder could infer a conspiracy. In Kelley v. State, 12 Md. App. 251 (1971), cert. denied, 263 Md. 716 (1971), the facts were surprisingly similar. There, a police officer testified:

“ T said, ‘Do you have any grass that you would like to sell?’
He said, ‘My brother has some, but he’s not home right now.’ Then on top of that he said, ‘But I know a guy that might have some. If you want to come in, I’ll call him.’ ” Kelley v. State, 12 Md. App. at 253, n. 2.

Kelley then called the source, relayed the messages and went with the officer to vouch for him. The transaction was consummated, and as here, no evidence was adduced that Kelley participated in the proceeds. This Court held that:

“the jury could have found from credible evidence before it that appellant at his own suggestion called Yeager and arranged for the sale of marijuana to Morton. This agreement between appellant and Yeager that the drug be sold to Morton resulted in the unlawful combination, as charged, to commit the crime proscribed by Code, Art. 27, § 277,' then in effect, and the conspiracy was complete. Compare Randolph v. State, 10 Md. App. 89. Whether or not appellant thereafter shared in the profits or received some other consideration is not material.” Id. at 258.

Appellant seeks to distinguish Kelley because of his limited participation in the actual transaction. He contends that he did little more than give gratuitous advice to the trooper at the trooper’s importunacy, i.e., he made inquiries solely on behalf of the trooper. But that is his interpretation of the facts proven without allowance for logical inferences which may flow from those facts. If jurors could not infer elements of dishonesty from borderline conduct, few, if any, conspiracy convictions would occur. Id. at 257-258. The difficulty, of course, is that the law of conspiracy is broad enough to ensnare innocent acts shaded with corrupt appearances.

Over one hundred and fifty years ago the Court of Appeals decided that every conspiracy to do an unlawful act, or to do a lawful act for an illegal purpose which has a tendency to prejudice the public, is at common law an indictable offense. State v. Buchanan, 5 H. & J. 317 (1821). If the evidence in the case at bar is considered thin, it appears abundant when compared to some of the examples given in Buchanan, e.g.:

“So in The King vs. Leigh and others, (Macklin’s Case,) 2 Macklin ’s Life, 217, in which it was held, that an indictment would lie for a conspiracy to impoverish an actor, by driving or hissing him off the stage; and in Clifford vs. Brandon, 2 Campb. 358, it was said by Sir James Mansfield, that ‘though the audience had a right to express by applause or hisses their sensations at the moment, yet if a body of men were to go to the theatre, with a settled intention of hissing an actor, or even of damning a piece, there could be no doubt that such a deliberate preconcerted scheme would amount to a conspiracy, and that the persons concerned in it might be brought to punishment.’ There the preconcerted scheme alone, the unexecuted conspiracy, was held to be indictable; but if put into execution, according to circumstances, it would be a riot.” Id. at 346-347.

We will, therefore, not reverse without retrial, because the evidence was sufficient to have sustained the verdict. However, finding evidentiary error of a prejudicial nature, we will reverse and remand for retrial. State v. Boone, 284 Md. 1, 13-14 (1978); Mackall v. State, 283 Md. 100 (1978).

— chain of custody —

If appellant were to be convicted of conspiracy to distribute a quantity of methamphetamine, a controlled dangerous substance, as charged, the proof must equal the charge. The testimony set forth above — without more — would have been sufficient. The actual transaction conspired need not have transpired. Execution is not requisite, Buchanan, supra at 355; the gist of the conspiracy is an unlawful combination and no further overt act is required to constitute the crime. Kelley, supra; Jones v. State, 8 Md. App. 370, 375-378 (1969).

But, presumably, because the evidence was inferentially equivocal, the State chose to bolster it by showing the consummation of the overt act conspired. To further substantiate the testimony that the sale took place as set up by appellant, the State sought to introduce the methamphetamine purchased by the officer, then to prove by a chemical analyst that it was indeed methamphetamine. In short, the State sought to corroborate the testimony of the trooper and to enlarge the scope of inferential culpability by introducing the real evidence of the crime appellant had conspired to have perpetrated, i.e., by presenting to the jury the controlled dangerous substance itself.

To be admissible, however, this “real evidence” must be in substantially the same condition that it was in at the time of the crime and must be properly identified. 3 Wharton’s Criminal Evidence § 635 (13th ed. C. Torcía). Although there is a natural inference or presumption of continuance in the same condition, that inference varies in each case with the nature of the subject matter and the time element. Nixon v. State, 204 Md. 475, 482 (1954); 2 Wigmore, Evidence § 437 (1) (3d ed.).

Whether real evidence is in the same condition as at the time of the crime so as to permit admissibility is not entirely a discretionary matter with the court, Nixon, supra at 483; although the circumstances surrounding its safekeeping in that condition in the interim need only be proven as a reasonable probability. Breeding v. State, 220 Md. 193, 199 (1959). The proof negating the probability of changed conditions between the crime and the trial, is spoken of as proving the chain of custody, and in most instances is established by accounting for custody of the evidence by responsible parties who can negate a possibility of “tampering” and thus preclude a likelihood that the thing’s condition has changed.

In a narcotics’ case, the heart of the crime is that the seized evidence is legally proscribed, and this of necessity requires expert analysis of the thing seized. Obviously, the identifying guarantee that the hard evidence seized is unchanged between the time of seizure and the trial is not as important as establishing that the thing seized is the same analyzed and introduced at the trial as a proscribed drug. When drugs are submitted to police laboratories for analysis, and held in drug lockers with/‘say two hundred [other specimens] to be tested,” there is far greater risk of misidentification than there is of changed conditions. It is the assurance that the substance analyzed and introduced was the same substance purchased by Trooper Pasker that appellant contends was not established with even “reasonable probability” in this case. The State attempted to negative the possibility of mistake by establishing a “chain of custody” but it fell short of connecting the links.

Trooper Pasker testified that after purchasing the drug in two small packets, he locked them in a brief case which was locked in his car trunk until the next day when he delivered them personally to the chemist, a M. Patricia Sullivan:

“Q All right. Now, when did you — you took them into your custody and when did you deliver them to the chemist?
A I would like to look at the lab report here.
Q Go ahead.
A I delivered them to M. Patricia Sullivan, Certified Chemist for the State of Maryland, on the 21st, the day following, at 1:40 P.M.”

As further explained, he pointed out that the two packets were sealed in an orange evidence envelope which he identified as being the one he turned over to Ms. Sullivan:

“Q I show you State’s 1 for identification. Can you identify it?
A Yes, I can.
Q Will you please do so?
A This is the envelope in which I placed the two packages of methamphetamine.
Q Are they still in it or —
A They are still in here, and it is sealed by the official seal.
Q Of the chemist?
A Of the Criminal Laboratory of the Maryland State Police.
Q Okay. And you delivered that particular package with its contents to Miss Sullivan at 1:40 P.M. on the 21st?
A Yes.”

On cross-examination he repeated his procedure.

“Until the next day when I went to Headquarters. Then I took my — I unlocked the trunk and took my case out and went into the office, and unlocked the briefcase. I got one of these orange evidence envelopes, placed the stuff in there and filled out all of the information, and I sealed the envelope myself. I then carried it personally to the Maryland State Police Laboratory Services Section where it was turned over to Mary Patricia Sullivan.”

But when pressed for proof of this transfer to Ms. Sullivan, the officer first waffled:

“Q I am not talking about the Court. You say you gave something to somebody. Who did you give the stuff to?
A To M. Patricia Sullivan, the Certified Chemist for the State of Maryland.
Q All right.
A It was stamped on there at the time.
Q Did M. Patricia Sullivan give you a receipt for what you gave her?
A She stamped this and I also had another receipt.
Q All right. Well, the best evidence would be the other receipt. Where is it?
A I suppose that it is in my desk in Pikesville or —-
Q Why wouldn’t it be in the file in this case?
A Through my own neglect.
Q And what this is is just a time stamp, just received in the Crime Lab. Does this say who it is received by?
A Yes. It is also signed by the chemist below my name, indicating the chain of custody.
Q Well, that is what it is signed. But I am not interested — anybody could sign anything. I am asking you: You gave it to this girl?
A She will be in to testify.
Q Answer my question. It is not what she will be. I asked you. You gave it to this girl and she signed for it, is that correct?
A Yes, sir.
Q All right. But you didn’t get this — this is just a chain of custody. And then I suppose she gave it back to you later, huh? Did you actually hand it to this one girl?
A We have a procedure.”,

then abruptly changed his story:

“Q Just answer my question and then you can say anything you want to say about your procedure. I asked you: Did you actually deliver, hand deliver it to this Sullivan woman or girl? Just answer yes or no.
A No.
Q No. And when it came back to you, did she personally hand deliver it to you?
A Yes, she did.
Q But you didn’t hand deliver it to her?
A No.
Q You don’t know whose hands it went in or where it went after you put it there? Who did you give it to?
A Trooper First Class Howard Presnell.
Q Where is he?
A He is assigned to the Laboratory Services Section.
Q Well, he is not here today, is he?
A I don’t think so.
Q I mean you would know whether he came up.
So, this thing, you don’t really know where it went between the time it left your hands, when you gave it to Trooper Presnell, is that correct?
A Presnell —
Q So you didn’t really deliver it to the Lab at all, you gave it to Trooper Presnell?
A I delivered it to the Lab.
Q But you gave it to somebody named Presnell, right?
A Yes.
Q And Presnell is not here to say what he did with it.”

Since the only purpose of a chain of custody is to verify that the evidence is the same obtained at the time of the crime, appellant called upon the officer to describe what he had purchased.

“Q. Is there any way, other than what you have told us, that these are not pills, but some sort of a powder, is that correct? It is a powder substance, is that what it is?
A Yes, sir.
Q All right. What color is it?
A It is off-white,- like Coffee Mate.
Q An aspirin is sort of off-white, isn’t it?
A No, I would say that is pure white.
Q But there are a lot of known CDS? ,
A Really like Coffee Mate. That is almost the exact color.
Q So, you got it back. Now, how do you know if this is a powder — that the same powder you got back is what you turned in? Is there any way you can tell it other than you say it was in the envelope?
A The chemist who will testify later can.
Q We don’t want you to testify what the chemist will testify to. How many chemists are down in this lab?”

Appellant’s obvious concern came from the fact that he had unsuccessfully tried doggedly to have the trooper open the sealed envelope and identify the contents as being the same which he had placed therein for analysis:

“Q You should have shown it to us. Why don’t we take a look at it. Do you have it here?
A It was submitted into evidence. Yes, here it is.
Q I haven’t seen it. And we have an envelope, but there might be nothing in it.
MR. COLE: It will be opened when the chemist gets here, Billy.
MR. EVANS: I want to see what it is now, and see if there is anything in there.
MR. COLE: I don’t know what is in there.
MR. EVANS: Maybe there is nothing.
MR. COLE: It could be.
BY MR. EVANS:
Q Did you see anything in there?
A There is something in there.
MR. EVANS: Let’s open it. Do you want me to open it, if you are afraid to open it?
MR. COLE: Judge, what will this do about our chain is the only problem I am running into.
THE COURT: Do you propose to open it, Mr. Cole?
MR. COLE: The chemist will open it.
THE COURT: What is in there, two white packets of white powder.
MR. EVANS: I want to see if there is anything in it at this time. The Jury is here and —
THE COURT: The Jury will still be here.
MR. EVANS: I understand that. And I think I have a right to have it opened at this time.
THE COURT: Well, you can call this Witness back and question him after it is opened, if you wish, as a State’s Witness.
MR. EVANS: Your Honor, there is no way —
THE COURT: It isn’t necessary that the Defense Counsel have everything that he wants, nor is it right.
MR. COLE: We plan to open it with the chemist.
MR. EVANS: If you can direct me to anything in the law that says that a piece of evidence that I can’t ask to have it opened.
THE COURT: It isn’t even in evidence.
MR. EVANS: Excuse me. If you had said that, I would concede. The envelope is identified.
The contents of the envelope have not been identified.
THE COURT: The envelope is in for identification, Mr. Evans.
MR. EVANS: The envelope is and the contents?
THE COURT: And contents.
MR. COLE: That comes later.
MR. EVANS: Then we can’t see the contents. How can it be identified? It is very simple.
THE COURT: The envelope contains contents, Mr. Evans, and it is in for identification.
MR. COLE: That is as far as we have gone so far.
MR. EVANS: Well, we are sort of bandying words. But I think if the envelope is in, the contents you say are in, and we ought to see them.
THE COURT: They aren’t in, sir, except for identification. You, as a lawyer, know the difference between identification and evidence.
MR. EVANS: You tell me what I know as a lawyer, and sometimes you and I don’t agree.
THE COURT: That is very often the case, particularly when you are trying a criminal case and I am sitting here as a Judge.
MR. EVANS: You have the upper hand.
THE COURT: I don’t have the upper hand,
Mr. Evans.”

The judge was in error. He did have the upper hand, and he did deny the identification. The purpose of marking an exhibit for identification is so it may be identified, since its admissibility has not been adequately established. As appellant rhetorically asked, if a witness is not allowed to see the contents, “[h]ow can it be identified?” Had the trooper been permitted to view the contents, that would have been some measure of assurance that the evidence he had given to someone, but gotten back from Ms. Sullivan prior to trial, was the same he had purchased from Richardson. If there is an inference that the evidence obtained at the crime is the same analyzed and introduced (as there is an inference that such evidence’s condition remains the same), that inference has been dispelled by the trooper’s equivocation and the refusal to let him identify the substance.

Attempting to overcome this difficulty the State introduced, over objection, the chain of custody report. That report contradicted the officer’s most recent testimony that he had delivered the evidence to an Officer Presnell, but reestablished that he had delivered it to, and received it back from, Ms. Sullivan.

“EVIDENCE TAKEN INTO CUSTODY BY:
Tfc Michael H. Pasker #248710-20-77 5:35 PM M. Patricia Sullivan 10-21-77 140 PM
Tfc Michael H. Pasker #248711-17-77 1052 AM”

The court admitted the log but recognized its limited value:

“Mr. Evans,,I know it is in contradiction. I know that. But that doesn’t make this piece of paper inadmissible. He is telling you where he signed that he gave it to Sullivan and he got it back from Sullivan. Now, I realize he told us that he gave it to Presnell. So does the Jury. And it doesn’t make it inadmissible.”

Finally Ms. Sullivan was placed on the stand to clear up the dilemma of whether Trooper Pasker had delivered the evidence directly to her or to Trooper Presnell. Ironically, although the envelope was still only identified and not admitted, she was allowed to open the envelope and describe its contents, but that, of course, did not serve to guarantee that what she had received was that which Pasker had purchased.

“Q O.K. Now, will you open the envelope and tell us what’s inside?
MR. COLE: Sounds like an Oscar award, find out what’s inside the envelope. I don’t even know.
MR. EVANS: Be surprised if there’s nothing in there, too, won’t you?
MR. COLE: You’re darn right. I’ll be the first to yell, ‘Surprise.’
BY MR. COLE:
A O.K.
Q Found something, another envelope?
A It contains a manila envelope initialed by me, and two plastic packets.
Q O.K. Could you see it’s plastic? They’re quite small, aren’t they?
A Uh-huh.”

But finally the big moment: from whom did Ms. Sullivan obtain the evidence, Trooper Pasker or Presnell? The answer — a new development — neither one.

“Q O.K. O.K. Now, you received this envelope containing the packets when, again, the lab really received it?
A The lab received it on the 27th of October.
Q And when did you pick it up and make your test?
A Well, I picked it up at the front desk when it came in. I didn’t analyze it until the 1st of November.
Q Who did you get it from? Do you remember who was on the front desk?
A Let’s see —
Q If you can remember?
A Well, since it’s initialed on the front, it was originally accepted in by Jay Tobin.
Q Yeah, and who was there? Tobin is your Chief.
Is that correct?
A Yeah.
Q He gave it to who?
A He gave it to me.
Q O.K. Now, who would be the police officer who received it first, if you know?
A No. He would have received it first. Apparently there was nobody else out at the front desk at the time.”

But even before appellant could cross-examine her, the evidence was admitted, over an objection based upon improper chain of custody.

“THE COURT: The question is whether the chain of custody is probably accurate and doesn’t have to be precise. That’s why I was asking that question.
MR. EVANS: I object to it for the record.
THE COURT: I note your objection and it may be well-taken, Mr. Evans. I don’t know. You have other objection beside chain of custody?
MR. EVANS: Well, I don’t know at this time whether — as to the admission? I only have, we’ve got, the State’s put on two witnesses, both testified, diametrically opposed.
THE COURT: This concerns chain of custody. I’m asking if there’s anything else?
MR. EVANS: Not at this time, and I think that’s critical of it.
THE COURT: All right. I’ll overrule your objection. Mark it in evidence.”

Despite that setback, the appellant persisted, but Ms. Sullivan, unlike the trooper, stood by her recollection:

“Q Miss Sullivan, you’ll have to educate us, I guess, a little bit on chemistry and things, and also the further handling of this particular item. You’ve told us that it was delivered to you by Mr. J. O. Tobin, who is the head chemist down there. Is that correct?
A It was delivered to me at the front desk, yes. It was probably by Jay Tobin. The only reason I mentioned him is because he has initialed the blue sheet, which means that he accepted it in.
Q Did Officer Presnell initial, do his initials appear on that sheet?
A No, they don’t.
Q Not at all?
A No.
Q Well, if he’d handled it, it should’ve had his initials on there, shouldn’t it?
A It probably would.
. Q Well, is there ever any mix-up in this down there?
A No. They’re usually not put on chain of custody because they don’t actually do anything with the evidence but process it in and send it back.
Q That’s all Mr. Tobin did in this case, was process it in while you think Presnell was out to lunch. That’s your conjecture, isn’t it?
A All I’m saying is that Jay processed it in. Where Trooper Presnell is is —
Q O.K. All right. And then he delivered it to you while he was still at the front desk?
A Yes.
Q And you took it where?
A Back into the drug locker.
Q All right. And how many specimens would be in the drug locker at any one time?
A Let’s see, approximately, I would say two hundred to be tested.”

The confusion was at least partially attributable to the intermittent interweaving of the testimony, during the course of trial, in front of the jury. That fact does not alter the failure of the State to identify or even to link inferentially the evidence sought to be admitted to that obtained as a result of the sale set up by appellant. This failure, of course, affected the very relevance of the chemist’s testimony, and while its absence would not have affected the minimal sufficiency of a conspiracy conviction, it had such obvious persuasive effect that its admissibility cannot be said to be harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 659 (1976).

Although for purposes of admissibility the chain of custody authentication of evidence need not be beyond a reasonable doubt, it must create a reasonable probability of sameness, just as in a like instance it must preclude by reasonable probability, any tampering. The evidence here was never identified as being the same or similar to that obtained by Trooper Pasker, and instead of supporting an inference of sameness, the State threw out four conflicting possibilities in a multiple choice evidentiary game for judge and jury to choose from. The procedure either went

from Pasker to Sullivan; or,
from Pasker to Presnell to Sullivan; or,
from Pasker to Tobin to Sullivan; or,
from Pasker to Presnell to Tobin to Sullivan,

and in any of the four, the State would have its inference of sameness supported. But in the absence of both Presnell and Tobin, the only thing reasonably probable was that whatever Ms. Sullivan analyzed she obtained from Tobin and returned to Pasker. Between Pasker and Sullivan there is far too much speculative possibility without the testimony of Presnell or Tobin to establish its identity.

The remaining pro se issues were reviewed and found to be without merit.

Judgment reversed and ease remanded for retrial.

Costs to be paid by Cecil County.


text:
    MARYLAND AUTOMOBILE INSURANCE FUND v. DUDLEY KENNETH SPARKS et al.
    [No. 1296,
    September Term, 1978.]

      Decided April 20, 1979.

      The cause was argued before Morton, Thompson and Lowe, JJ.

      Thomas E. Plank, Assistant Attorney General, with whom were Stephen H Sachs, Attorney General, John J. Corbley, Neal D. Peterson and John Addison Howard on the brief, for appellant.

      William C. Stephens for appellee Sparks. Submitted on brief by Joseph W. Pitterieh for other appellee.
   Lowe, J.,

delivered the opinion of the Court.

For purposes of this appeal the pertinent facts indicate that a declaratory judgment was prayed by appellee to determine whether he was covered by the insurance of the Maryland Automobile Insurance Fund (MAIF) on the night of July 30, 1976. A summary judgment motion by MAIF was twice denied and substantial testimony taken, at the conclusion of which appellee was granted, and MAIF was denied, a directed verdict.

“MAIF appeals from Judge Chasanow’s denial of its motion for summary judgment; from Judge Ross’ denial of its motion for summary judgment; from Judge Ross’ denial of its motion for a directed verdict at the close of the plaintiff’s case; and from Judge Ross’ grant of the plaintiff’s motion for a directed verdict and denial of MAIF’s motion for directed verdict.”

Appellant asks five questions and three alternative ones to the first. It is not necessary to address them all, however, because the primary issue turns upon an interpretation of a statute that is not sufficiently ambiguous to permit interpretation. Wheeler v. State, 281 Md. 593, 596 (1977); Amalgamated Ins. v. Helms, 239 Md. 529, 535 (1965). Thus, appellant’s step-by-step progression of error which it assigns to the trial judge in reaching the conclusion that MAIF did insure appellee on the night of his accident is unnecessary.

— the controversy —

The appellee, Dudley Kenneth Sparks, at 11:00 a.m. on July 30,1976, called Zane Jontiff, a vice president of Cosmopolitan Insurance Agency, Inc., and appellee’s primary agent for a MAIF policy the preceding year. Jontiff advised Sparks that his policy had expired the preceding day. Sparks asked to “renew” his policy and was asked to stay on the telephone line while the matter was checked out. Jontiff returned to advise Sparks of the amount of his premium ($485), whereupon Sparks received approval from Jontiff to pay the premium all at once. Sparks immediately wrote out a check which he mailed to Cosmopolitan agency within 20 minutes of the conversation. The agency received the check the following day; however, the previous night, July 30, at 10:30 p.m., after the check was mailed but before it was received, appellee Sparks had an accident for which he was sued by several injured parties.

Upon receipt of the check Cosmopolitan had filled out a renewal questionnaire form, and had prepared a binder notice to MAIF indicating coverage was to begin at 12:01 a.m., August 1st, 1976. The binder notice to MAIF was postmarked on August 1, 1976.

MAIF contends that it had properly established a rule — MAIF Binding Rule 12.05.02.11 — which specifies that coverage will begin

“ ... at 12:01 a.m. of the day following the date shown on the postal cancellation;”

And, as a consequence, Sparks’ policy did not commence until 12:01 a.m., August 2,1976, and would terminate at that same day and time the succeeding year.

The court, in its collective rulings, declared that coverage did exist at the time of the accident, reasoning variously, that MAIF’s rules were improperly adopted and did not bind appellee and that the Legislature “intended” that “renewals” be handled by MAIF without coverage lapse; all of which was predicated upon interpretively finding a statutory method of binding coverage independent of rules or regulations. This procedure was found in Md. Ann. Code art. 48A, § 243B (d) (1) (1972 Repl. Vol.):

“(d) Binding authority of agents and brokers; cancellation of coverage after review of application.
— (1) Any agent or broker licensed in Maryland may, subject to the provisions of this section, bind the minimum required coverage for an applicant in the Fund upon application to the agent or broker and payment of the appropriate premium.”

MAIF contends, however, that such ruling overlooks the limiting phrase:

“subject to the provisions of this section.”

That reference, MAIF urges, points to the succeeding subsection, § 243B (d) (2) which provides MAIF its rule-making authority in this area.

“(2) The board shall adopt and make available to each such agent or broker reasonable rules and regulations relating to the binding authority of such agents and brokers, including but not limited to the amount of premium to be collected, the evidence necessary to establish the applicant’s qualification to be insured by the Fund, and procedures for notifying the Fund of the binding of coverage.”

Thus it seems, having adopted a rule that coverage will not begin until the day following the date a binder is mailed to it by an agent, MAIF has made the statute “subject” to its rule by virtue of subsection (2).

— the legal question —

We adopt for our legal guidance the precepts of law and authority preliminarily set forth by MAIF.

“The general principles by which courts are to construe statutes are well known: the cardinal rule is that the court should ascertain the legislative intent and give that intention effect, Unsatisfied Claim and Judgment Fund Board v. Bowman, 249 Md. 705, 241 A. 2d 714 (1968); the primary source from which the court finds legislative intent is the language of the statute itself, Schweitzer v. Brewer, 280 Md. 430, 374 A. 2d 347 (1977); but if there is no ambiguity or obscurity in the statutory language, the court will not enlarge or extend its application, Amalgamated Casualty Insurance Company v. Helms, 239 Md. 529, 212 A. 2d 311 (1965).”

The language in § 243B (d) (1) is unequivocal. The statutory authority provided an agent is elliptically clear:

“(d) Binding authority of agents____(1) Any agent ... may ... bind the minimum required coverage for an applicant in the Fund upon application to the agent... and payment of the ... premium.”

If we then assume, as does MAIF, that the omitted condition subjected that clear authority to the subsection (2) rule-making authority of the board, we must analyze the extent to which the Legislature authorized MAIF to act. The Legislature permitted MAIF to establish

“(2) ... reasonable rules ... relating to the binding authority____” (emphasis added).

It did not authorize MAIF to establish reasonable rules “limiting” the agents’ binding authority, or “extending” the agents’ binding authority. It obviously was intended to permit procedural regulation by MAIF such as the examples set forth by subsection (2) following the generic expression “relating to”:

“including but not limited to the amount oí premium to be collected, the evidence necessary to establish the applicant’s qualification to be insured by the Fund, and procedures for notifying the Fund of the binding of coverage.” (emphasis added).

As stated, the authority to regulate is not limited to these three categories but it is, like the doctrine of ejusdem generis, indicative of the scope of rule-making power granted. Nowhere can it be read into that authority that the Fund is delegated authority to divest or increase an agent’s binding authority as statutorily established. It may only procedurally regulate it, but may not interfere with it.

Appellant contends that the rule tracked the former statute which preceded MAIF and reinstated the Legislature’s own prior procedure. From this it asks that we read a legislative anticipation into subsection (2) of the adoption of a similar regulatory rule. That would indeed be stretching judicial interpretation of legislative intent. It is more likely that when the Legislature repeals an established limiting provision, and replaces it with one more nearly akin to that customarily used in the industry, it does so knowingly, purposefully and intentionally.

— the factual question —

But our holding that the statute means what it says does not fully answer the purpose of this appeal. The testimony as we view it, is at best equivocal as to whether a binding contract that would provide coverage at the time of the accident, was made between Sparks and the agent. Mr. Sparks recalled the telephone conversation as follows:

“Q. After you called and announced your intentions, that you thought your insurance policy was coming due, what did Mr. Jontiff do, if you know?
A. He said to hold on for a minute, and I take it he went to get —
R. LEVIN: I object to what he takes.
THE COURT: Sustained.
THE WITNESS: He got off the phone and — for a few minutes and came back and informed me that it ran out the day before.
BY MR. STEPHENS:
Q. On July 29, 1976?
A. Yes.
Q. What did you say in response to that?
A. ‘Okay, Mr. Jontiff, I want to renew my policy.’
Q. And what did he say to that?
A. He said, ‘Okay, hold on a minute.’ And I heard an adding machine running in the background.
Q. Did you have any conversation with him as concerns the amount of the premium?
A. When he told me that — he told me how much the premium would be.
Q. What was the figure that he gave you?
A. $485.
Q. And what did you say in response to that?
A. ‘Okay. Fine. I’ve got the money in the bank, I’m going to make payment all at once this time.’
Q. Did you ask him at any time during that conversation whether you would be covered by automobile insurance?
A. I’m sorry, I didn’t hear the question.
Q. Did you ask him, during that conversation, whether you would be covered?
A. Well, I asked him if it was okay.
Q. What was okay?
A. If I could pay that like that. He said, ‘Yes.’
Q. Well, did you ask him whether you would be covered by insurance?
MR. LEVIN: Object to the leading nature of the questions.
THE COURT: Yes, rephrase the question.
BY MR. STEPHENS:
Q. What did you then do after you had the conversation with Mr. Jontiff?
A. After the conversation was completely over?
Q. Yes.
A. I make out the check for the $485, went down, stuck it in the mailbox.
Q. And that was on the same date?
A. Yes, sir.
Q. July 30th?
A. That was 20 minutes later.
Q. After you had the conversation with Mr. Jontiff, what did you feel was the status of your insurance coverage?
MR. LEVIN: I object.
THE COURT: Sustained.
BY MR. STEPHENS:
Q. At any time during the conversation with Mr. Jontiff, did you discuss coverage with him?
A. Yes, sir, I asked him if that was the full payment. I told him I was going to stick it in the mail.
He said, ‘Fine. Okay. No problem.’
Q. And then after that conversation, or after you deposited the check in the mail, then what happened?
A. Then I went out.”
On cross-examination of Mr. Sparks the following transpired:
“Q. Now, what was it that Mr. Jontiff said to you, that led you to believe that you were covered by insurance?
A. The last few words that he said was, ‘Okay, no problem, you’re taken care of.’
Q. Would you have driven your car that evening if you thought you didn’t have insurance?
A. No way, my mother was sitting right there.
Q. Did Mr. Jontiff ever say anything to you about binding or 12:01 a.m., or anything to that effect?
A. No, sir,
Q. Mr. Sparks, it is a fact that Mr. Jontiff never fold you when your coverage would begin, isn’t that true?
A. Yes,, sir — on which particular time?
Q. On the time we are talking about in 1976, in July of 1976 when you had the conversation.
A. That’s correct.
Q. He never told you when coverage would begin, isn’t that true?
A. That’s correct.
Q. Now, you say, in response to Mr. Petterich’s question that you were never told before when coverage would begin, is that correct?
A. That’s correct.”
The other evidence of what agreement was made as to the date or time of binding, was given by Mr. Zane Jontiff who was at the other end of Mr. Sparks’ conversation.
“A. Mr. Sparks called to find out if his policy had expired, or was due to expire. And we discussed that the policy had expired on July the 29th, the previous day, at 12:01 a.m. He then asked the procedure for renewing the policy. And at that time I told him what the cost would be, and what procedure he would have to follow in order to renew the policy.
Q. And then he mailed you a check, is that correct?
A. Well, he mailed me a check that we received the following morning.
Q. And you subsequently sent a binder notice into Maryland Automobile Insurance Fund?
A. On that same day.
Q. Does your file reflect on what day it was posted?
A. The — postmarked? Repeat that.
Q. I asked you on what date does your file reflect that it was posted, not postmarked, when it was mailed.
A. Posted to MAIF?
Q. Yes.
A. On July the 31st..
Q. And on that binder card, did you indicate when coverage was to commence or continue?
A. Yes. As required by MAIF regulations, the coverage was to take effect 12:01 a. m. following date of receipt of the payment. And, therefore, we typed on the binder card August the 1st, 1976.”

It appears possible then, that there may have been no meeting of the minds to establish a binding contract of insurance coverage at any definite time.

— renewal —

The factual question arises of whether Mr. Sparks understood that his former policy would be “renewed” without lapse despite its expiration the day before he called the agent. Furthermore, the agent was aware of, had experienced, and offered to document, instances where

“MAIF has received payments following the expiration of a policy and continued that policy in force.”

Even if we assume that such retrospective coverage was extended in the past, we are not aware of any authority given it by the Legislature to do so. The trial judge was even more explicit. He could find no instance where the General Assembly addressed the question of renewals:

“The very close reading of the whole section of the law leads us to the inescapable conclusion that the General Assembly failed to address the question of renewals in the statute itself.”

However, by some rather convoluted reasoning, he gleaned such authority from the section that permitted the Fund to discipline agents violating its regulations, § 243B (e):

“[T]he General Assembly, in writing this particular section clearly meant that there would be those instances in which brokers did, in fact, bind people by mistake. And, therefore, I don’t think that it is fair to suggest that if a broker, through mistake, binds an individual, that that individual is without coverage. The General Assembly is saying that if in fact that agents or brokers do that, the very fact they said it means that the possibility exists, and, therefore, it is a strong indication of legislative intent. As to the fact that agents or brokers would do this, they would be able to be dealt with from a disciplinary standpoint, and they would forfeit their right to bind in future instances.
So the real reason then arises, of course, as counsel has suggested numerous times, as to whether or not there was a renewal of insurance, or whether or not there was a lapse in insurance and whether or not there was a new policy. For help in this case, I have gone to 243D(c), which says, ‘Cancellation for non-payment of premiums. The Fund may, at any time, cancel a policy written by it for non-payment of premiums or for suspension or revocation of the driving license of the policyholder.’
Having read that, then to read backwards to 243B Section d(3), ‘The Fund shall become liable under the coverage bound from the date of binding by the agent or broker; provided, however, that the Fund, upon review of the application, may not later than 60 days after the coverage is effective, cancel the coverage and refuse to issue a policy upon the finding that, one, the applicant is not qualified for insurance by the Fund, two, the appropriate premium has not been paid, or, three, the Fund is authorized to reject the application under 243D; provided, however, that the cancellation is due to non-payment of appropriate premium, the Fund shall afford the applicant a reasonable opportunity to pay the proper premium.’
Now, if you read that over with 243D(c), in which the policy may be canceled for the non-failure — for the non-payment of the premium, it becomes clear, in my judgment, that the premium, the policy may be canceled for the non-payment under 243D, but then 243B requires, by its language, provided, however, that the cancellation is due to non-payment of the appropriate premium, the Fund shall afford the applicant reasonable opportunity to pay the proper payment. That, of course, still doesn’t help us, because the real question is one of whether or not this was a new application or whether or not this, in fact, was a renewal.
The law, of course, does not mention anywhere the renewal. I am sure my brothers and former brothers and sister, colleagues in the General Assembly, will be upset in the beginning of my fourth week I am going to write some law for them, and it is not my intention, but I do find, as a fact, and as a matter of law, that they intended, of course, for this particular act to have, from the language in the State Farm Mutual to insure the — try it again — to effectuate — try it again, I’m sorry, to provide that there be a liberal construction in order to effectuate its purpose by assuring recovery for innocent victims of motor vehicle accidents, that that simply means that this statute was intended to provide the maximum insurance coverage for the most number of people. I do find that this is a renewal. I find that for two reasons. Number one, because the testimony of Mr. Pollock indicated that for a period of up to 30 days that renewal form, I think is what he called it, although he called it a renewal form and rewrite form, and sometimes an application form, what amounts to a different kind of form, one that the applicant does not have to sign, is, in fact, a renewal.
That being the case, the only question left for us, the major question left for us is whether or not he had insurance on that particular day, or did he have insurance under the rules of the Fund at 12:01 a.m. the day after the postmark.
It is my view that, again in returning to the law itself, any agent or broker — I am now reading from 243B (d) 1, ‘any agent or broker licensed in Maryland may, subject to the provisions of this section, bind the minimum required coverage for an applicant in the Fund upon application to the agent or broker and payment of the appropriate premium.’ ”

The judge then addressed the facts:

“I find as a fact that application was made in this particular case, payment was made. It was made in the form, the testimony of Mr. Insurance Man — Mr. Jontiff described, namely that it was all right to put it in the mail. I do not think there was any disagreement that Mr. Jontiff said that was okay. And, therefore, finding as a fact that that section of the law which might be contrary, by the way, to the rules, bound coverage as of the deposit of that in the mail by Mr. Sparks.”

As recognized by Judge Ross, the Legislature failed to address itself to renewals. It was, as he surmised, improper for him “to write some law for them.” It was not only improper, it was unnecessary and semantically incorrect.

The use of the term “renewal” by Sparks and Jontiff could not apply in this case to a policy that had already expired if that term was used in the sense of “restoring” the old policy which had expired at midnight the night before Sparks called Jontiff. Obviously, had the accident occurred between that midnight expiration on July 29,1976, and Sparks’ call at 11:00 a.m. the morning of July 30, 1976, Jontiff had no authority retrospectively to restore (renew) the old policy, nor retrospectively to bind Sparks under a new policy.

But in using that term, both Sparks and Jontiff inferentially had no concern for past coverage, only for future coverage. They were unconcerned with renewing in the sense of reviving; rather their interest was in renewing in the sense of repeating so as to reaffirm coverage for the future, beginning at the earliest possible time. That point of beginning was upon application and payment. § 243B (d) (1). Whether that was intended by these two persons and whether or when that was effected, were factual questions that should not have been determined by the judge, but should have been submitted to the jury which sat as the factfinders in this case. Plitt v. Greenberg, 242 Md. 359, 367-368 (1966). The applicability of the postal acceptance rule is also a factual question for the jury under appropriate instructions. Reserve Insurance v. Duckett, 249 Md. 108, 119-120 (1968); and see Tayloe v. Merchants’Fire Ins. of Balto., 50 U. S. 390. We must therefore, reverse the judgment in this case and remand for an appropriate declaration. The factual issues should be submitted to the jury guided by appropriate instructions from the judge who will include the statutory interpretation which has been the subject of this appeal.

— attorney’s fees —

The final question which we have not addressed asks whether the trial court had erred in awarding attorney’s fees. The answer is yes, the trial judge did so err.

Ordinarily counsel fees are not awarded in a declaratory judgment action, New Carrollton v. Belsinger Signs, 266 Md. 229 (1972); however, such fees and costs may be recoverable where an insurer has unjustifiably refused to defend its insured. Anderson v. Md. Casualty Co., 123 Md. 67 (1914); Cohen v. Am. Home Assurance Co., 255 Md. 334 (1969). In this instance, however, it would appear that the refusal was not totally without justification.

MAIF is not justified by the legal misconstruction of the statute which it compounded by enacting regulations beyond the scope of its authority to so regulate. It is justified on the facts of this case which provide a very close question for determination by the factfinder. Even assuming coverage is found, the problem was created as much by Spares as it was by Jontiff and MAIF. His belated action which was even then equivocally concluded was partially responsible for the dilemma in which he and his insurer are now embroiled.

We will, however, assess the costs of this appeal entirely upon appellant MAIF. While the factual question justifies the declaratory contractual interpretation, the statutory misconstruction chiefly addressed on appeal was fomented by its own ultra vires act. Md. Rule 1082 a.

Judgment reversed, case remanded for retrial.

Costs to be paid by appellant.