author: Morton, J.,

text:
    MICHAEL STEVE WODOSLAWSKY v. STATE OF MARYLAND
    [No. 821,
    September Term, 1976.]

      Decided July 7, 1977.

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

      Henry J. Noyes for appellant.

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

delivered the opinion of the Court.

On November 24, 1975, an automobile operated by appellant, Michael Steve Wodoslawiky, collided with a vehicle driven by Bernard Wilson, resulting in the death of Elizabeth Wilson, a passenger in the Wilson vehicle. On the following day appellant was charged in the District Court for Montgomery County with the crime of manslaughter by automobile. On January 8, 1976, he was indicted by the grand jury for Montgomery County for the same offense. The pending district court charge was then marked “returned to the files.” Shortly thereafter appellant was arraigned in the Circuit Court for Montgomery County at which time he entered a plea of not guilty and requested a jury trial.

On June 21, 1976, trial began in the circuit court (Latham, J., presiding) pursuant to the indictment. At the close of the state’s evidence, appellant moved to dismiss the indictment on the basis that although the circuit court and district court have concurrent jurisdiction in manslaughter by automobile cases, the state, by virtue of having filed charges first with the district court, thereby selected its forum and thus precluded trial for this offense in the circuit court, In overruling the motion the trial judge reasoned:

“I will tell you right now, Mr, Noyes [defense attorney], my essential ground for that is that I think that when he came in here on January 23, 1976, and entered a plea of not guilty to this particular indictment, and more importantly, requested a trial by jury that this is the only court that can give him that trial by jury, and he then had for all purposes divested the District Court of any jurisdiction in the matter. * * * Secondly, I think that he cannot sleep on his rights, so to speak, and have that matter pending down in the District Court and come in here and plead and ask for his jury trial and then after all this delay and the trial is halfway through raise this point.”

The trial continued until approximately noon on June 24, 1976, at which time the jury retired to deliberate. During the course of their deliberations, the jury sent five notes to the trial judge requesting copies of the relevant portions of the Motor Vehicle Code, information as to the authority of the police to obtain breath or blood samples, portions of Wilson’s testimony on direct, cross-examination and redirect, a note as to why they had made such requests and an inquiry as to whether there was a body of case law relating to causes other than gross negligence and causality. The members of the jury adjourned for dinner at 7 p.m. with an admonishment not to discuss the matter, returned around 8:30 p.m. and at 10:30 p.m. sent their last note to the court stating that they had “reached a point wherein it appears that a verdict cannot be reached.” They were returned to the court room at 10:45 p.m. whereupon the following colloquy ensued:

“THE COURT: Mr. foreman, the latest communication here would indicate that you have reached a point where you have agreed that you are going to disagree; is that right?
THE FOREMAN: Yes, sir.
THE COURT: I gather that you feel that no matter how much more deliberations you have that you would not be able to come to a verdict in this matter?
THE FOREMAN: That is a consensus of the jury; yes, sir.
THE COURT: All right, well, you will be discharged, then. I appreciate very much your service in this matter. I am sorry that you couldn’t give us a verdict, but that is the way our system works. You are excused now. You won’t be needed tomorrow. Of course, you will have to call in over the weekend and see whether you are needed Monday.”

Thereafter, on July 8, 1976, a proceeding was held in the district court wherein the state entered a “nolle prosequi on the record.” Appellant objected to the entry of the nolle prosequi arguing that his pending motion to dismiss the charges for lack of a speedy trial would not receive consideration. During the course of his argument appellant submitted two exhibits into evidence, namely, a copy of the circuit court indictment and a copy of the circuit court docket entries. The trial judge denied appellant’s request for a hearing on the speedy trial motion, reasoning that such motion was rendered moot by the entry of the nolle prosequi.

Prior to his retrial in the circuit court, appellant filed therein a “Motion to Dismiss per Autrefois Acquit.” At the hearing on this motion (Miller, J., presiding) held on July 16, 1976, appellant asserted (1) that there was no “manifest necessity” for the mistrial in the circuit court and (2) that by virtue of the district court proceedings, further prosecution would amount to double jeopardy. In denying the motion, the trial judge stated:

“The Court has had an opportunity, Mr. Noyes, to read the authorities that you cite, and, first of all, with regard to the declaration of a mistrial, while the cases do say that you should not declare a mistrial except for reasons of manifest necessity, they go on to say except for the most obvious reasons, and the Court feels that those cases deal with where a prosecutor was sick, and where a witness said something out of the courtroom, and I feel relatively certain the ‘most obvious’ reason is where the jury is hung.
While it may have been more preferable to ask a few more questions or to seek the advice of counsel, after nine hours of deliberation I feel that there is nothing improper in declaring a mistrial.
Now as far as the second ground goes, it is true that Maryland has adopted the hearing of evidence rule as opposed to the swearing of first witness in a non-jury trial, but the Blondes [v. State, 273 Md. 435 (1975)] ease makes it abundantly clear to me that the evidence must be received before the entry of a nol pros, and that was not done in this case. Therefore, the motion is denied, the plea of jeopardy is denied.”

Appellant thereupon filed this appeal (see Neal v. State, 272 Md. 323, 326 (1974)) and first contends that “the Circuit Court for Montgomery County had no jurisdiction over the subject matter of this case.”

Appellant essentially asserts that “where each of two courts has concurrent jurisdiction, the court in which suit is first instituted is entitled to retain jurisdiction and the second court is without power to interfere;” Pinkston, Tr. v. Higham, 224 Md. 513, 517 (1961). See also Woodcock v. Woodcock, 169 Md. 40 (1935), Withers v. Denmead, 22 Md. 135 (1864). He argues, on the basis of this rule, that once the state filed in the district court the charge of manslaughter by automobile, the state was powerless thereafter to have appellant indicted by the grand jury on the same charge and try him in the circuit court. It is a well established rule in civil cases that where courts have concurrent jurisdiction over the same subject matter, the court in which suit is first instituted retains jurisdiction to the exclusion of the coordinate court. We are not convinced, however, that this rule has application in criminal cases. Appellant has referred us to no case in which it has been so held. On the other hand, we think there are sound reasons why the rule should not be extended to criminal cases.

It is, of course, true that the state could not bring identical charges against an individual in courts having concurrent jurisdiction over the subject matter of the charges and then proceed to trial thereon in each court since the accused’s right to be free from being placed in double jeopardy would thereby be violated. But we know of no rule or principle of law, constitutional or otherwise, which compels the state, when it initially brings criminal charges against an individual, to make a binding election as to the forum in which the charges will ultimately be tried, any more than the state can be compelled to make a binding election that it bring the charges in the form of a warrant, an information, an indictment or any other form of charging the individual. In our view the state’s attorney has the choice, subject to statutory and constitutional proscription, to determine the mode or means he will employ to initiate the criminal charges and the forum in which the ultimate trial will be conducted. See Murphy v. Yates, 276 Md. 475 (1975); State v. Hunter, 10 Md. App. 300 (1970); Greathouse v. State, 5 Md. App. 675 (1969).

Here the state’s attorney was privileged to file the charging document in the district court or to proceed by way of an indictment. He apparently decided to take both courses and then elected to conduct the trial in the circuit court. Since there was no showing of any harassment of appellant or unlawful prejudice to him, we think appellant could not validly complain. Actually, appellant made no complaint until after the state had concluded putting on its case to the jury before whom appellant had elected to be tried. Under the circumstances we cannot subscribe to the argument that the circuit court had no jurisdiction over the subject matter of this case.

We find no merit in appellant’s second contention that it was error to deny his motion to dismiss the indictment because there was no manifest necessity to declare a mistrial at the conclusion of appellant’s first trial in the Circuit Court for Montgomery County and, therefore, a second trial would violate his right to be free from being placed twice in jeopardy for the same offense.

Well over a century ago the Supreme Court of the United States held that the double jeopardy provision in the Fifth Amendment of the Federal Constitution did not preclude a retrial where the mistrial was declared because of the jury’s inability to reach a verdict. See United States v. Perez, 9 Wheat. 579; 6 L. Ed 165 (1824). The fifth amendment double jeopardy provision has been held to be binding in state criminal prosecutions by virtue of the Fourteenth Amendment of the United States Constitution. See Benton v. Maryland, 395 U. S. 784 (1969). The Court of Appeals stated in Cornish v. State, 272 Md. 312, 318 (1974): “Ordinarily a retrial is permitted where the mistrial was caused by the jury’s inability to reach a verdict.” (Citations omitted.)

In the case sub judice, the jury retired to deliberate at noon and communicated its inability to reach a verdict to the court at 10:30 p.m. Deducting the time spent for dinner, the jury had deliberated approximately 9V2 hours when they informed the court that they had “reached a point wherein it appears that a verdict cannot be reached.” The trial judge thereafter inquired of the foreman if the jury would be able to reach a verdict if more time were allotted, to which he replied that it was the “consensus” of the jury that more time would prove fruitless. The jury’s frustration was also evidenced by the numerous messages which were sent to the court requesting clarification of the pertinent law and facts.

It is apparent to us that the trial judge had little recourse but to declare a mistrial. It is difficult to see what could have been accomplished if more time had been afforded to deliberate. Indeed, had the court refused to declare a mistrial when it did, an atmosphere of coerciveness to reach a decision would have conceivably been created. See Smoot v. State, 31 Md. App. 138 (1976). We find no appeal in appellant’s assertion that “[t]he trial Judge could have considered an Allen type charge, [] or consulted with counsel regarding the giving of such charge.” In the first place appellant did not seek consultation with the trial judge or request that such an instruction be given to the jury. In the second place, “resort to this charge and the circumstances under which it should be given is a matter generally considered to be within the sound discretion of the presiding judge.” Fletcher v. State, 8 Md. App. 153, 155 (1969). Moreover, the use of the “Allen” charge has been roundly condemned by many state and federal courts on the grounds that it is coercive and intrudes upon the functions of the jury. See Burnette v. State, 280 Md. 88, 371 A. 2d 663, 665 (1977). Under the circumstances we see no error in the judge’s denial of appellant’s motion to dismiss the indictment.

Finally, we do not agree with appellant’s last contention that “jeopardy attached in the District Court proceedings” held on July 8, 1976. The point in the proceedings where jeopardy attaches was spelled out by the Court of Appeals in Blondes v. State, 273 Md. 435, 443-45 (1975):

“One aspect of the double jeopardy prohibition which is firmly settled in this state as a common law principle, is that the entry of a nolle prosequi, without the defendant’s consent, and after jeopardy has attached, operates as an acquittal and precludes further prosecution for the same offense. * * *
On the other hand, where a nolle prosequi is entered before jeopardy attaches, the State is only precluded from prosecuting the defendant further under that indictment, but the defendant may be proceeded against for the same offense by another indictment or information. * * *
¥ M •T'
The Supreme Court has held ‘that a defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge’ or that ‘ “jeopardy attaches” when the trial commences ... .’ United States v. Jorn, 400 U. S. 470, 479, 480, 91 S. Ct. 547, 554, 555, 27 L.Ed.2d 543 (1971). The problem in particular cases is in determining when a defendant is ‘put to trial’ or when ‘the trial commences.’
It is generally held that, with respect to a jury trial, a defendant is placed in jeopardy when the jury is selected and sworn. * * *
As to a non-jury trial, the normal rule is that the trial commences, and thus jeopardy attaches, when the judge begins to hear or receive evidence. * * * Usually, this will be when the first witness begins to testify. However, it could be when documentary evidence is submitted, such as a stipulation or the record of prior proceedings * * * or when the defendant pleads guilty to the charges and thus establishes his guilt * *

The record is clear that at the very outset of the district court hearing, the prosecuting attorney announced: “Your Honor, the State would enter a nolle prosequi on the record per instructions from Thomas Heeney of the State’s Attorney’s Office.” Defense counsel, in arguing his objection thereto, submitted a copy of the circuit court indictment and docket entries into evidence. Appellant asserts that this is sufficient to constitute a “submission of documentary evidence” under Blondes. We disagree. Clearly, the state’s attorney proffered the nolle prosequi before the entry of these records into evidence. It is of no avail to appellant that the trial judge allowed counsel to argue his request for a hearing on the speedy trial motion during the course of which the aforementioned records were incidentally submitted.

Denial of appellant’s motion to dismiss the indictment, affirmed; costs to be paid by appellant.

      . See Courts & Judicial Proceedings Article, § 4-302 (c); Md. Code, art. 27, § 388.

      . See Allen v. United States, 164 U. S. 492 (1896).


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    BERTHA TODD, Executrix of the Estate of Terrell G. Todd et al v. KEVIN DALE WEIKLE, etc. et al.
    [No. 845,
    September Term, 1976.]

      Decided July 8, 1977.

      The cause was argued before Thompson, Moore and Melvin, JJ.

      Charles E. Iliff, Jr., and Donald L. DeVries, Jr., with whom were John H. Mudd and Semmes, Bowen & Semmes on the brief, for appellants.

      Philip O. Foard and Joseph L. Johnson, with whom were Stephen M. Heame and White, Mindel, Clarke & Hill on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

In this wrongful death action arising out of the crash of a Cessna Skymaster into South Mountain near Burkittsville, in Frederick County, one of the primary issues is that of pilot identity, that is, who among the occupants was operating the aircraft at the time of the fatal crash when the plane was equipped with dual controls and there were no survivors or eyewitnesses.

Appellees, the surviving husband and 10 year old son of Antha Lea Weikle, recovered a judgment after a jury trial in the Circuit Court for Frederick County (Clapp, J., presiding) in the total aggregate sum of $235,000. Appellants, defendants below, are the executrix of the estate of Terrell G. Todd, and the owner of the aircraft, the Wilcox Manufacturing Company. The case had been submitted to the jury upon five separate issues. Appellents’ motion for judgment n.o.v. was denied. On appeal they contend that there was no proof as to the identity of the individual who was actually manipulating the controls of the aircraft at the time of the fatal crash and the trial court should have granted their motion for directed verdict.

In addition, appellants claim that the court committed prejudicial error (a) in allowing hearsay evidence that Mr. Todd did not file an instrument flight plan before takeoff; (b) in failing to instruct that Mr. Todd was entitled to the presumption of due care; and (c) in permitting the jury to find solatium damages on behalf of the minor child of the appellee’s decedent.

We find that the surviving child was not entitled to solatium under the provisions of Maryland’s Wrongful Death Act, Code, Cts. & Jud. Proc., § 3-901, et seq. (1974), and we set aside the jury’s verdict for such damages in the amount of $40,000. We otherwise affirm.

I

Marshall Weikle, age 55, and his wife, Antha Lea Weikle, age 27, residents of Beckley, West Virginia, arose early on the morning of September 18, 1971 and left their home at 6:00 a.m. for the 15-minute drive to the Raleigh County (West Virginia) Memorial Airport. Mrs. Weikle, who had a student flying permit and who, according to her husband, had the “flying bug,” had been invited to accompany Terrell G. Todd and Henry E. Brooks, president and sales manager, respectively, of the Wilcox Manufacturing Company, on a business trip to New Jersey in a private plane, a Cessna 337 Skymaster, owned by the company. The plane took off at 6:30 a.m. for the 3-hour flight to Teterboro Airport, near Newark. It was dark at that time and the weather was foggy and misty.

Mr. Todd occupied the front left seat and Mrs. Weikle the right. Mr. Brooks sat in back of them. Mr. Weikle testified that he was within 50 feet of the plane at takeoff and he could observe that Mr. Todd was flying it.

The aircraft was equipped with dual controls and could be operated from either of the front seats. The instruments, however, were located in front of the left seat. Mr. Todd was an experienced, licensed pilot with over 740 hours of flight time. Practically all his flight experience was under Visual Flight Rules (V.F.R.). His experience under bad weather conditions operating under Instrument Flight Rules (I.F.R.) was limited to some 3 hours and 30 minutes. Mrs. Weikle has logged 25 to 30 hours of pilot time as a student, all under visual flight conditions. She had flown before with Mr. Todd and had some 5 hours "f instruction time in the Skymaster.

The plane was not heard from for about 3V2 hours. At approximately 10:00 d.m., a male voice from the aircraft contacted the Air Traffic Control (A.T.C.) at Dulles Airport in Virginia and made a request to file an instrument approach into the Martinsburg, West Virginia Airport. Upon this initial contact, according to the Dullas A.T.C. tapes played at trial, the Skymaster was about 6 miles northeast of the Martinsburg Airport V.O.R. (The V.O.R. is a radio signal transmitted from a point generally several miles distant from an airport. By locating it, the pilot can position himself for landing.)

For several minutes Dulles’ air controller gave the small craft a series of instructions. The plane was instructed to descend to 3,000 feet altitude. As the Skymaster approached the V.O.R., its instructions were then to contact directly the Martinsburg Tower for permission to land. However, before it reached the V.O.R., Dulles lost all radio contact with the plane, which had apparently dropped below 3,000 feet and thus disappeared from the radar screen. No communication was ever established by the plane with the Martinsburg Tower.

The only known witness to the Cessna’s tragic final minutes was Henry A. Conway, a retired sea captain residing in Rohrersville, Washington County, Maryland. Standing on his property, he observed the plane as it headed north. He testified that the cloud ceiling was about 400 feet and the plane’s altitude was somewhere between 300 and 400 feet. Although the plane, in its original course, would have safely passed between Elk Ridge and South Mountain, two elevations forming Rohrersville Valley, it suddenly made a sharp 90 degree right turn, without banking, towards South Mountain. The witness than lost sight of the plane as it flew into a fog bank. Seconds later, he observed the explosion and heard the crash in which all three occupants were killed instantly.

According to Frederick Michael Fox, the investigator for the National Transportation Safety Board, the weather at the time of the crash was foggy and overcast with a 2Va mile visibility. The accident occurred approximately 12 miles east of the Martinsburg Airport V.O.R. The elevation of South Mountain is 1700 feet. According to Mr. Fox, the path of the debris at the accident site indicated that the plane was flying level and under full power at the time of impact.

The appellees produced an expert witness, Ross C. Nye, to testify concerning the cause or causes of the disaster. Mr. Nye explained the “primary reason” for the crash as follows:

“[T]o get right to the accident itself which occurred some time after passing the Martinsburg VOR when the pilot was cleared for the approach and is cleared to make a descent to the field; when he accepts that clearance and makes that descent to the field he has essentially two options. One, he can either effect the approach and complete it to a landing or two, he can miss the approach and follow the prescribed missed approach procedure which is climbing left and turn back to the VOR and hold. He obviously didn’t make the landing and he obviously didn’t make the missed approach because he was .twelve miles northeast or correction, east of the VOR at an altitude well below the published missed approach procedure altitude.”

As the “secondary reason,” he stated:

“I think the whole flight by itself is a cause of the accident in that I think the takeoff was effected under dangerous conditions for the type of flight that was contemplated ....”

Appellants offered no testimony. Their evidence consisted of stipulations with respect to actuarial computations on the issue of damages.

On this appeal, no substantive issue is raised with respect to the existence of negligence. Appellants admit that the sharp turn of the Skymaster at a 90 degree angle directly towards South Mountain was the act which resulted in the crash. Their principal contention, however, is that whether Mr. Todd was handling the controls at the time of the fateful turn was a matter of speculation and not a jury question. For the reasons next stated, we disagree.

II

The standard of proof necessary to establish pilot identity in a dual control aircraft has not previously arisen in Maryland, but it has confronted courts in other jurisdictions. See, e.g., Udseth v. United States, 530 F. 2d 860 (10th Cir. 1976); Boise Payette Lumber Co. v. Larsen, 214 F. 2d 373 (9th Cir. 1954); Insurance Company of North America v. Butte Aero Sales & Service, 243 F. Supp. 276 (D. Mont. 1965); In Re Hayden’s Estate, 254 P. 2d 813 (Kan. 1953); Drahmann’s Administratrix v. Brink’s Administratrix, 290 S.W.2d 449 (Ky. 1956); Michigan Aero Club v. Shelley, 278 N.W. 121 (Mich. 1938); Lange v. Nelson-Ryan Flight Service, Inc., 108 N.W.2d 428 (Minn. 1961); Mitchell v. Eyre, 206 N.W.2d 839 (Neb. 1973); Budgett v. Soo Sky Ways, 266 N. W. 253 (S.D. 1936); Towle v. Phillips, 172 S.W.2d 806 (Tenn. 1943); Hall v. Payne, 52 S.E.2d 76 (Va.1949). See Annot., 36 A.L.R.2d 1290 (1954); Sales, Dual Control Aircraft Accidents, 42 Ins. Coun. J. 582 (1975); Note, Res Ipsa Loquitur in Small Aircraft Litigation, 41 J. Air L. and Com. 103 (1975).

In our review of the decided cases, we perceive two extreme positions. On the one hand, there is a line of authority which demonstrates for all practical purposes a judicial unwillingness to submit the issue of pilot identity to a jury based upon circumstantial evidence. See, e.g., Udseth v. United States, supra; Morrison v. LeTourneau Company of Georgia, 138 F. 2d 339 (5th Cir. 1943); In Re Hayden’s Estate, supra; Michigan Aero Club v. Shelley, supra; Mitchell v. Eyre, supra. The other extreme is the Minnesota rule or the “pilot in command” doctrine, as that term is defined in the Federal Air Regulations, which holds that the pilot in command is responsible for the negligent act, irrespective of whether or not he is in actual operation of the controls at the time of the fatal crash. Lange v. Nelson-Ryan Flight Service, Inc., supra, cert. denied, 371 U. S. 953 (1963 ).

In our judgment the proper approach to this question of pilot identity is the rule which applies generally in civil actions, that is, pilot identity must be proved by the plaintiff by a preponderance of the evidence under the standard that the fact sought to be proved is more likely so than not so. This is what we mean by a preponderance of the evidence. See C. & P. Telephone Co. v. Hicks, 25 Md. App. 503, 337 A. 2d 744 (1975). This rule is the same whether the evidence bearing upon the question at issue is direct or circumstantial. As the Supreme Court of Nebraska stated in the case of Mitchell v. Eyre, supra:

“To recover herein the plaintiff was required to prove who was piloting the plane at the time of the crash. Until she has done so she has not met her burden of proof. The finding of negligence is immaterial until we can determine the identity of the person to be charged with responsibility for the negligence.”

It must be recognized, of course, that in the case of a disaster involving a small private aircraft where all of the several occupants have perished, there can ordinarily be no certainty of pilot identification and, in the generality of cases, the evidence bearing upon that issue will be entirely circumstantial. To withstand a motion for a directed verdict, the plaintiff should be required to produce probative evidence that the individual claimed to be the pilot was the one in charge of the controls at the critical instant of time. Probative evidence is not evidence that invites speculation and when appellants argue, as they do in their brief, that the “majority rule prohibits jury speculation on the identity of the individual piloting a dual control airplane,” they are speaking not of a “majority rule” applicable to aviation accidents but of a fundamental precept of law which proscribes jury speculation in any case, civil or criminal.

In the absence of statutory authority, the rules of law governing aviation cases are the same as those governing ordinary negligence actions in Maryland. State, Use of Piper v. Henson Flying Service, Inc., 191 Md. 240, 247, 60 A. 2d 675 (1948). A familiar Maryland rule is that a defendant’s negligence may be shown by either direct or circumstantial evidence and may be inferred from all of the facts of the case. Western Maryland Railroad Co. v. Shivers, 101 Md. 391, 61 A. 618 (1905); Pearson v. Wiltrout, 17 Md. App. 497, 501, 302 A. 2d 678 (1973). (The appellees rely in the instant appeal upon ordinary negligence and not res ipsa loquitur.)

Here, the trial court reserved ruling on appellants’ motion for a directed verdict and thereafter denied appellants’ motion for judgment n.o.v. in the face of circumstantial evidence which included the following:

(1) Mr. Todd occupied the left front seat at takeoff, the seat customarily occupied by the pilot;
(2) A male voice which appellants conceded at trial to be that of Mr. Todd was in communication with Air Traffic Control at Dulles Airport only minutes before the fatal accident;
(8) Todd was the president of the company which owned the aircraft and was a licensed pilot with a substantial amount of flying experience;
(4) Mrs. Weikle, while a flying enthusiast, was a student only with limited experience and no known familiarity with instrument flight conditions;
(5) The weather conditions at takeoff and during the flight required, pursuant to FAA Regulations, that the plane be flown under instrument flight rules;
(6) The instruments required to manage the aircraft under adverse weather conditions were located only in front of Mr. Todd’s seat;
(7) Mr. Weikle positively identified Mr. Todd as the pilot of the aircraft during takeoff and there is no evidence to disclose whether or not it was feasible for Todd and Mrs, Weikle to exchange seats during flight;
(8) There was no evidence of any sudden illness on the part of Mr. Todd nor of panic on the part of Mrs. Weikle, although the trial court stated to the jury that “the possibility of Mrs. Weikle grabbing the dual controls is an item for you to consider on this question of fair preponderance of the evidence and burden of probabilities.”

Circumstances similar to those existing here have been found persuasive by other courts on the issue of the sufficiency of the evidence to require submission of the case to the jury. Thus, in Insurance Company of North America v. Butte Aero Sales and Service, supra, the court stated in holding the evidence was sufficient on the issue of pilot identity to support a denial of defendant’s motion for a directed verdict:

“Under the circumstances it is impossible for anyone to be absolutely certain as to who was piloting the plane when it crashed, but the court believes there was sufficient evidence for the jury to find that Elderkin was the pilot. The only evidence that Hodge might have been the pilot was that he could fly and liked to do so, and that the plane had dual controls. On the other hand, Elderkin was the owner of the plane and had frequently flown it, whereas Hodge had never flown it. At the time of takeoff Elderkin occupied the seat from which a plane is usually and customarily flown, and after the crash Hodge was still strapped in the opposite seat. Elderkin requested permission to take off.” 243 F. Supp. at 281. (Emphasis added.)

And in Drahmann’s Administratrix v. Brink’s Administratrix, supra, where a small dual control aircraft crashed during aerial maneuvers, and an eyewitness testified that the plane in its final moments appeared not to be handled by an experienced pilot, the court reversed a directed verdict for the defendant and stated:

“It appears to us that a man like [the plaintiff’s decedent], with no flying experience, would not attempt the difficult and skilled maneuver of bringing a plane in for a landing. [The defendant’s decedent] had the skill and experience to make the landing properly. Any man has an instinct for self preservation.” 290 S.W.2d at 454.

Again, in Boise Payette Lumber Co. v. Larsen, supra, four men were killed in the crash of a small private dual-control airplane. The owner of the plane, one Homer Smith, was a licensed pilot. Another occupant of the plane, plaintiffs decedent, Wayne Larsen, also had experience flying a plane. The crash occurred minutes after a voice identified as Smith’s requested clearance to land. The court stated:

“There is little reason to doubt that in the plane Smith did all the talking. But was Smith flying the plane? It is not a mathematical certainty, but the conclusion that he was flying the plane was within jury limits. The jurymen could consider from their human experience whether, when Smith owned the plane, was doing the talking on the radio on the request for clearance, ... it was probable that he had turned the controls over to another who had not flown for some months.” 214 F. 2d at 377.

In affirming a decision in favor of the plaintiffs, the court observed:

“In big, complex airplanes, there is a division of labor, almost everyone knows. But in a small aircraft with the owner aboard, may the jury not assume when the owner was doing the talking to the control tower that the owner had the reins in his hands?” 214 F. 2d at 377.

We also observe that appellees in the instant case are aided by the Maryland rule known as the “presumption of continuance.” As described in Campfield v. Crowther, 252 Md. 88, 249 A. 2d 168 (1969):

“There is, within certain limits, a presumption of fact that something which has been proved to exist continues to exist for a reasonable time, depending on what it is and the circumstances of the case. This is known as the presumption of continuance, and it is held to be not a legal presumption, [and, therefore, does not shift the burden of proof, see Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1976), aff'd, 278 Md. 187, 362 A. 2d 629 (1976)], but a matter of the burden of proof.” 252 Md. at 97, quoting, Donner v. Calvert Distillers Corp., 196 Md. 475, 490, 77 A. 2d 305, 311 (1950).

In Campfield, the fact that the defendant was proved to have been driving the car prior to the accident raised the inference that he continued to control the car at the time of the accident. There is little doubt that Mr. Todd was in communication with the Air Traffic Control at Dulles Airport some 8 to 12 minutes prior to the crash, and was at that time in management of the aircraft. Campfield held that there was a presumption of fact that the driver’s known operation of the vehicle shortly before the accident “continued for a reasonable time.” We believe that the time interval involved here between the last communication with the ground and the time of the crash — 8 to 12 minutes later — was a reasonable interval.

We think under the totality of the circumstances, the trial court properly ruled that the question of pilot identity was for the jury to decide.

III

During the direct testimony of Frederick Michael Fox, investigator for the National Transportation Safety Board, the witness was permitted to state, over objection, that a flight plan for the proposed trip from Beckley, West Virginia to Teterboro, New Jersey was never filed by Mr. Todd. (Previously, the court had excluded the report itself pursuant to 49 U.S.C. § 1441 (1970)). Although this information was contained in the report of the investigation, it was not shown that it was within the personal knowledge of the witness. Appellants assert that such testimony was hearsay and in contravention of 49 U.S.C. § 1441 (e). The statute reads in part:

“§ 1441. Accidents involving civil aircraft.
(e) Use of records and reports as evidence.
No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports.”

The trial court ruled that, notwithstanding the unequivocal language of the statute, the admission of factual material from a report is not error; only the opinions in the report as to possible causes of the accident, or as to negligence, must be excluded. We think the trial court was correct. From the decided cases, it is established that the above statute is to be narrowly construed. See Annot., 23 A.L.R.2d 1360 (1952).

Faced with a similar issue, the court in Berguido v. Eastern Air Lines, Inc., 317 F. 2d 628 (3d. Cir. 1963) stated:

“This argument [that the statute precluded certain factual testimony by an investigator] blurs the essential policy and reason behind the section with other policies affecting the admissibility of evidence. The fundamental policy underlying 1441 (e) appears to be a compromise between the interests of those who would adopt a policy of absolute privilege in order to secure full and frank disclosure as to the probable cause and thus help prevent accidents and the countervailing policy of making available all accident information to litigants in a civil suit. Accordingly, the primary thrust of the provision is to exclude CAB reports which express agency views as to the probable cause of the accident.” Id. at 631-632. Accord, American Airlines, Inc. v. United States, 418 F. 2d 180, 196 (5th Cir. 1969). (Emphasis added.)

As the court determined that the challenged testimony involved only factual matters and did not contain any opinions or conclusions, the testimony was deemed admissible.

We agree with the conclusion of the court below that the testimony of Mr. Fox, that Mr. Todd did not file an instrument flight plan, concerned only a matter of fact and did not represent a conclusion or opinion of the agency. The fact that 1441 (e) does not bar its admission is not, however, dispositive of the issue. Since Mr. Fox did not have firsthand knowledge of the fact to which he testified, the testimony was vulnerable to appellants’ claim of hearsay. However, we note that Maryland’s statutory business records exception establishes the admissibility of Mr. Fox’s testimony. Md. Code, Cts. & Jud. Proc., § 10-101 (1974). Appellees properly laid the foundation to classify the investigator’s report as a “business record” within the meaning of the statute. The statute provides in part:

“§ 10-101 Written record.
(d) Lack of knowledge of maker. — The lack of personal knowledge of the maker of the written notice may be shown to affect the weight of the evidence but not its admissibility.”

The trial court properly found the testimony to be admissible.

IV

Appellants argue that the court erred in failing to instruct the jury, as requested, that Mr. Todd “is presumed to have exercised ordinary care for his own safety, in accordance with the natural instinct of human beings to guard against danger.” The court did instruct that any such presumption was “not too applicable,” stating:

“Now the law says that where death occurs there is a presumption that a person who died exercised due care, reasonable care. That is not too applicable here because in this case both persons died — Mr. Todd and Mrs. Weikle. Now those so-called [presumptions] are a Mexican stand off. You have got to look at the facts and circumstances to determine all of these items.”

We think logic clearly supports the court’s instruction where, as here, both principals involved were deceased and the court made plain the burden of the plaintiffs to establish their contentions by a preponderance of the evidence.

Beyond this, it is apparent that appellants seek to invoke the “presumption of due care” on behalf of an individual (Todd) in the posture of a defendant and on the issue of primary negligence. As Judge Moylan stated for this Court in Young v. Dietzel, 13 Md. App. 159, 163, 282 A. 2d 150, 153 (1971), in the face of a similar attempt, “In this, [appellants] may not prevail.” Appellants would have us abandon our position in Young v. Dietzel, placing reliance upon the decision of the Court of Appeals for the Fourth Circuit in Kapral v. Hartzelius, 392 F. 2d 548 (4th Cir. 1968). The decision in the latter case, set forth in a brief per curiam opinion, states in part:

“[W]e find no reason or authority to say that it [an instruction concerning the presumption] must be given in regard to a plaintiffs decedent and not in regard to a defendant’s decedent, or that it is applicable only to an issue of contributory negligence and not to an issue of primary negligence.” 392 F. 2d at 549.

For the reasons amply considered and well-stated in Young v. Dietzel, supra, the presumption is limited to situations involving plaintiffs, on the issue of contributory negligence, in the absence of countervailing evidence. See Bratton v. Smith, 256 Md. 695, 261 A. 2d 777 (1970); W. Prosser, Law of Torts 416 (4th ed. 1971). As Judge Moylan expressed it in Young v. Dietzel:

“The logic of the proposition that the presumption of due care applies only on the issue of contributory negligence speaks for itself. ‘Negligence as it is commonly understood is conduct which creates an undue risk of harm to others. Contributory negligence is conduct which involves an undue risk of harm to the actor himself. Negligence requires a duty, an obligation of conduct to another person. Contributory negligence involves no duty. . ..’ Prosser, supra, at 418. Since the presumption of due care is predicated upon ‘the instinct of self-preservation’ and ‘has for its motive the fear of pain or death’, it is highly relevant to the issue of contributory negligence, which involves the actor’s protection of himself, but has no relevance to the question of primary negligence, which involves a duty to others.” 13 Md. App. at 165-66.

We find no error in the trial court’s instruction and in its refusal to grant appellants’ requested instruction.

V

The final question presented on this appeal is whether the Wrongful Death statute of Maryland, as it existed at the time of the fatal accident in 1971, permitted Kevin, the minor child of Antha Weikle, to recover not only pecuniary damages but also solatium.

The trial court, although candidly uncertain of the child’s entitlement to solatium, submitted that question to the jury which returned a verdict in the sum of $40,000 for the child’s mental and emotional pain and suffering, etc., as well as $25,000 in pecuniary damages. We note that in a chambers conference with counsel, prior to instructing the jury, the court observed that to withhold from the jury the question of solatium would, in the event of error, necessitate a new trial; whereas, if this Court on appeal, after an award of solatium, determined that the statute did not authorise such an award, a now trial could be avoided by striking that portion of the judgment. This impresses us as a commendable exercise of judicial discretion. As previously indicated, we do conclude that the language of the statute in effect in 1971 precluded an award of solatium.

Before proceeding to a discussion of the basis for our determination, we observe that the General Assembly of Maryland amended the Wrongful Death statute (now Cta. & Jud. Proc., § 3-904 (d) (1974), recodifying Code, Art. 67, § 4 (b) (1957, 1970 Repl. Vol.) by ch. 120, Acts of 1975, effective July 1, 1975) in such manner as to provide specifically for the recovery of solatium upon the death of a parent of a minor child. The legislature thus removed from the statute, as it previously existed, the question of interpretation which gave rise, in part, to this appeal. It was specifically provided, however, that the amendment “shall be construed only prospectively and shall not be applied or interpreted to have any effect upon or application to any event or happening occurring prior to the effective date of this act.”

At the time of Mrs. Weikle’s death, in September 1971, the Maryland Wrongful Death statute, Code, Art. 67, § 4 (1970 Repl. Vol.) provided as follows in subsection (a):

“(a) Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused or if there be no such person or persons entitled then any person related to the deceased by blood or marriage, who, as a matter of fact, was wholly dependent upon the person whose death shall have been so caused.... [A]nd in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the above-mentioned parties, in such shares as the jury by their verdict shall find and direct; provided, that no more than one action shall lie for and in respect of the same subject matter of complaint; and that every such action shall be commenced within two years after the death of the deceased person.”

Subsection (b) was enacted by the General Assembly by ch. 352, Acts of 1969, to change the Maryland rule which limited the measure of damages in wrongful death cases to “pecuniary loss.” It contained the following language:

“(b) In the case of the death of a spouse or a minor child, the damages awarded by a jury in such cases shall not be limited or restricted to the ‘pecuniary loss’ or ‘pecuniary benefit’ rule, but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advise, counsel, training, guidance, or education where applicable.” (Emphasis added.)

Here, the appellants contend that because this is not a case involving the death of a minor child, a minor child who survives the death of a parent may not recover for mental anguish and the other elements included in the concept, solatium. In the proceedings below and in this Court, appellants find support for their position in Wittel v. Baker, 10 Md. App. 531, 272 A. 2d 57 (1970) and Cincotta v. United States, 362 F. Supp. 386 (D. Md. 1973). The interpretation of the statute for which appellants argue is that where a spouse who is also the mother of a minor child is negligently killed, only her surviving spouse and not her minor child may recover solatium. This was the interpretation adopted by the Court in Cincotta, supra, and in the subsequent case of Alden v. Maryanov, 406 F. Supp. 547 (D. Md. 1976), Chief Judge Northrop speaking for the court in both cases. In each instance, the United States District Court relied upon our decision in Wittel.

The legislative history of ch. 352, Acts of 1969, with which we are here concerned, was traced by Chief Judge Orth speaking for this Court in Wittel. The bill as originally introduced would have been applicable to every death action because it read: “In every such action, including the death of a minor child.. . .” It was amended, however, before passage to read: “In the case of the death of a spouse or a minor child, ... .” We therefore concluded that despite the pronouncements in the preamble to ch. 352, Acts of 1969, quoted in extenso, 10 Md. App. at 535, it was “patent” that the General Assembly “did not feel that the pecuniary loss rule was utterly wrong, for it superseded the rule only in the case of the death of a spouse or a minor child. 10 Md. App. at 536 (Emphasis added.) We recognize that the above statements are essentially dicta but we are persuaded that the analysis is sound.

We find troublesome, of course, the fact that the legislature, although amending the bill after its introduction in the manner described, retained in the body of the act the words “parental care” in its enumeration of the various elements for which compensation might be awarded as solatium. These words were also noted when Art. 67, § 4 was recodified in 1973 as Cts. & Jud. Proc. § 3-904 (d). The language of subsection (b) was the subject of comment but was not altered. The Revisor’s Note explained:

“The staff is aware that the proposed draft perpetuates what appears to be a defect in the existing statute. Section 4 (b) of Article 67 applies only to the case of the death of a spouse or minor child. The death of a parent, especially a widow, widower, or divorced parent, who could not be called a spouse, is not in terms covered by the subsection, although one of the elements of damage is stated to be ‘parental care’; and the statute also refers to counsel, training, guidance, etc., which are more applicable to the death of a parent than to anything else.
“However the commission is cognizant of the fact that this law was adopted in its present form by ch. 852, Acts of 1969, and after a previous effort to broaden the language was made unsuccessfully in 1968. The present language is of recent vintage and apparently the result of legislative compromise. Thus, despite any logical defects it may contain, the commission believes that change is a matter for the legislature.”

While it is arguable, as the lower court stated, that the legislative intent as gathered from the preamble and retention of the words “parental care” was to permit a minor child to recover solatium, the opening language of subsection (b) clearly limits its provisions to “the case of the death of a spouse or a minor child” and it is not the function of an appellate court to rewrite a statutory provision. As Judge Orth wrote in Wittel, “Any change that may be deemed advisable must come, we feel, from legislative enactment. And some change has so come.” 10 Md. App. at 536. Indeed, since the date of Wittel, complete change has come but the legislature ordained that it be prospective only in its application.

Under these circumstances, we are compelled to hold that the trial court erred in permitting the jury to consider the mental anguish and suffering of the minor child, Kevin Weikle, in awarding damages. However, we reject appellants’ contention that by submitting the issue of solatium for the minor child to the jury, the entire verdict was tainted because of the admission of testimony, during trial, of the child’s mental anguish and grief. The trial court, anticipating appellate review of his decision, submitted separately to the jury the issues of damages. Thus, the jury was asked:

“In what amount do you assess the damages of Kevin Dale Weikle for such mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, parental care, attention, advice, counsel, training, or guidance, if any, of the infant plaintiff, Kevin Dale Weikle, for the life expectancy of his mother?”

By segregating solatium from the element of pecuniary loss, the trial court assured that the jury’s award of pecuniary damages would not be affected by the testimony concerning the minor child’s mental anguish. We also note that the trial court instructed the jury that:

“Your verdict shall not be influenced merely because Mrs. Weikle has died and you have a great deal of sympathy for her survivors. Your verdict should not be influenced by malice or prejudice or sympathy or anything else. Everybody is entitled to equal treatment before the law and you judge this thing on legal principles and not on the basis of sympathy.”

We vacate the award of $40,000 damages to Kevin Dale Weikle. The award to him of $25,000 for pecuniary loss is undisturbed.

Judgment in favor of Marshall E. Weikle in the amount of $170,000 affirmed; judgment in favor of Kevin Dale Weikle in the amount of $25,000 affirmed; judgment in favor of Kevin Dale Weikle in the amount of $40,000 reversed; costs to be equally divided.

      . The damages were as follows: Marshall Weikle, the husband, received $100,000 for pecuniary loss and $70,000 for solatium damages; Kevin Dale Weikle, the son, was awarded $25,000 for pecuniary loss and $40,000 for mental grief and suffering.

      . The first issue was phrased: “Was Terrell G. Todd guilty of negligence causing the death of Antha Weikle?” The remaining issues were concerned with the assessment of damages.

      . A weather briefing was obtained by Mr. Todd from the Raleigh County Airport prior to departure. Apparently, on the basis of this report, Todd telephoned the Weikle residence sometime after 5:00 a.m, to report that the flight was going forward notwithstanding the uncertain weather.

      . 14 C.F.R. 91.3 provides:
      “Responsibility and authority of the pilot in command. (A) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.”

      . The Court of Appeals for the 10th Circuit characterized the Lange case as a “minority of one” in Udseth v. United States, supra, 530 F. 2d at 861.

      . Although in their brief, appellants state that the male voice was never positively identified as that of Mr, Todd or Mr. Brooks, during closing argument counsel for the appellants stated: “There is no question that he (Todd) was flying the airplane when it circled here (indicating the area surrounding Martinsburg Airport)," Mr. Brooks was seated in the rear passenger seat and had no experience piloting a plane.

      . Our review of the record reveals that the appellees never read to the jury the FAA regulation, Aeronautics and Space, 14 C.F.R. § 91.115 (a) (1976), which makes mandatory the filing of a flight plan under circumstances where weather conditions require instrument flight, For the purposes of this discussion, however, we will assume that the jury was aware that the failure to file such plan was evidence of negligence.

      . As recently as January 1969, in Hutzell v. Boyer, 252 Md. 227, 249 A. 2d 449 (1969), and in numerous prior cases, the Court of Appeals consistently held that the measure of recovery for wrongful death was the “present value of the pecuniary benefit which the [survivors] might reasonably have expected to receive from [a deceased] if he had not been killed.” Id. at 237, quoting, United States v. Guyer, 218 F. 2d 266, 268 (4th Cir. 1954).

      . In the later case of Barrett v. Charlson, 18 Md. App. 80, 97, 305 A. 2d 166 (1973), Judge Scanlan writing for the court, we adhered to the interpretation of Wittel that the legislature limited the statute to minor children and spouses only.


author: Melvin, J.,

text:
    LOUIS A. BUTLER v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    [No. 891,
    September Term, 1976.]

      Decided July 8, 1977.

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

      Leon Shampain, with whom were Vaughn & Shampain on the brief, for appellant.

      James P. Salmon, with whom were Sasscer, Clagett, Channing & Bucher on the brief, for appellee Liberty Mutual Insurance Company. William N. Rogers, with whom were Carr, Jordan, Coyne & Savits on the brief, for other appellee.
   Melvin, J.,

delivered the opinion of the Court.

This action was brought under the Maryland version of the Uniform Declaratory Judgments Act, Md. Code (1974) §§ 3-401 to 415, Courts and Judicial Proceedings Article. The plaintiff-appellant, Louis A. Butler, filed his “Declaration for Declaratory Judgment” on 4 March 1976 in the Circuit Court for Prince George’s County against the appellees, Liberty Mutual Insurance Company (Liberty Mutual) and Travelers Insurance Company (Travelers) for the stated purpose of “obtaining] a declaratory judgment . . . with regard to the issue of coverage under a certain policy of insurance issued by [Liberty Mutual] to . . . E.T.&T. Leasing, Inc., or alternatively, under the Uninsured Motorist endorsement of a policy of insurance . . . issued by [Travelers] to plaintiff, both of which policies were in full force and effect on April 27, 1975”.

E.T.&T. Leasing, Inc. was also joined as a defendant in the declaratory proceedings along with Frank Anthony Dangelo, Jr. and James M. Cook. The declaration, filed at law, alleged that on 27 April 1975 appellant Butler sustained personal injuries while he was a passenger in a vehicle operated by Dangelo in the State of Florida; that the vehicle was owned by E.T.&T. Leasing, Inc. and had been leased to Dangelo and Cook and was being operated “with the permission of said owner”. The declaration concluded as follows:

“3. There is presently pending in the Circuit Court for Prince George’s County, Maryland, an action at law known as LOUIS A. BUTLER versus FRANK ANTHONY DANGELO, JR., et al, being Law No. 60,884, involving said accident, in which plaintiff herein is plaintiff therein.
4. Plaintiff claims that the policy of insurance issued by defendant LIBERTY MUTUAL INSURANCE COMPANY, mentioned hereinabove, was in full force and effect at the time of said accident of April 27,1975, and that coverage should be afforded to defendants FRANK ANTHONY DANGELO, JR., JAMES M. COOK, and E.T.&T. LEASING, INC., by said defendant insurance carrier for any liability arising from said accident, but said defendant insurance carrier declines to acknowledge that coverage is afforded to said defendants by it for said accident, for reasons not made known to plaintiff.
5. If coverage is not afforded by defendant LIBERTY MUTUAL INSURANCE COMPANY for the said accident of April 27, 1975, then plaintiff would be entitled to coverage under the Uninsured Motorists endorsement contained in his said policy with defendant TRAVELERS INSURANCE COMPANY.
6. Plaintiff is uncertain as to his rights, status, and other legal relationships arising from the failure of defendant LIBERTY MUTUAL INSURANCE COMPANY to declare the applicability of its coverage to defendants FRANK ANTHONY DANGELO, JR., JAMES M. COOK, and E.T.&T. LEASING, INC., for the said accident of April 27, 1975, and plaintiff should not be required to go through the expense of litigating the said Law No. 60,884, with the uncertainty as to whether he should have applied in the first place for coverage under his Uninsured Motorists endorsement with defendant TRAVELERS INSURANCE COMPANY.
WHEREFORE, plaintiff respectfully prays this Court by declaratory judgment to declare:
1. That coverage be afforded to defendants FRANK ANTHONY DANGELO, JR., JAMES M. COOK, and E.T.&T. LEASING, INC., jointly and severally, under the policy of insurance issued by defendant LIBERTY MUTUAL INSURANCE COMPANY to defendant E.T.&T. LEASING, INC., for any liability which may be incurred by said defendants, jointly or severally, for the personal injuries and/or property damage suffered by plaintiff arising out of aforesaid accident of April 27,1975;
2. Or, alternatively, that defendant TRAVELERS INSURANCE COMPANY under its Uninsured Motorist endorsement of the said policy of insurance issued to plaintiff LOUIS A. BUTLER shall afford coverage for any personal injuries and/or property damage suffered by plaintiff arising out of the aforesaid accident of April 27, 1975.
3. That plaintiff is entitled to a reasonable attorneys’ fee for the prosecution of the above-entitled cause;
4. That plaintiff may have such other and further relief as the nature of this cause may require.”

All defendants were duly served with process on 1 April 1976. Liberty Mutual responded by filing a Motion Raising Preliminary Objection, moving that the declaration be dismissed, for the following reasons:

“1. This Court does not have jurisdiction over the subject matter of the Declaration for Declaratory Judgment, for reason that said Declaration does not set forth the existence of a justiciable! controversy.
2. The plaintiff lacks legal capacity to maintain said Declaration, and does not have standing to maintain the action, for reason that plaintiff is not a person ‘interested’, within the meaning of § 3-406 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland, in whatever issues of coverage may now exist under a certain policy of insurance issued by Liberty Mutual Insurance Company to E.T.&T. Leasing, Inc.
3. For such further reasons as are contained in the Memorandum of Points and Authorities, attached hereto and made a part hereof, or as may be advanced at the hearing on this Motion.”

On 7 April 1976, appellant filed “Points and Authorities in Opposition to Motion Raising Preliminary Objection” in which he perceived the issue to be:

“Must plaintiff pursue his tort action (Law No. 60,884) to conclusion, with concomitant expenses and time loss, only to possibly learn at the conclusion thereof that he must begin all over again against his personal insurance carrier, TRAVELERS INSURANCE COMPANY, under his uninsured motorists coverage, if LIBERTY MUTUAL INSURANCE COMPANY disclaims coverage at the conclusion of the tort action?”

On 5 May 1976, a hearing was held on Liberty Mutual’s motion. At the outset of the hearing, counsel for Liberty Mutual told the court that Traveler’s counsel “asked me to present to the Court a line entering the appearance of his [Travelers’ counsel] law firm on behalf of Travelers, and he asked me to apprise the Court they take a neutral position in this motion”. The hearing proceeded. No testimony or other evidence was offered. After hearing arguments from counsel for appellant and Liberty Mutual, the court took the matter under advisement.

On 21 May 1976, appellant’s counsel filed in the proceedings an “Affidavit in Support of Opposition To Motion Raising Preliminary Objection” stating that “he has made a demand for arbitration upon defendant [Travelers], pursuant to the policy of insurance between [appellant and Travelers]”. Attached to the affidavit was a copy of a letter from a “Tribunals Supervisor” , of the American Arbitration Association in Washington, D. C., indicating that such a demand “was filed with this office on May 18, 1976”.

On 25 May 1976, Travelers filed its own Motion Raising Preliminary Objection moving that the action be dismissed on the same grounds set forth in Liberty Mutual’s motion. By accompanying letter to the Clerk, counsel for Travelers stated that “[t]he issue raised in this Motion is presently under consideration by Judge Couch and, because of this, we hereby expressly waive any further Hearing on this Motion and ask that it be submitted to Judge Couch, for consideration along with the previously filed Motion of Liberty Mutual”.

Up to that time, Travelers had filed no other responsive pleading to the declaration. Travelers’ counsel, however, had by letter to Judge Couch, dated 14 May 1976, with copies to counsel for appellant and Liberty Mutual, “statefd] the position” of Travelers “in the above matter”. In the letter, counsel stated, inter alia:

“With regard to plaintiffs claim that he has standing to sue The Travelers Insurance Company, this claim falls because of the fact that there is no dispute between Travelers and its insured, Butler. We acknowledge that we afford uninsured motorist coverage to Mr. Butler and have never suggested otherwise.”

On 2 June 1976, by a “Memorandum of the Court”, filed in the proceedings, Judge Couch granted Liberty Mutual’s motion to dismiss, and on 7 June 1976 granted Travelers’ similar motion. The reason for his ruling as to both motions was stated by the judge in his memorandum:

“The Court finds that a declaratory decree should not be given unless
‘there is either an actual existing controversy, or antagonistic claims which indicate inevitable litigation or when a party asserts a legal status or right and there is a denial by an adversary party, and the court is satisfied that such a decree will serve to terminate the controversy’. Eberts v. Congress’l Country Club, supra 197 Md. at 465. (see Hamilton v. McAuliffe, [277 Md. 336 (1976)]).
“The Court does not feel that the above cited requirements are present in this case and accordingly the Motion is granted.”

No judgment was entered at that time in favor of either Liberty Mutual or Travelers.

Three weeks later, on 28 June 1976, the appellant filed a “Motion to Vacate and To Reconsider”. The motion asked that the orders of 2 June and 7 June be vacated and reconsidered,

“for the reason that since that time [TRAVELERS] has advised plaintiff that it would presently refuse to pay any award made to plaintiff, its insured under its uninsured motorist endorsement, because of the uncertainty as to the insured status of the operator of the vehicle in which plaintiff was a passenger, such uncertainty arising from the position taken by defendant [LIBERTY] in failing to either confirm or deny coverage for subject occurrence, as will appear more fully by reference to the letters to undersigned counsel dated June 14, 1976, and June 25, 1976, from the attorney for [TRAVELERS] in the arbitration matter, copies of which are attached hereto and made a part hereof.
Further, undersigned counsel is not certain as to whether there has been a final disposition of the above-entitled cause by the said orders of June 2, 1976, and June 7, 1976, and is concerned that the appeal time may expire herein prior to disposition of instant motion, and plaintiff respectfully urges the Court to vacate its said orders at the present time, regardless of whatever the Court’s inclination or disposition may be toward a decision upon reconsideration of the question of the existence of a justiciable issue in light of the recent developments, in order that the record herein may be full and complete by the inclusion of the attached letters from the attorney for defendant [TRAVELERS]. (Emphasis added).

The “attached letters” referred to appellant’s demand for arbitration and stated Travelers’ position “that this matter is not ready for arbitration because the question of insurability is still undecided” and “that the only arbitrable matters in uninsured motorist cases are liability and extent of damages . .. and we will not voluntarily arbitrate coverage questions”.

On 20 August 1976 a hearing was held on appellant’s motion to vacate and reconsider. Again, no testimony or other evidence was offered, the hearing consisting largely of colloquy between the court and counsel for appellant. The motion was denied and a “final judgment granting the motions of [Liberty Mutual] and [Travelers] raising preliminary objections ... [was] entered against [appellant] in favor of [Liberty Mutual] and [Travelers], and there is no just reason for delay for the entry of such final judgment, and the entry of such judgment shall be deemed a final judgment for the purpose of any such possible appeal”. It is from this “final order” that Butler has appealed. He raises a single issue:

“Is there a justiciable issue upon which to predicate a declaratory action?”

I

Our short answer to the issue presented in this appeal is that if there is a justiciable issue it is not reflected by any of the pleadings or evidence that was properly presented to the court below.

In Patuxent Co. v. Commissioners, 212 Md. 543, 129 A. 2d 847 (1957), the Court of Appeals said:

“[I]n this State, it consistently has been held that in order to invoke the jurisdiction of the Courts for declaratory relief, there must be a justiciable issue or controversy; and, insofar as we have been informed, it is universally so held. A concise definition of what constitutes a justiciable issue or controversy is given by Anderson in his Actions for Declaratory Judgments, Vol. 1, par. 17: ‘A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.’ See also Tanner v. McKeldin, 202 Md. 569, 576, 577, 97 A. 2d 449; Kirkwood v. Provident Savings Bank, 205 Md. 48, 53, 54, 106 A. 2d 103.” Id. at 548.

So far as Liberty Mutual is concerned, the declaration alleges only that under Liberty Mutual’s insurance policy issued to E.T.&T. Leasing, Inc., “coverage should be afforded to [Dangelo, Cook and E.T.&T. Leasing, Inc.] ... for any liability arising from said accident, but [Liberty Mutual] declines to acknowledge that coverage is afforded to said defendants by it for said accident, for reasons not made known to plaintiff’. It is thus apparent that there does not now exist any actual controversy between appellant and Liberty Mutual, nor can there be until and unless appellant obtains a judgment against Liberty Mutual’s alleged insured and that party refuses to pay the judgment. These contingencies may never come to pass. So far as Liberty Mutual alone is concerned, therefore, appellant is not now entitled to a declaration that Liberty Mutual’s policy affords coverage to the defendants in the tort action brought by the appellant. Between appellant and Liberty Mutual there are no “[a]ntagonistic claims . . . present . . . which indicate imminent and inevitable litigation”. See Courts Article, Code (1974), § 3-409 (a). See also Hale v. Fireman’s Fund Insurance Company, et al, 302 P. 2d 1010 (Oregon); Park v. Safeco Insurance Company of America, 162 S.E.2d 709 (S.C.); Hartford Acc. & Indem. Co. v. Hale, 168 S.E.2d 204 (Ga.); and Indemnity Insurance Company of North America v. Kellas, 173 F. 2d 120 (1st Cir.), for the proposition that no declaratory relief is available to a plaintiff who attempts to litigate the question of whether an alleged tort feasor has insurance coverage prior to judgment against that tort feasor.

II

If we correctly understand appellant’s principal argument on appeal, it is that even if he has not presented a justiciable issue for declaratory relief against Liberty Mutual alone, his real complaint is against Travelers and that it was necessary to join Liberty Mutual as a party defendant because Liberty Mutual would be affected by any determination concerning the status (insured or uninsured) of the alleged tort feasors in the April 1975 accident. We therefore now look to see whether the appellant has presented a case for declaratory relief against Travelers. If he has and Liberty Mutual would be affected by such a declaration, then, of course, Liberty Mutual is a necessary party. See Courts Article Code (1974), § 3-405 (a).

Appellant’s declaration, however, alleges no controversy whatsoever with Travelers. It is alleged only that “[i]f coverage is not afforded by [Liberty Mutual] for the said accident of April 27, 1975, then plaintiff would be entitled to coverage under the Uninsured Motorists endorsement contained in his said policy with defendant [Travelers]”. It is not alleged that Travelers disagrees with that allegation or in any other manner takes an antagonistic position. Appellant nevertheless insists that there is a controversy. He states that “TRAVELERS’ position as to arbitration is antagonistic to appellant’s claim”; he says that, “the appellant has clearly stated a right to arbitration which has been denied by appellee Travelers”. Nowhere in the pleadings do we find where appellant has alleged the “right”, under the uninsured motorist endorsement of Travelers’ policy, “to arbitration”, or that Travelers has denied that right, or what issue appellant claims the right to arbitrate. So far as his declaration is concerned, appellant’s only “claim” is that he has a right to a determination by way of a declaratory judgment of which insurance company will be responsible for the payment of any judgment he may ultimately obtain against the alleged tort feasors.

Appellant is apparently under the mistaken impression that he has presented a justiciable issue merely by the fact that his counsel wrote Judge Couch a letter dated 17 May 1976, twelve days after the 5 May hearing, in which he informed the judge that “we are this day filing a request with the American Arbitration Association for an arbitration hearing of our claim against Travelers under our uninsured motorist endorsement”. A copy of the request was attached to the letter. The attachment included what purported to be a copy of an uninsured motorist endorsement, presumably contained in Travelers’ policy. The letter was followed by an “Affidavit in Support of Opposition to Motion Raising Preliminary Objection”, filed 21 May 1976, in which it was stated that appellant’s counsel has “made a demand for arbitration upon” Travelers. Neither Travelers’ policy nor the uninsured motorist clause thereof, however, has ever been introduced in evidence at any hearing before the court or made a part of or requested to be regarded as a part of any pleading in the case.

The nearest appellant has come to alleging an actual controversy with Travelers is found in his motion to vacate and reconsider, filed 28 June 1976, three weeks after the court had ruled on the two motions raising preliminary objections. One of the grounds for appellant’s motion was the allegation that after the court’s rulings Travelers had “advised plaintiff that it would presently refuse to pay any award made to plaintiff .. . because of the uncertainty as to the insured status of the operator of the vehicle in which plaintiff was a passenger ....” No amendment was made to appellant’s declaration to reflect this “controversy”. Nor was any attempt made, at the hearing on the motion to vacate and reconsider, to introduce as evidence either of the letters allegedly written by Travelers’ counsel confirming Travelers’ position that it would not voluntarily arbitrate the question of whether the alleged tort feasors were insured or uninsured. Nor, as we have previously indicated, were the contents of the uninsured motorist clause of Travelers’ policy, showing what, if any, rights to arbitration appellant may have against Travelers, and which of those rights, if any, have been denied to appellant by Travelers, ever alleged by amendment to appellant’s declaration. In short, appellant’s declaration does not allege any right to arbitration that has been thwarted by Travelers’ refusal to either admit or deny coverage under the uninsured motorists provisions of its insurance policy and that a judicial determination of the coverage issue is necessary to enable him to exercise that right. Compare, Jones v. New Amsterdam Casualty Co., 213 So. 2d 502 (Fla.).

We conclude that the appellant’s pleadings do not state a cause of action giving the court jurisdiction to entertain a declaratory proceeding and that in the circumstances Judge Couch was correct in granting the dismissal motions of both Liberty Mutual and Travelers filed pursuant to Maryland Rule 323 (Motion Raising Preliminary Objection).

Judgments affirmed.

Costs to be paid by appellant.

      . Because no final judgment had been entered with respect to the other defendants (Cook, Dangelo and E.T.&T. Leasing, Inc.), it was thought necessary to add this final phrase of the order to comply with Md. Rule 605.


author: Davidson, J.,

text:
    NINA LEE MOORE v. JAMES MAURICE MOORE
    [No. 938,
    September Term, 1976.]

      Decided July 8, 1977.

    The cause was argued before Menchjne, Davidson and Lowe, JJ.

      Daniel W. Moylan, with whom were William P. Naim and Byron, Moylan & Umer on the brief, for appellant.

      James F. Strine for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 1 February 1974, in the Circuit Court for Washington County, Judge Paul Ottinger entered a decree and opinion which, among other things: 1) awarded James Maurice Moore, the appellee (husband), a limited divorce from Nina Lee Moore, the appellant (wife), on the ground of desertion; and 2) awarded custody of the minor children to the wife. On 26 February 1974, the wife returned to the marital home and the husband moved into an apartment. On 4 April 1974, the husband filed a bill of complaint for an absolute divorce on the ground of desertion. The wife denied the alleged desertion.

Although the parties continued to live separate and apart, in September, 1974, they resumed their sexual relationship. In June, 1975, they went to Rehobeth Beach where they lived together during a week’s vacation. The husband planned to move back into the marital home after his wife disposed of her dogs and after he finished painting the interior of the house. On 9 October 1975, the husband decided not to move into the marital home and the parties stopped engaging in a sexual relationship. By 20 October 1975, the husband was involved in an adulterous relationship.

The husband explained that his decision that a reconciliation was impossible was not precipitated by a crisis. He said “the locks had been changed” so that he was unable to finish painting the interior of the house. He further said:

“It was just that I would see her and for a couple of days everything would be rosy and then all of a sudden I would ask if she was going to be home the following night and she would tell me that she wouldn't be available. I really wouldn’t know what kind of treatment I would be getting when I would go to the house,”

The wife offered no explanation as to why her husband decided to terminate their relationship.

On 31 December 1975, in the Circuit Court for Washington County, the husband filed an amended bill of complaint for an absolute divorce on the ground of desertion. On 31 March 1976, the wife filed a cross-bill of complaint for an absolute divorce on the ground of adultery. On 3 August 1976, the chancellor entered a decree which, in pertinent part: 1) awarded the wife an absolute divorce on the ground of adultery; 2) awarded custody of the remaining minor child of the parties to the wife; and 3) denied alimony to the wife. In his opinion the chancellor said:

“This Court finds that a take home income of $150.00 a week makes Mrs. Moore substantially self-supporting. It is true that her Husband has a take home income of about twice what she has and if the Court could find that the Wife was without fault in causing the separation, it may be that the Court should order the Husband to pay the Wife something like $25.00 or $50.00 a week as alimony; however, it is obvious that the Court cannot find that the Wife was without fault. This Court has already found that she was guilty of deserting her Husband and the testimony in the present case indicated that, although they resumed the intimate relationship, they never lived together again under the same roof. There is no testimony which would support a finding that the adultery on the part of the Husband caused or contributed to the separation in this case. The Court finds that this separation was beyond any reasonable hope of reconciliation before the Husband began the affair with his present paramour. Therefore, the petition for alimony will be denied.” (Emphasis added.)

On appeal the wife contends that the chancellor erred in denying her alimony. She maintains that she was without fault because her desertion was condoned. The husband asserts that the wife was at fault because her condoned acts were revived. Alternatively, he argues that even a condoned act of desertion can establish fault in an alimony proceeding.

Condonation is a conditional forgiveness of a marital offense. The resumption of marital relations is evidence of condonation. When misconduct is condoned, there is an implied promise that the marital offenses or acts rendering the marital relation intolerable will not be repeated by the erring spouse and that the offended party will be treated with conjugal kindness. When the conditions upon which the original misconduct was condoned are breached, the original grievances are immediately revived as a cause or causes for divorce.

Here the record shows that the wife’s desertion was condoned by the resumption of a sexual relationship between the parties. There is nothing in the record to show that the wife thereafter committed any offense or act which rendered the marital relationship intolerable. Indeed, the husband himself testified that his unilateral decision not to return to the marital home and to terminate his existing sexual relationship with his wife was not based upon any particularly significant act or acts committed by his wife. While there was evidence to show that the husband was prevented from entering the home at will because the locks had been changed, there was no evidence that the wife thereafter unreasonably refused to see him or to have sexual relations with him. At most, the record shows that on occasion the wife had told him that “she wouldn’t be available.” Under these circumstances, there was insufficient evidence that the wife committed acts so lacking in conjugal kindness as to revive the condoned act of desertion.

The question remaining is whether the chancellor may deny alimony without considering factors such as the financial ability and respective needs of the parties when the party seeking alimony has committed an act of desertion which has been condoned and not revived. This question has not previously been decided in Maryland.

Because we are here reviewing the chancellor’s ultimate conclusion in denying an award of alimony, his decision should be disturbed only if he clearly abused his discretion. In making awards of alimony, there are no mechanical rules, rigid formulae, or statutory mandates to be followed. The amount to be awarded is governed by the circumstances of the case. The factors which the chancellor ordinarily should consider in awarding alimony include the financial circumstances of the parties, their station in life, their age and physical condition, their ability to work, the length of time they lived together, the circumstances leading to the divorce, and the fault which destroyed the marriage. The parties’ financial ability and their respective needs are the controlling factors.

There are, however, circumstances under which the chancellor should not take these factors into account. In Flanagan v. Flanagan, the Court of Appeals said:

“However, in those suits in which the actions of the party seeking such a pecuniary award constitute the sole cause for the demise of the marriage, and this wrongdoing consists of acts which are either adultery or abandonment, then, except in rare instances where there exist extremely extenuating circumstances, the award of any alimony would be an abuse of discretion. We have designated adultery and abandonment not on a whim, but because these are the only direct culpatory deeds that the Legislature has selected by name which either authorize or can ripen into grounds for an a vinculo divorce thereby indicating that it considers them the more heinous of the acts which can terminate a marriage.”

Thus, the Court of Appeals has recognized that when the actions of the party seeking alimony are the sole cause of the destruction of the marriage, and the wrongdoing consists of acts so serious that they can constitute grounds for an absolute divorce, alimony must be denied unless there are extremely extenuating circumstances.

An act of desertion which has been condoned and has not been revived cannot be a ground for an absolute divorce. Accordingly, when the wrongdoing of the, party seeking alimony consists of a condoned act of desertion, the circumstances requiring a denial of alimony without consideration of any other factor are not present. In the absence of such circumstances, the chancellor must take all of the other relevant factors into account in determining whether to award alimony. Thus, when a party seeking alimony has committed an act of desertion which has been condoned and not revived, the chancellor may not deny alimony without considering the financial ability and respective needs of the parties.

Here the chancellor found that the wife’s desertion was the sole cause of the destruction of the marriage. Because he made no other comment with respect to the denial of alimony, it is apparent that he based his determination solely upon this fact. The record here shows that the wife’s act of desertion was condoned and not revived: Under these circumstances, the chancellor should have considered all of the relevant factors ordinarily required to determine whether alimony should be awarded. In failing to do so, he clearly abused his discretion. Accordingly, we shall reverse and remand for further proceedings in which the chancellor shall make appropriate findings with respect to all the factors ordinarily considered in awarding alimony and shall then determine the proper amount of alimony, if any, which should be awarded.

That portion of the decree denying alimony vacated.

All other portions of the decree affirmed.

Case remanded for further proceedings in accordance vñth this opinion.

Costs to be paid by appellee.

      . The husband’s contention that the chancellor denied alimony because the wife’s income was sufficient need not be considered because it is not supported by the record. The chancellor’s opinion is premised solely upon his finding that the wire was at fault.

      . Dorsey v. Dorsey, 245 Md. 703, 704, 227 A. 2d 617, 618 (1967); Hilbert v. Hilbert, 168 Md. 364, 372-74, 177 A. 914, 918 (1935).

      . Hoffman v. Hoffman, 241 Md. 118, 122, 215 A. 2d 808, 811 (1966); Sullivan v. Sullivan, 234 Md. 67, 74, 197 A. 2d 910, 914 (1964); Neff v. Neff, 13 Md. App. 128, 132, 281 A. 2d 556, 559 (1971).

      . Dorsey, supra, 245 Md. at 704, 227 A. 2d at 618; Hilbert, supra, 168 Md. at 372-74, 177 A. at 918.

      . Timanus v. Timanus, 177 Md. 686, 10 A. 2d 322, 324 (1940); Singewald v. Singewald, 165 Md. 136, 140-41, 166 A. 441, 443 (1933).

      . Davis v. Davis, 280 Md, 119, 126, 372 A. 2d 231, 234 (1977); German v. German, 37 Md. App. 120, 121, 376 A. 2d 115, 116-117 (1977).

      . Bowis v. Bowis, 259 Md. 41, 43, 267 A. 2d 84, 86 (1970); Eberly v. Eberly, 12 Md. App. 117, 126, 278 A. 2d 107, 112 (1971).

      . Willoughby v. Willoughby, 256 Md. 590, 593, 261 A. 2d 452, 453 (1970); Timanus v. Timanus, 178 Md. 640, 642-43, 16 A. 2d 918, 920 (1940); Birdsall v. Birdsall, 23 Md. App. 502, 513-14, 327 A. 2d 910, 917 (1974).

      . Willoughby, supra, 256 Md. at 592, 261 A. 2d at 453; Colburn v. Colburn, 15 Md. App. 503, 515, 292 A. 2d 121, 128 (1972); Quinn v. Quinn, 11 Md. App. 638, 651, 276 A. 2d 425, 431 (1971).

      . 270 Md. 335, 341, 311 A. 2d 407, 411 (1973).

      . Hoffman, supra, 241 Md. at 122, 215 A. 2d at 811; Sullivan, supra, 234 Md. at 74-75, 197 A, 2d at 914; Smith v. Smith, 198 Md. 630, 634, 84 A. 2d 890, 891 (1951).


text:
    EXXON, INC. v. THE CITY OF FREDERICK
    [No. 1049,
    September Term, 1976,]

      Decided July 8, 1977.

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

      M. Albert Momingstar, with whom were Richard E. Zimmerman and David E. Aldridge and Zimmerman, Aldridge & Dwyer on the brief, for appellant.

      W. Milnor Roberts for appellee.
   Melvin, J.,

delivered the opinion of the Court.

Under the zoning ordinance of the City of Frederick, in effect at the time of these proceedings, “automobile service stations” are permitted as a “conditional use” in an area zoned B-3 (General Business District) provided approval of the City’s zoning board of appeals (Board) is first obtained. The áppellant, Exxon, Inc. (Exxon), obtained such approval on May 18, 1976 for property located on the north side of U. S. Route 40 (a state highway) and the west side of the entrance from U. S. Route 40 to the Frederick County Square Shopping Center. The Board conditioned its approval, however, upon there being an entrance to the station from Route 40 only “at the location proposed by the applicant ... and that exit from the station he into the western lane of Frederick County Square entrance and also from the northwest comer of the station onto the Frederick County Square parking lot”.

Exxon is not happy with that portion of the condition that prevents an exit from its property onto Route 40. After an unsuccessful appeal to the Circuit Court for Frederick County, Exxon presents to us two narrow legal issues:

“1. Can the Board of Zoning Appeals lawfully restrict access to U.S. Route 40?
2. Was the action of the Board of Zoning in granting the conditional use for a service station with the condition that egress to U.S. Route 40 be denied lawful?”

We answer both questions in the affirmative and therefore affirm the judgment below.

I

Citing section 44 of Article 89B of the Maryland Code (1969 repl. vol.), Exxon contends that the State of Maryland has the exclusive authority to control access to state highways and therefore the City of Frederick zoning board of appeals does not have “the power to take away that which it does not have the power to grant”. That section provides:

“In order to promote and further highway safety, the State Roads Commission is hereby authorized to limit the width of points of existing ingress and egress and determine the location of same that any commercial or industrial property owner or user may use into any existing state highway or section of state highway that carries an average traffic volume of more than 2,000 vehicles per day, such traffic volume to have been determined over a period of one year by procedures heretofore used by the state roads commission to establish densities of traffic. The Commission, if determined expedient for traffic safety, may so limit such width and location by any method it deems desirable, provided, however, that nothing herein contained shall be construed to give the Commission the authority to deny any abutting property owner all access along any state highway except along freeways as defined in Section 214 of this Article.”

Section 45 of Article 89B provides for a permit to be issued by the State Roads Commission for access to a state highway.

By its terms neither section gives the State Roads Commission exclusive jurisdiction to control access onto a state highway from abutting commercial or industrial properties. We do not think that the fact that the Commission may “limit the width of points of existing ingress and egress and determine the location of same” in any way impinges upon the authority of municipalities in the proper exercise of their zoning powers, delegated to them by the General Assembly, to deny such access. It may be true that a municipality may not permit access onto a state highway at a location where the State has denied one. It does not follow, however, that because the State has granted such access the municipality, in furtherance of its zoning powers, may not, in a proper case, deny it as a valid condition to the granting of a special exception or conditional use.

II

The evidence before the Board was uncontradicted that some uses permitted in a B-3 zone (that are not subject to the “conditional use” requirements of the zoning ordinance), such as restaurants and fast-food establishments, would create as much or more of a traffic impact if they were located on the Exxon property as would an automobile service station. Exxon argues that because those permitted uses can not be denied an exit onto U. S. Route 40, it is not “lawful” to impose such a condition upon the “conditional use” of the property as an automobile service station. It asserts that “[n]o condition can be placed on the subject’s situs that cannot be placed on a permitted use under the B-3 classification”. As authority for this novel proposition, Exxon cites Miller v. Kiwanis Club of Loch Raven, 29 Md. App. 285, 347 A. 2d 572 (1976) and Gowl v. Atlantic Richfield Company, 27 Md. App. 410, 341 A. 2d 832 (1974).

In both Miller and Gowl, the local zoning authority had denied an application for a special exception, in part because of the traffic impact the requested use would have upon the largely underdeveloped surrounding neighborhoods. We expressed disapproval of the denial in each case. In Gowl, which we relied upon in Miller, we said, at 417-418:

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

In Miller, we held it legally arbitrary and capricious to completely deny a special exception on the ground that the requested use would increase vehicular traffic generally and there were permitted uses in the zoning district that would have the same effect. We did not say that the local zoning authority could not impose reasonable conditions, when authorized by a zoning ordinance, upon the granting of a special exception or conditional use — even though such conditions may not be authorized by the ordinance upon permitted uses in the same district.

In the present case, Exxon concedes that the Board is authorized “to prescribe appropriate conditions and safeguards” in granting the “conditional use”. Section 21.342 of the City of Frederick zoning ordinance provides:

“In connection with the authorization of any conditional use or exception, the board may require the installation, operation, and maintenance in or in connection with the proposed use, of such devices and methods of operation as may, in its opinion, be reasonably required to prevent or reduce hazardous or congested traffic conditions, odor, dust, smoke, gas, noise, or similar nuisances, and it may impose such other conditions and requirements as may be necessary in its opinion to protect adjacent properties and neighborhoods and prevent conditions which may become obnoxious or offensive.” (Emphasis added.)

There was ample evidence before the Board to support a finding that the challenged condition imposed in this case was “reasonably required to prevent or reduce hazardous or congested traffic conditions” at the site of the proposed service station. In the circumstances, the fact that (arguably at least) the same condition could not be imposed upon a permitted use in the same zoning district in no way affects its validity in this case.

Judgment affirmed.

Costs to be paid by appellant.

      . Other conditions were imposed, but are not involved in this appeal.

      . Now Transportation Article, § 8-625 (Code 19771.

      . Ibid.