author:
MacDaniel, J.,
      Gilbert, C. J.,

text:
    BOARD OF TRUSTEES OF THE FIRE AND POLICE EMPLOYEES RETIREMENT SYSTEM OF THE CITY OF BALTIMORE v. STEPHEN J. CHES, JR.
    [No. 316,
    September Term, 1981.]

      Decided November 6, 1981.

    The cause was argued before Gilbert, C. J., and Moore and MacDaniel, JJ.

      Richard LaFata, with whom were Benjamin L. Brown, City Solicitor of Baltimore City, Sheldon H. Press, Chief Solicitor of Baltimore City, and L. William Gawlik, Assistant Solicitor of Baltimore City, on the brief, for appellant.

      Leslie L. Gladstone for appellee.
   MacDaniel, J.,

delivered the opinion of the Court. Gilbert, C. J., dissents and files a dissenting opinion at page 207 infra.

Stephen J. Ches, Jr., (appellee), commenced employment with the Baltimore City Police Department (the Department) on February 4, 1954, and on June 27, 1979, filed an application for retirement with special disability benefits with the Board of Trustees of the Fire and Police Employees Retirement System of the City of Baltimore (the Board) appellant, as provided by Baltimore City Code (1976 Ed.) Art. 22, § 34 (e), which reads as follows:

"(e) Special disability benefit. Upon the application of a member or the head of his department, any member who has been totally and permanently incapacitated for duty as the result of an injury arising out of and in the course of the actual performance of duty, without wilful negligence on his part, shall be retired by the Board of Trustees, provided that the medical board shall certify that such member is physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that such member should be retired.”

The Board retired appellee and awarded him an "ordinary disability” allowance, but denied "special disability” benefits. Appellee then filed a petition for a writ of mandamus to compel the Board to award him the special benefits originally applied for. After a hearing on the merits in the Superior Court of Baltimore on January 7,1981, the petition for writ of mandamus was granted. The Board appeals that ruling.

The Board contends that there was competent, material and substantial evidence supporting its decision, therefore making the lower court’s reversal of its decision clearly erroneous.

In determining whether or not an administrative agency’s decision is arbitrary or capricious, we refer to the standard announced in Adams v. Board of Trustees, 215 Md. 188 (1957), at 193-94, where the Court of Appeals stated:

"The function of a court in reviewing a case such as this was clearly set forth in Hecht v. Crook (1945), 184 Md. 271, 40 A.2d 673. As Judge Henderson said so well at pages 280-81:
'* * * the question as to what decisions of an administrative agency are reviewable must turn upon the statute creating it, and upon the type and degree of discretion conferred upon the particular agency. Courts have the inherent power, through the writ of mandamus, by injunction, or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion, where discretion is clearly conferred.’
Again in Heaps v. Cobb (1945), 185 Md. 372, 45 A.2d 73, this Court said at page 380, quoting from the California Law Review:
'"With respect to the issues of fact, the reviewing court examines the evidence taken by the administrative agency, not to re-weigh it, not to substitute the Court’s judgment for that of the agency, but to determine whether the agency acted rationally, that is to say, that it did not arrive at its conclusion arbitrarily.” ’
Thus it is clear that the function of the trial court was to determine whether the Board was arbitrary when it 'disapproved the accidental disability retirement’ for the petitioner by a vote of four to one.”

Again, the function of the lower court was summed up by Judge Jerrold V. Powers for this Court in Comm’r v. Cason, 34 Md. App. 487 (1977), at 508:

"A reviewing court may, and should, examine any inference, drawn by an agency, of the existence of a fact not shown by direct proof, to see if that inference reasonably follows from other facts which are shown by direct proof. If it does, even though the agency might reasonably have drawn a different inference, the court has no power to disagree with the fact so inferred.
A reviewing court may, and should, examine any conclusion reached by an agency, to see whether reasoning minds could reasonably reach that conclusion from facts in the record before the agency, by direct proof, or by permissible inference. If the conclusion could be so reached, then it is based upon substantial evidence, and the court has no power to reject that conclusion.
A reviewing court may, and should, examine facts found by an agency, to see if there was evidence to support each fact found. If there was evidence of the fact in the record before the agency, no matter how conflicting, or how questionable the credibility of the source of the evidence, the court has no power to substitute its assessment of credibility for that made by the agency, and by doing so, reject the fact.”

With this in mind, we turn to a case very similar to the case sub judice that narrows down the issues: Board of Trustees v. Rollins, 269 Md. 722 (1973), which states at 725:

"Our predecessors identified the issues in Adams, 215 Md. at 194-95, 137 A.2d at 154-55:
'The Medical Board, having certified that the petitioner was mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that he should be retired, the ordinance makes it clear that the Board [of Trustees] had to decide (i) whether the incapacity to perform his duty was the natural and proximate result of an accident which occurred while the petitioner was in the actual performance of his duty at some definite time and place, and (ii) if there was an accident, whether it was caused without wilful negligence on the part of the petitioner. * * * [T]here is ample testimony by the petitioner, corroborated by the engine company lieutenant and the fire department physician who first examined him, as to how, when and where he was injured. * * * Thus the only real decision the Board had to make was whether the petitioner became incapacitated as the natural and proximate result of the only accident of which there was any proof.’ (Emphasis in original.)
It seems clear to us that the only issue before the Board in this case was whether Rollins’ incapacity was the natural and proximate result of what Art. 22, § 34 (e) describes as 'an injury arising out of and in the course of the actual performance of duty, without wilful negligence on his part.’ There is not the slightest intimation that the accident was a result of Rollins’ negligence, because the rear end collision occurred when he had stopped at a traffic light.” (Footnote omitted.)

When appellee applied for an award of special disability benefits, he claimed that he became totally and permanently disabled as a result of an injury sustained on August 1,1977, when the police car he was operating was struck in the rear by a tractor-trailer.

The medical board examined appellee on August 3, 1979, and filed a report with the Board of Trustees, in which they concluded:

"Post traumatic arthritis, right acromia clavicular joint, with minimum x-ray deformity and maximal non-physiological loss of function, unresponsive to various modalities of treatment.
Marked obesity.
Uncontrolled hypertension.
he 1. Is or physically incapacitated? Yes, for full she police duties.
he 2. Is or mentally incapacitated? No she
3. Is such incapacity likely to be permanent?
Yes, for full police duties.
The medical board hereby certifies that because of the above described condition Mr. Stephen J. Ches, Jr. is incapacitated for the performance of duty and ought to be retired.”

It is clear that appellee suffered an injury, with no wilful negligence on his part, as the result of an accident which occurred on August 1, 1977, while he was in the actual performance of his duty. It is equally clear, as determined by the medical board, that appellee was incapacitated, that his injury was likely to be permanent, and that he ought to have been retired. Therefore, the only issue remaining for the Board of Trustees’ determination was whether appellee’s incapacity, warranting retirement, was "the natural and proximate result” of those injuries.

The Board is charged with determining whether appellee’s disability was the natural and proximate result of the August 1, 1977 accident or some other cause. In making its determination the Board acts as a quasi-judicial body. It makes findings of fact and draws inferences from the evidence adduced much like a trial judge in a non-jury trial.

At the conclusion of the hearing, the Board by a vote of four to two denied appellee’s claim for special disability retirement.

The lower court upon its review of the record reversed the Board stating, "[t]hat there was no doubt as to the medical causation of appellee’s disability.” In making its determination the lower court relied on the Court of Appeals decision in Rollins, supra. We find this reliance to be misplaced. In Rollins, the Court of Appeals found that "there was no real dispute as to the essential facts, and no unequivocal evidence on the question of causation.... There was no basis for the exercise of judgment or discretion by the Board, and when the Board denied Rollins’ claim for special disability benefits, its conclusion [was] unsupported by the evidence. ..269 Md. 722, at 732-33.

In this case there was evidence which, if believed, could have been interpreted as indicating that appellee’s disability was not causally connected to the accident of 1977.

In its opinion the Board stated:

"Specifically, we find, the claimant not disabled as a result of the subjective symptoms of his shoulder, nor as a result of his obesity or hypertension. We accept Dr. Vollmer’s testimony and the Board’s conclusion of ’maximal nonphysiologic loss of function.’We are also mindful of the precise periodicity with which the claimant lost time from work after the rejection of his first application and prior to his reexamination by the Medical Board. . . . We conclude that the Medical Board adopted the view, in accordance with their policy, that personnel who consistently miss time from work cannot perform their duties and are thereby incapacitated irrespective of the reason (if any) why the employee missed time.” (Emphasis added.)

Notwithstanding the evidence from which the Board could have found appellee’s disability the fruit of something other than the 1977 accident, the Board made conclusions contrary to the evidence adduced at the hearing.

The Board in concluding "that the Medical Board adopted the view ... that personnel who consistently miss time from work cannot perform their duties and are thereby incapacitated irrespective of the reason (if any) . . .”, reached a conclusion not supported by any evidence. In effect, the Board’s conclusion is a statement that appellee was not disabled, but that appellee was being retired due to time missed from work.

We point out that the determination of whether appellee was disabled is a function within the province of the medical board, not the Board of Trustees. Here, the Board invaded the bailiwick of the medical board, which proved to be its Achilles’ heel. As stated above, the function of the Board is to determine whether appellee’s disability was causally connected to the 1977 accident.

The trial court in reversing the Board arrived at the correct conclusion, but for the wrong reason; therefore, we shall affirm the decision of the lower court.

Judgment affirmed.

Costs to be paid by appellant.

Gilbert, C. J.,

dissenting:

I respectfully disagree with my brethren. I take no issue with their discussion of the facts, their conclusion that the trial judge was wrong, or that the Board of Trustees considered evidence dehors the record while rejecting, if not ignoring, substantial evidence that would have supported the Board’s ultimate conclusion.

The record discloses evidence from which the Board could have decided that the appellee’s "special disability” was not causally connected to the injury sustained. Moreover, the Board could have concluded that the appellee’s pattern of absenteeism strained credibility.

Admittedly, the Board journeyed outside the evidence and blatantly decided the case on what was not properly before it.

The "Medical Record Card” of the appellee shows that from August 12,1974 through September 20,1978, a period of four years and one month, the appellee reported sick on ten separate occasions. He lost a total of 20 days work. On October 18, 1978, he sustained an "arm injury” and lost three days work.

Appellee’s initial request for "Special Disability Retirement” was rejected, and he was so notified on March 12, 1979. Thereafter, appellee, with almost mathematical precision, reported sick 11 times during the period April 10,1979 through August 27, 1979. In the April 10, 1979 to June 12, 1979 time frame, all complaints were directed toward appellee’s "sore shoulder.” As a result of the "sore shoulder” he lost about two days work per week.

It is obvious that the majority believe, as do I, that the Board had before it evidence sufficient to reverse the medical board. Notwithstanding that evidence, the Board considered and based its decision on matters not before it. The Board was wrong for so doing, and the trial court should have so held and remanded the case to the Board in order for that administrative body to reconsider the case and decide it on the basis of the evidence before it. It seems to me that if the trial judge can be affirmed even though he has reached what they think to be the right decision, but for the wrong reason, that same privilege should be extended to the Board who, in my opinion, were right, but for the wrong reasons.

I would reverse and remand with instructions to the trial court to remand the case to the Board for reconsideration of the evidence that was properly before it.

      . Art. 22, § 34 (c) reads as follows:
      "(c) Ordinary disability retirement beneñt. Upon the application of a member in service or of head of his department, any member who has acquired five or more years of service may be retired by the Board of Trustees, not less than thirty and not more than ninety days next following the date of filing such application, on an ordinary disability retirement allowance, provided that the medical board, after a medical examination of such member, shall certify that such member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that such member should be retired.”

      . In the civil litigation arising out of the accident appellee was awarded $36,000 for his injuries; and $5,000 for loss of consortium was awarded jointly to appellee and his wife.

      . Motion to amend appellants’ statement of printing costs is granted. See Klopfer v. Werber, 264 Md. 419 (1972).


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    DENNIS CARROLL CARR v. STATE OF MARYLAND
    [No. 103,
    September Term, 1981.]

      Decided December 3, 1981.

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

      Joseph Fleischman, with whom was Brian Lee Herzberger on the brief, for appellant.

      Alice G. Pinderhughes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Thomas E. Hickman, State’s Attorney for Carroll County, and Frank D. Coleman, Assistant State’s Attorney for Carroll County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

After having been denied a change of venue, Dennis Carroll Carr was convicted by a jury in the Circuit Court for Carroll County of possession of marijuana, possession with intent to distribute and conspiracy to distribute a controlled dangerous substance. The primary evidence produced by the State was the testimony of an assistant in the office of the State’s Attorney who had been an undercover investigator in the preparation of the case. Included in that testimony were inculpatory statements reportedly made by appellant to a codefendant who was not tried jointly with appellant since he had previously pled guilty to the conspiracy.

In addition to the evidence offered through the undercover operative, the State introduced the criminal file of the codefendant who had pled guilty to the conspiracy charge. The State’s brief argues that the record is "admissible” under Md. Cts. & Jud. Proc. Code Ann. (1974,1980 Repl. Vol.), § 10-204, and that it was admitted "for the sole purpose of demonstrating the existence of the conspiracy.” Although the State concedes that the admission of the record was error "[according to Boone v. State, 3 Md. App. 11, 31 [,cert. denied, 248 Md. 733, 393 U.S. 872, 873] (1968),” it contends that it was harmless error, beyond a reasonable doubt, as to the charge of possession of marijuana with intent to distribute. It then rationalizes that

"[a]n examination of the abundance of evidence on the possession with intent to distribute charge clearly established that the court file had no impact at all and Appellant’s conviction of conspiracy is insignificant since the sentence imposed runs concurrent with the sentence for the possession charge.”

The State proceeds to set forth pages of testimony as to both crimes and to argue that:

"The evidence adduced at trial was sufficient to establish the existence of the conspiracy. In view of the strong and accumulated evidence of guilt, this Court should rule that the admission of th[e] Court file of the co-conspirator had no bearing on the verdict. Therefore, any error must be deemed harmless beyond a reasonable doubt and there is no cause for reversing this conviction.”

The argument on its face contradicts the Court of Appeals directive. For us to find the error harmless beyond a reasonable doubt, we must be satisfied upon our own independent review that there was no reasonable possibility that the evidence complained of may have contributed to the rendition of the guilty verdict. Dorsey v. State, 276 Md. 638, 659 (1976). When a factfinder is shown that the conspirator, with whom an accused has been charged with having conspired, has pled guilty, there is more than a "reasonable possibility that the evidence ... may have contributed to the rendition of the guilty verdict.” Id. at 659. Simply because there was other evidence from which a factfinder might have concluded the existence of a conspiracy, if such other evidence was believed, does not automatically render harmless such convincing proof as that improperly admitted here. In order to find harmless error, the record must reveal that properly admitted evidence was so overwhelming that the prejudicial effect of the erroneously admitted evidence was insignificant by comparison, or was purely cumulative. Id. at 649. Neither conclusion could possibly be reached from a review of this record.

Nor can we justify the State’s position that the co-conspirator’s file had "no impact at all” upon the possession-with-intent-to-distribute charge. The conspiracy was, in effect, a plan for the distribution of the marijuana that appellant possessed. When one conspirator is proven to have subjected himself to incarceration by admitting such a conspiracy, it is absurd to reason that such evidence would not affect a factfinder determining the conspiratorial guilt of the other alleged conspirator, or of the underlying crime they conspired to commit. The underlying crime was an "intent and purpose ... to distribute . . . Marihwana (sic) ____” Although appellant admitted possessing marijuana and even having sold it to the undercover Assistant State’s Attorney, he denied possessing it with the intent to distribute, explaining the sale to the Assistant State’s Attorney being due to the latter’s insistence and persistence. Surely we cannot hold, beyond a reasonable doubt, that the admission of the guilty plea of a co-conspirator whose crime was predicated upon a finding of that same "intent” to distribute, did not affect the jury in determining the mens rea. That same reasoning, however, does not apply to simple possession, which appellant himself admitted in open court.

Because we will remand for a new trial we should discuss the other issues presented. Two of these we need but touch upon. Regarding the refusal of the court to grant a change of venue, our review of the record will suffice to assure there was no abuse of discretion by such denial, Waine v. State, 37 Md. App. 222, 227-228 (1977). The second issue, raising the question whether a proper foundation was laid before introducing hearsay statements of codefendants, is moot in light of our reversal. We are certain that upon retrial, the court will clarify in the new record any obscurity as to the requisite foundation for the introduction of such testimony. See Mason, Taylor and Taylor v. State, 18 Md. App. 130, 135-137, cert. denied, 269 Md. 763, 767, 416 U.S. 907 (1973). Perhaps the prosecution will also more carefully protect the record in the event of need for an appellate review, for it is that record and that record alone which governs us.

The final issue is the primary issue relied upon by appellant. While it troubles us but little, we will discuss it briefly in light of our remand.

Appellant contends that because an Assistant State’s Attorney for Carroll County was the undercover operative whose testimony provided most of the evidence for the State, either a special prosecutor should have supplanted the Carroll County State’s Attorney’s office or the witness should have been disqualified. Appellant relies upon DR 5-101 (B) of the American Bar Association’s Code of Professional Responsibility, adopted by Md. Rule 1230, which he quotes in pertinent part as stating that:

"A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness ....”

Inappropriately and incorrectly he cites Bell v. State as "18 Md. App. 130, 406 A2d 909” (presumably intending to refer us to 41 Md. App. 89, aff'd, 286 Md. 193 (1979)), as amplifying the rule. The case neither amplifies the rule nor provides the slightest support for appellant’s argument. The rule is mentioned in a quote from the trial judge but played little or no part in the legal issues decided on appeal. Factually, it was totally inapposite, having no relation whatsoever to the propriety of a prosecutor testifying as a witness.

A short answer to appellant’s contention is simply that rules of professional responsibility are intended for the guidance or disciplining of lawyers in representing their clients. It does not follow necessarily from a violation of such a rule that a party opposed by a deviating attorney has been harmed by a disciplinary rule violation. Since the inception of the exclusionary rule as a means of enforcing constitutional rights we have become brainwashed by the exclusion concept. Despite a trend to the contrary, there is no hard bound judicial precedent for dismissing criminal charges whenever a rule deviation occurs.

In this case, however, we will briefly address the propriety of a prosecutorial attorney serving as prosecutorial witness, but it is difficult to respond to a brief such as appellant’s where the issues are so cursorily researched and inarticulately espoused. We must assume so much in order to make the arguments sufficiently reasonable to warrant a response.

We assume, for instance, that appellant equates a State’s Attorney’s staff with the personnel of an ordinary law firm. But crediting him with that assumption damns him with faint praise, for it points up that he is oblivious to the unique constitutional creature "with broad official discretion to institute and prosecute criminal causes”, Brack v. Wells, 184 Md. 86, 90 (1944), provided each county. The assistant who testified in this case (again we must infer) was an attorney, but he did not participate in that capacity in the prosecution of the case. In light of the broad authority given state’s attorneys to assign duties to their deputies and assistants, State v. Aquilla, 18 Md. App. 487, 494, cert. denied, 269 Md. 755 (1973), whether lawyers or laymen, that constitutional officer cannot be charged with exceeding his authority by having investigators attached to his office. In many instances prosecutors and police necessarily must work closely in the preparation and prosecution of cases. This is particularly necessary now in light of the legislative and judicial protections for an accused which create pitfalls in the path of police.

Nearly 70 years ago the Court of Appeals in Murphy v. State, 120 Md. 229 (1913), held that a state’s attorney was a competent witness and there was no ground for defendant’s objection to testimony by him. Accord, Johnson v. State, 23 Md. App. 131, 140 (1974), aff'd, 275 Md. 291 (1975). It follows (contrary to appellant’s view) that to bar the witness or even to disqualify the prosecutor, an accused must show some particular prejudice to him. See Lykins v. State, 288 Md. 71, 85 (1980). None here is alleged, asserted or even suggested. Were this a case where the witness and the prosecutor were one and the same, or even if the witness actively aided the prosecutor in his advocate’s capacity during the trial of the case, opposing counsel for appellant may be handicapped in challenging the credibility of the lawyer when he appears also as an advocate in the case. Where the advocate-witness is himself in the unseemly and ineffective position of arguing his own credibility, the roles are inconsistent. The function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

Indeed, from appellant’s view, an assistant state’s attorney-witness becomes more impeachable for interest when his association becomes known, and for the State he may thus be a less effective witness. The credibility of the witness is certainly subject to attack on the ground that he represents the prosecution, but we are not asked to judge the wisdom of a prosecutor who becomes so directly involved in police procedures, believed by most as better left to experts. We grope in vain (and without guidance from appellant) for even the slightest indicia of prejudice to him, and find none.

Our legal research, however, revealed substantial authority throughout the country relating to prosecuting attorneys who testify. The propriety of it usually depends upon the need and the circumstances vis-a-vis the prejudice it may evoke. Many of these cases are collected in an annotation entitled "Prosecuting Attorney as a Witness in Criminal Cases” found in 54 A.L.R.3d 100. But in all of the collected cases, whether the courts approved or disapproved, the issue was whether the witness-prosecutor could continue to participate as an advocate-prosecutor. We have found no case which even suggests harm where the witness-prosecutor does not participate in the case as advocate for the State. Perhaps this might be because one must strain so hard (as we have done) to set forth some semblance of reason to justify the question raised. Perhaps that is why appellant’s brief was so brief and why counsel on the brief sent a surrogate to enlighten us orally.

Judgments of possession of marijuana affirmed; judgments of conspiracy and possession with intent to distribute, reversed.

Case remanded for retrial.

Costs to be paid by Carroll County.

      . Section 10-204 simply makes the record competent evidence; it does not address its relevance or judicial effect.

      . Although a crucial portion of the transcript was missing (i.e., the jury instructions and its verdict as delivered), the docket entries indicate that appellant was acquitted on the count denying that he had distributed marijuana to the undercover Assistant State’s Attorney despite that officer’s clear testimony and evidence that he had purchased four ounces of marijuana from appellant for $100. The fact was corroborated by appellant’s own testimony subject to his explanation that he did not intend to sell it and only did so at the persistence and insistence of the incognito officer.


author: Moore, J.,

text:
    ALLEN CONNOR et al. v. LAURIE ANN HAUCH
    [No. 161,
    September Term, 1981.]

      Decided December 3, 1981.

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

      Eugene I. Glazer for appellants.

      Edward J. Gorman, Jr., with whom was W. Scott Sonntag on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this appeal from a summary judgment granted by the Circuit Court for Anne Arundel County, appellants contend principally that the workmen’s compensation statute of Delaware should not bar a personal injury action against their fellow employee in Maryland under the doctrine of lex loci delicti. Maryland permits such suits between co-employees subject to workmen’s compensation, Md. Ann. Code, Art. 101 (1957, 1979 Repl. Vol., 1981 Cum. Supp.), but Delaware does not, 19 Del. Code §§ 2304 and 2363(a) (1977 Repl. Vol.), Groves v. Marvel, 213 A.2d 853 (Del.1965). For the reasons stated, we hold that the Delaware workmen’s compensation law should not have been applied in this case. Accordingly, we shall reverse.

I

Both appellants, Allen G. Connor and Carolyn Mclntire, and the appellee, Laurie Ann Hauch, are residents of Maryland and employees of the Hertz Corporation, engaged in driving rental automobiles to the various locations which the company maintains. On February 6,1980, appellee was driving appellants from Baltimore-Washington International Airport outside Baltimore, Maryland, to Dover, Delaware, to pick up rental cars for return to the airport. While traveling east on Route Two in Kent County, Delaware, their car collided with another vehicle, injuring appellants who were treated at a nearby hospital. Later, appellants filed for and were granted workmen’s compensation under Maryland’s statute — $29 per week for Mr. Connor and $49 per week for Miss Mclntire, payment being made for approximately two months. They did not claim benefits under the Delaware statute. Appellants thereafter filed this action, charging negligence and seeking damages of one million dollars. Appellee moved for summary judgment which, after a hearing in chambers, was granted. This appeal followed.

II

The court below found that because appellants’ action against a co-employee was barred by the Delaware statute that makes workmen’s compensation an exclusive remedy, the instant action was also barred under the doctrine of lex loci delicti. His conclusion was based on traditional tort law in Maryland as stated by the Court of Appeals in White v. King, 244 Md. 348, 223 A.2d 763 (1966):

"This Court has consistently followed the rule that when an accident occurs in another state substantive rights of the parties, even though they are domiciled in Maryland, are to be determined by the law of the state in which the alleged tort took place.”

Id. at 352. While place of the injury may be a deciding factor in appropriate cases, the narrow issue here is whether the Delaware statute should bar this action by Maryland employees who have neither invoked the protection of nor received benefits under Delaware’s compensation law. In our view, the doctrine of lex loci delicti is not necessarily determinative in workmen’s compensation cases.

We begin our analysis with the observation that actions by an employee against an employer, irrespective of the place of injury, have almost always been thwarted where "some applicable workmen’s compensation act existed under which the employee could have claimed compensation.” Jonathan Woodner Co. v. Mather, 210 F.2d 868, 873 (D.C.Cir.1954). The rationale is sometimes ambiguous, but the import is clear: "in an employee-employer suit, if some workmen’s compensation act purports to bar the action, that bar will be applied in the forum.” Id. at 873. (Emphasis added.) See Wilson v. Faull, 141 A.2d 768 (N.J.1958) and cases cited therein at 775. As Judge Wilner appropriately stated for this Court in Keahey v. Dunagan, 39 Md. App. 393, 386 A.2d 351, cert. denied, 283 Md. 734 (1978), where the employee applied for and received benefits under the California Workmen’s Compensation Act following an accident in Maryland and was barred from prosecuting a tort action against the employer in this state: "Maryland must, and therefore does, recognize the exclusivity of the California workmen’s compensation remedy, where, as here, that remedy was in fact available and utilized by the injured employee.” Id. at 400.

The bar to employer-employee suits is grounded in the philosophy underlying workmen’s compensation as the statutory exception to common law negligence. As stated in Woodner, supra:

"The employer has incurred the burden of providing workmen’s compensation insurance. The employee has foregone his right to sue the employer for negligence. But both have also gained. The employer has gained an immunity from common law suit. The employee has gained a right to relief even where his injury did not arise through the fault of his employer. The courts clearly consider that this system of mutual give and take would be upset if the employee could sue for negligence in another jurisdiction.” 210 F.2d at 873-74.

The Woodner rationale underlies Section 184, Restatement (Second) Conflict of Laws (1971), "Abolition of Right of Action for Tort or Wrongful Death”:

"Recovery for tort... will not be permitted in any state if the defendant is declared immune from such liability by the workmen’s compensation statute of a state under which the defendant is required to provide insurance... and under which (a) the plaintiff has obtained an award for the injury, or (b) the plaintiff could obtain an award for the injury, if this is the state (1) where the injury occurred, or (2) where employment is principally located, or (3) where the employer supervised the employee’s activities from a place of business in the state, or (4) whose local law governs the contract of employment under the rules of §§ 187-188 and 196.”

See Busby v. Perini Corp., 290 A.2d 210 (R.I.1972).

Turning to employees’ suits against co-employees, the rationale of according immunity to employers as a quid pro quo for shouldering compensation liability is, of course, unavailable. Some state statutes, such as Delaware’s, generally bar common-law actions by making workmen’s compensation an exclusive remedy, 19 Del. Code § 2304. The rationale for this approach is analyzed in Feitig v. Chalkley, 38 S.E.2d 73 (Va.1946), which concludes by quoting Chief Justice Rugg in Bresnahan v. Barre, 190 N.E. 815, 817 (Mass. 1934):

"One purpose of the Workmen’s Compensation Act was to sweep within its provisions all claims for compensation flowing from personal injuries arising out of and in the course of employment by a common employer insured under the act, and not to preserve for the benefit of ... those injured liabilities ... which but for the act would exist at common law.” Id. at 78. (Emphasis added.)

Maryland, however, is one of some dozen States which permit employees to pursue their common-law remedies against co-employees. There is no prohibition in the State statute; indeed, the cause of action is affirmatively recognized. Art. 101 § 58, n. 1, supra. See generally, 101 C.J.S. Workmen’s Compensation § 985e. The rationale here is that "in the exchange for sure and swift compensation the worker has given up the right to sue his employer but not his fellow employee, because the fellow employee is not a party to such an agreement and has given up nothing in return for such an immunity.” Herbert v. Layman, 218 A.2d 706, 709 (Vt.1966). Furthermore, in many cases, the employee cannot be made whole by compensation benefits alone. Colarusso v. Mills, 208 A.2d 381 (R.I.1965). In Larson’s view, the underlying basis for permitting co-employees’ actions is to let the ultimate loss fall on those responsible, after insuring some relief to the employee; the ultimate wrongdoer ought not to escape his obligation to pay full tort damages for the injury he caused. 2A Larson, Workmen’s Compensation § 71.10 (1976).

Judicial interpretation of Maryland’s policy regarding co-employees is scant. In the only decision of the Court of Appeals bearing on the subject, the Court refused to apply the exclusivity provision of the Virginia Workmen’s Compensation statute, Va. Ann. Code, § 65.1-40 (1980 Repl. Vol.), which covered both co-employees, to bar the negligence action. Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969). Judge Finan, writing for the Court, suggested three bases for his decision: 1) Maryland public policy, 2) the plaintiffs application for Maryland compensation benefits, but not Virginia’s, and 3) lex loci delicti. In our reading of the opinion, primary significance was attached to the first of these, namely, that allowing Virginia law to bar the suit would be "obnoxious” to Maryland’s public policy.

The Court rejected out of hand the case of Stacy v. Greenberg, 88 A.2d 619 (1952), in which the Supreme Court of New Jersey applied the exclusivity provision of the New York compensation law to bar a co-employee suit in New Jersey, the place of the accident. Judge Brennan, now Mr. Justice Brennan, declared such a result was not obnoxious to any public policy of the State of New Jersey, noting that the accident happened while the co-employees were passing through the State and that they had both received compensation benefits from New York. Judge Finan stated that while the New Jersey Court found it not obnoxious to that state’s public policy to apply the "full faith and credit” of the New York statute, "we are unable to make a similar finding with regard to the Virginia statute and the public policy of Maryland.” Hutzell, supra at 236.

Thus, the Hutzell Court made a deliberate choice on policy grounds not to allow the bar of the Virginia statute to defeat a common-law action in Maryland by one employee against another. In that light, allowing the Delaware statute to defeat the present action would be obnoxious to the public policy of Maryland.

An additional factor militating against the application of the Delaware statute in this case is that both plaintiffs received Maryland compensation benefits, thereby choosing this State’s protective scheme. Jonathan Woodner Co. v. Mather, supra at 232. See McKenney v. Capitol Crane Corp., 321 F.Supp. 880 (D.C.Cir.1971), and Thomas v. Hycon, Inc., 244 F.Supp. 151 (D.C.Cir. 1965). While they are not excluded from filing for Delaware benefits, 19 Del. Code, § 2303(b), see Wood v. Aetna Casualty and Surety Co., 260 Md. 651, 273 A.2d 125 (1971), they have not done so, and thus have not brought themselves under its provisions. Their action in this case is not concerned with the workmen’s compensation law of Delaware. As far as Delaware is concerned, the parties had an accident within her borders and were briefly detained there for medical treatment. Under these conditions, "the ability to maintain a tort action [should] not turn solely on the fortuitous circumstance of where the accident takes place.” Saharceski v. Marcure, 366 N.E.2d 1245, 1249 (Mass.1977).

To allow Delaware’s compensation law to bar a negligence action by these co-employees would, as appellants contend, mean that Maryland employees who travel on business may lose the potential benefit of the State statute allowing suits between co-employees whenever they leave the State. We do not think the Maryland Legislature meant to cut off this right of action at the State border. The question of which law would apply if the appellants had also sought Delaware compensation benefits is not before us. All we hold is that appellee may not rely on the statutory bar of 19 Del. Code § 2363(a) to defeat appellants’ negligence action where application of the Delaware law would contravene the public policy of Maryland and where all concerned have invoked the protection of the Maryland Act.

The motion for summary judgment was improperly granted and the cause should proceed to trial.

Judgment reversed; case remanded for proceedings consistent with this opinion; costs to be paid by appellee.

      . The Maryland statute does not expressly permit suits by co-employees. Section 58, "When third party liable,” allows the employee to 'proceed either by law against that other person [who is legally liable] to recover damages or against the employer for compensation under this article, or in the case of joint tort-feasors against both;...” If the employer does not enforce the liability of that other person, the employee may do so, provided that if damages are recovered, the employer shall be reimbursed for compensation already paid. Although Maryland has never judicially ruled that co-employees may sue each other, that premise seems to be assumed in Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969), wherein Judge Finan remarked that no previous cases dealt squarely with the question. Id. at 233.

      . Maryland is one of the dwindling number of jurisdictions that retain the rule of lex loci, which, when it has not been rejected outright, has been eroded and reshaped in most other states. R. Leflar, American Conñicts Law §§ 160,161 (3d ed. 1977); R. Weintraub, Commentary on the Conñict of Laws, Torts, §§ 6.31, 6.32 (2d ed. 1980). See generally Larson, "Conflict of Laws in Damage Suits Related to Workmen's Compensation Cases,” 28 Mercer L.Rev. 497 (1977).

      . Larson in his treatise, 4 Workmen’s Compensation Law § 86.10 enumerates six factors recognized in choice-of-law determinations as to the applicability vel non of a state compensation law. "... [t]hey are that the local state is the: (1) Place where the injury occurred; (2) Place of making the contract; (3) Place where the employment relation exists or is carried out; (4) Place where the industry is localized; (5) Place where the employee resides; or (6) Place whose statute the parties expressly adopted by contract. [See, e.g., Kacur v. Employers Mutual Casualty Co., 253 Md. 500, 254 A.2d 156 (1969) (employee whose accident was in Maryland and who received benefits in Maryland also entitled to Pennsylvania benefits and insurer must pay under contract).] When one of these falls within the local state, and some or all of the others occur in another state, the question arises whether the local state can apply its statute without being accused of denying full faith and credit to the statute of the other. As matters now stand, it seems quite clear that the state which was the locus of any one of ‘the ñrst three items — contract, injury or employment — and perhaps also of the next two — employee residence and business location — can constitutionally apply its statute if it wants to. ” (Emphasis added.) Quoted in M. Pressman, Workmen’s Compensation in Maryland (2d ed.1977).

      . Thus, the application for and receipt of benefits under the California Act barred the suit. Statutory reciprocity as required by Maryland Article 101, § 21(c)(4) is found in California Labior Code § 3600.5(b). In effect, this Court whs unable to apply the Maryland compensation law as the law of lex loci because the statute decreed otherwise.

      . In a case in the U. S. District Court of Maryland, Wilson v. Fraser, 353 F.Supp. 1 (1973), cited by appellees, the widows of two co-employees applied for and received survivor’s benefits from the Workmen’s Compensation Commission of Maryland. The federal court relied on Harford Mutual Insurance Co. v. Bruchey, 248 Md. 669, 238 A.2d 115 (1968) and White v. King, 244 Md. 348, 223 A.2d 763 (1966), in holding that Virginia’s compensation law, under which both widows were eligible for benefits, barred a wrongful death action. Both cases relied on, however, did not involve workmen’s compensation — Harford Mutual was an action for loss of consortium and White applied the Michigan guest statute. In any case a federal district court decision is not binding upon this Court.

      . In refusing to apply Virginia law, the Court of Appeals pointed out that Boyer had tried to invoke the benefits of the Maryland compensation law. "It is also significant that the plaintiff [Boyer] did not file any workmen’s compensation claim with the equivalent agency in Virginia.” Id. at 232. Judge Finan remarked that "viewing this suit as a tort action, uncomplicated by any consideration of the impact of divergent workmen’s compensation statutes, the law in this State is clear, that the principle of lex loci prevails....” Id. at 233.

      . In the wake of Carroll v. Lanza, 349 U.S. 408 (1955), whether to enforce a bar imposed by a sister state may be decided free of constitutional compulsion. 3 Larson, supra, § 88.20.

      . The section reads:
      (b) The payment or award of benefits under the workmen’s compensation law of another state, territory, province or foreign nation to an employee or his dependents otherwise entitled on' account of such injury or death to the benefits of this chapter shall not be a bar to a claim for benefits under this chapter, provided that claim under this chapter is filed within 2 years after such injury or death.”

      . The Maryland Legislature’s intent is clear in the case of the wrongful death statute, under which the law of the place of death applies, Cts. & Jud. Proc. § 3-903 (1980 Repl. Vol.).


text:
    WILMA C. JENSEN, Ind. etc. v. AMERICAN MOTORS CORPORATION, INC. et al.
    [No. 283,
    September Term, 1981.]

      Decided December 3, 1981.

      The cause was argued before Gilbert, C. J., and Moore and MacDaniel, JJ.

      Charles E. Bradford, with whom was J. Wilmer Cronin on the brief, for appellants.

      Robert E. Powell, with whom were Smith, Somerville & Case on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

In this automobile products liability case arising out of a one-car, roll-over type accident which resulted in the death of a youthful passenger and injuries to the driver, we are asked to rule that the Circuit Court for Harford County (Cameron, J.) erroneously granted summary judgment for the manufacturer of the vehicle. There was, by appellants’ admission, no direct evidence of any specific defect. In our view, the pleadings, affidavits, answers to interrogatories and replies to requests for admission of fact showed no circumstances from which an inference of a defect might reasonably be drawn. We shall, therefore, affirm.

I

The facts surrounding the death of Robert Teate, and the injuries sustained by his brother, Samuel, are essentially the following, as gleaned from the record: On October 23, 1976, at about 7:30 a.m., the two boys went with their cousin, Scott Lyle Brown, from Aberdeen to Blackwater State Park near Cambridge, Maryland, to look for suitable hunting sites. Robert was fourteen and Samuel seventeen. They rode in a 1976 Custom Jeep, manufactured by the American Motors Corporation (AMC), appellee. Lyle’s parents, Roy and Iris Brown, had purchased the vehicle new the previous January. The odometer showed slightly in excess of 10,000 miles.

Samuel and Scott shared the driving on the outbound journey. Samuel was familiar with the Jeep. He had driven it over back roads and had taken his driver’s test in it two or three months earlier. In a deposition, Samuel testified that while he was at the wheel, proceeding along Maryland Route 213, the Jeep "swerved to the left a couple of times” and that on one occasion, he stopped and checked it. He found nothing wrong. With reference to the swerving he testified: "It was more we got into a rut it felt like, but I really couldn’t be sure.”

The trio left Blackwater in mid-afternoon for the two hour or so ride back to Aberdeen. Samuel drove. The weather was clear and the road was dry. Samuel testified that he had not consumed any alcoholic beverages or drugs and that his speed was about fifty-five miles per hour as he drove westerly on Route 40.

Just prior to the accident which occurred at about 4:30 p.m., he remembered "hearing the tires squealing. It sounded like it came from the left side.” He testified: "I remember trying to bring it under control. That is about it. After that, I don’t remember anything.” He had no recollection of any actions taken by him to bring the vehicle under control. It rolled over three or four times, ejecting its occupants, but never left the roadway itself. Robert was killed and Samuel injured. Samuel did not know whether the Jeep moved left or right but was told by an investigating officer that it went four inches into the grass median on the left.

The wrecked vehicle was subsequently moved to the front yard of Roy and Iris Brown where it remained for at least six months. During that time, approximately two months after the accident, the Browns received a recall notice from American Motors Sales Corporation which stated in part:

"On some of the subject vehicles the bolts that secure the steering gear and bracket to the frame may lose their torque.”

The vehicle was ultimately sold as junk. Prior to its disposal, no one inspected or tested the Jeep on appellants’ behalf. Inspectors for the appellees submitted an affidavit that they "found no defect in steering gear or running gear of this vehicle to cause loss of control of the vehicle.” They did find some play and a noise in the steering gear which they attributed to the accident. A district manager for American Motors Sales also submitted an affidavit that "the bolts securing the steering gear and bracket to the frame of the vehicle were fully torqued and intact.”

Wilma C. Jensen, appellant, mother of Samuel and Robert, sued the Browns as owners of the Jeep and AMC as the manufacturer. The declaration alleged a defect in the steering mechanism and sought damages in the sum of $500,000 on three theories: negligence, breach of warranty and strict liability.

The Browns and AMC filed motions for summary judgment. The lower court, at the conclusion of the hearing on the motions, observed that the Browns’ motion "depends on their having knowledge of the defect”; and that the motion of AMC "depends on the existence of the defect.” The court found no evidence that the steering mechanism was defective and granted the motions. Only the summary judgment for AMC has been appealed. Appellants’ brief states at the outset:

"The Appellants do not have direct evidence per se of any specific defective part in the steering mechanism. The Appellants rely upon the circumstantial evidence presented above which logically leads to the conclusion that the steering mechanism was defective.”

II

"The bare fact that an accident happens to a product... is usually not sufficient proof that it was in any way defective. ... On the other hand, the addition of very little more in the way of other facts, . .. may be enough to support the inference____” Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791, 840-44 (1966).

In this case, appellants had the burden, under all three theories of appellee’s liability, to present evidence of a defect in the 1976 AMC Jeep and to show that such defect was the proximate cause of the accident. Phipps v. General Motors Corporation, 278 Md. 337, 363 A.2d 955 (1976); Woolley v. Uebelhor, 239 Md. 318, 211 A.2d 302 (1965); Braun v. Ford Motor Company, 32 Md. App. 545, 363 A.2d 562 (1962). Conceding the total absence of direct evidence, they contend that a defect was shown by circumstantial evidence — that the undisputed facts give rise to an inference of a defect in the steering mechanism. To this AMC responds that, while a defect may be shown by circumstantial evidence, the facts here do not raise an inference that the cause of the unfortunate accident was a defect in the vehicle.

The first question presented is, of course, the propriety of summary judgment in this case: was there a "genuine dispute as to any material fact” under Maryland Rule 610? Wood v. Palmer Ford, Inc., 47 Md. App. 692, 425 A.2d 671 (1981). We think the trial court properly found there was not. The plaintiffs’ version of what occurred on the afternoon of October 23,1976 was fully set forth in the deposition of Samuel Teate, summarized above. The basis for their claim of liability — that the vehicle had a defective steering mechanism — was fully developed in the answers to Interrogatories propounded by the Browns. That the appellants failed to have any inspection made of the vehicle after the accident or after the date of the recall notice, was established by their responses to requests for admission of facts; as was the fact that up to the date of the accident, "the vehicle in every respect performed well and appeared to be in good operating condition.”

There was thus no disagreement between the parties on the material facts concerning AMC’s alleged liability: their differences involved only the question of whether there was a reasonably permissible inference from the facts that the Jeep was defective and that the defect was the proximate cause of the casualty. In our view, the claimed inference was not legitimate. It was therefore appropriate for the lower court to determine the question of liability as a matter of law. Summary judgment — rather than an extended trial — was the proper course. Fenwick Motor Co. v. Fenwick, 258 Md. 134, 265 A.2d 256 (1970); see Berkey v. Delia, 41 Md. App. 47, 395 A.2d 1189 (1978), aff'd, 287 Md. 302, 413 A.2d 170, 171 (1980).

With respect to the applicable substantive law, Maryland stands with those jurisdictions which impose "strict liability” upon a car manufacturer for defects in design or manufacture existing at the time a vehicle leaves the manufacturer’s control. Phipps v. General Motors Corporation, supra; Restatement (Second) of Torts § 402 A (1965). Judge Eldridge wrote for the Court of Appeals in Phipps that, although the plaintiff need not prove any specific act of negligence,

"... [T]he seller is not an insurer, as absolute liability is not imposed on the seller for any injury resulting from the use of his product. (Citations omitted.) Proof of a defect in the product at the time it leaves the control of the seller implies fault on the part of the seller sufficient to justify imposing liability for injuries caused by the product. Where the seller supplies a defective and unreasonably dangerous product, the seller or someone employed by him has been at fault in designing or constructing the product.” (Emphasis added.)

Id. at 352.

Proof of a defect must arise above surmise, conjecture or speculation, Woolley v. Uebelhor, supra, 239 Md. at 325; and one’s right to recovery may not rest on any presumption from the happening of an accident. Brehm v. Lorenz, 206 Md. 500, 112 A.2d 475 (1955). Res ipsa loquitur does not apply.

The appellants ask us to consider cases in New Jersey, Moraco v. Ford Motor Company, 332 A.2d 607 (1974), Henningsen v. Bloomfield, 161 A.2d 69 (1960), as well as a decision of the Supreme Court of Oregon, Brownell v. White Motor Corporation, 490 P.2d 184 (1971), where injured plaintiffs were permitted to rely upon an inference that the accidents were caused by some defect. Appellants’ reliance upon these authorities is altogether misplaced.

In contrast to the facts in the instant appeal, the plaintiff in Moraca heard a "gink” in the front of the vehicle and the wheels felt as if they had "locked.” Two experts were also presented on behalf of the plaintiff and experts on behalf of the Motor Company conceded that if the power steering system lost oil, an audible noise would result.

In the earlier New Jersey case, Henningsen v. Bloomñeld, the accident had occurred only ten days after the vehicle was purchased and it had been driven fewer than 500 miles. An independent witness testified concerning the sudden erratic behavior of the vehicle and the plaintiff produced expert testimony that something went "wrong from the steering wheel down to the front wheels.” In addition, the plaintiff testified that she had the sensation that something cracked and then the steering wheel spun in her hands. Similarly, in Brownell v. White Motor Corporation, supra, the opinion of the Oregon Court discloses that the vehicle involved was only three weeks old and the driver deposed that he heard a loud bang. Also a wheel came off an axle. The lower court denied a motion for directed verdict. The Supreme Court, equally divided, affirmed.

The above cases and others in which circumstantial evidence has been held sufficient to permit an inference of a defect in an automobile mechanism, see generally, Strict Products Liability — Proof of Defect, 51 A.L.R. 3d, are based on distinct circumstances described by the witnesses as well as expert testimony. The latter includes references to specific unusual behavior of the vehicle.

In this case there is a complete absence of essential facts from which an inference of a defect may reasonably be drawn. The driver, Samuel Teate, heard a squeal in the tires and lost control. There was no testimony that the steering mechanism locked or failed nor that the vehicle behaved erratically. No one on behalf of the appellants made any determination as to whether there was any looseness in the bolts that secured the steering gear to the frame, despite the fact that the damaged vehicle was available to the appellants for such inspection over an extended period of time; and this was not a situation where the vehicle was so damaged that discovery of a defect was impossible. Cf., Brown v. Ford Motor Co., 287 F.Supp. 906 (D.D.C., 1968) (no attempt to examine vehicle for defects; summary judgment proper). There is nothing here to show the slightest connection between the squealing of tires and the alleged defect in the vehicle’s steering mechanism.

Appellants’ reliance on Giant Food, Inc. v. Washington Coca-Cola Bottling Co., Inc., 273 Md. 592, 332 A.2d 1 (1975), is also misplaced. Although they assert in their brief, citing Giant Food, that "bottles which are manufactured properly do not explode,” they overlook Judge Levine’s clear holding:

"Here, as we have indicated, there is no evidence permitting an inference of a manufacturing defect. Nor does the testimony permit an inference that thermal shock during the period of time in which the bottler controlled the bottles caused the explosion. Finally, as we said earlier in quoting from the decision of the Court of Special Appeals, the evidence does support the inference that 'because the opportunities for mishandling by the retailer were considerably more extensive than those of the bottler, there was a greater likelihood that [the customer’s] injuries were caused by the negligence of the retailer than by any cause within the control of the bottler.’” (Citation omitted.) (Emphasis added.)

Id. at 601-2

Regardless of the recovery theory, the plaintiff in product litigation must satisfy three basics from an evidentiary standpoint: 1) the existence of a defect; 2) the attribution of the defect to the seller; and 3) a causal relation between the defect and the injury. See Digges, Product Liability in Maryland Revisited, 7 U.Blt.L.Rev. 1 (1978). Appellants here have satisfied none of the above. They have been unable to show that what might possibly have happened did probably happen. Reduced to its simplest form, their argument is that because a one-car accident happened without apparent cause, the manufacturer must be to blame. Such a theory is not supported by established principles of common-law negligence or strict liability or breach of warranty. It is simply wishful thinking.

Judgment affírmed; costs to be paid by appellants.

      . The summary judgment proceeding seems to provoke as much litigation as it settles. Most often the problem focuses on what constitutes a genuine dispute of a material fact — the adjectives are the qualitative culprits. However, Di Grazia v. County Executive for Montgomery County, after reviewing the standards, stated that a murky conclusion based on a hazy inference drawn from a fuzzy suspicion is not a dispute of a material fact sufficient to defeat a motion for summary judgment. Di Grazia v. County Executive, 43 Md. App. 580, 586, 406 A.2d 660 (1979), rev’d, 288 Md. 437 (1980). In this case, Judge Cameron stated at the hearing on the motion for summary judgment: "The case is now in a posture where a jury would be called upon to speculate as to what the basis, if any, [of] the Defendants’ liability might be. The Plaintiffs ... are asking the trier of fact to speculate that just because there was an accident, there must have been something wrong with the vehicle;....”

      . The doctrine, when applicable, merely asserts a rebuttable conclusion deduced from known and obvious premises. Benedick v. Potts, 88 Md. 52, 58, 40 A. 1067 (1898). "There is, therefore, a difference between inferring as a conclusion of fact what it was that did the injury; and inferring from a known or proven act occasioning the injury that there was negligence in the act that did produce the injury. To the first category the maxim res ipsa loquitur has no application; it is confined, when applicable at all, solely to the second.” Id. at 56. This Court discoursed at length on the doctrine in C. & P. Telephone Co. v. Hicks, 25 Md. App. 503, 337 A.2d 744, cert. denied, 275 Md. 750 (1975).

      . 51 A.L.R. 3d 31 (1973). § 5 [a] Steering mechanism, evidence held sufficient. Bollmeier v. Ford Motor Co., 256 N.E.2d 212 (Ill. App., 1970) (car had previous history of steering trouble, failed to turn on curve, and exhibited vibration); MacDougall v. Ford Motor Co., 257 A.2d 676 (Pa.Super., 1969) (erratic steering, specified mechanical defects found by expert); Holmquist v. Volkswagen of America, Inc., 261 N.W.2d 516 (Iowa App., 1977) (steering locked, prior hard steering accompanied by grating noises and relevant recall letter); and Gordon v. General Motors Corporation, 323 So.2d 496 (La.App., 1975) (defect in lower left ball joint assembly caused loss of control). § 5 Lb] Evidence held not sufficient. McDonald v. Ford Motor Co., 326 N.E.2d 252 (Ohio, 1975) (steering column fell away before impact-required by safety regulations); Moerer v. Ford Motor Co., 129 Cal. Rptr. 112 (Cal. App., 1976) (proof that left tie rod broke failed to show defect existed at time of sale); Finnie v. Ford Motor Co., 331 F.Supp. 321 (D.C.Pa., 1971) (expert testimony inconclusive to show defect in steering mechanism). Belleville National Savings Bank v. General Motors Corporation, 313 N.E.2d 631 (Ill. App., 1974) (multiple inspections and tests revealed no flaw or malfunction). See also, Scanlon v. General Motors Corporation, 326 A.2d 673 (N.J., 1974) (plaintiff failed to show defect in control of defendants).


author: Gilbert, C. J.,

text:
    IN RE: PHILLIP P., MICHAEL P., BRIAN S., ANDREW D., LARRY S. and PAUL N.
    [Nos. 327 through 332,
    September Term, 1981.]

      Decided December 3, 1981.

    The cause was submitted to Gilbert, C. J., and Couch and Bishop, JJ.
    No appearance by appellant’s counsel. Stephen H. Sachs, Attorney General, Maureen O’Ferrall Gardner, Assistant

      Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and William D. Roessler, Assistant State’s Attorney for Anne Arundel County, on the brief for appellant.
    No appearance or briefs by appellees’ counsel.
   Gilbert, C. J.,

delivered the opinion of the Court.

The Circuit Court for Anne Arundel County dismissed a series of juvenile petitions because the disposition hearing was not concluded within thirty (30) days following the adjudicatory hearing that had been held in those cases. The State, as it is permitted to do by Md. Cts. & Jud. Proc. Code Ann. § 12-301, has appealed to this Court requesting that we reverse the orders of dismissal and remand the matter to the circuit court for further proceedings, namely, the completion of the disposition hearing.

The record discloses that Phillip P., Michael P., Brian S., Andrew D., Larry S., and Paul N., juveniles, all appeared in the juvenile court on charges that they had committed delinquent acts. The acts included breaking and entering and malicious destruction of property. The destruction took the form of senseless and wanton spraying or throwing of paint around the interior of the complainant’s building, intensive damage to two generators, the pouring of tar over a radial saw, and damage to the chimney stack. Entrance to the building appears to have been gained by forcing or "popping” rivets or bolts from metal siding panels, then bending the metal in such a way as to allow the juveniles to enter the premises. While the petitions alleged that there was theft involved, the record before us is devoid of the events occurring at the adjudicatory hearing. We have inferred the facts from an examination of the photographs that were received into evidence.

Prior to the adjudicatory hearing or immediately after that hearing, each of the juveniles and the parents of the juveniles, signed a "waiver of separate disposition hearing.” The waiver provided:

"Pursuant to Section 3-820 (A) [sic][] of the Courts and Judicial Article,[] we, the undersigned, understanding that we have a definite right to have a separate hearing for disposition in this matter, freely, knowingly, and voluntarily waive that right and request disposition be made at the conclusion of the Adjudicatory hearing.”

During the course of the disposition hearing, it developed that the dollar amount of the damages had not been determined. The court then continued the hearing from that date, November 12,1980, until the "figures” on "restitution” could be ascertained, at which time the cases were to be "reset.”

When the matter was scheduled for disposition on February 11, 1981, the juveniles-appellees moved to dismiss the cases on the ground that the court was required to complete the disposition hearing within thirty days of the adjudicatory hearing. Patently, that had not been done, and, therefore, the juvenile court no longer had jurisdiction over the matter. The judge reasoned that the State should have rescheduled the cases within the prescribed time limits, and that their failure to so do meant that he had "no alternative ... contrary to ... [his] feelings, desires and wants, ... [but to] dismiss these ... Petitions.” These appeals followed.

We think the judge was not in the predicament in which he seems to have viewed himself. As we see it, the motions should have been denied and the disposition completed. We shall, therefore, reverse the judgments of the circuit court and remand to the same for further proceedings. We shall now explain why we take that action.

Md. Rule 915 a provides that:

"If after an adjudicatory hearing the court determines that the allegations of the petition at issue in the adjudicatory hearing have been sustained, it shall promptly schedule a separate disposition hearing. The disposition hearing shall be held no later than thirty days after the conclusion of the adjudicatory hearing.”

To reach the same result as the juvenile court judge we would be compelled to read Rule 915 a as meaning that the disposition hearing must be commenced and completed within thirty days of the adjudicatory hearing. Obviously, events could and do occur that preclude a disposition’s being completed within thirty days, as for example, if the juvenile became seriously ill and required extensive hospitalization, or the juvenile fled the State and was not apprehended within the thirty day time frame, or the juvenile court judge was incapacitated in some manner. There are, to be sure, other reasons why a disposition hearing may not be completed within thirty days of adjudication, but the examples provided herein serve to demonstrate that it is possible that a disposition hearing may not always be completed within the thirty day period provided in the rule.

The purpose behind the Juvenile Causes Act is "to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interest and the protection of the public interest.” Neither of those two lofty objectives is accomplished when hypertechnical construction of rules of court is employed in a manner that defeats the juvenile court’s jurisdiction over the children. Instead, the juveniles are taught that form prevails over substance to the extent that the laws may be violated, and the violator, even though adjudged delinquent, may avoid punishment if a once-begun disposition hearing is not completed within thirty days of the adjudicatory hearing.

Sometimes courts lose sight of the fact that the Juvenile Causes Act is not a criminal statute, nor is the juvenile charged and tried as a criminal. "Judges in juvenile cases do not think in terms of guilt, but rather in terms of the need of the child for protection, guidance, or rehabilitation.” In re Appeal Misc. No. 32, Term 1975, 29 Md. App. 701, 704, 351 A.2d 164, 165 (1976).

No useful purpose is served by interpreting Rule 915 a to require that the disposition hearing must be completed within thirty days of the adjudicatory hearing. We find this analogous to the constitutional speedy trial mandate. Certainly, it is the speedy commencement of a trial, not its conclusion, to which a defendant in a criminal proceeding is entitled. All that Rule 915 a necessitates is that the disposition hearing be commenced within that time frame, provided exigent circumstances do not foreclose that possibility.

Recently, the Court of Appeals, in In re Dewayne H., 290 Md. 401, 430 A.2d 76 (1981), speaking through Judge Smith, said that the failure to schedule a disposition hearing within thirty days of the adjudicatory hearing did not warrant dismissal of the charges. If the failure to schedule the hearing within that time period does not command dismissal, it would be nonsensical to compel dismissal when the hearing is commenced, albeit not completed, within the thirty day period.

We think the purpose of the Juvenile Causes Act is best served by reversing the judgments of the circuit court and remanding the cases for a disposition hearing.

Judgments reversed.

Cases remanded for further proceedings.

Costs to be paid by appellees.

      . Md. Cts. & Jud. Proc. Code Ann. § 12-301 confers the right to appeal upon a party to a final judgment. Inasmuch as juvenile proceedings are civil in nature, 12-301 is applicable.

      . That section of the code is non-existent. Apparently what is meant is § 3-820 (a), which provides:
      "After an adjudicatory hearing the court shall hold a separate disposition hearing, unless the petition is dismissed or unless such hearing is waived in writing hy all of the parties. The disposition hearing may be held on the same day as the adjudicatory hearing, if notice of the disposition hearing, as prescribed by the Maryland Rules, is waived in the record by all of the parties.”

      . Obviously a reference to the Courts and Judicial Proceedings Article of the Code.

      . Compare, however, Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), wherein the Court of Appeals held that a time prescribed in the rules was applicable "irrespective of the reason” for non-compliasice.


text:
    FREDERICK HOFMANN v. JOAN P. HOFMANN
    [No. 338,
    September Term, 1981.]

      Decided December 4, 1981.

    The cause was argued before Gilbert, C. J., and Couch and Bishop, JJ.

      Paul E. Rosenberg for appellant.

      James E. Kenkel for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The appellant here seems to believe that this is the Day of the Condore. He appears to have read Condore as creating a crypt into which all statutes enforcing common laws that favor one sex over the other are to be interred.

Appellant asserts that Condore killed common law alimony, and he invites us to conduct the funeral. We decline the invitation to perform that pastoral task.

Before we enter upon a discussion of the issue, it is advisable to set the scenario from which this appeal has arisen.

Appellant characterizes, with some justification, the relationship between the litigants as a "continuous state of war.” To understand why that characterization is warranted, one must wade through volumes of pleadings, interrogatories, exceptions, motions, depositions, and testimony, all designed to end both matrimony and alimony. The severance of the bond of matrimony ended only a battle. The "war” then shifted to a "second front.”

The record discloses that the litigants, Frederick Hofmann, appellant and Joan P. Hofmann, appellee, were married in Topeka, Kansas, on December 28, 1957. Three children were born of that union, one of whom is still a minor and an integral part of the instant skirmish.

In 1977, the appellee filed a bill of complaint in the Circuit Court for Prince George’s County, in which she sought separate maintenance, child support, and attorney’s fees from the appellant. The bill alleged that the appellant had, "without just cause or reason” deserted and abandoned the appellee.

The appellant answered in due time and also launched his counterattack via a cross bill for divorce a mensa et thoro in which he asserted cruelty of treatment and constructive desertion. A "six day war” in open court led to a victory for the appellee. Appellant was denied an a mensa et thoro divorce, and appellee was granted alimony of $800 a month, custody of the then two minor children, with $250 per month support per child, and $2,000 toward her counsel fees.

We shall avoid discussion of the maneuvering between the parties during the period November 1977 to April 1978 when the appellee was granted an a vinculo matrimonii decree of divorce from the appellant. The reason we have not discussed the interim proceedings is that they add nothing to the case except to underscore the acrimony that permeates the record. From the date of the a vinculo matrimonii decree in April 1978 to February 17, 1981, the date of the matter now on appeal before us, there are 143 separate docket entries.

The February 17,1981, proceeding resulted in a denial of the appellant’s petition to cite appellee for contempt. At the same time, the appellee’s petition to modify alimony and child support was also denied. Alimony was continued at $1,000 per month and child support remained at $500 per month. Appellant was also directed to pay $800 toward orthodontist treatments to the minor child and $1500 to the appellee as a contribution toward her counsel’s fee.

I.

"Common Law Alimony No Longer Exists.”

To support that assertion, appellant relies upon Condore v. Prince George’s County, supra, wherein the Court explained that the earlier requirement that husbands pay for their wives’ necessaries was no longer viable in the light of the Maryland Equal Rights Amendment, Md. Constitution, Bill of Rights, Article 46. That article provides:

"Equality of rights under the law shall not be abridged or denied because of sex.”

Appellant then equates alimony with necessaries and concludes that if the husband is no longer liable for payment for his wife’s necessities, he is no longer liable to pay alimony. Chief Judge Murphy, for the Court, explained in Condore that the common law of Maryland prior to the adoption of Article 46 of the Declaration of Rights was that a husband was under "a legal duty to supply his wife with necessaries suitable to their station in life....” 289 Md. at 520, 425 A.2d at 1013. The wife, however, was not under a similar obligation to the husband irrespective of her financial ability to meet similar obligations. Condore v. Prince George’s County, supra at 520, 425 A.2d at 1013; Ewell v. State, 207 Md. 288, 114 A.2d 66 (1955). Thus, even if the wife were a millionaire and her husband a pauper, the wife was under no legal duty to pay for the husband’s necessaries.

Had the duty of supplying necessaries run from the wife to husband as well as from husband to wife, Condore would have been decided differently.

When the voters of Maryland ratified what is now Article 46 of the Declaration of Rights, they implicitly abrogated the common law duty of the husband to provide necessaries to the wife. The presumption of dominance in a marriage by the husband was erased, Bell v. Bell, 38 Md. App. 10, 379 A.2d 419 (1977), cert. denied, 282 Md. 729 (1978), and the right of the husband to claim alimony was bom. See Minner v. Minner, 19 Md. App. 154, 310 A.2d 208 (1973).

This Court, in Minner v. Minner, supra, found it unnecessary to discuss whether a husband, in a proper case, would be awarded alimony from his wife. We did not reach the issue because alimony was not claimed by the husband. Had we been confronted squarely by that question, it is patent that Article 46 of the Declaration of Rights would have dictated our holding that the husband, in a proper case, is entitled to alimony.

Article 46, reduced to a simplistic saw, says that "what is sauce for the goose, is sauce for the gander.” The Maryland Equal Rights Amendment is a two-edged sword "in that it excises discrimination because of sex, but it does not halt with eliminating discrimination only against females.

Lest there be any doubt that Article 46 allowed courts of equity to award alimony to husbands as well as wives, the General Assembly, by Laws 1980, ch. 575, enacted what is now designated in the Code as Article 16, § 1. That section provides in pertinent part: "(a) Award. In granting a limited or absolute divorce, annulment, or alimony, the court may award alimony to either party, and the existence of a ground for divorce against the party requesting alimony shall not be an automatic bar thereto.” (Emphasis supplied.)

The effect of the adoption of Article 46 was not to remove from the law the obligation of a husband, when ordered by a court, to pay alimony to the wife but to add to the law the duty of a wife, when so ordered by a court, to pay alimony to the husband.

Whether we consider the current duty by either spouse to pay alimony to be statutory, as it now is, or a constitutionally modified common law duty, as it was after November 7, 1978, but before the effective date of Laws 1980, ch. 575, is of no consequence to cases decided on or after July 1,1980. Those cases decided between November 7, 1978, and July 1, 1980, however, are controlled by the constitutionally modified common law. Awards of alimony prior to November 7, 1978, were governed solely by the common law.

"Common law alimony” is no longer awarded, but the enactment of the statute did not nullify prior valid awards, whether they were made before the adoption of Article 46, or after it became part of the Declaration of Rights.

In any event, neither Article 46 nor the 1980 statute diminished the right of an equity court to reconsider and modify alimony, as distinguished from support, whenever changed circumstances are shown to exist. See Crandall v. Crandall, 14 Md. App. 476, 287 A.2d 326 (1972).

The trial court did not err in declining to strike the alimony award on the ground that Article 46 had abolished common law alimony.

II.

Appellant next asks, "Is alimony etched in stone forever?” The appellant’s question seems to reflect a lack of confidence in his first issue. Nevertheless, in answering the first issue we have also answered the second; that is, since the court retains jurisdiction to reconsider and modify alimony awards whenever a change in circumstances so warrants, alimony is not "etched in stone.” At best, it is written in chalk on slate, subject to being erased by order of the appropriate court.

III.

Appellant next asserts that there was "insufficient information upon which to base an award of alimony.”

We observe that at the conclusion of the hearing on the various petitions, the court did not award alimony. Instead, as we have said, it denied the relief requested in the various petitions and continued the alimony in the amount previously set.

The current amount of alimony was affixed by order of the court on June 5,1979, "accounting from April 30,1979.” No appeal was taken from that order, although it was appealable. Courts Art. § 12-303 (c) (5); Pappas v. Pappas, 287 Md. 455, 413 A.2d 549 (1980).

The appellant’s argument is directed toward a change in circumstances that in his view would warrant a reduction in the amount of alimony. Having attacked the award of June 1979 on the ground that a change in circumstances of the parties warranted a reduction in alimony, the appellant carried the burden of proving that allegation by a preponderance of evidence.

We perceive no reason to recount all the evidence, pro and con, as to whether a change in circumstances was such as to merit a reduction in alimony payments. Suffice it to say that the trial judge stated one had "to dig through . .. [appellee’s financial statements] and throw 90 percent of them out in order to arrive at what reality is.” Appellant seizes upon that statement and from it argues that if a mere 10% of appellee’s testimony is believable, then she should receive "10% of the requested amount.” What that argument overlooks is that in the trial judge’s mind, the believable 10% justified continuing the alimony in the sum set in June 1979. What the chancellor obviously did was vocalize what judges have been doing from time immemorial, sifting, weighing, and measuring evidence while simultaneously assessing credibility of witnesses.

We are unable to hold that the trial judge’s finding of "need” for the continuation of alimony, in the amount set in June 1979, was clearly erroneous. Md. Rule 1086. The judge was free to pick and choose from evidence presented. That he did so to the displeasure of the appellant does not mean that the judge was wrong.

IV.

Lastly, the appellant assails the award of $1500 to the appellee as a contribution toward her attorney’s fee. Appellant states:

"There is nothing in the record to substantiate the $1500 award of counsel fees. Attorney’s fees are at the discretion of the Trial Court if there is some evidence to support the award. In the case at bar, there was no testimony as to attorney’s fees. The docket entries show that counsel entered the case on March 5,1980, after the Petitions had been filed and answered. There was no representations, testimony or evidence presented to the Court as to the time spent or the results achieved by counsel to support the award. The arbitrary sum is unsupported and cannot be justified.”

The record reveals that after counsel for appellee, inter alia, noted his appearance, he filed an answer to the contempt petition, prepared answers to interrogatories, filed a motion for a protective order and a motion in limine, participated in a hearing thereon, filed a petition to modify child support and alimony, filed supplemental interrogatories, as well as a request for the production of documents, prepared for appellee supplemental answers to interrogatories, and participated in the hearing before Judge Woods in the circuit court.

Judge Davidson, for this Court in Foster v. Foster, 33 Md. App. 73, 77, 364 A.2d 65, 68, cert. denied, 278 Md. 722 (1976), said:

"In determining the amount for a reasonable counsel fee, the ordinary factors of labor, skill, time and benefit, as well as the financial resources of the parties, must be taken into account. While time is one of the applicable factors, the record need not contain evidence specifically delineating the number of hours spent by counsel. Because the record itself discloses the nature of the proceedings, it is some evidence of the extent of the attorney’s efforts. Given this evidence, the chancellor may rely upon his own knowledge and experience in appraising the value of an attorney’s services.” (Footnotes omitted.)

Judge Woods, in the instant case, was thoroughly familiar with the case and was in the advantageous position of being able to gauge the time and effort expended on behalf of the appellee by her attorney. There is nothing before us that suggests that Judge Woods acted arbitrarily in exercising his discretion as to the amount of the fee to be awarded to appellee’s attorney. We perceive no error.

Judgments affirmed.

Costs to be paid by appellant.

      . With apologies to James Grady who penned Six Days of the Condor.

      . Condore v. Prince George’s County, 289 Md. 516, 425 A.2d 1011 (1981).

      . The total docket entries were 196.

      . Child support and alimony payments had been increased to those amounts by court order on June 5, 1979. There was no appeal from that order.

      . Article 46 of the Declaration of Rights was ratified by the General Election, November 7, 1972. The amendment was passed by the voters of Baltimore City and all save one county. The total vote was overwhelming, 697,107 to 236,007.

      . See Schroeder v. Schroeder, 234 Md. 462, 200 A.2d 42 (1964); Dickey v. Dickey, 154 Md. 675, 141 A. 387 (1928); and Simpson v. Simpson, 18 Md. App. 626, 631, 308 A.2d 410 (1973).

      . The appellee testified that she considered alimony to be a "pension.” It is not.


text:
    MORTON M. LAPIDES v. SAUNDRA D. LAPIDES
    [No. 341,
    September Term, 1981.]

      Decided December 4, 1981.

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

      Michael Bowen Mitchell for appellant.

      Steven R. Migdal, with whom were Manis, Wilkinson, Snider & Goldsborough, Chartered on the brief, for Saundra D. Lapides.

      J. Barry Meinster, with whom were Meinster, Semel & Meinster on the brief, for Morton, Jr., and Matthew, minor children.
   Lowe, J.,

delivered the opinion of the Court.

This is an appeal from the Circuit Court No. 2 of Baltimore City by a divorced father of two children questioning whether an attorney’s fee awarded to the children’s counsel pursuant to Md. Cts. & Jud. Proc. Code Ann. (1974, 1980 Repl. Vol.), § 3-604 was excessive. The mother’s cross appeal does not question the amount of the fee but seeks simply to preserve the apportionment of payment in the event we reverse. The father was assessed $7,500.00 of the $10,000.00 fee; the mother was assessed $2,500.00. Her Statement of Facts summarizes that which the record reflects and we will therefore adopt it for our own purpose here.

"The parties, Morton M. Lapides and Saundra D. Lapides, entered into a Separation Agreement on September 12, 1978, agreeing to a joint custody arrangement for their two minor children, Morton M. Lapides, Jr., and Matthew A. Lapides. This provision was subsequently incorporated into a Divorce Decree of the Circuit Court for [sic] Baltimore City on September 19,1978. Thereafter, a two-year period of legal and psychological warfare ensued resulting in the Appellant’s obtaining full custody of the minor children. Since it was evident to all who witnessed or became involved in these proceedings that the minor children had become the obvious pawns in this legal and psychological holocaust, it was necessary for the Court to appoint independent counsel to monitor the legal proceedings on their behalf. Judge Watts, at the time assigned to this case, appointed attorney J. Barry Meinster, who he recognized as an expert in the field of children’s litigation, to represent the minor children, and Mr. Meinster participated in all aspects of the trial including the attendance at hearings, depositions and conferences, filing pleadings, conducting interviews, and reviewing numerous legal documents, medical reports, and other materials relevant to the case.
Mr. Meinster filed his Fee Petition at the end of the case alleging that he spent 251.25 hours in the course of representing the minor children and sought an award based upon a fee of $100.00 per hour for his time. Judge Karwacki ultimately awarded Mr. Meinster $10,000.00 representing less than $40.00 per hour for the services and apportioned the award $7,500.00 to be paid by Appellant, $2,500.00 to be paid by Cross-Appellant. In making the apportionment it was evident that the extensive work involved in this case on the part of Mr. Meinster was largely due to the excessive number of pleadings, depositions, conferences, and phone calls generated as a result of Appellant’s conduct and participation during the two-year battle. The entire record of the proceedings speaks for itself on that point.”

Having used cross appellant’s factual recitation, we will look to appellant for what standard he would have us apply under § 3-604, which is a relatively new statute.

"The law governing the case is uncomplicated and well established. In determining the amount for reasonable counsel fees under these circumstances, the court should make its determination according to 'the ordinary factors of labor, skill, time, and benefit’ of the counsel as well as the financial resources of the parties. Foster v. Foster, 33 Md. App. 73, 364 A. 2d 65 (1976); Flanagan v. Flanagan, 17 Md. App. 90, 299 A.2d 520 (1973); Quinn v. Quinn, 11 Md. App. 638, 276 A.2d 425 (1971), Waters v. Waters, 191 Md. 436, 62 A.2d 250 (1948). The award of counsel fees by the trial court should be reduced if the appellate court finds that the amount awarded was clearly excessive under the circumstances, Kapneck v. Kapneck, 235 Md. 366, 201 A.2d 798 (1964); Plakatoris v. Bainder, 204 Md. 223,103 A.2d 839 (1954); Renner v. Renner, 16 Md. App. 143, 294 A.2d 671 (1972); Quinn v. Quinn, 11 Md. App. 638, 276 A.2d 425 (1971), or where the evidentiary record is insufficient to establish the reasonableness of the award, Deckman v. Deckman, 15 Md. App. 553, 292 A.2d 112 (1972).”

Our careful review of the record indicates that the evidence was sufficient to establish the reasonableness of the award, the court was not clearly erroneous in its determination and the chancellor did not abuse his discretion in setting the fee. Appellant’s entire argument would have us view the facts regarding the "ordinary factors” of consideration in fee cases in the light he projects rather than in the objective light used by equity chancellors and, within appellate limitations, by us. In regard to time, labor and skill expended, we do not find that the fee was clearly excessive under the circumstances. The evidence, reflected by more than 700 docket entries, was sufficient to support the reasonableness of the award. See Zamaludin v. Ishoof, 44 Md. App. 538, 546 (1980); Foster v. Foster, 33 Md. App. 73, cert. denied, 278 Md. 722 (1976); Flanagan v. Flanagan, 17 Md. App. 90, aff'd, 270 Md. 335 (1973).

We find the fee frugal indeed regarding the benefit to the children who were at least partially sheltered against the legal fallout of this acrimonious custodial explosion. It is certain they will not benefit from their parents’ conflicts. While it is not an issue raised in this appeal, we express our hope that latent injuries will not subsequently surface in these children as an aftermath of the atmosphere their parents have created for them.

The exercise of a judge’s discretion is presumed to be correct, Langrall, Muir & Nopp’r v. Gladding, 282 Md. 397, 401 (1978), he is presumed to know the law, Hebb v. State, 31 Md. App. 493, 499 (1976), and is presumed to have performed his duties properly. Schowgurow v. State, 240 Md. 121, 126 (1965). Appellant has not overcome that presumption.

Among his prolific arsenal of pleadings, appellant found a Parthian dart to fling at his real or imagined foe, the attorney who was appointed to do that which appellant and his former wife had failed to do — concern himself solely with the best interests of their children so that their parents could indulge themselves in the perverse pleasures of acrimony. He now moves to strike the brief filed by that attorney under the children’s names as appellees. Appellant contends that his children have no "standing” in this appeal and "no right to representation in this appeal.” He contends that:

"1. J. Barry Meinster, Esquire was appointed by the Circuit Court No. 2 for [sic] Baltimore City (Karwaski, J.) to protect the best interests of the minor children of Morton M. Lapides and Saundra D. Lapides during the divorce proceedings then pending in that court.
2. The only issues raised on this appeal concern the award of counsel fees to J. Barry Meinster, Esquire. It should be noted that said minor children cannot be obligated to pay any portion of the fee, regardless of the outcome of this appeal. The issues before this Court can have no effect upon custody or visitation rights, nor can they in any way affect the interests of the minor children.
3. Moreover, J. Barry Meinster, Esquire has not been authorized by said minor children or the Circuit Court No. 2 of Baltimore City to represent the children in connection with this appeal.
4. Therefore, said minor children have no right to representation in this appeal, and J. Barry Meinster has no authority to submit a brief for consideration by this Court.

It is appellant’s unfortunate conviction that his children have no right to representation that is the underlying cause of this entire controversy. The facts in the case and the statute clearly indicate the contrary.

"§ 3-604. Appointment of counsel for minors
The court, for good cause, may appoint an attorney to represent a minor in any action brought under this subtitle in which the issue of custody, visitation rights, or the amount of support, is contested and may levy counsel fees against either or both parents as is just and proper under all the circumstances. An attorney appointed to represent a minor may not represent any party to the action.”

It is explicit in that statute that the minors are not only entitled to representation, but that their counsel is entitled to compensation from the parents, and it is implicit therein that the children have "standing” to do that which is necessary to protect both counsel and themselves. We fail to see how the children’s status in this matter differs from that of a spouse whose attorney has been awarded a fee, who later must defend the award when the judgment is attacked on appeal. See Danziger v. Danziger, 208 Md. 469 (1955); Wallace v. Wallace, 46 Md. App. 213, 229-230 (1980). Furthermore, appellant had no "standing” to question Mr. Meinster’s authority "to represent the children in connection with this appeal.” The "good cause” upon which the court based such appointment presupposed a parental abrogation of responsibility necessitating judicial interference to provide such representation. Implicit in the court-appointed representation of the minors is the right and the responsibility to decide legal matters on their behalf. We will dismiss appellant’s "Motion to Strike”.

Finally, the minor appellees’ counsel has filed a Petition for Fee and Costs with this Court outlining the time, effort and expenditures necessitated by this appeal. We hold that he is entitled to such compensation; however, we are not factfinders and have no means of hearing testimony or reviewing evidence in that or any regard. We will, therefore, remand the case to the chancellor directing him to determine and provide counsel for the children with a fee adequate to compensate him for his efforts required by this appeal. Since it was necessitated solely by appellant, appellant should bear the entire cost of it, just as he will bear the entire cost of this appeal.

Judgment affirmed.

Case remanded for hearing to determine appellate counsel fees for counsel to minor children.

Costs to be paid by appellant.