author: Lowe, J.,

text:
    SACHINDRA N. PRADHAN et al. v. GERSON T. MAISEL et al.
    [No. 940,
    September Term, 1974.]

      Decided June 5, 1975.

    The cause was argued before Moore, Lowe and Mason, JJ.

      Lowell L. Maguire for appellant Sachindra N. Pradhan and James K. Foley for other appellant.

      N. Alfred Pasternak, with whom was Morris D. Schwartz on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Pinkas Fliegel (Fliegel) a real estate broker sued RMR Corporation (RMR) and Gerson T. Maisel (Maisel) for a commission claimed due for having sold a small shopping center to Sachindra N. Pradhan (Pradhan), who also sued RMR and Maisel for specific performance. The cases were tried together before Judge Samuel W. H. Meloy sitting as the Circuit Court for Prince George’s County. He decided that the contract of sale never came into existence because of the failure of a condition precedent. Both Fliegel and Pradhan appealed.

RMR was a corporation incorporated in the District of Columbia authorized to buy, hold or sell real estate. Although it had owned and sold at least two other properties, its then single asset was the College Park shopping center. Maisel, the president of RMR listed the property for sale with Fliegel for $180,000.00.

The entire stock of RMR was held by three parties in equal shares, Maisel the president, Mr. Sites the secretary and the estate of Romeo Cantilena through its personal representative. The three also comprised the Board of Directors.

Fliegel interested Dr. Pradhan in the property but not to the extent that he offered the full purchase price. Twice contracts were submitted for amounts under that price and twice Maisel rejected them out of hand. After the last rejection, Fliegel with one of his agents (Masciana) proceeded to negotiate a compromise higher than the rejected offer but lower than the list price from Maisel. Upon reaching a satisfactory figure, they completed a form contract by hand and obtained Maisel’s signature. The effect of that signature, i.e., whether it merely indicated Maisel’s approval subject to the secretary’s concurrence, or whether Maisel’s signature alone operated to bind the corporation, is the crux of this case.

As might be guessed the testimony relevant to that issue differed. Maisel testified that it was a procedural short-cut in no way intended to bind the corporation without the signature of the secretary Mr. Sites:

“A $160,000. Then he said I will write another contract. So, we proceeded from the basement into the dining room where this contract was written. Then he said, ‘this contract here will be presented to Mr. Pradhan.’ Mr. Masciana pleaded that he could not possibly ever get this contract approved. It was just too much money and there was the pleading, constantly by Mr. Masciana. He didn’t think he could ever get it accepted, the price had to be reduced, but then Mr. Fliegel told him to take it to Mr. Pradhan and make an attempt to get it approved, but in the meantime Mr. Fliegel told me to affix my signature because he will bring it back to me and I would present it to the secretary for signature and that will be when it is one less step to take, so my signature was placed on the contract before anyone elses knowing that Mr. Fliegel would bring it back to me. I would discuss it with Mr. Sites and proceed from there.”

Mr. Fliegel’s recollection was not the same:

“Q Mr. Fliegel, did you discuss at the time of that negotiation on November 1st that you have already testified to, did you discuss with Mr. Maisel his authority?
A Yes. I was asking Mr. Maisel what is the need of the signature of the secretary and he says not, T am, have the controlling shares. I acquired the majority since one of the partners died and I always do sign these contracts and they always, my people always agree it was me.”

For emphasis he added:

“A Well, as a matter of fact I want him to, I wanted to go to the secretary. He said, ‘You don’t need it.’ He kept assuring me, you don’t need it.”

On cross-examination he was asked:

“Q Did he ask you to bring it back to him, not what he expected. Did he ask you to bring the contract back to him?
A I think the way he said, ‘go see if your buyer is going to sign it.’ That is what he said.
Q Then, ‘bring it back to me’ ?
A Well, I think that is what he said, just to see if your buyer will sign it then you have a deal.
Q Did he say, ‘then you have a deal or did he say
A ‘If your buyer sign it then you have a deal.’ That is the word he said.”

A third version was provided by Fliegel’s agent Masciana who was present at the signing:

“THE WITNESS: Well, actually we didn’t discuss anything until he signed it. When he signed Mr. Fliegel picked up the, he was writing it, picked up and said this is a corporation we would like to have somebody, you know, counter sign, a secretary or something. Then I told him, how come, I didn’t know, you know, you didn’t tell me it .was a corporation. Fliegel had never told me it was a corporation. I assumed that Mr. Maisel was the sole owner, but then he said, you know, we have to have somebody else’s signature.
Mr. Maisel objected to that. He said it really was not necessary. That he had done all of the business of the corporation on his own, on both of the times that his signature was good. We insisted, we would like to have someone else.”

On three occasions Maisel or his attorney wrote Fliegel who was presumably acting on behalf of Pradhan expressing Maisel’s inability to arrange settlement at the time set by Fliegel and postponing that event for 32 days. Each letter concluded that this additional time would permit Maisel either to discuss “the matter more fully with Mr. Sites, the Secretary of R.M.R. Corp. who, I understand from Mr. Morris Schwartz, attorney for R.M.R. Corp. must sign the deed transfer.” or that “he [Maisel] will need this additional time to obtain the consents of the other two stockholders.”

Finally Mr. Schwartz wrote the attorney whom Fliegel had indicated would represent Pradhan:

“RMR Corporation is unable to settle on the purchase offer signed by Sachindra Pradhan, dated November 1, 1973, and which was never fully executed by RMR.”

Appellants Fliegel and Pradhan by identical briefs raise five questions. The first two relate to the requirement of Md. Rule 342 setting forth “Matters to be Pleaded Specially.” Appellants claim that a special plea is necessary before a defense “That the Contract made was Ultra Vires” Md. Rule 342 c 1 (g), may be asserted. They further allege that subsection (j) of the same rule requires that “a denial of the execution of any written instrument alleged in the pleadings” must be specially pleaded.

On the principles thus expressed there is no doubt; however, we fail to see the relevancy here. There was no assertion by appellee that the corporation was without authority to sell. The defense was that the corporation did not contract, not that it had no authority to do so. The authority in dispute was Maisel’s — not the corporation’s.

Nor was there any denial in the record that the instrument was executed. To the contrary Maisel expressly admitted signing it as is indicated by his testimony repeated here. The admission of the signature, however, does not foreclose a defense under the general issue plea relating to the legal effect of that signature. The defense asserted is precisely that pled, i.e., that appellees were not indebted as alleged because they had not promised as alleged. Appellants would have us interpret the Rule to require a special plea whenever one denied that he had entered a contract. Such is not the intent of the rule. Under the former statute after which the Rule is fashioned a failure to deny the execution of the instrument operated as an admission of the execution. It is an unnecessary procedural burden of proving the signature when that is not an issue, from which a plaintiff was relieved by the Act (Rule), Cf. Farmers & Mechs. Natl. Bank v. Harper, 151 Md. 358, 361; Banks v. McCosker, 82 Md. 518, 525. Even the dicta in a partnership case quoted by appellants explains that purpose:

“At common law, whenever a declaration alleged a partnership or a corporation or a written instrument material under the pleadings, and issue was joined on the general issue pleas, the burden was on the plaintiff to prove the existence of the partnership or the corporation or the genuineness of the instrument. In the great majority of cases it was impossible to refute the allegation ... In order to obviate this useless procedure, the Legislature in 1888 enacted the rule that whenever the pleadings in an action at law allege the partnership of any parties, or a corporation, or the execution of any written instrument filed in the case, the same shall be taken as admitted unless denied by the next succeeding pleading of the opposite party ... The object of the statute is to facilitate the trial of cases by requiring defendants to declare whether they demand such proof.” McBriety v. Phillips, 180 Md. 569, 571-572.

Finally, although the same questions are raised and arguments set forth by both appellants, we fail to see how Pradhan can complain. He received adequate notice of his opposition’s arguments because his equity suit was answered in detail, paragraph by paragraph, setting forth the defense of unfulfilled condition precedent.

Appellants’ next three questions assert that the trial court erred 1) in finding a condition precedent to the contract, 2) in failing to find a subsequent ratification of the contract, and 3) in declining to hold that Maisel had apparent authority to execute the contract on behalf of RMR. As to question 2, there is simply no evidence of subsequent ratification. Question 3 is subsumed by question 1 in this case since if all parties were aware of the existence of a binding contract depended on fulfillment of the condition precedent, viz., obtaining a. second signature, there could have been no apparent authority.

We hardly need repeat that no contractual duty arises when there is an unfulfilled condition precedent to a contract:

“It is fundamental that where a contractual duty is subject to a condition precedent, whether express or implied, there is no duty of performance and there can be no breach by non-performance until the condition precedent is either performed or excused.” Laurel Race Course, Inc. v. Regal Construction Co., Inc., 274 Md. 142, 154.

The trial judge found that the signature of the secretary Mr. Sites was a condition precedent of which Fliegel was aware:

“Then the Court heard the testimony of a defendant, president, who testified unrebutted that he instructed Fliegel to return the contract for the secretary’s approval. Sites testified that the first thing he knew of a contract was when he received a call, I believe he said for Mr. Maisel that some one was calling on the telephone in Mr. Maisel’s business establishment. I can only infer that they were somewhere close together, but in any event he answered the phone and talked to a person who named himself known as Pinkas Fliegel and discussed the signing of the contract.
He said over the phone that he did not know about the contract, and wished to make an appointment with Mr. Fliegel, told him to call me at my office, received a call from Fliegel, said he had a contract he wanted me to sign.
Now, the Court is mindful of dealing in the market place with respect to real estate transactions. It is mindful of the activities of close corporations, and interprets the evidence in this case that there was a condition precedent restricting the effect of the instrument.
The contract, Plaintiffs Exhibit No. 5 which may be, and was shown by parol evidence, it being not a contradiction of the written instrument, but going to the very existence of a contract and tends to show and does show that no valid contract ever existed.”

Not only are we bound by that finding simply because it is not “clearly erroneous” Md. Rule 1086, our own review of the record leaves us in complete accord with the result. Although the court here found, and we affirm, the non-existence of the contract based upon an express condition precedent, there is authority that would impute a condition precedent into the contract as a matter of law and presume the broker’s knowledge thereof through his experience as well as other language of the contract.

In Prince George’s Club v. Carr, 235 Md. 591, a broker sued for a commission for the sale of a country club property based upon an executed contract of sale which failed for want of approval by the stockholders. The Court decided that a final settlement was a condition precedent to the payment of the commission due to the circumstances of the case and the inclusion of a condition that the broker’s commission was to be paid at time of settlement from the sale proceeds. The Court then read into the contract Md. Code, Art. 23, § 66 requiring two-thirds stockholders’ approval of any corporation selling all or substantially all of its assets.

“This Court, in various decisions over a long span of years, has cited and applied ‘the general rule that subsisting laws enter into and form part of a contract as if expressly referred to or incorporated in its terms, and the rule embraces alike those provisions which affect its validity, construction, discharge, and enforcement.’ Holmes v. Sharretts, 228 Md. 358, 367, citing recent decisions. See also Griffith v. Scheungrab, 219 Md. 27, citing earlier Maryland cases to the same effect. As was pointed out in Holmes and Griffith, Professor Corbin (3 Corbin, Contracts, Sec. 551) disagrees with the statement that subsisting laws are incorporated into a contract but he recognizes the validity of the general principle recognized in those cases. It is his view that ‘words and other symbols must be interpreted in the light of surrounding circumstances; and the existing statutes and rules of law are among those circumstances.’ (p. 198)
The surrounding circumstances, including the limitation by reason of Code (1957), Art. 23, Secs. 65 and 66, that the Club could not make the sale that Mr. Coates, the vice-president of the broker, had arranged without the approval of two-thirds of its stockholders, make it appear to us that the condition of no commission without a settlement and payment of the purchase price was applicable if the stockholders did not approve the sale.” Prince George’s Club, 235 Md. at 607.

Finally the Court charged the broker with the knowledge that the Club was selling substantially all of its assets and that the stockholders had the final say:

“We think he cannot have failed to know that the Club intended to sell substantially all of its assets, and that the stockholders were the persons who, as a group, had the final say when a chance to do so was presented, (he himself had told the second stockholders meeting he attended that one of the terms of the contract he proposed was the deposit was subject to ‘ratification of agreement’) and that he was chargeable with knowledge that two-thirds of the stockholders must approve if such a sale were to go through. Under these circumstances, when Edw. R. Carr, Inc., by Mr. Coates, signed the contract which embodied the condition that its commission was to be paid at settlement and from the purchase price then payable, it agreed that it would get no commission unless the stockholders of the Club approved the sale as effectively as if that proviso had been written in the contract in so many words. Holmes v. Sharretts, supra.Id. at 608.

The analogy here is apparent. The contract contained a similar clause referring to the time and source of payment of a commission. The shopping center was the sole asset of the corporation and Fliegel’s own testimony indicated his awareness that there were other prerequisites to consummation of the sale. As to Pradhan, it is not even necessary to impute Fliegel’s knowledge to him from the obvious fact that, whatever may have been his legal obligation, Fliegel was in actuality acting as Pradhan’s agent as Well as RMR’s. Pradhan expressly admitted that he was aware of the unfulfilled condition to the consummation of the contract. On cross-examination he was asked about his knowledge of the letters from Maisel and his attorney to Fliegel:

“Q Then you understood the paragraph which referred to the fact that it was necessary for the secretary to sign the deed of transfer?
A Yes.
Q Let’s see now, that is Plaintiffs Exhibit No. 11, you say you got a copy of that letter, is that correct?
A Yes.
Q And, did you read it at the time you got your copy?
A I expected I would read it.
Q Did you understand what you, what the contents of it were?
A I thought so.
Q Then you understood that Mr. Maisel needed an additional time to secure the consent of the other two stockholders?
A Sure.
A And, on February — did you receive a copy of this letter, Plaintiffs Exhibit No. 12?
A Yes.
Q And —
A Can I add a footnote? Each time I was told that all of the settlements are being met to seek these things which are being done so this is after each letter when corresponding with Fliegel Real Estate, they were telling me that Mr. Maisel is doing his best to get all of these necessary things. No doubt — so I had no doubt.
THE COURT: Mr. Maisel was doing what?
THE WITNESS: To secure these consents or to' get the signature, everything that is needed for the deed, that I was told by Mr. Fliegel or Mr. Masciana that he still hold the majority of the shares and there will be no difficulty in getting these things and he will be getting it.
By Mr. Pasternak:
Q But he was saying, still trying to get them? He hadn’t gotten them yet, that is what you were told?
A Right.”

But the analogous reasoning of the Carr case is merely a cumulative support for this holding. Although it precisely fits the facts of this case the finding here by the trial judge of an express condition precedent eliminates the heed for application of Carr, appropriate as it is. We note in passing that we heartily concur with his finding that Fliegel was aware of the condition precedent.

“I can’t help but comment to the reprehensible and immoral activities of the president of R.M.R., Dr. Pradhan is an innocent victim of a fast shuffle, but the fast shuffle was predicated at the outset upon Mr. Fliegel who finagling in this instance because he knew very well that the contract required compliance with the conditions precedent.”

Judgment affirmed.

Costs to be shared equally by appellant Fliegel and appellee Maisel.

      . Laws of Maryland 1888, Ch. 248.

      . “Parol evidence is admissible not to alter or contradict the terms of a written contract but to show that there was not a contract at all or that the writing was not to become one until a certain time or until the happening of certain events.” Lutz v. Porter, 206 Md. 595, 600.

      . D. C. Code, § 29-928 which only requires authority of the Board of Directors would, in this case where the three equal stockholders are also the members of the board, effect the same result.

      . “The seller agrees to pay to Fliegel Real Estate, his agents, a commission amounting to 6V2% and the Title Company, or Real Estate Office through which settlement is made is hereby authorized and directed to make deduction of the aforesaid commission from the proceeds of the sale and to make payment thereof to the said agent.”


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    PAUL EVERETTE BRUCE v. STATE OF MARYLAND
    [No. 959,
    September Term, 1974.]

      Decided June 5, 1975.

    The cause was argued before Powers, Gilbert and Davidson, JJ.

      Robert N. Winkler, Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Michael B. Sauer, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

According to Bernard Schwartz in The American Heritage History of the Law in America at 33 (1974), the late John Adams, in speaking of his oft-criticized, but highly successful defense of the British troops charged with the killings in the Boston Massacre, opined: “I have no hesitation that Council [sic] ought to be the very last thing that an accused person ... [should lack] in a free society.” Indeed, the right to counsel was thought of so strongly by this country’s founding fathers that they provided in the Sixth Amendment, a part of “that classic inventory of human rights, the Bill of Rights”, that “In all criminal prosecutions the accused shall ... have the Assistance of Counsel for his defence.” It has been over two hundred years since John Adams uttered his words relative to the right to counsel, but the question of an accused’s having counsel at trial still plagues us. See, e.g., Gideon v. Wainwright, 372 U. S. 335, 344, 83 S. Ct. 792, 93, 9 L.Ed.2d 799, 805, 93 A.L.R.2d 733 (1963); Manning v. State, 237 Md. 349, 206 A. 2d 563 (1965); State v. Diggs, 24 Md. App. 681, 332 A. 2d 283 (1975); Guarnera v. State, 20 Md. App. 562, 318 A. 2d 243 (1974); Taylor v. State, 20 Md. App. 404, 316 A. 2d 296 (1974); English v. State, 8 Md. App. 330, 259 A. 2d 822 (1969).

The case now before us had its origin in Woodlawn, Baltimore County, on the evening of June 24, 1974. At that time a County Police officer observed four men in the rear of the Holiday Inn. Paul Everette Bruce, the appellant, was identified by the officer as one of the four men, and more particularly, the man who was the driver of the motor vehicle in which the four left the area. It was later ascertained that a television set had been stolen from the Holiday Inn. An investigation by the police led to charges being lodged against the appellant for “outhouse” breaking. Md. Ann. Code art. 27, § 32.

When Bruce was arraigned in the Circuit Court for Baltimore County on August 29,1974, the following colloquy occurred:

“THE COURT: Paul Bruce and Leroy Griffin. Which one is Paul Bruce?
BRUCE: lam.
THE COURT: How old are you, Mr. Bruce?
BRUCE: Twenty-nine.
THE COURT: And, Mr. Griffin, how old are you?
GRIFFIN: Thirty-one.
THE COURT: Have you gotten a copy of the charges against you?
BRUCE: Yes, sir.
GRIFFIN: Yes, sir.
THE COURT: Do you understand what you’re charged with?
BRUCE: Right.
GRIFFIN: Yes.
THE COURT: Breaking into the Holiday Inn building on Belmont Avenue, western part of Baltimore County, and stealing a color television set, a twenty-one inch Westinghouse. The charge is breaking and entry of the Holiday Inn room and stealing a television set. Do you have a lawyer, Mr. Bruce?
BRUCE: Not now.
THE COURT: Do you work?
BRUCE: I’m in school.
THE COURT: Where do you go to school?
BRUCE: RETS Electronics School, Russell Street.
THE COURT: How about you, Mr. Bruce, who do you live with?
BRUCE: Live with my wife.
THE COURT: She work?
BRUCE: Yes, she does.
THE COURT: Why haven’t you gotten a lawyer?
BRUCE: I’m supposed to take a polygraph test September the 3rd.
THE COURT: Who told you that?
BRUCE: Officer Snyder and Hopkins.
MR. SAUER [Assistant State’s Attorney]: Your Honor, that test was scheduled for July the 1st, the defendant failed to appear.
BRUCE: I was in traffic court that day.
THE COURT: Your address 3503 Plateau Avenue? BRUCE: Yes, it is.
THE COURT: You’re 4114 Bell?
GRIFFIN: Yes.
THE COURT: The police must have grave doubts as to the guilt of Paul Bruce if they’re still talking in terms of giving him a lie detector test. Whose idea was that, does that file reflect?
MR. SAUER: I’ll look, your Honor.
THE COURT: Whose idea was it about this lie detector test?
BRUCE: Officer Hopkins and Detective Sergeant — I don’t know his last name.
THE COURT: Well, I can’t see much excuse for Griffin not getting a lawyer, but, I think that if the police were volunteering to give me a lie detector test which might very well lead to the abandonment of the charge against me I don’t know whether I’d rush out and get a lawyer. You have a car?
BRUCE: Yes, ’74 Oldsmobile.
THE COURT: Where did you get the money? You’re going to RETS?
BRUCE: My wife and I got it through the Community Action Agency in Baltimore.
THE COURT: You got a car through the Community —
BRUCE: No, my wife is working, she’s a psychiatric nurse.
THE COURT: Well, you both have to get your own lawyers. You’ve gotten copies of the charges against you, you both understand what you’re charged with. The Court rules that as long as each one of you have a 1974 automobile and that you’re not eligible for a lawyer at the taxpayer’s expense you’ll have to get your own lawyer.
BRUCE: But, your Honor, can I say something? If my innocence can be proven on the 3rd of September why should I get a lawyer?
THE COURT: Fine, if it’s proved, if the State finds out that you’re innocent on the 3rd of September then you won’t need a lawyer, but, if you don’t receive exoneration, if they don’t drop the charge against you and it comes to trial you may need a lawyer and if you do that’s your problem, you’re going to have to get one. All I’m telling you is that if there’s to be a lawyer to represent you you’re the one going to have to get it, not the Public Defender. The Public Defender will not get you a lawyer and their regulations wouldn’t permit it.”

Subsequently, Bruce appeared before another judge on September 27,1974. At that time the following transpired:

“THE COURT: . .. Are you Paul Everette Bruce?
BRUCE: Yes, sir.
THE COURT: Where is your lawyer?
BRUCE: I don’t have one yet. I haven’t retained one.
THE COURT: Do you want to represent yourself ? BRUCE: No.
THE COURT: Well, your trial is going to be called. BRUCE: Well, Your Honor, as I told [the judge], I was not employed. I was in electronics school and it is a federally funded program. I don’t have a job. I am just going to school.
THE COURT: What did you say? Would you repeat that, please?
MR. BRUCE: That I am in electronics school and it is a federal funded program and they pay you as you go to school. That is the only employment that I had.
THE COURT: He told you you had to employ counsel?
BRUCE: Yes, because I was driving a new car.
THE COURT: You have not employed counsel so you are ready to go to trial, now; are you not?
BRUCE: No, sir. I am going to try to, my wife and I, to get the money to get an attorney.
THE COURT: But, we gave you an opportunity, both of you, to employ counsel. So, you had your Constitutional Right to counsel. You chose not to hire one. Are you ready to proceed?
BRUCE: Yes, but I want to retain [counsel].
THE COURT: Well, you have already had an opportunity.
BRUCE: I didn’t have the money then.
THE COURT: Well, that was determined at the hearing of August 29....
BRUCE: Yes, but my wife wouldn’t be able to get a loan until maybe two weeks from now.
THE COURT: You have already been given a month.
BRUCE: Yes, but she has to get it through the Credit Union. She has her card.
THE COURT: Yes, but neither one of you notified the State’s Attorney and he has his witnesses here today ready for trial.
BRUCE: I never even got a summons to come to Court today.
THE COURT: You knew it would be assigned for trial.
BRUCE: Yes, sir, I knew but I never got a summons.
THE COURT: Well, we can proceed with trial. You both seem to be intelligent young men.
BRUCE: Your Honor, I would like to ask for a jury trial if it is possible.
THE COURT: I beg your pardon?
BRUCE: I would like to ask for a jury trial if it is possible.
THE COURT: Well, I have not gotten down to that point yet. I am trying to settle the point of counsel. After hearing all of the information, what does the State wish to do?
MR. SAUER: Well, Your Honor, the State is prepared today with its witnesses.
THE COURT: Yes, you have said that earlier. I realize the witnesses are in Court but I don’t know who they are or what they consist of. What do you suggest now that you have heard the statements of the Defendants?
MR. SAUER: The State is prepared for trial.
THE COURT: I realize you are prepared for trial. What do you suggest insofar as the Defendants are concerned?
MR. SAUER: Well, they are not represented by counsel, Your Honor. There is no requirement —
THE COURT: Do you suggest that we try it now or postpone it?
MR. SAUER: The State is ready to try it right now.
* * *
THE COURT: .. . Now, Mr. Bruce, you have a Constitutional Right to a trial by a jury, and that means you could not be convicted without the unanimous consent of every member of the jury. You also have a right to be tried by a judge. What is your desire?
BRUCE: Jury trial.
THE COURT: You pray a jury trial?
BRUCE: Yes, sir.
THE COURT: All right. I suggest that we go ahead with the jury trial.
MR. SAUER: The State has its witnesses here. The State would like to proceed in that case.
THE COURT: I say, couldn’t the Judge that hears the jury trial try them both?
MR. SAUER: Well, Your Honor, one is jury and one is nonjury.
THE COURT: Yes, but he hears the facts before the jury and he can pick up the nonjury case right after; could he not?
MR. SAUER: That is correct, Your Honor.
THE COURT: I think that if he could hear the same witnesses, hear the jury trial and then hear the nonjury trial right after it —
MR. SAUER: Very well, Your Honor.
THE COURT: Some inquiry ought to be made if we can do it today.
MR. SAUER: Your Honor, in the hypothetical sense, if there is no jury trial or no jury available today—
THE COURT: ... There may or may not be a jury, so inquiry can be made.
MR. SAUER: I will make that right now, Your Honor.
THE COURT: You gentlemen wait here in Court until something is determined on that.
BRUCE: Your Honor, is it okay if I call my wife so that she can make arrangements to have the lawyer here before the jury trial starts?
THE COURT: Yes.
(Proceedings suspended.)
MR. SAUER: Your Honor, the matter of Bruce and Griffin, it is my understanding that both Defendants wish to proceed nonjury. The Defendant changed his mind, so the State would be prepared to try both cases.
THE COURT: The witnesses are not excused.
MR. SAUER: I have not excused any witnesses.
(Whereupon, the case was transferred ... for trial.) ” (Emphasis supplied).

After waiver of jury trial, the third judge said:

“THE COURT: All right; I’ll accept your waiver of a jury trial. It has already been determined . .. that you should have employed your own counsel and therefore, you are to represent yourself. Be seated; listen to the testimony. You have the right to cross-examine the witnesses; do you understand that?
BRUCE: Yes.
GRIFFIN: Yes.
THE COURT: All right; sit down.”

Bruce was sentenced to three years imprisonment and has appealed to this Court.

As we see it, Bruce was denied both his federal and state constitutional right to be represented by counsel. The Circuit Court for Baltimore County was wrong and must be reversed. Maryland Rule 719 provides:

“a. How Made.
Arraignment shall be conducted in open court and shall consist of reading the indictment to the accused or stating to him the substance of the charge and calling on him to plead thereto. The accused shall be furnished a copy thereof as soon as practicable after it shall have been prepared and in any event within a reasonable time before he is called upon to plead, and at the expense of the prosecuting authority.
b. Appointment of Counsel.
1. Advice by Court.
If at any stage of the proceeding, the accused appears in court without counsel, the court shall advise him of his right to counsel.
2. When Required — Conditions.
Unless the accused waives his right to be represented by counsel or is financially able to obtain counsel, the court shall request the Office of the Public Defender to designate or appoint counsel to represent the accused if the offense charged is a serious crime, as defined in Code, article 27A (Public Defender).” (Emphasis supplied).

The State vigorously argues that Md. Ann. Code art. 27A, § 2 (f) mandates that in order for the trial court to request the Public Defender to designate or appoint counsel, there must be a finding that the accused is “indigent”. The accused, as the State sees it, must, on oath or affirmation, subscribe and state in writing that he is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation.

The State then suggests that “at no time throughout the arraignment or the trial proceedings did the appellant allege he was unable to afford private counsel nor did he request the services of the Public Defender nor did he take exception to the finding of the trial court that he was not indigent.... Thus the issue is not properly before this Court. . . Md. Rule 1085.” The record, however, reveals that Bruce clearly expressed to the second judge Bruce’s desire to be represented by counsel, and that he did not want to represent himself. We interpret Bruce’s remark as an “objection”, and thus a preservation of the issue for our review.

A reading of the above quoted portions of the first transcript demonstrates that the first judge was led to the conclusion that Bruce could afford to retain private counsel because of Bruce’s “ownership” of a 1974 Oldsmobile. No effort was made by the first judge nor his successors to inquire into the extent of the “ownership”. It may be that Bruce owned the motor vehicle absolutely, or that he owned it with his wife or another. It may be that the vehicle was so heavily encumbered that the “ownership” amounted to little more than mere fiction. The record does not disclose enough facts for one to conclude that Bruce was or was not able to retain private counsel. Hence, the first judge’s decree relative to Bruce’s right to appointed counsel was obviously founded on shifting sand rather than a concrete base. In short, there was not enough data available to make a sound judgment.

The State, on oral argument, contended that the first judge’s decision did not deprive Bruce of his right to seek the services of the Public Defender. The State reasons that if Bruce felt the judge was wrong, he should have gone to the Public Defender and, for himself, ascertained his qualification, vel non, for those services. We do not see it in the same light. When the first judge told Bruce that Bruce could not, at public expense, have counsel appointed, there would be little likelihood that Bruce would dispute that holding and set out to determine whether the judge was correct.

Patently, Bruce did not waive his right to an attorney. This is demonstrated by the fact that Bruce told the second judge of Bruce’s desire to have an attorney, but the second judge was unfortunately lured into the same erroneous path as the first judge. By the time the matter reached the third and final judge, the die was cast. The trial judge, without knowing of the precise nature of the prior happenings, proceeded on the theory that there had been a proper determination that Bruce did not qualify for the services of the Public Defender. We have then before us a “Tinker to Evers to Chance” play, but unlike that well-known infield trio, in this case everybody dropped the ball.

Judgment reversed and case remanded for a new trial.

      . B. Schwartz, The American Heritage History of the Law in America at 33(1974).

      . Black’s Law Dictionary (4th ed. 1968) defines “Outhouse” as: “Any house necessary for the purposes of life, in which the owner does not make his constant or principal residence. State v. O’Brien, 2 Root (Conn.) 516....”


text:
    MERRITT SAVINGS AND LOAN, INC. v. BOARD OF BUILDING, SAVINGS AND LOAN ASSOCIATION COMMISSIONERS
    [No. 1001,
    September Term, 1974.]

      Decided June 5, 1975.

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

      Eugene Hettleman for appellant.

      Daniel T. Doherty, Jr., Special Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

“The savings and loan business ... has so expanded in recent years and has become so integrated with the financial institutions of this State and is so important as a method of promoting home ownership and thrift, that such business is affected with a public interest and shall be supervised as a business affecting the economic security and general welfare of the people of this State;”. Md. Code, Art. 23, § 161 A (a). “The Director shall have general supervision over all associations which are subject to the provisions of this article.. . .” Md. Code, Art. 23, § 161 G (c).

As prologue we note the distinction between mutual savings and loan associations and stock savings and loan associations. In mutual associations there is but one class of shareholder known as free shareholders (depositors) who receive equal dividends and, along with borrowing members, elect the directors. In contrast, a stock association has, in addition to free shareholders, a class of guaranty stock which constitutes a secondary reserve assessable against the holder. Dividends may not be paid to holders of guaranty stock unless they have been paid on free share accounts and may not be withdrawn until all liabilities have been satisfied and free share accounts paid out. Md. Code, Art. 23, § 161 P (c). The quid pro quo for holders of guaranty stock, however, is their exclusive authority to elect the directors and thus control the association. The case at bar involves Merritt Savings & Loan, Inc., a stock association.

Md. Code, Art. 23, § 161 P (e) authorizes a stock association to issue additional guarantee stock provided “that any such issue shall be made in accordance with a plan which shall have been filed with and approved by the Director.” [Emphasis added]. Assuming compliance with subsection (d) of § 161 P which is not questioned here, the sole criterion of determination prerequisite to approval by the Director is that “the plan is fair.” The relevant phraseology reads:

“The Director shall approve any such plan filed with him if he finds that.. . the plan is fair.”

The question before us narrows itself to an interpretation of that test.

The Facts

Merritt Savings and Loan, Inc. filed a plan for offering additional stock in proportion to its guaranty stockholders on a preemptive basis although preemptive rights were not provided for in the charter. After Merritt had conformed to all procedural prerequisites, the Director by letter denied the request to issue additional shares. The essence of the denial was:

“Since the prime purpose of issuing additional shares of Guaranty Stock is to raise operating capital and enhance the earnings capacity of an association, and the proposal submitted will not accomplish these objectives, permission to issue the additional shares is denied.”

The Board of Building, Savings and Loan Commissioners upheld the Director and Merritt appealed to the Circuit Court of Baltimore City. Judge James W. Murphy heard the appeal and properly agreed that the procedure of determination should include “not only the new evidence presented to [the Circuit Court] but also the contents of the record before the Board.” County Fed. S & L Assoc. v. Equitable S & L Assoc., Inc., 261 Md. 246, 258. In a written opinion reviewing all of the evidence before him Judge Murphy concluded:

“The Court finds that both the Director and the Board have acted within the proper bounds of discretion and have not acted unreasonably, arbitrarily nor capriciously. The Court further finds that the criteria applied by the Director and affirmed by the Board are fair, proper, and within the parameters of the legislative intent as well as being within the authority of statute and the general laws of Maryland insofar as the promulgation of rules and criteria are concerned.” It is from the order signed pursuant to that opinion that appellant appeals to us. Merritt argues the appeal to the Circuit Court of Baltimore City was governed by the Administrative Procedure Act, Md. Code, Art. 41, primarily § 255 (g), and that the basis of the Director’s disapproval was not in accordance with the statutory criterion of whether the issue was “fair.”

Scope of the Appeal

We concur that the scope of the appeal from the Board to the Circuit Court was limited by the Administrative Procedure Act to consideration of the eight criteria listed under § 255 (g). We do not agree with appellant “that the decision of the Director ran afoul of each and all. . . ” of five of those standards in that it was:

“ ... (2) In excess of the statutory authority or jurisdiction of the agency; or . . .
(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or
(6) Against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency and including de novo evidence taken in open court; or
(7) Unsupported by the entire record, as submitted by the agency and including de novo evidence taken in open court; or
(8) Arbitrary or capricious.”

Fair Is Not Fair, But That Which Pleases

Appellant’s entire argument falls over the unspoken premise upon which it is founded. Its contention assumes that there is no burden on moving party to convince the Director that the plan is fair. It would rather place the burden on the Director to prove that the petitioner’s request is unfair. That would be the case only if the statute superimposed a presumption of fairness upon filing of a plan. That is not what the statute provides. The mere submission of a plan does not create a presumption in the plan’s favor, so fairness must affirmatively be proven. Only when adequate proof of fairness is forthcoming “shall” the Director approve it.

Appellant submitted its plan and by its own admission offered no other evidence at any stage of the proceeding. In the de novo hearing in the Circuit Court it offered no evidence, relying solely upon its cross-examination of the Director who was placed at bay, attempting to defend his decision. In the course of defending his action, the Director tried not only to establish that fairness had not been affirmatively shown, but also that the plan was, in fact, unfair. This latter effort, whether successful or not, has no bearing on our decision because appellant did not, in the first instance, meet its burden of persuasion. Aside from the plan itself there has never been evidence introduced to support appellant’s side of the fairness scale.

Although there is no “presumption” of fairness from the submission of a plan, the Director may draw a permissible inference of fairness from the plan, when its merits are apparent on its face. The testimony of the Director here seems to indicate that if the plan submitted provided “more of the same” he may well have decided it was fair on its face thus alleviating appellant’s burden of proving it so. Appellant itself argues that very premise:

“The Director’s testimony seems to be, not that the plan was unfair to anyone, but that it could be more fair if the amount were increased and because it was not more fair, somehow it was not fair at all.”

We think that is precisely what the Director was saying. He found that the stock was being sold for one-third of its book value and by virtue thereof “the association [was] missing an opportunity to generate this additional capital simply because they [those in control] are selling [to themselves] at such a small or reduced figure, and there again it would seem in my judgment, to be accruing to the benefit of only those stockholders because, as I indicated, upon sale this stock would conceivably enhance tremendously in value.” He conceded that if the plan had entailed the sale of less stock for book value, generating the same reserve income, its fairness would have been more apparent, and he might have concluded that the plan was fair. As it was, however, and with no additional evidentiary showing, there was nothing upon which he could predicate a finding of fairness. The burden of persuasion was appellant’s and it was not met, as appellant assumes, by any presumption that a plan is fair until proven otherwise. That non-sequitur does nothing to supplant appellant’s burden. Having elected to rely on the plan alone for the Director to consider, rather than introduce evidence, appellant took the risk of non-persuasion. It lost.

Judgment affirmed.

Costs to be paid by appellant.


text:
    RICHARD H. DOBSON et al. v. JAMES L. MULCARE et al.
    [No. 1011,
    September Term, 1974.]

      Decided June 6, 1975.

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

      William A. Ehrmantraut and E. Gwinn Miller for appellants.

      Burt M. Kahn, with whom were Walter E. Laake, Jr., and Kaplan, Smith, Joseph, Greenwald & Laake on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

On May 29, 1973, James L. Mulcare, personal representative and surviving husband of Betty J. Mulcare, brought suit on behalf of his deceased wife’s estate, himself individually, and himself as next friend of his minor daughter, all collectively styled appellee, against Dr. Richard H. Dobson and the Brandy wine-Waldorf Medical/Dental Clinic, Inc., appellants. The suit alleged that Dr. Dobson, President and Treasurer of the Clinic, had negligently administered a tetanus toxoid injection to Mrs. Mulcare, in that the injection was made without first ascertaining Mrs. Mulcare’s medical history, and without determining whether she was likely to suffer an allergic reaction to the administration of the drug. The suit averred that as a result of Dr. Dobson’s negligence Mrs. Mulcare sustained bodily damage which ultimately resulted in her death.

At trial in the Circuit Court for Prince George’s County the appellee offered the testimony of Dr. Harold L. Hirsh, who is also a graduate of the American University, Washington College of Law. Dr. Hirsh was asked the question:

“[A]re you familiar with the standard of care in existence in Prince George’s County in May 1970 with respect to the administering of tetanus toxoid?”

An objection was immediately interposed by the appellants, and after voir dire and a colloquy with the court, the objection was sustained on the basis that while the doctor was “a qualified internal medicine specialist,” he was “not a general practitioner.” The trial judge stated that he did not “feel” that the witness was “sufficiently experienced as a general practitioner in the community of Brandywine to express an opinion in Prince George’s County for an office practice and for that reason” sustained the objection.

To support his position the trial judge cited Dunham v. Elder, 18 Md. App. 360, 306 A. 2d 568 (1973) wherein we, after dischssing the several different rules applicable to the standard of medical skill and care that have been applied by courts in determining whether there has been a breach by physicians and surgeons of the standard required of them, noted that Maryland follows the,

“ . .. most restrictive rule, observed in a few jurisdictions ... that an expert medical witness must be familiar with the standard of care possessed and exercised by physicians in the defendant’s own community or locality, the so-called ‘strict locality rule’.” 18 Md. App. at 364.

We concluded in Dunham, that in this State the plaintiff must demonstrate that “the defendant-physician failed to exercise ‘the amount of care, skill and diligence as a physician and surgeon which is exercised generally .. .in the community . . .in which he was practicing. ...” 18 Md. App. at 364. Kruszewski v. Holz, 265 Md. 434, 438, 290 A. 2d 534 (1972); Nolan v. Dillon, 261 Md. 516, 534, 276 A. 2d 36 (1971); State v. Fishel, 228 Md. 189, 195, 179 A. 2d 349 (1962).

The appellee noted a formal exception to the trial judge’s ruling. The matter was reserved for determination by an en banc panel, and the trial continued. The reservation occurred on a Friday. The following Monday, the next court session, the trial judge stated:

“ ... I had been doing a lot of reading and consider myself much more enlightened now'than I was the other day when I refused to let Dr. Hirsh testify as to the accepted practice in the community.
I was unfortunately, I believe, looking at what I personally thought of his ability as a practitioner of medicine, rather than his ability to understand and know the standard of care needed in the community, and I prohibited him from testifying as to the fact. I am convinced his qualifications are such he could have testified about it, and if you want to use him on rebuttal I will let him answer that one question. I just feel obligated to tell each of you two.”

Appellee’s counsel noted that Dr. Hirsh had departed for the Orient and would be gone for “four weeks”. Whereupon the trial judge said:

“Let me say this to you, and I am not saying I am wrong in my previous ruling, and I place emphasis on this, that I wanted to get a trial with the most favorable consideration to the plaintiff. I am not convinced the Court of Special Appeals and/or the Court of Appeals wouldn’t sustain my conclusion, based on the fact, I am of the opinion, for some substantial period of time he has become an educator rather than a practitioner of medicine, and I realize the basis for his expertise, apparently, was that he visited his classmate ... down at LaPlata a few times, and his practicing medicine in the City [Washington, D.C.], . . . could very readily be entirely different from Brandywine and the Waldorf area, Prince George’s and Charles County.”

The case went to the jury without benefit of Dr. Hirsh’s answer to the question directed toward Hirsh’s familiarity with the standard of care existent in May 1970, in Prince George’s County with respect to the tetanus toxoid injections. The jury found for the appellants.

The appellee filed a motion for a new trial. By the time the motion was heard our decision in Raitt v. Johns Hopkins, 22 Md. App. 196, 322 A. 2d 548 (1974), rev’d on other grounds, 274 Md. 489, 336 A. 2d 90, had been handed down. The trial judge denied the motion for a new trial, and the matter then proceeded before the en banc panel.

The panel consisted of Ralph W. Powers, Chief Judge of the Seventh Judicial Circuit, and Judges Samuel W.H. Meloy and Joseph A. Mattingly. The majority of the panel, Judges Powers and Meloy concluded that the trial judge had erred, and .they accordingly ordered a new trial. Appeal was entered to this Court from that ruling.

The appellee moved to dismiss the appeal on the ground that no appeal lies from an order granting a new trial. They reason that inasmuch as the en banc panel granted a new trial, there is no appealable judgment to be reviewed by this Court. It is, of course, axiomatic that an appeal does not lie from an order granting a new trial, but the Court of Appeals has carved out an exception to the general rule, insofar as its applicability to en banc proceedings is concerned, and allowed such appeals.

Recently, in Buck v. Folkers, 269 Md. 185, 304 A. 2d 826 (1973), Chief Judge Murphy, after noting that the en banc panel had, on April 26,1972, remanded a case for a new trial, which new trial was held on October 2,1972, observed that:

“While Buck, as the adverse party, was entitled under [the Constitution of Maryland] Article IV, § 22 to appeal from the en banc determination, . . . such an appeal, to be timely, must have been filed within thirty days after April 26, 1972. .. . Since it was not, we cannot take cognizance of the questions presented. ...” 269 Md. at 187-88.

As we read Buck, an adverse party in the en banc proceeding may appeal to this Court from an order of the panel notwithstanding the fact that the order grants a new trial, and provided that the appeal is taken within the thirty days prescribed by Md. Rule 1012.

Article IV, § 22 of the Constitution provides in pertinent part:

“Where any Term is held, or trial conducted by less than the whole number of said Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of the three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting, at which such decision may be made; and the several Circuit Courts shall regulate, by rules, the mode and manner of presenting such points, or questions to the Court in banc, and the decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party, at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal, or writ of error to the adverse party, in those cases, civil or criminal, in which appeal, or writ of error to the Court of Appeals may be allowed by Law. ...” (Emphasis supplied).

The italicized portion of § 22 makes it crystalline that the adverse party in an en banc proceeding may appeal to this Court “in those cases, civil or criminal,” in which the appeal is “allowed by law.” As we have seen (n. 3, supra), appeals from the granting of a motion for a new trial are not ordinarily “allowed by law”, but Buck clearly stands for the proposition that the granting of a new trial by an en banc panel is immediately appealable. Therefore, the appellants are properly before us, and the appellee’s motion to dismiss the appeal is denied. We now turn to a discussion of the case on its merits.

The law in this State is that whether a witness is qualified to testify as an expert is largely within the sound discretion of the trial judge, “and unless such ruling is clearly erroneous or a clear abuse of discretion it will not be reversed on appeal.” Spence v. Wiles, 255 Md. 98, 102-03, 257 A. 2d 164 (1969). See also Nizer v. Phelps, 252 Md. 185, 249 A. 2d 112 (1969); Smith v. State Roads Comm’n, 240 Md. 525, 214 A. 2d 792 (1965); Christ v. Wempe, 219 Md. 627, 150 A. 2d 918 (1959); Beckner v. Chalkley, 19 Md. App. 239, 310 A. 2d 569 (1973); Owens v. Creaser, 14 Md. App. 593, 288 A. 2d 394 (1972), rev’d on other grounds, 267 Md. 238, 297 A. 2d 235 (1972); Murphy v. Bd. of County Comm’nrs, 13 Md. App. 497, 284 A. 2d 261 (1971). In the case presently before us, the majority of the en banc panel did find that the trial judge was.incorrect in his refusal to allow the testimony of Dr. Hirsh.

A review of the record reveals that the appellants objected to the Hirsh testimony on the ground that it was proscribed by our holding in Dunham v. Elder, supra, in that Dr. Hirsh was unfamiliar with the. degree of care required of physicians engaged in the general practice of medicine in Prince George’s County. The trial judge seemingly, as the majority of the en banc panel observed, “construed Dunham as requiring the expert to have gained his knowledge by practicing or residing in the community involved.” Furthermore, the trial judge noted that although Dr. Hirsh possessed a Maryland medical license, dating from 1969, the doctor had never had a private practice within this State except for a few occasions when he took over the practice, temporarily, of a fellow physician who was ill. Dr. Hirsh’s internal medicine practice was essentially limited to the inhabitants of the District of Columbia with a few patients, however, traveling to Dr. Hirsh from nearby Maryland points. Dr. Hirsh possessed only temporary hospital privileges in this State, although he did frequent Maryland hospitals as a consultant on both infectious diseases and problems with antibiotics.

Chief Judge Orth in Raitt v. Johns Hopkins Hospital, supra, noted that Dunham had been misread and thus misconstrued. The Chief Judge pointed out, 22 Md. App. at 200, that Dunham does not hold that “the expert must have gained his knowledge by practicing or residing in the community involved.” It was not, in order to establish Dr. Hirsh’s expertise with respect to the standard of care required in the administration of an anti-tetanus “shot” in the Brandywine area of Prince George’s County, necessary to show as a prerequisite that the doctor practiced or resided in that geographical region.

“Dunham is not to be read as other than following the rule firmly established by the Court of Appeals. When we pointed out in Dunham that the experts offered had never been licensed to practice in Maryland, and had never practiced in this State, treated patients, enjoyed privileges in any hospital in Maryland or maintained an office here, we were not impressing additional requirements on the qualifications required by an expert to testify on the matter of local care or skill. We were merely noting the background of the physicians involved; we were not holding that they could not be familiar with the standard of care or skill in the community unless they were licensed to practice in Maryland, and actually practiced, treated patients, maintained an office, and enjoyed hospital privileges in the locality. If the evidence is sufficient to show fairly to the reasonable satisfaction of the trial judge that the expert witness proffered is familiar with the local standard concerned, that witness, otherwise qualified, may testify as an expert with respect to the standard.” 22 Md. App. at 203.

Appellants here argued that “[c]ontrary to the en banc majority’s opinion, . . . [the trial judge] did not base his holding solely upon Dr. Hirsh’s lack of practical experience in Maryland. As is clear from his statements in the appellant’s [sic] motion for a new trial, the trial judge only utilized Dr. Hirsh’s lack of experience in Maryland as an indication of his lack of familiarity with the local standards existent in Prince George’s County in 1970.”

The trial judge said at the hearing on the motion for a new trial:

“ . . . [Dr. Hirsh] decided to give up the practice of medicine full-time and go to law school and having done that, there is a serious question as to whether he continued to actively practice because since having graduated from law school and passing the Bar, he is now an educator teaching school and some medical-legal courses at Catholic University, American University and I believe Georgétown, maybe George Washington. And I believe teaching internal medicine possibly at Howard University Medical School.
Now, the question that the Court had to resolve in this case is not whether or not Dr. Hirsh ever practiced medicine in the locality where he was called upon to testify, the issue is, whether or not he possessed the qualifications to testify as to the practice of a general practitioner in the Brandywine section of Prince George’s County. The Court found originally at the trial after review of the Dunham v. Elder case and other Court of Appeals decision cases, ,the Court in exercise of its. sound discretion, determined that Dr. Hirsh’s qualifications were at least suspect from the factual testimony and .the Court’s observation qf his conduct during the trial. He was in the courtroom with: other experts .on behalf, of the Defendant and continuously assisted counsel, when I say continuously, quite.of ten.would from the audience, make suggestions to counsel and his law clerk for the Plaintiff regarding the trial. It was very obvious that'Mr. Hirsh’ was -miniitely familiar" with the principáis involved and actually injected his relationship with Dr. Perrin Járboé who , practices and has for years, practiced’in LáPlata, Charles County which is not "too distant-from Brandywine, Maryland, southern Prince George’s County and indicated from time to time he had discussed Dr. Jarboe’s patients with him during those visits.
The Court feels that that really is the factor that convinced me, after determining his present professional status as a lawyer-doctor or doctor-lawyer as to his objectiveness as an expert in the standards for a general practitioner in Brandywine, Maryland. The Court concludes that the facts that I am confronted with in this case are real tough as to letting the doctor testify or preventing him from testifying. The responsibility is mine in the exercise of sound discretion and the Court, in passing must observe that this having happened on Friday, determined on Saturday to contact the attorneys and in some indication that it might reverse itself on this ruling, suggested to Mr. Laake and Mr. Ehrmantraut that if Dr. Hirsh were to return, it’s conceivable that the Court would permit him to testify. Dr. Hirsh, according to Mr. Laake, left for the Orient over the weekend, such was not possible, not to indicate that the Court was convinced that . . . [it] had in fact errored [sic] in preventing the testimony and I refer to the Court’s observations. ...”

We think the trial court to have been misled by the fact that Dr. Hirsh is also a member of the Bar. In our view, that Dr. Hirsh may have made suggestions to appellee’s counsel or counsel’s law clerk is not sufficient reason to conclude that the doctor was not qualified to be an expert witness. While the doctor’s aiding of trial counsel, in the presence of the jury, may have affected in the eyes of the jury the doctor’s credibility as a witness, it certainly should not have prevented his testifying. Indeed, many expert witnesses confer with trial counsel prior to trial in order that counsel may become aware of the niceties of the expert’s field, and thus gain some insight so as better to prepare a case for the client with respect to both direct and cross-examination. If expert witnesses who consulted, advised and conferred with counsel prior to trial were precluded from testifying on the ground of loss of objectivity, there is not much likelihood of an expert’s ever testifying unless counsel were willing to call a witness without having any concrete idea as to what the witness would say. Such a situation would be abhorrent to trial attorneys, and justifiably so. The difference between pre-trial suggestion and in-trial suggestion is a matter of degree, not kind. That Dr. Hirsh enjoys the right to practice more than one profession in no way, per se, lessens his expertise in either discipline.

We conclude, as did the majority of the en banc panel, that the trial judge’s rulings with respect to Dr. Hirsh’s lack of expertise were error beyond the breadth of his discretion. The doctor’s testimony was properly admissible and its improper exclusion constitutes reversible error.

Appellants also argue that even if the excluded testimony, were admissible, any error in excluding it is harmless because it was purely cumulative. There are two answers to that contention. First, the trial court itself noted that, testimony from another doctor who was a witness for the appellees did not “justify that [evidence] being in from Dr. Hirsh.” Second, the evidence that was received from the local practitioner was offered for the purpose of demonstrating the local practice in regard to the injéction of the anti-tetanus serum. Dr. Hirsh’s testimony was to show the appellant deviated from the acceptable local standard. Ergo, the testimony was not cumulative in that it was educed to accomplish entirely different goals.

Order of en banc panel granting a new trial affirmed.

Costs to be paid by appellants.

      . The record is silent as to whether Dr. Hirsh is a member of the Maryland Bar, but he has been licensed to practice medicine within the State since 1969. Since 1950 Dr. Hirsh has been on the faculty of the Howard University School of Medicine.

      . Judge Mattingly filed a dissent.

      . See, e.g., A.S. Abell Co. v. Skeen, 265 Md. 53, 288 A. 2d 596 (1972); Carlile v. Two Guys, 264 Md. 475, 287 A. 2d 31 (1972); Grabner v. Battle, 256 Md. 514, 260 A. 2d 634 (1970); Turner v. Wash. Sanitary Comm., 221 Md. 494, 158 A. 2d 125 (1960); Hartlove v. Bottling Co., 160 Md. 507, 153 A. 850 (1931); Chiswell v. Nichols, 139 Md. 442, 115 A. 790 (1921).

      . The holding of Buck v. Folkers, supra, has been altered slightly by the shift of original appellate jurisdiction from the Court of Appeals^ to this Court. See Courts and Judicial Proceedings Article § 12-308, so that the appeal is no longer taken directly to the Court of Appeals.

      . The adverse party would appeal, of course, to this Court. See n. 4 supra.


author: Orth, C. J.,

text:
    LUSKIN’S, INC. d/b/a Luskin’s Super Discount Stores v. U. S. PIONEER ELECTRONICS CORPORATION
    [No. 1023,
    September Term, 1974.]

      Decided June 6, 1975.

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

      Charles Yumkas, with whom were Blum, Yumkas, Mailman & Gutman on the brief, for appellant.

      William A. Fenwick, with whom were William C. Stifler, III and Donald A. Krach and Niles, Barton & Wilmer and
      Davis, Stafford, Kellman & Fenwick on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court for Baltimore County in Equity issued 27 November 1974 upon an action instituted by U. S. Pioneer Electronics Corporation permanently enjoining Luskin’s, Inc., d/b/a “Luskin’s Super Discount Stores”, “from advertising, offering for sale or selling [Pioneer’s] products at prices which are less than the resale prices now or hereafter stipulated therefor by [Pioneer], pursuant to the current Fair Trade Agreements in effect with retail dealers in the State of Maryland. . . .” It was further ordered that Luskin’s pay “the costs of this action as reflected by the Clerk’s bill.” Luskin’s appealed.

Code, Art. 83, § 107 of the Fair Trade Act provides:

“Wilfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of §§ 102-110, whether the person so advertising, offering for sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.”

The issue for decision is whether the non-signer provision of § 107 is unconstitutional under Article III of the Constitution of Maryland as an unlawful delegation of legislative power to private persons.

Luskin’s frankly points out that “[i]t is clear that previous Maryland decisions have ruled in favor of the constitutionality of the non-signer provisions.” It refers to Goldsmith v. Mead Johnson & Co. 176 Md. 682; Schill v. Remington Putnam Book Co., 179 Md. 83; Hutzler Bros. Co. v. Remington Putnam Book Co., 186 Md. 210; Donner v. Calvert Distillers Corporation, 196 Md. 475; Home Utilities Company v. Revere Copper & Brass, Inc., 209 Md. 610; Dart Drug Corporation of Maryland v. Eli Lilly & Company, 216 Md. 20; G.E.M., Inc. v. Plough, Inc., 228 Md. 484; Salisbury Beauty Schools, et al. v. State Board of Cosmetologists, 268 Md. 32. See Parke, Davis & Company v. G.E.M., Inc., 201 F. Supp. 207 (D. Md. 1962); Sony Corporation of America v. Best Products Co., Inc., 354 F. Supp. 561 (D. Md. 1972); Parke Davis & Co. v. Health Cross Stores, Inc., 232 F. Supp. 310 (D. Md. 1964), aff'd, 364 F. 2d 214 (4th cir. 1966). In Salisbury, decided 7 February 1973, the Court of Appeals relied on its prior holdings in the fair trade area in support of its conclusion that a statute prohibiting beauty schools from collecting fees for services performed by students to members of the public was constitutional as a legitimate exercise of the police power. It said, 268 Md. at 58-59:

“We have also upheld the constitutionality of the Maryland ‘Fair Trade Act’.”

It cited Goldsmith, Schill, and Home Utilities Co.

Although recognizing that the Court of Appeals’ cases as decided are dispositive of the issue, Luskin’s urges us to depart from them. It claims that the Court’s conclusion in Goldsmith that the non-signer provision of the Act was constitutional, which it followed in the subsequent decisions, was on two bases: (1) the holding in Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 229 U. S. 183 (1936), and (2) the judicial acceptance and validation of similar laws in other jurisdictions. It suggests, as to the first basis, that reliance on Old Dearborn was misplaced, and, that the second basis has been severely eroded.

With respect to Old Dearborn, Luskin’s quotes Olin Mathieson Chemical Corp. v. White Cross Stores, Inc., 199 A. 2d 266 (Pa. 1964) at 267:

“Old Dearborn, as a careful study will bear out, is not precedent for the proposition that the non-signer clause in a state price-fixing statute, delegating legislative power to private individuals, does not violate the state constitution.”

Corning Glass Works v. Ann & Hope, Inc. of Danvers, 294 N.E.2d 354 (Mass. 1973) looks to Davis, Administrative Law (1958 ed.) for an explanation why Old Dearborn is not precedent for the proposition. It quotes Davis at 361:

“ ‘The entire opinion [of the Supreme Court in Old Dearborn] on the point consisted of little more than the announcement of the conclusion .... Cases holding [unconstitutional] delegations to private parties were distinguished on the ground that “Here, the restriction, already imposed with the knowledge of the. appellants [retailers], ran with the acquisition and. conditioned it.” . . . The various opinions that deny that any delegation to private parties is involved in the non-signer provisions seem clearly unsound. The plain fact is that the statute confers upon the manufacturer (or other distributor), acting in combination with a single retailer, to fix the minimum price at which other retailers may sell. That is undeniably a delegation of power to private parties.’ Davis, Administrative Law, (1958 ed.) § 2.14, pp. 145-147.”

Luskin’s gives other cases which it states have found that Old Dearborn does not support state constitutionality of non-signer provisions. Bulova Watch Co., Inc. v. Brand Distributors of North Wilkesboro, Inc., 206 S.E.2d 141 (N.C. 1974); Bulova Watch Co., Inc. v. Zale Jewelry Co. of Cheyenne, 371 P. 2d 409 (Wyo. 1962); House of Seagram, Inc. v. Assam Drug Co., 176 N.W.2d 491 (S.D. 1970).

With respect to the second basis, Luskin’s asserts that after the opinion in Home Utilities Company v. Revere Copper & Brass, Inc., supra, in 1956 “the unmistakable trend of decisions in other jurisdictions has been to declare non-signer provisions unconstitutional.” It observes that five states have reversed a prior holding of constitutionality. Washington in Remington Arms Co., Inc. v. Skaggs, 345 P. 2d 1085 (1959); Pennsylvania in Olin Mathieson Chemical Corp. v. White Cross Stores, Inc., supra; South Dakota in House of Seagram, Inc. v. Assam Drug Co., supra; Massachusetts in Corning Glass Works v. Ann & Hope, Inc. of Danvers, supra; North Carolina in Bulova Watch Co., Inc. v. Brand Distributors of North Wilkesboro, Inc., supra. The last case specifically overruled Eli Lilly & Co. v. Saunders, 4 S.E.2d 528 (N.C. 1939) relied on by our Court of Appeals in Home Utilities, 209 Md. at 617. Luskin’s quotes Bulova Watch Co., Inc. v. Zale Jewelry Co. of Cheyenne, supra, at 416:

“In any event, the pendulum of state decision has now definitely swung from the constitutional to the unconstitutional side. This numerical majority is not in itself conclusive of the matter, but it does seem to portend a change in judicial thinking and is justified by better reasoning and logic.”

Luskin’s lists 28 states in which non-signer provisions of fair trade laws have been held to violate state constitutions by judicial decision and 14 states, other than Maryland, in which such provisions have been upheld against constitutional attack.

Prodding us to depart from the prior holding of our Court of Appeals, Luskin’s quotes what was said in White v. King, 244 Md. 348, 354:

“The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life.”

The Court observed, note 1 at 354-355:

“Lord Gardiner, Lord Chancellor of England, has recently announced that the decision of the House of Lords, in effect for more than sixty years, that it had no power to alter its own past decisions, has been changed. Lord Gardiner said that hereafter, the Law Lords will ‘depart from a previous decision when it appears right to do so.’ N. Y. Times, July 31, 1966, § E. p. 6.”

Even if, in proper circumstances, we could deem a prior ruling of the Court of Appeals as not controlling, but see Loyola Fed. S. & L. v. Trenchcraft, 17 Md. App. 646, 659, and Bagley v. Warden, 1 Md. App. 154, 161, we are by no means persuaded that the rule here challenged has become unsound in the circumstances of modern life. The Court of Appeals met the point head on in Home Utilities. It was claimed that the holding in Goldsmith was not controlling because conditions in the market had changed, that fair trade legislation gives the brand owner protection, that he does not need, at the expense of the consumer and the general public, and that although the good will of a manufacturer is entitled to reasonable protection, the legislature cannot protect the manufacturer’s prices from legitimate price competiton. The Court said, 209 Md. at 615:

“We find no merit in the contention. If we were disposed to re-examine the decision in the Goldsmith case, we think it clear that the arguments advanced by the appellant go primarily to the wisdom of the statute.”

It quoted, at 616, from General Electric Co. v. Klein, 106 A. 2d 206, 211 (Del. 1954):

“It would serve no purpose to marshal the arguments pro and con. That is not our function. In these circumstances the duty of the Court is plain. The question before us is not the wisdom of this legislation; it is whether the situation presents a reasonable necessity for the protection of the public welfare, and whether the means bear a reasonable relation to the end sought. * * * And if these questions are fairly debatable, the legislative judgment must control.
“Not only are these questions ‘fairly debatable’; they have been warmly debated for years, and the debate, we gather, is still going on. The legislative judgment must therefore prevail.”

It opined, at 617: “The courts of last resort that have rejected fair trade acts on Constitutional grounds seem to have usually done so because of an unwillingness to accept the legislative judgment as to the economic facts .... We think the legislative findings are at least fairly debatable.” We are in complete accord with this view.

Judgment affirmed; appellant to pay costs.

      . Alabama, 1962; Arkansas, 1955; Colorado, 1956; Florida, 1949; Georgia, 1955; Idaho, 1963; Indiana, 1957; Iowa, 1961; Kansas, 1958; Kentucky, 1958; Louisiana, 1956; Massachusetts, 1973; Michigan, 1952; Minnesota, 1960; Montana, 1961; Nebraska, 1955; Nevada, 1964; New Mexico, 1957; North Carolina, 1974; Oklahoma, 1961; Oregon, 1956; Pennsylvania, 1964; South Carolina, 1957; South Dakota, 1970; Utah, 1956; Washington, 1960; West Virginia, 1958; Wyoming, 1962.

      . Arizona, 1967; California, 1955; Connecticut, 1962; Delaware, 1966; Hawaii, 1960; Illinois, 1958; Mississippi, 1964; New Hampshire, 1960; New Jersey, 1954; New York, 1954; Ohio, 1963; Rhode Island, 1964; Tennessee, 1963; Wisconsin, 1955.
      For a discussion of the validity, as a matter of state constitutional law, of non-signer provisions in fair trade statutes see Annot., 60 A.L.R.2d 420 (1958) and later case service thereto 1967-1975.