author: Smith, J.,

text:
    GOTHAM HOTELS, LTD. v. OWL CLUB, INC. OF BALTIMORE
    [No. 819,
    September Term, 1974.]

      Decided May 7, 1975.

      The cause was argued before Thompson and Powers, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals, specially assigned.

      B. Conway Taylor, Jr. and Read K. McCaffrey for appellant.

      Benjamin Swogell for appellee.
   Smith, J.,

delivered the opinion of the Court.

Appellant, Gotham Hotels, Ltd. (Gotham), sought unsuccessfully in the Circuit Court of Baltimore City to circumvent the holding of the Court of Appeals in Owl Club v. Gotham Hotels, 270 Md. 94, 310 A. 2d 534 (1973). It will be equally unsuccessful here.

The factual background must be briefly recounted for a clear understanding of the matter. Gotham owned the Belvedere Hotel in Baltimore, a formerly renowned hostelry which had fallen upon hard times. It leased the hotel to The Snowden Corporation (Snowden). Snowden sublet a portion of the premises including The Owl Room to appellee, Owl Club, Inc. of Baltimore (Owl). Owl sued Gotham and Snowden in the Superior Court of Baltimore City. Summons for Gotham was laid in the hands of its corporate resident agent. Judge McWilliams said for the Court in Owl Club, 270 Md. at 96, that an officer of the resident agent testified that the suit papers were forwarded to its New York office, which in turn forwarded them to Gotham’s attorney. Owl moved for a judgment by default when a responsive pleading was not entered within the time specified in the Maryland Rules. Judgment by default was entered on the same day, September 14, 1972, which was several weeks after the time for pleading expired. Owl requested that the case be set down for an inquisition on the default judgment. Notice of this hearing was mailed by the Baltimore City assignment commissioner to the resident agent. The resident agent also forwarded this notice to its New York office which said it forwarded the notice on to Gotham. No appearance was made on behalf of Gotham at the inquisition. Judgment in the amount of $110,000 was entered in favor of Owl against Gotham on October 26,1972.

There was testimony in Owl Club that when the vice-president of the insurance company which held the first mortgage on the Belvedere called one of Gotham’s vice-presidents a few days after the extension of the judgment as a result of a news account he had read in the local press relative to the judgment, he is said to have been informed by that Gotham vice-president that the judgment was worth about 30 cents, the price of bus fare in Baltimore.

Owl directed the issuance of the writ of fien facias on the judgment on December 15, 1972, as a result of which a sheriffs sale of the hotel was scheduled for January 16, 1973. On the morning of January 16 Gotham filed a petition in the Superior Court of Baltimore City. Claiming that it had no knowledge of the litigation until December 28, 1973, it alleged that the “judgment was obtained by way of fraud, and/or was predicated upon mistake and/or was based upon or affected by irregularity.” It claimed to have “a complete, meritorious, legal defense” to Owl’s suit and said that “the case ha[d] never been heard on the merits.” The judgment was ordered stricken. On appeal Judge McWilliams said for the Court:

“In the case at bar Judge Carter held a hearing but,. as we have indicated, Gotham failed to establish the essential requirements [for striking a judgment], one of which, and the only one we shall dwell upon, is the need to show that it had acted in good faith and with ordinary diligence. We find it impossible to attribute good faith and ordinary diligence to a defendant whose estimate of the worth of a $110,000 judgment is 30 cents, particularly at a time when it had at least 20 days of the 30 day period in which to file a motion to set it aside. That it waited until the morning of the day of sale does not diminish the lack of diligence.” Id. at 102.

Owl Club was decided by the Court of Appeals on October 29, 1973. On February 13, 1974, Gotham filed its bill of complaint in the Circuit Court of Baltimore City in which it prayed that Owl might be perpetually enjoined from enforcement of its judgment, asserting that the judgment was “based on fraud, concealment and misrepresentation as practiced before both the Superior Court of Baltimore City and the Court of Appeals of Maryland.” A demurrer interposed by Owl was sustained with leave to amend. A demurrer to an amended bill of complaint was sustained without leave to amend. This appeal followed.

The amended bill of complaint recites the filing of suit by Owl on July 24, 1972, “wherein [Owl] alleged certain damages arising from a lease as between it and The Snowden Corporation . . . and arising from certain acts by [Gotham]”; that Snowden was not served, “however, a default judgment was rendered against Gotham on September 26, 1972”; that on October 26, 1972, in the Superior Court of Baltimore City an inquisition was held “to determine damages suffered by the Owl Club as against [Gotham] allegedly in default,” at which inquisition “it was shown that the resident agent of Gotham . . . had been served in Maryland,” and “[d]amages allegedly suffered by Owl Club were assessed to be One Hundred Ten Thousand Dollars”; that on January 16, 1973, a hearing was held on Gotham’s motion to set aside this judgment and inquisition prior to an attempt to sell the Belvedere “wherein Gotham introduced the fact that at the inquisition, a lease, as between Snowden Corporation and Gotham was introduced — however, a subsequent lease between the Snowden Corporation and Owl Club was never introduced into evidence nor alluded to, and that the fact that the . . . Owl Club had no contract, agreement or understanding of any kind with Gotham was improperly and fraudulently concealed from the Superior Court,” as was “the fact that the Snowden Corporation was in default on its obligations to Gotham” (followed by a lengthy quotation from the opinion of the trial judge setting aside the judgment); that following the striking of the judgment an appeal was entered to the Court of Appeals of Maryland “and that body saw fit to reverse [the trial judge’s] opinion with regard to the striking of the judgment,” but “[n]owhere in its opinion did the Court of Appeals of Maryland address itself to the leases in question, and the fraud and concealment practiced by the Owl Club as discussed by [the trial judge] and as alleged by Gotham”; that Gotham’s motion for reargument in the Court of Appeals was denied and it “has, therefore, exhausted all remedies and actions at law”; that “[i]n anticipation of Owl’s defense of res judicata” Gotham “contends that those equitable defenses not raised before the Superior Court of Baltimore City or in the Court of Appeals of Maryland, which remain available to it in . . .a Court of Equity, are: (a) [t]he power of the Equity Courts to enjoin judgments obtained by fraud where the fraud is demonstrated to have been extrinsic, i.e., fraud practiced upon the unsuccessful party and preventing him thereby from presenting his case; (b) [t]hat it is a generally accepted principle of equity that extrinsic or collateral fraud practiced in another Court on which a judgment was based may, in the discretion of the Equity Court, result in equitable relief where the unsuccessful party was prevented from protecting his rights in the action before the judgment was rendered; (c) [t]hat the actions described above and frauds as practiced by the Owl Club constitute cause for the invocation of equitable relief on the theory that the .conscience of the Equity Courts and the general principles of equity have been so obviously violated.” This was followed in the bill of complaint by three paragraphs devoted to a review of the opinion of the Court of Appeals; the allusion by the trial judge in his opinion to New Freedom Corporation v. Brown, 260 Md. 383, 272 A. 2d 401 (1971), an equity case, which said, “ ‘however, originally, there was no determination on the merits and in such circumstances an enrolled decree may be set aside on a petition filed in the original proceedings if there is a showing that the decree was entered by surprise or mistake or if the circumstances are such as to satisfy the Court in the exercise of a sound discretion that the decree should be set aside’ ”; and the statement that the Court of Appeals in its opinion in Owl Chib did not address itself to the relief sought by Gotham since it “did not find that good faith had been practiced.”

Gotham in its argument to us sees three questions, (1) whether “the Circuit Court for Baltimore City err[ed] in finding in its Order that the fraud, if any, committed by Owl Club, if proven, would not meet the standard required to invoke equitable relief and did not constitute an action on the part of the Defendant that prevented Gotham Hotels from presenting its defense”; (2) whether that court erred “in not permitting the presentation of a defense on the merits by [Gotham] before rejecting equitable relief”; and (3) whether that court erred “in not addressing itself to and not finding that general maxims of equity are violated if the Owl Club, Inc. of Baltimore is allowed to pursue its judgment.”

The contentions of Gotham may be boiled down into two, that equity will act to set aside a judgment in an action at law not tried on its merits if it was procured by fraud and that in this instance extrinsic fraud was present.

One of the earlier cases involving equity and fraud relative to a judgment at law is Marine Insurance Company of Alexandria v. Hodgson, 11 U. S. (7 Cranch) 332, 3 L. Ed. 362 (1813). A vessel there had been insured by an insurance company for a voyage “from St. Domingo to her port of discharge in the Chesapeake.” It was captured. The owner obtained a judgment in the amount of $8,000 under the insurance policy. The insurance company brought suit in equity to obtain an injunction against enforcement of the judgment, claiming that the agent for the insured misrepresented the age and tonnage of the vessel. The Court said that “[tjhere [was] reason to believe that she was not worth more than $3,000.” Upon the basis of a valuation of $10,000 she had been insured for $8,000, in accordance with the company’s practice of not insuring any vessel for more than four-fifths of her real value. In the circumstances of that case the Court found no fraud to have been practiced. In the process of its opinion Mr. Chief Justice Marshall said for the Court, however:

“Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law; or of which he might have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery.
“On the other hand it may with equal safety be laid down as a general rule that a defense cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court that the defense ought to have been sustained at law.
“In the case under consideration the plaintiffs ask the aid of this court to relieve them from a judgment, on account of a defense which, if good anywhere, was good at law, and which they were not prevented, by the act of the defendants, or by any pure and unmixed accident, from making at law.
“It will not be said that a. court of chancery cannot interpose in any such case. Being capable of imposing its own terms on the party to whom it grants relief, there may be cases in which its relief ought to be extended to a person who might have defended, but has omitted to defend himself at law. Such cases, however, do not frequently occur. The equity of the applicant must be free from doubt. The judgment must be one of which it would be against conscience for the person who has obtained it to avail himself.
“The court is of opinion that this is not such a case.” Id. 3 L. Ed. 336-37.

In Gott v. Carr, 6 Gill & Johns. 309 (1834), judgments had been entered before a justice of the peace in favor of the defendant against the plaintiff on three notes. The plaintiff appealed to the county court. It reversed, entering judgments in favor of the plaintiff. The defendant then filed a bill in equity to prevent execution upon those judgments on the ground that there had been threats and fraud in the procurement of the notes; that the defendant was unable “to prove in a Court of Law the want of consideration for the notes, they being under seal,” and that the judgments “were founded upon the testimony of [an individual], . . . stated to have been interested in the event of the suits, but who [in the opinion of the Court of Appeals did] not appear to have had the slightest interest.” In the process of reversing the decision by the chancellor, Chief Judge Buchanan said for the Court:

“The questions presented for the consideration of the Court, are: 1st. Do the judgments at law in favor of the appellant, Susanna J. Gott, bar the defendant from maintaining this suit? 2d. If they do not, is the defendant, upon the case made by the bill and answers, and the proof taken in the cause, entitled to a perpetual injunction of those judgments?
“1. As to the preliminary question. It is a salutary principle of law, that every person is bound to take care of and protect his own rights and interests, and to vindicate them in due season, and in the proper place. And that if a defendant having- the means of defense in his power in an action against him, in a competent tribunal, neglects to use them, and suffers a recovery to be had against him, he is forever precluded from obtaining relief in Chancery, in relation to the same matter. The application of this principle may not be universal; but the cases in which Chancery will furnish relief against recoveries suffered to be had at law, are exceptions. The well settled general rule being, that a Court of equity will not relieve against a recovery in a trial at law, unless the justice of the verdict can be impeached by facts, or on grounds, of which the party seeking the aid of Chancery, could not have availed himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with any negligence or fault on his own part.
“And Chancery will only sustain a bill invoking its aid upon some new matter of equity, not arising in the former case; or seeking some relief, to which the powers of the Court of law were not fully adequate.
“It is a sound and useful rule in the administration of justice, for the prevention of negligence, and harassing and protracted litigation, and the consequent burdensome accumulation of costs. A material departure from, or relaxation of which, would prove vexatious in practice, and be felt as a public grievance, by the great delays, and sometimes abuse of justice, to which it would lead. The effect might often be to prevent the prosecution of a just claim, by an injured and oppressed party, for the want of adequate means to pursue it through a protracted litigation, with a more fortunate adversary, whose object was delay, when the unavoidable expenses of the controversy would sometimes exceed the amount in dispute; and when, although he should ultimately succeed, his success might in effect prove a loss, or come too late to be of much service. Applying then that rule to this case, which we think is clearly within it, it appears to us, that whatever may in truth be its abstract merits, it is not a case for the interposition of Chancery, and that the injunction ought not to have been granted, or being granted, should not have been perpetuated.” Id. at 312-13.

From Gott and Marne Insurance Co. there may be deduced two bases for avoiding a judgment at law in equity at the time Gott was decided, the unavailability of an equitable defense in the law action or extrinsic fraud. Pleas on equitable grounds in actions at law, now permitted by Maryland Rule 342 d 1 (a), have been a part of the Maryland scheme of things since passage of Chapter 547 of the Acts of 1888, most recently codified as Code (1951) Art. 75, §§ 91-93, where it stood without change from the time of its original passage until its repeal by Chapter 399 of the Acts of 1957, having been supplanted by that rule. See generally 1 Poe, Pleading & Practice § 667A (5th ed. Tiffany 1925).

The cases cited by Gotham in support of its theory that a final judgment may be set aside in equity where an action has not been tried on its merits involve final decrees in equity, not judgments in law actions. This court had occasion in Capobianco v. Gordon, 19 Md. App. 662, 313 A. 2d 517 (1974), to comment upon the “separate standards for setting aside judgments at law and decrees in equity” said to have existed “prior to the adoption of Rule 625 a.” It was noted that Rule 5 o defines “judgment” as a “judgment at law, decree in equity or other act or order of court final in its nature . . . .” Judge Lowe said for the court:

“We hold therefore, in adopting Md. Rule 625 a, the Court of Appeals intended to restrict courts’ revisory power over all enrolled judgments at law to the three grounds set forth in the Rule.” Id. at 672.

To the discussion there by Judge Lowe could be added Vierling v. Holt, 197 Md. 522, 526, 80 A. 2d 24 (1951), referred to by Judge Prescott for the Court of Appeals in Pugh v. Waclawski, 211 Md. 346, 351, 127 A. 2d 376 (1956). Pugh and Vierling were both decided prior to the adoption of Rule 625 a. In Vierling Chief Judge Marbury, at 525 of 197 Md., said that the rule had “sometimes been stated as if there were three cases under which an enrolled decree could be voided by petition, the first being where the case was not heard on its merits, the second, where the decree was entered by mistake or surprise, and the third, where the circumstances satisfied the court that the enrollment ought to be discharged.” (Emphasis in original.) He pointed out (at p. 526) that “[t]he earlier cases, upon which [the later] mentioned decisions also rel[ied] for authority, indicatefd] that instead of there being three classes of cases, there are only two, (1) where the decree was entered by mistake or surprise, and (2), where the circumstances are such as to satisfy the court that the decree should be set aside, and that, in each of these two classes of cases, it must also appear that the case has not been heard upon the merits.” In conclusion on this subject he said:

“The final result of all the decisions seems to be that no petition to strike out an enrolled decree should be granted where the case has originally been heard on the merits, although where there are extraordinary features which make it imperative in the interest of justice that the case be reopened, this requirement has sometimes been overlooked.” Id. at 527.

Code (1951) Art. 75, § 66 relative to continuances “where a judgment [was] set aside for fraud or irregularity,” came into Maryland law with the enactment of Chapter 9 of the Acts of 1787. It, too, was unchanged until its repeal by Chapter 399 of the Acts of 1957. This section was said by the Court of Appeals in Kemp v. Cook, 18 Md. 130, 137 (1861), to give “no additional powers to the court, in respect of correcting or setting aside judgments,” this being but, as put in 2 Poe, op. cit. § 388 in a footnote, a recognition of what the Court called in Kemp the “common law power incident to courts of record . . . Interestingly enough, in Gardner v. Jenkins, 14 Md. 58 (1859), where the Court of Appeals set aside an injunction against enforcement of a judgment at law based upon fraud in the procurement of the judgment, Chief Judge Le Grand for the Court, in addition to stating that “[t]he bill [did] not allege any fraud on the part of the [plaintiff], but merely against the deputy of the sheriff of Baltimore City,” said:

“Besides these objections, the party had the right to proceed under the Act of 1787, chapter 9, and he availed himself of it. The judgment of the court being against him he is concluded thereby.” Id. at 62.

In Ahem v. Fink, 64 Md. 161, 3 A. 32 (1885), Chief Judge Alvey said for the Court of Appeals:

“There was clearly no want of jurisdiction by the justice to render the judgment; and if the disability of coverture could afford defense, it was incumbent upon the appellee to appear and avail herself of it. This she wholly neglected to do; and the judgment was rendered against her when she was sui juris, and liable to be treated as a party in default. She was then under no disability, and she could only be treated as any other defaulting party would be for default of appearance and answer. And having failed to appear and avail herself of her defenses, if any she had, she has no standing in a Court of equity to obtain relief against a judgment rendered against her by her own default, in the absence of clear proof of fraud or surprise, unmixed with negligence or fault on her part. The appellee was bound to be present before the magistrate in person, or by agent or attorney, to take care of her rights and to make proper defenses for her protection, and she cannot make the omission to perform that duty, incumbent upon every defendant, the foundation of relief by injunction to restrain the execution of the judgment. The case of Gott v. Carr, 6 G. & J. 309, would seem to be a conclusive authority against the present application.” Id. at 164. (Emphasis added.)

It is said in 3 Pomeroy, Equity Jurisprudence § 919a (5th ed. Symons 1941):

“When a judgment or decree of any court, whether inferior or superior, has been obtained by fraud, the fraud is regarded as perpetrated upon the court as well as upon the injured party. The judgment is a mere nullity, and it may be attacked and defeated on account of the fraud, in any collateral proceeding brought upon it or to enforce it, at least in the same court in which it was rendered. [For this rule to apply, however, the fraud must be such as to render the judgment void in that the jurisdiction of the court is concerned, or it must appear that the person attacking the judgment is a stranger to the record whose pre-existing rights are prejudicially affected by the fraud.]” (Brackets in original.) Id. at 603-04.

The author goes on to state in § 919b:

“It must appear that the fraud was practiced in the very act of obtaining the judgment. In other words, a court of equity will set aside or annul a judgment at law on the ground of fraud only where the fraud is extrinsic or collateral to the matter tried in the original action, and not where the fraud was in the matter on which the judgment was rendered. Fraud, whether committed on the court or on the opposite party or on both, may be extrinsic within the meaning of the rule when its effect is to prevent the unsuccessful party from having a trial or from presenting his case fully, as, for instance, keeping him away from court by false promise of compromise, or purposely keeping him in ignorance of the pendency of the action.” Id. at 608-09.

See also Restatement of Judgments § 118, comment (6) (1942).

The matter of intrinsic and extrinsic fraud was most recently considered by the Court of Appeals in Schwartz v. Merchants Mort. Co., 272 Md. 305, 322 A. 2d 544 (1974), where there was an attempt in equity to set aside in a separate proceeding a prior equity decree with an allegation that the decree “was tainted by conspiracy, entered into by the appellees prior to the trial and executed by them during the course of the proceedings through the commission of perjury and the suppression of material evidence, which brought about an erroneous result.” Judge Digges there fully and thoroughly reviewed the law, observing that under the prior Maryland decisions:

“[It is] settled beyond question that an enrolled decree will not be vacated even though obtained by the use of forged documents, perjured testimony, or any other frauds which are ‘intrinsic’ to the trial of the case itself. Underlying this long settled rule is the principle that, once parties have had the opportunity to present before a court a matter for investigation and determination, and once the decision has been rendered and the litigants, if they so choose, have exhausted every means of reviewing it, the public policy of this State demands that there be an end to that litigation.” Id. at 308.
“Examples of what would be considered ‘extrinsic’ fraud were provided in [United States v.] Throckmorton [, 98 U. S. 61, 25 L. Ed. 93 (1878)]:
‘Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.’ 25 L. Ed. at 95.
“These cases [(Fisher, Adm’x v. DeMarr, 226 Md. 509, 174 A. 2d 345 (1961); Bachrach v. United Cooperative, 181 Md. 315, 29 A. 2d 822 (1943); Tabeling v. Tabeling, 157 Md. 429, 146 A. 2d 389 (1929); Wilmer v. Placide, 144 Md. 372, 125 A. 60 (1924); and Pressler v. Pressler, 134 Md. 243, 106 A. 686 (1919))] establish that fraud is extrinsic when it actually prevents an adversarial trial, but is intrinsic when it is employed during the course of the hearing which provides the forum for the truth to appear, albeit that truth was distorted by the complained of fraud. This is necessarily so, as the very object of the trial is to assess the truth or falsity of the often conflicting testimony and documents presented.” Id. at 309.

As was pointed out by Judge McWilliams in Owl Club, there actually were two enrolled judgments involved, the default judgment entered on September 14, 1972, and the judgment for money damages entered on October 26 at the conclusion of the inquisition. There is not the slightest implication in the bill of complaint here nor in the earlier proceeding that any fraud of any kind was involved in the obtention of the judgment by default. The claim of Gotham that there was fraud here because had the lease between Snowden and Owl been before the trial judge he would have perceived there was no contractual relationship between Owl and Gotham and therefore there was no liability from Gotham to Owl could have had no bearing on the entry of the judgment by default for want of a plea, since in the normal entry of such a judgment a trial judge only has before him the declaration and the motion for judgment by default. The failure by Gotham to plead constituted an admission by it of liability for the cause of action set forth in the declaration, there being left open for determination only the amount of damages sustained under that cause of action to be established by the inquisition pursuant to Rule 648. Millison v. Ades of Lexington, 262 Md. 319, 328, 277 A. 2d 579 (1971), and Kiersted v. Rogers, 6 Harr. & J. 282, 285 (1824). There is an implied contention by Gotham that Owl misrepresented the true situation to the court because it failed to file its lease as an exhibit to the declaration. This likewise is without merit because it was not required to file the contract as an exhibit to its declaration. This was evidentiary matter which would have come before the court if there had been a trial on the merits. If Gotham had appeared at the inquisition for extension of judgment it would have been faced with the holding of the Court of Appeals in Millison where a judgment by default for lack of a timely plea was entered against the defendants. The suit was one by a tenant against his landlords for damages to a stock in trade brought about, so it was contended, by the fact that the landlords “willfully, deliberately, purposefully, maliciously and intentionally failed to make the necessary repairs to the building as required by the lease although they were requested to do so on numerous occasions by [the tenant]” and that as a direct result of that failure the stock in trade was damaged. There was a clause in the lease to the effect that all goods and personal property on the leased premises were to be held at the sole risk and hazard of the tenant. The Court of Appeals pointed out that the “Court [could not] go behind the judgment by default to examine into and determine upon the validity of the cause of action upon which suit [was] instituted, Stansbury v. Keady, 29 Md. 361, 368 (1868), and any testimony offered to contradict liability [was] inadmissible, Betz v. Welty, 116 Md. 190, 195, 81 A. 382 (1911).” The Court said:

“Millison and Patuxent by failing to plead within the required time and thus permitting judgment by default on the issue of liability to be entered against them are now foreclosed from contesting their liability when inquiry is being made into the amount of damages and, therefore, may not now present this exculpatory clause as a bar.” Id. at 328-29.

We conclude that in Maryland before an equity court may set aside a judgment in law the party attacking the judgment must allege and prove extrinsic fraud, such fraud as, in the words of the Court in Schwartz, “actually prevents an adversarial trial.” It will be seen that Gotham has alleged no conduct on the part of Owl which “prevented [Gotham] from exhibiting fully [its] case.” No fraud or deception on the part of Owl is said to have kept Gotham away from court. The contention that fraud was practiced on the trial court by not exhibiting the leases to it is no different from the contention in Schwartz that the decree there obtained • “was tainted by a conspiracy, entered into by the appellees prior to the trial and executed by them during the course of the proceedings through the commission of perjury and the suppression of material evidence . . . .” The claim of Gotham here fits into the definition of intrinsic fraud in Schwartz since it concerns the presentation of evidence “during the course of the hearing which provides the forum for the truth to appear . . . .” Accordingly, the chancellor did not err in sustaining a demurrer to Gotham’s amended bill of complaint.

Order affirmed; appellant to pay the costs.


source: Caselaw Access Project

license: Public Domain

text:
    BALTIMORE COUNTY, MARYLAND et al. v. CHARLES M. STITZEL et al.
    [No. 831,
    September Term, 1974.]

      Decided May 7, 1975.

      The cause was argued before Thompson and Powers, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals, specially assigned.

      W. Lee Harrison, with whom was Cooper C. Graham on the brief, for appellant, Baltimore County, Maryland.
    No brief was filed on behalf of John Leonard Kurz as appellant.

      Henry E. Dugan, Jr., with whom were Marvin Ellin and Jonathan Schochor on the brief, for appellees, Stitzel.

      Daniel O’C. Tracy, Jr., with whom was James H. Cook on the brief, for appellee, John Leonard Kurz.
   Smith, J.,

delivered the opinion of the Court.

We shall here reverse so much of a judgment as was incorrectly entered on a third-party claim and otherwise affirm judgments entered after a new trial as the result of the decision of this court in Stitzel v. Kurz, 18 Md. App. 525, 308 A. 2d 430 (1973).

This litigation arises from an accident on September 11, 1970, in which John M. Stitzel, a passenger in an automobile operated by John Leonard Kurz (Kurz), was killed when the vehicle went off of Joppa Road about 100 feet east of Kahl Avenue in Baltimore County. Suits against Kurz were filed by the surviving parents of young Stitzel and his estate (the Stitzels). Kurz impleaded Baltimore County (the County) as a third-party defendant, pursuant to the provisions of Maryland Rule 315. He alleged that the injuries and the resulting death of young Stitzel “resulted from the negligence of Baltimore County ... in its erection and maintenance [at the location of the accident] of a directional road sign, incorrectly designating to motorists approaching ... at said point the direction in which said Joppa Road curves, [immediately beyond] the location of the sign . ...” He prayed that judgment “for any sums that [might] be adjudged to be due to the Plaintiffs” be entered against the County “or in the alternative against Baltimore County, Maryland and . . . Kurz if the jury should find both of them liable .. . .” The Stitzels filed an amended declaration in which the County was brought in as a party defendant. No cross-claim under Rule 314 was filed by Kurz against the County.

The jury returned verdicts against Kurz and the County. Damages were assessed in the amount of $25,000 in favor of the parents and $12,000 in favor of the estate. After the trial court rejected motions made on behalf of the County for judgment n.o.v. or a new trial, judgments absolute in the amount of the jury verdict were entered in both instances against Kurz and the County. Within the 30 day period specified in Rule 1012, an appeal was entered by the County. Kurz moved in the trial court under Rule 1013 to dismiss the appeal. He contended that “all of the claims for relief that were presented at the trial of the . . . action ha[d] not been adjudicated,” that there had been no express determination by the trial court directing the entry of a final judgment on less than all of the claims presented, and that under the provisions of Rule 605 a the appeal was premature, not being from a final judgment. Kurz also filed a motion in which he prayed that the court refer to the pleadings and issues and then “mold the verdicts into proper shape by entering judgment in favor of the Third-Party Plaintiff, John Leonard Kurz, against Baltimore County, Maryland for one-half the judgment rendered by the jury” in each case. The following day the Stitzels filed a similar motion asking for entry of a judgment nunc pro tunc on the third-party claim. The County filed an answer intended to cover both motions. It claimed that the judgment “was final and adjudicated fully the question of joint liability as to both of said claims set forth in the Amended Declaration against both Defendants and in the Third Party Complaint filed by the Defendant, Kurz, against the Third Party Defendant, Baltimore County.” It said “that the verdicts in this case did conclude all of the issues by the Parties to said litigation and there [was] no necessity to mold or alter the verdicts or the docket entries,” since the jury “passed upon the sole issue between the Parties under both the Amended Declaration against both Defendants and the Third Party Complaint by one Defendant against the other Defendant which was the issue of joint or several liability.” It contended that any judgment entered on the third-party complaint “could not be in monetary form or by a stated amount as such would serve only to make the Defendant, Baltimore County . . . liable for all or part of the verdict returned against both Defendants, and, in addition thereto, render it liable to the Third Party Complainant for $18,500.” It said that “the entry of any Order Nunc Pro Tunc [w]ould only serve to extend the appeal time after same ha[d] already expired” and that this was “beyond the powers of [the trial court] under a ruling of the Maryland Court of Appeals in Lang v. Catterton, 267 Md. 268, 285 [, 297 A. 2d 735 (1972)].”

The trial judge held a hearing on these motions. He granted the motion of Kurz to dismiss the appeal, ordered the original judgments stricken, and directed entry of judgments as originally entered and also in favor of the third-party plaintiff against the County for one-half of each of the judgments. A second timely appeal was then filed by the County. Kurz also appealed, although he has filed no brief in this court as appellant nor has he presented any contentions alleging error on the part of the trial court.

The County claims (1) that its “motion for directed verdict . . . should have been granted,” (2) that “the jury [should not] have been allowed to speculate as to the cause of the accident where there was no proof that the Appellant had been guilty of negligence,” and (3) that the trial court erred in striking the original judgments, dismissing the appeal filed on those judgments, and then entering new judgments.

i

Motion for Directed Verdict

It is conceded that the County replaced an erroneously erected curve sign at the location of the accident on October 5, 1970, a little more than three weeks after the accident. An individual living in close proximity to the sign testified that on the day of the accident the sign showed a curve to the right. It should have indicated a curve to the left. She said that prior to the date of the accident the sign had existed in this erroneous manner during the whole time that she had lived there, which was for a period of about eight years. The County says that “her testimony was shown to be erroneous by the fact that the records of Baltimore County showed that the sign was changed in 1964 and 1968, and it was changed twice in 1970, so there had been at least four changes in the sign from 1962 to 1973 . . . .” It points to the safety precautions testified to by one of its employees and says that “installing an incorrect sign once would be difficult, since it is necessary to check out the correct sign from the shop before the County engineers even reached the site. But to accomplish this feat four times bends the law of averages completely out of shape.” It then concludes that the neighbor “was completely impeached by her own testimony and that of the County records, and the question of constructive notice [was] completely unproven.”

The court and jury had more before them than the testimony of this neighbor, however. The accident occurred late on Friday evening, September 11. Another neighbor testified that on the following Sunday he observed that the sign was in error. When pushed somewhat as to the fact that he had never made a complaint to responsible authorities relative to an incorrect sign, the record on cross-examination reflects:

“A. Could I say something?
“Q. Sure. Say whatever you want. I don’t care.
“A. Would it do any good if I went and complained about all the missing signs along there?
“Q. Are there a lot of missing signs?
“A. A lot of missing signs and laying down signs and everything else.
“Q. And so you do have a problem with signs along that particular stretch of road, isn’t that correct?
“A. You could say they don’t maintain them.
“Q. You think they don’t maintain them. All right. I have no further questions.”

The Director of Traffic Engineering for the County testified that his office was advised on October 2 that there was an incorrect sign at the location and that the sign was corrected on October 5. He said their records gave no indication that the County’s personnel had observed anything showing vandalism or other tampering with the sign. He conceded that there had been instances in which County crews had installed incorrect signs. One of the individuals who replaced the sign, although contending that there had been instances in which signs had been turned around but “the pole bolts [were] just as tight as the day [they] put them on,” conceded that he found no evidence of tampering in this instance. Also presented in evidence was the testimony of a police officer who had reviewed the log books of the district of the Baltimore County Police Department in which the accident scene was located. For the one year prior to the accident he said that one regular patrol car was assigned to the area and there were “two or three other cars [which went] through that area going to other sections of the district.” He stated that “[t]he post car [went] up and down there all day long and the other cars m[ight] pass through once or twice a shift which would be three times a day, three shifts a day.”

The test for determining the propriety of a directed verdict under circumstances such as this was well-summarized by Judge Levine for the Court of Appeals in Wood v. Abell, 268 Md. 214, 300 A. 2d 665 (1973):

“The contention by Wood that the trial court erred in not directing a verdict is grounded essentially on the argument that there was insufficient evidence to take the issue of negligence to the jury, and that the submission of that question compelled the jury to speculate. We do not see it that way.
“The reasoning on this point is that even assuming it was negligent for Wood to alight from the tractor while it was in gear (reverse), there was no evidence that this occurred here, for which he cites his testimony, T don’t think it was in any gear,’ and ‘To the best of my belief, I do not believe it was in gear, when I dismounted.’ In making this argument, Wood, although professing recognition, seems to have lost sight of the now-axiomatic principle that in determining whether a plaintiff has produced sufficient evidence to go the jury, the evidence produced, as well as all legally permissible inferences drawable therefrom, must be considered in the light most favorable to the plaintiff, Green v. Otenasek, 267 Md. 9, 15, 296 A. 2d 597 (1972); Baulsir v. Sugar, 266 Md. 390, 394-95, 293 A. 2d 253 (1972); Durante v. Braun, 263 Md. 685, 689, 284 A. 2d 241 (1971).” Id. at 230-31.

What Judge Powers said for this court in Stitzel v. Kurz, 18 Md. App. 525, supra, is equally applicable here:

“When it is shown that a condition existed at a certain time, and the condition is one which by its nature is relatively permanent, rather than transitory or changeable, it is rational to infer that the same condition existed before and after the time shown, for a length of time reasonably consistent with the circumstances, unless there is evidence from which a change in the condition could reasonably be inferred.
“The jury could properly have found in this case that the sign was erected incorrectly by Baltimore County on 1 May 1970 and remained that way until it was corrected on 5 October 1970. It follows that the evidence was sufficient to permit the jury to find that Baltimore County was negligent and that its negligence was a proximate cause of the injury. It was error to direct a verdict for Baltimore County.” Id. at 538.

Bearing in mind that the allegation was not only that the County erroneously erected the sign, but that it had maintained the sign incorrectly, in' other words had let it remain in an incorrect manner after it knew or should have known that the sign was wrong, we conclude that when the evidence here is viewed, as it must be viewed, in the light most favorable to the plaintiff, the trial judge did not err when he failed to grant a directed verdict.

ii

The Jury Instruction

The trial court instructed the jury:

“You are instructed that should you find from the evidence in this case that the road sign erected on Joppa Road near Kahl Avenue, to which reference was made throughout this trial, was either erroneously erected by Baltimore County, or after erected was altered by some third person, unknown and permitted to remain uncorrected for a period of time sufficient to put the County on notice that said sign was erroneous prior to the accident complained of, and that the defendant county either did not correct the erroneous sign, and should you further find through employees of Baltimore County who passed the sign, that such condition was known to such employees or by the exercise of due care should have known [sic] by the said employees and conveyed to Baltimore County, and should you further find that this erroneous sign caused or contributed to cause the accident complained of, and the subsequent injuries and death of the infant plaintiff, then I instruct you that your verdict should be against Baltimore County and in favor of the plaintiffs.”

The County objects to this instruction on the ground that in the absence of evidence of the date that the sign became defective that “the jury should not have been allowed to speculate as to how long the sign was defective and whether notice was imputed thereby to the County.” In essence, it requests a directed verdict on the issue of constructive notice. It says that in not having granted its earlier motion for a directed verdict the trial court gave “the jury a roving commission to arbitrarily choose a date when the sign was incorrectly installed,” that “rank speculation” was thus permitted. We do not see it that way. There was evidence supporting the Stitzels’ theory of the case. Unless that testimony was such that there should have been a ruling as a matter of law that it should be given no credence, the Stitzels were entitled to an instruction relative to their theory of the case. The County’s contention is that the testimony of the neighbor who said that the sign not only was in error on the day of the accident, but had been so during the entire time she lived there, was incredible testimony. It bases this contention upon the fact that the testimony is in conflict with the records of the County. This contention essentially assumes that the records correctly reflect what the County employees did and what they observed, which does not necessarily follow. What Judge McWilliams said for the Court in Racine v. Wheeler, 245 Md. 139, 225 A. 2d 444 (1967), is worthy of consideration here:

“Since the jury is free to believe only a portion of the evidence of each side the synthesis apparently accomplished by the jury is simply a manifestation of its obvious function.” Id. at 144.

Here, the conflict between the testimony of this neighbor and the County records was for the jury. It was not such a conflict as to warrant a ruling as a matter of law that no part of the neighbor’s testimony could be given credence. Accordingly, the trial court did not err in its instruction to the jury relative to the Stitzels’ theory of the case.

iii

The Judgment

The County contends that the judgments ■ originally entered on behalf of the Stitzels against Kurz and the County on July 15, 1974, should not have been stricken, since “all outstanding claims for relief had been adjudicated by the court on said date,” while the contention of Kurz is that the matter of this third-party claim was still open.

The effect of the jury’s verdict here was a determination that the County and Kurz were joint tort-feasors. The County was impleaded by Kurz under Rule 315 a. Rule 315 e 2 provides for judgments “upon such terms as are appropriate to protect the rights of the interested parties.. ..” The Uniform Contribution Among Tort-Feasors Act is embodied in Maryland Code (1957) Art. 50, §§ 16-22. Through this act a statutory right óf contribution among joint tort-feasors was created which did not exist at common law. Baltimore Transit Co. v. State, 183 Md. 674, 679, 39 A. 2d 858 (19.44). It establishes a procedure whereby that right may be made effective in practice. Baltimore Transit Co. v. State, supra. By § 17 (b) of that act “[a] joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.” In Cotham and Maldonado v. Board, 260 Md. 556, 566, 273 A. 2d 115 (1971), the Court of Appeals quoted with approval from Southern Maryland Oil Company v. Texas Company, 203 F. Supp. 449 (D. Md. 1962), where Judge Northrop said:

“[A]ll [Maryland courts] who have had occasion to consider the matter have agreed that the rights both to indemnification and to contribution, whether based on contract or tort, accrue at the time of payment and not before.” Id. at 452-53.

The Court went on to state in Cotham that the claim of an alleged joint tort-feasor for indemnification was “an inchoate claim which d [id] not ripen into being unless and until he p[aid]” the original plaintiff.

We have found no Maryland case which has considered the form of judgment to be entered in a case such as this. We find persuasive Smith v. Whitmore, 270 F. 2d 741 (3rd Cir. 1959), a case involving application of Rule 14 of the Federal Rules of Civil Procedure, the counterpart to our Rule 315, and the Uniform Contribution Among Joint Tort-Feasors Act as then in effect in Pennsylvania. Plaintiff Smith there had instituted an action against Whitmore for recovery of damages for personal injuries arising out of an automobile accident which occurred in Pennsylvania. Whitmore impleaded Pue as a third-party defendant, seeking contribution in the event that he and Pue were found negligent. Unlike the case here, the plaintiff did not amend his complaint to include Pue as a party defendant. The jury returned a general verdict for Smith against Whitmore in the sum of $19,500. In response to an interrogatory it found that Pue was “guilty of negligence which was a substantial factor in causing the accident.” The trial court entered judgment in favor of Smith against Whitmore in the amount of $19,500 and in favor of Whitmore against Pue, the third-party defendant, in the amount of $9,750, similar to what was done here. The third-party defendant moved for an order amending the judgment so that it was in favor of the plaintiff against the defendant in the amount of $19,500 “and in favor of third-party plaintiff and against third-party defendant for contribution.” An order was entered amending the judgment so that it was “in favor of third-party plaintiff and against third-party defendant in the sum of $9,750.00, for contribution.” The court quoted subsections 1 and 2 of § 2 of the uniform act then in force in Pennsylvania, identical to §§17 (a) and 17 (b) of the Maryland act. It then said, after reviewing other cases:

“It seems desirable in our opinion to conform the judgment in a contribution case to the specification in the Uniform Act that ‘A joint tort-feasor is not entitled to a money judgment for contribution until he has * * * discharged the common liability or has paid more than his pro rata share thereof. * * *’
“The quiver of the judgment should contain but two arrows — one directed to the liability of the defendant and one to the existence of the right of contribution. The defendant who, after the entry of such a judgment, ‘discharged the common liability or * * * paid more than his pro rata share thereof * * *’ could then obtain a money judgment against the third-party defendant for the excess which he has paid over his pro rata share of the plaintiffs judgment.
“Such a judgment would, in the instant case, read as follows:
‘And now, to wit, (date), in accordance with the verdict and the jury’s answer to an interrogatory, it is
‘Ordered that Judgment be and the same is hereby entered in favor of Plaintiff, George Smith, and against the defendant, Max C. Whitmore, in the sum of Nineteen Thousand Five Hundred Dollars ($19,500), together with costs, and it is further
‘Ordered and Adjudged that the defendant, Max C. Whitmore, and the third-party defendant, Pervis Lee Pue, Jr., are joint tortfeasors and that the right of contribution exists in favor of the said Max C. Whitmore and against the said Pervis Lee Pue, Jr., and the said Max C. Whitmore may hereafter have judgment against the said Pervis Lee Pue, Jr. for the amount which he proves he has paid to the Plaintiff, George Smith in excess of the sum of Nine Thousand Seven Hundred and Fifty Dollars ($9,750.00).’ ”

Id. at 746.

In 3 J. Moore, Federal Practice ¶ 14.11 at 14-323 (2d ed. 1974), in discussing judgments under Rule 14 (a) of the Federal Rules of Civil Procedure, the author states that “the impleader judgment may be so fashioned as to protect the rights of the other tort-feasors, so that defendant’s judgment over against them may not be enforced until the defendant has paid plaintiff’s judgment or more than his proportionate share, whichever the law may require.”

It was improper for the trial judge to enter a judgment in favor of Kurz against the County for one-half of the judgments entered against the two defendants since, as we have already noted, the statute provides that the joint tort-feasor is not entitled to a money judgment for contribution until he has paid the common liability or paid more than his pro rata share of that liability. If Kurz paid more than his pro rata share, he would be entitled to contribution from the County. By the same token, if the County paid more than its pro rata share it would be entitled to contribution from Kurz, notwithstanding the fact that it has filed no cross-claim in this proceeding. It would follow as a matter of law upon the jury’s determination in this case that Kurz and the County were jointly and severally liable. If one defendant pays more than his pro rata share, he then becomes entitled to judgment for such sum. He can protect himself by insisting that the judgment be assigned to his use so that he then has a judgment against the remaining defendant. Nothing more needed to be done at the time the judgments absolute were originally entered in favor of the Stitzels against both defendants. The trial judge thus erred in dismissing the original appeal as premature. The appeal now before us raises the issue since it includes an appeal from his order dismissing the appeal. Upon the remand the trial judge will direct entry of judgment as originally entered.

Appeal of John Leonard Kurz dismissed.

Judgments reversed in part and affirmed in part; case remanded to the Circuit Court for Harford County for entry of judgments in accordance with this opinion; Baltimore County to pay the costs.


author: Thompson, J.,

text:
    SULLINS G. SULLIVAN v. ANNA E. MILLER et vir
    [No. 841,
    September Term, 1974.]

      Decided May 7, 1975.

      The cause was argued before Thompson and Powers, JJ., and Marvin H. Smith, Associate Judge of the Court of Appeals of Maryland, specially assigned.

      R. Roger Drechsler for appellant.

      John F. King for appellee Dr. W. Perry Arnold and James E. Gray, with whom was John H. Mudd on the brief, for appellee Dr. John D. Pound. No appearance and no briefs filed by appellees Anna E. Miller and Donald H. Miller.
   Thompson, J.,

delivered the opinion of the Court.

Anna E. Miller and Donald H. Miller, her husband, filed suit in the Baltimore City Court for medical malpractice against Bon Secours Hospital, Dr. Sullins G. Sullivan, Dr. John D. Pound, Dr. W. Perry Arnold, Dr. Daniel G. Wehner and Dr. John E. Miller. Dr. Sullivan, the only appellant here, failed to file ah answer to the suit resulting in the entry of a default judgment against him. The jury found Drs. Pound and Arnold to have been negligent and assessed damages totalling $400,300 against Drs. Sullivan, Pound and Arnold, jointly. Briefs have been submitted to this Court by Drs. Arnold and Pound. Mr. & Mrs. Miller have not submitted briefs. For convenience we will refer to Drs. Arnold and Pound as “the appellees”. Dr. Sullivan alleges that the trial court erred in failing to grant his motion to strike out the default judgment and in the presentation of certain instructions and issues to the jury.

In order to put the case in proper focus we will quote a substantial portion of Count 2 of the Declaration italicizing those portions which pertain particularly to Dr. Sullivan, the appellant:

“ANNA E. MILLER, by her attorney, Marvin Ellin, sues BON SECOURS HOSPITAL, a body corporate; JOHN D. POUND, M.D.; JOHN E. MILLER, M.D.; W. PERRY ARNOLD, M.D.; DANIEL G. WEHNER, M.D.; and SULLINS G. SULLIVAN, M.D., Defendants:
“The Plaintiff incorporates in this count those facts set forth in Count I hereinabove by reference thereto intending each and every allegation thereof to be deemed part hereof as if each and every sentence and paragraph were repeated, adding that the history of the Plaintiffs prior stomach difficulty as well as the hospital records of her confinement at the Defendant Hospital from the period August 25, 1971 through September S, 1971 were available and read by, or in the exercise of due care should have been read by, the Defendants in the instant count.
“The Plaintiff alleges that she was reconfined at the Defendant Hospital on November 20, 1971, under the care of the Defendant Pound and the Defendant Wehner who was brought in by the Defendant Pound as a consultant. The Plaintiffs symptoms and complaints were the same as those symptoms and complaints made by the Plaintiff in her prior confinement from the period August 25, 1971 to September 3,1971. The Plaintiff complained about the worsening of stomach pain and digestive difficulty from which she was suffering as well as a continuing nausea and other complaints referable to an upper gastrointestinal disorder. Notwithstanding such complaints and prior history, the Defendants, and each of them, negligently failed to perform an upper GI study this study would have revealed the fact that the Plaintiff was suffering from a simple gastric ulcer.
.“Instead of performing the GI series which would have been a safe conservative and non-injurious method of determining the Plaintiffs condition, the Defendants negligently subjected the Plaintiff to a series of unnecessary risks involving invasive and potentially injurious tests which were not indicated and which, through negligent performance, resulted in tragic, permanent and disabling injuries to the Plaintiff and her husband.
“It is alleged that, ignoring all safe, non-invasive and conservative methods which existed to arrive at a correct diagnosis of the Plaintiff’s condition, the Defendants caused an aortogram to be performed on the Plaintiff to confirm the existence of what was negligently believed to be an abdominal aortic aneurysm (weakness in the wall of an artery causing it to bulge) as the cause of the Plaintiffs stomach difficulty. The Plaintiff was subjected to a hazardous procedure which the Defendant W. Perry Arnold, M.D. had been specifically cautioned to avoid. In addition, he failed to exercise the usual standards of medical care in the insertion of a catheter into the Plaintiff’s right femoral artery. As a result, dye injected through the catheter was caused to dissect into the layers of the aortic wall causing a tear of the aortic wall by negligent and injurious insertion.
“It is further alleged that the insult or injury to the right femoral artery caused by the negligence of the Defendant Arnold initiated an abnormal clotting of the blood in the artery causing a life-threatening and dangerous condition to result in the Plaintiffs right leg — to wit: a blocking of blood supply to the right leg by the clotting which was produced by the trauma by the catheter.
“The Plaintiff avers that the presence or absence of an abdominal aneurysm could have been established by a safe method of x-ray study which would have revealed such a condition without subjecting the Plaintiff to the jeopardy of inserting a catheter into a main artery in a retrograde fashion. Such procedure was unnecessary, contraindicated, and not in keeping with the usual standards of medical care in the community.
“Following the development of clotting in the Plaintiffs right femoral artery, it was necessary for her to undergo surgical removal of such clots — this surgery performed on her by the Defendant Miller.
“Notwithstanding the injury inflicted upon the Plaintiff by the Defendant Arnold and the Plaintiffs predisposition to clotting caused by injury to the femoral artery, the Defendant Arnold with the Defendant Pound participating and concurring in such action, negligently followed the above recited procedure with an attempt to thread a catheter through the artery located under the left armpit (axilla) sliding the catheter through the artery in an effort to inject contrast material into the aortic region. During this attempt (November 26, 1971), the Defendant Arnold negligently produced a perforation of the aorta by negligent and reckless manipulation of the catheter. Because of the injury to the aorta, the Plaintiff bled internally, causing bleeding into the mediastinal area (between the lungs).
“Following this, the Plaintiff began to experience excruciating pain and mental anguish and had difficulty in breathing, necessitating endotracheal intubation or the placing of a hose into the Plaintiffs trachea to insure sufficient oxygen to sustain her. The Plaintiffs blood pressure dropped, she developed shock, and required additional emergency and dangerous treatment with intravenous solucortef and aminophyllin. Additionally, because of the clotting developing in her right leg, the Plaintiff began to develop numbness in the right foot — the denial of blood supply to the right foot being caused by continuing clotting in the right femoral artery resulting from the negligence aforesaid.
“Later in the day of November 26, 1971, because of the continuation of reoccurring thrombosis (clotting) of the right femoral artery, it was necessary for the Plaintiff to undergo a thrombectomy, a surgical procedure for the removal of such clots, this necessitating the incising into the right groin area. The Plaintiff avers that this surgical procedure was negligently performed and improperly planned by reason of the failure to first perform an arteriographic study to discover the location and degree of clotting within the femoral artery so that adequate and proper surgery could be performed — this procedure performed by the Defendant Miller with the assistance of duly authorized Defendant Hospital personnel and the concurrence of the Plaintiffs physician, the Defendant Pound, and the Defendant Wehner. It is alleged that the only ailment which required treatment was the nonsurgical care of a gastric ulcer which was negligently ignored, and that all other major medical problems were the result of negligent medical care.
“It is alleged that following the aforesaid thrombectomy on November 26, 1971, that, because of massive injury to' the Plaintiff’s body, the clotting process continued creating a recurrent blockage of the superficial femoral artery — this denying sufficient blood supply to the right lower extremity. It is alleged that again no arteriographic study was done on the Plaintiff’s right leg to determine the location and degree of the clotting process to guide and advise the surgeon (the Defendant Miller and duly authorized personnel of the Defendant Hospital with the concurrence and approval of the Plaintiffs treating physician, the Defendant Pound, as well as the Defendant Wehner), such study a compelling, necessary and usually employed method in cardiovascular surgery employed by the medical and hospital community in all major cities of the United States, including Baltimore, Maryland. With incomplete and negligently performed presurgical study given, the Plaintiff was subjected to a second thrombectomy on November 27, 1971.
“It is alleged that notwithstanding pre-existing history, complaints, symptoms, and evidence which existed in the Plaintiffs hospital record and as recited by the Plaintiff, the Defendant Miller and the Defendant Sullivan, on November 27, 1971, with the concurrence of the remaining Defendants and the assistance of duly authorized medical and surgical personnel and the concurrence and recommendation of the attending physicians, the Defendant Pound and the Defendant Wehner, negligently, unnecessarily and against indication for such procedure, performed a laparotomy (abdominal exploratory surgery) and caused a subtotal gastrectomy to be performed upon the Plaintiff resulting in the removal of 75% of her stomach.
“The Plaintiff avers that following the aforesaid procedure performed upon her, all necessitated by the negligence of the Defendants, and each of them, that the Plaintiff continued to develop blood clots in her femoral artery preventing the adequate flow of blood to the right leg which caused gangrene of the right foot to develop.
“The Defendants again negligently failed to perform arteriogmphic studies in an effort to establish the exte?U of obstructing material in the right femoral artery, and instead, on December k, 1971, a duly authorized surgeon of the Defendant Hospital, acting under the concurring opinion and recommendation of the Defendant Pound, the Defendant Wehner, the Defendant Miller and the Defendant Arnold, amputated the Plaintiffs right leg because of reoccurring thrombosis or clotting with resultant gangrene and death of the right leg.

The remainder of Count 2 alleged damages suffered by-reason of the negligence of the Defendants. Count 3 alleged hospital expenses were incurred by Mr. Miller as the result of the defendants’ negligence. Count 4 alleged damage to the marital relationship of Mr. & Mrs. Miller. Count 1 pertained to the Bon Secours Hospital.

I Instructions Pertaining to Damages Resulting from the Loss of the Leg

Dr. Sullivan alleges the trial court erred in failing to instruct the jury that the evidence showed that his negligence did not contribute in any way to the loss of Mrs. Miller’s' leg. He argues that although the judgment estáblished his duty to the plaintiffs and his failure to discharge the duty, as well as some loss therefrom, it necessarily follows that the evidence must show what damages in fact flowed from the negligence. The appellees argue, however, that the default judgment established every element necessary to determine the defendant’s liability except the amount of damages; that a defendant in default cannot introduce evidence to contradict liability; that it would have been improper for the trial judge to have instructed the jury that Dr. Sullivan was not responsible for the loss of the leg because a finding of liability included a finding of damage proximately caused by Dr. Sullivan; and that proximate cause is not an issue in the inquisition of damages after a default judgment. In our view, reason and authority do not completely support either argument. It is apparent that after a default judgment a plaintiff cannot prove damages which resulted from negligence other than that alleged in the declaration, that is, proximately caused by the alleged negligence. It is equally apparent that we must look to the declaration and not to the evidence to determine Dr. Sullivan’s negligence. It takes but a glance at the declaration to see that, rightly or wrongly, it alleged that Dr. Sullivan participated with the other defendants in the acts of negligence which led to the loss of the leg. The trial judge properly refused the instruction concerning Dr. Sullivan’s responsibility for the loss of the leg.

Dr. Sullivan relies on Smith v. Dolan, 170 Md. 654, 185 A. 453 (1936), in which the Court said:

“The plaintiff sued for injuries sustained in a collision by one of the defendants’ taxicabs with his automobile on January 28th, 1933. The judgment by default admits the occurrence of the accident, some injury of the plaintiff, and the defendants’ liability for such injuries as were caused by the collision. 2 Poe's PI. & Pr. secs. 369, 372; Betz v. Welty & Co., 116 Md. 190, 196, 81 A. 382. All the jury had to pass on was the question of damages sustained by the plaintiff as a result of the defendants’ admitted negligence. By statute, Code, art. 75, sec. 94, [now Md. Rule 648] when the proceeding is merely an inquisition, the evidence is taken ‘in open court in the same manner and under the same regulations as in other jury trials,’ so that the same rules apply to the admissibility and relevancy of evidence as in a regularly contested case. It will not, however, be regarded as reversible error, even if inadmissible and irrelevant, unless its effect is to admit evidence of damage not traceable to the alleged negligence. Betz v. Welty & Co., supra.” Id. at 657.

The Court then proceeded to examine the evidence for the purpose of showing whether or not there was a causal connection between the accidental injury and the damages suffered saying:

“[T]he damages were testified to by the plaintiff and several other witnesses, and their testimony not contradicted, and there was a reasonable basis for the inference, as reflected by the verdict, that there was a causal connection between the accidental injury of the plaintiff and his physical condition from that time to the day of trial.” Id. at 659. (Emphasis added)

It will be observed that in Smith v. Dolan, supra, the Court looked at the evidence solely to determine what damages flowed from the negligent act, not to determine, as Dr. Sullivan would have us do, whether or not the defaulting defendant was negligent, with respect to the leg.

Dr. Sullivan also cites Betz v. Welty, 116 Md. 190, 81 A. 382 (1911); Millison v. Ades of Lexington, 262 Md. 319, 277 A. 2d 579 (1971); Ruella v. MacCauley, 220 Md. 461, 154 A. 2d 715 (1959) and Forrester v. Sisco, 49 Md. 586 (1878). None of these cases support Dr. Sullivan’s argument. We will discuss two of them hereinafter.

The appellees cite Perioti v. Williams, 258 Md. 663, 267 A. 2d 114 (1970) and Burns v. Goynes, 15 Md. App. 293, 305, 290 A. 2d 165 (1972), cert. denied, 410 U. S. 938, to illustrate the distinction between liability and negligence, pointing out that the Courts have said that a trial court cannot direct a verdict, even though negligence exists as a matter of law unless, of course, there is also no contest as to damages. They rely, however, on Millison v. Ades of Lexington, supra, which held that a defaulting defendant would not be permitted at an inquisition hearing to introduce a clause in the lease which placed the responsibility for damage to personal property on the plaintiff because liability was settled by the default judgment. As we have indicated, neither this case nor any that follow support the proposition that the plaintiff does not have to establish at the inquisition hearing-that the damages resulted from the negligent injury alleged in the declaration. .

Appellees also rely on Betz v. Welty, supra, in which the Court refused to permit a defaulting defendant to offer evidence at the inquisition that she was not the Mrs. Betz named in the suit and did not incur the bill alleged. To the same effect, see Heyward v. Sanner, 86 Md. 19, 37 A. 798 (1897), in which the Court said:

“That a judgment by default fixes the liability of the defendant and establishes the right of the plaintiff to recover some amount to be afterwards determined by an inquisition of damages cannot now be questioned. This Court has said in the case of Green v. Hamilton, 16 Md. 329, that a judgment by default ‘if regularly entered is as binding as any other, as far as respects the power and jurisdiction of the Court, in declaring that the plaintiff is entitled to recover, though the amount of the recovery in some cases remains to be ascertained by a jury’. Like every other judgment, it is conclusive of every fact necessary to uphold it. Freeman on Judgments, Sec. 330, and authorities there cited. Cooper v. Roche, 36 Md. 565; Davidson v. Myers, 24 Md. 555.
“But if in thus repelling the idea of express malice, there should be testimony from which, if there were no judgment, the jury could find the communication to be privileged, yet the defendant could not be entitled to a ruling declaring it to be privileged, because by the judgment the question of legal malice has been definitely settled against him. To rule under these circumstances the words were privileged, is equivalent to an instruction that there is no malice, although the judgment by default conclusively settles that there is. This is the necessary result, because the legal effect of declaring the words to be privileged is to repel the presumption of malice of any kind arising from their utterance. McBee v. Fulton, 47 Md. 427. In other words, to so rule would be to declare the defendant was justified in speaking the words, and if he was there could be no recovery at all, since malice express or implied is a necessary ingredient in an action of slander. Dicken v. Shepherd, 22 Md. 418. This could not be done in this case, because, as we have said, the legal malice is conclusively settled by the judgment.” 86 Md. at 21-22.

The Court there held that it was entirely proper for the defendant to offer evidence of the lack of express malice for the purpose of mitigating damages but we point out again this case is not in any way authority for the proposition that the plaintiff does not have to prove damages which proximately resulted from the negligent acts alleged. Nor is there anything in J.C. Penney Co. v, Harker, 23 Md. App. 121, 326 A. 2d 228 (1974), which is contrary to the views expressed herein. In that case we simply held that a trial judge had discretion to set aside a judgment entered on inquisition even though it did not have the power at the time to upset the default judgment as to lianility.

It is harsh to prohibit Dr. Sullivan from showing that he did not order the tests as alleged, nor have an opportunity to read the hospital record and diagnose the ulcer condition, and thus, in fact, that he bore no responsibility for the loss of the leg, but allowing such a showing would be contrary to the long line of cases in Maryland and, indeed, elsewhere which have clearly held that the entry of a default judgment fixes liability and leaves only the amount of damages to be determined. To permit the Doctor and anyone else who so desired, to ignore judicial process and answer a suit at his whim would destroy our entire judicial scheme for the orderly disposition of cases.

II Instructions as to Nominal Damages

Dr. Sullivan argues that he is not jointly liable under the evidence and therefore there was error in the trial court’s refusal to grant an instruction permitting the jury to return a verdict of nominal damages. We note that, once again, Dr. Sullivan refers to the evidence rather than to the declaration which fixed his liability. As has been observed, in the declaration it was alleged that Dr. Sullivan jointly participated in several acts of negligence which led up to the removal of both the leg and the stomach. Under the cases heretofore cited he cannot, after the default judgment, contest his joint liability for those acts of negligence but can only contest the amount of damages.

We do not regard the out of state cases cited by Dr. Sullivan to be in point because in the instant case joint participation in several acts of negligence was fixed by the default judgment. The single Maryland case which he cites to support his argument is not in point for the same reason. Kyte v. McMillion, 256 Md. 85, 259 A. 2d 532 (1969) held that the liability of the hospital was separate from the liability of a negligent motorist which caused the original accident. The Court was careful to point out that the injuries were peculiarly separate and divisible because the hospital’s only negligence consisted of administering to the plaintiff an improper type of blood in a transfusion which could cause injury to the plaintiff only if she later became pregnant. The Court has distinguished Kyte from others holding successive tortfeasors jointly liable. Bell v. Allstate Insurance Company, 265 Md. 727, 291 A. 2d 478 (1972). See also, Trieschman v. Eaton, 224 Md. 111, 166 A. 2d 892 (1961). These cases clearly indicate that all who participate in negligent acts, even though successive, are equally responsible for the ultimate damage where the damage is not divisible as in Kyte v. McMillion, supra.

The court in the instant case instructed the jury in part as follows:

“You are specifically instructed, not to concern yourselves with whether or not Dr. Sullivan was or was not negligent, for the reasons I have just stated. Thus your only consideration as to Dr. Sullivan is to determine whether his negligence, as one of the treating doctors of Mrs. Miller, caused, or contributed to cause, injuries and damages to her. Because there is already a judgment against Dr. Sullivan, you need only fix the amount of that judgment, should you find that the defendant Sullivan’s negligence produced injuries and damages to the plaintiff.”

Under the peculiar posture of the case the instruction was at least as favorable as Dr. Sullivan could require.

Ill Denying Motion to Strike Out the Default Judgment

In Maryland it is settled that a default judgment at law, like any other which has been entered for a period of more than 30 days, can be stricken only by a showing of fraud, mistake or irregularity. Owl Club v. Gotham Hotels, 270 Md. 94, 310 A. 2d 534 (1973); Margin v. Stevens, 266 Md. 14, 291 A. 2d 440 (1972); Capobianco v. Gordon, 19 Md. App. 662, 313 A. 2d 517 (1974). Md. Rule 625 a provides:

“For the period of thirty days after the entry of a judgment, or thereafter, pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in cases of fraud, mistake or irregularity.”

The only “fraud, mistake or irregularity” which Dr. Sullivan alleges is that it was erroneous to enter a default judgment against one defendant who is alleged to be jointly liable with others. To support his argument he cites no Maryland cases and we have found none on point. Assuming, without deciding, that the cases cited would be the law of Maryland, our analysis of them shows that they do not support the appellant’s thesis.

The principal case replied on by Dr. Sullivan is Frow v. De La Vega, 82 U. S. (15 WALL) 552 (1872), in which the Supreme Court of the United States addressed the problem as follows:

“The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants. The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence, he cannot be heard at the final hearing. But if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as the others. If it be decided in the complainant’s favor, he will then be entitled to a final decree against all.
But a final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal.” Id. at 554.

It will be observed that the procedures set out by the Supreme Court were precisely what occurred in the instant case except that Dr. Sullivan was permitted to take some part in the hearing with respect to damages. It is likewise apparent that in the other cases cited by Dr. Sullivan the courts were concerned with the entry of a final judgment assessing damages instead of a default judgment determining liability. Those cases are Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 519 P. 2d 730 (Kan. 1974); Bergren v. Adams County, 8 Wash. App. 853, 509 P. 2d 661 (1973); Diamond National Corporation v. Thunderbird Hotel, 454 P. 2d 13 (Nev., 1969); Marc Bellaire, Inc. v. Fleischman, 8 Cal. Rptr. 650 (1960).

We see no error in the refusal to strike out the default judgment.

Judgments affirmed.

Appellant to pay the costs.


author: Orth, C. J.,

text:
    EQUITABLE TRUST COMPANY, Personal Representative under Will of Ada E. Stoll v. CAROLYN SMITH, Substituted Trustee under Will of John E. Stoll et al.
    [No. 851,
    September Term, 1974.]

      Decided May 8, 1975.

      The cause was argued before Orth, C. J., and Morton and Thompson, JJ.

      Hugh J. Monaghan, II, for appellant.

      William C. C. Barnes, with whom was Charles E. Quandt on the brief for appellees John Walter Smith, deceased and John D. Stoll, deceased, two remaindermen under trust estate created by residuary clause of Last Will and Testament of John E. Stoll.
    No brief or appearance on behalf of appellee Carolyn Smith, substituted trustee under the will of John E. Stoll.
   Orth, C. J.,

delivered the opinion of the Court.

We are called upon to determine the disposition under the will of John E. Stoll, deceased, of a void legacy.

FACTS

Facts material to the issue are not disputed. John E. Stoll died on 7 November 1948 leaving a will dated 21 February 1946 which was admitted to probate by the Orphans’ Court of Baltimore City on 22 November 1948. Item 1 of the will gave all his household furniture and personal effects to his wife, Ada E. Stoll, absolutely “provided she is living at the time of my death.” Item 2 created a trust of all the remainder of his property for the benefit of his wife during her natural life, in the event she survived him, with power in the trustees to encroach on the principal. Item 3 expressly voided the trust if his wife predeceased him and disposed of the remainder of the estate upon the death of his wife “whether she dies before or after me” in the manner thereafter set out in items 4 through 10. Items 4 through 9 bequeathed specific pecuniary legacies to specifically designated persons — the named children of Charlotte Stoll; his brother-in-law, Charles A. Simpson; Mr. and Mrs. Robert D. Clare — and to a home for the aged, an orphan asylum and a church. Item 10 provided:

“I HEREBY GIVE, DEVISE AND BEQUEATH all the rest, residue and remainder of my property and estate, real, personal or mixed, and wheresoever situate, to John Walter Smith, George A. Smith, Norman Smith and Henry E. Smith, children of my deceased sister Augusta Smith, and my nephew John D. Stoll, share and share alike, upon the express condition that my nephew John D. Stoll pay to his stepbrother Herman Schreiner, his heirs, the sum of $1,000.00 from his share.”

Item 11 was a spendthrift clause, item 12 bestowed powers on the executors and trustees, and item 13 appointed two executors, who were the same persons as the trustees with direction that powers granted should vest in the survivor or the successors of them.

One of the trustees appointed by the will died in 1960 and the survivor in 1964. Carolyn Smith was appointed substituted trustee by order of the Circuit Court of Baltimore City. Remainderman Henry E. Smith died 11 May 1939, about 7 years before the will was executed. Ada E. Stoll, the testator’s wife and the life tenant died 18 July 1973, making the trust estate of approximately $170,000 distributable. There were no children born of the marriage of the testator and Ada E. Stoll.

STATEMENT OF CASE

Because Henry E. Smith had died before the will was executed, the substituted trustee filed an action in the Circuit Court of Baltimore City asking, among other relief prayed, that items 2 through 10 of the will be construed or interpreted and that the trustee be instructed “as to whom and in what proportions the trust estate should be distributed.” The case proceeded along a normal course and, after a hearing on 16 April 1974, the chancellor issued a decretal order on 19 September. The decree set out the conclusion of the chancellor that “the share of Henry E. Smith should be added to the shares of John D. Stoll, John Walter Smith, George A. Smith, and Norman R. Smith [the other four remaindermen] or to the heirs at law or legatees by representation of any of those four individuals who were not living on the date the trust estate terminated.” The chancellor

“1. ORDERED that Carolyn Smith, substituted trustee under the will of John E. Stoll, be and she is hereby directed to distribute the balance of the trust estate under § 10 of the testator’s will as follows:
A. Norman R. Smith share. One-fourth thereof to Norman R. Smith.
B. George A. Smith share. One-fourth thereof in two equal shares to Lee Benson Smith, individually, and to Lee Benson Smith, as trustee under the last will and testament of George A. Smith, residuary legatees under the last will and testament of George A. Smith. Reopening of the estate of George A. Smith is not required.
C. John Walter Smith share. One-fourth thereof to Southern Arizona Bank & Trust Company, as executor under the will of John Walter Smith.
D. John D. Stoll share. One-fourth thereof in four equal shares among Dorothy Stoll Oxley, Elizabeth Stoll Harrison, John Merle Stoll, and Robert L. Stoll, as ultimate successors in interest of John D. Stoll. Reopening of the estates of John D. Stoll and his wife is not required.
$1,000 of the share of John D. Stoll shall be paid before the distribution called for above to Stella Ivey and Louise Schriner, in equal shares, persons proved to the satisfaction of the court to be the heirs of the Herman Schreiner named in the will.”

The Equitable Trust Company, as the personal representative under the will of Ada E. Stoll, deceased, noted an appeal “from the Final Decree entered herein the 19th day of September 1974 as far as the same pertains to the distribution of the share of Henry E. Smith under Item X of the Will of John E. Stoll, Deceased, as set forth in the second introductory paragraph and Item One of said Order dated September 19, 1974.” Thereby is presented whether the remainder share of Henry E. Smith was properly distributable to the other four remaindermen, as the chancellor ordered or to those entitled had John E. Stoll, the testator, died intestate, as the appellant urges.

THE LAW

It was early decided and firmly established that a legatee dead at the time the will was executed is not within the ambit of the lapsed legacy statute. The Court of Appeals said in Billingsley v. Tongue, 9 Md. 575, 581-582:

“The better authorities concur, that there is a manifest distinction between a void and a lapsed legacy; and in 1st Jarman on Wills, 293 (note,) the very cases put above are given as illustrations of the distinction between ‘a lapsed and a void devise. ’ ‘In the former case, the devisee dies in the intermediate time between the making of the will and the death of the testator; but, in the latter case, the devise is void at the beginning, as if the devisee be dead when the will was made.”

Thus, a legacy “lapses” when the legatee dies after the making of the will but before tne death of the testator. Estates & Trusts Art. § 4-403 concerns such legacies. It sets out the conditions under which they shall not lapse or fail and gives the effect of the death of such a legatee. See Estates & Trusts Art. § 4-401 dealing with a legatee failing to survive a testator by 30 days. A legacy is “void” when it is “To A” and A is in fact not alive at the date of the execution of the will. A legacy is “inoperative” when it is “To A, if A survives the testator”, but in fact A does not survive the testator. Void or" inoperative legacies were covered by statute effective 1 January 1970, now codified as Estates & Trusts Art. § 4-404. The statute deals with nonresiduary legatees, subsection (a), and residuary legatees subsection (b). As to the latter it provides: “Where a legacy to one of two or more residuary legatees is void or inoperative, the other residuary legacies shall be augmented proportionately by the property which is the subject of the legacy.” It is manifest, and not disputed by the parties to this appeal, that the legacy to Henry E. Smith was void. They also are in agreement that § 4-404 is not applicable. We are in accord. Henry E. Smith was not alive at the date of the execution of the will, so the legacy to him was void. The statute, which was effective 1 January 1970, did not apply because the remainder estates vested in those entitled on the death of the testator, which preceded the effective date of the statute. Clearly in this regard, the will spoke as of the death of the testator. Lee v. Estate of Davis, 226 Md. 416. Retrospective operation of a statute is not favored. There is a general presumption that statutes are intended to operate prospectively and the presumption may be rebutted only by a clear expression in the statute of a contrary legislative intention. Ramsey v. Prince George’s County, 18 Md. App. 385, and Court of Appeals cases cited therein at 392. See Berg v. Merricks, 20 Md. App. 666, 681.

Even though there is no class of cases where decisions are of so little aid in reaching a correct conclusion as that involving the construction of wills, Payne v. Payne, 136 Md. 551, 554, cited in McElroy v. Mercantile-Safe Deposit & Trust Co., supra, at 283, there are well-settled guidelines for construing a will. They were summarized in McElroy at 283-284, and we iterate them with citations omitted:

“(1) The cardinal principle is to carry out the intention of the testator, as deduced from the ‘four corners’ of the will. . . .
(2) The general intent of the testator prevails over minor discrepancies, omissions or contradictions. ...
(3) One of the strongest presumptions of the law is that where a will contains a residuary clause, every intendment shall be made against there either being a general or a partial intestacy. . . .
(4) Where a meaning is doubtful or alternative constructions are possible, the will should be construed to effect the general intent of the testator. . . .
(5) The Court in construing a will may change, transpose or add to the words of the will in order to effect the general intent of the testator. . . .
(6) Where the residuary clause itself does not make a complete disposition of the residuum, the presumption against intestacy is not applicable, and if the words of the will clearly create an intestacy, the Court will not fill the void. . . .
(7) The Court will not write a new will for the testator, but will construe the words used by him, and will not change such words unless it clearly appears what specific words should have been used to express the overriding general intent. . . .
(8) Words will not be changed unless it is clear what other wmrds were intended to have been used. . . .
(9) It is a very extraordinary will where a residuary clause does not prevent a partial intestacy, unless some part of the residue itself be not well given. . . .
(10) No particular form of expression is required to constitute a residuary clause, it being sufficient if the intent to dispose of the residue appears. . . .
(11) Where a word is used more than once, it is presumed to be used always in the same sense unless a contrary intention appears by the context. . . .”

The Court of Appeals said in Crawford v. Crawford, 266 Md. 711, 715, that “the distillation of [these guidelines] is that the general intent of the testator is in every case the controlling consideration.” See Scott v. Shuffler, 269 Md. 432, 435.

The general intent of the testator here is clear. He intended that his wife, if she was alive at the time of his death, receive only his household furniture and “personal effects” absolutely. She was to have no more than a life estate in all other property (except for discretion in the trustees to encroach on the trust principal for her benefit during her life). The remainder of the estate, whether the wife died before or after the testator, was disposed of in the residuary clause, carrying with it “every intendment . . . against there being a general or partial intestacy.” The residuary clause itself made a complete disposition of the residuum by giving it to named residuary legatees “share and share alike” rather than in specified fractional parts. The will here is not that “very extraordinary will” where the residuary clause does not prevent a partial intestacy. The short of it is that in harmony with the general plan and intent which is apparent from the four corners of the will as a whole, the share of each of the other residuary legatees is augmented by a proportionate part of the void legacy. The property which would have been included in the share of Henry E. Smith had his legacy not been void, did not pass under intestacy as to that share because it was patently the intention of the testator that his wife not take any part of the rest, residue and remainder of his property and estate. In other words, the general rule of construction to the effect that when a portion of a residuary bequest fails to become operative at the death of the testator, the share thus failing passes to the next of kin as property not disposed of by the will, does not apply because its application would defeat the clear intention of the testator as expressed in his will. Davis v. Mercantile-Safe Deposit & Trust Co., 235 Md. 266, 269.

Decree of 19 September 1974 affirmed; costs to be paid by appellant.

      . Only Norman R. Smith was then living. He did not file an answer or otherwise participate in the proceedings below.

      . Part 2 of the decree designated the distribution of the cash legacies under items 4 through 6 and part 3 ordered that upon completion of the distributions the substituted trustee was to be discharged and released.

      . A brief was filed on behalf of two of the appellees, John Walter Smith, deceased, and John D. Stoll, deceased, two of the remaindermen of the trust estate.

      . The statute was formerly codified as Art. 93, § 4-404%The revision divided it into two subsections but otherwise made only stylistic changes. The comment to former Art. 93, § 4-404 pointed out that the statute recognized, “of course, that this does not affect the acceleration of remainders where the void, inoperative or renounced gift is only a terminable interest, such as a legal or equitable life estate. Thus, if a person entitled to a life estate or an estate for years, either legal or equitable, renounces the legacy it passes immediately to the next designated taker under the will.”

      . Appellant suggests that the statute would control only had the testator died subsequent to the effective date of the Act. Appellees assert that had the “will been executed after January 1, 1970, the issue of intestacy would not be before the Court, due to the enactment of [the statute]”, quoting it as it appeared in Art. 93, § 4-404. The comment to that section discussed the law prior to the enactment of the statute:
      “Previously, there was no Maryland statutory law with respect to the disposition of a void legacy or an inoperative legacy. See, ‘Disposition of Joint and Otherwise Failing Devises in Maryland,’ 2 Md.L.Rev. 142 (1938); Sykes, § 135. The common law in Maryland had provided that real estate which was the subject -pf a void or inoperative legacy passed to the heirs of the testator, and personal property which was the subject of a void or inoperative legacy passed under the residuary clause in the will. A void or inoperative residuary legacy passed by intestacy unless the court could be persuaded to find some indicium of contrary intent in the will. McElroy v. Mercantile-Safe Deposit & Trust Co., 229 Md. 276, 182 A. 2d 874 (1962).”