text:
    TIMOTHY V. IAGER v. GEORGE ALDEN ROGERS, III
    [No. 779,
    September Term, 1974.]

      Decided July 24, 1975.

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

      Vincent A. Mulieri, with whom were Thomas J. Wohlgemuth and Smith & Wohlgemuth on the brief, for appellant.

      T. Benjamin Weston, with whom were Robert W. Fox and Rollins, Smalkin, Weston & Andrew on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Shortly before midnight on 24 June 1971, Timothy V. lager, appellant here, was riding his motorcycle eastward on Route 198 in Anne Arundel County from Laurel toward Fort Meade. At that point Route 198 is paved and two lanes wide, one lane for traffic in each direction. It is intersected on the north side only by Route 216, a public highway, which leads to the D. C. Children’s Center. lager testified that when he was about 800 feet from the intersection, he saw an automobile in the right lane in front of him. It appeared to be stopped or traveling very slowly, also eastward. Without reducing his speed or sounding his horn, lager swung his cycle to the left lane in order to pass the car. The car was being driven by its owner, the appellee, George Alden Rogers, III. Rogers made a left turn into Route 216. The motorcycle collided, in the left lane, with the left rear side of the car.

The operators of both vehicles filed suit, each alleging that the accident was caused by the negligence of the other, lager sought to recover damages for personal injuries and loss of property; Rogers claimed only property damages. Trial commenced on 21 May 1974 in the Circuit Court for Anne Arundel County before a jury, Judge George Sachse presiding. lager first presented his evidence, at the conclusion of which the court granted a motion by Rogers for a directed verdict in his favor. In the action brought by Rogers, the jury returned a verdict in his favor against lager for $363.05, the stipulated damages. Judgment was thereafter entered in favor of Rogers in each case. From those judgments, lager timely noted this appeal.

According to lager’s declaration, Rogers was solely at fault in failing to keep a proper lookout for traffic behind him before turning and in failing to signal his intention to turn. Rogers, on the other hand, alleged that the accident resulted solely from the conduct of lager in operating his motorcycle in a careless, reckless and negligent manner and on the left side of the road in violation of the vehicle laws. After the directed verdict was granted against lager at the close of his plaintiffs case, and Rogers completed his case, the jurors were instructed that lager was negligent as a matter of law and that their function was to determine whether Rogers was negligent, so as to bar recovery by him.

In this appeal lager contends that the trial judge erred in ruling that he was negligent as a matter of law. We hold that the judge ruled correctly, and we shall affirm both judgments.

A motion for a directed verdict at the close of plaintiffs case puts to the test of legal sufficiency the evidence adduced by him. The applicable principles were restated by this Court in Newton v. Spence, 20 Md. App. 126, 316 A. 2d 837 (1974), where at 134, we said:

“When called upon by a motion for a directed verdict to rule on the legal sufficiency of the evidence to require submission of any issue to the jury, the trial court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made; and if such evidence and inferences lead to conclusions from which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury. Lauer v. Scott, 12 Md. App. 555, 280 A. 2d 917 (1971).”

lager maintains that, under the circumstances in the case before us, the issue of his negligence, whether characterized as primary or contributory, presented a question for the jury.

It is undisputed that the motorcycle was being operated on the left side of the road when the collision occurred. At that time, its operator was in violation of at least two statutes which govern the operation of motor vehicles. By Code, Article 66 V2, section 11-301 (a) (1), the law requires that:

“(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing this movement;”

Section 11-305 provides in part:

“(a) No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless authorized by the provisions of this part * * *.
“(b) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:
(2) When approaching within 100 feet of or traversing any intersection or railroad grade crossing;”

The statute clearly requires that when a vehicle is driven to the left side of the center of the roadway in overtaking and passing, its operator must observe the rules governing that movement. One of the rules governing that movement is that no vehicle shall at anytime be driven to the left side of the roadway when approaching within 100 feet of or traversing an intersection. The importance of this prohibition* was explained by the Court of Appeals in May v. Warnick, 227 Md. 77, 175 A. 2d 413 (1961). The Court said, at 83-84:

“There can be little doubt that one of the primary reasons for prohibiting an overtaking vehicle from going to the left side of the road in passing another at, or within a specified distance from, an intersection is that the front car may be anticipating a left turn. 3 Berry, Automobiles (7th Ed.), § 3.42; Cierley v. Uhalt, 10 P. 2d 769 (1932) (Cal.); 3 Blashfield, Cyc., Automobile Law & Practice, § 965. If the present provisions of the law are complied with, there is little danger from this source: the motorist contemplating a left turn is required to approach the intersection (where two-way traffic is being accommodated on both streets) in that portion of the right half of the roadway nearest the center line thereof (giving an appropriate signal, in accordance with Sections 228, 229 and 230), but he is prohibited from passing to the left of the center until the intersection is reached, Section 225 (b); and the following motorist is forbidden to pass the lead vehicle on the left of the roadway, Section 221 (b) (2).
“This prohibition in Section 221 against overtaking and passing ‘to the left side of the roadway * * * when approaching within 100 feet of or traversing any intersection,’ when applied to two-way highways, eliminates much of the danger of a collision that would be involved if the overtaking vehicle were permitted to pass on the left, or wrong, side of the road at or near the intersection.”

Of course, a violation of the statutory requirement to keep to the right must be a proximate cause to support a finding of negligence. In Sun Cab Co. v. Cusick, 209 Md. 354, 121 A. 2d 188 (1956), the Court of Appeals, after stating the principle that a driver who fails to comply with the statute which requires him to keep to the right is prima facie guilty of negligence, went on to say, at 361:

“But we have made it clear that a violation of this rule does not constitute negligence except where it is the direct and proximate cause of the injury. [Citations omitted.]”

In that case, the Court reversed a judgment entered on a jury verdict against Sun Cab, and held that as a matter of law the cab driver’s conduct was not the direct and proximate cause of the accident.

In the case before us, the evidence showed that the motorcycle struck the automobile when the front of it had already entered the intersecting road. The point of impact on the automobile was on the left side, on that part of the left rear fender or quarter panel which extends behind the left rear wheel. The collision would not have occurred but for the fact that the cycle was in the left lane. That its position was a proximate cause of the accident is a conclusion about which reasonable minds could not differ. We hold that appellant’s violation of the statute was, as a matter of law, a proximate cause of the collision.

An occurrence quite similar factually to the present one was considered by the Court of Appeals in Miller v. Mullenix, 227 Md. 229, 176 A. 2d 203 (1961). There, a motorcyclist was following two automobiles on a two-way, two-lane highway at night. Within 500 feet of an intersection, the cyclist moved to the left lane to pass. The cyclist sounded his horn and passed the first car. He began to overtake the second car when both were about 75 feet from the intersection. The car turned left, and the vehicles collided. The motorcycle operator sued for personal injuries. At the trial the motorist claimed that she turned on her left directional signal approximately 200 feet from the intersection. She saw no obstacle in the rear-view mirror. The roadway markings at that point included a solid white line, with a broken white line paralleling it on the southbound side. At a distance of 270 feet from the intersection the markings continued as two solid lines. The motorcycle operator testified that he did not see any turn signal, and that he was not aware of either the intersection or the double line. The trial court allowed the case to go to the jury, which found for the cyclist. The motorist’s motion for judgment n.o.v. was denied. The Court of Appeals reversed the judgment in that case on the ground that the cyclist was guilty of contributory negligence as a matter of law. It held that the defendant’s motions for a directed verdict or a judgment n.o.v. should have been granted. It said, at 232-33:

“The familiar rule to be applied in determining whether the facts justify a holding that the plaintiff was guilty of contributory negligence as a matter of law is that the act so relied on must be distinct, prominent and decisive, and one about ' which ■ reasonable minds would not differ in declaring it to be negligence. We think the appellee was guilty of contributory negligence as a matter of law because of his violation of two basic rules of the road by driving on the left side of the highway in a proscribed area and by attempting to pass another vehicle within 100 feet of an intersection, and that these acts were prominent and decisive and a direct and proximate cause of his injury.”
“His own testimony that he was about 75 feet from the intersection in. the northbound lane when he began passing the appellant means that he had already been travelling to the left of the double white line for approximately 195 feet and, of course, that he was attempting to pass a vehicle within 100 feet of the intersection when the collision occurred. While ordinarily the mere violation of a rule of the road will not constitute negligence per se, it is well established that a driver who fails to comply with the statute ‘which generally requires drivers of motor vehicles to keep to the right of the center of the roadway, is prima facie guilty of negligence where the violation directly and proximately causes a collision resulting in injury, and the burden is then cast upon the driver to overcome the presumption of negligence by showing that he was justified in driving in the center or upon the left half of the road.’ Sun Cab Co., Inc. v. Cusick, 209 Md. 354, 360-361, 121 A. 2d 188 (1956).
“We find nothing in the record to excuse appellee’s presence on the ‘wrong’ side of the road at the time in question. There is no suggestion that any emergency existed requiring him to drive on the left or to attempt to pass the two cars ahead. His failure to observe the double white line, the nearby intersection and appellant’s directional signal does not excuse his violation of the rules of the road.”

Appellant argues here that his case is distinguishable from Miller v. Mullenix, supra, because the broken line on his side of Route 198 continued up to its intersection with Route 216, and in fact appeared again east of the intersection. The fact that Mullenix violated more than one statute did not dilute the fact that his driving on the left half of the road in an intersection was a proximate cause of his collision, and negligence as a matter of law. We have expressed our holding in this case without “shoring it up” by referring to other evidence that lager travelled Route 198 frequently, was aware of the intersection of Route 216, and had driven past two highway signs warning approaching drivers of the intersection. We forewent reliance upon other evidence tending to show negligence by lager, because we did not want to intimate that other evidence was needed.

lager’s evidence that a broken line was painted on the highway cannot justify his violation of the clear prohibition of the statute. Code, Art. 66 '/-¿, § 11-307 authorizes appropriate signs or markings to designate a portion of a highway where driving to the left of the roadway would be especially hazardous. That statute undoubtedly was intended to permit prohibitory markings at hazardous locations where driving on the left side of the road is not otherwise prohibited by law. Surely it could not be construed to mean that a positive law is nullified because markings on the roadway fail to call the driver’s attention to the law.

Appellant further contends, in effect, that the question of his negligence was for the jury, because of some evidence in the case that, in violation of a statutory requirement, Rogers did not signal his intention to turn. He appears to draw support from the opinion of this Court in Whitt v. Dynan, 20 Md. App. 148, 315 A. 2d 122 (1974). In that case we said, at 155:

“Thus, in Maryland, when a claim of liability for negligence or a defense of contributory negligence is founded upon a violation of a penal statute, the jury generally must determine both whether the violation constitutes negligence and, if so, whether the violation is the proximate cause of the accident.”

In that case a pedestrian, walking along the edge of a highway where sidewalks were not provided, failed to obey the requirement that he walk facing traffic. We discussed the equal and reciprocal rights of motorists and pedestrians on public highways. We concluded that on the facts of that case the question of whether the pedestrian’s violation of the statute was a proximate cause of his injury was one upon which reasonable minds could differ, and was properly submitted to the jury.

We have already said in this case that the appellant’s own evidence showed that as a matter of law he was negligent. Whether Rogers was also negligent has no relevance to that issue. As the Court of Appeals said in Miller v. Mullenix, supra, at 234:

“We do not reach the question whether appellant was guilty of primary negligence. Where the plaintiff in a suit for personal injury was guilty of contributory negligence, the negligence of the defendant becomes immaterial.”

lager appealed from both of the judgments against him. His single contention is that the trial judge erred in taking from the jury the question of-his negligence. He does not argue that it was error to submit the question of negligence by Rogers to the jury, nor did he preserve that question for appellate review.

The trial judge ruled, correctly, that lager was negligent as a matter of law. The jury found that Rogers was not negligent.

Judgments affirmed.

Appellant to pay costs.

      . lager’s declaration was filed on 14 September 1971 in the Circuit Court for Anno Arundel County. Rogers initiated his suit on 29 November 1971 in the District Court of Maryland. The record shows that Rogers’ cause was removed to the Circuit Court and the two cases were consolidated for trial.

      . According to lager’s own testimony, he did not sound his horn to indicate his intention to pass. The situation confronting him could have been one of those instances when it would be not only appropriate but legally necessary for a vehicle about to pass to sound a horn. See Smith v. Associated Transport, Inc., 211 Md. 134, 140, 126 A. 2d 584 (1956), and Code, Art. 66V2, § 11-303 (2).

      . Even where an intersection, less than 100 feet away, had no connection with a collision involving a left turn into a private driveway, the Court of Appeals in Palmer Ford, Inc. v. Rom, 216 Md. 165, 139 A. 2d 697 (1958), said, of the turning driver, that he “may well have assumed that the driver of the overtaking vehicle would not attempt to pass at a point where passing is prohibited by the motor vehicle law”.


source: Caselaw Access Project

author:
Morton, J.,
      Lowe, J.,

license: Public Domain

text:
    ROSBIA CHARLES ELLIOTT et al. v. JAMESTOWN MUTUAL INSURANCE COMPANY et al.
    [No. 828,
    September Term, 1974.]

      Decided July 24, 1975.

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

      Joseph Y. Brattan, with whom were Arnold, Beauchemin & Huber, P.A., on the brief, for appellants.

      Robert E. Powell, with whom were Richard D. Bennett and Smith, Somerville & Case on the brief, for appellee Jamestown Mutual Insurance Company, and William R. Hymes for the Unsatisfied Claim and Judgment Fund, other appellee.
   Morton, J.,

delivered the opinion of the Court. Lowe, J., concurs and dissents and filed a concurring and dissenting opinion at page 575 infra.

Jamestown Mutual Insurance Company, pursuant to Md. Code, Art. 31A, filed a declaratory judgment action against its insured, Henry J. Getson, and against Rosbia and Georgia Elliott to determine the question of coverage under an automobile liability insurance policy issued by the company to Getson, against whom the Elliotts had brought suit as a result of an incident occurring on December 29, 1969, in Hagerstown, Maryland. During the pendency of the action, the Elliotts moved to implead the Unsatisfied Claim and Judgment Fund on the basis that Getson would be an uninsured motorist if Jamestown Mutual prevailed in its contention that the policy did not cover intentional wrongs perpetrated by its insured, Getson. The motion to implead was granted by Judge Irvine H. Rutledge, sitting in the Circuit Court for Washington County. After a full hearing on June 25, 1974, he found that neither Jamestown Mutual nor the Fund was liable to the Elliotts for injuries arising out of the incident.

Aggrieved by the finding of no coverage, the Elliotts appealed to this Court, contending:

“The trial court erred in its ruling that the Unsatisfied Claim and Judgment Fund would not be required to pay any judgments entered against a motorist whose insurer disclaimed coverage based on a policy exclusion against intentional acts and who assaulted an insured operator following a collision between their respective vehicles, when there is no statutory exclusion for an intentional act under the Unsatisfied Claim and Judgment Fund Law.”

The facts which give rise to the Elliotts’ claim against Getson are not in serious dispute. According to Rosbia Elliott, on the evening of December 29, 1969, he picked up his wife and young daughter at a store outside of Hagerstown and proceeded west on Route 40 to its intersection with Cleveland Avenue. He stopped in a line of traffic for a red light and when the light turned green he made a left turn onto Cleveland Avenue, following the car in front of him, which he subsequently learned was operated by Henry Getson.

While proceeding in front of Elliott on Cleveland Avenue, Getson activated his right turn signal and pulled to the right as if to enter the area of a motel parking lot. Instead of proceeding into the parking lot, however, he pulled back to his left into the moving line of traffic. Getson continued on Cleveland Avenue until he reached the area of a “fast food” restaurant where he again turned on his right turn signal and pulled off “kind of on the shoulder of the road.” Elliott then passed him and after having traveled approximately 300 feet, felt a “bump” to the back of his car. He pulled over and stopped. Getson pulled around him and stopped in front of Elliott’s car, in a position to block its passage. Getson then got out of his car, walked back to Elliott’s car and said to Elliott: “[N]o son-of-a-bitch can run me off the road and get by with it.” Getson reached into Elliott’s car, put his arm around Elliott’s neck and attempted to pull him from the car. He also grabbed Elliott’s left leg and, according to Elliott, he “held my toe and heel and twisted it, and brought my leg around and beat it on the side of the car.” Elliott stated that the injuries he sustained were not a result of the rear-end collision but were occasioned by Getson’s attack upon him. He received injuries to his neck and left leg which required three operations and he has been unable to work since the assault.

Getson testified that he had driven his car with five passengers back to Hagerstown from Washington, D. C., where he was doing construction work. He was proceeding west on Route 40 and when he reached Cleveland Avenue, he stopped in the left lane for a red light. His was the first car in line and when the light turned green he turned left onto Cleveland Avenue. Thereafter, he was “undecided whether to make a right and go down by the hospital or whether to go straight through to South Cannon where there is no stop light.” He had his right turn signal on but turned it off and continued down Cleveland Avenue. Getson stated that the car behind him at that time started around him and as he swung to the right to let him pass, his car “hit a rut because it was slippery.” Thereafter two of his passengers got out and pushed his car back onto the road. He denied any contact with Elliott’s car and asserted that the damages sustained by his car were caused by his running into a snowbank as Elliott passed him. According to Getson, the Elliott car pulled back into the right lane when about 45 feet in front of him and stopped. Getson pulled around Elliott’s car, stopped and got out of his car. He was angry because of the fact that he wound up in a snowbank with his brand new car. “i was mad because he had cut in front of me.” He went back to Elliott’s car and “told him I had traveled 80 miles on icy roads and had traveled a good bit more on the ice than he had, and we had some words.” Getson conceded that he assaulted Elliott, but denied that the assault was as extensive as described by Elliott.

In this factual posture the trial judge ruled, and we agree, that Jamestown Mutual was not liable to defend Getson in view of the exclusionary clause that “this policy does not apply * * * to bodily injury or property damage caused intentionally by or at the direction of the insured.” Indeed, the appellants, in their brief submitted to this Court, “concede that the language in the exclusion clause of Jamestown Mutual’s policy was controlled in the situation that was described in the testimony and in fact the Appellants do not direct the thrust of this appeal to the ruling of the trial court declaring that Jamestown Mutual need not have to provide coverage for the actions of its insured, Getson. The policy language is clear and succinct and the evidence produced below would fall within the language of the policy.”

The Elliotts urge, however, that the trial judge erred in ruling that the Unsatisfied Claim and Judgment Fund was not liable to pay any judgments which they might obtain against Getson as a result of his attack upon Mr. Elliott.

The Unsatisfied Claim and Judgment Fund law applicable at the time the Elliotts made their claim is set forth in Md. Code, Art. 66V2, §§ 7-601 through 7-635. It provides certain standards under which a qualified individual may make claim for the payment of a judgment and under which a judgment may be paid by the Fund.

Section 7-606 (a) provides that:

“Any qualified person, who suffers damages resulting from bodily injury or death or damage to property arising out of the ownership, maintenance, or use of a motor vehicle in this State * * * whose damages may be satisfied in whole or in part from the fund * *

has the right to make a claim against the Fund for their payment upon meeting certain prescribed conditions.

Section 7-611 provides:

“When any qualified person * * * recovers a valid judgment * * * against any other person who was the operator or owner of a motor vehicle, for injury to, or death of, any person or persons * * * arising out of the ownership, maintenance, or use of the motor vehicle in this State * * * [he may] apply to the court for an order directing payment of the fund, of the amount unpaid upon the judgment * * *.”

The central issue, therefore, is whether the damages sustained by the Elliotts resulted from bodily injury “arising out of the ownership, maintenance, or use of a motor vehicle.” That the Fund may be liable on a claim arising out of an intentional injury has been established. Frazier v. Unsatisfied Claim and Judgment Fund Board, 262 Md. 115. In fact, the Fund, in the brief submitted to this Court, states that it “does not contend that the Unsatisfied Claim and Judgment Fund law bars recovery for injuries intentionally inflicted through the use of an automobile, as would be grounds for denial of coverage in the normal insurance policy.” It argues, however, that the assault and battery committed upon Elliott by Getson did not arise out of the ownership, maintenance, or use of a motor vehicle.

The Elliotts, on the other hand, concede that the incident did not arise out of the “maintenance” of a vehicle but argue “that the incident did in fact arise out of either the ownership of or the use of a vehicle because insofar as either element is concerned, the Appellant owned and/or was using his own vehicle at the time of the happening of the incident described in the evidence.” It is true, as the appellants argue, that it is not necessary that damages be directly sustained or inflicted by the operation of a motor vehicle. In National Indemnity v. Ewing, 235 Md. 145, the Court of Appeals was called upon, in a declaratory judgment action, to construe a provision contained in an automobile liability policy providing that the insurer would pay “all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.”

In that case the driver of an automobile, late at night, had run off the road into a snowbank and sheared off a utility pole. He and his passenger, who was riding in the back seat, had previously been drinking at a local tavern. The passenger was apparently thrown out of the car into the snowbank at the time of the accident. The driver, after extricating his car from the snowbank, went back to help his passenger return to the car. While assisting his passenger, who was apparently uninjured but either “rung up or tired,” walked across the road to re-enter the car, they were struck by an oncoming automobile. The jury found that the driver was negligent in running into the snowbank but that the passenger was not injured in that accident; that the driver of the oncoming car was negligent in striking them; that the driver running into the snowbank was guilty of concurrent negligence in the second accident; and that the passenger was not negligent. In disclaiming payment of the judgment obtained by the passenger against the driver helping him across the road, the driver’s insurance company argued that there was no causal connection between the driver’s first negligent action in running off the road into the snowbank, which did no injury to his passenger, and his action in negligently helping the passenger across the road in the face of an oncoming car. In reviewing this contention, the Court stated, at 150:

“While we have found no case directly in point, we are constrained to agree with the trial court that a sufficient nexus was shown. At the time of the first accident the insured was using the covered vehicle to convey his friend, and himself, to Easton, and at the time of the. second accident he was helping his friend back to the.vehicle, from which he had been thrown by the negligence of the insured. * * * We think the ejection and recovery of Bridge [passenger] simply did not break the chain of use, any more than it would have been broken if Ewing [driver] had stopped to pick up a dropped article. In short, the negligent use of the car created a situation where Bridge was subjected to the risk of injury * *

The Court quoted with approval the following language from Merchants Company v. Harford Accident and Indemnity Company, 188 So. 571, 572 (Miss. 1939):

“Our conclusion, under a policy such as is here before us, is that where a dangerous situation causing injury is one which arose out of or had its source in, the use or operation of the automobile, the chain of responsibility must be deemed to possess the requisite articulation with the use or operation until broken by the intervention of some event which has no direct or substantial relation to the use or operation, — which is to say, that the event which breaks the chain, and which, therefore, would exclude liability under the automobile policy, must be an event which bears no direct or substantial relation to the use or operation * * *.”

We think this is a sound statement of the law. It is true that the Court there was construing a provision in an automobile insurance policy and we are aware that the Court of Appeals has stated that judicial interpretations of automobile insurance policies are not necessarily controlling in cases under the Unsatisfied Claim and Judgment Fund law. Frazier v. Unsatisfied Claim and Judgment Fund Board, supra, 118. Nevertheless, we think the principle expressed in Merchants is equally applicable to the provisions contained in the Unsatisfied Claim and Judgment Fund Act. In our opinion, the chain of responsibility attendant the ownership or use of the Elliott vehicle and the Getson vehicle was completely broken by the intervention of the assault and battery committed upon Elliott by Getson. The proximate cause of Elliott’s injuries was not the negligent use of an automobile but the brutal beating he received at the hands of Getson. Otherwise stated, there has been no showing of “a sufficient nexus” between the ownership or use of either vehicle and the injuries sustained by Elliott to warrant holding the Fund liable for the payment of any judgments the Elliotts might obtain against Getson for the injuries inflicted.

The break in the sequence of events is no less clear because it took place in a matter of minutes, or even seconds, rather than hours or days. It may be argued that it was the use by Elliott of his motor vehicle which induced in Getson, with or without justification, a rage of apparently uncontrollable temper and a desire to inflict personal violence upon the object of his anger. It may even be argued that Getson’s use of his own motor vehicle caused or contributed to his anger. But anger, no matter how induced, does not justify in law a physical attack by one person upon another in the absence of a valid showing of self defense. Under the circumstances shown here, there simply is no relationship recognizable in law, between Getson’s use of his motor vehicle and the battery he later committed upon Elliott.

We are not persuaded that the holding of the Court of Appeals in Frazier v. Unsatisfied Claim and Judgment Fund Board, supra, compels a different conclusion. In Frazier a mother was driving her Chevrolet convertible on the evening of July Fourth, with her five-year old son a passenger in the rear seat of the open car. According to the mother, an unidentified car, going in the opposite direction, passed her and as it did, the driver of the car threw a lighted firecracker or cherry bomb into the rear seat of her car. Distracted by the explosion and by her son’s cries, she lost control of her car and hit a tree. Both she and the son were injured. The mother and her husband filed petitions in the Circuit Court for Anne Arundel County in which they sought leave to sue the Unsatisfied Claim and Judgment Fund Board. From an order denying their petition, they appealed. The court below concluded, “as a matter of law,” that the injuries sustained did not “arise out of the ownership, maintenance, and use of the unidentified car.” The Court of Appeals reversed, stating at 117 and 119:

“The question, of course, is whether the Fraziers’ injuries arose ‘out of the ownership, maintenance or use of a motor vehicle.’
“We conclude that for purposes of determining whether leave to sue the Board should have been granted, the injuries under the facts of this case did arise out of the ownership, operation or use of an unidentified motor vehicle.”

While arguably there is an analogy between Frazier and the case before us, there is a real distinction in that although the loss of control of the Frazier’s car was caused by the thrown cherry bomb, the injuries that they directly and actually received were caused by the car striking a tree. In any event, we think the Court in Frazier, on the unique factual posture of that case, intended to reach the outer limits of the Fund’s responsibility under the statute and we are not prepared to extend the Fund’s liability beyond those limits which, in our opinion, a contrary holding here would accomplish. In reaching this conclusion, we are very much aware of the admonition of the Court of Appeals that the statute is remedial in nature and should be liberally construed. Frazier v. Unsatisfied Claim and Judgment Fund Board, swpra, at 118; Maddy v. Jones, 230 Md. 172, 179. We think, however, that any other holding than the one we have reached would constitute a misreading of the statute and would subject the Fund to liabilities which the General Assembly of Maryland never intended it to have.

Judgment affirmed; costs to be paid by appellants.

Lowe, J.,

concurring and dissenting:

In light of the exclusionary clause in the Jamestown policy, I fully concur that Jamestown was not liable to defend Getson. What responsibility Jamestown had ran only to its insured by virtue of that contract between them.

I cannot agree, however, that similar reasoning should be applied to the responsibility of the Unsatisfied Claim and Judgment Fund to the Elliotts. The Fund was never intended as a substitute insurer protecting a tort-feasor (Getson) against liability. Rather, it had the public purpose of providing some compensation to an injured party (Elliott) when a motor vehicle tort-feasor was neither financially responsible nor insured against liability, for motor vehicle torts. The Fund is more akin to the Criminal Injuries Compensation Act in purpose than to an insurance contract. While looking for guidance in cases interpreting insurance contracts, the majority acknowledge that the Court of Appeals was most hesitant to do so in Frazier v. Unsatisfied Claim and Judgment Fund Board, 262 Md. 115. Speaking for the Court in Frazier, Judge Singley stated, at 118:

“We are reluctant to accept the notion that the gloss of judicial interpretation which may surround the provisions of the standard automobile insurance policy should necessarily be controlling in cases under our Unsatisfied Claim and Judgment Fund Law. We have noted that the Act is remedial in character, Maddy v. Jones, 230 Md. 172, 179, 186 A. 2d 482 (1962) and must be liberally construed, and while due regard must be given to the protection of the Fund, Wheeler v. Unsatisfied Claim & Judgment Fund, 259 Md. 232, 239, 269 A. 2d 593 (1970); Hawks v. Gottschall, 241 Md. 147, 215 A. 2d 745 (1966), in the interest of protecting the innocent victims whom the Act was intended to benefit, we are disposed to consider, but not necessarily to be bound by, decisions involving the interpretation of insurance contracts.”

I find Frazier more apposite and far more persuasive than the language from a 1939 Mississippi case quoted by the Court of Appeals while interpreting the language of a contract of insurance coverage relied upon by the majority, National Indemnity v. Ewing, 235 Md. 145.

In Frazier a mother was driving her Chevrolet convertible on the evening of July Fourth, with her five-year old son a passenger in the rear seat of the open car. According to the mother, an unidentified car, going in the opposite direction, passed her and as it did, the driver of the car threw a lighted firecracker or cherry bomb into the rear seat of her car. Distracted by the explosion and by her son’s cries, she lost control of her car and hit a tree. Both she and the son were injured. The mother and her husband filed petitions in the Circuit Court for Anne Arundel County in which they sought leave to sue the Unsatisfied Claim and Judgment Fund Board. From an order denying their petition, they appealed. The court below concluded, “as a matter of law,” that the injuries sustained did not “arise out of the ownership, maintenance, and use of the unidentified car.” The Court of Appeals reversed, stating at 117 and 119:

“The question, of course, is whether the Fraziers’ injuries arose ‘out of the ownership, maintenance or use of a motor vehicle.’
We conclude that for purposes of determining whether leave to sue the Board should have been granted, the injuries under the facts of this case did arise out of the ownership, operation or use of an unidentified motor vehicle.”

I can see little difference between the Fund being liable for the action of a passing motorist throwing a cherry bomb or firecracker into a victim’s car and being liable for the action of a passing motorist who stops his car, jumps out and forcefully throws himself into the victim’s car with the avowed purpose of doing injury to the driver of the car he has just passed and whose passage he has just blocked, which injury is done without the victim having ever been fully extracted therefrom.

The majority’s heavy reliance upon Merchants Company v. Hartford Accident and Indemnity Company, 188 So. 571 (Miss. 1939) is misplaced. The excerpt from that case found so significant by the majority is:

“Our conclusion, under a policy such as is here before us, is that where a dangerous situation causing injury is one which arose out of or had its source in, the use or operation of the automobile, the chain of responsibility must be deemed to possess the requisite articulation with the use or operation until broken by the intervention of some event which has no direct or substantial relation to the use or operation, — which is to say, that the event which breaks the chain, and which, therefore, would exclude liability under the automobile policy, must be an event which bears no direct or substantial relation to the use or operation; and until an event of the latter nature transpires the liability under the policy exists.”

I cannot subscribe to the argument that the event which broke the chain of use of the Getson automobile was his stopping the automobile and then assaulting Elliott. The attack upon Elliott was obviously made in “hot blood” occasioned by the use or misuse of one or both vehicles. In a sense, a fight began between Elliott and Getson with the combatants using automobiles as weapons. It culminated with Getson leaping from his automobile into the automobile of Elliott and there finishing the battle. It was all part of one and the same transaction.

Thus, I am of the opinion that the facts to be developed at a trial on the merits could take such a posture that the trier of facts could well find that Elliott suffered at the hands of Getson “damages resulting from bodily injury . . . arising out of the ownership, maintenance, or use of a motor vehicle . . . .” If the Legislature had intended an exclusion for intentional torts such as the exclusionary clause under which Jamestown was released, the Legislature would have provided for such exclusion.

While concededly the issue here is a close one, I am persuaded we should have resolved it against the Fund at this stage of the proceedings in view of the admonition of the Court of Appeals that the statute is remedial in nature and should be liberally construed — not on behalf of the tort-feasor, but on behalf of the injured party. Frazier v. Unsatisfied Claim and Judgment Fund Board, supra, 262 Md. at 118; Maddy v. Jones, 230 Md. 172, 179.

I respectfully dissent.

      . Now known as the Maryland Automobile Insurance Fund. Md. Code, Art. 48A § 243 et seq.

      . The separate tort action of Elliott v. Getson, No. 8486 — Law Docket #14, Circuit Court for Washington County, has apparently been held in abeyance pending the outcome of this declaratory judgment action.


author: Menchine, J.,

text:
    SAMUEL HENRY DILLON v. STATE OF MARYLAND
    [No. 862,
    September Term, 1974.]

      Decided July 24, 1975.

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

      Joseph J. D’Erasmo, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and William J. Hickey, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Samuel Henry Dillon was convicted by a jury in the Circuit Court for Montgomery County under counts 1, 5, 7 and 9 of a single indictment. Count 1 charged armed robbery, allegedly occurring on January 22, 1974, and count 5 charged use of a handgun in the commission of that felony. Count 7 charged armed robbery allegedly occurring on January 5, 1974 and count 9 charged use of a handgun in the commission of that felony. Dillon was sentenced to a term of ten years imprisonment under count 1 and to five years consecutively under count 5. He was sentenced to terms of 10 and 5 years respectively under counts 7 and 9 concurrent with the prior sentences. The offenses allegedly were committed at the same 7-11 Store.

Dillon’s appeal suggests the following errors:

I. That the trial court placed improper restrictions on note taking by the jurors.
II. That the court’s charge was erroneous both in omission and content.

I.

Restriction on Note Taking by Jurors

After the jury had been sworn, the trial judge said:

“No note taking, please, except by the Foreman. There is a pad and a pencil for the Foreman, and he may take notes as he feels is necessary.
“We ask the rest of you not to take notes, for the very simple reason that it is difficult at best to be writing down, unless you are well trained in that field, to be taking notes and also listen to everything that is going on at the same time.
“We want you to pay full time and attention to what comes from the witness stand, because that is the factual situation upon which you must arrive at your verdict.
“No note taking during the opening statement, however, because that is just what they expect to prove.
“No note taking until the evidence commences.”

Immediate objection was taken by defense counsel as follows:

“The defendant would object at this time to the Court’s ruling that only one of the jurors may take notes in this case, for the reason that every one of the jurors has his own independent recollection.
“If one, and only one, has notes, that one may be the only one whose recollection is weighed in the jury room; therefore, I request that all of the jurors be permitted to take notes, or that none of them be permitted to take notes, including the Foreman. * * * I have no objection to none of the jurors taking notes, not even the Foreman.”

The court then responded:

“I think since the Foreman is in charge of the deliberations, if he feels it is necessary on some particular point that he take notes, he can: but that is just to throw it out for discussion, nothing more.”

Note taking by jurors apparently has been the subject of appellate discussion in only one case in Maryland. In Cahill v. M.C.C. of Balto., 129 Md. 17, 98 A. 235, after commenting (page 2'o [238]) that:

“Unquestionably it has been the practice for jurors to make rough notes, particularly where figures are involved, during the course of the examination of the witnesses, and take these notes with them when they retire to their room.”

The Court said: (page 26-27 [238])

“We see no objection in a juror taking notes in a case complicated with figures, during the examination of testimony, and being permitted to take these to the jury room, for the purpose of refreshing his recollection, provided the trial Court is satisfied that such action will not delay the trial, or interfere with the juror following the evidence.
“We have found only one State where in the absence of statute such practice is allowed as a matter of right. In all the other States where the question has arisen, it has been held, as we have stated, not a right, but a discretionary power of the trial Court, with the exception of Indiana, where it is held to be a reversible error to permit it. We think, however, from reason that the better rule is with the weight of authority and so hold.”

For extensive discussions upon the subject of note taking by jurors, see: United States v. Campbell, 138 F. Supp. 344, 348, et seq. (U.S. D. Ct. N.D. Iowa W.D., 1956); Annotation, 154 A.L.R. 878, et seq:, Annotation 14 A.L.R.3d 833, et seq.

The only Rule making reference to notes of jurors is Maryland Rule 558. That Rule, relating to what may be taken to the jury room, provides in pertinent part as follows:

“b. As of right — Notes
The jury may also take with them notes of the testimony or other proceedings taken by themselves but none taken by any other person.”

We do not interpret the quoted portion of Rule 558 as intending a departure from the holding in Cahill, supra, that the question whether the jurors will be permitted to take notes is within the discretion of the trial judge. We regard the language of the rule permitting jurors as a matter of right to take their notes to the jury room with them as applying only if the trial judge has not, in the exercise of his discretion, forbidden the taking of notes.

We have been referred to no case and have found none wherein the precise question here presented, namely, whether the discretion of the trial judge could be said to have been reasonably exercised when note taking was authorized to one but forbidden to other jurors. The contention of counsel for appellant, that “If one, and only one, has notes, that one may be the only one whose recollection is weighed in the jury room”, has a distinct appeal to reason. We believe that the exercise of a reasonable discretion requires that all members of a particular jury panel be dealt with uniformly. The contrary course, followed by the trial judge, was erroneous.

In the subject case, however, there is nothing in the record to indicate that the jury’s verdict in any way was influenced by the trial court’s action. It does not even appear that the jury foreman in fact did take notes. In the absence of any such showing and in the light of the circumstance that the case was neither lengthy nor complex, we do not regard the error as justifying reversal.

In Chapman v. California, 386 U. S. 18, 22, 17 L.Ed.2d 705, 709, 87 S. Ct. 824, 827, the Supreme Court, after pointing out that “[a]ll 50 States have harmless-error statutes or rules”, declared that: “All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” See also: Lamar v. State, 5 Md. App. 594, 598, 249 A. 2d 192, 194-95, and cases therein cited. In the subject case we find no likelihood that the ruling as to the jury note taking changed the result of the trial. The error does not justify or require reversal. Fisher v. Strader, 160 A. 2d 203, 204 (Pa. 1960). We are persuaded from our examination of the record that the appellant received a fair and impartial trial.

II.

(a) The suggested omissions

In his exception to the charge of the court in this area, defense counsel had said:

“I would also like to request the Court to give an instruction concerning alibi, [1] * * * to define what an alibi is, and [2] indicate that the defendant does not have the burden of proving that beyond a reasonable doubt, but need only to do so in sufficient amount to raise a doubt in the minds of the jurors about the State’s case. * * * [3] I would also request an instruction to the jury concerning photographic identification, that they should weigh the testimony.”

Defense counsel proffered to the trial court no suggested definition of “alibi.” In the absence of such a course we find that the court’s advisory instruction, read in the context of the testimony, adequately instructed the jury as to alibi. The defense witnesses, including the traverser himself, had testified to the effect that appellant was elsewhere than at the crime scene at the times of the offenses. The American Heritage Dictionary of the English Language defines the word “alibi” as follows: “A form of defense whereby a defendant attempts to prove that he was elsewhere when the crime in question was committed.”

The trial judge had told the jury:

“There is no dispute, but what there was a robbery; and there is no contradiction or dispute over the fact that the person who did that had in his possession a gun of some type.
“The defense in this case is one of identity, and you heard the State’s witnesses, and you heard the defense witnesses.
“This is a question now that you must resolve as to whether this is a man who is guilty of these crimes.”

In short, the trial court made clear that the subject case turned upon the credibility of witnesses as .to whether the appellant was or was not the perpetrator of the two robberies. An essential factor in the determination of that question was the resolution of conflicting evidence as to whether the appellant was or was not “elsewhere when the crime in question was committed.” The trial court’s charge made quite clear that the appellant must be found not guilty if the jury believed the defendant and his witnesses. When the meaning of a charge is implicit and clear, definitive terms are discretionary. White v. State, 23 Md. App. 151, 326 A. 2d 219.

The second aspect of the exception as to alibi requested by the defendant, itself involved a request for an erroneous instruction. As the court explained: “I have told them there is no burden on the defendant.” The trial court was entirely correct in pointing out that there is no burden upon a defendant to prove alibi, as we declared in Robinson v. State, 20 Md. App. 450, 456, et seq., 316 A. 2d 268, 271, and reiterated in Daniels v. State, 24 Md. App. 1, 6, 329 A. 2d 712, 715-16.

Nor do we find error in the rejection of appellant’s request for an instruction as to the weight of the testimony with particular reference to photographic identification.

The trial judge had included in his charge the following:

“You are the sole determiner of the weight to be given to the evidence. You are adults in the community that have been selected to try this case.
“This is an extremely serious case, serious to the State, and equally serious to the defendant, so it requires your careful deliberation.
“You may believe all that a witness said. You may believe part of what a witness said, and disbelieve part of it.
“If you feel that something has been said that is not worthy of belief, you can throw it out entirely.
“This is your duty and your prerogative to draw on your experience in the community as adults that have been selected to try this case, and evaluate it carefully and impartially.
“That is all any of us ask, the State, or the defendant, and the Court.
“We are all looking for one thing, to have a fair trial to the State and to the defendant, and a fair and impartial verdict.
“Pay careful attention to counsel, because they will now argue to you, and then you will retire to deliberate.”

The trial judge, responding to counsel’s comment that the jury was entitled to pass upon the question whether there was an impermissibly suggestive procedure and was entitled to disregard the photographic identification, said “You may argue that.” We think that the general charge as to a determination of the weight and effect of evidence was sufficient. Trial counsel was expressly authorized to make his suggested argument as to photographic identification procedures and their effect within the framework of the charge as given. It is not necessary to grant requested instructions if the matter is fairly covered by instructions actually given. Harris v. State, 11 Md. App. 658, 662-63, 276 A. 2d 406, 408.

We perceive no error of omission in the charge.

(b) Alleged error in content of charge

In the course of the trial court’s charge, subsections (a) and (d) of Article 27, § 36B were read in their entirety. Trial counsel objected, saying:

“[I]t was improper to read into the record the portion of the statute containing the handgun use.
THE COURT: Why do you think it is improper?
MR. DEUTCHMAN: I believe that it is not the law, that the Jury should not be instructed on that as being part of the law.
I think it unduly prejudices the Jury to read into the record an editorial comment by the legislature on the purpose of the law.
I would request a mistrial on that ground * * *.”

Inclusion of a pertinent statute within the court’s advisory instruction is proper. Parker v. State, 7 Md. App. 167, 254 A. 2d 381, cert. den. 91 S. Ct. 1670, 29 L.Ed.2d 150. We have been referred to no Maryland case — and we have found none — in which a declaration of legislative policy incorporated within a penal statute was read to the jury. The Supreme Judicial Court of Massachusetts, however, twice has ruled upon the question. In Commonwealth v. Sansone, 147 N. E. 574 (1925) it was said at 575:

“It is not error for the trial court in the course of a charge to state the legislative purpose in enacting the statute upon which the indictment is based.”

Again, in Commonwealth v. Brunette, 277 N.E.2d 826 (1972), it was said at 831:

“A judge may inform a jury about the legislative purpose of a statute, if he does so accurately.”

Appellant cites State v. Locks, 382 P. 2d 241 (Arizona, 1963) as supporting his contention that the trial court was in error. We find it readily distinguishable. In Locks the Court reversed conviction upon the ground “that the statute was grossly prejudicial to the rights of defendant” (at p. 243). In doing so the Court declared that the incorporation of the policy declaration of the statute in the charge of the trial court:

“* * * impliedly invited the jury to construe §§ 13-821 and 13-822 by giving to those sections a liberal meaning in favor of the state to protect the children of the state from any person whom the jury might believe had improperly conducted himself in a fashion to encourage the delinquency of a child. No more roving unrestrained authority to convict the defendant of the crime charged could possibly have been authorized, an authority unrestrained by any of the other accepted modes for the determination of the meaning of the language used in a statute.
“While we have construed the language of §§ 13-821 and 13-822 as being broad enough to sustain a conviction for the crime charged we, of course, can not say with certainty that under the instructions this was the basis for the jury’s verdict. What liberal concepts the jury attached to the language of the legislature to protect children is impossible to tell. Of what it in fact convicted the defendant is unknown.” (at p. 244)

We find no such prejudicial effect resulting from incorporation of both subsections (a) and (d) of § 36B in the charge. In the absence of such effect, we adopt the Massachusetts view. There being no error in the instruction, the motion for mistrial, of course, properly was denied.

We find no reversible error.

Judgments affirmed.

      . Rule 558 is made applicable to criminal cases by Rule 757.

      . In Raimondi v. State, 265 Md. 229, 288 A. 2d 882, the Court of Appeals speaking generally about Rule 558, but ruling upon a different aspect of that rule, said at 231 [884]:
      “[His] argument that Rule 558 did little more than enunciate our prior case law is correct, * * *.”

      . The A.B.A. Standards Relating to Trial by Jury (Approved Draft, 1968) proposes in Standard 4.2 to make juror note taking a matter of right. The Standard reads as follows:
      “4.2 Note taking by jurors.
      Jurors may take notes regarding the evidence presented to them and keep these notes with them when they retire for their deliberations. Such notes should be treated as confidential between the juror making them and his fellow jurors.”
      The commentary upon the standard in its first paragraph says:
      “The great majority of the states which have ruled on the question permit the trial judge, in his discretion, to allow jurors to take notes regarding the evidence presented to them during the trial.”
      The commentary concluded by saying:
      “ ‘Under the standard, jurors are to be afforded the opportunity to take notes in all cases. Once the propriety of note taking is recognized, it must be concluded that there is no legitimate basis upon which a trial judge could exercise his discretion against note taking. Thus, one commentator says with regard to leaving the matter to the judge’s discretion:
      ‘This discretion presumably would be exercised to permit the taking of notes in lengthy trials, trials involving many defendants, of many witnesses, with complicated issues, and to forbid the practice in shorter, more simple trials where the dangers might possibly outweigh the necessity and value to be derived from note-taking. The court is said to balance the interests between dangers and necessity. But the dangers increase as the necessity increases. In a short trial, the memory needs no aid, but notes taken could not harm since they are more likely to be accurate and less likely to supplant memory. In lengthy trials, however, where the memory may fade, the notes are important. There is greater danger in their being inaccurate, because of the volume of notes taken, or incompleteness; and as the memory fails, the notes become the memory itself. If the purpose of allowing the practice is to better enable the jury to reach a proper result, it would appear this purpose is served in all trials, and that there is no benefit in leaving the matter discretionary with the court.’ ” ’
      In the absence of any action by the Rules Committee or the Court of Appeals on the subject, we do not deem it appropriate for this Court to depart from the widely held doctrine that the matter is properly to be left to the discretion of the trial court, a doctrine to which Maryland subscribed in Cahill, supra.

      . “(a) Declaration of policy. — The General Assembly of Maryland hereby finds and declares that:
      (i) There has, in recent years, been an alarming increase in the number of violent crimes' perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;
      (ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
      (iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
      (iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens-.
      (d) Unlawful use of handgun in commission of crime. — Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”


text:
    JOSEPH HARDEN et al. v. MASS TRANSIT ADMINISTRATION et al.
    [No. 884,
    September Term, 1974.]

      Decided July 25, 1975.

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

      Michael L. Schwartz, with whom were David Freishtat and Arnold Levi on the brief, for appellants.

      Glenn E. Bushel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, J. Michael McWilliams, Assistant Attorney General, Joseph S. Kaufman and Patrick A. ODoherty on the brief, for appellees.
   Menchine, J.,

delivered the opinion of the Court.

Joseph Harden, Lula Mae Rudd, John Fleming and Carolyn Gaylord, for themselves and for all others similarly situated (appellants), sought, in the Superior Court of Baltimore City, declaratory relief that Mass Transit Administration, a body politic and corporate, and Transit .Casualty Company, a body corporate, its insurer (appellees), are responsible to them for medical, hospital and disability benefits pursuant to the provisions of Article 48A, §§ 538-546 of the Annotated Code of Maryland (1974 Cum. Supp.). Their petition alleged that Mass Transit Administration was the owner and operator of certain busses in which the named plaintiffs were riding as passengers when they sustained injuries subsequent to January 1, 1973 that involved medical expenses and loss of income, and that Transit Casualty Company was its insurer under a policy of insurance issued after January 1, 1973. Liability of Mass Transit Administration (Administration) was asserted on the basis of its alleged failure to maintain motor vehicle liability insurance as required by Article 66V2, § 7-101 of the Annotated Code of Maryland (1974 Cum. Supp.). Liability of Transit Casualty Company was asserted on the basis of its alleged failure to incorporate within the terms of its issued liability insurance policy an undertaking to afford the minimum medical, hospital and disability benefits required by Article 48A, § 539. Mass Transit Administration and Transit Casualty Company severally filed a demurrer and answer. The trial judge, at the request of appellees, treated the demurrer as a motion for summary judgment, relying upon Hunt v. Montgomery County, 248 Md. 403, 237 A. 2d 35.

On October 31, 1974 the following declaratory judgment was passed in the Superior Court of Baltimore City:

“* * * It is hereby
ORDERED, DECLARED, ADJUDGED AND DECREED that the Defendants are not in violation of the provisions of Article 48A, Sections 538-546 of the Annotated Code of Maryland (1974 Cum. Supp.) by their failure to provide ‘medical benefits’ and ‘economic loss’ benefits pursuant to said statute,
AND, IT IS FURTHER ORDERED, DECLARED, ADJUDGED AND DECREED that the Defendant, Mass Transit Administration, an instrumentality and agency of the State of Maryland, is not covered by the provisions of Article 48A, Sections 538-3 [sic] and 66V2, Section 7-101.2 [sic] of the Annotated Code of Maryland (1973 Cum. Supp.), and consequently the Defendant, Transit Casualty Company, as the carrier of insurance on Mass Transit Administration vehicles is also not covered thereunder, * * *”

Appellants contend:

I. that the statutory language of Article 48A, §§ 538-546 and Article 66V2, § 7-101 is plain and unambiguous;
II. that it was the legislative intent to bind Mass Transit Administration and its insurer to the compulsions thereby imposed, and
III. that under any other interpretation, the cited sections of the code would be unconstitutional.

I. and II.

Contentions I and II are interrelated and will be discussed together.

The Mass Transit Authority was established by Chapter 253 of the Acts of 1971, amending Article 41, § 207D It succeeded “Public Transit Administration” and the “Metropolitan Transit Authority” as the same had previously existed. The creating statute provided that all references in the code, laws, ordinances, resolutions, rules and regulations to the Metropolitan Transit Authority or to Public Transit Administration shall be deemed to mean the Mass Transit Administration, except to the extent that such references more reasonably should be construed to mean the Maryland Transportation Authority.*

The legislative grant of power and authority and the concomitant duty and obligation of the Mass Transit Authority was supplied by Article 64B of the Annotated Code of Maryland. Section 4 of the Article provides, inter alia, that:

“* * * the Administration shall have the powers and duties granted in this article, as amended from time to time, and such additional powers as may hereafter lawfully be conferred upon it pursuant to law, to manage, conduct and control the functions, affairs and property of the Administration.
“The powers, authority and functions vested in the Mass Transit Administration by the provisions of §§ 6, 8 (c) through 8 (n), 18, 23, 29, 31, 34, 35, 36, 37, 44, 45 and 46 of this article, shall be exercised or performed by the Administration subject to the approval of the Secretary of Transportation or, with respect to matters within the jurisdiction of the Maryland Transportation Authority, the approval of the Maryland Transportation Authority

The sections and subsections referred to in § 4, supra, hereafter recited in condensed summary form, provided in substance as follows:

§ 6 authorized appointment and employment of counsel; and provided for a chief administrative officer and fixed his responsibility.
§ 8 authorized the Administration:
(c) to establish offices;
(d) to adopt, amend and repeal rules and regulations;
(e) to acquire property;
(f) to obtain grants, loans and advances;
(g) to contract for transit facilities and services;
(h) to contract with others for joint use of property or rights;
(i) to make agreements for free or reduced fares;
(j) to provide transit service;
(k) to engage or remove personnel without regard to Maryland Laws relating to other State employees;
(l) to establish a personnel merit system and a pension and retirement system with or independent of the existing State system;
(m) to contract for planning engineering and technical services;
(n) to provide a security force.
§ 18 authorized the fixing of rates and charges; prescribed the uses to which funds derived therefrom shall be put; and provided that such rates and charges “shall not be subject to supervision or regulation by any department, division, commission, board, bureau, or agency of the State or any political subdivision thereof.
§ 23 authorized the Administration to execute agreements, leases and equipment trust certificates for the purchase of transit facilities or equipment.
§ 29 declared the function of the Department of Transportation but imposed no restrictions upon the functions of the Administration with which the subject case is concerned.
§ 31 related further to fixing rates and charges to provide funds the Administration “deems necessary and desirable to carry out the purposes of this article.”
§ 34 related further to contracts, and leases.
§ 35 authorized the Administration to provide transit service if the Public Service Commission “fails or refuses to direct a private carrier to provide [it].”
§ 36 authorized the Administration to acquire the assets and properties of private carriers by purchase, lease or condemnation.
§ 37 related to rights and benefits of employees and to labor contract and disputes.
§ 45 related to purchasing and competitive bidding.
§ 46 authorized acquisitions by condemnation.

In sum, by Article 64B the Legislature made the Administration a State agency and vested it with extremely broad powers, giving it an autonomy qualified solely by supervisory powers granted or reserved to the Department of Transportation or the Maryland Transportation Authority. Such was the status of the Administration at the time that § § 538 through 546 of Article 48A were added to the Annotated Code of Maryland by the passage of Chapter 73 of the Acts of 1972.

The contention of appellants basically is that the interaction of Article 48A, § 539 with Article 66V2, § 7-101 combined to subject the Administration and its insurer to an obligation to assure the payment of “no fault” claims thereby authorized. They argue that the provisions of Article 66V2, § 7-101 that every owner of a motor vehicle required to be registered in this State shall maintain required security and that every person must comply with § 539 of Article 48A, must be interpreted as requiring the Administration and its insurer to be bound by their respective obligations.

Appellees counter with the alternative contentions: (a) that the Administration is a State agency whose sovereign immunity protects it from suit and (b) that the Legislature did not intend the Administration to be within the purview of Chapter 73 of the Acts of 1972.

There is a surface plausibility in appellants’ contention but it does not survive careful analysis.

Appellants brush aside the suggested defense of the State’s immunity to suit upon the ground that such immunity was waived by statute in that:

(1) Article 64B, § 8 a declares that the Administration shall: “Have perpetual succession, and sue and be sued in its own name and plead and be impleaded” and
(2) Article 64B, § 49 declares that the Administration “shall be liable for its contracts and for its torts * * * in connection with the performance of the duties and functions imposed in this article.”

We do not, however, see this case as one turning upon a question of immunity to suit and do not reach the issue. Instead, we conclude that the provisions of Article 48A, § § 538 through 546, and Article 66V2, §§ 7-101, 7-102 do not apply at all to the Administration. Subtitle 1 of Article 66V2 furnishes the definitional portion of that article. In § 1-157 “owner” is defined as “a person having the property in or title to a vehicle.” Section 1-160 defines a “person” as “every natural person, firm, copartnership, association, or corporation.”

The State and Státe agencies generally are regarded as not included in statutes using such words as “natural person, firm, copartnership, association, or corporation.” State v. Rich, 126 Md. 643, 649, 95 A. 956, 958; Mayor and City Council v. Baltimore Gas Co., 232 Md. 123, 135, 192 A. 2d 87, 93.

We recognize, of course, that the State or its agencies may fall within the purview of such statutes “where such an intention is manifest.” Huffman v. State Roads Commission, 152 Md. 566, 584, 137 A. 358, 365. We do not, however, regard the subject case as falling within such an exception.

The statute by which §§ 538 through 546 were added to Article 48A was of considerable complexity. Incident to purposes to be accomplished by those sections, the statute provided for the specific repeal and reenactment of sections or subsections of Article 26; of Article 48A; of Article 66V2 and of Article 81. Yet the statute made no reference to Article 64B. We are persuaded that this circumstance strongly indicates that the statute was not intended to affect that article or to subject the Administration or its insurer to the obligations imposed by Article 48A, §§ 538-546 or by Article 66V2, §§ 7-101 and 7-102.

Particularly significant, we think, is the circumstance that the statute did not address itself to Article 64B, § 44 that reads in pertinent part as follows:

“§ 44. Insurance.
(a) Coverage; form; amount. — The Authority shall self insure or procure and maintain insurance against loss or damage to any of its properties and against liability for injury to persons or property. The Board may also purchase insurance against loss of revenue from any cause whatsoever. Such insurance coverage shall be in such form and amount as the board may determine, subject to the requirements of any agreement arising out of issuance of bonds or other obligations by the Authority. (Emphasis added.)

It is instantly apparent that the Legislature left to the discretion of the Administration the decision (a) whether to carry insurance or to provide self insurance as to its own liability for negligence, and (b) to fix the form and amount of any insurance coverage it might elect to carry, subject only to the requirements of any agreement arising out of the issuance of its bonds.

The Legislature made two policy declarations in conjunction with its broad grant of power to the Administration. By § 1 of Article 64B it was declared that, “The development of improved and expanded transit facilities * * * is essential for the satisfactory movement of people and goods, the alleviation of present and future traffic congestion, the economic welfare and vitality and the development of the metropolitan area of Baltimore * * By § 12 of that article it was declared that, “all costs incurred in constructing, acquiring, operating and maintaining the regional transit facilities shall be borne, as far as practicable, by fares charged for . the service performed by the transit facilities owned or controlled by the [Administration] * *

Imposition upon the Administration of the additional costs inherent in the provisions of Article 48A, §§ 538 through 546 well might affect adversely its capacity to carry out the legislative policies for which it was created.

In Bowie v. Wash. Sub. San. Comm., 249 Md. 611, 618, 241 A.2d 396, 400, it was said:

“It is a cardinal rule of statutory construction that repeals not express will not be found unless demanded by irreconcilability or repugnancy.”

See also Loker v. State, 2 Md. App. 1, 9, 233 A. 2d 342, 348, affirmed 250 Md. 677, 245 A. 2d 814, cert. denied 393 U. S. 1082.

There is no such inconsistency between §§ 538 through 546 of Article 48A on the one hand and the provisions of Article 64B on the other as to make their separate existence so repugnant that they cannot stand together. We decide, accordingly, that passage of Chapter 73 of the Acts of 1972 did not directly nor by implication repeal any section of Article 64B. The granted discretion to the Administration as to the form and amount of insurance to be carried by it remains undisturbed by its passage.

In the exercise of that discretion the Administration initially chose insurance coverage in a form that quite naturally did not provide the benefits such as were required to be incorporated in policies issued to other owners by the subsequent legislation. Passage of that later legislation did not remove or alter that discretion. The insurer, accordingly, is bound only to the contractual undertaking in the form prescribed by the Administration in the exercise of its discretion, and is unaffected by the passage of Chapter 73 of the Acts of 1972.

Appellants’ suggestion that recognition of the co-existence of the statutory provisions “would exempt [the Administration] from registering vehicles [or] obeying the rules of the road * * *” is without merit. Section 3-402 of Article 66V2 does not exempt State vehicles from registration but exemption from the payment of registration fees is provided by § 3-829. The Administration specifically is made liable for the negligence of its employees. Article 64B, § 49. A violation of a rule of the road that is the proximate cause of injury is negligence. Sun Cab Co. v. Walston, 15 Md. App. 113, 289 A. 2d 804; affirmed 267 Md. 559, 298 A. 2d 391.

III.

Appellants’ contention that legislative exclusion of the Administration and its insurer from the obligations imposed by Article 48A, §§ 538-546 and Article 66V2, §§ 7-101 and 7-102 would render such sections unconstitutional as a denial of equal protection of the law also is without merit. In Allied American Co. v. Comm’r of Motor Vehicles, 219 Md. 607, 623, 150 A. 2d 421, 431, it was said:

“The constitutional need for equal protection does not shackle the legislature. It has the widest discretion in classifying those who are to be regulated and taxed. Only if the grouping is without any reasonable basis, and so entirely arbitrary, is it forbidden. Abstract symmetry or mathematical nicety are not requisites. The selection need not depend on scientific or marked differences in things or persons or their relations. If any state of facts reasonably can be conceived that would sustain a classification, the existence of that state of facts as a basis for the passage of the law must be assumed. The burden is on him who assails a classification to show that it does not rest on any reasonable basis.”

The legislative aims in the creation of a transit authority on the one hand and initiation of “no fault” insurance on the other are not identical. In the former, the legislation was directed to supplying adequate public transit facilities to all members of the public benefiting from such services. In the latter it was directed to providing benefits to a more limited segment of the public. The classes sought to be benefited were in no sense identical. The Legislature, with reason, could have concluded that the problems it alleviated in the area of public transit would re-emerge if the Authority was included in the “no fault” obligations imposed by the later statute.

In Allied American Co., supra, it was said at 624 [432]:

“If the classification made by the Legislature is otherwise justified, there can be no sound complaint that the legislative purpose might be better or more fully achieved by other or more expansive and inclusive classification.”

Moreover, we note in passing that § 542 of Article 48A provides that, “Nothing in this subtitle shall be deemed to affect the right of any person to claim and sue for damages or losses sustained by him as the result of a motor vehicle accident.”

Because the briefs and arguments of the named litigants addressed only the substantive merits of the litigation and in view of our decision on the merits, we do not reach the question whether a class action would be a proper vehicle for resolution of the supposed rights of multiple unnamed members of a class under the circumstances here existing. But see this Court’s consolidated cases of Johnson v. Chrysler Credit Corp. and Forcella v. Ford Motor Credit Co., Nos. 789 and 790, September Term, 1974, filed May 6, 1975. See also: Mass Compensatory Relief, 24 Syracuse L. Rev. 1341, 1356, et seq.

Declaratory judgment amended so that the code references in its penultimate paragraph shall read: Article 48A, §§ 538-546 and Article 66'/2, §§ 7-101 and 7-102 and as so amended, affirmed.

Costs to be paid by appellants.

      . Section 7-101 reads as follows:
      “(a) Every owner of a motor vehicle required to be registered in this State shall maintain the security required by this section with respect to each such motor vehicle owned by him throughout the period the registration is in effect. No certificate of registration shall be issued or transferred to an owner by the Administrator unless the owner or prospective owner produces satisfactory evidence that such security is in effect.
      “(b) Every person who has been excluded from coverage under a motor vehicle liability insurance policy under § 240C-1 of Article 48A and every person who has been finally rejected for insurance by the Maryland Automobile Insurance Fund under § 243D of Article 48A shall, within ten days after rejection by the said fund, as the case may be, furnish evidence to the Administrator that he obtained and is covered by the security required by this section. Upon failure to furnish such evidence within said period, the Administrator shall suspend any certificate of registration for every vehicle owned by said person, and shall also suspend any operator’s license issued to such person until such time as the person furnishes evidence that he has obtained and is covered by the required security.
      “(c) The security required under this section shall be a motor vehicle liability insurance policy written by an insurer authorized to write such a policy in Maryland (including the Maryland Automobile Insurance Fund) providing for at least (i) the payment of claims for bodily injury or death arising from an accident of up to $20,000 for any one person and of up to $40,000 for any two or more persons, exclusive of interest and costs; (ii) the payment of claims for property of others damaged or destroyed in an accident of up to $5,000, exclusive of interest and costs, and (in) the benefits required under Article 4SA, §§ 539, 540 and 542 of this Code; provided, however, that the Administrative may approve and accept another form of security in lieu of a motor vehicle liability insurance policy if he finds that such other form of security is adequate to provide and does in fact provide the benefits required by this section.” (Italics supplied)

      . Section 539 reads as follows:
      “No policy of motor vehicle liability insurance shall be issued, sold or delivered in this State after January 1, 1973, unless the policy also affords the minimum medical, hospital and disability benefits set forth herein; or unless equivalent medical, hospital, and disability benefits are provided by a policy issued to the insured by a nonprofit health service plan or by an authorized insurer with the policy in each case subject to approval by the Commissioner. The benefits, or their equivalent, shall cover the named insured and members of his family residing in his household (except such persons as may be specifically excluded in accordance with § 240C-1 of this article) injured in any motor vehicle accident (including an accident involving an uninsured motor vehicle or a motor vehicle whose identity cannot be ascertained), other persons injured while occupying the insured motor vehicle as a guest or passenger, or while using it with the express or implied permission of the named insured (except as provided in § 240C-1 of this article), and pedestrians injured in an accident in which the insured motor vehicle is involved or individuals injured in, on, or alighting from any other vehicle operated by animal or muscular power in an accident in which an insured vehicle is involved. The minimum medical, hospital and disability benefits shall include up to an amount of $2,500, for payment of all reasonable expenses arising from the accident and incurred within three years from the date thereof for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services; and in the case of an income producer, payment of benefits for loss of income as the result of the accident; and where the person injured in the accident was not an income or wage producer at the time of the accident, payments of benefits must be made in reimbursement of necessary and reasonable expenses incurred for essential services ordinarily performed by the injured person for care and maintenance of the family or family household. The insurer providing loss of income benefits may require, as a condition of receiving such benefits that the injured person furnish the insurer reasonable medical proof of his injury causing loss of income.

      . The code references set forth in the last quoted paragraph of the declaration apparently were intended to refer to Article 48A, §§ 538-546 and Article 66V2, §§ 7-101 and 7-102.

      . Article 41, § 207D, as thus amended, reads as follows:
      “(a) The Mass Transit Administration is hereby established as part of the Department of Transportation. The head of the Mass Transit Administration shall be the Mass Transit Administrator. The incumbent general manager of the Metropolitan Transit Authority as of June 30, 1971, shall be the Mass Transit Administrator and shall serve at the pleasure of the Secretary of Transportation. Thereafter, his successors shall be appointed by the Secretary of Transportation, with the approval of the Governor, and shall serve at the pleasure of the Secretary. The Mass Transit Administrator shall receive such salary as provided in the State budget. The Mass Transit Administrator shall report directly to the Secretary of Transportation and shall, subject to the authority of the Secretary of Transportation, be responsible for carrying out the powers, duties, responsibilities and functions vested by law in the Mass Transit Administration. The Mass Transit Administrator shall also be responsible for carrying out those duties or functions vested in the Secretary of Transportation which the Secretary may delegate to him.
      “(b) The Metropolitan Transit Authority, the office of secretary of the Metropolitan Transit Authority, the office of treasurer of the Metropolitan Transit Authority, and the office of general manager of the Metropolitan Transit Authority, are hereby abolished. From and after July 1, 1971, all rights, powers, duties, obligations and functions heretofore conferred upon or exercised by the Metropolitan Transit Authority and such abovenamed officers, shall be transferred to and shall, subject to the authority of the Secretary of Transportation, be exercised by the Mass Transit Administration except for those powers and duties transferred to the Maryland Transportation Authority by § 208C of this article.
      “(c) All rules, regulations, forms, orders and directives promulgated by or in effect for the Metropolitan Transit Authority as of June 30,1971, shall continue in force unless and until changed by the Mass Transit Administrator or the Secretary of Transportation.
      “(d) All references in this Code, other laws, ordinances, resolutions, rules, regulations, directives, legal actions, contracts or other documents to the Metropolitan Transit Authority and Public Transit Administration shall be deemed to mean the Mass Transit Administration or, if such references relate to matters within the jurisdiction of the Maryland Transportation Authority and if such construction be more reasonable, then such references shall be deemed to mean the Maryland Transportation Authority.
      “(e) All persons who are as of June 30, 1971, officers and employees of the Metropolitan Transit Authority, but not including members of the Metropolitan Transit Authority and its secretary and its treasurer, are hereby confirmed in the office, position and classification which they hold as of June 30, 1971, as officers and employees of the Mass Transit Administration until they retire, resign, or are removed as provided by law.”

      . The Maryland Transportation Authority is that agency of the State to which is committed the financing, operation, maintenance, and repair of all toll facilities under Article 41, § 208C, as amended by Chapter 665 of the Acts of 1974.

      .. Section 1 declared the legislative policy and reads as follows:
      “The development of improved and expanded transit facilities, consisting of rapid transit and bus service operating as a unified and coordinated regional transit. system, is essential for the satisfactory movement of people and goods, the alleviation of present and future traffic congestion, the economic welfare and vitality and the development of the metropolitan area of Baltimore, comprising Baltimore City, Baltimore County and Anne Arundel County. Such a regional transit system cannot be achieved by the unilateral action of any one of Baltimore City, Baltimore County and Anne Arundel County but requires action by the State of Maryland, through a State authority which is politically responsive to local needs and which will assure that the development Of the regional transit system fosters general development plans for the State, the region and the local development plans of the participating political subdivisions. Adequate provisions should be made for the protection of transit labor in the development and operation of the regional system. Adequate provision should be made for assuring that in the event allocation of State financial resources for the benefit of this regional system are made, it shall be accompanied by a parity allocation for the benefit of taxpayers supporting transit facilities in the political subdivisions of the Washington Suburban Transit District.”

      . This section solely excepted action by the Secretary of Transportation and the Maryland Transportation Authority as the only deterrent to the exercise of that broad grant of rate fixing power. There is no suggestion that either of those State agencies had interposed its authority upon the Administration.

      . Maryland’s limited “no fault” insurance coverage statute.

      . See: Footnotes 1 and 2, supra.

      . Article 64B, § 2. Definitions reads in pertinent part as follows:
      “(a) ‘Authority’ or ‘Administration’ mean the Mass Transit Administration established pursuant to Article 41, § 207D of this Code and any successor entity; (b) ‘Board’or ‘Administrator’ mean the Mass Transit Administrator whose office is established by Article 41, § 207D, of this Code.”

      . Sections 15 through 24 of Article 64B authorize the Administration to issue bonds; to make provision for their repayment; to assure their existence as trust funds; provides legal remedies to holders for the protection thereof; exempt the bonds from taxation and otherwise relate to their issuance, repayment and refunding.