text:
    MARION X. MILLER et al. v. KIWANIS CLUB OF LOCH RAVEN, INC.
    [No. 200,
    September Term, 1975.]

      Decided December 2, 1975.

      The cause was submitted on briefs to Orth, C. J., and Gilbert and Melvin, JJ.
    Submitted by- W..Lee:Marriéon^náGoo-pef .G. Graham for appellants. .
    Submitted by Ernest C. Trimble fob appellee.
   Melvin, J.,

delivered the’opinion óf the Cdurt.

- This-is an appeal from, the order of the. Circuit Court for Baltimore.'County reversing the action of the County Board of Áppe’álá' of Baltirhóre County denying-'the petition-of Kiwaáiis.Cluí). qt^Lopli'.Rayqn^ Inc.. (Kfwanis) for a special exception to 'operate a .day-camp uppn.a-.75 acre tract.of .land 'zoned RvD'.P-: ’ (Rural-: • Defebred-R-lanning)- located, on .the south' side of Baubl'itz Road approximately 1468-.west of Dover Roádf in the Fourth Election District of Baltimore .County..,.

Section- .-1A00:2B (10)--';,of -- Article --1Á-.-. (Rural; /and Rural-Suburban. Law — Intensity -Zones) of the Baltimore County Zónlng'Regulatiohs provides that in an R.'D.P. zone, .among other uses permitted as special exceptions, are' the ■following:. • . . -,- ■

;;4,10AGc)lf>'cou-rses', country clubs, or other, outdoor recreation clubs; also quasi public camps, including day camps”.

"The Eiwáhis: Club% petition-.for a special exception, in addition to the special exception for a day camp under -.Section, 1A@0.-2B(1Q),,-also, requested a special exception for a “community.Tmilding and swimming-po.ol,/etc.” on.24 acres comprising- part, of ,the, 75 acre tract, under Section -,!A<(),0.2B(b) which permits la,nd in an R.D.P.,zone to .-be'used by way of a specialexception for: ’ ' .

“'6v Community 'buildings, swimming pools, or other-structural or 1-and'useS devoted to.civic,-- . ¡-•‘•. ¿ocial, recreational, oreducatidnahactivities”.

Kiwanis had acquired the 24 acres in 1964 from the Spring Valley Country Club which had operated a pool and country club thereon, since about 1959. Kiwanis continued the swimming pool operation, apparently as a non-conforming use (although there is some indication it was not a legal non-conforming use), and the principal reason for requesting the community building and swimming pool exception was to “legitimize” its present operations on the 24 acres.

The County Board of Appeals granted the special exception for the community building and swimming pool, subject to restrictions concerning their operation. No appeal was taken from that decision. As already stated, however, Kiwanis appealed to the Circuit Court for Baltimore County the denial of the special exception for a day camp which it wishes to operate on the remaining 51 acres. It appears, however, that the swimming pool facilities would also be used to some degree by the day campers.

The 51 acre tract is contiguous to the 24 acre tract and was acquired in 1971, at which time it was being operated as a farm by the former owner.

Sections 502.1 and 502.2 of the county zoning regulations set out the applicable provisions dealing with the granting of special exceptions in Baltimore Gounty:,

“502.1 — Before any Special Exception shall be granted, it must appear that the use for which the Special Exception is requested will not:
a. Be detrimental to the health, safety, or general welfare of the locality involved;
b. Tend to create congestion in roads, streets, alleys therein;
c. Create a potential hazard from fire, panic or other dangers;
d. Tend to overcrowd land and cause undue concentration of population;
e. Interfere with adequate provisions for schools, parks, water, sewerage, transportation or other public requirements, conveniences, or improvements;
f. Interefere with adequate light and air.
502.2 — In granting any Special Exception, the Zoning Commissioner or Board of Zoning Appeals upon appeal, shall impose such conditions, restrictions, or regulations as may be deemed necessary or advisable for the protection of surrounding and neighboring properties. The owners, lessees or tenants of the property for which a Special Exception is granted, if required by the Zoning Commissioner, or Board of Zoning Appeals, upon appeal, shall enter into an agreement in writing with said Zoning Commissioner and/or the County Commissioners of Baltimore County, stipulating the conditions, restrictions, or regulations governing such Special Exception, the same to be recorded among the land Records of Baltimore County. The costs of such agreement and the cost of recording thereof shall be borne by the party requesting such Special Exception. When so recorded said agreement shall govern the exercise of the Special Exception as granted, as to such property, by any person, firm or corporation, regardless of subsequent sale, lease, assignment or other transfer.”

In Turner v. Hammond, 270 Md. 41, 60 (1973) the Court of Appeals said: “The property owner [applicant for a special exception] has a prima facie right to enjoy the benefits of the special exception if he brings himself within the specific requirements of the ordinance”. In Anderson v. Sawyer, 23 Md. App. 612 (1974) this Court, speaking through Judge Davidson, discussed the applicable standards for judicial review of the grant or denial of a special exception, as explicated by numerous decisions of the Court of Appeals, including Turner v. Hammond, supra. Judge Davidson said, at 617:

“The conditional use or special exception is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan.
Whereas, the applicant has the burden of adducing testimony which will show that his use meets the prescribed standards and requirements, he does not have the burden of establishing affirmatively that his proposed use would be a benefit to the community. Rockville Fuel, supra, at 257 Md. 191, 262 A. 2d 503. If he shows to the satisfaction of the Board that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material. If the evidence makes the question of harm or disturbance or the question of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the Board to decide. But if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an application for a special exception is arbitrary, capricious and illegal.”

Applying these standards to the case before us we find that the Board’s action in denying the special exception for a day camp was unsupported by substantial evidence and was not fairly debatable. We shall-therefore affirm the judgment of the trial court reversing that action.

Kiwanis’ purpose in acquiring the 51 acres was described by Mr. Walter E. Williams, a member of the Kiwanis committee “that worked on the acquisition of the farm property”:

“. .- . When the club became aware that Mr. .Baublitz, the former owner of the farm, was interested in selling the farm, we as a property owner were concerned about what would happen to this 51 acres, as I am sure everyone else in the neighborhood was concerned. We felt that the area which is now a golf course on one side, and our pool on the other, and generally an open space area, should be preserved.
For this reason we became interested in acquiring the farm, both in terms of our concern, I think for our own property value, but also in concern for the area in which we are situated. We felt that keeping this space, which now consists not only of our own but also other open areas and open space, would be a real community service.
Therefore we negotiated with Mr. Baublitz, who had indicated that he might sell the property to developers.
He gave us, however, the first option to buy, and we purchased the property for the purpose of preserving open space at that time.
Q. What are the plans that the committee has developed, and what did they do in anticipation of being able to operate a day camp?
A. Well, we felt that as part of this operation that the space should be used in some way that would be useful for the community, and investigated a number of things. We made trips to day camps, we made a trip to a Kiwanis camp that is in Richmond, Virginia.
Since it was a farm, we talked with the County extension agents as to the possibility of potential uses to maintain it as a farm setting.
Q. (By Mr. Reiter) Out of curiosity, was this investigation made after you purchased and settled for the property?
A. It was concurrent. We did not purchase the property until we felt that there would be some useful purpose served for the community.
The final decision regarding using it as a day camp, however, was after we purchased it, but as part of our purchase we felt there would have to be some use of the property to meet some of the expenses of having purchased this open space, — mainly the mortgage.”
“. . . We also considered utilizing the property for senior citizens, for their benefit, which is another one of the aims of Kiwanis at this time. We decided that the most practical thing to do, and also something of value to the community, was to create a day camp for children from 7 to 11, as there do not appear to be these kind of resources, to any large degree, in Baltimore County.
Q. (By Mr. Reiter) Girls and boys?
A. Girls and boys, yes. We also decided that it would be most appropriate to preserve the farm atmosphere that exists already, in terms of preserving the environment as it now exists, and therefore we could continue to have some modest kind of farm operations, like planting corn and perhaps one or two, maybe more, animals, — that would preserve a farm setting for both senior citizens, perhaps to come to, have a regular activity, a day-to-day camp for 8 weeks a year, Monday through Friday, and not on the weekends.
This would be for not more than, and this really boggles our imagination, to expect to get 150 campers. We anticipate, in reality, that it would be somewheres between 50 and 100 campers who would utilize the property.
We would have these campers do things, like plant trees and do other things that would improve the environment, and we would supervise groups, we would permit the Boy Scouts to come into the property and perform that activity, insofar as programs.
All of this would be done under the supervision and control of a full-time manager, at the property, whose responsibility would be to see that these activities were controlled, that they did not create any problems for anyone, and would not in any way be a detriment to the neighborhood.” (Emphasis supplied.)

Mr. Henry F. Krautwurst, “hired as a camp director for our hopefully day camp on our Kiwanis Farm” testified further concerning the proposed operation of the day camp:

“Q. Will you give the Board the benefit of what you would hope, what kind of operation you would hope to have and the program for the children, and how it would be conducted, and so forth?
A. Okay. The program is based as a day-camp operation. It is intended that the children will arrive in the morning around 9:00 o’clock, and spend the entire day at the farm, and leave at 1:00 in the afternoon.
When they arrive, we start out, I imagine, with swimming lessons in the morning. Then the day would progress and we would have activities like different types of ball games, softball, volleyball, badminton, archery, nature studies, arts and crafts, and some supervised free activity on the farm.”
“Q. (By Mr. Reiter) What are your projections for your camp, for its use, the numbers and quantities?
A. If we can get 50 children out there and keep it at 50 children, I think we will be going good for a while, insofar as the day-camp program is concerned.
Q. Do you have any input as far as the economics of it is concerned, is that a feasible number?
A. Let me refer to some information.
Now the camping season is 8 weeks long. As long as we keep our enrollment at 50 campers per 2-weeks’ session, that will give us an overall total number of 200 campers for the summer.
Q. (By Mr. Trimble) Fifty for 2-week sessions, with U sessions, that would he 200 children. So that would be 200 children that would pay for the summer!
Q. (By Mr. Parker) Actually it would be your optimum number at any one time, 501
A. That is what we are striving for.
Q. On any given day you would want 501
A. Yes. That is the way I can see it, and that is the direction in which we are going.”
“Q. Do you have any plans, incidentally, for the transportation, if we have a day camp?
A. Yes, we had planned on using a school bus.
Q. They, the children, would accumulate at some church, and come out on the bus?
A. Yes. We would prearrange pickup points and pick the children up, and bring them out to the camp in a school bus.” (Emphasis supplied.)

In denying the special exception for the day camp, the majority of the Board gave as its only reasons: “It would seem inequitable to extend the quasi-commercial use of this property further until such time as the Kiwanis Club has proved itself to be good neighbors by the proper operation of the swimming pool and community building. The Petitioner, from the evidence presented, does not seem able to assure the principles set out in Section 502.1. Same are necessary if this special exception is to be granted.” (Emphasis added.) We are not told by the Board which, if any, of the specific requirements of Section 502.1 the proposed use of the property fails to meet.

We hold that there was no substantial or probative evidence warranting the Board’s conclusion. On the other hand, there was evidence from the Baltimore County Office of Planning and Zoning that the “requested use is compatible with the surrounding land use character”; evidence from an expert real estate appraiser, familiar with the area, “that this land, this total acreage, to be in the hands of the Kiwanis Club, to be developed in the way it is proposed to be developed, will enhance the value of the adjoining properties”; and a report from the Board of Education of Baltimore County that the special exception would result in “no adverse effect on student population.” There was also affirmative evidence from the Maryland State Department of Health and Mental Hygiene that the day camp would not be “detrimental to the health, safety, or general welfare of the locality involved” and would not “tend to overcrowd land and cause undue concentration of population”.

The chief concerns of the protestants seemed to be a fear that, since the property was not served by public water and sewer facilities, the water taken from the Kiwanis’ wells would eventually cause a deficiency in the water supply of neighboring properties, and that the Kiwanis’ sewerage facilities are inadequate to prevent overflowing the septic system, potentially causing health problems in the form of pollution of neighboring well water and streams.

With respect to the water supply, the evidence is that water is supplied from two drilled wells, one 373 feet deep and the other 342 feet deep, and that Kiwanis has never had any problem with water supply for its operations on the property. There was no probative evidence that Kiwanis’ use of its wells has had any adverse effect on the wells of any adjoining properties, or that the day camp would have any such effect.

With respect to Kiwanis’ sewer system, there was evidence that in the summer of 1973 there was “a sewerage overflow at the swimming club”. It is uncontradicted, however, that this was accidentally caused by heavy trucks running over and crushing a portion of the underground system. The system has been repaired by installing “a brand-new distribution box” and “all new piping” and “an additional seepage pit”, making a total of seven seepage pits. A report from the Department of Mental Health and Hygiene, made before the seventh pit was installed, stated:

“Except for a period when only two of six seepage pits were working following the accident, the six pits have satisfactorily taken the sewage load of existing populations at the pool. A plan is soon to be set in motion to put in an additional seepage pit. A total of seven pits will insure proper sewage disposal at this location. Such plans and installations are subject to approval of the county health authorities.” (Emphasis supplied.)

One of the protestants testified that his examination of the applicable provisions of the Baltimore County Plumbing Code and information he obtained from “local well drilling companies” led him to the conclusion that granting the special exception (including the swimming pool and community building) would result in the “probability that the present ground water table will be lowered to a point where many adjacent property owners’ well will run dry” and “the probable inability of the ground to absorb 36,500 gallons per day of sewage and swimming pool waste will result in pollution of the present spring fed stream located at the rear of the property”. As we have noted, there is no evidence that those feared conditions presently exist, nor indeed that there is more than a possibility (as opposed to probability) that they will ever exist. Under the circumstances such fears cannot be deemed substantial or probative evidence supporting the Board’s denial of the special exception. Montgomery County v. Merlands Club, 202 Md. 279, 291-292 (1953).

Most of the testimony before the Board concerned that portion of the special exception relating to the community building and swimming pool. As we have stated, there was no appeal by any of the protestants from the granting of that special exception. There was much testimony by the protestants concerning the traffic congestion caused by the swimming pool operation and the expressed fear that the day camp would make a bad situation worse. A report in evidence from the Baltimore County Department of Traffic Engineering stated that “No major traffic problems are anticipated by the requested special exception for a community building, swimming pool, and outdoor recreational club [including a quasi-public day camp for Kiwanis Club]”. In view of the fact that the day campers are to be transported in buses or car pools it seems patent that granting the special exception could hardly be said to “tend to create congestion in roads, streets, therein”. (Section 502.1b). In addition, we note that there are many uses permitted as a matter of right in an R.D.'P. zone (without the requirement of a special exception therefor) which would undoubtedly create as much or more traffic than a day camp, operating eight weeks of the year with 50 children on 75 acres at any one time. Among these permitted uses are “one-family detached dwellings”, “Hospitals” and “Schools”. As we said in Gowl v. Atlantic Richfield Co., 27 Md. App. 410, 417 (1975):

“We recognize that traffic impact is a sufficient basis to deny a zoning application, including an application for a special exception. Templeton v. County Council, 21 Md. App. 636, 321 A. 2d 778 (1974); Temmink v. Board of Zoning Appeals, 212 Md. 6, 128 A. 2d 256 (1956); Hardesty v. Zoning Board, 211 Md. 172, 126 A. 2d 621 (1956). But traffic impact on an application for a special exception ought to be measured against that which could arise under permissible use, and not merely on existing traffic loads around the undeveloped premises. Where, as here, the potential volume of traffic under the requested use would appear to be no greater than that which would arise from permitted uses, we believe it arbitrary, capricious and illegal to deny the application for special exception on vehicular traffic grounds.”

With regard to the Board’s statement that permission to operate the day camp should await “such time as the Kiwanis Club has proved itself to be good neighbors by the proper operation of the swimming pool and community building”, we can only assume the Board has in mind the possibility that Kiwanis will not abide by the restrictions placed upon it by the Board’s order granting the special exception for the swimming pool operation on the 24 acres.* 2 These restrictions effectively blunted *** what appeared to be the more serious objections to the special exception voiced by the protestants, not only to the swimming pool operation but the day camp as well, those objections being noise from the loud speaker system and the fear of sewerage system deficiencies causing health problems, as well as to some degree the fear of a water deficiency in the area. If an applicant for a special exception meets its burden of satisfying the requirements of Section 502.1, as we think Kiwanis has in the present case, we find nothing in the Baltimore County Zoning Regulations placing upon it the added burden of proving that it will be “a good neighbor”. To impose such a burden can only be termed illegal. To deny the special exception because the Board may think that burden has not yet been met is, in a legal sense, arbitrary and capricious.

While we shall affirm the trial court’s reversal of the denial of the special exception for a day camp, we think it was inappropriate for the court to have itself imposed “conditions and restrictions” upon the use of the property for that purpose. Md. Rule B12 provides that in hearing appeals, such as this, the trial court “shall affirm, reverse or modify the action appealed from, remand the case to the agency for further proceedings, or dismiss the appeal as now or hereafter provided by law”. We do not intimate the conditions and restrictions imposed by the trial court were reasonable or unreasonable. Rather we think the case should be remanded to the Board to, pursuant to Section 502.2, “impose such conditions, restrictions or regulations as may be deemed necessary or advisable for the protection of surrounding and neighboring properties”. The imposition of such conditions in the first instance is properly the function of the zoning authorities rather than that of the courts.

Order reversing denial of special exception affirmed; case remanded for further proceedings conformable to the views expressed in this opinion.

Costs to be paid by appellants.

      . Pursuant to other provisions of the regulations the Board of Zoning Appeals is now known as the County Board of Appeals, with all the powers and functions of the Board of Zoning Appeals.

      . One member of the three-member Board dissented.

      . These restrictions were:
      “1. That all operations and activities of any kind shall cease upon the subject property no later than 11:30 p. m. each day.

        2. The public address system shall not operate after 10:00 p. m. except in the case of clear emergency. The public address system must be controlled at all times under the close supervision of the pool manager so as not to create a nuisance in the community.
      3. That a site plan be approved by the Department of Public Works and the Office of Planning and Zoning, and any other pertinent County agencies.
      4. The Health Department shall closely monitor the water usage and the proper functioning and full operation of the private sewage disposal system. This Special Exception is contingent upon the property owner obtaining all the necessary permits from the regulatory agencies, particularly the County and State Health Departments.”

      . Perhaps accounting for no appeal by the protestants from the Board’s Order.

      . The same conditions, among others, were imposed by the Zoning Commissioner, who had granted the special exception for the day camp.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    EVELYN W. THOMAS v. BUFORD L. MARSHALL
    [No. 201,
    September Term, 1975.]

      Decided December 2, 1975.

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

      Thomas V. Friedman, with whom were Rosen, Esterson & Friedman on the brief, for appellant.

      No brief or appearance for appellee.
   Powers, J.,

delivered the opinion of the Court.

Several points of procedural interest, but no question of substantive law, are involved in this appeal. The case originated when Buford L. Marshall, an exercise boy at the Laurel Race Track, fell off a horse and was injured. On 17 April 1974 he filed suit in the Circuit Court for Anne Arundel County against Walter L. Worsham and Evelyn W. Thomas, alleging that Worsham, a trainer, engaged Marshall to exercise the horse, and was negligent in failing to warn him of the dangerous propensities of the horse. In a separate count Marshall claimed against Evelyn W. Thomas, owner of the horse, Fred Put Pucker, saying that her trainer’s negligence was imputed to her.

Both defendants were shown by the declaration to be non-residents. Mrs. Thomas was served by registered mail. Worsham has never been served, and is not involved in this appeal.

Within the 60 days permitted to her Mrs. Thomas filed by way of response to the declaration and summons, a letter addressed to the Clerk of the Circuit Court for Anne Arundel County. The principal question in this appeal is whether the letter constituted a plea to the declaration. It said:

“In Compliance with your request, I herewith submit an acknowledgement of the summons at Walter L. Worsham and Evelyn W. Thomas — The Plaintiff being Buford L. Marshall.
“I made a personal appearance at Circuit Court in Anne Arundel County on June 17,1974 to no avail.
“My Trainer in question has had many years of experience and I am satisfied he is not in fault. .
“I am informed the rider in question is a Contract Rider and that he should be experienced.
“Buford L. Marshall was instructed how to exercise the Horse and we consequently feel no personal responsibility.
“Copies are being sent to Plaintiffs Attorney, Melbourne and Goldman, also to Circuit Court for Anne Arundel Co.”

In October 1974 plaintiff filed a motion for leave to amend his declaration by increasing the amount of damages claimed. Leave was later granted by an order of court. The amended declaration was filed on 6 November 1974, with a certificate that a copy was mailed to Mrs. Thomas. She filed no further responsive pleading.

On 25 November 1974 Marshall filed a motion for default judgment against Mrs. Thomas, reciting that she had been served with a copy of the original declaration and summons and had been served by mail with a copy of the amended declaration but that, “the Defendant has failed to file her answer to the Plaintiffs Declaration”, and, “That any rights said Defendant may have had, if any, to respond to the Plaintiff’s Amended Declaration have been relinquished due to her failure to respond to the Amended Declaration within fifteen (15) days as required by Maryland Rule 308.” To the motion for default judgment was appended a certificate that a copy was mailed to Mrs. Thomas.

An order was signed by the court on 2 December 1974 entering judgment by default in favor of Marshall against Evelyn W. Thomas. A notice of that judgment was mailed by the Clerk of the Court to Mrs. Thomas. Maryland Rule 611. On 12 December 1974 counsel representing her filed a motion to strike the default judgment. On 31 January 1975 a hearing was held and the motion to strike was denied. There was no transcript. According to the docket the hearing judge, in denying the motion, granted “leave to enter into the record the testimony of Mrs. Evelyn W. Thomas for use on appeal* ** if any, that may be taken.” The testimony of Mrs. Thomas was taken before the judge on 11 February 1975 and has been made a part of the record before us on appeal. It is irrelevant to the issue, and we do not notice it.

An order for appeal was filed on 24 February 1975, and purported to appeal from the default judgment of 2 December 1974 and from the order of 31 January 1975 denying the motion to strike the default judgment. Upon motion, under Maryland Rule 1013, the lower court thereafter struck, as not timely filed, that portion of the order for appeal concerning the default judgment of 2 December 1974.

We have no difficulty in concluding that the letter filed by Mrs. Thomas constituted an adequate responsive pleading by her to the declaration. A general issue plea in bar in an action ex delicto is sufficient under Maryland Rule 342 b 2 if it says that the defendant “did not commit the wrong alleged.” Maryland Rule 301 c says, in part:

“Any pleading which contains a clear statement of the facts necessary to constitute a cause of action or ground of defense shall be sufficient without reference to mere form * *

The letter was adequate to inform the plaintiff that Mrs. Thomas denied liability when she said that her trainer was not in fault. Indeed the letter went further and alleged facts which could amount to contributory negligence or assumption of risk.

We have carefully compared the letter with the requirements of Maryland Rule 301 applicable to the first pleading filed by a party against whom relief is sought. Of all the formal requirements, the letter in this case lacks only a brief descriptive title indicating the nature of the pleading, § h (for which the word “Plea” would suffice), and Mrs. Thomas’s telephone number, if she had one, § f. Those defects certainly amount to no more than the defects noted by the Court of Appeals in Anderson v. Hull, 215 Md. 476, 138 A. 2d 875 (1958), where it held that a letter written by the defendants to the judge should be treated as a plea.

We hold that the letter filed by Mrs. Thomas in this case was a sufficient plea by her to the declaration, and that she was not in default. The default judgment should not have been entered.

Appellant’s timely motion, under Maryland Rule 625 a, to strike out the default judgment against her required an exercise of discretion by the court. That discretion must be exercised liberally. Hamilton v. Hamilton, 242 Md. 240, 218 A. 2d 684 (1966). The judge erred when he concluded that the letter was not a plea. We are satisfied that this conclusion caused him to withhold the discretionary relief which otherwise he undoubtedly would have granted. The result must be looked upon as an abuse of discretion. Alternatively, we hold that the entry of judgment was an irregularity. Weitz v. MacKenzie, 273 Md. 628, 331 A. 2d 291 (1975).

The motion to strike the default judgment should have been granted. We reverse the order of the lower court and remand the case with instructions that the default judgment be stricken and that the case proceed in the ordinary course from that posture.

Order reversed.

Appellee to pay costs.

      . Such a motion was unnecessary, and not in accord with the practice prescribed by Maryland Rule 320, as amended, effective 1 July 1974.

      . If Mrs. Thomas is deemed to have responded previously, she was under no obligation to respond to the Amended Declaration. Maryland Rule 320 d 8 (b) says:
      “If an original party who has responded shall fail to file an additional response within the time allowed, the case shall proceed and the response previously filed shall be deemed to be a response to the amended pleading.”

      . This order appears to have been entered upon an ex parte submission. The docket does not indicate that there was a hearing. The judge must have accepted the representation in the motion that Mrs. Thomas had failed to file an answer. Such default, had it occurred, would have permitted the entry of judgment under Maryland Rule 310 b, on motion of the adverse party. Marshall did, of course, file a motion. Under Maryland Rule 321 c he was required to serve a copy of the motion, pursuant to Rule 306, on the party affected. His certificate on the motion shows service. Under Maryland Rule 308 she was entitled to 15 days after the filing of the motion to file a response to it. The order entering the default judgment was filed on 2 December 1974, only seven days after the filing of the motion. Solely on the basis of the time allowed for a response to the motion, the entry of judgment was a mistake and an irregularity. Although no such contention has been made, we are aware that Maryland Rule 306 b says that, “Service need not be made on a party in default for failure to appear * * *.” Even if it were felt that Mrs. Thomas’s letter were insufficient to constitute a “plea”, it surely was an “appearance”.

      . This may not be done. In a comparable situation which arose in Jordan v. Morgan, 247 Md. 305, 231 A. 2d 13 (1967) Judge McWilliams said for the Court of Appeals, at 308-09:
      “Judge Bowen thereupon granted the motion for summary judgment and directed the clerk to make the proper entries. Counsel for appellants then was ‘allowed five (5) days within which to file a proffer of the facts he would have included in testimony had he been permitted to take testimony on this point.’ The record extract concludes as follows:
      ‘(Judge Bowen) This proffer is permitted solely for the purpose of completing the record in case the matter is appealed so that the Court of Appeals may have before it those facts which the Plaintiff would hope to prove at a new trial.
      “Judge Bowen’s expedient device for fobbing off evidentiary material on us for primary determination is novel, to say the least. It finds no sanction in the Maryland Rules of Procedure, * *


author: Moore, J.,

text:
    DOUGLAS THOMAS REDMILES, Personal Representative of the Estate of Douglas Thomas Redmiles, Jr. v. CLARA W. MULLER, Administratrix, etc., et al.
    [No. 209,
    September Term, 1975.]

      Decided December 3, 1975.

      The cause was argued before Morton, Gilbert and Moore, JJ.

      Frederick J. Green, Jr., with whom were G. Joseph Sills, Jr., and Lord, Whip, Goughian & Green and Lansdale G. Sasscer, Jr., and Foster H. Fanseen on the brief, for appellant.

      William R. Hymes, with whom was John C. Corbley on the brief, for appellee Robert Dean. Edward P. Camus, with whom were Cam,us & Perry on the brief, for other appellees.
   Moore, J.,

delivered the opinion of the Court.

This appeal involves the application of Maryland’s Boulevard Rule to a motor vehicle accident in which the favored driver and his passenger were killed when his vehicle struck the automobile driven by the unfavored driver while it was obstructing the boulevard. Appellant, the personal representative of the deceased favored driver, contends that it was error for the trial court, in a wrongful death action by the survivors of the deceased passenger, to submit the issue of the favored driver’s alleged negligence to the jury.

I

The fatal two-car crash which claimed the lives of Douglas Thomas Redmiles, Jr., age 18, and his passenger, Terry Ann Moore, age 16, occurred on January 14, 1972 at 11:35 p.m. on U.S. Route #1, just north of the Town of Savage, in Howard County. Thomas and Terry Ann were enroute home from a private social event, Thomas driving in the right southbound lane in his 1966 Plymouth Barracuda. On their left and slightly in front, in the other southbound lane, was a 1965 Chevrolet Impala operated by William E. Welte, age 17V2, who had been to the same social gathering and who had known “Tommy” Redmiles for some three years.

At about the same time, a dark green 1965 two-door Chevrolet sedan was being operated northbound on Route #1 by Robert E. Dean, age 26, accompanied by a passenger, Sandra Wells, age 32. Dean and Miss Wells had spent some time earlier in the evening at the Laurel Hotel in Laurel where each resided. Originally intending to go southbound to a night club in Bladensburg, they had reversed their course and as they drove northbound and neared the Red Rooster, a bar and restaurant and package store located on the west side of Route #1, north of its intersection with Patuxent Range Road, they decided to “drop in.” This necessitated Dean’s making a left turn, across the southbound lane to a parking space at the Red Rooster. He negotiated the turn and proceeded into a parking space in front of the establishment — only to discover that the cars on either side were parked at angles, so that the space could not accommodate the front end of his vehicle. He therefore backed out onto Route #1, perpendicular to the southbound traffic lanes. He testified that his car was equipped with a stick-shift and that, as he backed out, the engine stalled.

Route #1 is a four-lane undivided highway, the northbound and southbound lanes being separated by double yellow’ stripes. It is relatively level in front of the Red Rooster but some 400 feet north of the front door of the establishment is the crest of a hill.

At about the time Mr. Dean was attempting to enter and then to exit the parking space, the Redmiles and Welte automobiles were ascending the hill to the north. Upon clearing the crest, both drivers apparently saw Dean’s car in the right southbound lane. At approximately the same time, each driver forcefully applied his brakes as shown by the length of the skid marks left by the respective vehicles: Redmiles, 234 feet and Welte, 200 feet. After skidding, Welte’s Impala fortuitously veered to the left, traversing both northbound lanes, and the car and driver came to rest, unscathed, at a service station located on the other side of the highway, opposite the Red Rooster.

The same good fortune did not attend Tommy Redmiles and his passenger, Terry Ann Moore. After skidding forward in its own lane, the Redmiles Barracuda turned at least partially perpendicular to its own path and slid sideways another 35 feet (from the end of the 234 foot skid mark) until it struck Dean’s car broadside. Both vehicles were totally wrecked and two other cars parked in front of the Red Rooster were substantially damaged. Tommy and Terry Ann were killed instantly. Robert Dean and Sandra Wells survived.

At the time of impact, according to the testimony of State Trooper Lawrence E. Faries, Jr., Mr. Dean’s dark green Chevrolet was between 4 and 6 feet onto the paved portion of the right southbound lane on Route #1- Dean himself testified that 3 to 4 feet of the rear of his vehicle was in the southbound lane just before impact. William Welte testified that “most of” Dean’s car was blocking the right of the two southbound lanes.

The speed limit at the time was 50 miles per hour. When interviewed by a State trooper on the night of the accident, Welte estimated his own speed at 45 to 50 miles per hour and that of Redmiles at 55 to 60. When he was interviewed the following day these estimates were increased to 50-55 for himself and 65-70 for Redmiles. At the trial he stated, “I still feel it was 50 miles an hour.” Dean’s answer to an interrogatory propounded by the plaintiffs with reference to the speed of the Redmiles vehicle, was read to the jury by plaintiffs’ counsel. Dean had responded that the Redmiles vehicle “appeared to be travelling at a speed at least 80 miles per hour when he first observed it and a speed of approximately 50 miles an hour when it first struck the two parked vehicles.”

Clara W. Muller and Robert E. Moore, as parents of Terry Ann Moore, and Clara W. Muller, as administratrix, brought suit against Douglas T. Redmiles, individually, and as personal representative of his son’s estate and against Robert E. Dean. After a jury trial on December 17, 18, 20, and 23, 1974, judgments for plaintiffs were rendered in the following amounts against both defendants:

$50,000 to Mrs. Muller as Terry’s mother $ 5,000 to Mr. Moore as Terry’s father $1,768.60 to Mrs. Muller as Terry’s administratrix.

Douglas Redmiles appeals from those judgments on alternative grounds. He first charges that the Boulevard Rule required that the trial court direct a verdict in his favor and that its failure to do so requires us to reverse without a new trial. His alternative contention is that even if no grounds for absolute reversal lie, the trial court’s instructions to the jury were so prejudicial as to require a new trial.

Robert Dean took no appeal and, indeed, urges that the judgment below be affirmed. He contends that the Boulevard Rule is not applicable under the facts and circumstances of this case and also that the lower court did not err in its instructions. Appellees Muller and Moore, on the other hand, concede the applicability of the Rule but contend that, within its parameters, there was a violation by the favored driver of a duty to exercise reasonable care for the safety of his passenger. They also argue that the court’s instructions were not erroneous.

We conclude that the Boulevard Rule was applicable and that there was no evidence of negligence on the part of the favored driver which was the proximate cause of the collision. The lower court erred therefore in refusing to grant a directed verdict in favor of appellant Redmiles. We find it unnecessary to consider the question of alleged error in the trial court’s instructions.

II

Mr. Dean’s contentions with respect to the claimed inapplicability of the Boulevard Rule are stated in his brief as follows:

“In the case at bar, there is no evidence that an intersection or any proximity thereto is involved, nor could the Dean vehicle be construed as an ‘unfavored entering driver’. He was clearly attempting to exit from the boulevard and not enter thereon.”

As Judge Scanlan observed for this Court in Tippett v. Quade, 19 Md. App. 49, 309 A. 2d 481 (1973), the Boulevard Rule is “legal shorthand for the judicial construction” of the requirements imposed upon drivers entering or crossing “through highways,” as set forth in Code Art. 66V2, §§ 11-401 through 11-404. As in Tippett, the statutory provision specifically relevant in this appeal is § 11-404 which provides:

“(a) The driver of a vehicle about to enter or cross a highway from a private road or driveway shall stop and yield the right-of-way to all vehicles approaching on the highway.
“(b) The driver of a vehicle entering a paved public highway, which is hereby defined to be a highway having a hard smooth surface composed of gravel, shells, crushed stone, paving blocks, asphalt, concrete or other similar substances, from an unpaved public highway shall stop and yield the right-of-way to all vehicles approaching on the paved public highway.”

The fact situation here, it should be noted, is similar to that presented in Tippett, where we held the Boulevard Rule clearly applicable. There, the unfavored driver, Patricia Quade, parked in front of a food store in order to return some empty beverage bottles. Learning that the bottles had to be delivered to the rear, she backed away from the front of the store towards the highway, Route 5. We found the evidence insufficient to support any claim by Patricia Quade that the accident occurred on the shoulder and not in the travelled portion of Route 5 — an issue not here present — and held that “boulevard section” 11-404 governed the case.

That section is construed and applied in the same manner as the other so-called boulevard sections of the Motor Vehicle Code. See, Grue v. Collins, 237 Md. 150, 205 A. 2d 260 (1964); Craig v. Englar, 11 Md. App. 146, 151, 273 A. 2d 224 (1971) . The “absoluteness” of the application of the Boulevard Rule to unfavored vehicles entering upon through highways was underscored by the Court of Appeals in the familiar case of Creaser v. Owens, 267 Md. 238, 297 A. 2d 235 (1972) where the Court sought to “discourage” the belief that there are “exceptions not already recognized by our case law;” and, more recently in the case of Hensel v. Beckward, 273 Md. 426, 330 A. 2d 196 (1974) wherein the Court was, to its dismay, “once again . . . faced with a case in which the application of the Boulevard Rule is sought to be avoided.” Judge Digges, writing for the Court, stated:

“Like the Rock of Gibraltar we remain firm and will not allow the legislative mandates contained in this right-of-way statute to be judicially either bypassed or otherwise eroded through new waves of attack.” At 427.

In the instant case, it is manifest that appellee Dean’s contentions with respect to the alleged inapplicability of the Boulevard Rule are untenable. It is abundantly clear that although he had exited from the boulevard, he had actually re-entered it at the time the collision occurred, and according to his own testimony, he was unaware that there were parking facilities on the north side of the Red Rooster and intended to re-cross the highway to park on the other side. Neither is there any substance to the claim of Mr. Dean that the Rule does not apply because there was no evidence of an intersection or any proximity thereto. As Judge Lowe stated for this Court in Victor A. Pyles Co. v. Rehmann, 21 Md. App. 686, 321 A. 2d 175 (1974): “The existence of an intersecting street is not a condition to recovery but rather an indicium of whether the road in question is a ‘boulevard’ .... We find no exception indicating impunity for those who enter or cross a boulevard from fields or other curbs where no roadway intersects.” Judge Lowe then went on to state in language strikingly appropriate here:

“It is inconceivable that a rule which has as its primary purpose to expedite the movement of traffic on designated highways, and its concomitant purpose to assure the safety of drivers of motor vehicles, could be interpreted to expedite traffic only at intersections and to protect motorists only at cross roads, but not between them.” (p. 691]

III

Since the Boulevard Rule applies, in order to find that the favored driver was negligent there must be positive evidence of inattention or lack of due care which is not based on “nice calculations of speed, time and distance.” Harper v. Higgs, 225 Md. 24, 36, 169 A. 2d 661 (1961); Brown v. Ellis, 236 Md. 487, 495, 204 A. 2d 526 (1964); Pinchbeck v. Balto. Tank Lines, Inc., 258 Md. 211, 265 A. 2d 238 (1970). Exactly such calculations would be necessary here. Appellee Muller maintains that Redmiles could have avoided the collision by moving “no more than four feet, in a distance of four hundred feet,” and that “[h]ad . .. Redmiles been driving at the speed limit this accident would never have occurred.” It is well settled that a favored driver’s alleged excessive speed does not excuse an unfavored driver from his duty to yield the right-of-way to the favored driver. Hensel v. Beckward, supra, at 427; Creaser v. Owens, supra, at 248; Sun Cab Co. v. Cusick, 209 Md. 354, 121 A. 2d 188 (1956). As to the possibility that Redmiles could have avoided the collision in the manner proposed, this is exactly the kind of calculation proscribed. To require that Redmiles dodge the Dean vehicle would be to disregard the fundamental purpose of the Boulevard Rule — to promote the free and unobstructed flow of vehicular traffic on thoroughfares.

Concerning the applicability of the Boulevard Rule to a suit by a passenger against the favored driver appellee Muller correctly but incompletely notes from Sun Cab Co. v. Hall, 199 Md. 461, 467, 86 A. 2d 914 (1952), that:

“It is true that the driver on a boulevard is not obliged to anticipate that someone will negligently come into his path, but he is not excused from liability to his passengers if someone does come in, and he fails to avoid a collision because he did not look in time to see what was inevitable.”

Chief Judge Marbury’s next sentence was:

“There is testimony in the case before us . . . which would permit the jury to find that had the cab driver been looking, he could have seen the other car entering the intersection, and he could . . . have avoided the accident,. . .”

The distinction here is readily apparent. It is clear that Redmiles saw the Dean vehicle in the road before him and that as soon as he observed the unfavored vehicle he applied his brakes but was unable to avoid the accident. Another leading case relied upon by both appellees is similarly distinguishable. In Harper v. Higgs, supra, the Court of Appeals affirmed a finding of negligence on the part of the favored driver who had failed to observe the unfavored vehicle stalled under a blinker which showed a flashing amber signal to the favored driver. There, the favored driver was talking with passengers in her car and never saw the stalled vehicle until the moment of impact. The Court of Appeals upheld a verdict for a passenger-plaintiff against both the favored and unfavored drivers, observing that without any “nice calculations of time, speed and distance,” the jury could have found from all the testimony that the driver of the favored vehicle might have avoided the accident if she had been maintaining a proper lookout. In the instant case there was no showing that Redmiles was inattentive and the jury could only have reached a result adverse to him by indulging in the type of “nice calculations” to which the Court referred in Harper v. Higgs, supra.

Finally, the contention of appellee Muller in brief and oral argument that the interposition, as a party-plaintiff, of a passenger in the favored vehicle alters the application of the Boulevard Rule is unsupportable. As Judge Scanlan pointed out in Tippett v. Quade, supra, at 59, where the plaintiff was the personal representative of a deceased passenger (in the unfavored vehicle), “the principles which surround application of the ‘boulevard rule’ are the same. ...” A favored driver is under no requirement to anticipate that an unfavored driver will disregard the legislative mandate and except in “rare cases” the proximate cause of the accident is the unlawful intrusion of the unfavored car — and not the favored driver’s speed, Sun Cab Co. v. Cusick, supra; nor his drinking and speeding, Tippett v. Quade, supra; nor speeding and operating at night without lights, Hensel v. Beckward, supra; nor, indeed, the combination of all of those elements, Johnson v. Dortch, 27 Md. App. 605, 342 A. 2d 326 (1975).

There was no rational basis in the evidence and the reasonable inferences to be drawn therefrom, considered in the light most favorable to appellee Muller, upon which the jury could have returned a verdict against appellant’s decedent, the favored driver. Wood v. Abell, 268 Md. 214, 230, 300 A. 2d 665(1973).

Judgment against appellant reversed; costs to be paid by appellees.

      . Miss Wells did not appear as a witness at the trial and the record contains no explanation for her absence.

      . Mr. Dean was called by the plaintiffs below as an adverse witness.

      . Dean explained that the answer to the interrogatory had been prepared by his attorney and that it was based not only upon Dean’s version of what had occurred but also on information supplied to him or to his attorney. Counsel for appellant Redmiles objected to the reading of the response as self-serving but the court permitted it under Maryland Rule 413.

      . Without objection, a directed verdict in favor of Mr. Redmiles individually was granted at the close of plaintiffs’ case.


author: Gilbert, J.,

text:
    SHERMAN ELROY GARDNER, III v. STATE OF MARYLAND
    [No. 210,
    September Term, 1975.]

      Decided December 3, 1975.

      The cause was argued before Morton, Gilbert and Moore, JJ.

      John J. Garrity. with whom were Feissner, Garrity, Levan & Schimel and Edward P. Camus, Public Defender for Prince George’s County, on the brief, for appellant.

      Bruce C. S'pizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and E, Garrison Neal, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Once again we are required to reverse a conviction wherein the facts clearly indicate the guilt of the accused. We must reverse because of the State’s failure to comply with the provisions of Md. Ann. Code art. 27, § 616S (a), the Intrastate Detainer Act. That section provides that an accused who is serving another sentence

. . in any correctional institution under the jurisdiction of the Department [Division of Correction] or whenever any county or city jail receives a detainer against any prisoner serving a sentence in the county or city jail any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State’s Attorney ... of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be filed within 30 days of the prisoner’s notification of any untried indictment, information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.” (Emphasis supplied).

Subsection (c) of § 616S mandates that if the case is not prosecuted within the 120 day period, the trial court has no jurisdiction over the matter, the untried charging document is not viable, and the case must be dismissed with prejudice.

In the instant case the record discloses that appellant was indicted, inter alia, for robbery with a dangerous and deadly weapon. The indictment was handed down by the Grand Jury for Prince George’s County on May 1, 1974. The appellant, Sherman Elroy Gardner, III, was at that time confined for an unrelated offense at the Maryland Correctional Training Center in Hagerstown, Maryland, where he was serving a three year sentence dating from January 15, 1974. The appellant, upon notice of the detainer lodged as a result of the indictment, executed a “Request for an Immediate and Speedy Trial” on May 15, 1974 and it, together with the other information required by Md. Ann. Code art. 27, § 616S (a), was forwarded to the Circuit Court for Prince George’s County. While nearly all other paper writings in the record bear a stamped date indicating when the papers were received for filing, neither the appellant’s request for immediate and speedy trial nor the Division of Correction’s “Certificate of Inmate Status” denotes any such stamping or date of receipt. We observe that the Division of Correction’s “Certificate of Inmate Status” was completed by the Division on May 24, 1974, and that it, together with the appellent’s request for immediate and speedy trial, was filed in the record sometime thereafter, but prior to June 14, 1974, when appellant’s then counsel moved to dismiss the indictment against appellant, seemingly on the basis of our decision in Matter of Trader, 20 Md. App. 1, 315 A. 2d 528 (1974), reversed 272 Md. 364, 325 A. 2d 398 (1974). No contention has been made in this Court by the State that appellant did not fully comply with the requisite terms of Md. Ann. Code art. 27, § 616S. We, therefore, shall presume that there was full compliance.

The threshold question arises as to when the statutory period of 120 days began to run. Because no other date, as we have said, is otherwise indicated in the record, for purposes of this opinion we shall commence the accounting from the date the Certificate of Inmate Status was executed by the Division of Correction, i.e., May 24, 1974. Under that accounting the appellant, absent a continuance for good cause, § 616S (a), was required to have been tried no later than September 21, 1974, but no trial took place on or before that statutorily prescribed date. The trial was not, in fact, commenced until December 17, 1974, or approximately 90 days after the 120 day period had expired.

The State argues that because the appellant, on June 14, 1974, filed a motion to dismiss the indictment on the ground of the unconstitutionality of the Juvenile Waiver Law, formerly Md. Ann. Code, Courts and Judicial Proceedings Art. § 3-808 (4), and the trial court apparently deferred ruling on that motion, pending the decision of the Court of Appeals which had granted certiorari on our decision in Matter of Trader, 20 Md. App. 1, 315 A. 2d 528 (1974). The State then contends that the constitutional attack by the appellant precluded him from seeking dismissal of the indictment because he was not brought to trial within the time prescribed by Md. Ann. Code art. 27, § 616S (a). The State’s argument might be valid if the State, at a hearing in open court, at which appellant or his counsel appeared, had requested a continuance “for good cause shown” bottomed on appellant’s assault upon the constitutionality of the then Maryland Juvenile Waiver Law. If the State did not so request at the hearing, the trial judge might have considered appellant’s motion to dismiss, based upon the allegation that the Juvenile Waiver Act, formerly Courts Art. § 3-808 (4), was unconstitutional, as “good cause” for a continuance pending a resolution of the issue by the Court of Appeals. Neither action was, however, taken. In fact, no hearing was even held on the June 14 motion to dismiss until October 30, 1974, at which time it was denied on the basis of the Court of Appeals’s opinion in Trader, supra, filed September 13,1974.

In Barnes v. State, 20 Md. App. 262, 315 A. 2d 117 (1974), aff'd State v. Barnes, 273 Md. 195, 328 A. 2d 737 (1974), Judge Thompson, writing for this Court, pointed out that

“. . . [W]e apply to the Intrastate Act the liberal construction requirement of Section 616J, in order to encourage expeditious and orderly disposition of outstanding charges against a prisoner then incarcerated under a term of imprisonment. § 616B. . . . Failure to bring the appellant to trial within 120 days from the date of delivery to the State’s Attorney . . . and the appropriate court . . ., requires that the subject indictment be dismissed with prejudice. § 616S (c).” 20 Md. App. at 268.

See also Hoss v. State, 266 Md. 136, 292 A. 2d 48 (1972).

The appellant’s request for trial in the instant case, filed, as we have stated, on May 24, 1974, was, in the words of Judge O’Donnell in State v. Barnes, 273 Md. at 198, “. . . negatively — if not affirmatively — ignored. . . .” The appellant’s motion of June 14, 1974 to dismiss the indictment on constitutional grounds did not, in any way, by the mere filing thereof, ipso facto, toll the running of the 120 day span prescribed by § 616S (a). The appellant’s statutory right, properly exercised by him, was ignored, apparently on the misguided or misdirected belief that the June 14, 1974 motion excused compliance with Md. Ann. Code art. 27, § 616S (a). As we have previously indicated, the motion might have tolled the statute if the requisite hearing prescribed by § 616S (a) had been held and good cause for a continuance had been demonstrated. No hearing was held prior to the time that the statute had run its course.

We believe the closing words of Judge O’Donnell in State v. Barnes, 273 Md. at 213, clearly and succinctly to state our view in this matter:

“We lament the fact that by our decision we are now compelled to discharge one who was convicted by a jury ... [of robbery with a deadly weapon and related charges], but the results are not of our doing. As was cogently observed by Mr. Justice Clark, who delivered the majority opinion of the United States Supreme Court in Mapp v. Ohio, 367 U. S. 643, 659 (1961): ‘ “The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. ... ‘If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ ” ’ Under the facts here, governmental personnel by their laxity and apathy ignored the mandates of the law.”

Just as in Barnes, we have no choice but to reverse this case. We do so by reason of the trial court’s having lost jurisdiction over the case 120 days after appellant properly filed, under Md. Ann. Code art. 27, § 616S, a request for an immediate and speedy trial. The State’s laxity or mistaken interpretation of the clear and unambiguous provisions of § 616S leaves us with no alternative.

Judgments reversed.

      . By Laws 1975, ch. 554, former Courts and Judicial Proceedings Article § 3-808 was repealed and reenacted as Courts Art. § 3-804(d). Courts Art. § 3-808 as reenacted is now concerned solely with the question of venue. Those provisions of Courts Art. §§ 4-501 — 4-530 which prescribed a different form of treatment of persons alleged to be juvenile offenders^ in Montgomery County, were repealed by Laws 1975, ch. 554, § 2, effective July 1,1975.

      . The State correctly observed that “. . . the record is silent as to the cause of the delay in ruling on the original motion to dismiss. . . .”

      . Now Courts Art. § 3-804 (d). See n. 1, supt a.

      . id.


author: Lowe, J.,

text:
    ARTHUR TREACHER’S FISH & CHIPS OF FAIRFAX, INC. et al. v. CHILLUM TERRACE LIMITED PARTNERSHIP
    [No. 251,
    September Term, 1975.]

      Decided December 3, 1975.

      The cause was argued before Moyi.an, Powers and Lowe, JJ.

      Harvey R. Clapp, HI, with whom were Venable, Baetjer & Howard on the brief, for appellants.

      Stanley H. Kamerow, with whom were Kamerow & Kamerow on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Our opinion of the Court of Appeals’ opinion in the first appeal of Arthur Treacher’s v. Chillum Ter., 272 Md. 720 is obviously not shared by appellants. The “uncommon issue of when a lease is not a lease” was the liminal question answered in that case, in order to reach the more specific issue of what measure of damages should be used upon breach of a lease, the term of which had not yet begun.

Appellee, Chillum Terrace Limited Partnership (Chillum) had agreed with appellant, Arthur Treacher’s Fish & Chips of Fairfax, Inc. (Fairfax) to renovate its building to conform to a national image of restaurants'operating under the trade name of “Arthur Treacher’s Fish & Chips.” At the conclusion of the renovation a ten year lease was to commence at an annual rental of 10% of all gross sales but not to be less than $22,000.00 per year. Appellant, National Fast Food Corporation (National) guaranteed Fairfax’s compliance with the lease agreement. When the renovations (estimated to cost Chillum $45,000 to $50,000) were approximately one-third completed (in dollars expended, $17,500) appellants breached the agreement by notification of its cancellation and voidance.

The Court of Appeals found that the agreement breached was “both an executory contract and a present conveyance, creating between the parties both privity of contract and of estate.” Id. at 727.

“It follows from the application of these principles to the instrument in this case that the trial judge was correct in holding that it was a lease. He should have ruled, however, that it was merely a present conveyance of a future leasehold interest, the term of which was to commence in futuro, following completion of the improvements. Since a future leasehold interest was created which never became possessory, the allowance of unpaid rent was not a proper remedy. Nevertheless, as we have already intimated, the lease agreement was also a contract, the breach of which entitled appellee to damages appropriate to such cases.1 ”
Id. at 729.

The footnote indicated by the Court read:

“We find it unnecessary for our purposes to draw a distinction between an agreement to enter into a lease and a lease which has not yet become possessory, since, in either event, the measure of damages, being governed by contract principles, is the same.”

Judge Levine, writing for the Court, then turned to what proper measure of damages should be applied where a proposed tenant has breached either a lease prior to the commencement of its term or a contract to make a lease. Indicating that the question was one of first impression in Maryland, Judge Levine found that the trial judge erred in awarding actual rent from the anticipated completion date to the date suit was filed with the implication that future rent would be collectible as it accrued. He proceeded to review authorities elsewhere and concluded:

“We shall follow the general rule, therefore, and adopt as the proper measure of damages to be applied in this case the excess of the rent reserved under the lease agreement over the reasonable rental value of the premises at the time of the breach in November 1971. With the support of two courts and the tacit authority of three others, and finding none to the contrary, we are persuaded to define reasonable rental value as that sum which the proposed lessor, by the exercise of reasonable diligence, could have obtained or did obtain as a rental from others during the entire term of the lease.” Id. at 731. (Emphasis added).

Recalling that, at the trial, Chillum had offered testimony of three alternative methods of assessing damages, Judge Levine noted:

“From our perusal of the record, we find support for appellee’s contention that, in an apparent excess of caution, it also presented sufficient proof to support this measure of damages. But, since the determination of reasonable rental value is one to be properly made by the trier of fact, we shall remand the case for that purpose. In light of what we have said concerning the record, no further evidence need be entertained by the circuit court.”
Id. at 731.

Upon remand, the case was fully briefed and argued. The trial court held that the reasonable monthly rental value of the lease was $1,000.00, leaving a difference of $833.33 from the minimum guaranteed under the breached lease agreement. By multiplying this monthly loss, by the 120 month term of the lease, the judge arrived at a damage award of $99,999.60. It is from this atyard upon remand appellants come to us.

I

Appellants complain first that:

“THE TRIAL COURT ERRED IN ITS MEASUREMENT OF CONTRACT DAMAGES BY RELIANCE ON TESTIMONY NOT RELEVANT TO REASONABLE RENTAL VALUE AT THE TIME OF THE BREACH.”

Although replete with offshoots, appellants’ main thrust is at the testimony appellants assume the trial judge relied upon in determining the reasonable rental value:

“Q Now, what, in your opinion, Mr. Poretsky, was the reasonable rental value of the property on February 1, 1972, assuming you had completed construction of the building as required by the lease, and assuming that these defendants had breached and refused to take possession?
A That’s a very difficult question because its rental value depends entirely upon getting an interested tenant for this particular building.
Therefore, it’s a guess on my part, and I would guess about a thousand dollars a month; if I could find a tenant who wanted that building.”

Appellants point out that the question presupposed the completion of the building in the Arthur Treacher image and fixed February 1, 1972 as the date from which the expert was to determine a reasonable rental, rather than using the “reasonable rental value of the premises at the time of the breach in November 1971”, as directed by the Court of Appeals. Citing M & R Builders v. Michael, 215 Md. 340, 354 appellants contend that:

“[i]t should not have been assumed by the Trial Court that Appellee would have proceeded to renovate its building in the image desired by Appellant Fairfax. Such an assumption is in open opposition to the damage rule prohibiting recovery of losses from ‘avoidable consequences’.”

We find M & R inapposite to the question here. M&R was speaking with respect to minimization of damages in a purely contractual sense. In holding that the “ordinary rule” of contract law was that “damages are not recoverable if the consequences of a breach are avoidable”, Judge Horney went on to explain for the Court:

“In other words, a plaintiff is not entitled to a judgment for damages for a loss that he could have avoided by a reasonable effort without risk of additional loss or injury.” M & R Builders, 215 Md. at 354-55.

Even assuming that general rule is applicable, appellants did not read quite far enough. Judge Horney went on to say that:

“In any event the burden of proving that losses could have been avoided by reasonable effort and expense is upon the party who broke the contract.”
Id. at 356.

Appellants point to no evidence indicating that the losses arising from their breach could have been avoided by reasonable effort and expense.

But more significantly, we think, is the foundation of appellants’ erroneous contention, i.e., that “[i]t should not have been assumed by the Trial Court that Appellee would have proceeded to renovate its building in the image desired by Appellant Fairfax.” Obviously that is precisely what was intended by the Court in the first appeal of this case. By using the rental under the lease as part of the damage equation, a building conforming to description of the leased premises is necessarily contemplated. It follows that the language “reasonable rental of the premises at the time of the breach” also assumed the premises to have been improved in accordance with the agreement upon which the rent was reserved under the lease. To view it otherwise would require that the court determine the “reasonable rental value” of a partially demolished building, with two-thirds of its restoration complete, and subtract that from the “rent reserved under the lease agreement.” The result would hardly be beneficial to appellants and the formula implausible if not absurd.

Appellants’ alternate argument is equally untenable. Because the fair market value of the land alone was estimated at $160,000.00, and evidence elicited on cross-examination that a reasonable rate of return on land was 10%, appellants contend that the trial judge should have based the reasonable rental value on the rental value of the land alone. This overlooks two basic factual predicates. First, there is no evidence of a market of lessees who would rent vacant land. Secondly, it ignores the fact that when this land was rented to appellants it was improved by a valuable, recently used restaurant building, which was gutted only upon the strength of the lease later breached by appellants.

II

“THE TRIAL COURT ERRED IN ITS DECISION TO AWARD FUTURE CONTRACT DAMAGES NOT REDUCED BY THE COST SAVINGS AFFORDED APPELLEE NOR DISCOUNTED TO THEIR PRESENT VALUE AT THE TIME OF THE CONTRACT BREACH.”

Appellants’ next arguments presumably anticipated that we would affirm the trial court’s estimation of the reasonable rental value based on the building’s completion for the purpose of applying the equation directed by the Court of Appeals. They say that since appellee has not actually expended the full estimated cost of the renovation, we should credit appellants with the value of that which is left to be done. Using testimony showing actual expenditures by appellee of $17,600, as against estimated completion costs of $45,000 to $50,000, the difference of $27,400 or $32,400 should be credited to them and reduce the $99,999.60 commensurately.

The contention at first blush has certain beguiling aspects. However, appellants fail to explain why it is they who should benefit. They simply argue that, “[i]f Appellee is to be awarded the benefits of this [breached] bargain, its saved expenditures which would have provided such benefits must be subtracted from the award.” They based this upon the premise that Chillum is not entitled to be put in a better position than it would have been if the contract had not been broken, citing Tidewater Oil Co. v. Spoerer, 145 Md. 151.

Appellants overlook the fact that, at the time of the lease agreement, the premises were improved by a completely equipped rentable restaurant. As a result of the agreement, the equipment had been removed and disposed of, and the building gutted and partially demolished to such extent that the cost to restore it to a rentable condition was estimated to range from 40,000 to 45,000 dollars. Leaving appellee with the “benefit” of the value of the renovation not yet completed hardly places it in a better position than it would have been if the agreement had not been broken. The estimated cost to restore the building to its former (or presumably, an equivalent rentable) condition exceeds what it would have cost to complete the intended renovation.

Appellants further contend that the ultimate award should be “discounted to present value.” By this, appellants mean that since the rental under the lease would have been spread over the ten year term, to provide appellee with the full damages for the ten year lease in one lump now gives it the benefit of the use of the money over the next decade that it would not have had under the lease. Since appellee is not entitled to be put in a better position than it would have been had the contract not been broken, argue appellants, again citing Tidewater Oil Co., supra, the trial court should have discounted the award to its present value.

Even if we had been shown Maryland authority for this principle to be applied in cases relating to “leases which are not leases,” we have a specific mandate by the Court of Appeals of “the proper measure of damages to be applied in this case” (Emphasis added) which does not include a direction to discount the award to present value. Further, the absence of any direct evidence of that process in the original record would indicate that the Court of Appeals did not contemplate its application by the trial judge on remand since the Court expressly agreed with appellee Chillum that it had:

“.. . presented sufficient proof to support this measure of damages.. ..”, Arthur Treacher’s, 272 Md. at 731,
and that:
“... no further evidence need be entertained by the circuit court.” Id. at 731.

Judgment affirmed.

Costs to be paid by appellants.

        . Appellants do not contend directly or inferentially that there was any fluctuation in the “reasonable rental value” during the two to three months between November 1971 and February 1,1972.

      . The Court of Appeals described the condition of the premises when the November cancellation interrupted the work:
      “... appellee had commenced to demolish portions of the existing structure, and had removed the equipment which had remained on the premises following the departure of the previous tenant. Upon receiving the building permit, appellee began the reconstruction process. This work was interrupted ... .” Arthur Treacher’s v. Chillum Ter., 272 Md. at 724.


author:
      Lowe, J.,

      Davidson, J.,

text:
    THEODORE F. HANS et ux. v. FRANKLIN SQUARE HOSPITAL et al.
    [No. 263,
    September Term, 1975.]

      Decided December 3, 1975.

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

      Marvin Ellin and Jon W. Brassel for appellants.

      Robert H. Bouse, Jr., with whom were Anderson, Coe & King on the brief, for appellee Joseph B. Sindelar. E. Gunnn Miller, with whom were Donahue & Ehrmantraut on the brief, for appellee Karle Koh.
   Lowe, J.,

delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 339 infra.

Most evidentiary presumptions, or permissible inferences, when traced to their inception are nothing more than reasonable conclusions that may (or must) be drawn from circumstances. For example, the doctrine with the frightening epithet res ipsa loquitur — the thing speaks for itself — is nothing more than an inference or presumption from the facts of a case that a defendant’s act caused the injury. Where the instrumentality causing injury is shown to be under the control of a defendant and the injury is such that, in the ordinary course of events, it would not have happened if those in control of the instrumentality had used proper care, the doctrine of res ipsa may be a substitute for hard evidence sufficient to permit a jury to decide the question of negligence. Cf. Weilbacher v. Putts Co., 123 Md. 249, 265-266.

In the opinion of David M. Harney, expressed in his text Medical Malpractice, “ . . . nowhere is the doctrine [of res ipsa loquitur] needed more than in the malpractice action.” He explains his reasoning for that conclusion:

“One of the most pervasive legal problems in these cases is the issue of causation. Did the physician’s (or hospital’s) act or failure to act really cause the injury? Often the facts which reveal professional negligence will not establish the requisite legal cause. Because the practice of medicine is itself the application of an inexact science, the proving of medical malpractice, causing untoward results, is by necessity also inexact. The doctine of res ipsa loquitur facilitates such proof.” Harney, Medical Malpractice, Sec. 4.3, p. 173.

A classic example of the application of this doctrine in the medical malpractice field is the California case of Ybarra v. Spangard, 25 Cal. 2d 486. There, the plaintiff underwent an appendectomy and awoke from anesthesia with a severe continuous pain between neck and shoulder. He had no evidence of how, or by whom, the pain was caused; only that it was of traumatic origin and that he did not have it when he entered the operating room, but did have it immediately upon awakening. The gravamen of the action was that the injury was sustained in a part of the body not directly involved in the surgical procedure. The California court held that such a case comes more fully within the reason and spirit of res ipsa loquitur than any other:

“ ‘ ... it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone’s negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily choose to disclose the identity of the negligent person and the facts establishing liability. . ..’ "Id. at 490.

Similarly, in the State of Washington res ipsa loquitur was found applicable where a woman patient undergoing a hysterectomy suffered paralysis of her arm due to a brachial plexus injury. Horner v. Northern Pac. Etc. Hosp., 62 Wash. 2d 351.

Theodore F. Hans, an appellant here, was not so fortunate. He too entered the hospital for an operation on his lower anatomy (a hemorrhoidectomy) and awoke to full consciousness with his right arm and hand paralyzed from “ . . . ulnar nerve palsy — probably due to [operating] table position with arm up over head.” Although Judge Paul A. Dorf permitted a jury of the Baltimore City Court to consider the case, when the jurors failed to agree, the judge granted judgment n.o.v. rather than a new trial. Since he found that no express evidence had been produced by appellant to show that appellees (or either of them) were negligent, his ruling was correct in light of the present state of medical malpractice law in Maryland.

In Bettigole v. Diener, 210 Md. 537, 541, an action for an injury to a facial nerve during a mastoidectomy causing paralysis to one side of the plaintiffs face, the Court said:

“It is clear under the Maryland authorities that in an action for malpractice the burden of proof is upon the plaintiff to show a want of proper knowledge and skill. . . . The doctrine of res ipsa loquitur does not apply.”

Later, in Lane v. Calvert, 215 Md. 457, 462-463, where it was contended that a doctor was guilty of improper postoperative treatment, Chief Judge Bruñe said for the Court:

“It is well established by the case law in this State that the mere fact that an unsuccessful result follows medical treatment is not of itself evidence of negligence. . . . Nor does the doctrine of res ipsa loquitur apply.”

The Court’s rejection of res ipsa loquitur in medical malpractice cases emanates from State, use of Janney v. Housekeeper and Gifford, 70 Md. 162, 171 where the Court said:

“It was the duty of the professional men to exercise ordinary care and skill, and this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed on them, negligence cannot be presumed, but must be affirmatively proved....
This principle is especially applicable in suits against physicians and surgeons for injuries sustained by reason of alleged unskillful and careless treatment. The burden of proof is on the plaintiff to show a want of proper knowledge and skill.”

Those general principles of negligence law which the Court found to be “especially applicable against physicians and surgeons” were repeated over the years in Dashiell v. Griffith, 84 Md. 363; in Miller v. Leib, 109 Md. 414, etc. Finally, in Streett v. Hodgson, 139 Md. 137, the Court was called upon to decide “whether the maxim res ipsa loquitur, applies” to a suit for injury from the negligent use of an X ray machine. Judge Adkins wrote for the Court that:

“The reasoning of the courts which hold that the maxim does not apply in such cases seems more in consonance with the principles governing the relations generally between physicians and patients as announced by this Court in numerous cases. See State, use of Janney v. Housekeeper, 70 Md. [162] 171; Dashiell v. Griffith, 84 Md. [363] 380; Miller v. Leib, 109 Md. 414. At any rate, in the absence of evidence from which, without speculating, the jury could draw a reasonable inference from the mere happening of such an accident, it should not be permitted to infer negligence from the occurrence alone. ” [Emphasis added]. Streett v. Hodgson, 139 Md. at 149.

Later cases add but little to our enlightenment although Angulo v. Hallar, 137 Md. 227, 233 includes in the burden placed upon a plaintiff in a malpractice case,

“ . . . the necessity of showing that the professional acts of the defendant, which are alleged to have produced the injury complained of, did in fact cause such injury.”

If Judge Adkins’ phraseology in Streett left us with any doubt whether there might be such shocking evidence of injury from which a jury could infer negligence from the occurrence alone (“without speculating”) the added weight of Angulo closed the door. See also State v. Eye, Ear, Etc., Hospital, 177 Md. 517, 526-527.

Maryland is clearly among the more substantial number of states having rejected the doctrine of res ipsa loquitur in actions against physicians and allied health personnel, rather than among those who have accepted the doctrine. See generally Anno, “Physicians and surgeons: res ipsa loquitur, or presumption or inference of negligence, in malpractice cases,” 82 A.L.R.2d 1262. Whatever the merits of the application of res ipsa loquitur to the facts in this case, it is beyond our authority to decide contrary to clearly established law set forth by the Court of Appeals. We are bound by stare decisis. The Court of Appeals, however, is not so bound. In Hearst Corp. v. St. Dep’t. of A. and T., 269 Md. 625, the Court of Appeals repeated its language in White v. King, 244 Md. 348:

“ ‘The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life,’ ” Hearst Corp., 269 Md. at 643-644.

That prerogative to change its mind was not extended to us. Therefore, being bound by the repeated refusal to apply the doctrine of res ipsa loquitur to medical malpractice cases, we are limited to reviewing the evidence in the eight hundred page transcript to determine whether there is a sufficient “showing that the [appellees’] failure to observe the proper standard was a direct cause of the injuries about which [appellant] complains in the malpractice action.” Dunham v. Elder, 18 Md. App. 360, 363.

In reviewing the lower court’s ruling upon motion for judgment n.o.v., the Court must resolve all conflicts in favor of the non-moving party (appellants) and must assume the truth of all evidence and of all inferences fairly deducible therefrom which tend to support the non-moving party’s right to recover. If there is competent evidence, however slight, tending to support the non-moving party’s right to recover, we must reverse the judgment n.o.v. entered by Judge Dorf. Hagan v. Wash. Sub. San. Comm’n., 20 Md. App. 192.

Evidence of Negligence

Had appellant been entitled to invoke res ipsa loquitur, once he proved that he had entered the operating room for a hemorrhoidectomy whole and healthy and returned therefrom with a paralyzed arm and a claw hand, appellees would have been compelled to offer exculpatory evidence if they hoped to dissuade the jury from the inference of negligence. Because he recognized that he could not rely on res ipsa in Maryland to compel an explanation by appellees (i.e., that “Negligence cannot be inferred from the occurrence alone.” Bettigole, supra), appellant produced medical expert testimony of what probably caused the paralysis. He did so by introducing into evidence appellee Dr. Sindelar’s record of the postoperative note stating that appellant

“ ‘ . . . has definite ulnar nerve palsy — probably due to table position with arm up over head.’ ”

He also produced two doctors who qualified as expert witnesses. Both were presented with hypotheses encompassing the facts of the operation as shown by medical records, etc. and each expressed the opinion that the hypothetical facts did not represent adequate care in conforming with the standards of the community. However, when they had so opined in the prescribed legal jargon, neither was able to point to a single negligent act which contributed to the injury. Although Dr. Price postulated that

“ ... it happened because of pressure against the ulnar nerve exerted either by an arm-board, on which the arm was lying with the weight of the patient pressing down, or quite possibly aggravated by the presence of the blood pressure cuff, if it was on that arm.”

he admitted that the operative position was an accepted and usual one, that the records indicated nothing of an unusual nature and he concluded that there was a lack of proper care because:

“Patients aren’t supposed to come — be allowed to injure themselves, and people aren’t supposed to injure them.”

He admitted that the conclusion was reached because of a lack of explanation as to how the injury actually occurred:

“Well, yes, to the extent that I don’t know what occurred. It’s not in the record, but it is the best explanation that I can make based on the evidence, and based on my experience.”

He had previously stated:

“I don’t think anybody knows what happened.”

Dr. Kitlowski’s conclusion that the injury was the result of a lack of proper care was blatantly expressed in res ipsa terms, i.e., it was negligence because it happened:

“BY MR. ELLIN:
Q Doctor, do you have an opinion whether the care rendered Mr. Hans during this operation conforms to the standards of care in the community?
THE WITNESS: He — it did not conform.
BY MR. ELLIN: Q It did not conform. Why not, Doctor?
A Because he went in to have a hemorrhoidectomy and he came out with a claw hand.”

The necessary antiseptic exclusiveness of the operating room thwarted appellant’s every attempt to find the cause of his injury. His experts could only speculate and surmise what probably had happened which might have been negligent; yet not one scintilla of evidence (nor even a gossamer, Turner v. Hammond, 270 Md. 41, 60) was produced of a negligent act. The experts’ conclusions were necessarily, and admittedly, facilitated by the illogic of the sine qua non that a paralyzed arm is an accepted result of a hemorrhoidectomy, which is simply the converse of the proscribed res ipsa doctrine. A jury may no more infer negligence from the occurrence alone because a witness does so, than it could in the absence of such witness, regardless of the logical simplicity of that witness’s reasoning:

“Because he went in to have a hemorrhoidectomy and he came out with a claw hand.”

We affirm the judgment n.o.v. entered by Judge Dorf and concur in his well reasoned opinion of the present state of the law accompanying that order. In short:

“. . . there must be something more than a showing that the evidence might be consistent with the plaintiffs theory of the cause of [injury].” State v. Eye, Ear, Etc., Hospital, 177 Md. at 527.

Judgment affirmed.

Costs to be paid by appellants.

Davidson, J.,

dissenting:

I respectfully dissent. In my view, the evidence was sufficient to require the questions of negligence and causation to be resolved by the jury. The trial court erred in granting the motion of judgment n.o.v. Accordingly, I would reverse and remand for a new trial.

      . The phrase stems from a casual remark during argument in an 1863 case in England involving a barrel of flour that rolled out of a warehouse window and struck a passing pedestrian. C. & P. Tel. Co. v. Hicks, 25 Md. App. 503, 509.

      . In California, which is credited with the development of the application of res ipsa loquitur in medical malpractice cases, the supreme court approved a trial judge’s decision not to instruct on res ipsa loquitur, thus conservatively limiting the use of the doctrine to injuries not reasonably related to the operative site. In Siverson v. Weber, 57 Cal. 2d 834, the court said:
      “To permit an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due cafe is used.”

      . Appellee, Dr. Sindelar, who had performed the hemorrhoidectomy, so noted in his office record following a postoperative examination at the doctor’s office.

      . In Bettigole, the appellant stressed a statement in the hospital record which fell short of facts giving rise to negligence. Id. at 541. Here appellant stresses the note in Dr. Sindelar’s record that the “ . . . ulnar nerve palsy [was] probably due to table position with arm up over head.”, which also falls short of an admission or a recitation of facts from which negligence may be inferentially interpreted. Even assuming that this excerpt was an admission, we find therein no legally sufficient evidence that there was any want of reasonable care and skill by Dr. Sindelar, or that there existed at the time of the operation any symptons or conditions from which the doctors might have anticipated any such results as followed. “ ‘An admission, to be sufficient, must be an admission of negligence or of lack of the skill ordinarily required for the performance of the work undertaken.' ” Fink v. Steele, 166 Md. 354, 360.

      . Several cases cite Bettigole and Janney for the presumption that the operation was carefully and skillfully performed but do not allude to the res ipsa loquitur principle, e.g., State, Use of Solomon v. Fishel, 228 Md. 189, 203.

      . Chief Judge Hammond appears to have tried to leave the res ipsa door ajar by dicta in Crockett v. Crothers, 264 Md. 222, 224-225. Inferentially it says that there is still room for a set of circumstances so blatant as to allow an inference of negligence on these facts alone. However, the authority cited to support the precatory exclamation falls somewhat short of full support for the hope it seems to express.
      “In an action against a professional man for malpractice, the plaintiff bears the burden of overcoming the presumption that due skill and care were used. Bettigole v. Diener, 210 Md. 537, 541; Lane v. Calvert, 215 Md. 457, 462. Although there may be instances in which the negligence is so gross or that which was done so obviously improper or unskillful as to obviate the need for probative testimony as to the applicable standard of care, Fink v. Steele, 166 Md. 354, 361 (and here we proceed on the assumption that this is not such a case), generally there must be produced expert testimony from which the trier of fact can determine the standard of skill and care ordinarily exercised by a professional man of the kind involved in the geographical area involved and that the defendant failed to gratify these standards. Johns Hopkins Hospital v. Genda, 255 Md. 616, 620; Telak v. Maszczenski,
        248 Md. 476, 491; Tempchin v. Sampson, 262 Md. 156.” [Emphasis added].
      Fink v. Steele, supra, upon which Crockett relies for its apparent hesitancy to close the door on any res ipsa possibility, does not support the premise espoused. Fink said:
      “There may be cases in which there is such gross negligence and unskillfulness as to dispense urith professional witnesses, but this is not one of them.” [Emphasis added], Fink v. Steele, 166 Md. at 361.
      Dispensing with “professional witnesses” to prove a standard of care is much narrower than obviating “the need for probative testimony,” to establish causation.